2022 QCCQ 13066, 2022 QCCQ 13066

R. c. Loon 2022 QCCQ 13066 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI LOCALITY OF CHIBOUGAMAU "Criminal and Penal Division" No. 170-01-000269-190 170-01-000272-194 DATE: April 6, 2022 ______________________________________________________________________ PRESIDING : THE HONOURABLE JEAN-FRANÇOIS POIRIER, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

CHRISTOPHER LOON Respondent ______________________________________________________________________ JUDGMENT ______________________________________________________________________ CHARGES [ 1 ] The accused stands trial on the following charges: File 170-01-000269-190 Count 1: On or about may 18, 2019, in Chibougamau, district of Abitibi, did operate a conveyance, to with a motor vehicle while his ability to operate it was impaired by alcohol, committing thereby the offence punishable on

summary conviction provided by

section 320.14(1)a) – 320.19(1) or the criminal Code. Count 2: On or about may 18, 2019, in Chibougamau, district of Abitibi, did have a blood alcohol concentration that was equal to or exceeded 80 milligrams or alcohol in 100 millilitres of blood, within two hours after ceasing to operate a conveyance, to wit a motor vehicle, committing thereby the offence punishable on

summary conviction provided by

section 320.14(1)b) – 320.19(1) of the criminal Code. File 170-01-000272-194 Count 1: On or about may 18, 2019, in Chibougamau, district of Abitibi, did fail to comply with a condition or an undertaking entered into before a peace officer or an officer in charge no: 253-190323 002, to wit:

c) Abstain from communicating directly or indirectly with Doris Ottereyes, committing thereby the offence punishable on

summary conviction provided by section 145(5.1)

b) or the criminal Code. Count 2: On or about may 18, 2019, in Chibougamau, district of Abitibi, did fail to comply with a condition or an undertaking entered into before a peace officer or an officer in charge no: 253-190323 002, to wit:

c) Abstain from going to [...] Chibougamau, committing thereby the offence punishable on

summary conviction provided by section 145(5.1)

b) or the criminal Code.

ADMISSIONS [ 2 ] In file 170-01-000269-190, the defence admits at the outset the identity of the accused, the free and voluntary nature of the accused’s statements, the accused’s blood alcohol concentration (150 mg and 140 mg), and the fact that the accused’s constitutional rights were respected [1] . [ 3 ] Therefore, the Court must determine whether the accused had care and control of the vehicle at the time of his arrest and whether he had operated the vehicle in the minutes preceding his arrest. [ 4 ] In file 170-01-000272-194, the defence admits the undertaking to the police and states that the charges will not be contested.

ISSUES ➢ In file 170-01-000269-190, did the accused have care and control of the vehicle within the meaning of the offence of impaired driving? ➢ Had the accused just operated the vehicle when he was arrested? ➢ In file 170-01-000272-194, despite the admissions, has the prosecution discharged its burden of proving the breach? REASONS [ 5 ] The accused testified. [ 6 ] He was in Chibougamau to purchase various items so that Ms. Ottereyes would come to live with him again in Mistissini. [ 7 ] To celebrate their family reunion, the four people decided to go to Le Cabaret bar in Chibougamau.

They arrived around 10 p.m. The youngest, X, stayed in the car because she was 17 years old and was not allowed in the bar. [ 8 ] The accused had eight or nine beers. He testified, however, that he was not very impaired. [ 9 ] According to the accused, Ms. Ottereyes was drunk when they left the bar. He said that she was the most inebriated of the group, but that she was the one who drove the entire family back to her apartment in the pickup truck, while the accused sat in the passenger seat.

Later, he did not remember whether he was sitting in the front passenger seat or in the back seat. [ 10 ] The accused said that, once at Ms. Ottereyes’s home, he exited the vehicle and then went back to get some beer. It was then, while he was outside the vehicle, that he saw the police officers. [ 11 ] He never started the car. [ 12 ] The police officers took the keys from his hands. [ 13 ] His two children and Ms. Ottereyes witnessed the arrest. [ 14 ] The Court does not believe the accused. He is certainly not very reliable, given his admitted consumption of eight or nine beers.

