nan Note: This decision has been appealed. INFORMATION 43261743 DATE: 1999 IN THE PROVINCIAL COURT FOR SASKATCHEWAN SASKATOON, SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN and THOMAS ALEXANDER SPARK M. J. Matchett For the Crown R. J. Smith For the Accused JUDGMENT RENDERED ON July 27, 2000 S.P. WHELAN, PCJ CHARGES [1] Thomas Alexander Spark is charged with 3 counts in relation to one incident occurring March 20, 1999 at Saskatoon, Saskatchewan: impaired driving contrary to sections 255(1) and 253(a), over .08 contrary to sections 253(b) and 255(1) and driving while disqualified contrary so section 259(4), all of the Criminal Code of Canada. 1. Has the Crown proven beyond reasonable doubt the identity of the operator of the vehicle? 2. Has the Crown proven beyond reasonable doubt the time of the accident, entitling reliance upon the presumption provided for in section 258.(1)(c)? 3. If the answer to b. is no, has the Crown proven beyond reasonable doubt the charge of impaired driving? 4. Has there been breach of fundamental justice by virtue of the discussion of the police witnesses with civilian witnesses during the trial? [2] The answers to the issues posed: Yes. The Crown has met the necessary burden of proof with respect to the issue of identity. No. The Crown has not proven the time of the accident and may not rely on the Certificate of Analyses. Yes. The Crown has proven beyond a reasonable doubt that the Accused’s driving was impaired by alcohol having regard to the test in R. v. Stellato. No. There has not been a breach of fundamental justice. In any event stay is not an appropriate remedy. [3] The Accused is acquitted of count in the Information. find him guilty and conviction will be entered for counts and 3; driving while impaired and driving while disqualified. [4] This incident involves motor vehicle collision. The Accused’s vehicle, ton truck, rear ended 1995 red Pontiac Sunfire while it was stopped at red light at the controlled intersection where College Drive intersects Circle Drive in Saskatoon, Saskatchewan. The Sunfire was badly damaged and the driver was injured, requiring transport to the hospital by ambulance. She sustained pretty serious injury to her back and since January has been dividing her days between rehabilitation and work. [5] The Sunfire was south bound on Circle Dr., as was the Accused’ vehicle. The posted driving speed was 80 km/hr. There were lanes on Circle Drive on the north side of the intersection: two left hand turning lanes, two straight through lanes and one right turning lane. It was controlled intersection. Advance yellow warning lights indicated to the Sunfire’s driver that she would have to stop at the intersection and she slowed as she approached it. She came to stop in the lane closest to the left turning lane. There was no vehicle stopped in front of the Sunfire. The driver of the Sunfire said that as the light was still red she turned her attention to her radio, adjusting the dial. She saw taxi cab approach on her right, heading west toward the University and saw it slow down for left turn south on Circle. She saw the cab come to stop as its light turned from yellow to red. She looked in her rear view mirror and saw head lights coming very quickly directly behind her and then her vehicle was hit. In the time that she saw the head lights she had taken her foot off the clutch and put her gear shift in neutral. She had not yet put her foot on the gas and had not caused her vehicle to move forward before she was struck. [6] She estimated the time of the accident at around 1:30 a.m. She had just dropped off friend on Turtle Crescent at about 1:15 or 1:20 a.m. [7] She recalled looking out her driver’s window and seeing truck drive past her. She saw the driver look out at her through his passenger window and then pull away moving south bound on Circle Dr. At this point she would not have been able to identify the driver. She was only able to say that he had dark hair and wore dark jacket. The face was blurry. She saw only one occupant in the truck. [8] She then saw the cab driver pull forward and saw the truck stop at the far southeast side of the intersection. She was able to describe the truck as; not new, boxier, looking like ton. The cab driver came over. She asked him to call 911 and then her parents. [9] Next she says she saw the driver of the truck run from the driver’s side of the truck toward her. She thought by his running which was not in straight line, that he must be drunk. The cab driver said something to him and then the truck driver came in her direction. He approached her and asked if she was OK and why she didn’t start to move. She recalls telling him that the light was red. He said something to the effect that she shouldn’t worry, that it probably wouldn’t be her fault. During the conversation she