R. v. Irwin, 2019 MBPC 43

CITATION: R. v. Irwin, 2019 MBPC 43 THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN Her Majesty the Queen ) Brett Rach ) ) for the Crown - and – ) ) ) Wayne Keith IRWIN ) ) Ryan McElhoes for the Accused Accused ) ) ) Reasons for Decision ) ) Delivered: July 25, 2019 at the City of Brandon, in the Province of Manitoba Hewitt-Michta, A.C.J. INTRODUCTION [ 1 ] Witnesses identified Mr. Irwin as the driver and sole occupant of a vehicle that came to rest, engulfed in flames, in the ditch aside a Manitoba highway in August of 2017. Mr.

Irwin claims he was a passenger, picked up by a woman whilst hitchhiking to Brandon. He says the unknown driver quickly departed the vehicle and did not remain at the scene. [ 2 ] An odor of liquor and other observations led police to demand Mr. Irwin comply with a roadside alcohol-screening test, which he declined, resulting in his arrest. Mr. Irwin says he was in medical distress and a state of confusion, which deprived him of the ability to fully appreciate why police were demanding he provide the breath sample. ISSUES [ 3 ] At issue is whether the evidence establishes beyond a reasonable doubt that Mr.

Irwin was the driver and whether the crown has proven beyond a reasonable doubt the absence of a reasonable excuse for refusing to provide a breath sample. Civilian Evidence [ 4 ] Brian Laing noticed a vehicle catching up quickly behind him and “swerving a bit”. The vehicle soon passed him at which time he noted the driver and only visible occupant to be an older male with longer, grey hair. [ 5 ] The manner of driving seemed erratic and he initially wondered if the driver was on his phone. A big puff of blue smoke from the vehicle persuaded him there was a mechanical issue.

The vehicle was on fire and pieces were falling off the vehicle. There was a continuous trail of smoke. [ 6 ] Mr. Laing was “flabbergasted” at the continued operation of the vehicle and pulled up alongside the back end of the vehicle to signal the driver to stop. He laid on his horn and yelled at the driver to no avail. The vehicle continued, though at a decreasing speed, until it crossed into the lane for oncoming traffic and then travelled into the ditch, coming to rest at the edge of a field on a slight incline. [ 7 ] Mr. Laing parked and ran to the vehicle in the ditch.

The front of the vehicle was in flames, particularly the driver’s side. He did not see anyone exit the vehicle. He saw no one in the vicinity. He told police he was not able to get to the driver’s side door. In court,

he testified he remembers being able to get around the vehicle to the driver’s side but that he could not get to the driver’s door because of the flames. He remembers feeling awful because he worried the driver might succumb to the fire. [ 8 ] Mr. Laing went to the passenger side of the vehicle and saw the passenger side door open. He said the male he observed driving when the vehicle passed him, was laying across the seat, arm outstretched to the passenger door looking up at Mr. Laing. [ 9 ] Mr. Laing pulled the passenger door open and the first thing he heard the occupant say was “everything is good”. Mr.

Laing was surprised the male did not seem in a rush to exit the vehicle. He yelled and pulled at him, encouraging him out of the vehicle. [ 10 ] Dale Ganske was travelling from Brandon to Killarney on PTH 18 when he noticed a vehicle two or three miles in the distance, that appeared to be smoking, travelling towards him. He saw the vehicle veer into the wrong lane before continuing into the ditch. He saw a puff of smoke before pulling over to offer assistance. The front end of the vehicle was on fire. He saw Mr. Laing stop and exit his vehicle. [ 11 ] Mr. Ganske entered the ditch.

He saw flames inside the vehicle particularly on the driver’s side. He did not see anyone else outside the vehicle in the vicinity. He states they helped a male out of the passenger side of the vehicle and brought him up out of the ditch to safety. [ 12 ] When he mentioned calling 911, the male insisted everything was good and there was no need to call. [ 13 ] Mr. Laing and Mr. Ganske both say the male’s hair appeared singed. Both state he insisted repeatedly everything was good and both say he indicated there was no one else in the vehicle.

Both state the male attempted to leave the scene numerous times, asking passing motorists for a ride. Mr. Laing testified the male even attempted to get on a motorcycle with its two occupants to leave the scene. Both remember the accused blaming them for causing the accident. Both recall visibility was clear; the sun had not yet set. [ 14 ] Neither of the civilian witnesses noted an odor of liquor emanating from the accused or vehicle. The smell of smoke was clearly overwhelming. Mr.

