R. v. Bell, 2022 MBPC 23

CITATION: R. v. Bell, 2022 MBPC 23 IN THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN: Her Majesty the Queen ) J. Mays ) for the Crown -and- ) ) Mazlin BELL ) J. Janssens ) for the Accused Accused ) ) ) ) Reasons for Decision ) Delivered: April 28, 2022 at ) the City of Brandon, in the ) Province of Manitoba INTRODUCTION [ 1 ] Police found the intoxicated accused in the driver’s seat of a parked vehicle that was not running. The keys were in the backseat tucked between the seats.

The accused denies driving or any intention to drive, and claims she entered the driver’s seat moments before police found her there. [ 2 ] The only issue is care or control. Did the defence evidence rebut the presumption of care or control and, if so, did the circumstances create a realistic risk of danger? EVIDENCE Police [ 3 ] Police attended a bank parking lot on 18 th Street in Brandon responding to a concern about a woman drinking in the driver’s seat of a vehicle.

Upon approaching the accused’s vehicle, police found the accused in the driver’s seat and two passengers in the back seat. [ 4 ] The officer smelled liquor on the accused’s breath. She admitted consuming alcohol and showed obvious signs of impairment by alcohol. There was open liquor in the vehicle, notably two cups in the front console proximate to the accused. [ 5 ] The accused was not particularly cooperative or responsive to the officer’s investigation, though she did answer some questions and she did provide some information, sometimes speaking over the officer. She adamantly denied driving.

When asked about being in the driver’s seat she said it was to change and listen to music. She said there was a driver but did not identify a driver by name. [ 6 ] Police removed the occupants from the vehicle, searched it, and seized open liquor as well as a set of keys tucked between the seats in what the officer perceived to be an attempt to conceal them. One of the keys started the ignition and police confirmed the vehicle was operable before having it towed. [ 7 ] The backseat occupants did not identify a driver.

They were uncooperative and declined to provide statements. [ 8 ] During the 33 minutes police were on scene, no one attended and presented as the driver of the vehicle. [ 9 ] The accused’s blood alcohol concentration was 160 milligrams percent.

Accused [10] The accused says she was up drinking until 2:30 AM. She slept in and missed an appointment. She woke up about noon. FionaShingoose [Shingoose], who had been drinking with her the night before, came to the accused’s house asking to borrow her vehicle todrive to Brandon. The accused agreed and asked to go along. Shingoose needed to “do some banking and stuff” and the accused wantedto buy groceries. [11] Shingoose drove the accused’s vehicle back to her own home to get ready then returned and picked the accused up. Shingoose wasdriving. The accused was in the front passenger seat.

Ronalda Ross and Albert Bell were in the backseat. The accused and Shingoosewere drinking “king cans” in the vehicle. [12] The bank on 18th Street was their first stop. Shingoose parked the vehicle. Without saying anything, Shingoose got out andunexpectedly ran in the opposite direction of the bank. The accused jumped over into the driver’s seat because she did not see the keys inthe ignition and wanted to look for them. She was worried about how they would get home. She did not find the keys.

She did not intendto drive but was planning to phone her uncle Perry Tacan and his son to come in and drive them back to Sioux Valley. [13] The accused was in the driver’s seat an estimated two or three minutes before police confronted her. She denies being difficult ordisrespectful with police. She says she identified Shingoose by name as the driver of the vehicle. [14] The accused testified she did not speak to Shingoose about the incident because Shingoose died four days later. Backseat Passenger [15] Albert Bell is the 63-year-old uncle of the accused.

He travelled to Brandon with the accused and two other women. They came tohis house. They were all drinking together. He was drinking vodka. Then Shingoose drove them to Brandon. He went along for the ride.He assumed they were going to “another party”. He thinks they left his house for Brandon in the morning. He thinks they made a coupleof stops before they got to the bank, but concedes he was not really paying attention. [16] He did not see Shingoose “take off”. He thought she was in the bank. He did not know how the accused got in the driver’s seat.

Henever had the keys and he never saw the keys moved within the vehicle. [17] When asked if the group stopped to buy alcohol before getting to the bank, he said “probably”. He conceded he was drinking a lotthat day. He admitted he might be forgetting things that happened and may even have blacked out. CARE OR CONTROL [18] The law presumes a person who occupies the driver’s seat of a motor vehicle is in care or control.

The presumption is rebuttable.The accused must show on a balance of probabilities she did not occupy the driver’s seat for the purpose of setting the vehicle in motion.[Section 320.35 CCC] [19] If the accused rebuts the presumption, the Court must assess the particular circumstances of the case and determine whether theaccused’s involvement with the vehicle created a realistic risk of danger to persons or property. This is neither an onerous nor ameaningless threshold. The risk must be more than just “theoretically possible” but something less than “probable” will suffice. [See R.v.

Boudreault 2012 SCC 56] [20] Courts have identified several factors that may be relevant in the risk of harm assessment. [See R. v. Boudreault, paragraphs 48-53;R. v. Smits, 2012 ONCA 524 at paragraph 63; and R. v. Szymanski (ON SC), [2009] O.J. No. 3623 at paragraph 34] [21] The crown must prove care or control beyond a reasonable doubt. CREDIBILITY Police [22] The officer is a trained observer who was on duty and sober at the time. He made notes in respect of his involvement, which heused to refresh his memory. His evidence seemed forthright, internally consistent, and logical.

