R v Nahnybida, 2018 SKCA 72

Docket: CACR2842 Between: Mitch Alexander Nahnybida Appellant And Her Majesty the Queen Respondent Court of Appeal for Saskatchewan Citation: R v Nahnybida , 2018 SKCA 72 Date: 2018-08-30 Docket: CACR2833 Between: Her Majesty the Queen Appellant And Mitch Alexander Nahnybida Respondent Before: Jackson, Caldwell and Schwann JJ.A. Disposition: Appeals dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Caldwell On Appeal From: 2016 SKQB 245 , Yorkton Appeal Heard: October 12, 2017 Counsel: W.

Dean Sinclair, Q.C. for Her Majesty the Queen Thomas P. Campbell for Mitch Alexander Nahnybida Schwann J.A. I. Introduction [ 1 ] Mitch Alexander Nahnybida got behind the wheel of his truck in the early morning hours of August 19, 2013, accompanied by three friends, to drive to a nearby town to purchase more beer. They never arrived. Along the way, Mr. Nahnybida failed to keep his truck on the road and drove into the ditch. One of the passengers died from injuries sustained when Mr. Nahnybida’s truck rolled over. [ 2 ] Mr.

Nahnybida was charged with the following offences arising from this incident: Indictment #1 ... Count #1 While his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle and thereby cause the death of ERIC WHITEHAWK contrary to Section 255(3) of the Criminal Code . Count #2 Operate a motor vehicle on a Provincial Highway in a manner that was dangerous to the public and thereby caused the death of ERIC WHITEHAWK contrary to Section 249(4) of the Criminal Code . ... Indictment #2 ...

Count #1 Without reasonable excuse and where he knew [or] ought to have known that he had caused an accident resulting in bodily harm to another person whose death ensued, refused to comply with a demand made to him by Cst. Liane Lisoway, a peace officer, to provide then or as soon thereafter as was practicable samples of his breath as in the opinion of a qualified technician were necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood contrary to Section 255(3.2) of the

Criminal Code of Canada . Count #2 Operate a motor vehicle while disqualified from doing so by reason of an order pursuant to Section 259(1) of the Criminal Code contrary to Section 259(4) of the Criminal Code. Count #3 While bound by a probation order made by Provincial Court on the 1 st day of May, 2013 fail without reasonable excuse to comply with such order to wit keep the peace and be of good behaviour contrary to

section 733.1(1) of the Criminal Code . ... [ 3 ] Separate trials took place in relation to the two indictments. The charges set out in Indictment #2 proceeded first before a Queen’s Bench judge alone. Mr. Nahnybida pled guilty to the driving while disqualified (count 2) and breach of probation (count 3) charges and, following trial, was found guilty on the aggravated refusal charge (count 1). [ 4 ] A trial with respect to Indictment #1 proceeded several months later before the same Queen’s Bench judge, now sitting with a jury. The jury found Mr.

Nahnybida not guilty of operating a motor vehicle while his ability to do so was impaired by alcohol, but guilty of operating a motor vehicle in a manner dangerous to the public, thereby causing the death of Eric Whitehawk contrary to s. 249(4) of the Criminal Code . [ 5 ] A sentencing hearing for all four convictions took place on June 3, 2016, with a written decision subsequently rendered on July 22, 2016 ( R v Nahnybida , 2016 SKQB 245 [ Sentencing Decision ]).

The trial judge imposed a sentence of 40 months’ imprisonment on the dangerous driving causing death conviction and a 40-month concurrent sentence on the aggravated refusal conviction. Mr. Nahnybida also received a 6-month consecutive sentence on the driving while disqualified conviction and a 6-month concurrent sentence on the breach. He was prohibited from driving for a period of 5 years following his release from prison. [ 6 ] Mr. Nahnybida appeals the conviction on the dangerous driving and aggravated refusal charges.

He also seeks leave to appeal the sentences imposed on all four matters, however, in the course of oral argument, Mr. Nahnybida abandoned his appeal from sentence on the breach conviction. [ 7 ] The Crown also seeks leave to appeal sentence. The Crown argues the trial judge erred by failing to consider evidence of Mr. Nahnybida’s alcohol consumption, which, it says, escalated the gravity of these offences and his moral culpability.

Failure to consider alcohol consumption, the Crown contends, had an obvious impact on the sentences that were imposed for the dangerous driving and aggravated refusal convictions and these sentences must be set aside. [ 8 ] For the reasons that follow, I would dismiss Mr. Nahnybida’s appeal from conviction. I would also grant leave to Mr. Nahnybida and the Crown to appeal sentence but would dismiss both appeals. II. background A. Indictment #1: jury trial on the impaired driving and dangerous driving causing death charges [ 9 ] Mr.

Nahnybida, who worked in the oil fields, had just concluded a seven-week shift without any time off. On August 17, 2013, he and several friends partied through the night until close to 5:00 a.m. the next morning, when Mr. Nahnybida returned home to sleep. He slept for five-and-half to seven hours before rising around noon on August 18. Mr. Nahnybida then purchased 36 beer in Kamsack, Saskatchewan, and loaded them into a cooler in the box of his truck. Accompanied by Eric Whitehawk and two other friends, Mr. Nahnybida went to an event referred to as a “mud bog”, arriving sometime between 2:00 p.m. and 3:00 p.m.

According to one of the witnesses, a mud bog is “where you dig in a hole in the ground, fill it with water and mud, and we race through with our trucks and quads and stuff”. Mr. Nahnybida testified that he had consumed four to six beer over the course of the afternoon at this event. [ 10 ] In the early evening, Mr. Nahnybida and his friends drove to Kamsack to buy food. Their images were captured on a surveillance video at a convenience store at approximately 9:00 p.m. From there, Mr.

Nahnybida drove to Tanner Chutskoff’s house in search of a party and, when none was to be had at that residence, they proceeded to the Whitehawk residence on the Cote First Nation. Mr. Nahnybida thought they arrived there around 10:30 p.m. [ 11 ] Mr. Nahnybida took the remaining beer into the Whitehawk residence. He was uncertain how many beer remained or how much he drank while at the Whitehawk residence. At some point between midnight and 12:30 a.m. on August 19, Mr. Nahnybida put his head down on the kitchen table and fell asleep.

He testified that he was tired because he had just finished working a prolonged shift, it had been a long day in the sun and it was late. He also conceded the beer he had consumed might have caused him to feel tired. [ 12 ] When Mr. Whitehawk roused him awake a short while later, Mr. Nahnybida said he felt “groggy”. Mr. Nahnybida and Mr. Whitehawk decided to go to Canora in Mr. Nahnybida’s truck to purchase more beer. Mr. Nahnybida testified that while sitting in his truck waiting for others to emerge from the Whitehawk residence, he felt “regenerated”. [ 13 ] Mr.

Whitehawk, Lawrence Severight and another companion got into Mr. Nahnybida’s truck. Mr. Nahnybida was the driver. Mr. Whitehawk sat in the front seat and Mr. Severight and the other companion were in the back. [ 14 ] After dropping off the companion in Kamsack, Mr. Nahnybida, Mr. Whitehawk and Mr. Severight proceeded along Highway 5 to Canora. Mr. Nahnybida testified that he was unsure of his speed but thought he drove somewhere between 110 and 115 kilometres

per hour. According to Mr. Nahnybida, they were in “no rush” since Mr. Whitehawk had called ahead to the Canora bar to confirm it would be open when they arrived. [ 15 ] Approximately 20 kilometres later, Mr. Nahnybida’s truck left the highway and entered the south ditch. The truck travelled 43 metres in the ditch before Mr. Nahnybida turned the wheel. Unfortunately, in so doing, he overcorrected the truck, which caused it to enter the north ditch and roll. Corporal Burnett was qualified as an accident reconstruction expert. He testified that the brakes had never been applied.

He also testified that the truck’s minimum speed before the rollover was between 131 and 133 kilometers per hour, but conceded there could be a margin of error in his calculation. [ 16 ] The highway conditions were good in the early morning hours of August 19, 2013. The road was paved and dry and there were no obstructions. There was nothing mechanically wrong with Mr. Nahnybida’s truck. [ 17 ] Mr. Nahnybida testified that he must have nodded off when he was driving but was awakened either by shouting coming from Mr. Whitehawk or because the truck was rotating. Mr.

