Bradley Aitken Petitioner And: Superintendent of Motor Vehicles v. The Attorney General of British Columbia, 2013 BCSC 363

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Aitken v. British Columbia (Superintendent of Motor Vehicles), 2013 BCSC 363 Date: 20130306 Docket: 12-2799 Registry: Victoria Between: Bradley Aitken Petitioner And: Superintendent of Motor Vehicles and The Attorney General of British Columbia Respondents On appeal of a review of a driving prohibition, pursuant to s. 215.48 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, heard by way of an oral hearing on August 3, 2012, before an Adjudicator of the Office of the Superintendent of Motor Vehicles.

The prohibition was confirmed in a written decision by the Adjudicator on August 9, 2012, pursuant to s. 215.5 of the Motor Vehicle Act . Before: The Honourable Mr. Justice Johnston Reasons for Judgment (In Chambers) Counsel for the Petitioner: J. Green Counsel for the Respondents: K. Wolfe Place and Date of Hearing: Victoria, B.C. February 12, 2013 Place and Date of Judgment: Victoria, B.C.

March 6, 2013 [ 1 ] The petitioner seeks an order quashing the decision of an adjudicator delegated by the Superintendent of Motor Vehicles to hear his application for review of a police officer’s decision to prohibit him from driving for 90 days under s. 215.41 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. [ 2 ] At issue is whether the delegate’s decision that the petitioner was a “driver” at the time of the prohibition order was reasonable. BACKGROUND [ 3 ] On the weekend of July 21-22, 2012, the petitioner had been involved in a softball tournament.

On the evening of July 21, the petitioner and his girlfriend, Ms. Winram, went to a pub in the petitioner’s pick-up truck, parking it in a lot across the street from the pub. Two police officers on bicycles were in the vicinity of the pub when the petitioner and Ms. Winram arrived, and were still there when they left early in the morning of July 22. [ 4 ] The petitioner had left his baseball equipment in his truck; his girlfriend had left her purse and some clothing. The petitioner had left the windows of the truck down, and the sun roof open. [ 5 ] When the petitioner and Ms.

Winram left the pub, they both swear that they intended to retrieve their belongings from the petitioner’s truck, close the windows and sunroof, lock the truck, and walk home, some 15 to 20 minutes away on foot. [ 6 ] The investigating officer, Cst. Biggar, in his report to the delegate, states that he saw the petitioner and his girlfriend leave the pub, walk to the truck and get in. He said the petitioner “seemed to be challenged” when getting into the truck.

Constable Biggar stated that the petitioner started the truck, and when he approached the driver’s side, he could see that the petitioner had his seat belt over his left shoulder, with his left hand toward the right side of his body. [ 7 ] Both the petitioner and Ms. Winram deny that the petitioner had his seatbelt on, or that he attempted to put it on. Both deny that the petitioner started his truck, and swear that the petitioner put the key into the ignition, turned the ignition part way to activate the electrical system, as that was the only way to close the electrically operated windows and sunroof.

[ 8 ] The petitioner, supported by Ms.

Winram, denies that he had any intention of putting his truck in motion and he says that his intent was to walk home from the pub, walk back then next morning to continue his participation in the tournament, and drive home later that day when the tournament was over. [ 9 ] Constable Biggar demanded that the petitioner provide a sample into an approved screening device and the petitioner refused, leading to the prohibition. [ 10 ] The petitioner does not dispute that the officer had sufficient grounds to demand the breath sample, nor that he refused: as I have said, the only issue before the delegate was whether the petitioner was a “driver” as defined in s. 215.41(1) of the Act, which reads:

(1) In this section, "driver" includes a person having the care or control of a motor vehicle on a highway or industrial road whether or not the motor vehicle is in motion. [ 11 ] The issue is further refined to the question whether, at the time of the demand, the petitioner had “care or control” of his truck. On the review, the officer carried the burden of proving care or control on a balance of probabilities, see Lang v. British Columbia (Superintendent of Motor Vehicles), 2000 BCSC 1718 , [2000] B.C.J.

No. 2452 (S.C.) at para. 28 . [ 12 ] After reviewing the evidence, in more detail than set out in these reasons, the delegate states: I have read and considered Mr. Green’s submission. I agree that there is no evidence that there was any significant risk that you would put the vehicle in motion accidentally. I further agree that I must consider your intention and that it is a relevant consideration in this review.