I have no concerns with his credibility andaccept his evidence as reliable. Accused [23] I assess the accused’s evidence within the framework of R. v. W. (D.) (SCC), [1991] 1 SCR 742. If I believe herdenials or they raise a reasonable doubt about her guilt, I must acquit. Even if I do not believe her and she does not raise a doubt, I mustonly convict if the evidence I accept proves her guilt beyond any reasonable doubt. [24] The accused’s evidence was not credible in aspects material to her defence.

I do not believe her version of events and find itinsufficiently reliable to inspire reasonable doubt. [25] The accused had a blood alcohol concentration double the legal limit and she showed signs of significant impairment. Intoxicationis not fatal to an assessment of credibility, but it is a red flag in terms of the reliability of a person’s perception and recall of events. [26] There are contradictions and inconsistencies in the accused’s version of events and within the defence evidence.

• The accused testified Shingoose picked her up in the afternoon and they drove to Brandon. She did not mention stopping at her uncle’s place and drinking before coming to Brandon. Albert Bell testified the women came to his home in the morning and they all drank together before driving to Brandon. • Defence counsel asked the accused if she ever had the keys to the vehicle in her possession that day. The accused answered, “ No, just when I left my house .” However, she also testified Shingoose came to the house and asked to use the vehicle. The accused said she agreed.

Shingoose took the vehicle back to her own home then returned later to pick the accused up. If the accused was not driving and Shingoose picked her up, she would not have had the keys in her possession when she left her house that day. • The accused told the officer she was in the driver’s seat to change and listen to music. She told a different story in court – that she got into the driver’s seat to look for the keys when Shingoose ran from the vehicle.

Moreover, telling the officer she was in the driver’s seat to control the music is inconsistent with the fact the vehicle was not running and the keys were in the backseat (i.e. there could not have been music coming from the vehicle). • In direct examination, the accused said when Shingoose ran from the vehicle, she quickly jumped into the driver’s side focussed on locating the keys and worried about how they would get home.

In cross-examination, the accused agreed she was surprised when Shingoose ran but added that she was laughing and thought it was funny. [ 27 ] The accused’s version of events does not account for, or explain, the fact police found the keys concealed between the seats in the back of the vehicle. If Shingoose abandoned the vehicle and group, there was no reason to remove the keys from the ignition or to move or hide them, nor did the accused hear Shingoose tell the backseat passengers to take or hide the keys.

On the accused’s version of events, there was no rationale or motive for any of the occupants to move or conceal the keys. The only person with an identifiable motive to distance herself from the keys was the unlicensed, impaired accused in the driver’s seat. [ 28 ] The officer’s evidence contradicted that of the accused in some respects. Notably, the accused insists she identified Shingoose as the driver of the vehicle. The officer contradicted that assertion. [ 29 ] It is the totality of these enumerated concerns, not any one concern in isolation, that renders the accused’s evidence unbelievable.

Backseat Passenger [ 30 ] Albert Bell was not a credible witness. His evidence is not reliable where uncorroborated. He concedes he was drinking to the point his memory of the day is not good and may even have blacked out. He is the accused’s uncle, not an independent observer. He was uncooperative with police during the investigation and declined to provide a statement. ANALYSIS Did the accused rebut the presumption of care or control? [ 31 ] There is some evidence pointing to the possible presence of a fourth person in the vehicle that day. Police noted two drinks in the front console.

In addition, there were two passengers in the back seat. Had there not been a fourth person in the vehicle, likely one of the backseat passengers would have been in the front passenger seat.

While I suspect the accused was the driver and Shingoose a convenient scapegoat, it is reasonably possible someone else was in the vehicle that day and drove it to the bank parking lot. [ 32 ] Even if Shingoose was the driver and fled the vehicle in the unexpected and unusual manner alleged, the accused’s evidence about how she came to be in the driver’s seat and her purpose for being there is not sufficiently believable or reliable to rebut the presumption of care or control, even on a balance of probabilities. [ 33 ] First, the accused was intoxicated.

Her ability to accurately perceive and process the unexpected situation she claims unfolded over a three-minute period is highly suspect. Second, her claimed capacity to formulate a clear intention and plan in response to that unanticipated situation is beyond doubtful.

Third, the explanation she provided to the Court about why she was in the driver’s seat is wholly different from what she told the investigating officer. [ 34 ] At best, the accused had no settled intention about driving or not driving when she entered the driver’s seat. [ 35 ] Having failed to rebut the presumption, the Court finds the accused had care or control of the vehicle. Was there a realistic risk of danger in the circumstances? [ 36 ] Having found the presumption of care or control applies, there is no need for a risk of danger analysis so the following obiter finding is

summary in nature. [ 37 ] There was a realistic risk of danger in the circumstances of this case. [ 38 ] Even on the accused’s untrustworthy version of events, she occupied the driver’s seat of an operable vehicle. She was quite intoxicated. The keys were proximate. She had present ability to set the vehicle in motion. She was not at her final destination. She had not yet made it to the grocery store and her home was in a different community. She had no settled plan or arrangement in place to get herself and her passengers back to Sioux Valley.

She says she would have called her uncle and his son to come get her because they had helped her in the past. She had no idea whether that plan would come to fruition. She showed a disregard for public safety and the law when she allowed a person who had been consuming alcohol the night before and again that morning (including while driving) to operate her vehicle and by consuming liquor in the vehicle herself. There was a very realistic risk she would, while still impaired, decide to drive. CONCLUSION

[ 39 ] The accused had care or control of the vehicle pursuant to the unrebutted statutory presumption. I convict her of the

section 320.14(

b) CCC offence. “original signed by Judge Hewitt-Michta” Judge S. Hewitt-Michta