Her Majesty the Queen - v. -, 2012 SKPC 169

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 169 Date: November 8, 2012 Information: 24403477 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Peter Paul Dyck Appearing: Mr. B. Bauer For the Crown Mr. M. Owens For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] The accused was charged on November 26, 2011 at Warman, Saskatchewan with operating a motor vehicle while his ability to do so was impaired by alcohol contrary to s. 253(1) (

a) of the Criminal Code and further, with operating a motor vehicle after having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood,

contrary to s. 253(1)(

b) of the Criminal Code . [ 2 ] As the Defence raised certain Charter issues, the matter proceeded with a voir dire . At the conclusion of the evidence on the voir dire, the Crown directed a stay of proceedings on the allegation that the accused had driven a vehicle while his blood alcohol level exceeded the lawful limit. Defence counsel did not call any evidence on the voir dire or pursue the Charter violations. The evidence on the voir dire, with the exception of the Certificate of Analyses, was applied to the trial proper with the consent of Defence.

No further evidence was called by the Crown; the accused testified on the trial proper. The only question left for the Court is whether the Crown has proven, beyond a reasonable doubt, that the accused operated a motor vehicle while his ability to do so was impaired by alcohol. EVIDENCE Constable Gary Polisky [ 3 ] Constable Polisky is a sworn member of the Royal Canadian Mounted Police and has been for almost six years. On November 26, 2011, he was on general patrol with another officer in Warman, Saskatchewan.

While on Central Avenue at about 12:40 a.m, he saw an older brown van which had a burned out headlight. As a result, he turned around and followed. At the intersection of Central and 1 st Street the van came to a stop and the officer noted that it did not have any brake lights either. The van turned onto Highway 305 and was observed crossing the centre line and going into the oncoming lane. Consequently, the lights on the patrol car were engaged between 1 st Street and Crystal Springs Drive.

Once the lights were activated, the van continued slowly to the right turn lane to Crystal Springs and came to a stop “in the middle of where the turn lane begins”. Half of the vehicle remained in the driving lane and half in the turn lane. It was approximately three to four metres from the edge of the road which did not have a shoulder, only a grassy verge. [ 4 ] The road in question is two lanes wide with one lane of traffic in each direction. There were no shoulders on the road and the officer described it as “very narrow”. He did not recall whether there were any lines marking the lanes.

There is a right hand turn lane giving access to Crystal Springs which is approximately 15 metres long. There are no lines marking this turn lane. There was no other traffic throughout the time that the officers dealt with this vehicle. The van did not exceed the speed limit during the time it was followed. [ 5 ] Attention was drawn to the vehicle by the faulty lights but after watching the driving, the officer also wanted to pursue a possible impaired driving investigation. [ 6 ] Once the van stopped, Constable Polisky spoke to the accused who was the operator and sole occupant of that motor vehicle.

He asked the accused if he had anything to drink and why he drove in the manner he had. The accused replied that he had nothing to drink and was not used to the van as it belonged to his mother. The officer noted that there was the smell of liquor coming from the accused’s breath and that he had bloodshot eyes. At the same time, Constable Polisky’s partner was on the passenger side of the van and confirmed that there was a strong smell of alcohol coming from the driver. As a result, the accused was asked to step from the vehicle whereupon Constable Polisky saw an empty can of beer beside the driver’s seat.

He also noted that the accused left the vehicle running and in neutral. Constable Polisky put the vehicle in park while his partner escorted the accused to the patrol car. Constable Polisky spoke to the accused through the silent patrolman and noted a very strong smell of alcohol. At that point, the accused was arrested for impaired driving and read his rights to counsel, the police warning and a breath demand. [ 7 ] With respect to his grounds for the arrest, the officer cited the smell of alcohol, the bloodshot eyes, the slurred speech and the driving.

In particular, he noted that the accused had been weaving into the oncoming lane and that when he stopped his vehicle he parked it half on the highway and half in the turning lane. In cross-examination, the officer conceded that there were no lines marking the right turn lane to Crystal Springs and that the manner in which the accused stopped his vehicle did not pose a hazard. The officer “thought it odd” the way the vehicle was parked.

