R v Jones, 2012 ABQB 360

Court of Queen ’ s Bench of Alberta Citation: R v Jones, 2012 ABQB 360 Date: 20120531 Docket: 101520039S1 Registry: Wetaskiwin Between: Her Majesty the Queen Respondent Crown - and - Jason Roger Jones Appellant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ I. Introduction [ 1 ] The Appellant appeals his August 19, 2011 conviction for having care or control of a motor vehicle while his ability to operate a motor vehicle was over .08 contrary to s 253(1)(

b) of the Criminal Code of Canada . [ 2 ] The parties agree the only issue before me is whether the trial judge was correct to find the Appellant failed to rebut the presumption of care and control. The presumption is set out in s. 258(1)(

a) of the Criminal Code :

258(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in anyproceedings under any of subsections 255(2) to (3.2), (

a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vesselor aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed tohave had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes thatthe accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion orassisting in the operation of the aircraft or railway equipment, as the case may be; [3] In R. v.

Kowalik 2010 ABQB 554 Foster J. explained the presumption as follows: 30

Section 258 provides an evidentiary shortcut for the Crown. The Crown need only prove that the accused “occupied the seat orposition ordinarily occupied by the person who operates a motor vehicle”. Where that fact is proved beyond a reasonable doubt, theaccused is presumed to be in care or control. In other words, the Crown is relieved of proving in the usual way, the “care or control” partof the mens rea and actus reus of the offence.

However, it is open to the accused to rebut that presumption or deeming position byestablishing that he did not occupy the seat or position for the purpose of setting the vehicle... in motion". The accused must prove thatfact on the balance of probabilities. (see R. v. Appleby (1971) (SCC), [1972] S.C.R. 303 (SCC) at 310 and Whyte supra) II. Background [4] On December 6, 2010 police found the Appellant in the motor vehicle “slumped over” in the driver’s seat. The vehicle wasnot running, had no lights on, and was not warm. On opening the door of the vehicle a strong odour of alcohol was detected.

On wakingthe Appellant, a strong odour of alcohol emanated from him. There was open beer inside the vehicle, one can in the console between thetwo front seats, others on the front passenger’s side. [5] The keys to the vehicle were in a pocket on the inside of the vehicle’s door nearest the driver. [6] The Appellant testified that on the night before his arrest, he had been up most of the night. He was contacted by a friend andagreed to accompany him to Calgary. The friend agreed to drive the Appellant’s motor vehicle on account of the fact the Appellant hadbeen drinking throughout the night.

The Appellant agreed he continued to drink while a passenger in the vehicle being operated by thefriend. [7] During the trip the friend lost control of the Appellant’s vehicle, ending up in a ditch. The friend managed to get the vehicleback on the road but it eventually sputtered and stalled. [8] The Appellant’s friend called yet another friend from Edmonton to pick him up to go to Camrose, Alberta to get help. TheAppellant stayed with his vehicle. The Appellant testified he became cold, moved from the passenger’s to the driver’s seat to start thevehicle to warm up.

He managed to start the vehicle, but testified he needed to pump on the gas to keep the engine going or it wouldcompletely die out. Police testified they were able to turn the engine over without apparent difficulty. [9] The Appellant testified he moved to the driver’s seat about 10 minutes after the others left for Camrose. He put on the seatbelt. He ran the vehicle for some 5 - 10 minutes. He then turned it off and left the keys in the car door. He remained in the driver’s seat,seat-belted. [10] The Appellant testified he was aware he was in a “bad situation as far as being caught in care and control”.

He testified hewas careful then to remove the keys from the ignition, and to deposit them in the door pocket:

I knew I was in a bad situation as far as being caught for being in care and control. Like, I’m aware of that law existing, right? And I’veheard a lot of stories, horror stories out at work. And, you know, people tell me, you know, they’re just sleeping in their vehicle and theyget charged and stuff like that.

