Her Majesty the Queen - v. -, 2020 SKPC 27

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 27 Date: June 30, 2020 Information: 24201226 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Darci Larlham Appearing: Jennifer Claxton-Viczko For the Crown Patrick McDougall For the Accused DECISION ON STAY APPLICATION S.L. METIVIER , J [ 1 ] The accused applied to court for a stay of charges based on entrapment having previously been found guilty of having blood alcohol concentration that was equal to or exceeding 80 mg of alcohol in 100 ml blood, within two hours after ceasing to operate a conveyance, contrary to

section 320.14(1) (

b) of the Criminal Code . The accused bears the onus of proof to establish entrapment on a balance of probabilities. [ 2 ] The matters in dispute occurred on January 12, 2019 on the Dellwood Reservoir near Lanigan, Saskatchewan, where the accused was ice fishing with her fiancé, Colton Taylor and her father, Darren Bodnarchuk. The accused drove her truck to the lake accompanied by Mr. Taylor. Mr. Bodnarchuk drove his own vehicle, all of them were drinking.

[3] The accused argues that entrapment occurred when, in the course of verifying fishing licenses, barbless lures and seizingalcohol from the ice fishing tent, a conservation officer told Mr. Bodnarchuk that he should not drive, in contrast to a statement made tothe accused and Mr. Taylor that they “looked fine to drive”, and then conducted a traffic stop as she was driving off of the lake one hourlater.

The accused claims that she relied on the statement made by the conservation officer that she “looked fine to drive” because of theinherent authority of the officer and was thereby entrapped into operating a conveyance when her blood alcohol exceeded the legal limit. [4] The conservation officer denied that he ever said that the accused and Mr. Taylor “looked fine to drive.” He testified that inthe course of checking the accused’s fishing party for violations he found 13 empty beer cans, six full beer cans and half a bottle ofFireball whiskey in the ice fishing tent.

He inquired how much they had to drink and was informed they had three or four drinks each.He mentioned to them, presumably as a caution against drinking and driving, that consuming three to four drinks would likely put himover the .04 threshold. As Mr. Bodnarchuk was slurring his words, he advised him that he did not believe he was fit to drive. Mr.Bodnarchuk explained that he did not have his lower denture in and stated that he knew his limits and would be fine to drive. Either theaccused or Mr.

Taylor, he could not recall which one, stated that their stepmother would be available to give them a ride if need be. [5] While dealing with Mr. Bodnarchuk, the conservation officer lost his temper as he thought that he was lying to him aboutfishing while suspended (he denied he was fishing) and whether he was fit/sober enough to drive. He issued a ticket to Mr. Bodnarchukfor fishing while suspended. The conservation officer did not have any conflict with the accused or Mr.

Taylor in the tent and issuedverbal warnings to all of them for using barbed hooks and having/consuming alcohol in a public place. [6] After checking some other anglers on the lake, the conservation officer parked his vehicle down the road and waited for theice fishing party to drive off the lake intending to conduct a vehicle stop to check them for impaired driving. Approximately one hourafter leaving the ice-fishing tent, the conservation officer observed two vehicles come off the lake. Mr. Bodnarchuk, who was operatingthe first vehicle, blew into the ASD and passed.

The accused, who was operating the second vehicle, blew into the ASD and registered a“fail” and was consequently arrested and charged with impaired driving. It might be reasonably inferred from the evidence that theprimary reason the conservation officer waited by the lake to conduct the vehicle stop was to see if Mr. Bodnarchuk ignored the warninghe had been given not to drive. [7] There are several factors to consider in assessing the credibility of the witnesses. The conservation officer had no previousrelationship with any of the defence witnesses.

Whereas the conservation officer was sober and on duty, all the defence witnesses hadbeen drinking. The conservation officer testified in a straightforward manner and readily acknowledged unflattering behavior (i.e.swearing at Mr. Bodnarchuk when he thought he was lying to him) and situations where his assumptions might have been mistaken (i.e.that Mr. Bodnarchuk’s slurring might have been caused by not wearing his bottom dentures).

