R. v. Moffat - Excerpt Reasons for Judgment Date:, 2003 BCPC 152

Citation: R. v. Moffat - Excerpt Reasons for Judgment Date: 20030328 2003 BCPC 0152 File No: 64869-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER WILLIAM MOFFAT EXCERPT FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. DE COUTO Counsel for the Crown: P. Stabler Counsel for the Defendant: P. Riddell Place of Hearing: Port Coquitlam, B.C. Date of Hearing: March 28, 2003 Date of Judgment: March 28, 2003 [ 1 ] THE COURT: Mr.

Moffatt, you are charged with two counts, the first one being that on the particular date specified, while your ability to operate a motor vehicle was impaired by alcohol or a drug, you had the care or control of a motor vehicle, and in Count number 2, on that same date, having consumed alcohol in such a quantity that the concentration thereof in your blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did have the care and control of a motor vehicle. [ 2 ] The Crown evidence was provided through the testimony of two witnesses.

Constable Darling was the first and she testified as to how she came upon your vehicle at 3:34 in the morning of that day, parked on the side of the road, partially on the shoulder and partially in the slow lane, on the Lougheed Highway just before Pitt River Road by Riverview Hospital. [ 3 ] She testified that when she approached your vehicle from behind, she noted the brake lights on and the motor running. She approached the motor vehicle and made her observations which were consistent with the observations of her fellow officer and, for that matter, yourself and your friend Darren Brouse (phonetic).

That is that you were slouched down, passed out, eyes shut, and so was the passenger; that she had to knock twice, the second time louder than the first, before the passenger, your friend, pushed you and woke you up. At that point in time, you seemed extremely incoherent and, in responding to her request to roll down the window, she had to repeat it twice before that happened.

She says she noticed, although she could not recall whether or not the gearshift was on the steering shaft or between the two seats on the console, but nonetheless she said that the gearshift was in drive and that you had to put it in park following a request by her. She further testified that there was a strong odour of alcohol or liquor and that you were very unbalanced and swaying. She referred to you as being extremely intoxicated.

Both of you admitted that as well, by your own admissions and your friend's admissions. [ 4 ] She eventually formulated her opinion and read the demand, the warning, et cetera, that were referred to throughout the testimony, resulting in readings as reflected in the certificate, Exhibit number 1, of .21 and .20, or 210 milligrams in 100 millilitres of blood with respect to the first reading, and 200 milligrams with respect to the second reading. [ 5 ] I am satisfied that with respect to Benny Wong's evidence, that is the expert called, it does not really detract from all of that evidence.

As a result, I find from the evidence that the Crown has established beyond a reasonable doubt that, firstly, it was on the 28th of April, at or near Coquitlam, in the Province of British Columbia; that your ability to operate a motor vehicle was impaired by alcohol or a drug with respect to Count number 1; and with respect to Count number 2, that you had in fact, at the material time or relevant time, consumed alcohol in such a quantity that the concentration thereof in your blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. [ 6 ] The remaining critical issue in both these counts, as was pointed out by your counsel, is whether or not, at the material time, you had the appropriate necessary care and control and the intent that accompanies that. [ 7 ] The officers who attended upon the scene were merely able to provide objective observations of you.

Obviously they were unable to tell the court what was in your mind, what your state of mind was. That could only come from you and others who were with you or to whom you had told your intent. That is where I refer to the evidence called on your behalf, starting with yourself. [ 8 ] After going through a full background of yourself and of much of that day, you testified as to how it came to be where you were at the time when the police attended.

In essence, it started off with plans and eventually resulted in your going down to GM Place for a hockey game between what you have clearly, clearly referred to as your favourite team, the Detroit Redwings, versus the Canucks. I accept that you consumed alcohol at the game and over the course of the evening, as you have testified to, in the amounts you have testified to, right up until the time that you got into the vehicle.

[9] Now, that is sometime a little after 1:00, and you indicated that when you got into the vehicle it was your intention to drive to thepub. You had anticipated a confrontation of some kind and/or a fight, and had, after rousing Mr. Brouse, your friend, persuaded him toaccompany you.

You, in fact, got into the vehicle and started out in that direction with that purpose and intent in mind; that is, to drive tothat pub. [10] You then testified, after having formed that initial intention - this is about five minutes or so after 1:00, give or take, in themorning - you started to feel the effect of all of that alcohol that you had consumed, so you pulled over to the side of the road. Accordingto you, you did that because you were no longer confident in your ability to drive and decided to sleep it off and not to put the vehicleinto motion. The next thing you recall was a tapping at the window.

