Her Majesty the Queen - v. -, 2011 SKPC 124

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 124 Date: July 19, 2011 Information: 42402321 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jordan P. Breland Appearing: Lori Chambers For the Crown Ron Piché For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] On December 18, 2009, Mr. Breland was charged with having the care or control of a motor vehicle while his ability to do so was impaired by alcohol contrary to s. 253(1) (

a) and s. 255(1) of the Criminal Code and secondly, with having the care or control of a motor vehicle while his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1)(

b) and s. 255(1) of the Criminal Code .

[2] A voir dire was held to determine a number of preliminary issues which were decided in a written decision reported as R. v.Jordan Breland, 2011 SKPC 54 , 2011 SKPC 054. As a result the Certificate of Analyses was found to be admissible. [3] When the matter continued, counsel agreed that the Crown evidence called on the voir dire could be applied to the trialproper. The accused, who had not testified on the voir dire, gave evidence on the trial. EVIDENCE [4] The Crown evidence has been set out in detail in Breland, supra.

Briefly stated, I found that Constable Danielson andConstable Shirran were on patrol when they spotted a large white truck parked on a main thoroughfare at 3:58 a.m. They noted anindividual who appeared to be sleeping in the driver’s seat and proceeded to check on him. The engine of the vehicle was running andvery loud music could be heard through the closed windows of the truck. [5] The officer had great difficulty rousing this individual who was the accused and the only person in the vehicle. A pressurepoint technique was resorted to before the accused wakened. Once awake, Mr.

Breland’s eyes were noted to be quite glossy and red andnot focusing. He was confused as to his whereabouts and indicated initially that he was just outside Red Deer. He smelled of alcoholand mumbled as he spoke. He did not have any difficulty getting out of the truck or walking. As a result of these observations,Constable Danielson made a demand that he provide samples of his breath for analysis. Two tests were subsequently taken and bothresulted in a reading of 170 milligrams of alcohol in 100 millilitres of blood. [6] The evidence of Jordan Breland can be summarized as follows: (

a) Mr. Breland is 25 years old and employed at Edson, Alberta as a welder. On December 18, 2009, he had been working in Conklin,Alberta where he was involved in outdoor construction at an oil field. He started a four hour shift at 6:00 a.m., then drove for eighthours. He was alone on the journey and arrived in Saskatoon at approximately 6:30 p.m. He called his friend, Brennan, whom he metfor dinner at a local restaurant at about 7:00 p.m. During the one to one and one half hours at the restaurant, he drank two beer with hismeal.

Afterward, they went to Brennan’s home where they visited and he consumed three more beer. They decided that they wouldvisit another friend, Blair, and took a cab to his residence. There, they played video games and he consumed another beer. Hiscompanions went to the bar but because he was exhausted, he took a cab back to his friend Brennan’s house where his vehicle had beenleft. At Brennan’s, he discovered that no one was home and the door was locked. (

b) He waited in his vehicle which was a F350 long box company truck with an automatic transmission with the gear shift on the rightside of the steering wheel. He testified that in order to set the vehicle in motion he would put on his seat belt, apply the brake and pullthe gear shift toward himself and down to select “drive”. He indicated that this required a fair bit of force, particularly as it was coldoutside. (

c) He waited in the truck for about an hour and when no one arrived home he decided to go to the residence of another friend, Steve,who lived on Pinehouse Drive, approximately a five minute drive away. When he arrived at that residence he got out of his vehicle anddiscovered that no one was there either. He returned to his vehicle and drove approximately 100 yards before deciding to sleep in thetruck; he believed that he had been there for two to three hours before the police discovered him. He described the seat in his vehicle asa bucket seat which he reclined in order to fall asleep.