Nahnybida also testified that when he opened his eyes, he realized they were about to enter the ditch and this prompted him to lock his arms on the steering wheel. [ 18 ] Mr. Whitehawk was injured as a result of the rollover and later died from his injuries at the hospital. [ 19 ] Mr. Nahnybida was uncertain how much alcohol he had consumed before the rollover. He said he was not counting. Various witnesses who had encountered Mr. Nahnybida over the course of the day and evening of August 18, 2013, testified that Mr. Nahnybida displayed obvious signs of impairment. Irvin Friday, who saw Mr.

Nahnybida around 6:00 p.m., said he was a bit over mildly impaired. Harlon Cote, who encountered him at 9:30 p.m., described Mr. Nahnybida as “moderately intoxicated”. Derek Cote came across Mr. Nahnybida at the Whitehawk residence around 11:00 p.m. that night. He testified that Mr. Nahnybida was “pretty intoxicated” and recalled seeing him drink beer and whiskey and stagger when he walked. Mr. Cote lectured Mr. Nahnybida against drinking and driving. Mr. Severight, one of the passengers in Mr. Nahnybida’s truck, described him as “severely intoxicated” when they left the party to buy more beer.

Mark Pelly, another person at the Whitehawk party, said Mr. Nahnybida was “pretty drunk” and that he had passed out at the table. Mr. Pelly testified that he saw Mr. Whitehawk shake Mr. Nahnybida a couple of times to rouse him and that Mr. Nahnybida was really groggy. [ 20 ] The only witness who gave contradictory evidence on this point was Mr. Chutskoff, who saw Mr. Nahnybida in the early evening. Under cross-examination, he conceded that Mr. Nahnybida could have had a “buzz”, but maintained he was not “hammered”. B.

Indictment #2: judge-alone trial the aggravated refusal charge [ 21 ] The trial in this matter largely proceeded on the basis of an agreed set of facts admitted by the accused. They were as follows: 1. On August 19 th , 2013 Mr. Nahnybida was driving a 2008 GMC Sierra truck on Provincial Highway #5 near Mikado, Saskatchewan when he was involved in a single motor vehicle accident. 2. Mr. Nahnybida admits his conduct was the cause or contributing cause of the single motor vehicle accident. A passenger of the truck, Eric Whitehawk, was injured and Mr. Nahnybida admits he was aware Mr.

Whitehawk suffered bodily harm as a result of the single motor vehicle accident. Mr. Nahnybida admits that Mr. Whitehawk died as a result of the bodily harm. 3. Mr. Nahnybida refused to provide a breath sample to the qualified technician, Cst. Taunya Kondratoff at 4:45 a.m. on August 19 th , 2013 at Canora, Saskatchewan. 4. Mr. Nahnybida admits that Cst. Liane Lisoway had reasonable grounds to believe that Mr. Nahnybida had committed an offence under

section 253 of the Criminal Code of Canada as a result of the consumption of alcohol and made the demand on him as soon as practicable. ... In addition to these agreed facts, the evidence set out below was adduced at trial. [ 22 ] A 9-1-1 call was placed by Mr. Nahnybida at 2:29 a.m. to report a vehicular rollover. Constable Rumbolt, the first police officer on the scene, arrived at 2:50 a.m. Constable Rumbolt made the following observations about Mr. Nahnybida: slurred speech, dragging his words as he spoke, the strong smell of alcohol on his breath, and bloodshot, glassy eyes.

According to Constable Rumbolt, Mr. Nahnybida had difficulty maintaining his balance and thought he tried to avoid looking directly at him. Based on his collective observations, Constable Rumbolt believed Mr. Nahnybida was “highly intoxicated”. [ 23 ] Constable Rumbolt called Constable Lisoway for assistance at 3:08 a.m. She proceeded to the RCMP detachment in Canora, where, on arrival, she once again spoke with Constable Rumbolt by telephone at 3:16 a.m. Constable Rumbolt informed her of the 9-1-1 call that had come in at 2:29 a.m. Constable Lisoway met Mr.

Nahnybida and one of the passengers at the hospital at 3:46 a.m. at which time she, too, made several observations about Mr. Nahnybida and his state of sobriety. She noted that he was covered in mud, smelled like a slough and alcohol, had bloodshot eyes and his movements were slow and deliberate. She observed him stumble for no apparent reason and have trouble getting into the police vehicle. [ 24 ] Mr. Nahnybida told Constable Lisoway about the intake of mud into his vehicle, that he had struggled to get out of his truck and had tried to remove Mr. Whitehawk who had been trapped inside.

He informed her that he had not lost consciousness. Mr. Nahnybida also told her that he had searched for his cellphone and, when he was unable to locate it, he used Mr. Whitehawk’s cellphone to make the 9-1-1 call. Constable Lisoway did not ask Mr. Nahnybida if he had tried calling 9-1-1 more than once. Mr. Nahnybida seemed confused about where the accident had occurred.

[ 25 ] At 3:59 a.m., Constable Lisoway formed the belief that Mr. Nahnybida was impaired by alcohol and that he had operated a motor vehicle while impaired by alcohol within the previous three hours. She arrested him at 4:06 a.m. and made a breath demand at 4:09 a.m. After speaking with his lawyer for roughly 30 minutes, Mr. Nahnybida refused to provide a breath sample. He communicated his refusal to Constable Lisoway at 4:45 a.m. III. the trial decisions A. The aggravated refusal charge: judge alone trial January 8 and 9, 2015, and April 15, 2015 [ 26 ] Mr. Nahnybida admitted all but one element of this offence.

Mr. Nahnybida also conceded that Constable Lisoway had a subjective belief that he had been driving within three hours prior to the breath demand. The only issue left for the trial judge to determine was whether Constable Lisoway’s subjective belief bore up to objective scrutiny. [ 27 ] The trial judge identified the applicable law and made several key observations. She said the information relied on by a police officer does not need to be accurate.

The law requires a court to consider whether a reasonable person, standing in the shoes of the police officer at the time his or her belief is formed, would have believed the accident occurred within three hours prior to the breath demand. The trial judge then considered the totality of the evidence, paying particular attention to Constable Lisoway’s personal observations of Mr. Nahnybida, her training and experience and what Mr. Nahnybida had told her at the hospital (i.e., that it took time to get out of the vehicle, free Mr. Whitehawk and search for his cellphone).

Based on the totality of the evidence, the trial judge concluded Constable Lisoway’s subjective belief that Mr. Nahnybida had been operating a motor vehicle while impaired by alcohol within three hours prior to the breath demand was objectively reasonable. She convicted Mr. Nahnybida of the charge. B. Impaired driving causing death and dangerous driving causing death charges: judge and jury trial December 8–18, 2015 [ 28 ] As mentioned, a trial on Indictment #1 proceeded several months later before a judge and jury, presided over by the same judge who had tried Mr. Nahnybida on the aggravated refusal charge.

The jury acquitted Mr. Nahnybida of impaired driving causing death (count 1) but convicted him of dangerous driving causing death (count 2). IV. analysis A. Conviction appeal 1. The dangerous driving causing death conviction: was the jury’s finding of guilt contrary to the law or an unreasonable verdict? [ 29 ] Pursuant to s. 675(1) (

a) of the Criminal Code , an accused has a right of appeal against conviction where it involves a question of law alone or, with leave, where it involves a question of mixed fact and law. An appellate court may exercise the following powers on appeal against conviction: 686

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; (

b) may dismiss the appeal where (

i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment, (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby; ...

[30] Two important points need to be made at the outset in relation to this part of Mr. Nahnybida’s conviction appeal. First, Mr.Nahnybida does not take issue with the trial judge’s instructions to the jury on the dangerous driving charge and, second, he concedesthat the actus reus of this offence had been made out on the evidence adduced at trial. Rather, as I understand his argument, he contendsthat, while the evidence may have been sufficient to establish a momentary lapse in judgment, it did not rise to the level of a markeddeparture from the norm. In support of this argument, Mr.