So, I didn’t want the vehicle – or I didn’t want the keys in the ignition. [11] By the time police responded to the stationary vehicle, the Appellant’s companions had failed yet to return from Camrose.About an hour had passed since the companions had left. [12] According to the one friend who testified at trial, the companions were unable to find a tow truck in Camrose. The one friendtestified he believed that within 30 - 45 minutes of leaving the Appellant on the road side they returned to find both Jones and his vehiclegone.

Other evidence suggested it was some 60 minutes after the initial stop that police arrived, and of course more than 60 minutes bythe time police left the scene with the Appellant and the Appellant’s vehicle towed away. [13] At trial, the Appellant argued credibility was not seriously in issue, both on his part personally but as well as between he andhis driver. The Appellant argued the presumption in s. 258(1)(

a) of the Criminal Code was rebutted by all the evidence, including theAppellant’s evidence he had occupied the driver’s seat for the purpose of staying warm, and not for the purpose of putting the vehicle inmotion. The Appellant acknowledged the use of the seat belt was arguably consistent with an intention to put the vehicle in motion.

Onthe other hand, the Appellant argued he provided an explanation for this - it was his invariable “habit” to put the seat belt on wheneverhe entered the driver’s seat, for any purpose whatsoever. [14] In his reasons for decision the learned trial Judge found the Appellant’s ability to operate a motor vehicle was impaired byalcohol, and that the Appellant had failed to rebut the presumption he occupied the driver’s seat of the vehicle with the intention ofputting it in motion. III. Standard of Review [15] At issue is whether the verdict in question is reasonable.

The standard of review is whether a “properly instructed jury actingjudicially, could reasonably have rendered” the verdict: R v Yebes, (SCC), [1987] 2 SCR 168 at para 16. In R v Biniaris,2000 SCC 15 , [2000] 1 SCR 381 the court states, at para. 37: . . . The Court of Appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the learnedtrial Judge reveal that he or she was not alive to an applicable legal principal, or entered a verdict of inconsistent with the factualconclusions reached.

These discernible defects are themselves sometimes akin to a separate error of law, and therefore easily sustainedthe conclusion that the unreasonable verdict which rests upon them also raises a question of law. [16] More recently, Deschamps J. in R. v.

R.P. 2012 SCC 22 at para. 9, and after citing Yebes for the point made above, stated: The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential tothe verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) isshown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge. [17] The Respondent argues as well that a finding of care and control is one of fact, which attracts a standard of review of palpableand overriding error: R. v.

Bellamy 2009 ABQB 759. IV. Analysis

[ 18 ] As noted, the learned trial Judge found the Appellant failed to rebut the s 258(1)(

a) presumption on a balance of probabilities. This decision was based on what I find to be the following five reasons: (

a) While the Appellant entered the driver ’ s seat to start the vehicle, no evidence was adduced at trial that he could not start the vehicle from the passenger seat; (

b) The Appellant put on his seat belt while he sat in the driver ’ s seat to warm up; (

c) The Appellant remained in the driver ’ s seat after he turned off the vehicle; (

d) The Appellant failed to say in his evidence specifically that he was not occupying the driver ’ s seat for the purpose of setting the vehicle in motion; (

e) The Appellant would have put the vehicle in motion in due course, if his companions failed to return “ reasonably promptly ” . (

a) While the Appellant entered the driver ’ s seat to start the vehicle, no evidence was adduced at trial that he could not start the vehicle from the passenger seat [ 19 ] The learned trial Judge was clearly troubled by the Appellant ’ s evidence that on the one hand he was familiar with the concept of taking care or control of the motor vehicle - so much so that he took pains to put the keys in the door handle area for that reason alone yet that concern for care and control was inconsistent with the Appellant entering the driver ’ s seat rather than starting the vehicle from the passenger seat. (For the same reason, the learned trial Judge was concerned with the fact the Appellant remained in the driver ’ s seat.) On the ‘ starting ’ point, the learned trial Judge noted the absence of evidence that the vehicle could not have been started from the passenger seat with the single foot on the accelerator. [ 20 ] The Appellant objects that no evidence was given at trial, neither during examination in chief nor cross-examination, regarding the layout of the interior of the Appellant ’ s vehicle, or that it was even possible to start the vehicle from the passenger ’ s seat.

