Her Majesty the Queen - v. -, 2015 SKPC 130

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 130 Date: September 1, 2015 Information: 24449052 Location: Tisdale _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brock Smith Appearing: Mr. Wade Rogers and Ms. Rochelle Wempe For the Crown Ms. Prithipaul For the Accused JUDGMENT J. RYBCHUK , J INTRODUCTION [ 1 ] The Crown indicated during closing argument that the Certificate of Analyses did not form part of the evidence in this trial and it was no longer proceeding with count #2.

As such, the sole remaining count the accused stands charged with is count #1, care or control of a motor vehicle while impaired contrary to s. 253(1) (

a) and s. 255(1) of the Criminal Code .

ISSUES [2] The two issues to be decided in this case are: 1. Did the accused have care or control of the motor vehicle? 2. Was the accused’s ability to operate the motor vehicle impaired by alcohol? ANALYSIS 1. Did the accused have care or control of a motor vehicle? [3] Impaired operation is an included or related offence to the offence of impaired care or control in s. 253(1)(

a) of the CriminalCode by virtue of s. 662(1) of the Criminal Code which provides: 662.

(1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it,or as charged in the count, includes the commission of another offence, whether punishable by indictment or

summary conviction, theaccused may be convicted (

a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or (

b) of an attempt to commit an offence so included [4] The enactment creating the offence of impaired care or control is s. 253 of the Criminal Code which includes thecommission of the other offence of impaired operation as follows: 253.

(1) Everyone commits an offence who operates a motor vehicle ... or has the care or control of a motor vehicle ... whether it is inmotion or not (

a) while the person’s ability to operate the vehicle ... is impaired by alcohol ... [5] Therefore, the accused may be convicted of either offence under s. 253(1)(

a) of the Criminal Code. This principle wasconfirmed by the Supreme Court of Canada decision in R c Drolet (1988), (QC CA), 14 MVR (2d) 50 (Que CA),aff’d (1990) (SCC), 2 SCR 1107 (SCC) and the Saskatchewan Court of Appeal decision in R v Pincemin

(2004) SJ No134, 2004 SKCA 33 at para 24, where it held that driving is an included or related offence of care or control. [6] There are therefore, three ways open to the Crown to prove the accused had care or control of the motor vehicle in this case:

a) The accused drove or operated the motor vehicle;

b) The accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle in reliance of thepresumption contained in s. 258(1)(

a) of the Criminal Code; or

c) Where the accused rebuts the assumption by establishing he did not occupy the seat or position for the purpose of setting thevehicle in motion, by evidence of actual (de facto) care or control that the accused assumed an intentional course of conduct associatedwith the vehicle in circumstances that created a realistic risk of danger to the public or property as set out in R v Toews (1985) (SCC), 2 SCR 119, at para 126 and R v Boudreault (2012) 2012 SCC 56 , SCJ No 56 (SCC) at paras 9, 33 and 34.

a) The accused drove or operated the motor vehicle [7] The Saskatchewan Court of Appeal decision in Pincemin makes clear that the accused’s testimony when rebutting thepresumption under s. 258(1)(

a) of the Criminal Code becomes part of the “whole of the case” to be considered by a trial judge indetermining whether he had care or control or operated a motor vehicle while impaired. [8] In hindsight, I am glad I reserved decision and invited further submissions from counsel on this point following argumentafter trial, rather than relying solely on the Alberta caselaw cited during argument.

This caselaw was overruled by the SaskatchewanCourt of Appeal in Pincemin expressly at para 35, where it held that the Crown can rely on the testimony of an accused person, who inthe course of giving exculpatory evidence provides evidence that establishes significant facts that support a conviction of an included orrelated offence. [9] The accused’s testimony and cell phone records indicate that he left the Bjorkdale Hotel and Bar at 1:14 a.m. and it took himapproximately 2 to 3 minutes to drive the 3 or 4 blocks to a friend’s house in Bjorkdale where he planned to stay the night.

He arrivedand went up to the house to find the door locked. He returned to the vehicle to place another quick phone call at 1:20 a.m. and wasexiting the vehicle when the police pulled up behind him. This accords with Auxiliary Constable Norum’s testimony that they werepatrolling Bjorkdale and, following from a distance, a truck that was driving through town.

They pulled up behind the accused’s truck inBjorkdale at 1:20 a.m. [10] The accused’s evidence that he was actually driving his truck between 1:14 a.m., when he left the bar, and 1:16-1:17 a.m.when he arrived at his friend’s house, must be considered as part of the whole of the case. This is undisputed or uncontradicted evidenceof the accused himself. It is supported by the evidence of the police officers that they also saw and were following from a distance, atruck driving through Bjorkdale at that time of night.