Nahnybida points to the portions of his testimony that he says wereuncontradicted and, as such, must be accepted by the jury. On the basis of his testimony alone, he argues the conviction should beoverturned because: (

i) it is contrary to applicable case law, and (ii) it is unreasonable or unsupported by the evidence. [31] A jury’s verdict is said to be unreasonable or unsupported by the evidence if it is one that a properly instructed jury, actingjudicially, could not reasonably have rendered (R v W.H., 2013 SCC 22, [2013] 2 SCR 180 [W.H.]; R v Yebes, (SCC),[1987] 2 SCR 168; R v Biniaris, 2000 SCC 15, [2000] 1 SCR 381). In W.H., the Supreme Court said: [27] Appellate review of a jury’s verdict of guilt must be conducted within two well-established boundaries.

On one hand, thereviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw andheard the evidence as it unfolded. The reviewing court must not act as a “13th juror” or simply give effect to vague unease or lurkingdoubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has areasonable doubt based on its review of the record. [28] On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence.

A positive answer to thequestion of whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court.Rather, the court is required “to review, analyse and, within the limits of appellate disadvantage, weigh the evidence” (Biniaris, at para.36) and consider through the lens of judicial experience, whether “judicial fact-finding precludes the conclusion reached by the jury”:para. 39 (emphasis added).

Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially couldreasonably have rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but alsowhether the jury’s conclusion conflicts with the bulk of judicial experience: Biniaris, at para. 40. (Emphasis added) [32] Mr.

Nahnybida’s argument is somewhat difficult to assess in the context of the standard of review and the fact that he doesnot take issue with the jury charge, but, as I said, he appears to argue there is no evidence in the record to support the verdict and that thejury’s conviction is contrary to law and judicial experience. To assess this argument properly, I am required to consider the same law thetrial judge considered in her charge to the jury. a. The law [33] The Supreme Court of Canada authoritatively addressed the elements of dangerous driving in R v Beatty, 2008 SCC 5, [2008]1 SCR 49 [Beatty].

It did so by carefully distinguishing the actus reus and mens rea components of this offence, restating them in aconcise format at paragraph 43 of its decision: ... (

a) The Actus Reus The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section,driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use ofthe place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to beat that place”. (

b) The Mens Rea The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied bythe required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, includingevidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care thata reasonable person would observe in the accused’s circumstances.

Moreover, if an explanation is offered by the accused, then in orderto convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and ofthe danger involved in the conduct manifested by the accused. [34] As set out in Beatty, mens rea will be determined by applying a modified objective test to the totality of the evidence (para47). This means that it is not necessary for the Crown to prove the accused had a positive state of mind, such as intent, recklessness orwilful blindness. Rather, as stated in Beatty: [48] ...

The presence of objective mens rea is determined by assessing the dangerous conduct as against the standard expected of areasonably prudent driver. If the dangerous conduct constitutes a ‘marked departure’ from that norm, the offence will be made out …what constitutes a ‘marked departure’ from the standard expected of a reasonably prudent driver is a matter of degree. The lack of caremust be serious enough to merit punishment. ... [35] The Supreme Court revisited the elements of this offence in R v Roy, 2012 SCC 26, [2012] 2 SCR 60 [Roy]. Mr. Roy had beenconvicted at trial.

His driving was found to be “objectively dangerous” largely because the trial judge inferred mens rea from the fact amotor vehicle had been operated in a dangerous manner. The trial judge’s reasoning was found to be incorrect. Roy reaffirmed the actusreus component of the test that had been previously set out in Beatty, which concerns whether, objectively speaking, the driving wasdangerous to the public in the circumstances. [36] Roy went on to establish a defined two-step approach for the mens rea component. The first step requires the trier of fact to

address this question: whether, in light of all relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoidit if possible?

If so, the next question is: whether the accused’s failure to foresee the risk and take steps to avoid it was a markeddeparture from the standard expected of a reasonable person in the circumstances of the driver? (para 36) [37] Even though the so-called reasonable person is to be placed in the driver’s circumstance, personal attributes of the driver, suchas age, education and experience must not be taken into account unless they relate to the driver’s incapacity to appreciate or avoid therisk created by their manner of driving (Roy at para 38).

Finally, but importantly, Roy cautions that mens rea cannot simply be inferredfrom the mere fact the manner of driving is itself dangerous (para 40). A trier of fact must examine all of the circumstances to determinewhether it is appropriate to draw an inference of fault from the manner of driving, even where the manner of driving is a markeddeparture from normal driving. b. The momentary lapse argument [38] At the time of trial, Mr. Nahnybida had argued that a single momentary lapse in judgment, even if it results in loss of life, doesnot amount to a marked departure from the norm.

There is, of course, support for the single momentary lapse argument in case authority(Beatty at para 52; Roy at para 55). [39] Mr. Nahnybida relies on R v Hunter, 2015 SKCA 137, 472 Sask R 92 [Hunter], and R v Jiang, 2007 BCCA 270, 220 CCC(3d) 55 [Jiang]. Both cases involve fact patterns where the accused fell asleep at the wheel. In Hunter and Jiang, the accuseds wereacquitted because the trier of fact found that their actions amounted to a momentary lapse. In Hunter, the accused had been driving fornearly 120 kilometres when she fell asleep at the wheel around 5:30 a.m.

The vehicle rolled, ejecting a passenger who died instantly. Theaccused had been awake since 11:30 a.m. the previous day. She acknowledged feeling as though her eyes had been shutting just beforethe accident. The accused admitted to having consumed some alcohol. Her acquittal was upheld on appeal. [40] In Jiang, the accused fell asleep at the wheel, striking two children. One child was killed and another was injured.

Theaccused was acquitted at trial principally on the evidence of an expert witness who had testified that the accused had been suffering fromundiagnosed chronic insomnia and was not aware of her condition. The British Columbia Court of Appeal held that a sleeping driverdoes not drive of his or her own volition and that acts committed while in an automatic state of mind cannot form the actus reus ofdangerous driving.

However, the court went on to clarify that a sleeping driver could be convicted of this offence where the driverembarks on driving or continues to drive in the face of “a real risk that [the driver] would fall asleep at the wheel” (at paras 17 and 22). [41] Mr. Nahnybida submits that, although he spent the day at the mud bog event and had consumed some alcohol, he was not“impaired”. While he felt tired at the Whitehawk residence, he had a short nap and felt refreshed. The drive to Canora for more beer wasuneventful, save for the fact he was speeding.

He points to the absence of any evidence of erratic driving prior to the crash. Taken as awhole, Mr. Nahnybida argues his unchallenged evidence was insufficient to establish a marked departure from the norm; consequently,he says, the jury’s conviction on his testimony is perverse, unsupported by the evidence and inconsistent with case law. [42] To advance his argument, Mr.

Nahnybida relies on the Supreme Court’s decision in R v Hundal, (SCC),[1993] 1 SCR 867 at 889, for the proposition that where an explanation is offered by an accused, in order to convict, the trier of factmust be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in theconduct manifested by the accused. c.

Application [43] In this case, the trial judge carefully instructed the jury that a momentary lapse of attention does not, without more, constitutea marked departure from the norm: A momentary lapse of attention in circumstances where Mitch Nahnybida’s manner of driving up to that point has been proper in allother respects constitutes careless driving, but does not, without more, constitute the offence of dangerous driving because a momentarylapse in attention in those circumstances is a departure, but not a marked departure from the conduct of a reasonably prudent driver.

Anydeparture from the standard of care of a reasonably prudent driver can be dangerous, yet that departure will not necessarily be a markeddeparture. Even the most able and prudent driver will, from time to time, suffer from momentary lapses of attention.

I also remind youonce again that you must focus on the manner of the driving in all the circumstances, not on the tragic consequences that occurred whenyou decide whether Mitch Nahnybida’s driving in all the circumstances was a marked departure from the conduct expected of areasonably prudent driver. (T1597–T1598) This part of the charge appears to be verbatim from the model jury charge (Gerry Ferguson, Canadian Criminal Jury Instructions, loose-leaf (2017 update) 4th ed (Vancouver: Continuing Legal Education Society of British Columbia)). [44] The trial judge went on to articulate the two-step approach to the mens rea component of this offence as set out in Roy.

