Her Majesty the Queen - v. -, 2021 SKPC 43

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 43 Date: September 24, 2021 Information: 90413277 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dennis Preston Appearing: Andrew Wyatt For the Crown David Rusnak, QC For the Accused JUDGMENT R. GREEN , J I INTRODUCTION [ 1 ] Mr. Preston is charged with impaired driving and driving at or over .08 on September 30, 2020 near Hinchcliffe, in the Rural Municipality of Preeceville. [ 2 ] Just before 4:00 p.m. on that day two Ford F-150 vehicles, one driven by Mr.

Preston and one by Dale Prestie, collided in a so-called sideswipe on a rural road three and a half miles north of Hinchcliffe Village. At 5:10 p.m., the RCMP in Canora received a dispatch from a 911 operator that this accident had occurred. As a result, Cst. Trevor Cahill and Cst. Jerrit Wensink both drove in separate police vehicles toward the accident scene, 49 kilometers north of Canora. During his drive, Cst. Wensink spoke by telephone to

Sturgis Fire Chief Bradley Secundiak, who was at the scene and who told him that one of the drivers, Mr. Preston, was having a beer and Fire Chief Secundiak believed him to be intoxicated. The officers arrived at the accident scene at 5:50 p.m. and observed the two vehicles in the ditch, each with extensive damage and inoperable. [ 3 ] The police officers spoke to Mr. Preston and Mr. Prestie and others at the scene, including the firefighters from the nearby Town of Sturgis. At 6:27 p.m. Cst. Wensink arrested Mr. Preston for impaired driving and read the breath demand to him.

At 7:25 p.m., the officers arrived back at the Canora detachment with Mr. Preston. At 8:07 p.m. and 8:28 p.m. Mr. Preston provided two breath samples, both of 130 milligrams percent (mg%). [ 4 ] Mr. Preston claims that he drank alcohol after the accident and before he provided samples of his breath, and, as a result that his blood alcohol concentration (BAC) was under 80 mg% at the time of the accident. That defence is contained in s. 320.14(5) of the Criminal Code , which came into effect on December 18, 2018: No person commits an offence under paragraph (1)(

b) if (

a) they consumed alcohol after ceasing to operate the conveyance; (

b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and (

c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 ml of blood. [ 5 ] As I am satisfied that:

(1) Mr. Preston drank alcohol after the accident and before providing breath samples; and (2) the Certificate of Qualified Technician is admissible and the requisite conditions in s. 320.31(1) have been established, the issues which remain to be determined on the .08 charge are whether:

(1) After the accident, Mr. Preston had no reasonable expectation that he would be required to provide a sample of his breath to a police officer, and

(2) Mr. Preston’s alcohol consumption was consistent with the alcohol readings he provided at the Canora detachment and, as well, with Mr. Preston having had a BAC that was less than 80 mg% at the time of the accident. On the impaired driving charge, the issue is whether there is proof beyond a reasonable doubt that his ability to operate a motor was impaired to any degree by alcohol or a drug. [ 6 ] In a trial that spanned two full days of evidence and argument, the Crown presented four witnesses: Fire Chief Secundiak, Mr. Prestie, Cst. Cahill and Cst. Wensink.

Defence counsel admitted the voluntariness of statements made by Mr. Preston to the police officers. Mr. Preston testified in his own defence. Mr. Preston’s father, Wayne Preston, and Mr. Preston’s girlfriend, Charlotte Chernyk, also gave evidence on his behalf. [ 7 ] Further, the defence introduced as Exhibit D-1 a series of correspondences between Mr. Rusnak and Alcohol Specialist and Forensic Toxicologist Mary-Ellen Scott. Included in these were opinion letters by Ms. Scott on November 22, 2020 and January 29, 2021. Each provided her opinion of Mr.

Preston’s BAC at the time of the accident and at the time of his first breath test, but are based on two different consumption scenarios; the first scenario with Mr. Preston consuming one beer between 2:30 and 3:00 p.m. and then three beer and four to six ounces of vodka after the accident, and the second scenario with the same initial consumption but with four beer and the same vodka consumption after the accident.

