R. v. Choquette, 2021 NUCJ 10

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Choquette, 2021 NUCJ 10 Date: 20210216 Docket: 08-18-662 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Gabriel Choquette ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): R. Dzioba Counsel (Accused): S. Siebert Location Heard: Iqaluit, Nunavut Date Heard: November 10, 2020 Matters: Trial decision on charges under Criminal Code of Canada, RSC 1985, c C-46, ss. 253(1) (a), 253(1) (b), and 145(5.1) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] The police charged the accused, Gabriel Choquette, with care and control of a motor vehicle while he was impaired by alcohol, care and control while his blood alcohol level exceeded the legal limit, and a breach of his bail condition not to consume alcohol. [1] The incident happened outside the Royal Canadian Legion (“the Legion”) in Iqaluit in the early morning on September 9, 2018. Mr. Choquette pleaded not guilty. I held the trial on November 10, 2020, and I received the transcript of the proceeding on December 18, 2020. These are my reasons for decision. II.

BACKGROUND [ 2 ] At the start of the trial, Mr. Choquette admitted all aspects of the Crown’s case against him except for the care and control issue. Among other things, Mr. Choquette admitted that he was the subject of the complaint, that he was in the driver’s seat of a borrowed vehicle at the time of his arrest, that he was impaired at the time, and that his blood alcohol level was 190 mg of alcohol in 100 ml of blood, which exceeded the legal limit. He denied, however, that he had care and control of the motor vehicle in which he was found. [ 3 ] Mr.

Choquette also denied that he was aware of the bail condition which forbade him from drinking alcohol. [ 4 ] Before the trial started, Defence Counsel applied to the Court to have certain oral statements made by Mr. Choquette to the police admitted as evidence. Generally, self-serving out-of-court statements made by an accused are not admissible as evidence. However, it is accepted today that spontaneous statements made by a person when confronted by allegations of wrongdoing may be admissible. [2] The Crown supported the Defence application, so I have considered Mr.

Choquette’s evidence in that regard. [ 5 ] The Crown called two witnesses: Cst. Cagri Yilmaz, who was the lead investigator, and Cst. David Hubert. Cst. Yilmaz displayed a limited independent memory of the events in question, and he continually had to refer to his notes. Cst. Hubert, on the other hand, was an impressive and well-prepared witness. In the following discussion of the facts, I have accepted Cst. Hubert’s version wherever it differs from Cst. Yilmaz’s memory. [ 6 ] Mr. Choquette exercised his right to testify, and I will discuss his evidence in a moment. III.

THE FACTS [ 7 ] I will focus on those facts which I have found proven beyond a reasonable doubt, and which relate to the issues of care and control and Mr. Choquette’s credibility. Wherever I say that a witness described or testified to a point, I have accepted that description or testimony as proven beyond a reasonable doubt. [ 8 ] A person who self-identified as an employee of the Legion called the RCMP around 1:24 am on September 9, 2018. The caller reported that Mr.

Choquette was intoxicated, inside a motor vehicle outside the Legion, “revving the engine” and “honking the horn”. [3] While I accept as fact that this report was made, its contents are hearsay and I cannot use it as proof of what the caller described. Cst. Yilmaz and Cst. Hubert (with his partner Cst. Vary) patrolled independently to the scene in marked police vehicles. [ 9 ] Cst. Hubert noted that the air temperature at the start of his shift was 6 degrees Celsius.

[ 10 ] Cst. Hubert and Cst. Vary arrived first. Cst. Hubert saw the parked vehicle in question near a guardrail in the Legion parking lot, but initially he could not tell if anyone was inside. There was “some smoke or some haze” behind the vehicle. [4] Cst. Hubert assumed it was exhaust. Cst. Hubert approached the vehicle while Cst. Vary spoke to Mr. Choquette, who had reclined the driver’s seat of the vehicle. Cst. Hubert watched Mr. Choquette bring his seat up as Cst. Hubert continued to approach the vehicle. Cst.