Inrelation to the first part of that test – whether a reasonable person in Mr. Nahnybida’s circumstance would have foreseen the risk andtaken steps to avoid it – the trial judge instructed the jury as follows: “All the evidence relevant to this question must be considered todetermine whether a reasonable person would have foreseen the risk and taken steps to avoid the risk” (at T1598, emphasis added). [45] The trial judge then specifically dealt with Mr.

Nahnybida’s testimony that he had simply fallen asleep just before his vehiclewent into the ditch, noting: … it is not a criminal offence to drive when tired, or after a restless night or a long day. If the Crown has not proven that MitchNahnybida knew or ought to have known there was a real risk that he would fall asleep, then the Crown has not proven this elementbeyond a reasonable doubt, and you would have to find Mitch Nahnybida not guilty of this offence. ...

(T1601) [ 46 ] The trial judge instructed the jury to consider Mr. Nahnybida’s testimony on this point and to determine whether he drove in circumstances where he knew or ought to have known there was a real risk he would fall asleep and, if so, to go on and consider whether his manner of driving amounted to a marked departure from the conduct of a reasonably prudent driver: ...

If, however, you are satisfied beyond a reasonable doubt that Mitch Nahnybida knew or ought to have known that there was a real risk he would fall asleep, then you must go on to consider whether his manner of driving, in light of him falling asleep, would constitute a marked departure from the conduct expected of a reasonably prudent person in the same circumstances. (T1601–T1602) [ 47 ] To assess whether Mr.

Nahnybida’s manner of driving constituted a marked departure from the conduct expected of a reasonably prudent driver in the same circumstances, in light of the evidence that he fell asleep while driving, the trial judge posited these two fact-laden questions to the jury for their consideration: ... In light of all the relevant evidence, would a reasonable person, in the circumstances of Mitch Nahnybida, have foreseen the risk and taken steps to avoid the risk?

In other words, would a reasonable person who awoke at 10:30 AM -- 10:30 AM or 12 PM, having had five-and-a-half to seven hours of sleep, had visited friends that day at a number of locations, had consumed alcohol, had slept about 40 minutes at the kitchen table at a party, drove shortly after waking up, had driven at 1 AM or 1:30 AM on a highway, have foreseen the risk of falling asleep and taking steps to avoid it, if possible?

If a reasonable person would have foreseen the risk and taken steps to avoid it, was the accused’s failure to foresee the risk and take steps to avoid it, a marked departure from the standard of care expected of a reasonable person in Mitch Nahnybida’s circumstances?

In other words, was Mitch Nahnybida’s failure to foresee the risk and take steps to avoid it if possible a marked departure from the standard of care expected of a reasonable person in circumstances where Mitch Nahnybida had slept five-and-a-half to seven hours the night before the accident, visited friends all day in various locations, consumed alcohol, slept at a kitchen table at a party for about 40 minutes, drove shortly after waking up, and drove at about 1 AM or 1:30 AM on a highway? (T1602) [ 48 ] Similar instructions were given to the jurors with respect to their assessment of whether the accused’s failure to foresee risk and take steps to avoid it constituted a marked departure from the standard of care expected of a reasonable person (T1602). [ 49 ] The trial judge then reminded the jurors of some of the evidence that might be relevant to this issue in light of Mr.

Nahnybida’s momentary lapse defence. She reviewed the relevant evidence for them – including his testimony – and reminded them that if they believed Mr. Nahnybida or were unable to decide whom to believe, they were to return a not guilty verdict. The following instructions in relation to Mr. Nahnybida’s testimony were provided: If you believe Mitch Nahnybida that he did not operate a motor vehicle in a manner dangerous to the public, considering all the circumstances, you must find him not guilty of this offence.

If you are unable to decide who to believe regarding whether Mitch Nahnybida operated a motor vehicle in a manner dangerous so the public, considering all the circumstances, you must find Mitch Nahnybida not guilty of the offence. If you do not believe Mitch Nahnybida that he did not operate a motor vehicle in a manner dangerous to the public, considering all the circumstances, but his evidence leaves you with a reasonable doubt, you must find him not guilty of this offence.

If you do not believe Mitch Nahnybida that he did not operate a motor vehicle in a manner dangerous to the public, considering all the circumstances, and his evidence does not leave you with a reasonable doubt, then you must go on to determine, on the evidence you do accept, whether the Crown has proven beyond a reasonable doubt that Mitch Nahnybida operated the motor vehicle in a manner that was dangerous to the public. (T1603) Similar instructions were provided with respect to whether Mr. Nahnybida’s dangerous driving had caused the death of Mr.

Whitehawk (T1606–T1607). [ 50 ] In my view, taken as a whole, the jury charge properly incorporated the two-step approach set out in Roy to the mens rea analysis of this offence. I am satisfied the trial judge put Mr. Nahnybida’s “momentary lapse” argument squarely to the jury twice: first, in assessing whether his actions were voluntary (i.e., did he fall asleep without warning) and, second, in assessing whether his conduct constituted a marked departure. Based on the charge, I am satisfied the jury not only had the appropriate legal framework before them but were reminded of Mr.

Nahnybida’s testimony and his evidence that related to his momentary lapse defence. Consequently, depending on how the jurors viewed the evidence, it was open to them to conclude that Mr. Nahnybida’s conduct was both voluntary and a marked departure from the norm. This effectively addresses Mr. Nahnybida’s first argument. [ 51 ] The next argument posited by Mr. Nahnybida is that the jury’s verdict was unreasonable or cannot be supported by the evidence. As a starting point, Mr.

Nahnybida argues that the jury’s reliance on his alcohol consumption, short of impairment, was irrelevant to the dangerous driving charge and, furthermore, that by acquitting him on the impaired driving charge, his conviction for dangerous driving was inherently inconsistent. Mr. Nahnybida relies on his own explanation for what happened that night.

Since the Crown did not dispute his evidence about how the accident occurred, he argues that his alcohol consumption and speed were irrelevant considerations. [ 52 ] Much the same argument was advanced in R v McLennan , 2016 ONCA 732 , 343 CCC (3d) 39 [ McLennan ], where the accused had been acquitted of impaired driving but convicted by a jury of dangerous driving causing death. Relying on R v Brannan , 1999 BCCA 669 , 140 CCC (3d) 394 [ Brannan ], the appellant in that case had argued that the fact of his drinking – short of impairment – was legally irrelevant to the dangerous driving charge.

After canvassing the law in R v Settle , 2010 BCCA 426 , 261 CCC (3d) 45 [ Settle ], the Ontario Court of Appeal in McLennan was satisfied that Settle had overtaken Brannan such that evidence of an accused’s state of mind, including evidence of his or her voluntary consumption of alcohol prior to driving, is a factor relevant to the mens rea of

the dangerous driving offence. The court’s conclusion on this point is found at paragraph 23: The fact that a person voluntarily consumes some alcohol, albeit short of the point of impairment, is a factor – and only that – that can beconsidered in determining whether the necessary mens rea has been made out. It is an indication of a mindset, in my view, of awillingness to assume a degree of risk – a risk that the amount they have consumed will not rise to level where it impairs their ability tooperate a motor vehicle.

The offences of impaired driving and dangerous driving are directed at different risks. [53] McLennan is also directly on point for the proposition that impaired driving and dangerous driving offences address differentconduct and that an acquittal on the former but conviction on the latter are not inconsistent verdicts. Quoting from R v Ramage, 2010ONCA 488 at para 64, 257 CCC (3d) 261, the court in McLennan said: “Impaired driving looks to the driver’s ability to operate thevehicle, while dangerous driving looks to the manner in which the driver actually operated the vehicle”.

Thus, a trier of fact is notprecluded from relying on an accused’s consumption of alcohol for purposes of determining, objectively speaking, whether his or herdriving constitutes a marked departure from the standard of a reasonably prudent driver (Settle at para 58). [54] Although the authorities differ on whether excessive speed on its own can constitute dangerous driving, it is clear thatevidence of excessive speed is a relevant consideration to s. 249(4) (R v Richards (2003), (ON CA), 174 CCC (3d)154 (Ont CA); R v N.J., 2004 BCCA 98; R v Cowan, 2004 ABCA 397, 357 AR 218). [55] Respectfully, there was ample evidence upon which a jury could have convicted Mr.