As such, I find as fact that the accused was driving his motor vehicle between 1:14a.m. and 1:16-1:17 a.m., or 3-4 minutes before the police pulled up behind him at 1:20 a.m. This means the Crown has proven beyond areasonable doubt the first element of the offence that the accused drove or operated the motor vehicle and it is therefore, not necessaryfor me to consider the other two ways the Crown could have proven this element of the offence.

c) The accused was in actual (de facto) care or control of the motor vehicle [11] Nevertheless, if I am wrong in this conclusion and assuming without deciding the second way the Crown could have proventhis element (i.e. the statutory presumption in s. 258(1) and whether it was successfully rebutted by the accused), I still would have foundbeyond a reasonable doubt that the Crown had proved the third way, namely that the accused was also in de facto care or control of themotor vehicle between 1:14 a.m. and 1:20 a.m. when the police arrived principally for the same reason of his recent driving meremoments before the police arrived as outlined above.

Evidence that the accused was driving the motor vehicle immediately before hewas apprehended by the police is admissible to show that the accused had care or control of the motor vehicle, R v Coultis (1982) 66 CC(2d) 385 (Ont CA).

[12] I also rely on the following additional facts in coming to this conclusion. When the police arrived the brake lights of the truckwere either on (by pressing the brake pedal) or flashing (by pressing the open/close/lock door on the key fob), both of which entail someuse of the fittings or instruments of the vehicle. The accused testified that he recently used the key fob of the motor vehicle to open andclose its doors, and his key fob was found located in the front pocket of his bunny hug.

He also had his cell phone plugged in andcharging on the Mastercraft Illuminator accessory located in the truck so that he could place the phone call from the truck at 1:20 a.m.when the police arrived. [13] Although it appeared to Constable Schmidt that the vehicle was still running, I do not find this as a fact because AuxiliaryConstable Norum could not say whether the vehicle was on or off when they arrived and neither officer saw exhaust coming from thevehicle.

The accused also testified that he shut the truck off when he got there and did not leave it running. [14] I do find as fact though that the truck had recently been running and was still warm inside when the police got there. And byeveryone’s testimony the accused was getting out of the driver’s side door when the police arrived. The truck had a console where theaccused usually kept one set keys and there was no was else around when the police arrived. In these circumstances, the only reasonableinference I can draw is that the accused occupied the driver’s seat.

The accused was also the registered owner of the vehicle which wasoperable and capable of being set in motion at any time. [15] All the aforementioned facts are acts of care or control that involve some use of the vehicle and its fittings or equipment orsome intentional course of conduct associated with the vehicle, which involved a risk of putting the vehicle in motion so that it couldbecome dangerous to the public as required by R v Toews (SCC), [1985] 2 SCR 119. [16] And the realistic risk of danger to persons or property required by R v Boudreault 2012 SCC 56 is that the accused had beendriving his vehicle only moments before on the snow covered streets of Bjorkdale in the early morning hours of December 24, 2014when he had observed another vehicle leaving town.

Finding the door to the house locked, he returned to the truck and resumed anintentional course of conduct associated with the vehicle and the use of its fittings and components. Finding himself behind the wheelagain, he possessed the present ability to set the vehicle in motion, even if only unintentionally or accidentally. And even if he did notintend to drive then, he may later while still impaired change his mind and proceed to drive again, particularly if he was unable to gainentry to the house through his alternate plan of phoning his friend’s brother or knocking on the door and waking everyone up.

The truckwas warm and had just been in motion.

And when it was not in motion, it was parked on the same snow covered public street andrepresented a realistic risk of danger to persons or property in Bjorkdale. [17] It may well be that the accused’s purpose for having care or control of the vehicle temporarily changed or he abandoned hisintention to drive when he first arrived at his intended destination, but there is no doubt in my mind that his dominant or controllingpurpose was to drive the motor vehicle from the bar to his friend’s house between 1:14 a.m. and 1:16 -1:17 a.m. and he intended toassume some course of conduct associated with the vehicle when he returned to it and the police discovered him exiting from it at 1:20a.m. [18] I therefore find the accused operated, or in the alternative was in care or control of, the motor vehicle between 1:14 a.m. and1:20 a.m. on the night in question. [19] I did not find the decision of R v Schuparski 2003 SKCA 22 to be of tremendous assistance in this case for the samereason the Saskatchewan Court of Appeal did not find it to be of tremendous assistance to them in the Pincemin case, because Shuparskiinvolved mainly the

interpretation and application of s. 258(1)(

a) of the Criminal Code in a case involving a Certificate of Analyses forproof of blood alcohol content over .08 during the 2 hour “critical overlap period” under s. 253(1)(

b) of the Criminal Code. This is notthe situation here where we are only dealing with a charge of impairment under s. 253(1)(

a) of the Criminal Code (see Pincemin para 25and Schuparski para 21). [20] In Schuparski the Crown relied upon the presumption of identity contained in s. 258(1)(

