Her Majesty the Queen - v. -, 2014 SKPC 137

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 137 Date: June 19, 2014 Information: 24501732 Location: La Ronge _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lee Anthony Wood Appearing: Mr. Harold Johnson For the Crown Mr. Michael W. Owens For the Accused JUDGMENT S.I. ROBINSON , J [ 1 ] Lee Anthony Wood of Air Ronge, Saskatchewan stands charged that on or about November 7, 2012, at La Ronge District, Saskatchewan, while his ability to operate a motor vehicle was impaired by alcohol, he did operate a 2003 GMC Sierra truck contrary to paragraph 253(1) (

a) of the Criminal Code .

[ 2 ] This matter came before me for trial in La Ronge on May 1, 2014. At trial, the Crown called James Irvine and Constable Wade Chitrena as witnesses. The accused testified as the sole defence witness. At the close of the trial, I adjourned the matter to June 19, 2014, for decision. The Facts [ 3 ] James Irvine testified that he has been a doctor in La Ronge since 1981. He serves as the Medical Health Officer for the three Health Districts in northern Saskatchewan. He also serves as a Professor of Family Medicine at the College of Medicine in Saskatoon. [ 4 ] On November 7, 2012, at between 5:30 p.m. and 6:00 p.m., Dr. Irvine was driving north out of La Ronge on his way home via a

section of highway where the posted speed limit was 80 kilometres per hour. As he was driving, he observed a white truck approaching him from the opposite direction. He first saw the truck going over the centre line and then saw it moving into his own lane. He therefore pulled his own vehicle over to the right side of his lane until his wheel (presumably the front passenger wheel) was on the gravel adjacent to the highway. He also slowed his vehicle until he was almost stopped. In spite of this evasive action, the oncoming vehicle clipped Dr. Irvine’s vehicle in the driver’s side rear area.

The clip caused a small scratch to Dr. Irvine’s vehicle and also caused the driver’s side rear tail light to be pulled slightly out from the vehicle body. [ 5 ] After his vehicle had been struck, Dr. Irvine telephoned the RCMP and then turned his vehicle around on the highway to follow the white truck. He followed it back on the highway through a part of La Ronge and into the municipality of Air Ronge. The truck then made a left turn off the highway into a residential

section of Air Ronge. It then made another three left turns to reach an area known as Sanderson Point. En route, the truck stopped properly at two stop signs. By this time, the truck would have travelled more than four or five kilometres from where it had first struck Dr. Irvine’s vehicle. Over this distance, Dr. Irvine did not notice anything improper in how the truck was being operated. When it reached Sanderson Point, the truck stopped where some construction work was temporarily blocking traffic. [ 6 ] When the white truck stopped, Dr.

Irvine got out of his own vehicle and went to speak to the driver of the white truck. Dr. Irvine noted that the driver, whom he identified as being the accused, was pleasant. But he also noted that the accused had drowsy or droopy eyelids, his speech was slurred, and he smelt of alcohol. [ 7 ] Significantly, when Dr. Irvine asked the accused about what had happened on the highway, the accused appeared unaware that anything had happened. As Dr. Irvine put it, “He was questioning whether it had actually happened or not.” [ 8 ] After some discussion, the accused got out of his truck and went with Dr.

Irvine to look at where Dr. Irvine’s vehicle had been struck. Dr. Irvine noted that the accused was “staggering and a little bit wobbly.” He also noted that the accused was a little wobbly even while standing. The accused offered Dr. Irvine $500.00 to pay for the damage. He also provided his name to Dr. Irvine. He then left in his truck when the construction roadblock was cleared to allow vehicle traffic to pass through. [ 9 ] Constable Chitrena also testified for the Crown.

However, as the bulk of his testimony related to evidence that was excluded following a voir dire , I will not review his testimony. [ 10 ] The accused testified that he is 39 years of age. In November 2012, he was employed underground at the McArthur River Uranium Mine as a diamond driller. On the day in question, apparently on days off from his regular job, he had left his home at Sanderson Point in Air Ronge at around 10:00 a.m. to cut firewood with his friend Kevin Bell around Nemeiben Lake. He says that while cutting firewood, he had two beer with the first at 11:30 a.m. and the second at 2:30 p.m.