Hubert noticed heat coming from the wheel well, and he “instinctively” put his hand on the vehicle’s hood. Cst. Hubert observed that the hood of the vehicle “was warm to the touch”. [5] [ 11 ] Cst. Hubert described Mr. Choquette as being “very unhappy” and said that Mr. Choquette became “more defensive” upon being arrested. Cst. Hubert overheard Mr. Choquette tell Cst. Yilmaz “that he wasn’t driving the vehicle, that he didn’t have any keys, and he was waiting for a friend. Actually, he mentioned several times that he was waiting for a friend to bring him back”. [6] [ 12 ] Cst. Hubert testified that Mr.

Choquette was “highly intoxicated”. Among other things, Cst. Hubert noted that Mr. Choquette gave off a “very, very strong odour of liquor”, and that he had to stabilise Mr. Choquette on arrest because Mr. Choquette was “wobbling [as he] struggled to stand straight”. [7] Cst. Hubert then had to assist Mr. Choquette to the police vehicle as Mr. Choquette was “swaying”. [8] [ 13 ] Cst. Hubert was aware that one of his colleagues found a set of keys in Mr. Choquette’s vehicle, but he stated that he did not have any firsthand knowledge. [ 14 ] Cst.

Yilmaz, upon arrival at the scene could not tell whether there was anyone in the subject vehicle. There were “quite a few people” milling around outside the door to the Legion. [9] It was only when he was “next to it”, meaning the vehicle, that he saw Mr. Choquette sitting in the driver’s seat. At this point, he saw Mr. Choquette “reaching down on the – on the floor of his vehicle”. [10] Cst. Yilmaz blocked Mr. Choquette’s vehicle with his patrol car and approached the driver’s side of Mr. Choquette’s vehicle on foot. [ 15 ] Cst. Yilmaz quickly determined that Mr. Choquette was intoxicated. He told Mr.

Choquette that he was arresting him for “impaired care and control”. Mr. Choquette began arguing with him saying that he was not driving, and that he was only waiting for a female friend to leave the Legion and drive him home. [11] Mr. Choquette continued to argue, saying that Cst. Yilmaz could not arrest him because he had had only one drink. At one point he asked Cst. Yilmaz for the officers’ police badge numbers. [12] [ 16 ] Mr. Choquette continued this “argumentative and arrogant behaviour” at the police detachment. [13] [ 17 ] Cst. Yilmaz arrested Mr. Choquette and had him exit his vehicle.

At this point, Cst. Yilmaz looked at the floor and observed a set of keys on the driver’s side next to the pedals. He watched as his (unidentified) colleague put the keys into the ignition of Mr. Choquette’s vehicle and successfully turned on the engine. [ 18 ] Initially, Mr. Choquette refused Cst. Yilmaz’ request that he provide a sample of his breath for analysis, but he later relented. Cst. Kevin Mortimer obtained and analysed two breath samples from Mr. Choquette at the detachment at 2:57 am and 3:19 am. The result of each analysis was 190 milligrams of alcohol in 100 millilitres of Mr.

Choquette’s blood. [14] This was more than twice the legal limit of 80 milligrams of alcohol per 100 millilitres of blood. [ 19 ] Cst. Yilmaz did not attempt to speak to any of the many potential witnesses who were present both inside and outside the Legion. In cross examination, Defence Counsel asked Cst. Yilmaz if he had asked any of his colleagues to find Mr. Choquette’s friend and alleged ride home. Cst.

Yilmaz replied: I don’t know if you’ve ever been inside the Legion, but there’s quite a few people during those nights, so it is not reasonable for one of us to go and look for a – Carla when there’s dozens and dozens of customers inside. So I did not request any of my co-workers to go inside and look for a Carla. [15]

[ 20 ] The reference to Carla means Kyla Gordon, a friend of Mr. Choquette who Mr. Choquette said he asked to drive him home. [ 21 ] Nor did Cst. Yilmaz attempt to take a statement from the Legion employee who reported seeing an intoxicated Mr. Choquette revving his engine and honking his horn in the Legion parking lot. IV. THE ISSUES [ 22 ] There are two issues I must decide: 1. Did Mr. Choquette have care and control of the motor vehicle in question on September 9, 2018? 2. Did Mr. Choquette have a lawful excuse to drink alcohol that day despite the no alcohol condition of his bail? V. THE LAW A.