Ganske says the male’s eyes were glossy and he acted bizarrely, including the way he held himself, head back and announcing repeatedly everything was fine. These observations and the fact he was blaming the witnesses for the accident, made Mr. Ganske suspect the male might be intoxicated. Mr. Laing says the male seemed “out of it”. [ 15 ] Mr. Laing explains the male eventually wandered away from the scene and he witnessed RCMP retrieve the male from an area off a side road where he believes the man was attempting to hide in a culvert. [ 16 ] Mr. Laing and Mr.

Ganske both present as credible witnesses doing their best to recall the details of an event now eighteen months in the past. Both concede their memory of the finer details have possibly faded over time, but also stress the incident was dramatic and made an impression on them. Neither took notes but both were able to refresh their memories from statements provided to police the day of the incident. Their independent recollections of the incident were strikingly similar and corroborative.

It is clear both were at the scene of the burning vehicle very quickly and had the opportunity to make the observations they describe. Their evidence was straightforward and logical. They did not appear to be guessing or exaggerating. [ 17 ] There are two discrepancies of note. First, Mr. Ganske’s evidence suggests he and Mr. Laing together ran to the vehicle in the ditch and together assisted the male out of the burning vehicle while Mr. Laing indicates he was at the vehicle first and helped the male out before Mr. Ganske appeared. It is clear from the evidence of both, Mr.

Laing was first to stop and run for the ditch. Mr. Laing focussed on whether he could assist the occupant out of the vehicle. It is not surprising he may not have appreciated the timing or presence of Mr. Ganske behind him. It is clear to me from the striking similarity in their descriptions of events at the roadside that they were both in the ditch making the same observations and that both were involved in bringing Mr. Irwin out of the ditch to safety. [ 18 ] Second, Mr. Laing says when the passenger door opened, smoke poured out while Mr.

Ganske says there was smoke but disagrees with the suggestion it was “pouring out”. The likelihood Mr. Laing arrived at the vehicle first and was there when the passenger door first opened, while Mr. Ganske arrived momentarily after when the door had been open a brief time already, accounts for this discrepancy. [ 19 ] These discrepancies are simply explained and do not detract from the credibility of either witness. [ 20 ] There is one contradiction between Mr. Laing’s statement to police and his evidence in court.

He told police he could not get to the driver’s side of the vehicle but he testified in court that he remembers getting to the driver’s side but being unable to get to the driver’s door. I found his evidence in court on this point to be quite compelling, particularly his association with feeling terrible at the time that he could not get to the door and feared someone was dying inside. Again, I do not find the contradiction raises any serious concern about the credibility or reliability of Mr. Laing’s evidence overall. [ 21 ] I do not share defence counsel’s suspicion Mr.

Laing was exaggerating or augmenting his evidence to assist the prosecution. That is not my impression of his evidence. He provides information that is helpful to the defence, including the indication he did not detect any odor of liquor from the accused. Police Evidence [ 22 ] RCMP dispatched Constable Bodnar to the accident at 8:09 p.m. and he arrived at 8:40 p.m. He understood from dispatch it was a single vehicle accident; the vehicle was in a ditch on fire; the male occupant did not appear injured and was out of the vehicle attempting to leave the scene; and the occupant may be impaired.

He understood a civilian at the scene identified the driver of the vehicle to Emergency Medical Services [EMS] personnel. [ 23 ] Upon attending the scene, a firefighter directed him to the accused’s location a short distance away from the scene off a side road, saying the accused fled when he observed police approaching.

[ 24 ] RCMP pursued the accused with an ambulance in tow. The accused, matching the description provided by EMS, was laying in a ditch with his eyes closed. The officer roused the accused. He appeared slightly confused and had a flushed face. When officers helped him to his feet, a faint odor of liquor was apparent coming from his face. He was initially unstable on his feet but once up was able to climb into the back of the ambulance. He was asking about “Tracey”. [ 25 ] Constable Bodnar allowed EMS to assess Mr. Irwin for several minutes before entering the ambulance.

He noted the accused to be animated and talkative with EMS until he entered the ambulance at which time the accused refused any further interaction with EMS in presence of police. The odor of liquor was much stronger in the ambulance. The officer inquired whether the accused was clear and capable of providing a breath sample, EMS advised they assessed him to the best of their ability in the circumstances. [ 26 ] Constable Bodnar testified he was then satisfied he had grounds to suspect the accused had been operating a motor vehicle while impaired.