As well, the accused left the vehicle unattended and in neutral. [ 8 ] In response to whether he understood his rights to counsel and the demand, the accused acknowledged that he did. The accused also admitted that he drank some alcohol while he was in Hague and that he was on his way home.

[ 9 ] The demand was made at 12:52 a.m. whereupon the officer drove directly to the police detachment which was approximately one kilometre away. Upon arrival, the accused was asked to step from the patrol car and was noted to stumble toward the front door of the building. The officer described him as having difficulty walking as he stumbled for about six steps . The officer described the stumble as “...like he was walking downhill and catching his steps”.

When it was suggested to the officer in cross- examination that the accused stumbled as he got out of the patrol car because his hands were cuffed behind his back, the officer denied that was the case, saying that the stumbling steps were taken behind the patrol car en route to the building. He acknowledged that was not in his notes or report, but was his memory. [ 10 ] Constable Polisky spent time with the accused before and in between the taking of the breath samples. The accused was described as pleasant toward the officer throughout.

The officer continued to smell the odour of alcohol and to hear the slurring of speech during the time he spent with the accused. In cross-examination, Constable Polisky acknowledged that he did not note any particular words which were slurred, just that the slurring became “worse over the evening”. The accused was not handcuffed in the detachment and the officer did not see anything “out of the ordinary” in the way the accused walked. [ 11 ] On February 29, 2012, Constable Polisky went to the accused’s residence where the accused came to the patrol car.

The officer explained the Certificate of Analyses and why he was providing another copy. During that encounter he saw the accused walk without difficulty and heard him speak without slurring. He also observed the accused on the morning of the trial and although he did not speak to him he did observe that the accused walked in a normal, balanced fashion. [ 12 ] In cross-examination, the officer confirmed that the eyes of the accused were “slightly bloodshot” on the morning of his arrest.

He acknowledged that a person generally might be tired at 1:00 a.m. and that the accused told him that he had been butchering that day. The officer also conceded that bloodshot eyes can be attributed to reasons other than alcohol. Constable Polisky could not recall whether the accused was handcuffed before he was placed in the patrol car. He also conceded that the only difficulty that the accused had walking was as he went toward the detachment.

The officer had no concerns about the accused’s level of comprehension. [ 13 ] Although Constable Polisky admitted that he read the report left by Constable Thibodeau, he denied that he was relying upon it for his testimony. [ 14 ] With respect to the driving which he observed, Constable Polisky acknowledged that the accused stopped properly at a stop sign, did not exceed the speed limit and that the vehicle driven by the accused crossed the centre of the road twice in the distance of one kilometre. He did not note any failure to signal turns.

The officer did not see any lines demarking the lanes of the road. [ 15 ] The officer confirmed that the van was registered to the accused who told him that he had purchased it from his mother four years earlier. He did not make any observations about the mechanical condition of the vehicle, and did not ask the accused about it.

Constable Thibodeau drove the van to the detachment. [ 16 ] In further cross-examination, the officer said that he explained both the right to counsel and the breath demand in everyday language which the accused appeared to understand as he repeatedly asked to be given a break. [ 17 ] Constable Polisky is very familiar with the road on which the accused was driving and acknowledged that although there were no large potholes, there were some sunken areas on the road. Further, although it was safe for the accused to be driving in the middle of the road, there was no apparent reason for him to do so.

Peter Paul Dyck [ 18 ] Mr. Dyck is a 51 year old man who spent the day at a friend’s farm assisting with butchering. He arrived at the farm with two others between 8:30 and 9:00 a.m. Throughout the day he helped with the skinning, gutting and loading of five carcasses. The carcasses were then taken to Warman where they were hung.

[ 19 ] He drove a 1990 Ford van as his vehicle was in the garage for repairs. He purchased this van from his mother four years earlier. The condition of the vehicle was deteriorating and he did not drive it frequently. The day before his arrest, the power steering pump broke down making the van very difficult to steer. [ 20 ] When he left Warman, his intention was to go to his home which is 2 ½ miles south of town. He was on Central when he noticed the police. At 1 st Street, there is a four way stop and beyond that the road becomes Highway 305.

