R. v. Derkson (L.), (2015) 470 Sask.R. 271 (PC)

• Judge: Kalmakoff, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: March 30, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 470 Sask.R. 271 (PC);2015 SKPC 42

R. v. Derkson (L.) (2015), 470 Sask.R. 271 (PC)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. AP.003

Her Majesty the Queen v. Luke Derkson

(Information No. 90004904; 2015 SKPC 42)

Indexed As: R. v. Derkson (L.)

Saskatchewan Provincial Court

Kalmakoff, P.C.J.

March 30, 2015.

Summary:

The accused was charged with operating a motor vehicle while impaired and operating a motor vehicle while his blood-alcohol content exceeded the legal limit.

The Saskatchewan Provincial Court found the accused guilty of both offences.

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care and control or operating - What constitutes - Police received a report that Derkson was passed out in a vehicle in the parking lot of a liquor store - An officer found Derkson in the driver's seat with his seat belt on - The engine was running - When Derkson woke up, he stepped on the gas pedal which caused the engine to rev - The Saskatchewan Provincial Court found Derkson guilty of having care or control of a motor vehicle while impaired - Derkson had not abandoned his intention to continue driving - There was a realistic risk that he might put the vehicle in motion either intentionally or accidentally - He was not at his final destination when he parked in front of the liquor store - He did not make a conscious decision to go to sleep; he simply passed out in the midst of continuing alcohol consumption - Even if Derkson was waiting for a friend to pick him up and did not plan to drive any further, there was little chance that he would adhere to the plan given the circumstances and the extent to which his judgment was impaired - See paragraphs 8 to 29.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence - A police officer found Derkson passed out in the driver's seat of his vehicle which was in the parking lot of a liquor store - Derkson provided breathalyzer samples and was charged with operating a motor vehicle while his blood-alcohol content exceeded the legal limit - Derkson testified that he consumed as much as seven ounces of rye whisky after he stopped his vehicle in the parking lot - At issue was whether this evidence of post-driving consumption was "evidence to the contrary" which raised a reasonable doubt that the breath sample results accurately reflected Derkson's blood-alcohol level at the time of driving - The Saskatchewan Provincial Court held that it was not - The court stated that "Derkson led no evidence which would tend to suggest that his consumption of alcohol was (1) consistent with a blood alcohol concentration that did not exceed the legal limit at the time the offence was alleged to have been committed, and (2) consistent with the results of the breath tests. Therefore, ... the analyses of breath samples contained in the Certificate of Qualified Technician is proof that, at the time he drove his truck ... to the liquor store ... Mr. Derkson's blood alcohol concentration exceeded the legal limit." - See paragraphs 30 to 37.

Criminal Law - Topic 1376

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Proof of blood-alcohol content - [See Criminal Law - Topic 1374 ].

Criminal Law - Topic 4456

Procedure - Verdicts - Included offenses - Inclusion in impaired driving or driving under influence - At issue in this trial was whether an accused could be convicted of having "care or control" of a motor vehicle while impaired even though the Information charged him with the offence of "operating" a motor vehicle while impaired - The Saskatchewan Provincial Court stated that the offence of "care or control" was included in the offence of "operating" - Under s. 662(1) of the Criminal Code, an accused could be convicted of the offence charged or any included offence that was made out on the evidence - See paragraphs 5 to 7.

Cases Noticed:

R. v. Drolet (1988), 14 M.V.R.(2d) 50 (Que. C.A.), affd. [1990] 2 S.C.R. 1107; 138 N.R. 305; 55 Q.A.C. 59, refd to. [para. 6].

R. v. Whyte, [1988] 2 S.C.R. 3; 86 N.R. 328, refd to. [para. 8].

R. v. Boudreault (D.), [2012] 3 S.C.R. 157; 436 N.R. 343; 2012 SCC 56, refd to. [para. 15].

R. v. Poncelet (G.D.) (2014), 433 Sask.R. 237; 602 W.A.C. 237; 2014 SKCA 30, dist. [para. 18].

R. v. Coleman (C.) (2012), 399 Sask.R. 27; 552 W.A.C. 27; 2012 SKCA 65, refd to. [para. 18].

R. v. Smits (J.) (2012), 294 O.A.C. 355; 2012 ONCA 524, refd to. [para. 19].

R. v. Andersen (P.) (2012), 399 Sask.R. 1; 552 W.A.C. 1; 2012 SKCA 37, refd to. [para. 19].

R. v. Topfer, 2014 ONSC 5669, refd to. [para. 20].

R. v. Gunther (S.O.), [2014] Sask.R. Uned. 64; 2014 SKPC 153, dist. [para. 26].

R. v. Lockhart (J.R.J.) (2012), 410 Sask.R. 291; 2012 SKPC 187, dist. [para. 26].

R. v. Pincemin (D.D.) (2004), 249 Sask.R. 86; 325 W.A.C. 86; 2004 SKCA 33, refd to. [para. 30].

R. v. Heaton (J.H.) (2014), 451 Sask.R. 153; 628 W.A.C. 153; 2014 SKCA 140, refd to. [para. 30].

R. v. Benoit (M.) (2013), 332 Nfld. & P.E.I.R. 279; 1030 A.P.R. 279; 41 M.V.R.(6th) 230; 2013 NLCA 3, refd to. [para. 35].

R. v. St. Pierre (G.R.), [1995] 1 S.C.R. 791; 178 N.R. 241; 79 O.A.C. 321, refd to. [para. 35].

Counsel:

Chris Davison, for the Crown;

Darren Kraushaar, for the accused.

This matter was heard at Regina, Saskatchewan, before Kalmakoff, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on March 30, 2015.