He considered the accident; the odor of liquor coming from the accused’s face; the accused’s flushed face; slight slurring of speech; and the circumstances in which the accused was located. The officer testified he considered whether the accused might have been in shock or injured in the accident but felt EMS addressed this to the extent possible at the roadside. [ 27 ] Before he had a chance to verbalize the Approved Screening Device [ASD] demand, the accused asked to speak to a lawyer.

The officer explained he was detaining the accused for an ASD test and he would have an opportunity to call a lawyer but not before the test. [ 28 ] RCMP escorted the accused back to the cruiser car and placed him in the back seat. In response to the ASD demand and presentation of the ASD instrument for testing, the accused said, “I’m not”. The officer read the refusal demand and when asked whether he would now provide a sample, the accused said, “I will not. I was a passenger.” Police arrested Mr. Irwin for refusal.

The accused would not acknowledge understanding the arrest and at times during the Charter and Caution, further denied understanding. He repeatedly told the officer he was not driving. [ 29 ] Police transported Mr. Irwin to Brandon RCMP detachment and offered him the opportunity to contact a lawyer. He declined. Police lodged him at Brandon Correctional Center because they now believed Mr. Irwin was intoxicated. His eyes were runny and watery. His face was flushed. The odor of liquor was strong. He was increasingly argumentative and belligerent with police.

There was no sober adult identified to take control of the accused. [ 30 ] Constable Bodnar does not agree with defence counsel’s suggestion the accused did not understand what was happening. The officer agrees that the accused at times said he did not understand but his replies were responsive to the questions he was asked and he seemed to understand the situation he was in. He asked for a lawyer before the officer uttered the demand. He stopped communicating with EMS once the officer stepped into the ambulance.

The officer believed the accused appreciated he was potentially in trouble and was responding accordingly. [ 31 ] Constable Bodnar was a credible witness who provided reliable evidence. His testimony was straightforward and logical. He made reasonable concessions during cross-examination and did not appear to exaggerate or contradict himself. He was unshaken in cross- examination. Accused Evidence [ 32 ] Mr. Irwin testified. He lives in rural Manitoba. He did not have a valid driver’s license in August of 2017. He planned to attend an auction sale in Brandon on August 12, 2017.

He decided to go to Brandon the night before. [ 33 ] Leaving home around 5:00 p.m., he walked an estimated five to seven miles from his residence to Highway 2, where he hitched a ride with a woman named “Tracey” in a large car. She was unknown to him. Tracey appeared to be in her forties and had dark hair with some silver highlights. They exchanged first names only. [ 34 ] After driving for about an hour, Mr. Irwin says they heard a loud “bang” and he suggested she stop the car to investigate. Tracey did not pull over. She kept going, hoping things would get better, but they did not. She sped up.

There was smoke coming from the front of the vehicle and into the interior of the car compromising visibility. Mr. Irwin thinks some debris may have fallen from the vehicle. He repeatedly suggested she stop the vehicle and finally she pulled across the lane for oncoming traffic and into the ditch. [ 35 ] Mr. Irwin maintains even before the vehicle came to a full stop, Tracey was out of the driver’s side door and gone. He says the vehicle was on an angle and he believes gravity caused the door to close behind Tracey. He did not see where she went and never saw her again. [ 36 ] Mr.

Irwin says his seatbelt was jammed and he could not free himself from the passenger side of the vehicle. The vehicle was on fire. The interior of the vehicle filled with dark smoke and his hair singed as he struggled in a panic to get out of the vehicle. He says he stumbled out and “half-ran” away from the vehicle. [ 37 ] According to Mr. Irwin, Mr. Laing and Mr. Ganske were standing together ten to fifteen feet away from the vehicle. They helped him up out of the ditch. Vehicles were stopping. He says he was confused and not thinking properly; felt nauseous; and had difficulty breathing. Mr.

Irwin thought it was Tracey’s vehicle and the accident was her problem, not his. His problem was getting to Brandon so he attempted to get a ride from passing vehicles. One such vehicle stopped and agreed to take him to Brandon but a witness interfered by telling the driver Mr. Irwin needed to remain at the scene. [ 38 ] Mr. Irwin continued to feel nauseous. He says he wanted a quiet place away from the smoke and commotion so he walked a short distance and lay down away from the highway. He says he was dizzy and felt he might vomit, which he did not want to do in front of witnesses.