Nahnybida of the dangerous drivingcharge. By his own admission, Mr. Nahnybida had consumed alcohol at the mud bog and several witnesses had testified that he appearedto be under the influence of alcohol. There was evidence Mr. Nahnybida was intoxicated when he arrived at the Whitehawk residenceand that he had consumed whiskey and beer while he was there. Various witnesses described Mr. Nahnybida as having glossy eyes,staggering and smelling of alcohol. Derek Cote warned Mr. Nahnybida not to drink and drive. Mr. Nahnybida ignored him. After hisshort nap at the Whitehawk residence, Mr.

Nahnybida had a groggy appearance, according to Mr. Pelly. Mr. Nahnybida fell asleep at thewheel not too long thereafter. Following the rollover, several witnesses observed Mr. Nahnybida to smell of alcohol, have glassy,bloodshot eyes, seem confused, move slowly and sway. [56] Police witnesses testified that the accident was caused by Mr. Nahnybida’s failure to keep his truck on the road,overcorrecting and then rolling in the ditch. Mr. Nahnybida’s vehicle traveled 43 metres in the south ditch before the wheels wereturned. There was no evidence the brakes were ever applied. According to expert opinion, Mr.

Nahnybida was driving somewherebetween 131 and 133 kilometres per hour at the time of the accident, which, the expert said, meant the vehicle was travelling 36.55metres per second. The vehicle was reportedly in good working order and the road conditions were good. [57] Mr.

Nahnybida argued both at trial and on appeal that, since he had testified about how he felt just prior to and during thedrive to Canora, the jury erred because, in the absence of evidence to the contrary, it was required to accept his version of events andassess the elements of the dangerous driving charge through the lens of his evidence alone. On this point, Mr. Nahnybida had testifiedthat he had no warning signs he would fall asleep. The drive was uneventful and the first time he had any warning whatsoever was whenhe hit the ditch.

He also testified that while he had consumed some alcohol at the mud bog event, he had nothing further to drink untilmuch later in the evening at the party, plus he had had a nap and felt refreshed. [58] Once again, it is difficult to assess the legal basis for this line of argument in view of the fact Mr. Nahnybida has not takenissue with the trial judge’s instructions to the jury. The jury charge instructed the jurors to take all of the evidence into account in dealingwith the fault element of the dangerous driving offence. [59] Mr. Nahnybida’s argument is also inconsistent with the law. Since Mr.

Nahnybida conceded the actus reus of the dangerousdriving offence, he must be taken to be arguing that the Crown had failed to establish the mens rea component because the jury did notassess his mental state from a subjective standpoint based on his explanation. [60] The Supreme Court in Beatty identified the inherent difficulty in establishing positive proof of an accused’s subjective state ofmind. To address this issue, and as discussed above, Beatty adopted a modified objective test.

To be satisfied the Crown has establishedthe mens rea of this offence, a trier of fact must be persuaded that, on the basis of the totality of the evidence, including evidence aboutthe accused’s actual state of mind, the accused’s conduct amounted to a marked departure from the standard of care expected of areasonable person in a similar circumstance. Where an accused offers an explanation “in order to convict the trier of fact must besatisfied that a reasonable person in similar circumstance ought to have been aware of the risk and danger involved in the conductmanifested by the accused” (Beatty at para 43).

Roy followed Beatty and reaffirmed the modified objective test (para 36). With regard toevidentiary challenges with establishing fault encompassed by the “marked departure” part of this analysis, Roy says it “will generally bea matter of drawing inferences from all of the circumstances” (at para 39, emphasis added), and that to draw an inference of fault, “thetrier of fact must examine all of the circumstances” (at para 40, emphasis added). [61] Given the case authority, there is simply no merit to Mr. Nahnybida’s argument. The jury was properly instructed to considerthe totality of the evidence – including Mr.

Nahnybida’s evidence. State of mind evidence in this case included evidence aboutMr.

Nahnybida’s voluntary consumption of alcohol and how it related to the risk of bringing on sleep, or, when considered with evidenceof his driving conduct, if it demonstrated “a ‘pattern’ of conduct that shows a disregard for the safety of others using the highway, whichin its totality may be sufficient to establish a marked departure from the standard of a reasonably prudent driver” (Settle at para 55). [62] Examining the evidence as a whole, I am satisfied that the jury was properly instructed on the law in relation to the elementsof this offence, had a sufficient evidentiary basis to support its finding of guilt and that the verdict was not unreasonable.

This ground ofappeal must therefore fail. 2. The aggravated refusal conviction: were the police officer’s “reasonable grounds to believe”objectively sustainable? [63] Mr. Nahnybida was charged with refusing to provide a breath sample when he knew or ought to have known that he had

caused an accident that resulted in the death of another person, contrary to s. 255(3.2) of the Criminal Code . The

section provides: Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle , vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in the death of another person , or in bodily harm to another person whose death ensues, is guilty of an indictable offence and liable to imprisonment for life. (Emphasis added) [ 64 ] Commission of an offence under s. 254(5) is an element of the s. 255(3.2) charge.

Under s. 254(5), it is an offence to fail or refuse to comply with a breath demand without a reasonable excuse. Three elements must be proven to secure a conviction under s. 254(5), that is: a lawful demand had been made, the accused had failed or refused to provide the required sample ( actus reus ), and the accused had intended to refuse ( mens rea ) ( R v Lewko , 2002 SKCA 121 , 169 CCC (3d) 359). [ 65 ] The only issue at trial was whether a lawful demand had been made and, more specifically, whether Constable Lisoway’s belief that Mr.

Nahnybida had been driving a motor vehicle while impaired by alcohol in the three-hour period prior to her demand was objectively sustainable. This appeal, therefore, calls for this Court to revisit the jurisprudence pertaining to the making of a lawful breath demand. a. The law [ 66 ] A breath demand may be made pursuant to s. 254(3): 254

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol , the peace officer may, by demand made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; and (

b) if necessary, to accompany the peace officer for that purpose. (Emphasis added) [ 67 ] An appellate court must show deference to findings of fact made by a trial judge, but a trial judge’s ultimate ruling as to whether a breath demand was reasonable is a question of law reviewable on a standard of correctness ( R v Wang , 2010 ONCA 435 at para 18 , 256 CCC (3d) 225 [ Wang ]; R v Usher , 2011 BCCA 271 at para 30 , 307 BCAC 80 [ Usher ]; R v Shepherd , 2009 SCC 35 at para 20 , [2009] 2 SCR 527 [ Shepherd ]).

Where a conviction appeal concerns a question of law, the standard of review is correctness ( R v Briltz , 2016 SKCA 2 , 472 Sask R 201).

The reasonableness of an officer’s belief must be assessed by reference to the totality of the circumstances and the situation in which it is formed ( Shepherd at para 22 ; Usher at para 31 ; R v Bush , 2010 ONCA 554 , 259 CCC (3d) 127 [ Bush ]). [ 68 ] For purposes of s. 254(3), a valid breath demand requires the officer to have “reasonable grounds to believe” the individual has, within the preceding three hours, driven a motor vehicle while impaired by alcohol or with a blood alcohol content in excess of .08.

Failure to meet this standard means the officer lacked legal authority to obtain the breath sample. [ 69 ] The Supreme Court in Shepherd held that the reasonable grounds test has both a subjective and objective component. A trial judge is entitled to take the officer’s training and experience into consideration in assessing whether the officer had reasonable and probable grounds ( Bush at para 61 ). Mr. Nahnybida takes issue with the inferences drawn by Constable Lisoway and whether the officer can rely on experience for that purpose.

As explained in R v Schofield , 2015 NSCA 5 , 319 CCC (3d) 570 [ Schofield ], a trained officer is entitled to draw inferences and make deductions drawing from that experience: [33] The question is – did the “totality of the circumstances” known to the officer at the time of the breath demand rationally support the officer’s belief? The officer may infer or deduce, draw on experience, and ascribe weights to factors.

