) ) HER MAJESTY THE QUEEN ) Jay Funke ) for the Crown - v. -, 2017 MBPC 24

2017 MBPC 24 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Jay Funke ) for the Crown - and - ) ) DANIEL ALEXANDER SARKONAK ) Mark Wasyliw Accused. ) for the Accused ) ) Judgment Delivered: ) June 13 th , 2017 HARAPIAK, P.J. [ 1 ] In the early morning hours of December 13, 2014 an RCMP officer in Grandview, Manitoba, acting on a tip, came across Daniel Alexander Sarkonak’s (“Sarkonak”) red GMC Jimmy stopped off the road and partially down a slight embankment.

The officer began an impaired driving investigation and Sarkonak was charged, later that day, with care and control over .08 and care and control while impaired. DELAY [ 2 ] This matter proceeded to trial summarily on September 14, 2015. After adjourning for written arguments counsel urged the court to wait for the anticipated appeal of R v Fenske ([2015] MBQB 81). The Crown hoped the appeal would clarify the law on issue 4, listed below. The Court of Appeal declined to address that question and written submissions were subsequently requested herein with final argument being filed May 3, 2017.

Counsel have provided a number of cases, all of which I have carefully reviewed and some of which are referenced below. [ 3 ] There are multiple issues for this Court to determine.

i) Has Mr. Sarkonak rebutted the legal presumption that he was in care and control of his vehicle since he was found in the driver’s seat? ii) If he has rebutted the presumption has the Crown proven beyond a reasonable doubt that he was in actual care and control of the vehicle? iii) Did the officer take breath samples as soon as practicable? iv) Even if the test was not taken as soon as practicable, in the absence of an application to exclude the certificate of analysis under s. 24(2) of the Charter, does the presumption of identity still apply under s. 258(1)(c)? [ 4 ] There is some conflict in the evidence which must be resolved prior to determining these issues. THE EVIDENCE

A. The Officer [ 5 ] This was a 2 witness case – the investigating officer/breath technician for the Crown and the accused for the defence. [ 6 ] The constable was told by an unidentified motorist that a red GMC Jimmy had nearly collided with the greyhound bus the motorist had been on and was now stuck in the ditch. This was the impetus for his investigation. The officer arrived at the scene to find a red GMC Jimmy off the road with its front bumper down a slight embankment and its rear wheels on the shoulder of Highway 366.

The officer noted there was a Ford truck blocking the intersection - backed up towards the front of the Jimmy with a tow rope laid out loose on the ground between the two vehicles. The accused Sarkonak got into the Jimmy as the officer exited his police cruiser. The Ford driver, when asked what was going on, told the officer he was going to tow the GMC Jimmy out of the ditch. [ 7 ] When the officer approached, Sarkonak was in the driver’s seat fumbling with his keys as he tried, and ultimately succeeded, in putting them into the ignition.

The constable opened the door and noted a strong smell of liquor on Sarkonak’s breath as well as evidence of watery, bloodshot eyes and slurred speech. Mr. Sarkonak was arrested at 2:47 a.m. for impaired care and control of a motor vehicle. When he then exited the vehicle he appeared to have unsure balance, fell backwards and exhibited further signs of slow and labored speech. [ 8 ] The accused was given his Charter rights and police caution. He declined counsel and indicated he understood the information.

He told the officer he was driving when the vehicle hit the ditch and that he had only had one drink. [ 9 ] The officer returned to the Jimmy where the keys had been left in the ignition and started the vehicle to determine if it was operable. He put it in reverse and forward, noted the wheels were able to spin and agreed with defence counsel that it was stuck. [ 10 ] Due to the iciness of the conditions and the location of the Jimmy partially on the shoulder, the officer was concerned about it being a possible hazard and waited for the tow truck to arrive.

He also wanted to see how difficult it would be to extricate the Jimmy and noted it came out very easily. [ 11 ] The area the constable patrols is vast, covering 34 detachments. He does not have keys to most of the RCMP facilities within this area and does not call ahead to ensure resources are available. Once he enters an area he switches radio frequency to the local channel. He confirmed that night prior to departure that the key holder member for Grandview was at a location past Dauphin investigating a serious matter. He decided to transport the accused to Dauphin.