He also removed his seat belt and left the radio playing as he always falls asleepto background noise. He testified that he is a very heavy sleeper and that there are often difficulties awakening him. At the time thepolice arrived he had absolutely no intention to drive. (

d) In cross-examination, he acknowledged that he had six Pilsner beer over the course of the evening and that he did not have anyalcohol in his vehicle. He left his friend Blair’s home between 12:30 a.m. and 1:00 a.m. and did not consume any alcohol after he leftBlair’s. He acknowledged that he had a cell phone and admitted that he tried to call a taxi while waiting at Brennan’s but none wereavailable. He could not say which cab company he attempted to call; nor did he say why he called the cab company. He agreed that heleft Brennan’s home between 1:30 and 2:00 a.m. and that he was able to enter the lobby at Steven’s apartment building. He did not agree

that he had too much to drink but acknowledged that given the degree of his fatigue he probably ought not to have been driving; hedenied any knowledge that his blood alcohol level was more than twice the legal limit. He considered himself sober but tired. ISSUES [7] The only issues to be resolved are as follows: 1. Does the evidence establish, beyond a reasonable doubt, that the ability of the accused to operate a motor vehicle was impairedby alcohol? 2. Does the presumption of care or control apply and if it does, has that presumption been rebutted? 3. Has the Crown proven actual care or control?

DEFENCE POSITION [8] Counsel for the accused argues that the accused presented in a credible manner and has rebutted the presumption of care orcontrol on a balance of probabilities and the Crown has not established actual care or control. The accused abandoned his intention todrive more than two hours prior to being found by the police and demonstrated this intention by removing his seat belt and reclining hisseat. Counsel also argues that the evidence does not establish the degree of impairment necessary to support a conviction for drivingwhile impaired.

CROWN POSITION [9] The Crown argues that the presumption has not been rebutted and alternatively, that the accused was in actual care or controlof the vehicle. There existed a risk that, if awakened, the accused could set the vehicle in motion. THE LAW [10] Section 258(1)(

a) of the Criminal Code states in part: . . . where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle...theaccused shall be deemed to have had the care or control of the vehicle...unless the accused establishes that the accused did not occupythat seat or position for the purpose of setting the vehicle...in motion . . . [13] If the presumption applies, it provides proof of both the actus reus and mens rea of the offence.

However, this presumption canbe rebutted by evidence, which if accepted, establishes on a balance of probabilities that the accused did not assume that position withthe intention of setting the vehicle in motion: see R. v. Ford, [1982] S.C.R. 231 (S.C.C.) at para. 6 and R. v. Shuparski, 2003 SKCA 22, 2003 SKCA 022 at para. 23. [14] Should the accused lead evidence capable of rebutting the presumption, it is the open to the Crown to prove de facto care orcontrol by establishing both the actus reus and mens rea of the offence without relying on the presumption. In R. v.

Toews, (SCC), [1985] 2 S.C.R. 119 at para. 7, the Supreme Court of Canada defined the elements of the offence of care or control as follows:

... the mens rea for having the care or control of a motor vehicle is the intent to assume care or control after the voluntary consumption of alcohol or a drug. The actus reus is the act of assumption of care or control when the voluntary consumption of alcohol or drug has impaired the ability to drive.

In proving its case, the Crown must establish the presence of impairment by evidence in the usual way and the element of care or control may be established either by reliance upon the presumption...where it is applicable, or by showing actual care or control without reliance on the presumption... [15] An intent to drive or set the vehicle in motion is not essential to the proof of the offence of care or control.

Rather as stated in Toews , supra at para. 10 : ...that acts of care or control, short of driving, are acts which involve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve the risk of putting the vehicle in motion so that it could become dangerous.

Each case will depend on its own facts and the circumstances in which acts of care or control may be found will vary widely. [16] Much judicial ink has been expended in the determination of care or control in circumstances where an accused is found behind the wheel of a motor vehicle and testifies that the only intention was to use the vehicle as a bedroom or as shelter.

At para. 47 of Shuparski, supra, the Saskatchewan Court of Appeal said: ...the element of dangerousness arising from the risk of putting a vehicle in motion while a person is under the influence of alcohol is at the centre of these care or control cases. The elimination of that element of dangerousness is what Parliament had in mind when it passed the legislation in question.

Whether a potential for dangerousness should be a cause for concern where a person is in a “ position ” to set a vehicle in motion depends not so much on the physical “ position ” the person happens to be in as it does on his attitude or disposition towards potential dangerous situations. If it is nonchalant, non-caring or reckless, that is one thing.

If the attitude is to specifically address the situation with a view to eliminating it, that is quite another. [emphasis mine] [17] In Shuparski , the accused testified that en route to his home he stopped his vehicle when he felt that he could not safely continue driving because of a combination of alcohol consumption and fatigue. He turned off the ignition, placed the keys on the passenger seat, locked the doors, reclined his seat and fell asleep. Thus he was found by the police some two hours later.

