LANE J.A. INFORMATION 36870442 2006 SKPC 02 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT SASKATOON BETWEEN: HER MAJESTY THE QUEEN AND DEREK J. MADIGAN V. Adamko for the Crown J. Fairbrother for the Accused January 10, 2006 D.A. LAVOIE, PCJ JUDGMENT [1] The accused stands charged as follows:1) on or about the 23rd day of January, A.D. 2004 at or near Saskatoon, Saskatchewan did while his ability to operate a motor vehicle was impaired by alcohol or a drug have the care or control of a motor vehicle contrary to section 255(1) and section 253(a) of the Criminal Code. 2) on or about the 23rd day of January, A.D. 2004 at or near Saskatoon, Saskatchewan did having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood have care or control of a motor vehicle contrary to section 253(b) of the Criminal Code. [2] The trial of this matter evolved over an extended period of time. The Crown called all its evidence on the first date and the matter was adjourned over two lengthy adjournments, at the request of defence, for the purpose of canvassing the possibility of calling an expert in relation to the neurological condition of the accused. Defence eventually called no evidence and the matter proceeded to closing arguments. [3] Defence raised number of issues which are summarized as follows: 1) Since the vehicle was inoperable as result of an accident, with no risk of setting it in motion, does the evidence prove it was vehicle as contemplated by the Criminal Code for the purposes of care and control set forth in the above enumerated charges? 2) Did the police officer have reasonable and probable grounds for making blood sample demand pursuant to s. 254(3)(b) of the Code? 3) Was the demand pursuant to s. 254(3) made “forthwith or as soon as practicable” as contemplated by the Criminal Code? 4) Were the accused’s s. 10(b) Charter rights to counsel infringed? 5) If any of the above issues are determined in favour of the accused, should the court grant the remedy of exclusion of the Certificate of Analysis as requested by the defence? [4] The following is summary of the evidence forthcoming from the witnesses. [5] At about a.m. on January 23, 2004, while driving home, D.R. came across vehicle facing north in the west ditch of Boychuk Drive and Briarwood Road in the City of Saskatoon. D.R. immediately called 911 emergency line on his cell phone and walked to the vehicle that had considerable damage to it. The accused was the lone occupant, seated in the driver’s seat, with his seat belt on. The headlights of the vehicle were on and D.R. couldn’t open the driver’s door. Since there was fresh snowfall, the only tracks D.R. noticed were one set of skid marks from the south traveling north on the roadway and leading to the accused’s vehicle, plus his own footprints. D.R. felt the accused was at first unconscious, but regained consciousness. The accused cursed at D.R., told D.R. to get out of his car and then turned the ignition key in an attempt to start the engine of the vehicle. The ambulance personnel arrived at the scene within couple of minutes of D.R. making the 911 call. [6] R.W., paramedic with M.D. Ambulance with at least 13 years’ experience, testified to receiving dispatch call at 3:12 a.m. and arriving at the scene at approximately 3:17 a.m. He observed the accused had an abrasion to the left side of his head and complained of pain to his head and neck. The attendant immediately went into dealing with possible spinal injury and immobilized the accused, eventually putting him on backboard for immediate transport to Royal University Hospital. [7] R.W. also noticed the accused’s speech was slurred, he appeared quite confused, his breath smelled of alcohol and he admitted to having consumed alcohol. R.W. stated, transcript p. 31, lines 3: “...his actions and his speech indicated to me that he was intoxicated.” As result, R.W. conveyed his concerns of alcohol consumption and possible intoxication to Officer Kiesman of the Saskatoon Police Service, who had arrived on the scene. [8] They were at the scene approximately 21 minutes and left for the hospital at 3:38 a.m. Upon being asked “And your assessment was that this person needed to be taken to the hospital?”, paramedic R.W. answered “Yes, absolutely.” [9] Officer A. Kiesman testified to receiving dispatch call at approximately 3:11 a.m. and arrived at the scene at 3:21 a.m. He observed what appeared to be single motor vehicle accident. The accused’s vehicle was significantly damaged, appearing to have struck and destroyed light standard. Upon being asked if the vehicle was running or operable, he answered “...the vehicle definitely was not operable, just due to ...due to the damage that had sustained on