smelled lot of “booze” and noted that the speech was slightly slurred. She specifically recalled that it was the truck driver who smelled of booze and who’s speech was slurred. She identified the Defendant as the driver of the truck. [10] She also recalled there being another man, named Rick. She was uncomfortable with his being so close and she told him to move away from her vehicle. While both men were there the man named Rick told the truck driver to stay away from her. She recalled that while the conversation was very brief, perhaps 15 seconds, her contact with the truck driver was for to minutes. [11] She estimated that it took about 45 minutes at most after the accident for the police to arrive but that it could have been 15 minutes. During the wait she recalls seeing the Accused waiting in the vicinity of her car but she lost sight of him pretty quickly after their conversation concluded. She estimated that she saw the Accused for up to minutes in total and during some of this time he was within or feet of her. [12] cab driver witnessed the accident while stopped at the intersection of College and Circle. As he approached eastbound on Circle his light turned yellow and he slowed. He observed that the Sunfire was stopped at red light facing south on College. As his light turned red he observed the Defendant’s vehicle collide with the Sunfire from behind. The Sunfire was pushed with the impact into the westbound lane in the intersection. [13] The cab driver described the Defendant’s vehicle as one ton flat deck truck. After the collision the truck went left around the Sunfire across the intersection to the farthest southeast corner of the intersection where it stopped. Before it stopped however the cab driver was apprehensive that the Defendant would not remain at the scene so he drove his cab toward the truck so as to block any escape. He called his dispatch and asked for an ambulance and police, saying that it was serious accident. He said he called the dispatch before leaving his cab and attending at the Sunfire. [14] The cab driver was estimated that the accident occurred between 1:30 and 2:30 a.m. Officer Bain said that at the scene the cab driver told him that it occurred between 1:40 and 1:50 a.m. The latter estimate is incorrect. [15] As the Defendant’s vehicle drove past the cab, he saw one person in the cab of the truck, the driver. At that time he was not able to make out the face. He saw the Defendant walk from the truck to the Sunfire. While he didn’t see him get out of the truck within one to five minutes after the accident he saw the Defendant about 15 feet from the truck and saw no one else around. [16] The cab driver observed later that the Defendant was unable to stand without leaning on vehicles. He was close as three feet from the Defendant at one point. He noted that the Defendant’s eyes looked like they were “rolling in oil” and he concluded that he was not sober due to either drugs or alcohol. He pointed the Defendent out to one of the officers at the scene, indicating that he was the driver of the truck. [17] Officer Pollmann received advice about the accident from dispatch advising that it was called into dispatch between 1:35 and 1:40 a.m. He said that he was not advised that someone was injured and so the call was not treated as high priority. He was unable to say when he received the dispatch but estimated that it was about hour from the time they received the call until they arrived at the scene. He explained that there can be delay between receipt of the call by dispatch and relaying it to the officers on patrol. They arrived at the scene at 2:12 a.m. [18] He described the Defendant’s vehicle as 1974 ford pick up with machinery on the back. He said that the Sunfire had extensive damage. While the Defendant was pointed out to him on arrival, he didn’t speak to him for some time. The first priority for he and his partner was to see to the driver of the Sunfire and clear the accident scene. The Defendant was asked to take seat in the police vehicle and was first spoken to shortly before 3:00 a.m. As he spoke to the Defendant Officer Pollmann noted what would describe as confusion. The Defendant repeatedly asked about his truck despite the fact that he had the card for the tow truck driver in his hand. The Officer said that the conversation just didn’t sink in with the Defendant. He detected smell of alcohol coming from his breath. He noted that his speech was slurred and that he had blood shot eyes. He formed the opinion that he was impaired by alcohol such that he should not be driving. [19] The Defendant produced an Alberta driver’s licence and as he was Saskatchewan resident the Officer determined from CPIC check that he was prohibited from driving in Saskatchewan. [20] The demand for breath sample was made at 2:48 and at 2:50 he was read