You readily admitted the amounts that you drank; that it was waytoo much and consumed way too quickly; that you were not proud of that; that you have done that in the past. In fact, that was supportedby the evidence of Darren Brouse as well. [11] In the giving of that testimony of the consumption and the pattern, the quantity, those were all bits of evidence that really wereadverse to your interest. However, I have observed you on the stand and conclude that you did give that openly in a forthright mannerand that you were not evasive.

You were up front and attempted to, in essence, answer the questions and more, as best you could. [12] That really is the first piece of evidence that was introduced with respect to the element of intent going to that critical aspect ofthe charge in both counts that the Crown requires to establish or prove beyond a reasonable doubt. I am satisfied, given what I havefound, that there was a presumption here that was established by the Crown that required you to refute, and that was done by the callingof evidence on your behalf in the manner that I have just described.

The question is whether or not, in fact, it has rebutted thepresumption and, in fact, in rebutting the presumption, left no evidence with respect to establishing that necessary element of care orcontrol of the nature and kind required in the two counts. [13] With respect to that, Mr. Brouse, your passenger, in great measure corroborated what you had said. That is that at the time yougot in the car, after an "evening" of what you have described, your intent was to go from Point A to Point B. That is, from your house tothis pub. I forget the name of it right now.

But that was your intent, and you were literally within minutes of leaving your house whenyou then pulled over. If your intent in pulling over was not to sleep it off, then what was the intent? There was no evidence to suggestthat the car was mechanically deficient, requiring you to pull over. Your intent was to go from Point A to Point B for something that wasgoing to unfold that you anticipated over the immediate course of time. You pulled over. If it was not to sleep it off, on the evidencebefore me, then what was it for? [14] I have considered that aspect very, very carefully.

Your evidence was that, "I pulled over because I changed that focus or intent. Ino longer wanted to drive. I decided to sleep it off because of my state and my awareness of that state, and the danger I would get into if Icontinued with that original intent." To some degree, Mr. Brouse does in fact corroborate that, and in a smaller degree your brother, interms of the goings on prior to your departure. [15] So there is a pattern here that is, in bits and pieces, corroborated by other bits and pieces of evidence, and with respect to findingyou asleep, that is how the officers found you.

I have reflected on that carefully and read the decision of the three cases that werepresented by your counsel with respect to that issue, I note that in R. v. Martindale, Mr. Justice Oliver, as he then was, Martindale beingreported in [1995] B.C.J. No. 2249 out of the Vancouver registry, confirmed the appeal in the sense of allowing the appeal and quashingthe conviction that had been made down at the trial level. [16] In R. v. Shuparski, out of the Saskatchewan Court of Appeal, reported in 2003 SKCA 22 , [2003] S.J.

No. 147, thedecision of Chief Justice Bayda really deals, in my view, quite persuasively with respect to those very issues that are before this court.Those paragraphs were referred to by your counsel, and I repeat them in the course of my decision, starting with paragraph 23: If the Crown chooses to rely on the presumption in clause 258(1)(a), as it did in the present case, it need proveonly one fact, namely, that the accused "occupied the seat or position ordinarily occupied by a person whooperates a motor vehicle." Where that fact is proved beyond a reasonable doubt...

And I found that to be the case here. ...the accused is presumed to be in care or control. Then reading further down in that paragraph, the accused must prove the fact: ...that he/she "did not occupy the seat or position for the purpose of setting the vehicle . . . in motion." And that is on a balance of probabilities, so it is on a lesser standard than that required of the Crown.

If he/she succeeds, the presumption does not apply and the Crown is left with proving the "care or control" ... inthe usual way... [17] Then going on to paragraph 29, the judge said: I will consider now whether the Crown is entitled to rely on the presumption in clause 258(1)(a). Mr. Justice Bayda went on to continue to consider to the fact pattern in that case. My finding is consistent that there was a presumptivecare or control established. [18] Then he continued, in the middle of the paragraph: Evidence relating to the defendant's "purpose" during the critical overlap period is therefore crucial.