the driver’s rear half of the vehicle. The rest of the vehicle seemed to be in decent shape.” [10] Of significance is that Officer Kiesman had known paramedic R.W. for some 10 years as he himself had been an Emergency Medical Technician for four years prior to becoming police officer. He had ridden with paramedic R.W. and had some experience in dealing with trauma victims at motor vehicle accidents. [11] He immediately spoke to paramedic R.W. who advised him “...the person that was occupying the driver’s seat of the vehicle was extremely intoxicated at that time.” He went to the driver’s door, saw the accused in the driver’s seat, observed he was very lethargic and there was very strong odour of beverage alcohol emitting from the vehicle. He watched the emergency personnel extricate the accused from the vehicle and put him on spine board. He also noticed the accused had the car keys in his hand. [12] Officer Kiesman then remained with the accused and observed the following further signs of impairment in the ambulance on the way to the hospital: 1) the accused had very glassy eyes; 2) he was very disoriented and was speaking in very slurred tone; 3) there was strong smell of alcohol from his breath; 4) Officer Kiesman was dressed in police uniform, yet the accused asked him twice who he was. [13] When the ambulance attendants stated to him that he was driving vehicle, he denied driving vehicle. In addition, he stated he had been at staff party at Shock Waves Nightclub. [14] At the hospital he was taken to separate trauma room, remained totally immobilized on spine board, and was attended to by number of physicians. They arrived at the hospital at approximately 3:52 a.m. and at approximately 4:03 a.m. Officer Kiesman came to the following conclusions: 1) that based on the fresh tracks in the snow and the accused still in the driver’s seat, the accident had occurred no more than 10 to 15 minutes before his dispatch call of 3:11 a.m.; 2) that based on the accident scene, information received and his observations of the accused, he believed he had reasonable and probable grounds to make demand on the accused; 3) that based on the accused’s condition of being immobilized and “not in any condition to provide any breath samples at this point in time,” and in consultation with Officer Baillargeon, that he should make blood sample demand rather than breath demand.” [15] At 4:03 a.m. he advised the accused he was being charged and read him his rights to counsel and warning from prescribed card. The accused indicated he understood and wanted to speak to lawyer. He then, reading from card, made blood sample demand pursuant to s. 254(3)(b) of the Code. Officer Baillargeon also asked him if he understood the blood sample demand, to which he replied yes. [16] At 4:12 a.m. Officer Kiesman phoned the accused’s mother to get the name and phone number of lawyer. However, that number resulted in contacting an answering service. The officer re-contacted the mother to get second lawyer’s name and phone number. At 4:23 a.m. the phone was given to the accused and he spoke to lawyer in private until 4:30 a.m. The accused did not ask for any further contact with lawyer. At approximately 4:31 a.m. physician took two samples of blood from the accused. The police officers left the hospital at 4:40 a.m. with the understanding the accused was being held for observation. The Law and Analysis Care and control of an inoperable vehicle [17] It is clear from the evidence that the accused’s vehicle was inoperable and immovable due to the damage from the accident and its location in the ditch. From this fact, defence raised the narrow but important issue to be decided as to whether person can be in the “care or control of motor vehicle” when there is no risk that the vehicle in question can be put in motion so that it can become dangerous to the public. S. 258(1)(a) establishes presumption of “care and control” as follows: 258. (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), (a) where it is proved that the accused occupied the seat or position ordinarily occupied by person who operates motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be; [18] The court read numerous decision in relation to the same, including: R. v. Saunders, 1967 CanLII 56 (SCC), [1967] C.C.C. 278 (S.C.C.) R. v. Ford 1982 CanLII 16 (SCC), [1982], S.C.R. 231 (S.C.C.) R. v. Toews (1985), 1985 CanLII 46 (SCC), 21 C.C.C. (3rd) 24 (S.C.C.) R. v. Penne (1990), 1990 CanLII 88 (SCC), 59 C.C.C. (3rd) 344 (S.C.C.) R. v. Wren (2000), 2000 CanLII 5674 (ON CA), 47 O.R. (3d) 544 (C.A.) R. v. Ferrier, [1996] A.J. No. 779 (P.C.) R. v. Twigeon, [2002] S.J. No. 585 (Prov. Ct.) R. v. Lloyd, [1988] S.J. No. 216 (C.A.) R. v. Buckley, 