c) of the Criminal Code, which is notthe case here. The facts of that case are that the accused admitted to driving to a residence “around midnight”. He drove his vehicle forabout 10 minutes when he decided to pull over and sleep. This happened at about 12:10 a.m. when the driving stopped. The policeofficer did not find the accused asleep in the truck until almost two hours later at approximately 2:07 a.m. and he provided his firstsample of breath at 2:50 a.m. As such, the actual driving or operation of the vehicle occurred well outside the 2 hour critical overlap

period from 12:50 a.m. to 2:50 a.m.. This is not the situation in the case at bar here where the accused admitted to driving or operatingthe vehicle a few minutes before the police officers observed him exiting from it. [21] The defendant argued that I should not consider or give little weight to the fact the accused stopped driving the motor vehiclemoments before the police arrived for policy reasons not to discourage drivers who pull over to park. However, the Saskatchewan Courtof Appeal expressly rejected this type of policy argument in the case of R v Coleman 2012 SKCA 65 where Mr.

Justice Richards statedat para 33: In my respectful view, this line of thinking cannot be accepted. The legislative objective behind s. 253(1) of the Criminal Code is clear.In light of the obvious dangers involved in mixing motor vehicles and alcohol, Parliament made it an offence for an individual, whoseability to operate a motor vehicle is impaired by alcohol, to be in care and control of a vehicle. The idea, it seems to me, was to whollyavoid having intoxicated individuals in positions where they can put vehicles in motion (or otherwise endanger the public) in the firstplace.

It was not to create an incentive for drunk drivers to pull over. 2. Was the accused’s ability to operate a motor vehicle impaired by alcohol? [22] In R v McCallum the Saskatchewan Court of Appeal adopted the Supreme Court of Canada’s reasoning inR v Stellato (1994) (SCC), 2 SCR 478 that any degree of impairment of a person’s ability to operate a motor vehicle,ranging from slight to great, makes out an offence under s. 253(1)(

a) of the Criminal Code. On the other hand, if the evidence ofimpairment is so frail as to leave the trial judge with a reasonable doubt as to impairment of ability to operate a motor vehicle, theaccused must be acquitted. [23] It is trite law that a trial judge must look at the whole of the evidence of factors or signs of impairment, both explained andunexplained, present and absent, in the totality of the circumstances, and not dissect them individually or piecemeal, in determiningwhether an accused’s ability to operate a motor vehicle was impaired to even a slight degree.

That is, the Court is to look at the totalbehaviour of the accused on the night in question and not dissect individual segments in isolation. [24] The accused testified that he drank 6 Coors Light beer at the Bjorkdale Hotel and Bar between 7:30 p.m. and 1:14 a.m. whenhe left the bar and drove to his friend’s house. [25] The evidence of Constable Schmidt, which I accept, is that the accused leaned as he was exiting the vehicle and was justtrying to stay on his feet. The accused swayed when he was standing and he was not able to stand with a steady posture.

His steps werestaggered and were not fluid movements on his feet. He was kind of dragging his feet and was not walking properly. [26] Constable Schmidt detected a very strong odour of alcohol coming from the accused’s breath. He was slurring his words andhad bloodshot, glassy eyes. [27] Constable Schmidt testified that the accused swayed the entire time he was standing and that it was a distinctive sway.

Therewas typical compact snow on the road and there also could have been minimal fresh snow. [28] Constable Schmidt has a lot of experience dealing with impaired people and has advanced training in impaired drivingdetection. He spent 10 years in British Columbia as a paramedic assessing patients and trying to determine the cause or causes ofimpairment requiring medical attention. When he became an RCMP officer he took the standard Impaired Driver training at RCMPDepot.

Since graduating he has taken a Field Sobriety course, Drug Recognition Expert course, and is now an instructor for both ofthese courses in the RCMP. Based on his observations, Constable Schmidt quickly informed the opinion that the accused’s ability tooperate a motor vehicle was impaired and arrested him for impaired driving. [29] Constable Schmidt also testified that the accused passed out in the back of his police vehicle on the way from Bjorkdale to the

[ 29 ] Constable Schmidt also testified that the accused passed out in the back of his police vehicle on the way from Bjorkdale to the Tisdale RCMP detachment, and that as they were slowing down to make the turn off the highway to come into the detachment the accused fell forward and hit his head on the silent patrolman and woke himself up.

When pressed on this in cross-examination he gave a thorough explanation of the difference between an individual simply being tired and an individual being passed out in the back of his police vehicle and insisted that the accused was actually passed out. [ 30 ] The accused was insistent on the stand that he did not fall forward or bang his head on the silent patrolman, but was merely reaching with his hands cuffed behind his back for his hat which had fallen off his head onto the floor while he was leaning over in the police car.