While the defence witnesses had difficultyrecalling some specific details of what happened on that day, they were adamant about the statement made by the conservation officer tothe accused and Mr. Taylor. [8] While I found the conservation officer to be a generally credible witness, I accept the evidence of the defence witnessesconcerning the impugned statement. All three defence witnesses firmly testified that they heard the conservation officer advise Mr.Bodnarchuk that he should not be driving and, in contrast, tell the accused and Mr.

Taylor that they “looked fine to drive.” Theirevidence on this point is strongly supported by the fact that Mr. Taylor brought it up with the conservation officer during the traffic stopwhen the events were fresh in his mind. While the evidence does not explain why the conservation officer said what he did, it seemspossible that he simply misspoke while his attention was focused on his argument with Mr. Bodnarchuk.

In any event, I accept that thestatement was made, and the legal analysis will proceed on that basis. [9] Entrapment arises in two situations: (1) where the authorities provide a person with an opportunity to commit an offencewithout acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry; or (2)although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity andinduce the commission of an offence: R v Mack, (SCC), [1988] 2 SCR 903 at pp 964 -965 (SCC); R v Ahmad, 2020 SCC11 at para 15 [Ahmad]. [10] In order to conclude that there was entrapment on the first branch of the test, the accused must establish that the authoritiesprovided an opportunity to commit an offence and did so without reasonable suspicion.

In my view, this case turns on whether theconservation officer provided the accused with an opportunity to commit an offence. If not, then there is no basis on which to findentrapment under either branch of the test. [11] In Ahmad, the Court applied what it considered to be the “settled doctrine” of entrapment in the context of a dial-a dope druginvestigation. The main issue before the court was to determine when and how reasonable suspicion is established when an officerreceives a tip or information that a phone number may be used for drug dealing.

However, the Court further addressed the question ofwhat “constitutes an opportunity to commit an offence” and determined that this is “informed by both the definition of the offence and

the context in which the action occurred.” Against the back drop of a dial-a-dope operation in Ahmad , that meant “determining whether words spoken by the police officer constitute an opportunity to commit drug trafficking” ( Ahmad , at para. 63 ). [ 12 ] The Court in Ahmad more broadly stated that for an officer’s actions to “constitute an offer of opportunity to commit a crime” the actions must be “sufficiently proximate to conduct that would satisfy the elements of the offence.

To clarify where those boundaries might lie, the Court offered some examples: In Bayat [1] the Court concluded that simply initiating a conversation online with a target was not sufficiently proximate to be considered an opportunity to commit the offence of child luring; in Vezina [2] , it was determined that an investigator asking “Can you get me some Coke?” constituted an investigative step that fell short of providing the accused with an opportunity to commit an offence.

As it relates to drug trafficking, “an opportunity to commit an offence is offered when the officer says something to which the accused can commit an offence by simply answering ‘yes’” ( Ahmad , at para. 64 ). [ 13 ] I conclude that the conservation officer in this case did not present the accused with an opportunity to commit a criminal offence. There were two vehicles and three people in the tent. The conservation officer determined that all three of the occupants in the tent were drinking and seized the remaining alcohol.

He had no way of knowing who might drive, when they might drive, or what their level of impairment might be at that time. He believed that Mr. Bodnarchuk was impaired because he was slurring his words and advised him not to drive. The accused asserts that the conservation officer’s statement about appearing “fine to drive” set her up to commit an offence. Notwithstanding that the comment was directed to both the accused and Mr. Taylor, they both recognized that Mr. Taylor was too drunk to drive.

The conservation officer’s comment was made briefly without any specific direction and, in my view, there is no reasonable link or proximity between the statement and the accused’s criminal conduct. The accused put the events into motion when she drove her truck to the lake and decided to consume alcohol without planning for a safe and sober ride home. To take the conservation officer’s statement as a presentation of an opportunity to commit a criminal offence one hour after the statement was made is to stretch the words beyond any reasonable

interpretation of them. The accused is solely responsible for her criminal conduct. [ 14 ] The conservation officer did not provide the accused with an opportunity to commit an offence and, accordingly, there is no entrapment. The accused’s application for a stay of her charge is dismissed. ________________________ S.L. Metivier, J