Her Majesty the Queen - v. -, 2022 SKPC 37

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 37 Date: August 31, 2022 Information : 9048350 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jason Paul Nogue Appearing: Bryan Carter For the Crown Louis N.B. Mercier For the Accused JUDGMENT M. HINDS, J INTRODUCTION [ 1 ] On November 22, 2021, at Coppersands, Saskatchewan, Jason Nogue was charged that he did within two hours of ceasing to operate a conveyance have a blood alcohol concentration that was equal to or exceeded eighty milligrams of alcohol in 100 millilitres of blood contrary to

section 320.14(1) (

b) of the Criminal Code . [ 2 ] The matter proceeded to trial. Constable Andrew Zaichowsky was the sole witness called by the Crown. Three certificates were filed as evidence on behalf of the Crown. Exhibit P-1 Certificate of Qualified Technician. Exhibit P-2 Certificate of Qualified Technician approved Instrument Print Out. Exhibit P-3 Certificate of Analyst. No one testified on behalf of the defence. [ 3 ] The sole issue at trial was whether the accused was operating a conveyance. For the reasons that follow, I find the accused

guilty of the offence before the Court. FACTS [4] On November 22, 2021 at 12:30 a.m. Cst. Zaichowsky of the White Butte RCMP detachment was dispatched to Coppersands,Saskatchewan to a complaint of a possible impaired driver. Coppersands is a trailer court community located in a rural areaapproximately one mile north of White City, Saskatchewan. [5] Cst. Zaichowsky arrived at Coppersands at 12:40 a.m. He initially spoke to the complainant at 41 Crystal Drive and was directedto a white Chevrolet Impala motor vehicle parked a “few doors down” in the driveway of 47 Crystal Drive. Cst.

Zaichowskysubsequently observed that a white Impala was parked nose-first in the driveway. The windows of the vehicle were frosted and theengine was not running. After observing the licence plate of the vehicle, he determined that the registered owner of it was Jason Nogue. [6] It was between -10 to -15 degrees Celsius. Cst. Zaichowsky knocked on the driver’s door and opened it. He observed that JasonNogue was seated in the driver’s seat, which was slightly reclined. Mr. Nogue was wearing a hoodie and pants. There was no one else inthe vehicle. The keys to the vehicle were located in Mr. Nogue’s pocket.

He gave the keys to Cst. Zaichowsky. [7] Mr. Nogue was cooperative with Cst. Zaichowsky and responsive to his questions. He identified himself and produced hislicence. Cst. Zaichowsky smelled beverage alcohol coming from Mr. Nogue. When asked if he had any alcohol, Mr. Nogue said he hadbeen drinking at a bar earlier in the evening. [8] Cst. Zaichowsky detained the accused and read the Approved Screening Device demand at 12:57 a.m. Mr. Nogue provided abreath sample at 12:59 a.m. The result was a “fail”. Thereafter the officer arrested Mr.

Nogue, advised him of his Charter rights andwarnings and read him the evidentiary breath demand at 1:10 a.m. [9] Mr. Nogue was transported to the White Butte RCMP detachment. He spoke to a lawyer at 1:57 a.m. Mr. Nogue subsequentlyprovided two samples of his breath into an approved instrument. The results were as follows: (1) 100 milligrams in 100 millilitres ofblood at 2:25 a.m and (2) 110 milligrams in 100 millilitres of blood at 2:48 a.m. [10] On cross-examination Cst. Zaichowsky candidly admitted he did not see Mr.

Nogue driving the vehicle that evening/earlymorning and that there was no way of him knowing how long the Impala vehicle had been parked in the driveway where he observed it. THE LAW [11] The issue of care or control has been extensively litigated in Canada, and there is a significant list of court decisions to provideguidance on the

interpretation and application of this section.

I refer to Ford v The Queen, (SCC), [1982] 1 SCR 231[Ford]; R v Toews, (SCC), [1985] 2 SCR 119; R v Brahniuk, 2002 SKCA 104, 227 Sask R 135; R v Shuparski, 2003SKCA 22, 232 Sask R 1 [Shuparski]; R v Buckingham, 2007 SKCA 32, 293 Sask R 42; R v Boudreault, 2012 SCC 56, [2012] 3 SCR 157[Boudreault]; R v Andersen, 2012 SKCA 37, 399 Sask R 1 [Andersen] and R v Poncelet, 2014 SKCA 30, 308 CCC (3d) 50 [Poncelet]. [12] Boudreault is considered the leading authority with respect to the offence of being in care or control of a vehicle contrary tosection 253(1) of the Criminal Code.