his rights and the police warning. He said he understood. He asked for and spoke with lawyer before giving samples at the police station. [21] Officer Pollman was cross examined about his discussion with the two civilian witnesses on the break before he testified. He knew that he was not to discuss the evidence with the witnesses during the trial. He and Officer Bain had been sitting outside the courtroom, awaiting their turn to testify. His attention was drawn to the inside of the courtroom when he heard the raised voice of the cab driver and he looked in the window at the back of the courtroom briefly. During the break he and Officer Bain gathered with the two civilian witnesses and another outside the court house where some of them had cigarette. Officer Pollmann asked the cab driver why he became upset during his testimony. He was told that it was when he was questioned about the width of the boulevard in the intersection. Officer Pollmann said the conversation was not specific about distances and that it lasted less than minute and ending when Defence Counsel, who came upon the conversation outside the building, confronted them about discussing the evidence. [22] Officer Bain testified that they received the dispatch at about 2:05 a.m. The cab driver pointed out the Defendant as the driver of the truck. He said that the cab driver estimated that time of the accident to be 1:45 to 1:50 a.m. He passed on this and other information from the cab driver to his partner, Officer Pollmann. He did not deal directly with the Defendant but observed that he was unsteady on his feet. He saw him leaning on fender of vehicle and noted an apparent smell of alcohol on his person when he was in the police vehicle. Tthe Defendant’s speech was slurred. He concluded that the Defendant was drunk. He observed about 50 to 60 feet of skid marks leading up to the collision area at the rear of the Sunfire. [23] Officer Bain said that he didn’t hear any of the testimony from outside the court room. He asked the driver of the Sunfire about her general well being as result of the accident but he didn’t ask about her testimony. He described the discussion that took place on the break. He asked the cab driver why he got so excited on the stand and was told him it was about questions in relation to the width of the boulevard. He didn’t understand the comment so he asked another question for clarification. At that point Defence Counsel interrupted the conversation. Office Pollmann expressed regret for his conduct, describing it as huge blunder. He said he forgot his position. [24] The Defendant testified. He said that he wasn’t driving that night. He had made arrangements for guy, named Rick, to drive his truck home that night. When Rick didn’t show he went for beer. This was around 6:30 p.m. He stayed at the bar drinking until around 1:00 a.m., he said, when man he’d never met before offered to drive him home in return for getting ride over to the east side of the city. He said that at the bar he drank no more than or beer. He said that he was sleeping at the time of the accident and woke just as it occurred. He went on to explain that after the vehicle was stopped he sent this man over to gas station to call for help. He then stayed at the scene. He never heard from or saw this man again. He had been unable to locate either Rick or this man to testify at trial. [25] Some preliminary remarks may be made regarding my general assessment of the evidence. In assessing the evidence of the Crown witnesses found some inconsistencies that were insignificant or explainable. For instance there was uncertainty about the location of the Sunfire in relation to the two straight through lanes. This was not material fact. have been able to sort through any inconsistencies to find reliable and credible testimony that accept beyond reasonable doubt. In this process have reminded myself of the Supreme Court of Canada decision of R. v. W.( D.) 1991 CanLII 93 (SCC), [1991] S.C.R. 742 and the test for reliability and credibility in relation to the burden of proof. [26] found the evidence of the driver of the Sunfire to be most reliable. She was careful with her statements and there was the kind of detail in her testimony that gave it credibility. While she was likely in shock immediately after the accident, have taken this into account and have found her testimony to be reliable. [27] There is further inconsistency between the testimony of the cab driver and the driver of the Sunfire, but it is explainable and does not affect the reliability of either insofar as the material findings of fact. The driver of the Sunfire recalled conversation with man named Rick, and the Defendant. The cab driver is adamant that no one spoke to her while he was there however he did leave her once, possibly twice, first when he may have left