II BACKGROUND [ 8 ] At 5:00 p.m. this day Fire Chief Secundiak received a dispatch about this motor vehicle accident and drove 21 kilometers northeast from Sturgis to the accident scene with other firefighters from Sturgis. Upon arriving and dressed in his firefighter gear, he spoke to Mr. Prestie and Mr. Preston. [ 9 ] Mr. Prestie had been driving in a westerly direction on this country road and was descending a sharp hill at 25 to 30 km/hr when he met Mr. Preston, who he said was coming fast toward him. Mr. Prestie said he was in the center right of the road and Mr. Preston was in the middle of the road and Mr.

Prestie tried without success to swerve and avoid Mr. Preston. [ 10 ] After the accident Mr. Prestie spoke to Mr. Preston and asked to borrow Mr. Preston’s cell phone to call his wife and the RCMP. He phoned home and left a message for his wife, and then Mr. Preston’s father Wayne Preston arrived at the scene. Before his father arrived, Mr. Preston, who had a beer in his hand, asked Mr. Prestie whether he wanted a beer. Mr. Prestie, who had not been drinking that day, said no. [ 11 ] Upon arriving at the accident scene, Cst. Cahill saw a number of empty cans of Kokanee beer in the rear box of Mr. Preston’s truck.

Both police officers walked up to Ms. Chernyk’s vehicle, where Mr. Preston was seated. Cst. Wensink spoke to Mr. Preston. Cst. Cahill, who noted an empty can of beer on the ground outside that truck, photographed the scene (with pictures that were marked as Exhibit P-1) and spoke to other people present, including the firefighters.

[ 12 ] The WatchGuard video from Cst. Wensink’s vehicle was introduced as Exhibit P-2 and showed his drive to the accident scene along the poorly maintained country road where the accident occurred, the scene upon and after his arrival, and his interaction with Mr. Preston in his police vehicle after the arrest of Mr. Preston. [ 13 ] Ms. Chernyk has been in a relationship with Mr. Preston for a year and a half. She said that, on the day in question, she packed six Kokanee beer in a cooler for him and he left their residence in Sturgis, in her view sober, after lunch.

She then received a telephone call from him after 3:00 p.m., and he asked her if she wanted to abandon their plan to go to the cottage but rather go elk hunting with him. She agreed. He then called back less than an hour later to say that he had been in accident and she should come to come to the accident scene. III DOES MR. PRESTON HAVE A VAILID DEFENCE UNDER s. 320.14(5)? (

i) Does the evidence establish that, after the accident, Mr. Preston had no reasonable expectation that he would be required to provide a sample of his breath to a police officer? The evidence [ 14 ] At the scene, Fire Chief Secundiak saw Mr. Preston walking to Ms. Chernyk’s vehicle holding a can of beer. He told Mr. Preston that it was not a good idea to be drinking and Mr. Preston shrugged and said he had consumed seven or so beer already. Mr. Preston got into Ms. Chernyk’s vehicle and Fire Chief Secundiak told Mr. Preston not to leave as the RCMP were coming and would want to talk to him.

Fire Chief Secundiak saw Mr. Preston drinking two beer at the scene. In discussion with Mr. Preston, Mr. Preston told him that he had consumed a few drinks at a friend’s house before he drove to where the accident occurred. [ 15 ] Mr. Preston testified that he was not aware, that day, that his drinking after the accident would put him into any jeopardy. He said he was drinking after the accident because of stress, to calm himself down as he had had a near death experience. While he admitted to having an over .08 conviction about 30 years ago in 1989, Mr.

Preston denied being aware of any change to the drinking and driving legislation and, as well, denied trying to obstruct the police by drinking. [ 16 ] During Mr. Preston’s cross-examination, Mr. Wyatt suggested to Mr. Preston that he knew the RCMP were coming to the accident scene and Mr. Preston said he was not worried about the police coming but admitted that he knew it was possible he would have to blow for the police. Mr.

Preston as well admitted that Fire Chief Secundiak told him it was not a good idea to drink at the scene and that he should not leave as the police were coming, but said he waited a bit and when the police did not show up, he started drinking again. He also admitted that his father told him not to drink at the scene, but he ignored the advice. Wayne Preston testified that he told his son that it was not a good idea to be drinking as the police were coming. Analysis [ 17 ] After considering this evidence, I am not satisfied that the evidence establishes that, after the accident, Mr.

