Her Majesty the Queen - v. -, 2014 SKPC 153

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 153 Date: August 15, 2014 Information: 24038580 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Shawn Oliver Gunther Appearing: B. Bauer, Q.C. (on the initial Charter application) For the Crown L. Morelli (on the trial proper) R. Piché For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused is charged that on or about March 25, 2012 he did have the care or control of his motor vehicle while impaired by alcohol and while over .08.

[ 2 ] The trial proceeded by way of initial Charter application which was dismissed with written reasons. [1] [ 3 ] At the conclusion of the voir dire , the Crown closed its case and on the adjourned date for trial, the Defence called the accused to give evidence on the issue of whether, on the facts, he was in care or control of his motor vehicle at the time he was encountered by police. [ 4 ] Since the accused was found in the seat ordinarily occupied by the driver, he is presumed by virtue of s. 258(1) (

a) of the Criminal Code [2] to have had the care or control of his vehicle unless he is able to rebut this presumption by demonstrating that his purpose was not to set the vehicle in motion. If so satisfied that he has rebutted this presumption, the Court must then decide whether he was nonetheless in actual or de facto care or control of his vehicle at the material time. [ 5 ] The law of care or control is complex and nuanced. The Court has canvassed many authorities in this regard and is grateful to counsel and Mr.

Tom O’Hara, articling student to the Provincial Court, for their excellent assistance on this issue. [3] [ 6 ] In the landmark decision of R. v.

Boudreault (supra) the Supreme Court articulated, inter alia , the following at para. 9 regarding the essential elements of the offence of “care or control” within the meaning of s. 253(1): [9] For the reasons that follow, I have concluded that “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 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. [ 7 ] At para. 42, the Court envisions “realistic risk of danger” to come about in three possible ways: [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.

The Court further acknowledged that “realistic risk of danger” is a low threshold and normally will be the only reasonable inference to draw where an accused is intoxicated and has a present ability to set a vehicle in motion. [4] [ 8 ] On the whole of the evidence, the Court is satisfied on a balance of probability that the accused has successfully rebutted the presumption in s. 258(1) (

a) of the Criminal Code in that he did not occupy the seat or position in the vehicle for the purpose of setting it in motion (see para. 9 (b)(c)(

d) infra ). Turning then to de facto care or control, the Court is satisfied that the first two elements [5] have been made out in that there was an intentional course of conduct associated with the motor vehicle and that the ability of the accused to operate the motor vehicle was impaired by alcohol, and that he was over .08 at the time. [6] [ 9 ] The only real issue then remaining is to determine whether, considering all of the relevant evidence, there was a realistic risk, rather than just a remote possibility, of danger to persons or property. The Court finds the following facts in this regard:

a) the accused had been drinking steadily throughout the day and knew that he was not in a condition to drive home despite the fact that it was only a couple of miles and therefore a few minutes to his destination;

b) he had a plan to stay with friends who lived in town however, when he returned from the washroom he was advised that they had left whereupon he immediately went onto the street but could not locate them. He believed that they may have gone elsewhere and accordingly did not want to go to the friends’ residence in the event that he was not able to gain entry;

c) he devised a new plan to sleep in his truck until 6:00 or 7:00 a.m. at which time he would contact two of his other friends to give him aride home. He knew they would be up by this time to go for coffee as was their usual habit;

d) upon entering his truck he started the engine for the purposes of keeping warm and then pushed the seat back (although not reclined)and placed his feet over to the left away from the pedals. He also did not put on his seatbelt as was his custom to do so when he wasdriving;

e) the truck was parked in the arena parking lot backed up against a row of trees. There were other scattered vehicles still in the parkinglot but no evidence of any other persons;

f) he already had a pending impaired driving charge and accordingly was acutely aware of the risks and dangers of operating his motorvehicle while in such condition and that should a second conviction occur he would lose his license for a very long time;

g) there was no indication that he attempted to move his vehicle between the time he entered it at approximately 1:30 a.m. and the timewhen encountered by police at roughly 3:30 a.m.;

h) where he was located in the parking lot was not close to any exit to the street;

i) placing the vehicle in motion would require pulling the gear shift towards him and down which he said would require some effortwhile simultaneously depressing the brake pedal. This would obviously be more difficult to accomplish given his body and feetposition, as stated;

j) his plan to have his two friends come and retrieve him in the morning appeared realistic in that these were the two individuals who infact did collect him from the Humboldt detachment later in the day;

k) given that he chose not to drive home which again, was only a few minutes away once his original plan had been frustrated by notbeing able to locate his friends in town, it is highly unlikely that he would then have suddenly awoken from sleep and decided to do so atthat time rather than sticking to his plan to call his friends after 6:00 a.m.;

l) although he displayed irrational behaviour when arrested by not conforming to police commands to submit to an arrest, he repeatedlystated that he had done nothing wrong. Once subdued however, he was thereafter compliant. [10] Having regard to all of the foregoing as a whole, the Court is unable to conclude that there was a realistic risk of danger posedby the accused in these circumstances, rather than simply a remote possibility of same. Accordingly, he is found not guilty of thecharges before the Court. ___________________________ R.D. Jackson, J [1] 2014 SKPC 49 , 2014 SKPC 049 [2] S. 258(1)(

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

section 253 or subsection 254(5) orin any proceedings under any of subsections 255(2) to (3.2), where it is proved that the accused occupied the seat or position ordinarilyoccupied by a person who operates a motor vehicle, . . . the accused shall be deemed to have had the care or control of the vehicle, . . .unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle . . . in motion . . . [3] R. v. Toews, (SCC), [1985] 2 S.C.R. 119 (S.C.C.); R. v. Donald Boudreault 2012 SCC 56 , [2012] 3 R.C.S.

157 (S.C.C.); R. v. Szymanski (2009) (ON SC), 88 M.V.R. (5th) 182, [2009] O.J. No. 3623 - see para. 93 for a usefullist of criteria to establish or refute that real risk has been made out; R. v. Shuparski (2003) 2003 SKCA 22 , 173 C.C.C. (3d) 97 (Sask. C.A.); R. v. Coleman 2012 SKCA 65 (Sask. C.A.); R. v. Andersen 2012 SKCA 37 (Sask. C.A.) 2014 SKCA 30, 112 W.C.B. (2nd)472 (Sask. C.A.); R. v. Buckingham, 2007 SKCA 32, [2007] 6 W.W.R. 73 (Sask. C.A.); R. v. Kupper [2014] A.J. No. 329 (Alta. P.C.);R. v. Abaza 2013 A.J. No. 1436 (Alta.

P.C.). [4] Para. 48 [5] Boudreault at para. 9 cited in para. 6 herein. [6] The accused admitted in evidence that he was intoxicated and that is why he was not going to operate his motor vehicle. Further, theinvestigating officers noted several of the usual signs of impairment including bloodshot and glossy eyes, difficulty focusing, smell ofalcohol emanating from his breath, slurring of words, slight stumble when exiting the vehicle and upper body swaying side to side whenstanding. As well, the Certificate of Analyses placed into evidence as Exhibit P-1 indicated a blood alcohol well in excess of the legallimit.