However, in determining whether you were in care or control of the vehicle, even if I accept that you did not intend to drive when you entered the vehicle, I must determine whether there was a risk that you would change your mind, and decide to drive. [ 13 ] In the decision, the delegate points out that the events unfolded at 1:22 a.m., that it was a 2.5 kilometer walk that would take 15 to 20 minutes, and that both the petitioner and Ms.

Winram would be carrying their belongings, concluding that this: … is a combination of factors that lead me to conclude the effort to walk home was sufficiently onerous so as to elevate the risk that when you both entered your vehicle and put the key in the ignition, you would change your mind and decide to drive, whether you engaged the engine or not at that point and regardless of whether your seatbelt was on at that time.

You may very well not have intended to drive when the officer approached you, but in my view there was a substantial risk that you would have changed your mind and decided to drive, given the factors I have outlined. [ 14 ] The delegate appears to accept that the petitioner did not intend to put his vehicle in motion when he got in, and up to when he was approached by the police, at least for the sake of argument, and then find care or control on the basis that the petitioner might have later changed his mind and decided to drive.

Thus, the reasons seem to confirm the prohibition on the basis of an intention that had yet to be formed, and might never have been reached. The prohibition was confirmed on the basis of a risk that the petitioner might change his mind, and later form the intention to drive his truck. Arguably, that reasoning did not accord with authorities such as Vandermeer v.

British Columbia (Superintendent of Motor Vehicles), 2002 BCSC 46 , where, at para. 15 the court says: … being in “care and control of a motor vehicle” must mean something other than simply being capable of setting the vehicle in motion, and that it is patently unreasonable to find that the capability of setting a motor vehicle in motion renders one in care and control of the vehicle within the meaning of s. 94.1. [ 15 ] More to the point, in Lightfoot v. British Columbia (Attorney General), 2004 BCSC 1325 , this court cited R. v. Shuparski, 2003 SKCA 22 , [2003] S.J.

No. 147, where the Saskatchewan Court of Appeal says at para. 46: It is axiomatic that a person cannot be convicted for something he has not done. The fact that he is in a “position” to do something wrong that he may or may not do, does not create some sort of inchoate form of culpability for which he must answer. Conjecture has no role to play in a criminal offence. [ 16 ] The decision of the delegate was dated August 9, 2012, and this petition filed August 13, just over two months before the Supreme Court of Canada released its decision in R. v.

Boudreault, 2012 SCC 56 , which brings some resolution to this question. That case involved a clearly impaired accused who was found at trial to have had no intention of driving, notwithstanding being found asleep in the front seat of a running vehicle. His acquittal at trial was overturned on appeal, and restored on appeal to the Supreme Court of Canada.

In doing so, the court found at para. 33 that the essential ingredients of the offence of impaired care or control were: (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk of danger to persons or property. [Emphasis in original.] The “realistic risk” referred to in (3) was expanded upon in paras. 41 and 42: [41] A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger.

Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control. On the other hand, an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion — without intending at that moment to do so — may nevertheless present a realistic risk of danger.

[42] In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways.

First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property. [Emphasis added.] [ 17 ] Thus, when the delegate states: "You may very well not have intended to drive when the officer approached you, but in my view there was a substantial risk that you would have changed your mind and decided to drive, given the factors I have outlined", the delegate roughly foreshadowed the example set out above from Boudreault. [ 18 ] I say roughly because, as it turned out, the delegate assumed a higher standard than the Supreme Court required by finding a substantial risk that Mr.

Aitken would decide to drive. In Boudreault , the Court set the standard in this way, beginning at para. 34: [34] The risk of danger must be realistic and not just theoretically possible: Smits , at para. 60. But nor need the risk be probable , or even serious or substantial . [35] To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention to prevent a danger to public safety.

To require only that the risk be “theoretically possible” is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct. [ 19 ] The delegate's finding that a serious risk existed is a finding of fact: see, Boudreault at para. 50 . The finding that Mr. Aitken was in care or control at the material time is a finding of fact, or perhaps mixed law and fact; in either case it is reviewable on a reasonableness standard.

The decision clearly falls within the "range of possible, acceptable outcomes which are defensible in respect of the facts and law," as set out in Dunsmuir v. New Brunswick , 2008 SCC 9 at para. 47 . [ 20 ] The petition is dismissed. “R.T.C. Johnston, J.” The Honourable Mr. Justice Johnston