Parliament expects the officer to do this on the roadside according to a statutory timeline, while informed by the available circumstances, but without either the benefit of trial processes to test the accuracy of his or her belief or “the luxury of judicial reflection”. The officer must identify the supporting circumstances at the voir dire . But the officer was not expected to apply the rules of evidence at the roadside. So the support may be based on hearsay. The supporting connection must be reasonable at the time, but need not be proven correct at the later voir dire that considers s. 254(3).

See also: R v Gunn , 2012 SKCA 80 at para 10 , 399 Sask R 170 [ Gunn ]; Bush at para 61 . [ 70 ] It has been repeatedly said that the legal test (reasonable grounds to believe) is not an overly onerous one ( Wang at para 17 ; Usher at para 31 ; R v Erickson , 2012 SKQB 234 , 398 Sask R 172) and must not be conflated with the context of testing trial evidence ( Bush at para 46 ).

The Crown does not have to demonstrate a prima facie case for conviction prior to making a breath demand ( Shepherd at para 23 ; Wang at para 17 ), prove its case beyond a reasonable doubt ( Gunn at para 15 ), or even meet the civil balance of probabilities standard ( R v Shinkewski , 2012 SKCA 63 at para 13 , 399 Sask R 11 [ Shinkewski ]). As this Court said in Gunn at para 7 , the “reasonable

grounds to believe” standard: … is one of lesser probability which simply requires the reviewing court to determine whether the factors articulated by the officer whomade the breath-demand were reliable and were capable of supporting the officer’s belief that the individual had driven while impairedor “over .08” within the preceding three hours. (Emphasis added) [71] A helpful

summary of the general legal principles typically associated with the “reasonable grounds to believe” standard isfound in Shinkewski: [13] The legal standard of “reasonable grounds to believe” has been the subject of considerable judicial

interpretation. I do notpropose to review it all; however, I make the following observations from the jurisprudence: (

a) an arresting officer must subjectively hold reasonable grounds to arrest and those grounds must be justifiable from an objective pointof view – in other words, a reasonable person placed in the position of the arresting officer must be able to conclude there were indeedreasonable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; (

b) an arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities (Mugesera v.Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100) or a prima facie case for conviction (R. v. Storrey)before making the arrest; but an arresting officer must act on something more than a “reasonable suspicion” or a hunch (R. v. Morelli,2010 SCC 8, [2010] 1 S.C.R. 253, at para 91; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.)); (

c) an arresting officer must consider all incriminating and exonerating information which the circumstances reasonably permit, but maydisregard information which the officer has reason to believe may be unreliable: R. v. Storrey; (

d) a reviewing court must view the evidence available to an arresting officer cumulatively, not in a piecemeal fashion: R. v. Savage,2011 SKCA 65, 371 Sask. R. 283; R. v. Nguyen, 2010 ABCA 146, 477 A.R. 395; and R. v. Storrey; and (e) “…the standard must be interpreted contextually, having regard to the circumstances in their entirety, including the timing involved,the events leading up to the arrest both immediate and over time, and the dynamics at play in the arrest”: R. v. Nguyen, at para. 18; and,context includes the experience and training of the arresting officer: R. v. Nolet, at para 48; R. v.

Whyte, 2011 ONCA 24, 266 C.C.C. (3d)5, at para 31; and R. v. Luong, 2010 BCCA 158, 286 B.C.A.C. 53, at para. 19. [72] On a more specific note, this appeal brings into focus whether the inference drawn by Constable Lisoway that Mr. Nahnybidahad been operating a motor vehicle while impaired by alcohol within three hours preceding her breath demand was objectivelysustainable given that she was unaware of the precise time of the rollover.

Several decisions have uniformly held that an officer is notrequired to know the precise time of an accident and that the officer’s belief need only be reasonable even if it is subsequently proven tobe incorrect. What is measured are the facts understood by the officer when the belief was formed. This point was effectively made bythe Alberta Court of Appeal in R v Musurichan, 1990 ABCA 170, 107 AR 102: [10] The important fact is not whether the peace officer’s belief, as a predicate of the demand, was accurate or not, it is whether itwas reasonable.

That it was drawn from hearsay, incomplete sources, or that it contains assumptions will not result in its legal rejectionby resort to facts which emerged later. What must be measured are the facts as understood by the peace officer when the belief wasformed. R. v. Hitchner (1989), 1989 ABCA 41 , 92 A.R. 395; R. v. Biron, (SCC), [1976] 2 S.C.R. 56 (S.C.C.).Leading Const.

Joseph to his belief was the understanding he held about the accident and the time it happened from exchanges heoverheard on the police radio frequency. (If he was not accurate in his assessment of that information it must be remembered that he wasnot involved in its investigation. Nor would he have had any reason to anticipate the hit and run driver surrendering himself). Heobserved Musurichan to have signs of moderate impairment.

As well Musurichan told him that he was the driver involved and that whilehe had taken moderate amounts of alcohol before the accident, he had taken nothing after it. (Emphasis added) See also: R v Black, 2011 ABCA 349 at para 42, [2012] 3 WWR 637; Schofield at para 28, citing Bush at para 66. [73] Evidence considered relevant to an assessment of the reasonableness of an officer’s belief may include the time of the dispatchcall, the officer’s knowledge of the area, the severity of the accident, the average amount of traffic on the road and the likelihood ofvehicles at the accident scene (R v Hitchner, 1989 ABCA 41, 92 AR 395 [Hitchner]; R v White, 2012 ABPC 290). b.

Mr. Nahnybida’s position [74] Mr. Nahnybida argues the trial judge fell into error in two respects. First, he says Constable Lisoway’s belief cannot stand upto scrutiny because she lacked subjective knowledge of when the rollover actually occurred, which makes her belief little more than ahunch. Within the context of this argument, Mr. Nahnybida points to Constable Lisoway’s failure to make inquiries or to explore thecircumstances of the rollover more thoroughly, even though it would have been prudent and easy for her to do.

He asserts that ConstableLisoway’s assessment of the situation should have taken into account that Mr. Nahnybida: (

i) experienced difficulty getting out of thevehicle; (ii) lost his cellphone and tried to search for it; and (iii) had tried to free Mr. Whitehawk from the vehicle. Mr. Nahnybidacriticizes Constable Lisoway for not probing how long these things took or for not asking him how many times he called 9-1-1 before hegot through to an operator. These bits of information were important, he argues, because they all had a bearing on time. [75] Second, Mr. Nahnybida challenges Constable Lisoway’s training and experience in relation to the slough and mud conditionsat the scene of the rollover.

All told, particularly the absence of any concrete, objective reference point from which she could have basedher assumption about the time of the rollover, Constable Lisoway’s subjective belief was no more than a “guestimate” of time based on a

hunch. Mr. Nahnybida relies on the following case law that has interpreted the “reasonable suspicion” standard: R v MacKenzie , 2013 SCC 50 , [2013] 3 SCR 250; R v Yeh , 2009 SKCA 112 , 337 Sask R 1; R v Rezansoff , 2013 SKQB 384 , 431 Sask R 299. He argues that, even in the context of this lower standard, Constable Lisoway’s hunches and intuition fell short. c. Application [ 76 ] Mr. Nahnybida’s first argument – that more investigation was required in order for Constable Lisoway’s subjective belief concerning the three-hour window to have been objectively sustainable – is inconsistent with the jurisprudence.

As explained in Bush , an officer is only required to assess the situation and competently conduct an investigation he or she feels appropriate to the situation to determine if reasonable and probable grounds exist to make a demand. To that end, the officer is entitled to rely on hearsay, incomplete sources or information that may even prove to be inaccurate or inadmissible at law.

This may entail interviewing the subject, if considered necessary, but that is up to the officer and is not a legal requirement ( Bush at para 67 ). [ 77 ] More to the point, the issue is not whether the officer could have undertaken a more thorough investigation, but whether the officer had reasonable grounds to make the demand he or she did in light of the totality of the evidence and circumstances known to the officer. As stated in Bush : [60] There is no minimum time period nor mandatory questioning that must occur before an officer can objectively have reasonable and probable grounds.

There is no requirement that a roadside sample be taken. The ASD provides evidence of the blood alcohol concentration in the suspect’s blood, not evidence of impairment. The trial judge correctly found that if the officer subjectively and objectively had reasonable and probable grounds that withstand judicial scrutiny, the failure to invoke the roadside screening provisions was irrelevant.