Preston had no reasonable expectation that he would be required to provide a sample of his breath to a police officer. That is because:

(1) I am satisfied that Mr. Preston was drinking alcohol before the accident;

(2) Mr. Preston was involved in a serious accident with Mr. Prestie and he knew the police were on the way;

(3) Mr. Preston was told both by his father and by Fire Chief Secundiak not to drink alcohol because the police were coming;

(4) Regardless of whether he knew about any change to the impaired driving provisions in the Criminal Code , Mr. Preston had a previous conviction for exceeding .08 in which he would have provided a breath sample; and

(5) Most significantly, he testified that he knew it was possible he would have to blow for the police; in other words that he might have to provide a sample of his breath to a police officer. [ 18 ] Taken together, this evidence satisfies me that any expectation Mr. Preston had that he would not have to provide a breath sample to a police officer was unreasonable. (ii) Does the evidence establish that Mr. Preston’s alcohol consumption was consistent with the alcohol readings he provided at the Canora detachment and, as well, with Mr. Preston having had a BAC that was less than 80 mg% at the time of the accident?

The evidence [ 19 ] Cst. Wensink said that, after he initially put Mr. Preston in the police vehicle, he went out to briefly survey the accident scene, and at that time saw 15 empty cans of Kokanee beer in the back of Mr. Preston’s truck. He returned to his police vehicle and spoke to Mr. Preston, who told him that he only drank five beer. Cst. Wensink then formally arrested Mr. Preston for impaired driving and read the breath demand to him from his card. Mr. Preston’s response to him was “what for, this is ridiculous”. After the officer read the breath demand a second time, Mr.

Preston told him that he had drank seven beer. He also asked Cst. Wensink why he would take a sample from him for something that happened seven years ago. [ 20 ] When Cst. Wensink was asked, at the trial, what he thought Mr. Preston meant when he referred to “seven years ago” and, as well, in other comments he made about “three hours” and “seven hours” and about this “being a waste of time”, he thought what Mr. Preston was trying to say was the police didn’t have enough evidence to charge him with impaired driving. In cross-examination, Mr. Preston was asked why he said the things he did to Cst.

Wensink, and he said it was a combination of agitation for being arrested and charged, having waited two and half hours for the police to arrive and realizing that his vehicle had been totaled. [ 21 ] At the detachment Cst. Wensink observed Mr. Preston for the mandatory period prior to Cst. Gatenby taking the breath samples from him. During one of the observation periods, Mr. Preston told him he had drank six beer. In

summary of his conversations with Mr. Preston, Cst. Wensink said Mr. Preston was inconsistent in telling him how much he had to drink: Mr. Preston initially told him he had 5 beer to drink, then said he had seven beer, and subsequently said he had six beer. Cst. Wensink said Mr. Preston did not mention anything to him about drinking vodka. [ 22 ] Mr. Preston, who weighs 165 pounds, testified that on this day he worked until 11:00 a.m., and then came home to Sturgis and had lunch. He then departed for Preeceville, where he spent about two hours with his parents and thereafter left to check out Ms.

Chernyk’s cottage at Nelson Lake, north of Preeceville. On the way to the cottage, he stopped at his friend Shawn Serhan’s place at about 3:00 p.m. He had one Kokanee beer from his cooler, departed for the cabin at 3:15 p.m., and arrived there at 3:30 p.m. [ 23 ] After he checked the cabin, he decided that he would go elk hunting despite previously arranging for Ms. Chernyk to come up to the lake. He was driving back from Nelson Lake to Sturgis to get his rifle, when he was involved in the accident with Mr. Prestie. In his words, he was going 70 to 80 km/hr down the road, and he and Mr.

Prestie “clipped” each other. [ 24 ] Mr. Preston said his cooler of Kokanee beer was in the back of his truck. He was very stressed after the accident and had a beer about 20 to 30 minutes after the crash, before his father arrived. He said he then put the cooler of beer into his father’s truck. When the firefighters arrived on the scene, he said he was sitting in his father’s truck having a beer. He admitted that Fire Chief Secundiak said to him he probably should not be drinking, when he was walking toward his girlfriend’s truck. He said he took the cooler of beer to Ms.