2002 SKQB 281 (CanLII), [2002] S.J. No. 409 (Q.B.) R. v. Shuparski (2003), 2003 SKCA 22 (CanLII), 232 Sask. R. (C.A.) R. v. Sherbrook (1998), 1998 CanLII 13896 (SK QB), 164 Sask. R. 183 (Q.B.) R. v. Pincemin, 2004 SKCA 33 (C.A.) (CanLII) R. v. Denis, [2000] N.S.J. No. 57 (C.A.) R. v. Burbella, 2002 MBCA 106 (CanLII), [2002] M.J. No. 355 (C.A.) R. v. Schnell, [2003] S.J. No. 617 (C.A.) [19] In R. v. Burbella, supra, the Manitoba Court of Appeal at paragraph 22 summarized all the relevant Supreme Court decisions and other cases as follows: In my opinion, the Supreme Court in its decisions has been consistent that danger is an essential element of care or control. Only in the case where the presumption applies and care or control is conclusively deemed will the absence of danger not afford defence. In many instances the circumstances themselves will establish the danger. However, even where the accused establishes that he did not have the intention to set the vehicle in motion, evidence of acts involving some use of the vehicle which could accidentally cause it to become dangerous, whether by setting the vehicle in motion accidentally or causing some other form of danger, will establish care or control. [20] This proposition is also consistent with the Saskatchewan Court of Appeal in R. v. Shuparski which held that once the accused had rebutted the presumption of “care or control” under s. 258(1)(a), the court then enters the second stage of analysis as set forth in paragraph 40: The evidence in relation to the critical overlap period (12:50 to 2:07 a.m.) establishes only one act by the defendant, namely, the act of sleeping in the reclined driver’s seat. Does the act of sleeping in that position constitute either an “act which involves some use of the [vehicle] or its fittings and equipment” or “some course of conduct associated with the vehicle”? The answer is “yes”. But to constitute the actus reus, the act must satisfy two other requirements. It must “involve risk of putting the vehicle in motion so that it could become dangerous”. Does the act of person sleeping in reclined position in the driver’s seat of vehicle that is stopped, in “park”, the engine off and the keys not in the ignition involve that kind of risk? The answer is clearly no. It follows that during the critical overlap period the defendant performed no acts and no course of conduct that could constitute the actus reus. [21] In R. v. Dennis, supra, the Nova Scotia Court of Appeal at paragraphs 23 and 24 stated the following: 23 In short, nothing in the language used in the authorities dealing with the mens rea and the actus reus of care or control supports the proposition that where an individual is deemed to be in care or control of motor vehicle by virtue of the presumption found in s. 258 of the Criminal Code, in circumstances in which vehicle cannot be moved, the presumption for that reason does not operate. To the extent that the reasoning of Ryan, J.C.C. in Dairou, supra, can be said to support such conclusion, we do not agree with it. As Dickson, C.J.C. said for the court in R. v. Whyte (1982), 1988 CanLII 47 (SCC), 42 C.C.C. (3d) 97 at pp. 109-110: .. If an accused does not meet this requirement [ie. of proving the absence of intent to set the vehicle in motion] the trier of fact is required by law to accept that the accused had care or control and to convict. but of course it does not follow that the trier of fact is convinced beyond reasonable doubt that the accused had care or control of the vehicle ... 24 We agree with Wakeling, J.A. in Lloyd, supra, that there is nothing in Toews, supra, which tempers or modifies the position taken by the Supreme Court of Canada in Saunders, supra. We endorse, as did Wakeling, J.A., the passage found currently in Martin’s Annual Criminal Code 2000 at p. 422: Motor vehicle The decision of the Supreme Court of Canada in R. v. Saunders, 1967 CanLII 56 (SCC), [1967] C.C.C. 278, C.R.N.S. 249, that the definition of motor vehicle in s. contemplates kind of vehicle, not whether vehicle is actually operable or effectively functionable, now renders irrelevant all the previous decisions on when motor vehicle is motor vehicle in spite of internal or external conditions causing malfunctioning or immobilization of the vehicle. [22] Lastly, in R. v. Schnell, supra, the Saskatchewan Court of Appeal reviewed the principles it had established in R. v. Shuparski and reviewed Schnell’s dominant or controlling purpose during the critical overlap period, and held “In this case the conviction entered by the trial judge should be restored because Ms. Schnell did not rebut the presumption in s. 258(1)(a).” [23] In the present case, D.B. was the first