If the officer’s belief failed to meet the requisite standard, there was a s. 8 Charter violation. [ 78 ] As discussed above, the jurisprudence in relation to whether the breath demand was made within the preceding three hours has consistently examined if the factors articulated by the investigating officer were reliable and capable of supporting the officer’s belief (see for example R v McDonald , 2013 SKPC 132 , 426 Sask R 226; R v Van Essen , 2010 SKPC 134 , 360 Sask R 90; R v Sherstobitoff , 2013 SKPC 16 , 416 Sask R 30; Hitchner ; R v Kusch , 2016 SKQB 260 [ Kusch ]).

The proper focus for the trial judge in this case was to ask whether, based on the totality of the information available to Constable Lisoway at the time she formed her belief, coupled with her training and experience, her inference the rollover had occurred within three hours prior to the breath demand was objectively reasonable. An officer is entitled to draw a reasonable inference from the totality of the circumstances.

As stated by Goebel J. in Kusch : [24] As articulated in many cases, including the detailed decision of the Ontario Court of Appeal in Bush , whether reasonable and probable grounds exist is a fact-based exercise dependent upon the totality of the circumstances from the perspective of the investigating officer. An experienced officer coming upon the scene of an accident is entitled to take into consideration his experience and training in assessing whether he had reasonable and probable grounds.

In addition, the officer is entitled to rely upon hearsay, incomplete sources, or information that may later prove to have been inaccurate or which is determined to be inadmissible at law. What must be assessed are the facts as understood by the officer when the belief was formed and whether they were reasonable: Bush at paras 65 and 66 . See also: Gunn ; Bush . [ 79 ] Constable Lisoway was not required to accept every explanation offered by Mr.

Nahnybida ( Shepherd at para 23 ), nor does a detracting factor automatically rule out the presence of reasonable grounds ( Gunn ; Shinkewski ; R v Censoni (2001), 22 MVR (4th) 178 (Ont Sup Ct) ). To repeat, what must be assessed are the facts as understood by the police officer when the officer’s belief was formed ( Bush at para 66 ). [ 80 ] The trial judge found Constable Lisoway to be a credible witness and accepted her evidence. Her belief that the rollover had occurred within the preceding three hours was premised on the following factors: (

a) she received a phone call at 3:08 a.m. from Constable Rumbolt alerting her to an accident on Highway 5; (

b) she spoke with Constable Rumbolt again at 3:16 a.m., whom advised her that one of the passengers was trapped inside the vehicle, and when she asked him what time the call came in, Constable Rumbolt advised her it was at 2:29 a.m.; (

c) when she attended the hospital, Mr. Nahnybida told her about the mud intake, that he had tried to dig Mr. Whitehawk from the truck and that he had personally called 9-1-1 using Mr. Whitehawk’s cellphone; (

d) there was no indication from Mr. Nahnybida that he had lost consciousness or had problems making the call or that there was a long delay; (

e) based on her experience patrolling Highway 5, she generally encountered vehicles, consequently Constable Lisoway did not believe it would have taken over an hour before someone reported the accident; (

f) she was a four-year member of the RCMP who had been stationed at the Canora detachment the entire time; (

g) she had investigated ten to twenty single rollover accidents, of which five or six resulted in injuries and two occurred in the early morning hours; and (

h) based on her experience and training, serious accidents are generally reported within ten to fifteen minutes of the accident and that it was unlikely a person would wait one-and-a-half hours before seeking assistance for an individual who requires urgent medical care. [ 81 ] For the reasons given above, Mr. Nahnybida’s argument cannot succeed. As the jurisprudence makes clear, the trial judge was required to examine the reasonableness of Constable Lisoway’s belief based on the totality of the evidence. The trial judge did just that. Her assessment included the factors identified by Constable Lisoway and the reasonableness of the inferences drawn by her from

the known facts, training and experience. Mr. Nahnybida has not identified any case law that says otherwise or that requires the Crown to produce a concrete piece of evidence concerning the time of the accident in order to establish the reasonableness of Constable Lisoway’s conclusion about whether the accident occurred within a three-hour window. [ 82 ] The trial judge’s conclusion about the reasonableness of Constable Lisoway’s belief was undoubtedly reinforced by a key piece of direct evidence. Constable Lisoway knew the 9-1-1 call came in at 2:29 a.m.

Having formed her belief at 3:59 a.m., the sole issue for Constable Lisoway was whether she had reasonable grounds to believe the rollover had occurred sometime between 2:29 a.m. (the known time of the 9-1-1 call) and 12:59 a.m. (three hours preceding 3:59 a.m. when she formed her belief). On this point the trial judge said: Constable Lisoway arrived at her decision to make a breath demand at 3:59 AM. At 4:09 AM, she made that breath demand of the accused. This meant that Constable Lisoway would have concluded that the vehicle located in the ditch was last driven by the accused no later than 12:59 AM.

This further meant that a period of one-and-a-half hours could have elapsed between the rollover and prior to the 2:29 AM 9-1-1 call being made without the three-hour requirement in Section 254(3) being transgressed. (T491–T492) [ 83 ] It is clear Constable Lisoway’s knowledge of when the 9-1-1 call was made (2:29 a.m.) factored significantly into her assessment. While she did not know when the rollover actually occurred, she was not required to possess this exact knowledge.

Her belief that it likely occurred within 10–15 minutes prior to the time of the 9-1-1 call was based on logic, experience and reasonable inference. The law does not require her to be correct with this inference, only that it be reasonable. [ 84 ] The Crown makes the point, with which I agree, that Mr. Nahnybida’s arguments about why the accident may not have occurred within 10–15 minutes before the time of the 9-1-1 call still left a wide margin for error. As such, not only does it not undermine the reasonableness of Constable Lisoway’s inference, but serves to reinforce it. [ 85 ] Finally, Mr.

Nahnybida points to the speculative nature of Constable Lisoway’s belief reflected by the word “assumption” she had used at the preliminary inquiry in connection with the inference she had drawn that Mr. Nahnybida would have been driving within 15 minutes prior to the time of the 9-1-1 call. At the time of trial, Constable Lisoway clarified that, in her mind, she had formed an “opinion” about when the rollover occurred relative to the 9-1-1 call. [ 86 ] Mr. Nahnybida’s argument has no merit. Constable Lisoway carefully explained the basis for the inference she drew.

She was cross-examined on her observation; nonetheless, the trial judge found Constable Lisoway to be a credible witness and accepted her evidence. In any event, to the extent “assumption” was an ill-chosen word, it cannot be viewed in a piecemeal fashion or taken in isolation from the balance of Constable Lisoway’s testimony. Constable Lisoway carefully articulated her observations on the night in question that included the time of the 9-1-1 call, her experience with the highway in question, her investigative experience with vehicular accidents and the information Mr.

Nahnybida had conveyed to her about what transpired after the rollover. Taken as whole, it is clear her belief was not based on an uninformed hunch devoid of any foundation. [ 87 ] In my view, the facts articulated by Constable Lisoway were sufficient to objectively support her subjective belief that Mr. Nahnybida had been driving a motor vehicle while impaired or over the proscribed limit within three hours prior to the breath demand. I am satisfied the basis for Constable Lisoway’s belief was much more than a hunch. It was a reasonable inference drawn from known facts, training, and experience.

As such, I see no error on the part of the trial judge in determining that Constable Lisoway had reasonable grounds to make the breath demand. Accordingly, this ground of appeal must fail. B. Sentence appeals [ 88 ] Both the Crown and Mr. Nahnybida seek leave to appeal sentence on the dangerous driving and aggravated refusal convictions. Mr. Nahnybida also seeks leave to appeal the sentence imposed for driving while disqualified on the basis that it should have been made concurrent and not consecutive to the other sentences. 1.

The standard of appellate review from sentence [ 89 ] An appeal from sentence must be assessed with reference to the standard of appellate review articulated in R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089 [ Lacasse ].

Justice Wagner (as he then was), speaking for the majority, began his analysis by reiterating the individualized nature of sentencing and the importance of giving wide latitude to sentencing judges: “Since they have, inter alia , the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard” (at para 11).