The essential elements of the offence and proof beyond a reasonable doubt [ 23 ] In order to prove this offence, the prosecution must prove beyond a reasonable doubt each one of the following elements: 1. That it was Mr. Choquette; 2. Who had care and control; 3. Of a motor vehicle; 4. On or about September 9, 2018; 5. In Iqaluit, Nunavut; 6. While his ability to operate the motor vehicle was impaired; 7. By reason of his consumption of alcohol. B. Care and control of a motor vehicle while impaired; Criminal Code section 253(1) (a) (

i) Proof of care and control of a motor vehicle [ 24 ] The prosecution can prove that Mr. Choquette had care and control of the motor vehicle in one of two ways. First, the Crown may rely on a presumption contained in the Criminal Code .

At the time of the incident, this presumption was found in section 258(1)(a). [16] The presumption says: where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle … the accused shall be deemed to have had the care and control of the vehicle … unless the accused establishes that the accused did not occupy the seat or position for the purpose of setting the vehicle … in motion. [ 25 ] To rebut the presumption, an accused must satisfy the court on a balance of probabilities that he did not intend to operate the

vehicle. Mr.

Choquette admitted that he was in the driver’s seat when he was approached by the police, and the Defence called evidence to rebut the presumption. [ 26 ] Second, if the accused rebuts the presumption, the prosecution must establish beyond a reasonable doubt either that the accused did intend to operate the vehicle, or that he acted in a way that caused a realistic danger that he might change his mind and set the vehicle in motion. (ii) R v Boudreault [17] [ 27 ] In Boudreault , Fish J writing on behalf of the majority in the Supreme Court of Canada defined care and control when the presumption has been rebutted as follows: … care or control within the meaning of s. 253(1) of the Criminal Code , signifies (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 , as opposed to a remote possibility , of danger to persons or property. [18] (emphasis in original) Whether or not Mr.

Choquette’s actions constituted a realistic risk of danger is a question of fact. [ 28 ] Significantly, Fish J continued I recognise, as the trial judge did, that a conviction will normally ensue where the accused … was found inebriated behind the wheel of a motor vehicle with nothing to stop the accused from setting it in motion, either intentionally or accidentally. [19] C.

Failure to comply with a bail condition; lawful excuse; Criminal Code section 145(5.1) [ 29 ] At the time of the incident, the Criminal Code said that every person who, without lawful excuse, the proof of which lies on the person, fails to comply with any condition of an undertaking (bail) is guilty of either an indictable or

summary conviction offence. [ 30 ] Mr. Choquette has admitted that he was subject to bail conditions on September 9, 2018. He maintains that he had a lawful excuse, however, for failing to comply with the no alcohol condition contained in his undertaking to the Court. I note here that Mr. Choquette initialed the individual special conditions and signed that undertaking in July 2018. VI. MR CHOQUETTE’S EVIDENCE [ 31 ] I now turn to Mr. Choquette’s defence. Mr. Choquette testified along with Kyla Gordon. I will first focus on Mr. Choquette’s evidence on the issue of care and control. [ 32 ] Mr.

Choquette testified that he participated in a baseball tournament the afternoon before he was arrested. He drank “a few beers” during the tournament with his teammates. After the tournament, Kyla Gordon acted as the designated driver and drove the team to the Legion where they arrived “probably say 10 or 11” pm. [20] He claimed he never had the keys to the vehicle while he was at the Legion. [ 33 ] At the Legion, they were “celebrating, having a ball”. He said he did not recall how many beers he drank there, “more than one for sure”.