In Poncelet, Chief Justice Richards summarizes the law set out in Boudreault as follows: [22] In its decision, the Supreme Court described the essential elements of “care or control” as follows: (

a) an intentional course ofconduct associated with a motor vehicle; (

b) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds thelegal limit; and (

c) in circumstances that create a realistic risk of danger to persons or property (para. 33). [23] The Court underlined that the risk of danger must be “realistic” and not just “theoretically possible”. It said the risk need not be“probable” or “substantial” and, speaking through Fish J., described the low nature of the risk threshold as follows: [48] I need hardly reiterate that “realistic risk” is a low threshold and, in the absence of evidence to the contrary, will normally be theonly reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion.

To avoidconviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that norealistic risk of danger existed in the particular circumstances of the case. [24] As to the practical effect of its view of “care or control”, the Supreme Court stressed that intoxicated persons found behind thewheel of a vehicle will almost always face conviction: [45] As I mentioned at the outset, anyone found inebriated and behind the wheel with a present ability to drive will - and should - almostinvariably be convicted.

It hardly follows, however, that a conviction in these circumstances is, or should be, “automatic”. A convictionwill be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case. [13] In R v LaCasse, 2013 SKPC 157 at para 16, 430 Sask R 86 my brother Judge Kovatch set out a method of analysis for care orcontrol cases as follows: 1. Has the Crown established that the accused was occupying the driver’s seat? If yes, then the presumption contained in s. 258(1)(a)applies. 2. Has the accused adduced evidence to rebut the presumption in s. 258(1)(a)?

If the accused has not rebutted the presumption, then theCourt should conclude that the accused is in care and control of the vehicle. If the accused has not rebutted the presumption, and theCrown has proved the other requisite elements of the offence, then the accused must be convicted of the charge. 3. If the accused has rebutted the presumption, then the Court must determine whether on all of the evidence, the accused is in de facto

care and control of the vehicle. [14] I adopt this method of analysis. [15] The Criminal Code underwent significant amendments in 2018 respecting the drinking and driving provisions. Section320.14(1)(

b) of the Criminal Code states as follows: Everyone commits an offence who (

b) subject to subsection (5), has within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to orexceeds 80 mg of alcohol in 100 mL of blood; [16] "Conveyance" is defined in

section 320.11 of the Criminal Code as meaning "a motor vehicle, a vessel, an aircraft or railwayequipment". In this case we are clearly dealing with a motor vehicle. [17] The word "operate" is also defined in

section 320.11 of the Criminal Code to include driving and having "care or control". Thesection states: (

a) in respect of a motor vehicle, to drive it or to have care or control of it; Statutory Presumption of Operation [18] The Crown can prove that an accused operated a motor vehicle by proving the accused drove the motor vehicle or by relyingupon the “presumption of operation” set out in

section 320.35 of the Criminal Code or alternatively by proving the accused had de factocare and control. [19] In R v Dumont, 2020 CarswellNfld 174 (NL Prov Ct) [Dumont] Judge Gorman stated as follows: [37]

Section 320.35 of the Criminal Code creates a "presumption of operation" based upon the accused occupying "the seat or positionordinarily occupied by a person who operates a conveyance". It states as follows: In proceedings in respect of an offence under

section 320.14 or 320.15, if it is proved that the accused occupied the seat or positionordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless theyestablish that they did not occupy that seat or position for the purpose of setting the conveyance in motion. [38] As a result of this presumption, an accused person found in the seat or position ordinarily occupied by a person who operates aconveyance, will be presumed to have care or control of that conveyance. It has been held that this does not require proof of a risk ofdanger (see R. v.

Pankovcin, 2020 ONCJ 142, R. v. Tibbo, 2020 YKTC 9). [39] The accused can rebut the presumption by proof on a balance of probabilities that she or he did not occupy the seat or position forthe purpose of setting the conveyance in motion (see R. v. George (1994), (NL CA), 120 Nfld. & P.E.I.R.237 (N.L.C.A.) and R. v. Ross, 2020 ABPC 84, at paragraph 69). If the accused rebuts the presumption, then the Crown must prove careor control without the benefit of the presumption (what is commonly referred to as de facto or actual care or control).