He was concerned about vomiting while laying on his back so he positioned himself face down. [ 39 ] Mr. Irwin says his next recollection is a police officer rousing him and leading him to an ambulance. An EMS worker began an assessment, which Mr. Irwin says the RCMP interrupted within a minute or two, insisting Mr. Irwin accompany the officer to the police

car. Mr. Irwin testified the officer said something like “you are being incarcerated so you better come with us.” When Mr. Irwin questioned why, he claims the officer said, “never mind; you’re coming with us.” Mr. Irwin denied driving. [ 40 ] When asked to provide a sample of his breath, Mr. Irwin declined. He says he was still feeling sick; was in a confused state of mind; and wanted to be alone. He questioned why he should have to provide a sample when he was not driving.

He says police tried several times to get him to provide a sample and he continued to refuse because he was not the driver. [ 41 ] Police lodged Mr. Irwin at Brandon Correctional Center and released him the following morning. He testified he hitched a ride from the detachment office to a coffee shop, and then called a cab to take him to the auction. [ 42 ] Mr. Irwin did not request or seek out medical attention. [ 43 ] Mr. Irwin concedes his recollection of the incident is not strong. ANALYSIS Proof of Operation [ 44 ] For the reasons that follow, I do not believe Mr. Irwin.

His evidence was unreliable and he is not credible. I specifically reject without hesitation the claim he hitched a ride with a woman named “Tracey” as well as the denial he operated the motor vehicle. His evidence falls far short of raising any reasonable doubt regarding these assertions. [ 45 ] Mr. Irwin conceded repeatedly his memory of the incident is poor. He used the words “cloudy” and “foggy” to describe his recall. He qualified many of his responses with “I believe so”, ‘I don’t believe so”; “I think”, “I don’t think so”, “likely”, and “probably”.

I can come to no conclusion but that it would be dangerous to rely on Mr. Irwin’s professed recollections. [ 46 ] Mr. Irwin’s evidence was inconsistent with highly reliable evidence from other witnesses. The most glaring inconsistency is Mr. Irwin’s denial of alcohol consumption. Police detected a faint odor of liquor on Mr. Irwin’s person when they first spoke with him outside. Once contained in the ambulance, the odor of liquor was much stronger. Mr. Irwin’s self-serving denial of his obvious alcohol consumption contributes to my belief his version is contrived. [ 47 ] There were internal inconsistencies in Mr.

Irwin’s evidence. For example, he insisted that he was fully cooperative with police; that whatever the officer asked him to do, he did. In contrast, he admitted refusing to provide a sample of his breath. [ 48 ] Mr. Irwin’s version does not acknowledge or align with the consistent and credible evidence of the civilian witnesses who described him as repeatedly insisting everything was “good” and there was no need to call 911. [ 49 ] Mr. Irwin’s evidence appears self-serving in other material respects.

Despite his admittedly foggy recollection of the incident, he offers timing and distance evidence, including time and distance estimates, clearly aimed at bolstering his version. He said “Tracey” jumped from the vehicle before the car even stopped moving. He insists he was in the burning vehicle for upwards of ten minutes before he escaped. These assertions seem tailored to address the speed with which Mr. Ganske and Mr. Laing were on scene and their evidence that no one else exited the vehicle or was visible in the area. [ 50 ] Mr. Irwin also insists Mr. Laing and Mr.

Ganske were at least ten feet away from the vehicle. This claim appears contrived to diminish Mr. Laing’s assertions about the accused’s position inside the vehicle. [ 51 ] A further example is Mr. Irwin’s estimate he was in the ambulance only “a minute or two” before RCMP interrupted and detained him. [ 52 ] The totality of his evidence persuades me his recollection is too cloudy for him to be able to offer time or distance estimates. The fact he tries to do so in respect of these particular aspects of his story contributes to my belief his evidence is manufactured. [ 53 ] In assessing Mr.

Irwin’s credibility, I did consider evidence that might corroborate his version of events, particularly the claim he was a passenger and not the driver. The arresting officer confirmed Mr. Irwin asked about a person named “Tracey” and told police he was not the driver. Witnesses at the scene helped Mr. Irwin out of the passenger side door. [ 54 ] Considered in isolation from the rest of the evidence, these evidentiary items do seem to provide some corroboration for Mr. Irwin’s version. However, when considered in the context of the totality of the evidence, they do not persuade me Mr.

Irwin’s account is truthful or even capable of inspiring doubt. [ 55 ] Reliable evidence from the credible civilian witnesses convinces me beyond a reasonable doubt Mr. Irwin was the lone occupant and driver of the vehicle. Mr. Laing observed Mr. Irwin operating the vehicle before it caught fire and came to rest in the ditch. Mr. Laing and Mr. Ganske stopped at the roadside close in time to when the vehicle came to rest. The location is open highway with no residences or businesses nearby. The sun was up and visibility was clear. Not only did Mr. Laing and Mr.