Chernyk’s truck. [ 25 ] When asked how many beers he had to drink at the accident scene, Mr. Preston said he believed it was four, but it was either three or four and he was not sure how many. He said he had six beer in his cooler to start with, had one with Mr. Serhan, and that would leave five left. He said, one or two months later, he discovered there was one beer left in the cooler, and this then told him how much he had to drink at the accident scene. [ 26 ] Mr. Preston said that, while sitting in Ms. Chernyk’s vehicle, he also drank some vodka.

He said it was a full mickey and he had two drinks totaling four or five ounces. [ 27 ] In cross-examination, Mr. Preston was asked why he initially told his lawyer that he had three beer to drink after the accident, and then changed this a few months later to four beer that he drank. He said it was because about two months after the accident he opened the cooler he had that day and found there was one beer left. This meant he had four beer to drink at the scene and not three beer. He was then asked whether, if he had a clear memory of what happened that day as he claimed, he could have made this mistake.

He said it was because of the four to five ounces of vodka he drank after the beer which affected his memory about how many beers he had consumed. When asked why he would have made this mistake initially when he was sober and speaking to his lawyer, he said he could not say. [ 28 ] When asked whether he told Cst. Wensink that he had seven beer, he responded that he might have said he had several beers but denied saying seven. It was then suggested to him that he had told the police he had seven beer, and he said he did this because he was agitated.

He denied that he told Fire Chief Secundiak that he had consumed a couple of drinks at his friend’s place and, as well, claimed he did not talk to Fire Chief Secundiak about drinking at his friend’s place. [ 29 ] When Mr. Preston was asked why he drank vodka after the beer he said again that it was because of the stress and because the “beer just wasn’t doing it”. He said he drank the vodka straight because he had nearly been killed, and because he was shaking and in shock.

While admitting that he did not measure the vodka he drank, he thought it was four to five ounces because he looked at the bottle and it was one-third empty before he threw it into the back seat. He, as well, was asked whether he was drunk when the police got there and responded that he was getting there and that his speech was more slurred after he drank the vodka. When asked why he did not tell the police about drinking vodka, he said he was drunk then and maybe did not tell them. [ 30 ] Ms. Chernyk said Mr. Preston was distraught, and he had one beer in his hand when she arrived at 5:35 p.m.

She said he took another beer from the cooler when they sat in her truck, and then took a vodka mickey from the backseat and drank from it. She said this was her mickey of vodka, which was 375 ml. She said he drank one-third of the mickey and then threw it back into the box of her truck. She said Mr. Preston took one big swig from the vodka, but maybe it was two. She confirmed that she had spoken to Mr. Preston about

the day in question prior to the trial and had discussed his consumption of alcohol. In cross-examination, she was asked why (asrecorded in Exhibit P-1), she told the police officer that Mr. Preston drank “a mickey of vodka”. She said she didn’t know why she saidthis. She denied that her memory would have been better at the time of that statement than it was at the trial. Analysis [31] The two opinions rendered by letter by Ms.

Scott, and admitted into evidence as Exhibit D-1, support a conclusion that thetwo hypothetical alcohol consumption patterns she was given – which were one beer at 2:30 p.m. and either three or four beer after theaccident followed by four to six ounces of vodka - were consistent both with the alcohol readings Mr. Preston provided at the Canoradetachment and with Mr. Preston having had a BAC that was less than 80 mg% at the time of the accident. But were these hypotheticalsbased on credible evidence? I think not. That is because:

(1) I am satisfied that Mr. Preston gave varied accounts to Cst. Wensink and Fire Chief Secundiak on how many beers he drankand, as a result, I view the hypotheticals provided to Ms. Scott as unreliable;

(2) By Mr. Preston’s own admission at the trial, the amount of vodka he drank affected his memory about how many beers hedrank that day, and taken together, the evidence on his drinking this day satisfies me that he has a poor recollection of what he consumed;

(3) The similar accounts given in evidence by Mr. Preston and Ms. Chernyk about Mr. Preston’s alcohol consumption that daywere not, in my view, independent as I am satisfied that Mr. Preston and Ms. Chernyk conferred about his alcohol consumption after thatday and before the trial; and

(4) Mr. Preston made no mention to Cst. Wensink about drinking vodka, and in any event the amount of vodka he claimed tohave drank after the accident was in my view, at the best, an estimate and clearly at odds with what Ms. Chernyk told Cst. Wensink, i.e.that Mr. Preston drank a mickey of vodka. [32] Because I am not satisfied that there was a credible basis for the hypotheticals upon which Ms. Scott rendered her opinions, Iam not satisfied that Mr. Preston’s consumption of alcohol this day was consistent both with his BAC readings at the detachment andwith him being under 80 mg% at the time of the accident.