person to come upon the accident scene. He found the accused alone in the vehicle seated in the driver’s seat. He saw no visible signs of anyone else at the scene. Upon approaching the vehicle he observed the accused turn the ignition key to try and start the vehicle. The ambulance attendance and police officers arrived within few minutes and observed the accused in the driver’s seat and with the vehicle keys in his hand. [24] Lastly, there was no other evidence forthcoming which established the “accused did not occupy that seat for the purpose of setting the vehicle in motion.” The accused has failed to rebut the presumption of care or control under s. 258(1)(a). The court hereby finds the accused was “in care or control” of the motor vehicle pursuant to the presumption in s. 258(1)(a). [25] Having found as such, the authorities establish the court need not enter the analysis of whether the accused had de facto care or control of an inoperable motor vehicle. Reasonable and probable grounds [26] Section 253(3) and (4) of the Criminal Code read as follows: 253.(3) Where peace officer believes on reasonable and probable grounds that person is committing, or at any time within the preceding three hours has committed, as result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable (a) such samples of the person’s breath as in the opinion of qualified technician, or (b) where the peace officer has reasonable and probable grounds to believe that, by reason of any physical condition of the person, (i) the person may be incapable of providing sample of his breath, or (ii) it would be impracticable to obtain sample of his breath, such samples of the person’s blood, under the conditions referred to in subsection (4), as in the opinion of the qualified medical practitioner or qualified technician taking the samples are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person’s blood, and to accompany the peace officer for the purpose of enabling such samples to be taken. (4) Samples of blood may only be taken from person pursuant to demand made by peace officer under subsection (3) if the samples are taken by or under the direction of qualified medical practitioner and the qualified medical practitioner is satisfied that the taking of those samples would not endanger the life or health of the person. [27] The court is very familiar with the case law in relation to reasonable and probable grounds for making demand pursuant to s. 253(3) of the Criminal Code, including the following: R. v. Lipka, [1989] O.J. No. 2676 (D. Ct.) R. v. McMillan, [1989] P.E.I.J. No. 86 (S.C.) R. v. Walkam, [1999] A.J. No. 1568 (P.C.) R. v. Evans, [1990] B.C.J. No. 921 (Co. Ct.) R. v. Peden, [2004] M.J. No. 118 (Man. Pr. Ct.) R. v. Hunt, 2001 ABPC 150 (CanLII), [2001] A.J. No. 1132 (Pr. Ct.) R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] S.C.R. 254 (S.C.C.) [28] In Bernshaw, supra, the Supreme Court clearly set out there is subjective and objective element to reasonable and probable grounds. The police officer must subjectively believe he or she has reasonable and probable grounds that the accused is or within the preceding three hours has committed an offence under s. 253. Further, such belief must be based on objective criteria or indicia of impairment. In this case, Officer Kiesman believed the accident had occurred some 10 to 15 minutes before his dispatch call. He viewed the scene of the accident and observed the vehicle damage and the injuries of the accused. He received information of suspected alcohol consumption from the paramedic. He observed numerous indicia of impairment about the accused, including: 1) very glassy eyes; 2) strong smell of alcohol from his breath; 3) the accused was very disoriented and had slurred speech; 4) the accused repeated questions; 5) the accused confirmed consumption of alcohol. [29] Considering the case law, the submissions of counsel and after objectively considering all the indicia of impairment known to the officer, together with the circumstances of the accident itself (which indicated driving error), there can be no doubt the officer had more than reasonable and probable grounds to form the requisite opinion pursuant to s. 254(3) to make a demand for samples of analysis. The totality of the evidence would lead any reasonable person to that conclusion. Officer Kiesman subjectively formed the opinion the accused’s ability to operate motor vehicle was impaired by alcohol. [30] The court must now proceed to the second step of blood demand. Again, both subjective and objective test must be applied. In R. v. Hunt, Daniel, P.C.J., thoroughly canvassed the applicable law. Defence raised the issue Officer Kiesman had not obtained enough