His credibility is also undermined by his own version, which states that he was not really impaired despite the amount he had consumed and the fact that he allowed Ms. Otereyes, whom he knew was highly inebriated, to drive with the two children on board. At one point he said he was not smoking a cigarette, but later in his testimony he said that he was. [ 15 ] The accused does not raise a reasonable doubt. The Court notes that he could not be in Ms. Ottereyes’s presence without breaching his conditions. His testimony was disjointed and full of anger towards the police officers.

He contradicted his earlier statement that he had drunk not only beer but also shooters and a cocktail. [ 16 ] The accused’s daughter, Emma Loon, testified. The Court finds her no more credible than her father. She also accused the police officers of lying about her absence from the site of the arrest. She merely added contradictions and improbabilities to her father’s testimony, which already contained many. [ 17 ] For example, she said that the initial plan was for her younger sister X to drive them home, although she did not really know whether she had a driver’s licence.

She said that when the police officers arrested her father, they first said it was for drunk driving, although her father testified that the arrest was because he was not allowed to be at that address. [ 18 ] At trial, the prosecution called the two police officers who took

part in the intervention, Officer Vincent Hébert and Officer Alexis Roy. [ 19 ] Officer Hébert is a patrol officer for the Sûreté du Québec at the Chibougamau station. An anonymous call came in reporting that the accused and his former spouse Ms. Ottereyes were inebriated when they left the Le Cabaret bar in a blue F-150 pickup truck. [ 20 ] A colleague at the station knew that Ms. Ottereyes lived at [...], Chibougamau. It took Officer Hébert and his partner, Officer Roy, less than three minutes to get there. They arrived at 3:27 a.m. They saw the vehicle they were looking for. Quickly, they parked nearby and turned on their flashing lights.

[ 21 ] The two police officers observed that the vehicle was running and that the headlights and taillights were on. The doors of the vehicle were closed. They saw a man inside, sitting in the driver’s seat. They do not recall whether the individual was wearing a seatbelt. [ 22 ] Officer Hébert shone his flashlight into the cab of the truck, and the occupant did not react. The officer knocked on the truck window, and the occupant started, quickly removed the keys from the ignition, and exited the vehicle.

Officer Roy adds that he saw him quickly put down a joint, and he believes that the police officers had the time to ask a question before the individual exited the vehicle. [ 23 ] As he existed the vehicle, the individual lost his balance and dropped his keys, which the police officers picked up. Officer Hébert had to hold the accused so he would not fall on the ground. Both police officers noticed that the individual’s eyes were bloodshot, that his speech was slurred, that he had trouble speaking, and that he smelled strongly of alcohol. [ 24 ] According to Officer Hébert, Ms.

Ottereyes was a few centimetres from the passenger door. He had the impression that she had just exited the vehicle because the light inside the cab was still on and she was heading towards the porch to her apartment. [ 25 ] The police officers asked the individual whether he had consumed alcohol. The individual answered in the affirmative, saying that he was just at the Le Cabaret bar. [ 26 ] At the police officers’ request, the individual identified himself.

It was the accused. [ 27 ] Officer Hébert observed that the vehicle was in good operating condition and that there was no obstacle preventing him from leaving. The accused was the owner of the vehicle. [ 28 ] The police officers saw no one on the premises other than the accused and Ms. Ottereyes. [ 29 ] At 3:30 a.m., the police officers arrested the accused. On their way to the station, they consulted their databanks and realized that the accused was in breach of a condition because he was prohibited from being at the address where he was arrested and from being in Ms. Ottereyes’s presence.

The police officers arrested him again. According to Officer Hébert, at that point the individual said, “yes I was driving”. According to Officer Roy, he said “I was driving and then I smoke weed in the car”. [ 30 ] Officer Roy said that the individual was cooperative throughout the intervention. [ 31 ] Officer Hébert stated that the police officers tried unsuccessfully to send the accused to the home of some family members or friends. When at the station, the accused continued to express his wish to return to see Ms.

Ottereyes, even though he did not have the right to do so; as a result, Officer Hébert preferred to keep him in a cell overnight before sending him in a taxi to his home in Mistissini the following day. [ 32 ] The Court finds that the police officers are credible and precise. They testified separately and provided essentially identical versions. They have no preconceived notions about the accused. They based themselves on the facts. The Court believes them unreservedly. The accused made admissions to the police officers about his operation of the vehicle and his use of cannabis.