her to initially call in the accident and later when he testified to returning to his cab to ask about the delay in the arrival of the police and ambulance. The cab driver said that he only left the driver of the Sunfire once, while she recollects that he left twice to make these calls to his dispatch. The cab driver said that he called in the accident as he was backing his car up to block the possible escape of the Defendant’s vehicle. find that it was during this time that the conversations she described took place. In any even, find that the cab driver called in the accident within minutes. We have no knowledge however of how soon the cab company dispatch called the police dispatch. [28] The cab driver failed to understand the difference, until it was pointed out to him, between actually observing something and assuming something. This was evident in his testimony about the lights at the intersection. Having said that found his testimony to be credible and in important respects reliable. He also had difficulty with describing the width of an intersection. He is however an experienced driver and this did not detract from my overall acceptance of his testimony concerning more material facts. Where there are inconsistencies or differences between the testimony of the driver of the Sunfire and the cab driver, accept the testimony of the driver of the Sunfire. [29] Where there are inconsistencies between the Crown and the Defence witnesses, I accept the evidence of the Crown witnesses over that of the Defendant. found the Defendant’s testimony to be fabricated and unreliable. This was most apparent to me because of his insistence that there were was another person in the cab of his truck who he says was driving. The evidence of the driver of the Sunfire and the cab driver refutes this totally. Apart from that found his testimony that he would allow stranger to drive his vehicle and then fall asleep enroute to his destination to be very questionable. It is even more questionable that he would then give the person responsible for the accident an opportunity to flee by sending him some five blocks away to call for help. [30] The discussion between the two testifying police officers and the driver of the Sunfire and the cab driver did not affect my findings. The conversation was apparently about why the cab driver got excited on the stand and the question he was being asked at the time. It was about the width of the boulevard and intersection. This may’ve relevant to finding that the Defendant was considering fleeing the intersection. am unable to say that there is sufficient evidence on this point to reach any conclusion. While the cab driver thought he was trying to flee, find no evidence to support this. a. Has the Crown proven beyond reasonable doubt the identity of the operator of the vehicle? [31] accept the evidence of the two Crown civilian witnesses that the Defendant was the driver. They stated and accept there was only one person in the cab of the truck. reject the evidence of the Defendant when he says that there were two and that someone else was driving. The driver of the Sunfire says that she saw the Defendant get out of the truck and come over to her vehicle. The cab driver says he saw the Defendant come from within 15 feet of the truck when there was no one else around. The Defendant has testified that he was the owner of the truck and an occupant of the truck at the time of the accident. I find beyond a reasonable doubt that the Crown has proven that the Defendant was the operator of the vehicle when the collision occurred and at all material times. [32] In light of this, the Crown having filed a Certificate of Disqualification or Prohibition, I find the Defendant guilty of count 3 in the Information. b. Has the Crown proven beyond reasonable doubt the time of the accident, entitling reliance upon the presumption provided for in section 258.(1)(c)? [33] Section 258(1)(c)of the Criminal Code states in part: 158.(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3), nan (c) where samples of the breath of the accused have been taken pursuant to demand made under subsection 254(3), if (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, nan evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses; [34] The driver of the Sunfire estimated the time of the accident to be 1:30 a.m. She said that she dropped friend off, between 1:15 and 1:20 a.m. She then drove from Turtle Crescent to Warman to Circle Drive to reach the intersection of College Drive where the collision occurred. She was not asked how she arrived at her estimate of the friend’s drop off. She was not asked how long it took to drive from Turtle Crescent to College. She also said that it was between 30 and 45 minutes, with maximum of 45 minutes from the time of the collision until the time the police arrived. The police officers indicate arrival at 2:12 a.m. There was no evidence as to how she arrived at the estimate of 45 minutes. [35] In order for the Crown to rely on the presumption in s. 258.