At some point before closing, Legion staff told him to leave because he was intoxicated. Mr. Choquette said Kyla was going to drive him home, and that she was in the coat check area leaving behind him when he left. Mr. Choquette went outside, ordered food from a food truck, and went into the vehicle because “I didn’t want to stand outside in the cold”. [21] Mr. Choquette sat in the driver’s

seat. [ 34 ] Mr. Choquette said he did not have any intention of driving home. He said the police were at the scene “pretty quick” once he had left the Legion, ordered his food, and entered the vehicle. Mr. Choquette acknowledged there were two sets of keys to the vehicle, but said that he had not had possession of the car keys which the police found near the pedal upon his arrest. Mr. Choquette denied having tried to hide those keys. [22] He admitted to having driven that vehicle in the past. [ 35 ] Concerning the bail breach allegation, Mr.

Choquette said that he had thought the associated charge “had gone away” and that he was free to drink alcohol. [23] [ 36 ] In cross examination, Mr. Choquette agreed he had read and initialed the conditions of his undertaking which contained the no alcohol condition, but he did not remember seeing it. He was, however, able to recall other bail conditions contained in the same undertaking. [ 37 ] Mr.

Choquette explained his decision to get into the vehicle as follows: “I just – I didn’t want to be outside, you know, standing with my food”. [24] He did not sit in the passenger’s seat, from which he had earlier exited the vehicle when they arrived at the Legion – because he thought the driver’s seat “was the best seat to sit in”. [25] Mr. Choquette denied turning on the vehicle to warm it up and that the vehicle’s keys were beside the pedal. [ 38 ] The Defence called Kyla Gordon to testify. She said that Mr. Choquette had told her he was being kicked out of the Legion, and that he needed her to drive him home.

She said she followed him, and he left the building as she lined up to get her jacket. She said it took her between 10 to 15 minutes before she got her coat and left the Legion. When she got outside, Mr. Choquette was no longer there, although the vehicle was. VII. ANALYSIS [ 39 ] In my analysis, whenever I say I am satisfied, I mean that I am satisfied beyond a reasonable doubt. A. May the prosecution rely on the presumption of care and control? [ 40 ] I will deal first with whether the prosecution may rely on the presumption that Mr. Choquette had care and control of the vehicle. [ 41 ] Ms.

Gordon testified that she was Mr. Choquette’s designated driver that day and that Mr. Choquette sought her out to drive him home as he was being evicted from the Legion. At that time, she still had a set of keys to the vehicle which Mr. Choquette had provided to her some time earlier. She got in line to retrieve her belongings so she could drive him home. I have no reason to disbelieve Ms. Gordon. Consequently, I find that Mr.

Choquette has rebutted the presumption that he had care and control of the vehicle on a balance of probabilities. [ 42 ] This rebuttal places the burden squarely on the prosecution to prove its case against Mr. Choquette beyond a reasonable doubt. B. Has the prosecution proven that Mr. Choquette had care and control of the vehicle for the purposes of counts one and two? [ 43 ] I found Mr. Choquette’s evidence to be self-serving and generally unbelievable. Mr. Choquette presented himself as a confident witness until he insisted on his innocence.

I noted his demeanour change at this point in his evidence when he became obviously uncomfortable.

[ 44 ] Mr. Choquette testified that he had no intention of driving or of taking control of the vehicle. Yet he chose not to sit in the passenger’s seat even though he expected Ms. Gordon to join him any moment. Mr. Choquette sat in the driver’s seat. He said in direct examination that he entered the vehicle because “I didn’t want to stand outside in the cold”. But in cross examination, he stated that he entered the vehicle because “I just – I didn’t want to be outside, you know, standing with my food”. This inconsistency is a significant one as it speaks directly to Mr.

Choquette’s state of mind at that critical point in time. [ 45 ] I do, however, accept Mr. Choquette’s evidence that it was cold outside when he left the Legion. [ 46 ] Mr. Choquette acknowledged that there were two sets of keys to the vehicle, and that he had provided one of the sets to Ms. Gordon. I do not believe him when he claims that he did not know where the other set of keys was that night. Immediately after Mr. Choquette’s arrest, the police found the second set of keys next to the vehicle’s pedals. The keys were next to where Mr. Choquette had placed his feet just seconds before. I do not believe Mr.