The Court concluded, at para. 47: . . . the defendant’s deliberate rational decision, after he realized his driving may be creating a dangerous situation, to stop his driving in order to sleep is strong evidence of his attitude to potential dangerous situations...

Given that attitude, it is unlikely that after eliminating one potential dangerous situation, he would be apt to create a new dangerous situation by driving after he awoke if he was unfit to drive....when the facts of the case are viewed from an “overall” perspective that element of dangerousness that is central to all of these care or control cases was not present. . . [18] In R. v. Johnstone, 2009 SKPC 133 (Sask. P.C.), the accused was found asleep behind the wheel of a motor vehicle in which the engine was running, the headlights were on, the radio was playing and the doors were locked.

The accused’s hand was resting on the gearshift. He acknowledged that he had driven to that location from the bar and that he parked his vehicle in order to sleep off the effects of the alcohol he had consumed. Jackson J. found these facts to fall squarely on point with the decision of R. v. Buckingham, 2007 SKCA 32 (Sask. C.A.) and held that although the presumption had been rebutted, the Crown had established actual care or control. [19] In Buckingham , supra , the accused intended to follow his usual practice of taking a cab home after an evening of drinking.

The wait was longer than he had anticipated, so, to stay warm, he got into his vehicle, started the engine, and depressed the gas pedal to speed up the heater. He was found slumped over the wheel, asleep with his foot on the gas pedal, revving the engine. The trial judge found that the accused had rebutted the presumption, that there was a negligible risk of inadvertently setting the vehicle in motion and that he was unlikely to change his mind about driving because of his established practice of taking a cab home from the bar to avoid driving a company vehicle after a night of drinking.

On appeal, the Court substituted a conviction, saying at para. 21:

Nonetheless, it is my respectful view that the trial judge paid too little attention to the fact that the respondent had started the engine and,indeed, was exerting pressure on the accelerator to rev it when he was discovered. This was a significant use of the vehicle’s fittings andequipment by an individual in a highly intoxicated state, and one that necessarily enhanced both the risk that the vehicle couldinadvertently be set in motion, and the risk that if he awoke, he might intentionally set the vehicle in motion, given his intoxicated state.

However small those risks were, they were not negligible, and the realization of those risks was considerably more likely as a result ofthe motor being activated than it would otherwise have been. Later at para. 23, the Court said: I do not think it is possible to say absolutely...that turning on the car engine ipso facto amounts to care or control. In the instant case,however, the vehicle was in a public parking lot and was not disabled in any way. [20] R. v. Gervan, 2009 SKQB 159 (Sask. Q.B.), also considered the issue of whether a sleeping motorist can be in care or control of amotor vehicle.

This accused was found sleeping in his car in a reclined position with his foot on the brake, the brake lights on and theengine idling. The accused found himself at a lake resort with no accommodation for the weekend so he chose to sleep in his car. Theevidence was that he had done so the previous night as well. He was convicted at trial as he was found to have intended to start thevehicle and could have inadvertently set it in motion. On appeal, the question revolved solely on whether care or control had beenproven.

The Appeal Court entered an acquittal, saying that the risk of inadvertently setting the vehicle in motion was negligible giventhe reclining position that the accused had assumed and the risk that he would change his mind about driving was also negligible underall of the circumstances. [21] In R. v. Bodnaruk, 2010 SKPC 97 , 2010 SKPC 097 (Sask. P.C.), the accused was found, grossly impaired by alcohol,behind the wheel of his truck. The engine was running, the driver’s door was partially open, his foot was out of the vehicle, his arm onthe door and his head on his arm. His seat was reclined.

He went to his truck when he began to feel nauseous after drinking a 40 ouncebottle of hard liquor. He was alone in the vehicle, his keys were in the console and he had no intention of driving. He opined that thevehicle must have been started after he fell asleep. Officers confirmed the presence of a second male sleeping in the vehicle. Theaccused was acquitted. The Court accepted the evidence of the accused that he just wished to sleep and found that the presumption hadbeen rebutted. The Court was not satisfied that the accused had de facto care or control.