(1)(c) the accident must have occurred no earlier than 1:19 a.m. as the first sample was taken at 3:18 a.m. If the driver of the Sunfire was wrong in her estimate by only 12 minutes the Crown would be out of time. There is uncertainty concerning the precise time of the accident. The police were operating under very tight time lines in order to meet the requirements permitting reliance on the presumption. There has been no expert testimony which would provide evidence in relation to the Certificate of Analyses and the reading at the time of the accident. [36] As I am unable to conclude beyond a reasonable doubt that the first sample was obtained within two hours of the accident, I find the Defendant not guilty of count 2 in the Information. 3. If the answer to b. is no, has the Crown proven beyond reasonable doubt the charge of impaired driving? [37] The leading decision is R. v. Stellato 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), affirmed by the Supreme Court of Canada, 1994 CanLII 94 (SCC), 90 C.C.C. (3d) 160. At page 384 Labrosse J. of the Ontario Court of Appeal stated: “In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond reasonable doubt before conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate motor vehicle was impaired by alcohol or drug. If the evidence of impairment is so frail as to leave the trial judge with reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.” [38] The Defendant displayed signs of impairment which were observed by number of persons. To enumerate: he was unsteady on his feet and leaned on vehicle to support himself, he had alcohol on his breath, he didn’t follow conversation or make sense in his comments, calling for repetition, he slurred his speech and his eyes were blood shot. In addition his driving showed poor judgment. He apparently failed to heed yellow warning light which preceded the controlled intersection. He collided with vehicle that had been stopped at red light and failed to apply the brakes until it was too late to avoid collision. He caused substantial damage to the stopped vehicle which is some indication of the delay or slowness in his decision before appreciating the need to brake to avoid collision. The skid marks before the collision were about 50 to 60 feet long. [39] I find, having considered the test in R. v. Stellato, supra, that I have no doubt whatsoever that the Defendant’s ability to operate a motor vehicle was impaired by alcohol. Accordingly, find the Defendant guilty of count in the Information. 4. Has there been breach of fundamental justice by virtue of the discussion of the police witnesses with civilian witnesses during the trial? [40] At the outset of the trial, the Defence was asked if it had any applications to make. The Crown indicated that all witnesses had been excluded from the courtroom. No application to exclude witnesses was made and no such order was given. [41] In R. v. Leitner 1998 CanLII 13871 (SK QB), [1998] S.J. No. 735 (Q.B.), Justice Dawson sat on an appeal from decision in which mistrial and an order for new trial was granted. Crown witness violated an exclusion order, returning to the courtroom following his testimony on voir dire and before his recall to give the balance of his evidence at the trial. The real issue on the appeal was whether there should be new trial, the Court, found that there is no appeal from the decision to grant mistrial in these circumstances. The Defence argued that new trial would amount to an abuse of process. [42] Justice Dawson relied upon, as do I, the Supreme Court of Canada decision of Dobberthien v. The Queen (1974), 1974 CanLII 184 (SCC), 18 C.C.C. (2d) 449 as authority for the principle that when witness remains in the court room after an exclusion order and then testifies, the trial judge may consider this in deciding the weight to be given to the evidence of that witness. This principle is equally applicable to the case at hand where witnesses who had yet to testify discussed the evidence with other witnesses after their testimony. [43] am disappointed that the Officers acted as they did, but am also satisfied that there was no bad purpose and that the officers simply let their curiosity get the better of them; as one Officer stated, he “forgot his position”. [44] Defence Counsel has argued that the behaviour of the Officers is so reprehensible that it must be denounced regardless of the effect on the testimony at trial. In short he has argued that there is an appearance of unfairness about the trial process that should compel me to enter a stay of proceedings. I do not agree. I’m of the view that there must be a manifest