This does requireproof of a risk of danger. [emphasis added] [20] The Court in R v Pankovcin, 2020 ONCJ 142 also considered the requirements of care and control as follows: [37] The current presumption of operation in s. 320.35 (formerly the presumption of care or control in s. 258(1) (a)) states: "In proceedings in respect of an offence under

section 320.14 or 320.15, if it is proved that the accused occupied the seat or positionordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless theyestablish that that they did not occupy that seat or position for the purpose of setting the conveyance in motion." [38] As summarized by Justice Durno in R .v. Agyemang, 2014 ONSC 4232, at para. 40, referring to the predecessor presumption ofcare or control: "The Crown has three routes for establishing care or control: evidence of driving, applying the rebuttable presumption in section 258 (1)(a)[now

section 320.35] where the accused was in the seat normally occupied by the driver, or through evidence of de facto or actualcontrol which involves the risk of danger as an essential element. R. v. Szymanski (ON SC), [2009] O.J. No.3623 (Ont. S.C.J.) at para 29." [39] Where the Crown relies on the statutory presumption of care or control, the Crown does not need to prove that the conduct of thedefendant created a risk of danger: R. v. Amyotte, 2009 CarswellOnt 7469, per Durno, J. at para 127; R. v.

Blair, 2014 ONSC5327, per Trotter, J. at para 13. [emphasis added] [21] Similarly in R v Watts, 2021 NSPC 8 the Court held that the Crown does not need to prove the conduct of the accused created arisk of danger when it relies on the statutory presumption of care and control. [22] In this case the Crown is relying upon the statutory presumption set out in

section 320.35. I find the Crown has proved throughthe testimony of Cst. Zaichowsky that the accused, Mr. Nogue occupied the drivers’s seat of the white Impala. As a result thepresumption applies. Mr. Nogue is presumed to have been operating the conveyance when Cst. Zaichowsky first encountered himshortly after 12:40 a.m.

[ 23 ] The presumption of operation can be rebutted by evidence which, if accepted, establishes on a balance of probabilities that the accused did not occupy the driver’s seat for the purpose of setting the vehicle in motion ( Ford and Shuparski ). To rebut the presumption of care or control contained within

section 320.35 of the Criminal Code , the accused must establish that she or he lacked the intention to set the vehicle in motion. [ 24 ] In this case the accused did not testify. That of course was an option open to the defence. Here the accused relies upon the fact that when Cst. Zaichowsky encountered the accused seated in the driver’s seat of the vehicle, (1) the vehicle was not running, (2) the keys to the vehicle were in his pocket and (3) the windows of the vehicle were frosted. In my respectful view these facts standing alone do not rebut the presumption of operation.

As a result I find that the Crown has proved the accused was operating the white Impala motor vehicle at 12:40 a.m. Proof of De Facto Operation [ 25 ] In the event I have erred in determining that Crown has proved the accused was presumptively operating the conveyance, I must also consider whether the Crown has proved that the accused was in de facto operation of the conveyance. [ 26 ] As previously mentioned the word "operate" is defined in

section 320.11 of the Criminal Code to include driving and having "care or control".

While the Crown was unable to prove that the accused actually drove the vehicle, the Crown takes the position that it has proved that the accused had care and control of the vehicle and hence operated it. [ 27 ] In Boudreault the Supreme Court of Canada described the "essential elements" of what constitutes care or control in the following manner (at paragraph 33): (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 of danger to persons or property. [ 28 ] I am of the view that the Crown has proved the first two elements of care and control.

The question which remains is whether the Crown has proved that the circumstances created a realistic risk of danger to persons or property. [ 29 ] In Dumont Judge Gorman stated as follows: What Constitutes a Realistic Risk? [48] The Supreme Court of Canada indicated, at paragraphs 13 and 14 of Boudreault , that absent "evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger.

In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case." [49] As to what constitutes a "realistic risk", the Court concluded as follows (at paragraphs 41 and 42): A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control.

On the other hand, an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion - without intending at that moment to do so - may nevertheless present a realistic risk of danger. 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. [ 30 ] In this case the Crown has established that the accused was seated in the driver’s seat of the vehicle wearing a hoodie and pants shortly after 12:40 a.m. It was cold outside, between -10 to -15 degrees Celsius.

The vehicle was parked in the driveway of a residence. The windows of the vehicle were frosted. While the vehicle was not running, the keys to the vehicle were readily available located in the accused’s pocket. Given the hour, cold temperature and the relatively light clothing which the accused was wearing I am of the view there was a realistic risk that the accused may have later, with an excessive blood alcohol ratio, changed his mind and proceeded to start the engine of the vehicle to either drive it, or simply warm it up with the accompanying risk of unintentionally setting the vehicle in motion.

The Crown has established in the circumstances of this case a realistic risk to persons or property. Mr. Nogue was in de facto care and control of the vehicle. CONCLUSION [ 31 ] I find that the Crown has established the accused, Mr. Nogue, was operating the vehicle shortly after 12:40 a.m. Hence, I find him guilty of the offence before me.

​​​​​​​​​​​​​​​​​​​​​​​​​​​​​______________________________ M. Hinds, J