IV WAS MR. PRESTON’S ABILITY TO OPERATE A MOTOR VEHICLE IMPAIRED BY ALCOHOL? The legal standard [33] The Supreme Court of Canada in R v Stellato, (SCC), [1994] 2 SCR 478 approved the test for impairmentfrom the Ontario Court of Appeal in that case (1993 ONCA 3375 at para 14): In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability tooperate a motor vehicle was impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. The evidence [34] Fire Chief Secundiak said he first spoke to Mr. Preston through the passenger side window of his father’s truck. In response,Mr. Preston gave Fire Chief Secundiak, who was dressed in his firefighting gear, his driver’s license and registration. Mr. Preston wasdrinking a beer, and Fire Chief Secundiak said Mr.

Preston’s eyes were red and glassy and he had slurred speech like he had marbles inhis mouth. He said, when Mr. Preston walked at the accident scene, he did so with a slight stagger. Fire Chief Secundiak admitted thathe had only seen Mr. Preston from afar at a construction site before that day. When he told Mr. Preston that the police were coming andthat he should not be drinking, he said that Mr. Preston did not look concerned. [35] Cst. Wensink said that, at the accident scene, Mr.

Preston was walking slowly, his speech was slurred and he mumbled, hesmelled of liquor inside and outside the police vehicle and he had red glassy eyes. He said that at the detachment, over time, Mr. Prestonbecame more active and his speech improved. [36] Cst. Cahill only had brief contact with Mr. Preston at the detachment. He could smell liquor coming from him and said hehad a flushed face and bloodshot eyes, and he talked about elk hunting. After the breath test, he released Mr. Preston to Ms. Chernyk. [37] Mr.

Preston testified that his eyes are red all the time and his speech is normally slurred as his father repeatedly asks him whathe is saying. In 2000, he was in a serious car accident which affected both his left hip and his right leg, and this affects his walk. Hedenied providing his driver’s license and registration to Fire Chief Secundiak. [38] Wayne Preston said his son looked nervous and shaken up when he arrived at the accident scene and said that his son hastrouble speaking and he often has to ask him to repeat what he said. As well, he said his son has a unique gait because he shuffles along

as a result of an accident he had in the past. [ 39 ] Ms. Chernyk said Mr. Preston’s eyes are always bloodshot and he has a swaggering gait as a result of a severe leg injury he suffered. Analysis [ 40 ] While Mr. Preston gave different accounts, on the date in question, about how much he drank, and while he admits to being intoxicated while in the police vehicle and while I do not accept that he recalls accurately what he said to Fire Chief Secundiak, the question remains whether, at the time of the accident there is proof beyond a reasonable doubt that his ability to drive was impaired.

The Crown submitted there was. I disagree. I am left with a reasonable doubt on this issue for the following reasons:

(1) While I am not satisfied there is credible evidence of how much alcohol he consumed after the accident, I am satisfied it was a significant amount and that the subsequent consumption effected his demeanor and appearance to Cst. Winsink and Fire Chief Secundiak;

(2) While I am satisfied that he was driving at an unsafe speed on this narrow country road, I am not satisfied this was necessarily because of impairment from alcohol;

(3) In my view, after watching him testify in court and listen to his father’s evidence about his speech and gate, which I accept, his mumbled speech and staggered gate did not necessarily point to impairment; and

(4) Accounts of his red eyes and the smell of alcohol on him are, as well, inconclusive to me on whether he was impaired. V CONCLUSION [ 41 ] Because I have a reasonable doubt that his ability to operate his motor vehicle was, at the time of the accident, impaired by alcohol or a drug, Mr. Preston is found not guilty on count #1. Because I am not satisfied that: (1) after the accident, Mr.

Preston had no reasonable expectation he would be required to provide a sample of breath to the police; and (2) his alcohol consumption was consistent with his BAC disclosed in his breath samples and with him having had, at the time of the accident, a BAC of less than 80 mg%, and because I am otherwise satisfied that the elements of the offence have been proved beyond a reasonable doubt, he is found guilty on count #2. ________________________ R. Green, J