Secondarily, he noted, the sentencing judge is familiar with the particular needs and circumstances of the community in which the crime was committed (para 48). [ 90 ] Lacasse reduced the standard of review and basis for appellate intervention to the following (at para 11): …except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit. 2. The sentence imposed for the dangerous driving conviction a.

The Crown’s appeal [ 91 ] To place the Crown’s argument in context, recall that the jury had acquitted Mr. Nahnybida on the impaired driving causing death charge, but convicted him of dangerous driving causing death. In imposing a 40-month incarceral sentence, the trial judge

reasoned that Mr. Nahnybida’s alcohol consumption could not be considered an aggravating factor on the dangerous driving convictionbecause of his acquittal on the impaired driving charge. [92] The Crown argues the trial judge misdirected herself on the issue of impairment both in the jury charge and in her subsequentSentencing Decision. Errors alleged in relation to the charge are said to include: (

i) not giving the jury the option of convicting Mr.Nahnybida on the included offence of impaired driving; (ii) not instructing the jury that they could consider that alcohol may exacerbatea pre-existing condition such as fatigue; (iii) instructing that falling asleep was an “alternate explanation to impairment”; and (iv)concluding alcohol consumption could not be considered in sentencing despite instructing the jury that it could be considered with regardto the dangerous driving charge.

These errors, the Crown argues, culminated in the trial judge’s decision to disregard evidence ofimpairment were errors in principle that had an impact on sentence. [93] With respect, and to be clear, the Crown has not appealed from the jury’s acquittal on the impaired driving charge and did nottake issue with the jury charge as given by the trial judge at the time of trial in relation to any of the alleged errors identified in thisappeal.

Whether an assessment of the jury charge for error in the context of a sentence appeal is appropriate need not be resolved sincethe Crown’s argument can be addressed by examining whether the trial judge properly applied s. 724(2) of the Criminal Code in light ofthe instructions that were given to the jury. [94] Where, as it was in this case, the guilty verdict is delivered by a jury, s. 724(2) of the Criminal Code provides direction to asentencing judge about how to determine facts for sentencing purposes. The

section provides: Jury724(2) Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either partywith respect to that fact. [95] Fact finding for sentencing purposes, particularly where a jury returns an acquittal on a more serious charge but convicts onanother charge, presents an obvious challenge for a sentencing judge because he or she cannot know what evidence the jury accepted orrejected.

In R v Ferguson, 2008 SCC 6, [2008] 1 SCR 96 [Ferguson], the controlling authority on s. 724(2), McLachlin C.J.C. explainedthe principles that should guide a sentencing judge where the court is composed of judge and jury: [17] Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and impliedfactual implications of the jury’s verdict”: R. v. Brown, (SCC), [1991] 2 S.C.R. 518, p. 523.

The sentencing judge “shallaccept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must notaccept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), (MB CA),95 C.C.C. (3d) 443 (Man. C.A.). [18] Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow thelogical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v.

Fiqia (1994),1994 ABCA 402 , 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosedby evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge mustbe convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencingjudge must be persuaded on a balance of probabilities: ss. 724(3)(

d) and 724(3)(e); see also R. v. Gardiner, (SCC),[1982] 2 S.C.R. 368; R. v. Lawrence (1987), (ON SC), 58 C.R. (3d) 71 (Ont. H.C.).

It follows from the purpose of theexercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand.The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues. (Emphasis added) See also: R v Dueck, 2011 SKCA 45 at para 75, 371 Sask R 134; R v Hazen, 2017 ONSC 5170, 19 MVR (7th) 137. [96] In the matter under appeal, the trial judge referred to the Ferguson principles.

In so doing, she acknowledged that she wasbound by the express and implied factual implications of the jury’s verdict and that she must accept as proven all facts express or impliedthat were essential to the jury’s verdict of guilt.

Conversely, she understood she could not accept any facts consistent with a verdict thathad been rejected by the jury and that she could come to her own independent determination of the relevant facts if the factualimplications of the jury’s verdict were ambiguous (Sentencing Decision at paras 6 and 19). [97] The trial judge then instructed herself that the jury’s acquittal on the impaired driving causing death charge meant that shecould not take into account for sentencing purposes the fact Mr. Nahnybida had consumed alcohol to the point where his ability tooperate a motor vehicle was impaired by alcohol.

Having regard to the dicta in R v Stellato, (SCC), [1994] 2 SCR 478,affirming (ON CA), 1993 ONCA 3375, 12 OR (3d) 90, she even found herself unable to conclude thatMr. Nahnybida’s ability to operate a motor vehicle had been even slightly impaired by alcohol. On this point, the trial judge said: [23] However, in accordance with Ferguson, the jury’s finding of not guilty with respect to impaired driving causing death meansthat I must not conclude that Mr. Nahnybida consumed alcohol to the point that his ability to operate a motor vehicle was impaired byalcohol.

Supreme Court jurisprudence has made clear that if the evidence establishes any degree of impairment ranging from slight togreat, the offence of impaired operation of a motor vehicle has been made out (see R v Stellato, (SCC), [1994] 2 SCR478 affirming (1993), (ON CA), 12 OR (3d) 90 (Ont CA)). Because Mr. Nahnybida was found not guilty of the chargeof impaired driving causing death, I cannot conclude that his ability to operate a motor vehicle was even slightly impaired by alcohol. (Emphasis added)

[ 98 ] Even so, the trial judge was satisfied beyond a reasonable doubt that Mr. Nahnybida had consumed alcohol but she found herself prohibited from considering this evidence as an aggravating factor: [24] Based on the evidence of civilian witnesses, RCMP witnesses and on Mr. Nahnybida’s own evidence, I am satisfied beyond a reasonable doubt that Mr. Nahnybida consumed alcohol prior to commencing the drive to Canora on August 19, 2013.

However, given the jury’s determination, I cannot conclude that alcohol consumption, in this instance, is an aggravating factor for sentencing purposes because to conclude that the alcohol consumption negatively affected Mr. Nahnybida’s driving would be akin to concluding that his ability to operate a motor vehicle was impaired by alcohol.

Ferguson prohibits that conclusion in light of the not guilty finding regarding the impaired driving offence. (Emphasis added) [ 99 ] The premise of the Crown’s argument is that, insofar as a jury does not provide reasons for its decision to acquit or to convict, and given the way the jury was instructed in this case, the circumstances should have left the trial judge with considerable uncertainty as to the factual basis for the jury’s verdict when it came time to imposing sentence.

How this argument plays out must be assessed in relation to both counts on the indictment. [ 100 ] Turning first to the impaired driving charge, the trial judge instructed the jury that, in order to find Mr. Nahnybida guilty, the Crown had to prove six elements of this offence beyond a reasonable doubt. Identity, time and place, and the fact Mr. Nahnybida was the operator of the motor vehicle were all admitted. The trial judge then told the jury they should have no difficulty finding that Mr. Nahnybida voluntarily consumed alcohol given his testimonial admissions.

That left only two contested elements: whether Mr. Nahnybida’s ability to operate a motor vehicle was impaired by alcohol and whether there was a causal link between Mr. Nahnybida’s impaired ability to operate a motor vehicle and Mr. Whitehawk’s death. From this instruction, it is obvious that Mr. Nahnybida’s alcohol consumption was directly relevant to at least two of the elements of this offence. [ 101 ] Mr. Nahnybida defended the impaired driving charge by disputing how much he had to drink and the effects alcohol consumption had on his ability to operate a motor vehicle.

He insisted that the rollover happened because he unexpectedly fell asleep. Throughout his defence to the charge, Mr. Nahnybida squarely put impairment in issue in addition to challenging whether the Crown had established a causal link between his alcohol consumption and Mr. Whitehawk’s death. [ 102 ] With regard to the causation issue, the trial judge had instructed the jury that falling asleep at the wheel of a motor vehicle was an alternate explanation to impairment: ...

Therefore, if there is any evidence that provides another explanation for why the accident occurred, such as Mitch Nahnybida falling asleep, and that evidence raises a reasonable doubt in your mind that Mitch Nahnybida’s impaired ability to operate a motor vehicle was a significant contributing cause of the accident, and you must find Mitch Nahnybida not guilty of

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