Her Majesty the Queen - v. -, 2013 SKPC 133

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 133 Date: September 11, 2013 Information: 30568420 Location: Carlyle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Serena Phoebe Maxay Appearing: A. Davis For the Crown J. Howe For the Accused JUDGMENT J. BENISON , J CHARGES [ 1 ] Serena Phoebe Maxay is charged with two counts of operating a motor vehicle while her blood alcohol level exceeded the legal limit and while her ability to do so was impaired by alcohol on the 28 th of October 2012, at White Bear First Nation. CIRCUMSTANCES

[ 2 ] At approximately 3:00 a.m. on October 28, 2012, Cst. Walter of Carlyle RCMP attended at the scene of a two vehicle collision on the main grid at White Bear First Nation. The officer found an extensively damaged truck in the ditch and three females on the road beside the truck. The officer testified that the individuals were “shaken up”. He had been advised that there had been a fight or argument and that someone had been chasing someone else. There was another truck about 50 metres away. In response to the officer’s questions, the accused admitted that she had been driving the damaged vehicle.

The officer took her to the police car to obtain details of the accident. He then noted an odour of liquor and in response to his question, the accused told him that she had had three drinks. A demand was made for an ASD test on which a fail result was obtained. The accused was then taken to the Carlyle Detachment where she provided two samples of breath, each being 90 milligrams in 100 millilitres of blood. ISSUE: DEFENCE OF NECESSITY [ 3 ] At trial the Crown proved all elements of the charge under s. 253(1) (

b) of the Criminal Code that the accused drove a motor vehicle while her blood alcohol level exceeded the legal limit. The accused has raised the defence of necessity. ACCUSED ’S TESTIMONY [ 4 ] The accused testified that she had picked up her sister and sister-in-law at Kenosee and had brought them back to her brother-in-law’s house at White Bear First Nation. While there, the accused had two “jello shots”, which she described to be some kind of alcoholic concoction. She planned to stay the night and did not plan to drive. [ 5 ] Her sister’s boyfriend, Sean Lavallee, was at the residence.

According to the accused, Mr. Lavallee started “going crazy”, throwing jello shots at the wall and at the occupants of the house. The accused further testified that Lavallee began swearing at her brother-in-law Scott and pushed him. He then began swearing at the accused, lifted her up and threw her down the hall. He then flipped a table, trying to tear a leg off the table and threw a chair. The accused then left the house, scared and shaking and crying. She went to her truck and found Lavallee’s wife curled up in the truck crying. She told the accused “don’t tell him I’m here”.

The accused stated that she had previously seen Lavallee act violently when drinking. The accused’s sister Shaunna was also in the back of the truck crying. [ 6 ] The accused then went back into the house, picked up her purse and truck keys and started the truck. She drove down the main grid. She saw headlights in her rear mirror; she moved to the left, signalled to turn left and suddenly another vehicle hit her truck, knocking it into the ditch. She did not see the driver of the other vehicle but she saw Lavallee near the other vehicle yelling and swearing. He shouted “you fucking bitches got what you deserved”.

Shortly after this, the RCMP officers arrived at the scene. [ 7 ] In cross-examination, the accused stated that she did not consider running to any of the nearby houses; she was sure that no one would have let her in. She did not call the police, knowing that it would take 20 minutes for them to arrive; she also testified that sometimes the police did not come when called. She explained her action in going back into the house to get her purse, indicating that Lavallee was in another part of the house at the time and that she simply went in and out again very quickly.

CREDIBILITY [ 8 ] I have no reason to disbelieve the accused’s testimony. Although the defence did not call the other two individuals who were in the accused’s truck, the testimony of Cst. Walter tended to confirm that the accused was testifying truthfully about what occurred. I believe the accused’s testimony as to the events that occurred from the time of her arrival at the house in question until the RCMP arrived at the scene of the collision.

Specifically, I accept that the accused was extremely frightened by Lavallee’s conduct and believed that he would follow her and the other two to inflict further harm on them. I also accept the accused’s testimony that she had no reasonable alternative to trying to get away from the house in her truck. Had it not been for the conduct of Lavallee at the house, I believe that the accused would not have driven her truck.

ANALYSIS [9] The common law defence of necessity is preserved by s. 8(3) of the Criminal Code: R. v. Morgentaler, (SCC), [1976] 1 S.C.R. 616. In R. v. Perka, (SCC), [1984] 2 S.C.R. 232, Mr. Justice Dickson set out the elements of thedefence of necessity. To summarise, there must firstly be imminent peril or danger which renders the actions of the accusedinvoluntarily. Secondly, there must be absence of a legal alternative to the accused’s actions.

Thirdly, there must be proportionalitybetween the harm inflicted and the harm avoided, or as Justice Dickson stated “the harm inflicted must be less than the harm sought to beavoided” (R. v. Perka, supra). [10] Applying these rules to the case before me, I find that the accused has met the first requirement. On my view of the evidence,the accused was in imminent danger from Sean Lavallee to an extent that rendered her actions involuntary. The accused testified, and Iaccept her testimony on this point, that she did not intend to drive after arriving at her sister-in-law’s house.

It was only the actions ofLavallee that terrified her to such an extent that she had to remove herself and the other two occupants of the vehicle from the dangeroussituation. That her fears were clearly well-founded is confirmed by subsequent events. [11] As to the second requirement, there is some issue as to whether the accused had any legal alternative to driving the truck. Itwas not feasible for the accused to try to hide from Lavallee; this would not have removed her from the danger. The accused was askedwhy she did not go to one of the four or five neighbouring houses for assistance.

Her reply was that no one would have answered thedoor of a house on White Bear First Nation in the middle of the night. She further stated that “people would not let you in with SeanLavallee looking for you”. She stated that Lavallee is a very intimidating individual, even to the police; he is big and strong. Whenasked why she did not call the police, she said that it would take 20 minutes for them to arrive and sometimes they did not come at all.

Inconsidering the accused’s testimony on these points, I am satisfied on an objective basis that she had no realistic legal alternativeavailable to her. [12] In considering the third requirement, the accused drove a vehicle while her blood alcohol level exceeded the legal limit. Clearly she presented a danger to other road users and to passengers in her vehicle. The harm avoided in this case was serious personalinjury to herself and the two occupants of the vehicle.

I conclude that there is appropriate proportionality in this case and find that theharm inflicted by her driving was less than the harm sought to be avoided in terms of potential personal injury. In reaching thisconclusion, I take into consideration the accused’s blood alcohol concentration of 90 milligrams, barely above the legal limit. [13] I therefore find that the accused has placed before the Court sufficient evidence to raise the issue of necessity. Accordingly,the onus falls on the Crown to meet it beyond a reasonable doubt and it has not met this onus.

The accused has made out the defence ofnecessity and I therefore find her not guilty of the offence under s. 253(1)(b). [14] As to the charge under s. 253(1)(a), I find that the evidence falls far short of that required to prove beyond a reasonable doubtthat the accused’s ability to operate a motor vehicle was impaired by alcohol. The only symptom observed by the officer was a faintodour of alcohol on her breath. There were of course breath tests taken at the roadside and at the detachment.

There was no observationof erratic driving, none of the usual symptoms associated with impairment such as bloodshot eyes, unsteadiness on her feet or slurredspeech. Furthermore, the fact that the investigating officer made an ASD demand rather than a demand for breath samples indicates thathe did not prior to the ASD test have reasonable grounds to believe that the accused’s ability to operate a motor vehicle was impaired byalcohol. Based on all of the above factors, I am not satisfied beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol.

I therefore find her notguilty of the charge under s. 253(1)(a).

J. Benison, J