The uncontradicted evidence was that due tomechanical difficulties with the transmission, a considerable effort was required to put the vehicle into gear and the risk of inadvertentlysetting it in motion was negligible as a result. Further, the Court found that there was no danger that the accused would awaken andchange his mind about driving home in light of the fact that he was intending to return to the house party and that on entering his vehiclehe had an opportunity to drive the short distance to his home yet chose to sleep where he was on a cool February evening. APPLICATION 1.

Does the evidence establish, beyond a reasonable doubt, that the ability of the accused to operate a motor vehicle was impairedby alcohol? [22] The Court must be satisfied beyond a reasonable doubt, on the totality of the evidence, that the ability of the accused to operate a motor vehicle was impaired to some degree by alcohol. R. v. Stellato, (ON CA),[1993] O.J.

No. 18 (C.A.), affd. (SCC), [1994] 2 S.C.R. 478 (S.C.C.), provides the test to be applied in determiningwhether the offence of impaired driving has been established; that is: if the Crown has proven beyond a reasonable doubt that the abilityof an accused to operate a motor vehicle is even slightly impaired by drug or alcohol, there is sufficient proof of the offence. This doesnot mean that only slight evidence will be adequate. Rather, the evidence as a whole must establish that such an inference canreasonably be drawn from conduct which is a departure from the norm.

That departure may fall upon a continuum from slight to great,leading to no other reasonable conclusion but that the accused’s ability to operate a motor vehicle was impaired to some degree by theconsumption of alcohol and/or drugs. [23] In this case, the evidence establishes that there was a strong smell of alcohol coming from the breath of the accused, his eyes wereglossy, red and he had trouble focusing, his speech was slurred, he was disoriented for several minutes after being awakened, he spokeincessantly, and his mood and demeanour fluctuated.

At times, he responded to questions in a manner at best described as non-

responsive and at worst as nonsensical. In addition, he was found on a cold winter morning very soundly asleep in a vehicle which hadthe sound system playing so loudly that it could clearly be heard through closed doors and windows from several feet away. On thewhole of the evidence, Mr. Breland’s appearance and conduct were a far cry from the norm. [24] Further, Mr. Breland acknowledged that he should not have been driving. I do not accept that the symptoms observed weresolely the result of extreme fatigue.

At best, his condition may have been impaired by a combination of alcohol and fatigue, but that doesnot provide a defence to the offence of impaired driving; see R. v. Pelletier (1989) (SK KB), 51 C.C.C. (3d) 161(Sask. Q.B.) at para. 15. Or, as stated in R. v. Epp, 2010 SKPC 89 at para. 84: “. . . where alcohol is the triggering event, the presenceof fatigue does not present a defence”. 2.

Does the presumption of care or control apply and if it does, has that presumption been rebutted? [25] There was no dispute that the accused was found in the driver’s seat of a motor vehicle with the engine running, and that thepresumption of care or control applies. I do not accept that he made a deliberate conscious choice to do more than temporarily abandonhis intention to drive. Unlike Shuparski and similar cases, this accused did not consider himself impaired, and therefore did not make adeliberate rational decision to cease driving because he was creating a potentially dangerous situation.

Despite the fatigue he felt while atSteve's address, he continued to drive another 100 yards to Spadina Crescent because he viewed it as a quiet street which would be moreconducive to sleep. Curiously, having made the effort to find a quiet street, he then left the radio playing loudly to provide backgroundnoise. Mr. Breland's evidence is contradictory and incompatible with his stated intention of using his vehicle as shelter as in Shuparski,supra. On the whole, it does not rebut the presumption. 3. Has the Crown proven actual care or control? [26] In R. v. Pincemin, 2004 SKCA 33 , [2004] S.J. No. 134 (Sask.

C.A.), the accused testified that prior to being foundasleep at the wheel of his vehicle, he had become lost in an area with which he was very familiar after a drinking session. He drove untilhe ran out of gas in his attempt to find his way home.

Although he had abandoned his intention to drive, and indeed could not have setthe vehicle in motion because it was out of gas, he was convicted on the basis of his admission that he had the care or control of hisvehicle by driving while grossly impaired by alcohol prior to pulling over to sleep. [27] In the case at hand, the accused denies that alcohol impaired his ability to drive.