I reject his testimony on this point and regard Constable Schmidt’s testimony regarding the difference in muscle tone the accused exhibited while passed out in the vehicle versus someone merely being tired and leaning forward to be more credible given his abundant experience with impaired drivers. [ 31 ] At the detachment, as the accused was walking to give his breath samples, he still staggered a bit and exhibited the same symptoms and observations as before, such as a very strong odour of beverage alcohol, bloodshot, glassy eyes and slurred speech. [ 32 ] When pressed in cross-examination Constable Schmidt testified that the accused’s speech was slurred consistently throughout his interaction with him and he gave a good explanation of the difference in slurring as a result of alcohol versus suffering from a medical condition or speech impediment.

This evidence satisfied any concern I may have had that neither he nor Auxiliary Constable Norum had met the accused before or were aware of his manner of speaking. [ 33 ] I also accept Auxiliary Constable Norum’s testimony that the accused stumbled as he got out of the truck and then regained his balance by leaning with one arm on the rear of the truck. It seemed strange to him that the accused left the driver’s side door of the truck wide open on this cold night and was leaning against the truck. Constable Schmidt testified that it was about 15 degrees below outside.

The accused testified it was minus 30 degrees outside. Irrespective of the two different outside temperatures testified to, due the fact that it was the early morning hours of December 24 in Saskatchewan, I agree with the testimony of Rachel Kehrig that it was very cold outside.

The accused then walked back to the police vehicle and made a sharp movement outward which again did not seem consistent, it seemed different, as if the accused was trying to avoid something. [ 34 ] Auxiliary Constable Norum also observed other indicia of impairment consistent with Constable Schmidt such as the accused looked very tired and that he fell asleep in the backseat of the police vehicle, he was very slow in moving and his eyes were very shiny or glassy.

His speech was pretty slow and deliberate, like he was talking slowly which Auxiliary Constable Norum equated with slurred speech. [ 35 ] Any differences in the observations of indicia of impairment by the officers are slight and of no consequence. They are also explainable by reference to the difference perspectives each had when dealing with or observing the accused from different vantage points in the dark early morning hours and light of the detachment. For example, Constable Schmidt dealt directly with the accused while at the detachment while Auxiliary Constable Norum was merely an observer.

As such, I put more weight in Constable Schmidt’s observations that the accused was swaying while at the station than Constable Norum who said he was watching for balance and coordination, but did not see anything. [ 36 ] Constables Norum and Schmidt also both testified that the accused cried and did not make a lot of sense when he was talking. Constable Schmidt elaborated that the accused asked a lot of repetitive questions that were cyclical and became fixated on things.

In Constable Schmidt’s opinion, he had never had that much difficulty dealing with an individual understanding and exercising his police rights and warning. [ 37 ] A voir dire was held that ruled the accused’s statements to police were involuntary and inadmissible at trial. But, I believe I am still entitled to consider the accused’s behaviour and how he dealt with officers that night as not being conscripted or compelled evidence under the Quenneville approach adopted by the Saskatchewan Court of Queen’s Bench in R v Laliberte 2014 SKQB 24 .

However, even if I were to exclude this evidence from my analysis, I would still come to the same conclusion on the issue of impairment. [ 38 ] In coming to this conclusion, it is important to note that the accused took the stand and there was no evidence to suggest that he consumed any more alcohol after leaving the Bjorkdale Hotel and Bar and between 1:14 a.m. and 1:20 a.m., and in particular in the few minutes after he stopped driving his truck and the police showed up.

[ 39 ] The accused was also never asked or answered what his level of impairment or intoxication may have been when he left the bar and drove to his friend’s house. His friends, Rachel Kehrig and Kyle Naylor, were also present at the bar. Rachel figured he was fine and had no concern with him driving when she left the bar, but this was shortly after midnight and well before the accused left the bar at 1:14 a.m. Kyle Naylor also testified that he thought the accused was fine to drive when he left the bar. Kyle had one or two glasses of wine at his friend’s house before going to the bar.

While he was there, he had three to four vodkas. Kyle had no idea what the accused had to drink before he got to the bar and he was not with the accused the whole night or aware of exactly what and how much he had to drink. As such, their friendly evidence is incapable of raising a reasonable doubt in my mind as to the accused’s degree of intoxication after he left the bar alone and was operating and had care or control of the motor vehicle.

CONCLUSION [ 40 ] I am satisfied beyond a reasonable doubt on the basis of the Crown evidence of impairment exhibited by the accused immediately after driving and when he exited the vehicle and was taken by police to the Tisdale detachment, that his ability to operate a motor vehicle was impaired to a degree well beyond slight. As such, I find the accused guilty of impaired operation of a motor vehicle or in the alternative, impaired care or control of a motor vehicle, contrary to s. 253(1) (

a) of the Criminal Code . ___________________ J. Rybchuk, J