This highway is narrow, approximately 16 to 18 feet wide, with no shoulders. There are no lines on the road marking the lanes. He is familiar with this road as he travels it three or four times a week. The road surface is uneven and drops in places by about six inches. He drove in the centre of the road at times to avoid these low spots and to take advantage of the most even part of the road. He could do so safely as there was no other traffic. [ 21 ] When signalled to stop, he pulled over to the widest part of the road where a turn lane is created for vehicles going right onto Crystal Springs Drive.

In response to the officer’s request, he was readily able to remove his driver’s licence and registration from his wallet which was in his back pants pocket under his coveralls. He was asked to step out of his vehicle and did so, leaving the engine running and the transmission in neutral. He did not engage the parking brake as the vehicle was on level ground and he felt it could be left safely.

For as long as he has been driving, it has been his practice to leave his vehicles in ‘neutral’ rather than ‘park’ unless he is turning off the ignition and removing the keys. [ 22 ] Outside the van, Constable Thibodeau placed handcuffs on his wrists which were behind his back. He was placed in the rear of the patrol car which he found cramped and consequently had a difficult time extricating himself when they arrived at the detachment.

His feet had become numb on the drive and it took a couple of steps before he could gain his balance but he had no trouble walking once he did. [ 23 ] He did not have any difficulty understanding the officers or the requests they made. Although he believes that he has a speech impediment in that he sometimes stutters, he was not asked by the officers to repeat himself. He had no difficulty walking toward or inside the detachment. He did not think that he smelled of alcohol and only told the officer that he had nothing to drink because he was nervous.

He acknowledged that he was driving “all over” the road but only to avoid the potholes. [ 24 ] He denied uttering a word to Constable Polisky on February 29; rather, he simply took the documents which were handed to him. [ 25 ] In cross-examination, he acknowledged that his dealings with the officers was pleasant and that they gave him a ride home once the breath tests were taken.

He denied that he lied to the officer about his alcohol consumption for fear of getting into trouble and maintained that he did so simply because he was nervous. [28] He further admitted that he started “having a few beers” about 5:30 or 6:00 p.m. He then drove into Warman where the carcasses were hung and where he had more beer. He admitted that he took 18 beer to the farm and that he was the only one of the six people who were working that day who did. Prior to leaving the farm at 7:00 p.m, he drank two beer over one hour.

They arrived at the Anders’ home in Warman at about 7:30 and set about cleaning and hanging the carcasses. He drank six to eight beer while working. He agreed that he did not count the beer which he drank and a total of eight to ten was simply an estimate. They finished work at about 11:00 p.m. and then had a meal. He did not consume any alcohol with the meal. He set off for home about an hour after eating. [29] He did not know that the brake lights on the van did not work and could not recall when he had last checked them.

He was not aware that his passenger side headlight had burned out, nor did he notice that there was only one headlight while he was driving even though it was dark outside. He could not say whether there were street lights beyond 1 st Street or how far apart they were spaced. [30] Mr. Dyck acknowledged that he had consumed alcohol on other occasions, but denied that the more alcohol consumed the greater the effect.

When asked what effect it did have, he stated, “...doesn’t have an effect.” He also admitted that he had been convicted in 1988 of driving while over .08 and fined $400.00 and also was convicted in 2008 of driving while over .08 and fined $1,000.00.

[31] He further acknowledged in cross-examination that the middle of the road was obvious even though there were no markings andadded that he could have driven within his lane, but was trying to miss potholes. ISSUE Has the Crown proven, beyond a reasonable doubt, that the accused’s ability to operate a motor vehicle was impaired by alcohol? ANALYSIS [32] The Court must be satisfied beyond a reasonable doubt, on the totality of the evidence, that the ability of the accused to operate a motor vehicle was impaired, to some degree, by alcohol.

The test to be applied in determiningwhether the offence of impaired driving has been established is found in R. v. Stellato, (ON CA), [1993] O.J. No. 18(C.A.), affd. (SCC), [1994] 2 S.C.R. 478 (S.C.C.); that is: if the Crown has proven beyond a reasonable doubt that theability of an accused to operate a motor vehicle is even slightly impaired by drug or alcohol, there is sufficient proof of the offence. Asis often pointed out, this does not mean that slight evidence will be sufficient.