Ganske see no one else exit the vehicle, they saw no other person in the vicinity and no other vehicle stop in the area before them. [ 56 ] Mr. Laing observed Mr. Irwin laying across the seat, arm outstretched to the passenger door. This observation is consistent with Mr. Irwin positioned in the driver’s seat but unable to exit the vehicle from that side, which Mr. Laing said was particularly engulfed. The fact Mr. Irwin’s hair was singed is consistent with his position on the driver’s side, which was fiery. [ 57 ] The totality of the evidence supports a finding Mr.

Irwin’s claim that a driver named “Tracey” snuck away from the location undetected is nonsensical. [ 58 ] Mr. Irwin denies driving. I do not believe his evidence. It does not raise a reasonable doubt. The crown presented compelling evidence establishing beyond any reasonable doubt Mr. Irwin was the driver and lone occupant of the vehicle.

Absence of Reasonable Excuse [ 59 ] The defence concedes Mr. Irwin intentionally refused to provide the demanded breath sample but argues that the circumstances in which he did so justify or excuse his actions. Specifically, the defence asserts Mr. Irwin inhaled an extensive amount of smoke while trapped inside the fiery vehicle. He was nauseous and dizzy following the accident so much so that he lay face down in a ditch to escape the smoke and commotion.

He was in a confused state and did not understand why police were demanding a breath sample says the defence. [ 60 ] The defence urges the court to consider as well the “cursory” manner in which police dealt with Mr. Irwin. [ 61 ] I am satisfied the evidence provides at least an air of reality to the reasonable excuse defence. I do not place any weight on the unreliable and contrived evidence of the accused but the civilian and police evidence supports a finding that Mr. Irwin likely inhaled a consequential amount of smoke and was close enough to flames that his hair singed.

Both civilian witnesses described some unusual behaviour on the part of the accused and one said the accused seemed “out of it” [ 62 ] The burden rests on the crown to prove the absence of a reasonable excuse beyond a reasonable doubt. [ 63 ] Assessing the totality of the evidence, I am convinced the accused did not have a reasonable excuse for refusing to provide a breath sample. While the experience was probably vexing to Mr.

Irwin, there was no collision and there is no evidentiary foundation to assume a head injury or any other physical trauma beyond smoke inhalation. [ 64 ] There is compelling evidence the accused was conscious of his potential criminal jeopardy almost immediately at roadside and that this drove his behaviour. [ 65 ] Mr. Irwin blamed the civilian witnesses for causing the accident. He tried to dissuade a witness from calling 911. Mr. Irwin attempted repeatedly to leave the scene by hitching a ride with passing motorists. As police approached the scene, Mr.

Irwin fled on foot and lay down some distance away near a culvert. [ 66 ] When an RCMP officer entered the ambulance, Mr. Irwin became uncooperative with the medical assessment. Before the officer even articulated the roadside screening demand, the accused asked to speak to a lawyer. [ 67 ] Mr. Irwin did not seek medical attention in the hours and days following the incident. [ 68 ] While Mr. Irwin professed a lack of understanding, the officer observed Mr. Irwin to be responsive and oriented. In answer to the screening demand, the accused said he would not cooperate because he was not the driver.

Interestingly, testifying in court in a sober state almost two years later Mr. Irwin avowed exactly the same belief - he was not required to provide the sample because he had not been drinking and was not the driver. [ 69 ] Mr. Irwin asserts he was in a confused state. Certainly some of his comments and actions were bizarre. Viewed in isolation, that behaviour lends some support to Mr. Irwin’s assertion. However, considered in the context of all of the available evidence, it merges logically as further evidence of his probable intoxication. [ 70 ] Police were not perfunctory in their dealings with Mr. Irwin.

The demand and refusal demand were appropriately articulated. Mr. Irwin was unequivocal in his refusal and there was no reason, given his responsive and oriented condition, to dawdle or quibble with him about that refusal. [ 71 ] The crown has met its burden. There is no doubt the accused lacked a reasonable excuse for refusing to comply with the demand. CONCLUSION [ 72 ] I convict the accused of operating a motor vehicle while disqualified from doing so and of refusing to provide the requisite breath sample. “ORIGINAL SIGNED BY:” Associate Chief Judge S. Hewitt-Michta