unfairness in the trial process as a result of the impugned behavior in order for me to find that there has been a breach of fundamental justice. In these circumstances, the impugned conduct affects only the weight to be given to the evidence of the Officers. The conversation complained of was not material to the outcome of the trial or the charges before me. found no bad intent on the part of the officers nor did find tailoring of the evidence as consequence of the discussion. [45] Had found that there was breach of fundamental justice would nonetheless have found that stay was not appropriate. After Defence Counsel came upon this conversation, it was reported to the Court and the trial was adjourned to permit full disclosure of the impugned conversation and an opportunity for Counsel to prepare in light of the development. The Officers had not testified and they were vigorously and effectively cross examined by Defence Counsel on the adjourned date. stay is to be entered in the clearest of cases and when no other remedy will do. I am able to assess the weight to be given to the Officers evidence notwithstanding the conduct complained of. The right of the Defendant to a fair trial has not been prejudiced by the introduction of this evidence in these circumstances. [46] The Charter Application for a stay of proceedings alleging a breach of fundamental justice is denied. [47] For these reasons, have made the findings and reached the conclusions as hereinbefore stated under the heading, OUTCOME. Dated at Saskatoon, Saskatchewan, this 27th day of July 2000. S. P. Whelan
Accused charged with impaired driving, being over.08 and driving while disqualified. The charges arose out of an incident where he rear-ended car stopped in front of him at red light. The accident victim estimated the time of the accident to be around 1:30 a.m. After the accident, the victim, witnesses and attending police officers noticed that the accused displayed signs of intoxication. The police arrived at the scene at 2:12 a.m. The accused was seated in the police car and was first spoken to shortly before 3:00 a.m. The officer determined through CPIC that the accused was prohibited from driving in Saskatchewan. The demand for breath sample was made at 2:48 a.m. At 2:50 a.m. he was given his rights and he spoke to lawyer prior to providing sample. HELD: The evidence of the crown witnesses was accepted over that of the defendant. The Court found beyond a reasonable doubt that the defendant was the operator of the vehicle when the collision occurred and therefore the accused was found guilty of driving while disqualified. The crown was not able to prove beyond a reasonable doubt the time of the accident and, therefore, is not entitled to rely upon the presumption provided in s.258(1) of the Code. The Court was not able to conclude that the first sample was taken within 2 hours of the incident. On the charge of impaired driving, the Court had no doubt that the accused's ability to operate a motor vehicle was impaired by alcohol. The Court also held that there was no breach of fundamental justice by virtue of the discussion of the police witnesses with the civilian witnesses during the trial. When witness remains in the courtroom after an exclusion order and then testifies, the trial judge may consider this in deciding the weight to be given to the evidence of that witness. This principle is equally applicable to the case at hand where witnesses who had yet to testify discussed the evidence with other witnesses after their testimony. The Court rejected the defence argument that there was an appearance of unfairness about the trial process that requires that a stay of proceedings to be entered. The Court held that there must be manifest unfairness in the trial process as a result of the impugned behaviour in order to find a breach of fundamental justice. Here the impugned conduct only affects the weight to be given to the evidence of the police officers. The conversation complained of took place outside of the courtroom at trial and was not material to the outcome of the trial or the charges. There was no tailoring of the evidence as consequence of the discussion. Even if the Court had found breach of fundamental justice, stay would not be appropriate. After the conversation was discovered, it was reported to the Court and the trial was adjourned to permit full disclosure of the impugned conversation and to give counsel an opportunity to prepare in light of the development. stay is to be entered only in the clearest of cases. Here the right of the defendant to a fair trial has not been prejudiced by the introduction of evidence as the Court was able to assess the weight to be given to the officers' evidence. The Charter application for a stay of proceedings alleging a breach of fundamental justice is denied.