Rather, the evidence as a whole must establish that aninference of impairment of the ability to drive can reasonably be drawn from conduct which is a departure from the norm. That departuremay fall upon a continuum from slight to great, but it must lead to no other reasonable conclusion but that the accused’s ability to operatea motor vehicle was impaired to some degree by the ingestion of alcohol and/or drugs. [33] Having weighed and considered all of the evidence, I do not find the evidence of the accused reliable nor do I accept it. It doesnot raise a reasonable doubt.

At times the evidence of the accused was illogical, contrived and overall, self-serving. For example, hegave a graphic description of the difficulty he had with the van given its failed power steering system, but still felt it necessary to goaround what he described as “dips” in the road. Further, his explanation for leaving his vehicle in neutral, with the engine running, whilehe got out to speak to the officer is equally ludicrous. With respect to the manner in which he stopped the van upon being signalled, Iprefer and accept the evidence of the officer.

By the time the vehicle stopped, the officer was alert to the possibility that he might bedealing with an impaired driver and noted the manner in which the vehicle was parked as “odd”. With respect to the credibility of theaccused, I note that he acknowledged that he initially tried to mislead the officer about his consumption, but says he only lied because hewas “nervous”. It is incredible that he did not believe that he smelled of alcohol in spite of the estimated eight to ten beer that he drank.

Equally incredible is that he explains the stumble in his walk partially as the result of his feet going numb in the time it took to drive onekilometre. Although he maintains that the slur the officer referred to was a speech impediment, no such impediment was apparent as theaccused gave his testimony. On the whole, his evidence struck me as contrived in an attempt to explain away various symptoms. [34] Does the evidence establish a basis from which the Court can infer that the accused’s ability to drive was impaired by alcohol?

Iam satisfied on the evidence that the accused did not exceed the posted speed limit, and that he stopped properly at a stop sign. I acceptthat he had no difficulty retrieving his wallet or licence and registration. I am equally satisfied that he crossed the centre of the roadtwice, parked his vehicle partially in two lanes and got out of his van leaving the engine running and the transmission in neutral. That theaccused was operating a vehicle without a headlight or any brake lights, I consider a neutral factor.

There is no evidence to suggest thatthe missing headlight would have been readily apparent to the driver and I cannot speculate to that effect. In addition, the evidence is thatthe accused had the odour of alcohol on his breath and admitted to having consumed eight to ten bottles of beer over a five to six hourtime period, that his eyes were slightly bloodshot and that his speech was slurred.

I accept that the accused stumbled briefly when hewalked and reject his explanations as they are inconsistent with the officer’s detailed description that the accused walked as though hewas walking downhill and catching his steps. [35] Counsel for the accused argues that the facts of this case are akin to the circumstances in R. v. MacArthur, 2011 SKPC 110, adecision in which I found that the evidence did not establish the offence of impaired driving. That case however was significantlydifferent from the one at hand in the following ways:

a) a video of the accused at the police station was filed as an exhibit and did notconfirm the indicia described in the viva voce evidence; and

b) there were broad discrepancies in the evidence of the officers as to thesymptoms of impairment demonstrated by the accused. In the end result, MacArthur was a case much like R. v. Krausher, an unreporteddecision of Lavoie J., in that there was a reasonable doubt as to what, if any, symptoms of impairment existed and how, if at all, theconsumption of alcohol impacted on the accused’s ability to drive.

[36] In the case at hand, the above noted constellation of facts considered together, along with the pleas of the accused to be given “a break”, leads me to the inference that the accused’s ability to operate a motor vehicle was impaired by alcohol to some degree. Although the impairment of this accused falls at the lower end on the continuum of impairment, I am satisfied beyond a reasonable doubt that the test in Stellato, supra has been met and that all the elements of the offence have been established beyond a reasonable doubt. Accordingly, the accused is found guilty. _______________________ M.L. Gray, J