Twenty-four minutes later he arrived. [ 12 ] During the observation period the accused answered some questions. He advised the officer that he was not the driver and that he had not been drinking. [ 13 ] The first breathalyzer test was run on the accused at 3:57 a.m. His test reading was 240 milligrams in 100 millilitres of blood. A second sample was taken at 4:19 a.m. with the identical result of 240 milligrams in 100 millilitres of blood. B. The Accused [ 14 ] Mr. Sarkonak advised the court that he had been at a party. He arrived at 10 p.m.

He had a drink, played some cards and had a disagreement with his employer. To avoid further confrontation he left around midnight. Within a block he decided to pull over as he was upset and a little angry and became stuck in the ditch. He went back to the party. [ 15 ] Back at the party Sarkonak had at least 2 or 3 more “fairly stiff” drinks and possibly more. People suggested he get a ride home. He decided that although he would not drive again that night he needed some alone time and walked to the Jimmy. He thought he could stay warm there and decide who to contact.

He got into the vehicle and turned the engine on. [ 16 ] It was at this point that the Ford driver pulled up beside him, a position from which Mr. Sarkonak testified the Ford truck never moved. The driver offered to help tow him out of the ditch. Sarkonak turned the vehicle off and sat in the Ford passenger seat for several minutes to talk to the driver but testified no tow rope was hooked up. Mr. Sarkonak said he decided that he did not want a tow from the gentleman as he would not know what to do with the vehicle afterwards and he was worried the Ford driver might do some damage to his vehicle.

During his testimony he indicated, within minutes, both that he told the Ford driver he did not want any help with a tow and that he did not tell the Ford driver he did not want help with a tow, but that he was clear about it in his own mind. The constable pulled up and the accused decided to stand by his vehicle and part ways with the Ford driver. When the constable stopped to speak to the Ford driver Mr. Sarkonak testified that he got into the vehicle to calm down and stay warm.

[ 17 ] Mr. Sarkonak admits he told the officer, after being asked how many drinks he had had that night that he only had one drink. He explained this inconsistency in testimony, advising that he meant to say he had only one drink before driving earlier that evening. [ 18 ] Mr. Sarkonak admitted to the Crown Attorney that his ability to recall some of the events that night was impacted by his alcohol consumption and emotional state. When refuting assertions made to him by the Crown at the close of his cross-examination Mr.

Sarkonak noted that “none of the tow rope had been attached.” Not there was no tow rope or he was not going to allow anyone to tow him out of the ditch. “The”, and I note the definite article, tow rope had not been attached. CREDIBILITY [ 19 ] I have no concerns with the evidence of the investigating officer. He was a careful note-taker and unshaken on cross- examination. His description of which consonants seemed slurred in Mr. Sarkonak’s speech is one indicator of his attention to detail. Mr.

Sarkonak’s evidence and assertions, however, require a bit more extensive assessment of his credibility. [ 20 ] Do I believe Mr. Sarkonak? I do not. His shifting, contradictory explanation of what he told the Ford driver about his wish for his Jimmy GMC to be pulled out of the ditch is unbelievable. His acknowledgement that there was a tow rope but that it was not connected undercuts his own testimony and supports the officer’s. Why would the tow rope be out if the Ford was still beside him and the Ford driver had not readied his vehicle for the tow?

On his evidence, all the Ford driver had done was have a conversation with Sarkonak prior to the police attending. I infer, from his reference to the tow rope that it was laid out but it was not connected “yet”. [ 21 ] Sarkonak’s denial of the Ford being in the standard towing position is also unbelievable. The evidence of a tow rope laid out makes sense with the vehicles in the standard towing position but not if they are simply side by side. [ 22 ] His explanation for the comment he made to the officer – that he only had one drink that night was explained as referring to one drink before driving .

This suggests tailoring of evidence to fit with his exculpatory version of events rather than candour with the court . CARE AND CONTROL? [ 23 ] There are a number of evidentiary shortcuts that benefit the Crown in drive impaired and over .08 investigations. One to be considered here is found at 258(1)(

a) which reads: “s.258(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle (among other motorized equipment) … the accused shall be deemed to have had the care or control of the vehicle…unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle…in motion…” [ 24 ] Defence argues that the presumption has been rebutted by Mr. Sarkonak’s evidence. I disagree. Mr.