information as to the accused’s condition from the medical personnel in relation to obtaining breath sample, and further that he did not make the demand forthwith or as soon as practicable. [31] In relation to the latter issue, suffice it to say, the police officer was sensitive to the immediate concern of the physical well-being of the accused. Though he may have formed his opinion in the ambulance, he wisely waited until medical personnel had made an initial assessment at the hospital before making any kind of demand. Quite frankly, one would have expected him to act in no other way. Law enforcement is important but must clearly wait until the personal well-being of any person being investigated is first dealt with. In the circumstances, the court finds the officer made the demand at the first practical opportunity in relation to the entire investigation. [32] In relation to the blood demand versus sample of breath, at paragraphs 32 and 33 in R. v. Hunt, supra, the court stated: 32 .. The same court held in R. v. Wytiuk at p. 22, that “the words in s. 254(3)(b), ‘by reason of any physical condition of the person...’ give to peace officer wide discretion to determine the practicability or the impracticability of the capability of an accused to provide breath sample.” 33 In R. v. Kuntz, the court confirmed that there is no obligation on police constable to question the attending physician on when an accused person will be released from hospital. The constable may make an independent assessment based on all the circumstances. This view is confirmed in R. v. MacMillan where the court states at page 4: That is not to say, of course, that there might not well exist circumstances, for instance, at the scene of an accident, in which the officer himself might be justified in arriving at the belief, based on his own reasonable observations. [33] In relation to Officer Kiesman personally, the court must be mindful that he had previous experience as an emergency medical technician and would have knowledge of head and spinal injury trauma procedures at the hospital, including time frames involved. [34] I find as a fact he, in coming to his conclusion to make a blood sample demand, considered a number of relevant factors, including time limits to obtain a breath sample, the severity and magnitude of the accident, the potential seriousness of the accused’s head and neck injuries, the need for immediate emergency assessment and length of time it would take to treat the accused and keep him under observation. He believed the accused’s condition was potentially serious and was completely justified in holding that belief. The evidence has proven the accused required immediate and emergent medical attention which made it obviously impractical to put the accused before a breathalyzer instrument within the time limit fixed by the Code. [35] Considering the foregoing, I find Officer Kiesman had reasonable and probable grounds to believe (and in fact did believe) that by reason of his physical condition, the accused may be incapable of providing a sample of his breath, or it would be impracticable to obtain a sample of his breath. All of the requirements of s. 254(3) have been proven beyond a reasonable doubt. Section 10(b) rights to counsel [36] In relation to the same, defence raised the possibility, due to the accused’s physical condition he may not have been able to fully understand his rights or fully exercise them when he in fact spoke to lawyer. The evidence discloses Officer Kiesman made numerous efforts to ensure the accused actually spoke to a lawyer in private. After that, the accused made no further requests whatsoever to further speak to lawyer. Following the principles set forth by the Saskatchewan Court of Appeal in R. v. Leedahl, 2002 SKCA (CanLII), [2002] S.J. No. 14, the evidence clearly establishes the accused was coherent and understood the right to counsel enunciated to him by the police officer. He in fact spoke to lawyer and made no other requests. Further, there was no suggestion that the accused was incapable of understanding his right to counsel or that he was incapable or prevented from acting on his right. To the contrary, the evidence proves the exact opposite. The court finds the accused has failed to demonstrate his s. 10(b) right to counsel was denied or infringed in any way. [37] Having found as above, there is no remedy of exclusion of the Certificate of Analysis, Exhibit P1 in these proceedings. The said Certificate will become full exhibit. It certifies blood alcohol reading of 221 milligrams percent. [38] Accordingly, the court finds the accused guilty of count 2, being care or control with a blood alcohol content in excess of .08. [39] As to count 1, care or control while impaired, the evidence clearly does not prove impairment beyond a reasonable doubt, as envisaged by the case law, including: R. v. Landes (1997), 1997 CanLII 11314 (SK QB), 161 Sask. R. 305 R. v. Huot (No. 3) (2001), 2001 CanLII 368 (SK PC), 209 Sask. R. 171 (Prov. Ct.) R. v. Stellato (1993) 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90 (C.A.), aff’d 1994 CanLII 94 (SCC), [1994] [40] In addition, Crown counsel indicated they had no submission to make in relation to this count. The court finds the accused not guilty of count 1, being impaired care or control.