Thedefendant testified that his only purpose for occupying the driver's seat during the critical overlap period was

not to set the vehicle in motion, but to sleep. He brought the vehicle to a complete stop so that he could execute that purpose. There can be no better evidence of a purpose of that nature than evidence of the deliberate execution of that purpose. In the present circumstances there can be no doubt about the execution of that purpose. [ 19 ] Carrying on, he says: Several questions arise in this connection:

(1) Is an accused's purpose once fixed immutable unless and until he vacates the driver's seat (and thus enables himself to commence a new purpose) or can the purpose change from time to time without his vacating the seat?

(2) Can an accused have more than one purpose at any given time?

(3) Is an accused's purpose for occupying the seat outside the critical overlap period of any relevance for determining the purpose within the critical overlap period? [ 20 ] He continued, in paragraph 31, 32 and 33 as follows: I answer question (1) as follows: A requirement that the defendant vacate the driver's seat in order to change the purpose for occupying it is not merely unreasonable, but nonsensical. [ 21 ] Then he goes on to illustrate by way of an example, this example being: A person gets into the driver's seat of his car to listen to his CD stereo. He has no other purpose.

He then makes a deliberate decision to fall asleep. He turns off his stereo, remains in his seat, but reclines it and falls asleep. Is it rational to say that his purpose throughout was to listen to the stereo even after he turned it off and fell asleep? Surely, his purpose changed when he decided to turn off the stereo and fall asleep. It is nonsensical to suggest he first had to vacate the driver's seat to change purposes. Suppose when he woke up he decided to again listen to the stereo. Can it be said that his purpose then was to sleep? Hardly.

Can it be said that his purpose throughout this entire period was to listen to the stereo even when it was turned off and he was asleep? Again, hardly. I find that whatever purpose a person has for originally occupying the driver's seat (e.g. when he first gets into the vehicle) that purpose may change at any time the person decides to change it. He does not need to vacate the seat to change the purpose. [ 22 ] Paragraph 32: My answer to question (2) is this. The statute speaks to "the" purpose. That connotes either one purpose and if there should be more than one, the controlling or dominant purpose.

In other words, a person occupying the driver's seat could have a dominant or controlling purpose and also one or more incidental, inchoate or contingent purposes. Those latter purposes, by definition, are neither dominant nor controlling and do not qualify for "the" purpose.

Any one of them may qualify as "a" purpose, but that is not the way the statute is worded. [ 23 ] Let me illustrate with an example, I impose my own example, and that is taking the example of an individual getting into the car to drive from Point A and Point B, and in going from Point A and Point B decides to turn on the radio to listen to the music. His dominant purpose is in driving that vehicle, and the secondary purpose is to listen to the radio.

In my view, that, I think, is what paragraph 32 describes with respect to more than one purpose, but there being one dominant purpose. [ 24 ] Paragraph 33: The answer to question (3) is actually found in the answers to question (1) and (2). If the occupation of the driver's seat commences outside the critical overlap period and continues without interruption into that period then, naturally, proof of the sole or dominant purpose outside the critical time period would serve as proof of the sole or dominant purpose within the critical time period if there is no proof of a change in the sole or dominant purpose.

The prerequisites of continuity of occupation and of no change in purpose are crucial. [ 25 ] In this case, it would seem to me that had you gotten into the car in the first place to go to Point B and you continued driving to Point B, and in the course of that driving you were pulled over by the police, then clearly the police would have established that through evidence and observation of your continued driving as being evidence of that purpose. Had you done so, I would have had no hesitation or difficulty in finding you guilty here. [ 26 ] I look at what happened here.

That is, you got in the car, you started to feel the effects, you pulled over and decided to sleep it off. There is, in my view, no evidence that challenges that for me to be able to conclude otherwise. [ 27 ] In all of the circumstances, looking at the totality of the whole evidence, it seems to me that, given your evidence and that of Mr. Brouse and your brother, it is more probable than not that you pulled over for the purpose that you stated. Once I arrive at that conclusion, it seems to me that the reasoning that was set out by Mr.

Justice Bayda in Shuparski does in fact then kick into place, and I find that it has and does. [ 28 ] In the circumstances, I am satisfied that you have in fact rebutted the presumption. On that basis I am satisfied that at the relevant time - and that is when the police found you or at the time in fact you pulled over to the side of the road to sleep it off - you abandoned your original intent of driving to Point B and took on a new purpose, and that is not to drive but to sleep it off. Having changed that purpose and intent, I find you then, as a result, not guilty of Counts 1 and 2. (EXCERPT CONCLUDED)