Given his state of intoxication upon being foundand his evidence that he had not consumed any alcohol after 12:30 or 1:00 a.m., I am very suspicious that his ability to drive wasimpaired while he was driving, but I cannot be satisfied beyond a reasonable doubt that was the case. Nor does the evidence as a wholeprovide proof that he drove in the two hours preceding his detention.

Accordingly, the principles enunciated in Pincemin, supra have noapplication in establishing actual care or control. [28] The question is whether the evidence establishes beyond a reasonable doubt that the accused engaged in some course of conductassociated with the vehicle which would involve the risk of putting the vehicle in motion so that it could become dangerous. On thefacts of this case I find that the risk of the vehicle inadvertently being set in motion was negligible given the series of co-ordinatedmotions required. [29] That, however is not the end of the matter.

As the Court in Shuparski reiterated, each case must be considered on its own factsand the circumstances substantiating actual care or control will vary widely. Given the steps taken by Shuparski, the Court found that therisk of inadvertently setting the vehicle in motion was negligible, as was the risk that he would awaken and change his mind thus creating“that element of dangerousness that is central to all of these care or control cases”: see Shuparski, supra at para. 47.

In determiningwhether there was a concrete likelihood that an accused would change his mind and continue driving while unfit to do so, the casesreferred to above take into account several factors such as: 1. Had the accused driven after consuming alcohol, or was the vehicle solely used as shelter? 2. Was the accused at his ultimate destination or did he still have to get somewhere, somehow?

3. What was the degree of impairment? 4. Was there a plan in place that would allow the accused to get to his destination without driving? 5. Was the vehicle in a busy populated area? 6. Did the manner in which it was stopped pose a hazard? 7. Were there any mechanical difficulties with the vehicle? [30] I do not accept nor am I left in a reasonable doubt by the evidence of the accused regarding his lack of intention to drive. His description of events which occurred after he left Blair’s house is illogical, inconsistent and contradictory.

For example, he says that while waiting at Brennan’s house he made some phone calls including one to the cab driver who had dropped him there. He gave no explanation for why he would do so, particularly in light of his self-assessment that he was sober but tired. Nor does he offer any explanation for driving to Steven’s residence on Pinehouse Drive even though he was unable to reach him on the telephone. Driving away from both residences makes no sense given his stated hope that one of his friends would come home and let him in to sleep.

That he always falls asleep to background noise seems contrived and hardly explains why the sound system would be so loud that it was the first thing the officer heard upon opening the door of the patrol car. Further, in spite of very clear indicia of significant impairment, the accused says that he was not feeling the effects of alcohol. [31] In considering the evidence which I do accept, I find that the accused, after voluntarily consuming alcohol, assumed the care or control of his vehicle when he entered it at 1:30 or 2:00 a.m.

Although he chose to sleep in the vehicle, I find that he remained in de facto care or control. The risk that he would awaken and carry on driving was very real and supported by his earlier conduct. He chose to drive his vehicle after spending a night consuming alcohol and seemed to have no realistic plan of where he was going or where he would spend the night. His symptoms of impairment were significant and cannot all be explained by fatigue. Further, the breath tests disclose that he was legally impaired.

He stopped his fully- operable vehicle on a public road, which I take judicial note is a major roadway linking the downtown area of the city to the north residential district, rather than remain outside his friend’s residence. If his intention was to find a friend to take him in, surely the odds were better if he had remained near the home. His actions speak of significantly impaired judgment which further enhanced the risk that he would awaken and continue driving.

Further, all of these factors demonstrate his continuing care or control over his vehicle, his bad judgment regarding his fitness to drive and, in the words of Shuparski, supra , his nonchalant attitude toward the danger he created. CONCLUSION [32] In conclusion, I do not accept the evidence of the accused and accordingly the presumption of care or control has not been rebutted. In any event, I am satisfied beyond a reasonable doubt that:

a) the accused was in actual care or control of the vehicle in which he was found;

b) while in care or control, his ability to operate a motor vehicle was impaired by alcohol; and

c) while in care or control of that motor vehicle, the concentration of alcohol in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood as evidenced by the Certificate of Analyses. [30] Accordingly, I find Mr. Breland guilty of both counts on the information; the conviction for impaired care or control will be conditionally stayed.

_________________________ M.L. Gray, J