The Appellant argues further the possibility the car could be started from the passenger ’ s seat is not probative of his intention to drive. [ 21 ] The starting point here is the onus on the Appellant to satisfy the learned trial Judge on a balance of probabilities he did not occupy the driver ’ s seat with an intention to drive. It was logical to ask whether the car could be started from the passenger ’ s seat. It was logical particularly given the Appellant ’ s heightened awareness of the dangers of care and control.

It would have been simple evidence to call at trial from either one or both of the Appellant and his driver. This is not an example of what the Appellant characterizes as a: ... burden of disproving every alternative course of action that the Appellant could conceivably have taken to achieve his objective ... [ 22 ] For reasons stated, it was open to the learned trial Judge to note this aspect of the evidence, or lack of it. As was argued by the Respondent, the learned trial Judge merely commented on the absence of relevant evidence that was easily available to the Appellant to adduce at trial. (

b) The Appellant put on his seat belt while he sat in the driver ’ s seat to warm up

[23] As to the Appellant’s seat belt evidence, the learned trial Judge stated: After sitting in the driver’s seat the Accused put his seat belt on. While one might hope this to be an instinctive reaction for those invehicles, I suspect that it is less instinctive for those with a settled intention not to drive. [24] This finding came in reasons given immediately following the close of evidence and argument in a one-day trial on August19, 2011.

The significance and indeed the credibility of the Appellant’s evidence regarding the seat belt was argued thoroughly beforethe learned trial Judge. [25] There can be no doubt the Appellant’s frankly remarkable testimony regarding the seat belt was squarely before the court andin the mind of the learned trial Judge. The Appellant testified: ... when I get into my vehicle and I often to do this – like, if I am going to go clean my vehicle, the inside of the vehicle, its parked in mygarage, you know, I got my Armour Wipes, right?

I get into my vehicle to clean it, I put my seat belt on, like, it’s come to a form of ahabit for me. [26] The Appellant argues the learned trial Judge needed expressly to reject the Appellant’s evidence as to why he put the seat belton in the first place. [27] While the reasons on this point could have been expressed differently or more fully, the law requires only that the path takenby the judge be clear from the reasons read in the context of the trial: R. v. M.(R.E.) 2008 SCC 51at para. 24.

To paraphrase from R. v.Harper (SCC), [1982] 1 S.C.R. 2, the learned trial Judge’s reasons here do not completely disregard the Appellant’sevidence regarding seat belt use. To the contrary, his reasons read as a whole, “in the context of the trial”, make it clear he did not acceptthe Appellant’s seat belt evidence. [28] The Appellant argues that Kowalik is a case which suggests a trial judge assessing evidence in support of a s. 258(1)(a)presumption should rule out competing inferences.

In Kowalik at issue was the fact of headlights being illuminated, arguably signallingan intention to drive; Foster J. commented “There was no evidence that might offer a different explanation for how or why the lightswere on.” [29] Here, the impugned evidence is the fact the Appellant wore a seat belt when he says he merely intended to warm up the car.The Appellant says there was another inference open to the learned trial Judge - that it was his habit to put on his seat belt in his car, evenwhen he used Armour Wipes to clean its interior. [30] I do not accept that Foster J.’s ‘different explanation’ comment in Kowalik should be read as a prerequisite to his findingthere was in that case evidence of an intention to drive.

Earlier in his reasons he imposed no such restriction on his finding: 36 I agree with the Crown’s submission that the trial judge did not, as the Appellant asserted, make “.. the inference that only aperson intending to drive would ensure the headlights were illuminated...”. The trial judge’s inference was not so absolute. What the trialjudge said was: “If one intends to drive a motor vehicle at night, it stands to reason that the driver would ensure his headlights andtaillights are illuminated, in order to properly operate in the dark. [31] I am dealing with a similar situation here.

I am persuaded by the Respondent’s submission that the learned trial Judge’scomment, at para. 23 herein, was “... a common sense observation that wearing a seat belt is more consistent with an intention to drivethan for those who have decided they won’t drive.” [32] As noted, the credibility of the Appellant’s evidence regarding the seat belt was squarely before the learned trial Judge inargument. The learned trial Judge’s reasons include a thorough treatment of the importance of assessing credibility. His reasons confirmhe knew credibility to be a live issue.