Also, the accused still wanted to go back to her home once he was at the station. [ 33 ] In R. v. Boudreault , the Supreme Court of Canada defines the principles governing care and control while impaired [2] . An impaired person who is caught sitting in the driver’s seat must adduce credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. [ 34 ] The Supreme Court directs judges to analyze all the facts and proposes elements to consider to make this task easier.

The Court is also inspired by the criteria listed below, suggested by the Court of Appeal for Ontario in Smits [3] . [ 35 ] First, the level of impairment is relevant to the likelihood of exercising bad judgment and the time required for the accused to become fit to drive again. The accused’s blood alcohol concentration was twice the legal limit. He had already exercised bad judgment by driving the truck from the bar to Ms. Ottereyes’s home or, if we are to believe his version, by allowing Ms.

Ottereyes, who was drunk, to drive with the two children on board. [ 36 ] Second, the keys were in the ignition or readily available, even if the accused’s version is believed. [ 37 ] Third, according to the version accepted by the Court, the vehicle was running. [ 38 ] Fourth, the location of the vehicle, with no obstacle in front of or behind it, made it possible to leave. [ 39 ] Fifth, the accused seemed to have reached his destination, but it is also possible that he was going home to Mistissini or elsewhere because he was not allowed to be at Ms.

Ottereyes’s apartment, given the conditions he had to comply with. [ 40 ] Sixth, according to the version accepted by the Court, the accused’s attitude was to quickly remove the keys from the ignition and hide his joint. The accused reacted like someone who felt guilty about something. [ 41 ] Seventh, the fact that he was at the wheel and Ms.

Ottereyes was outside the vehicle on the passenger side suggests that he drove back to the apartment. [ 42 ] Eighth, there is no evidence that the accused tried to sleep it off in his vehicle before driving. [ 43 ] Ninth, the accused has adduced no evidence of a plan to get home that did not involve using his vehicle. [ 44 ] Tenth, the court cannot rule on whether the accused stated an intention to drive since it did not hear any evidence on the subject.

[ 45 ] Eleventh, according to the version accepted by the Court, the accused was sitting in the driver’s seat. [ 46 ] Twelfth, there is no evidence that the accused was wearing his seatbelt.

The police officers do not remember. [ 47 ] Thirteenth, there is no evidence that the accused failed to take advantage of alternate means of leaving the scene. [ 48 ] Fourteenth, there is no evidence that the accused had a cell phone with which to make other arrangements. [ 49 ] In view of the foregoing, there is no doubt in the Court’s mind that the accused had care and control of the vehicle while his blood alcohol level exceeded the legal limit.

There was an intentional course of conduct associated with the motor vehicle in circumstances creating a realistic risk of danger to persons or property, pursuant to Boudreault and Smits , cited above. [ 50 ] That being the case, has the prosecution proved that the accused had just operated the vehicle when he was arrested? [ 51 ] If it is proved that, at the time of his arrest, the accused occupied the driver’s seat, he is presumed to have been operating the conveyance unless he establishes that he did not occupy that seat or position for the purpose of setting the conveyance in motion. [4] For the reasons outlined above, the Court attaches no credibility to the accused’s explanations in his testimony, and he has therefore failed in his attempt to establish a rebuttal to this presumption. [ 52 ] With respect to the breach, it is admitted and the evidence is overwhelming.

The accused could not be at Ms. Ottereyes’s address or spend time with her. He was arrested while in her company, since they were planning to move in together in Mistissini, and even once at the police station, the accused wanted to be released and brought to Ms. Ottereyes’s home. [ 53 ] The Court therefore answers the three questions at issue in the affirmative.

FOR THESE REASONS, THE COURT: [ 54 ] FINDS the accused guilty on Count 2 in file 170-01-000269-190; [ 55 ] ORDERS a conditional stay of proceedings on Count 1 in file 170-01-000269-190; [ 56 ] FINDS the accused guilty on Counts 1 and 2 in file 170-01-000272-194. ____________________________ JEAN-FRANÇOIS POIRIER, J.C.Q. Mtre Marie-Michelle Boulianne-Otis Counsel for the prosecution Mtre Marie-Michelle Grenier Counsel for the defence Dates of hearing: July 6 and November 16, 2021