The accused is charged with care or control of a motor vehicle while impaired contrary to s. 255(1) and s. 253(a) of the Criminal Code and care or control while over .08 contrary to s. 253(b) of the Code. HELD: There is no remedy of exclusion of the Certificate of Analysis. Accordingly, the accused is guilty of care or control while over .08. The evidence does not prove impairment beyond a reasonable doubt.  1) It is clear from the evidence that the accused's vehicle was inoperable and immovable due to the damage from the accident and its location in the ditch. The defence raised the issue of whether a person can be 'in care or control of a motor vehicle' when there is no risk that the vehicle in question can be put in motion so that it can become dangerous to the public. The Court reviewed the cases. The first person to come upon the accident scene found the accused alone in the vehicle seated in the driver's seat. He saw no visible signs of anyone else at the scene. Upon approaching the vehicle, he observed the accused turn the ignition key to try and start the vehicle. There was no other evidence which established that the 'accused did not occupy that seat for the purpose of setting the vehicle in motion'. The accused has failed to rebut the presumption of care or control under s. 258(1)(a) of the Code and the Court finds that the accused was in 'care or control' of the motor vehicle. 2) Considering the case law and after objectively considering all the indicial of impairment known to the officer, together with the circumstances of the accident itself (which indicate driving error) there can be no doubt the officer had more than reasonable and probable grounds to form the requisite opinion pursuant to s. 254(2) of the Code to make a demand for samples of analysis.  3) The officer was sensitive to the immediate concern of the physical well-being of the accused. Though he may have formed his opinion in the ambulance, he wisely waited until medical personnel had made an initial assessment at the hospital before making any kind of demand. In the circumstances, the Court finds the officer made the demand at the first practical opportunity in relation to the entire investigation. 3) The officer, in coming to his conclusion to make a blood sample demand, considered a number of relevant factors, including time limits to obtain a breath sample, the severity and magnitude of the accident, the potential seriousness of the accused's head and neck injuries, the need for immediate emergency assessment and length of time it would take to treat the accused and keep him under observation. He believed the accused's condition was potentially serious and was completely justified in holding that belief. The evidence has proven the accused required immediate and emergent medical attention which made it obviously impractical to put the accused before a breathalyzer instrument within the time limit fixed by the Code. The officer had reasonable and probable grounds to believe that by reason of his physical condition, the accused may be incapable of providing a sample of his breath, or it would be impracticable to obtain a sample of his breath. All the requirements of s. 254(3) of the Code have been proven beyond a reasonable doubt. 4) The evidence discloses that the police officer made numerous efforts to ensure the accused actually spoke to a lawyer in private. After that, the accused made no further requests whatsoever to further speak to a lawyer. Following the principles set forth by the Saskatchewan Court of Appeal in R. v. Leedahl, 2002 SKCA 5, the evidence clearly establishes the accused was coherent and understood the right to counsel enunciated to him by the police officer. He in fact spoke to a lawyer and made no other requests. Further, there was no suggestion that the accused was incapable of understanding his right to counsel or that he was incapable or prevented from acting on his right. To the contrary, the evidence proves the exact opposite. The Court finds the accused has failed to demonstrate his s. 10(b) right to counsel was denied or infringed in any way.