With these factors in mind, I accept the Respondent’s position that the evidence around seat belt

use while cleaning a car interior is obviously non-sensical and little if anything further needed to be said about it in the reasons fordecision. As stated in R. V. M. (R.E.) at para. 49: 49 While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or ona particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.

Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about thewitness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting hisevidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult anddelicate matter that does not always lend itself to precise and complete verbalization. (

c) The Appellant remained in the driver’s seat after he turned off the vehicle [33] The parties did not squarely address this finding of the learned trial Judge in their written or oral submissions on appeal. Asnoted, comments made above under ground (

a) are relevant here. The point made at trial of course is that, once having warmed the car,the Appellant - armed with his heightened sense of care and control - would surely have moved back to the passenger seat. No particularexplanation was given for his failure to do so. The learned trial Judge appropriately considered his remaining in the driver’s seat to besome unrebutted evidence that he intended to put the vehicle in motion. (

d) The Appellant failed to say in his evidence specifically he was not occupying the driver’s seat for the purpose of setting thevehicle in motion [34] The Appellant objects that the learned trial Judge essentially drew an adverse inference from the absence of direct evidencethe Appellant never intended to drive, without taking into account considerable circumstantial evidence on the point. [35] Granted, there was some circumstantial evidence relevant to this issue.

But even taking into account circumstantial evidence,surely the best evidence would have been the simple, straightforward assertion by the Appellant that he did not intend to drive, not whenhe first entered the vehicle to warm up, or indeed at any point thereafter while he was still impaired. [36] The absence of such direct evidence is surely something the learned trial Judge was entitled to take into account: R. v. Rioux(2000) (QC CA), 148 C.C.C. (3d) 160 at 167 (leave to appeal refused 151 C.C.C. (3d) iv. (SCC).

He did so whilenoting the lack of direct evidence is not determinative, yet when combined with other factors, its absence led to the conclusion he haddrawn. He certainly drew no adverse inference against the Appellant, as alleged in argument, but rather weighed all the evidence. (

e) The Appellant would have put the vehicle in motion in due course, if his companions failed to return “reasonably promptly” [37] The Appellant objects to the learned trial Judge’s conclusion on this point, arguing it is both irrelevant and groundlessspeculation about what the Appellant would do if his companions failed to return “reasonably promptly”. [38] I agree with the Respondent however that the question of the Appellant’s intentions “in due course” is relevant to the s.258(1)(

a) presumption: Ogrodnick, at para. 2. [39] And as emphasized by the Respondent, the Appellant testified that “I just got to wait it out here maybe a half an hour”. That,together with the absence of any other evidence as to what the Appellant intended to do if his companions did not return for someindefinite or unreasonable period of time, was the factual backdrop for the learned trial Judge’s finding the Appellant would actuallydrive the vehicle were his companions not to return “reasonably promptly”. Put another way, the learned trial judge “...[was] not satisfied

that [the Appellant] would have waited indefinitely for [his friends] ” . That was a finding of fact the learned trial Judge was entitled to make on the evidence. It was a relevant inquiry under s. 258(1) (

a) as it went to the Appellant ’ s intention when he first entered the driver ’ s seat of the vehicle in question - whether he intended to drive at that very moment, or in due course. V. Conclusion [ 40 ] For the reasons stated I find the Appellant has not succeeded in discharging the heavy onus upon him of showing an unreasonable verdict or any error of fact that would justify interference with the learned trial Judge ’ s decision on care and control under s. 258(1) (

a) of the Criminal Code . The appeal is therefore dismissed. Heard on the 20 th day of January, 2012. Dated at the City of Wetaskiwin, Alberta this 31 st day of May, 2012. Peter Michalyshyn J.C.Q.B.A. Appearances: Rodney A. Clark Crown Prosecutor ’ s Office for the Crown Vernon Eichhorn Gunn Law Group for the Accused