Sarkonak was behind the wheel of his vehicle with the key in the ignition and a truck right behind him with a tow rope laid out between the two vehicles. The simple fact that the tow rope was not being manipulated or completely hooked up does not make the plan unclear. Mr. Sarkonak was about to be towed out. [ 25 ] The presumption of care and control applies unless the accused, on a balance of probabilities, establishes that it was more likely than not that he assumed the driver’s seat for some other purpose. Due to my concerns about Mr.

Sarkonak’s credibility and the circumstantial evidence which indicates he was on the verge of being towed out by the Ford truck I find that he has not rebutted the presumption. AS SOON AS PRACTICABLE?

[ 26 ] Another evidentiary shortcut relates to the use of the test results. If the accused’s breath sample is taken “as soon as practicable” and no later than two hours after driving the results are “conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was…the concentration determined by the analyses…” This is commonly referred to as the presumption of identity. [ 27 ] Manitoba’s Court of Appeal recently addressed this issue in R v Fenske ([2016] MBCA 117). Justice Beard, writing for a unanimous panel, adopted Klebuc, JA’s

summary of the law in this area from the 2015 Saskatchewan Court of Appeal decision of Burwell: “

a) The phrase “as soon as practicable” means nothing more than that the breath samples be taken within a reasonably prompt time under the circumstances.

b) Where a demand for breath samples had been made, there is no requirement that the breath tests be taken as soon as possible;

c) The touchstone for determining whether the breath samples were taken as soon as practicable is whether the police acted reasonably.

d) The trial judge is to look at the whole chain of events, bearing in mind what occurred within the two-hour limit prescribed by the Criminal Code .

e) While the Crown is obligated to demonstrate – in all the circumstances – that breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred while the accused was in custody.” ( R v Burwell , [2015] SKCA 37, para. 28) [ 28 ] It is important to review the timing when assessing whether the breath test was done as soon as practicable. There were two arguable points of delay – when the officer waited for the tow truck and when the officer drove to Dauphin rather than being able to administer a test in Grandview.

From first contact to first breath test it took 75 minutes.

TIMING ON DECEMBER 13 TH , 2014 2:40 am advised by male red GMC Jimmy in ditch 2:43 am arrived at scene (approximately) 2:47 am arrested for driving impaired 2:53 am Officer writes in notebook for 5 – 10 minutes – asks telecoms if tow truck was enroute 3:00 am Officer notes accused advised one drink only 3:05 am Officer asks dispatch for a file number 3:05 – 3:08 am Tow truck arrives 3:08 am Officer calls in a 10 – 17 code, indicating he was leaving Grandview for Dauphin and noted that there were no keys available for the Grandview Detachment. 3:32 am Arrived in Dauphin 3:34 am Began observation period 3:58 am First sample – 240 4:19 am Second sample - 240 [ 29 ] Counsel provided several tow truck cases for review. [ 30 ] In the 1993 ABCA decision of R v Hafermehl ([1993] ABCA 394) the court gave a very brief decision, indicating that if “a police officer reasonably believes that a vehicle poses a danger to the travelling public…a reasonable delay in transporting an accused to a location where a breath test might be administered is…justified.” [ 31 ] Defence counsel referenced the portion of the Hafermehl (supra) decision which approves of delay to protect the security of the

vehicle or its contents and advises this is not the law in Manitoba, citing R v McCorriston. This is not the point the Crown relies on. The officer felt the vehicle posed a hazard. In McCorriston (supra), when assessing the reasonableness of an RCMP policy to wait at the scene for a tow truck or backup to secure the vehicle Scurfield, J pointed out that the vehicle was off the road and “did not pose a hazard to other vehicles.

Consequently, this was not a case where the scene had to be guarded to protect the public from a hazard.” He adds, later in the decision, that in assessing reasonableness of delay that “there [was] no evidence that the delay was generated by the specific circumstances, or that the delay flows from the exercise of reasonable judgment by the police officer.” Clearly the exercise of reasonable judgment, including protecting the public from potential hazards, are potentially legitimate reasons for delay. [ 32 ] In the case of R v Rinn ([2013] MBPC 17) my brother Judge Slough found the delay in waiting for a tow truck was unreasonable because the vehicle was safely parked and posed no hazard to the traveling public. [ 33 ] In this case the vehicle was partially in the ditch and partially on the shoulder of the road.