Choquette when he says that he did not know that the second set of keys were at his feet. There is absolutely no air of reality to his assertion on that point. [ 47 ] I am satisfied that on this chilly autumnal-like evening and early morning, the ambient air temperature was cold. I am also satisfied that Mr. Choquette and his mates were in the Legion for somewhere between two and a half to three and a half hours by Mr. Choquette’s own estimate. [26] Yet, Cst. Hubert was struck by the heat which was emanating from the wheel well which caused him “instinctively” to put his hand on the vehicle’s bonnet.

The bonnet was warm. The only rational inference I can draw from this credible and reliable evidence is that the car’s engine had been engaged and running after Mr. Choquette had left the Legion. There is no evidence which suggests that anyone else but Mr. Choquette entered the vehicle before the police arrived. I simply do not believe Mr. Choquette that he did not start the vehicle’s engine. [ 48 ] I have also considered the relevance and probative value of Mr. Choquette’s oral statements to the police. Mr.

Choquette got hot under the collar and was verbally aggressive to the police, at one point demanding they give him their police badge numbers, all the while insisting that he had only drank one beer. I accept Cst. Hubert’s evidence that Mr. Choquette was “highly intoxicated”. Cst. Hubert’s conclusion is borne out by the breath test readings which were well above twice the legal limit. The only rational inference I may draw is that Mr. Choquette was less than honest with the police, and I must assess his credibility with great caution. [ 49 ] I accept Ms.

Gordon’s evidence that she did not exit the Legion for 10 to 15 minutes after Mr. Choquette left. I accept the evidence of the police that there were many Legion patrons milling around outside and leaving the Legion at this time. Mr. Choquette was behind the wheel with a set of keys. He had turned on the vehicle’s engine. He was highly intoxicated. I am satisfied beyond a reasonable doubt that Mr.

Choquette’s actions in the circumstances of this case posed a realistic risk that he might have placed the vehicle in motion, endangering the Legion patrons who were in the immediate area. [ 50 ] The facts of this case are similar to those in R v Pilon , including having the keys to the vehicle at his feet, except for the fact that Mr. Pilon was found asleep behind the driver’s wheel. In Pilon , the Ontario Court of Appeal affirmed the decision of the

summary court appeal judge that the trial judge had properly convicted the accused. [27] [ 51 ] I am satisfied beyond a reasonable doubt that the prosecution has met the three-part Boudreault test and proven that Mr. Choquette assumed care and control of the vehicle outside the Legion on September 9, 2018. [ 52 ] The Kienapple principle applies here. [28] The Crown is seeking a conviction on count two, so I find Mr. Choquette guilty of care and control of a motor vehicle while his blood alcohol content exceeded 80 milligrams of alcohol per 100 millilitres of blood. [ 53 ] Consequently, I stay count one. C.

Did Mr. Choquette have a lawful excuse to drink alcohol on September 9, 2018? [ 54 ] As I noted earlier, Mr. Choquette testified that he believed he was free to drink alcohol because the charge pertaining to his bail conditions “had gone away”. In cross examination, Mr. Choquette agreed he had read and initialed the conditions of his undertaking which contained the no alcohol condition, but he did not remember seeing it. He was, however, able to recall other bail conditions contained in the same undertaking. I do not believe Mr. Choquette and his evidence did not raise a reasonable doubt.

Indeed, I reject his explanation again because there is no air of reality to it.

[ 55 ] I am satisfied beyond a reasonable doubt that Mr. Choquette was bound by the conditions of his bail release not to drink alcohol, that he knew that he was subject to that no-alcohol bail condition, and that he drank alcohol anyway on September 9, 2018. I find him guilty of count three. Dated at the City of Iqaluit this 16th day of February, 2021 ___________________ Justice P. Bychok Nunavut Court of Justice