He and Kevin Bell cut two loads of wood with each load taking about two hours to cut. They were finished their work by about 5:00 p.m. By this time, the accused was feeling a bit tired since he had had only four to four and a half hours of sleep the night before. [ 11 ] The accused admitted that he had crossed the highway centre line just prior to making contact with Dr. Irvine’s vehicle. But

he denies that his driving was affected by alcohol. His explanation is that his crossing the centre line was due to inattention resultingfrom being tired and over-exerted. Regarding the incident itself, he said, “I know when I was veering off I snapped out of it—andwhoa!” [12] Regarding Dr. Irvine’s evidence regarding the accused’s manner of walking, the accused explained it was “a bit icy.” He alsosaid he had heavy work boots on.

He also said, “And don’t forget I was stiffening up from working out all day.” Analysis [13] For me to convict the accused, I must be satisfied beyond a reasonable doubt that the accused’s ability to operate a motorvehicle was impaired by alcohol. I am satisfied beyond a reasonable doubt, and I find the accused guilty of the charge against him. [14] I must say I have no hesitation in accepting the evidence of Dr. Irvine for its truth. Dr. Irvine gave his evidence cautiously andappeared to be careful not to overstate any particular point.

He clearly saw the accused’s vehicle come into his lane and almost cause amajor collision. He was also later able to observe that the accused had droopy eyes, had slurred speech, had a smell of alcohol abouthim, and staggered when he walked. Dr. Irvine’s evidence firmly established the Crown’s case beyond any reasonable doubt. [15] It should also be noted that the accused’s recollection of events is problematic. At trial, he seemed to remember snappingback to his senses after veering into the oncoming lane. However, when he spoke to Dr. Irvine at Sanderson Point, he appeared to haveno recall of any such event.

I am of the view that, perhaps unconsciously, the accused is reconstructing events he has no clear memoryof. I see this lack of memory as further evidence of his impairment. [16] It is true that after veering into Dr. Irvine’s lane, the accused was able to drive perhaps four or five kilometres to his homewithout further incident. That evidence goes some distance to counter the Crown’s case.

It is, however, in the face of all of the otherevidence before me, not sufficient to raise a reasonable doubt in the accused’s favour. [17] The accused attributed his veering into the oncoming lane to his being tired and over-exerted. Fatigue may have had somerole to play in the incident. However, I am of the view that the accused’s consumption of alcohol was the main reason why he crossedinto the wrong lane. In any case, even if the accused’s driving manoeuvre resulted from a combination of fatigue and alcohol, he wouldstill be impaired by alcohol within the context of paragraph 253(1)(

a) of the Criminal Code (see R. v. Pelletier (1989), (SK KB), 51 C.C.C. (3d) 161 (Sask Q.B.)). [18] I must say I was concerned at trial that Crown counsel cross-examined the accused in only a cursory fashion regarding howmuch alcohol the accused had consumed prior to driving. The accused maintained that he had consumed only two beer while woodcutting, and he was not significantly challenged on this point. Despite my initial concerns, I have now concluded that the Crown’slimited cross-examination of the accused does not change the outcome. Cases such as R. v.

Palmer, (SCC), [1979] S.C.J.No. 126 (S.C.C.), make it clear that there is no hard and fast rule requiring cross-examination of a witness. Here, the circumstancesmade it abundantly clear that the Crown was not accepting the accused’s assertion that he had had only two beer. Accordingly, theCrown’s failure to cross-examine on this point cannot be seen as a concession. [19] It may be that the accused did have two beer while wood cutting with his friend. However, the evidence before me indicatesthat he also must have consumed other alcohol before he met Dr. Irvine’s vehicle.

The evidence does not disclose when that otherdrinking occurred or how much alcohol the accused had to drink. But that other drinking was sufficient to impair the accused’s ability todrive. [20] In closing, I wish to thank both counsel for their helpful submissions.

____________________________________ S.I. Robinson, J