It was an icy December night. The officer was concerned that the vehicle presented a public safety hazard and he wanted it safely removed before he left the scene. Defence counsel suggested that the vehicle presented no risk, but the officer did not agree. [ 34 ] The officer admitted that he could have left the scene at 2:50 a.m. but did not because he was concerned about public safety. I am persuaded that this was a case of “exercising of reasonable judgment” as contemplated in McCorriston and find that the 18 minutes that followed before departure to Dauphin was reasonable.

In fact, some of that time was spent attempting to address potential delay by determining if the Grandview RCMP satellite office could be utilized for the breath tests. [ 35 ] The next delay centres around the 24 minute drive from the scene in Grandview to the detachment in Dauphin. Defence counsel suggests this was unreasonable; that the officer, whose work area on this evening spanned a vast area, should have had the foresight, by attempting to assess what offices were open and gather keys for those with breath machines, to avoid foreseeable and unnecessary delays.

He also raises concerns about the “as soon as practicable” standard being of a higher standard for urban citizens than rural citizens if the RCMP are not required to “staff themselves appropriately in order to intentionally avoid foreseeable and unnecessary delays.” [ 36 ] With respect, it appears this is an argument for an “as soon as possible” standard. Manitoba’s Court of Appeal in R v Fenske, ( supra ) is binding on this point.

Justice Beard wrote that: “There are many lower court decisions on this issue that have come to contradictory conclusions on the Crown’s obligation to explain police policies and procedures. The appellate decisions, however, establish that some delay caused by a police force’s allocation of resources or the manner in which the police force is organized will generally be considered reasonable if the allocation of police resources or the organization of the police service is itself reasonable in light of the two-hour time limit for taking the first sample and all of the other circumstances.

Further, if that is the case, a reasonable amount of delay caused by following those policies or procedures will generally be acceptable. In those circumstances, no further evidence will be required by the Crown to explain why the police force’s resources were not allocated in a different way, why the police were not organized in a different way or why a different policy was not adopted. The appellate courts have concluded that requiring such explanations would elevate the standard from one of “as soon as practicable” to one of “as soon as possible”.

Additional explanations would thus only be required if the police force’s resource allocation, policy or procedures appear unreasonable to the trial judge in the circumstances of the case.” [ 37 ] The breath tests began an hour and fifteen minutes after first contact – well within the two hour time limit for reliance upon the presumption of identity. The officer made attempts to access a machine in Grandview but soon realized this could not be done without its own delay. He decided to make the 24 minute drive to Dauphin. This was not unreasonable.

I find that the tests were obtained “as soon as practicable” in all the circumstances. CAN CROWN RELY ON PRESUMPTION OF IDENTITY? [ 38 ] The Crown has identified, as an issue, whether “in the absence of a successful application to exclude the certificate of analysis under section 24(2) of the Charter , does the presumption of identity set out under section 258(1)(

c) apply?” [ 39 ] Essentially, the argument is that the only mechanism for denying use of the presumption of identity – being that the test results are the same as the subject’s blood alcohol content when driving - would be via a s. 24(2) Charter application. Failing this, the Crown argues, the Crown can rely on the statutory presumptions. The Crown detailed this argument in response submissions and Defence counsel, upon request from the Court, sent a very brief email submission claiming that the Crown had misapprehended the issue and that the Charter is irrelevant to the analysis in this case.

[40] Due to this issue not being fully argued and determination of it not being necessary in light of my decision above I decline toconsider this point. DECISION [41] The Crown has proven, beyond a reasonable doubt, that the accused was in care and control of a motor vehicle while his bloodalcohol content was over the legal limit, being 240 or triple the legal limit. I convict him accordingly. It is also clear from the evidenceof his speech and fine motor skills that he was grossly impaired by alcohol at the time and guilty of care and control of a motor vehiclewhile impaired.

However, due to the rule against multiple convictions laid out by the Supreme Court of Canada in R v Kienapple ( (SCC), [1975] 1 SCR 729) there will be a judicial stay on the care and control while impaired count. _______________________________ Harapiak, P.J.