R. v. Vaesen, 2021 BCPC 266

Citation: R. v. Vaesen 2021 BCPC 266 Date: 20211019 File No: 22388-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID ARMAND VAESEN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MACCARTHY Counsel for the Crown: P.J. Cheeseman (by videoconference) Counsel for the Defendant: M.T. Mulligan (by videoconference) Place of Hearing: Western Communities, B.C. Date of Hearing: August 31, and September 22, 2021 Date of Judgment: October 19, 2021 Introduction

[ 1 ] David Armand Vaesen faces two separate charges relating to alcohol impairment and having the care or control of a conveyance, that being a motor vehicle, contrary to s. 320.14(1) (

a) and s. 320.14(1) (

b) of the Criminal Code . [ 2 ] It is admitted by defence and there is no doubt that at time of the alleged offences on September 30, 2020, Mr. Vaesen (the "Accused") had consumed a significant amount of alcohol and as a result was highly impaired.

His two breathalyzer readings taken following his arrest as confirmed by a Certificate of a Qualified Technician entered into evidence were each readings of 230 milligrams of alcohol in 100 millilitres of blood, being almost three times the legal limit under the Criminal Code s. 320.14(1) (b), that being 80 milligrams of alcohol in 100 millilitres of blood. [ 3 ] Following a civilian’s observation and a resulting telephone police report, the Accused was found by an attending police officer, while sleeping, and while seated in the driver's seat of a motor vehicle, which was parked on a busy public street, in a residential neighbourhood, with the motor vehicle's engine running.

All of this occurred after the Accused's consumption of a significant amount of alcohol. [ 4 ] The task of this court is to determine whether or not the Crown has discharged its burden and proven beyond a reasonable doubt that the Accused drove or had the care or control of the motor vehicle and hence did "operate" the motor vehicle as defined in s. 320.11 of the Criminal Code .

Description of Charges [ 5 ] Count 1 on the information alleges that the Accused, on or about the 30th of September, 2020, at or near Langford, British Columbia, did operate a conveyance while his ability to do so was impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug, contrary to s. 320.14 (

a) of the Criminal Code . [ 6 ] Count 2 alleges that the Accused, on or about the 30th day of September, at or near Langford, British Columbia, within two hours of ceasing to operate a conveyance, did have a blood alcohol concentration that was equal to or exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 320.14 (

b) of the Criminal Code . Applicable Provisions of the Criminal Code [ 7 ] The following

definitions under s. 320.11 apply to

Part VIII.1 of the Criminal Code entitled "Offences Relating to Conveyances": conveyance means a motor vehicle, a vessel, an aircraft or railway equipment. operate means (

a) in respect of a motor vehicle, to drive it or to have care or control of it; [ 8 ] The following provisions of the Criminal Code create the offences subject of the charges against the Accused: Operation while impaired 320.14

(1) Everyone commits an offence who (

a) operates a conveyance while the person's ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug; (

b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood; [ 9 ]

Section 320.35 of the Criminal Code creates a "presumption of operation" relating to an offence under s. 320.14 . It reads as follows: Presumption of operation 320.35 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 position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion. [ 10 ] It is conceded by Crown that based upon the whole of the evidence and on a balance of probabilities that the "presumption of operation" of the conveyance in this circumstances has been adequately rebutted by the Accused; that is there is evidence that the Accused was in the driver's seat for a purpose other than putting the conveyance in motion. [ 11 ] However, that is not the end of inquiry.

This court must decide whether the Crown has met its evidentiary burden and established beyond a reasonable doubt that the Accused was in the care or control of the vehicle, notwithstanding the rebutted presumption. Presumption of Innocence [ 12 ] The obligation is upon the Crown to prove all elements of each offence beyond a reasonable doubt. If that occurs, then and only then can the court convict the accused person. Where reasonable doubt exists on any element of the offence charged, the accused must be acquitted.

The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [ 13 ] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. Reasonable doubt is a doubt based on reason and common sense, which must logically be derived from the evidence or absence of evidence. The Crown must prove

more than probable guilt. However, reasonable doubt does not involve proof to an absolute certainty, since that would be an impossiblyhigh standard. The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities. Inshort if, based upon the evidence before the court, the finder of fact is sure the accused committed the offence then the finder of factshould convict since this demonstrates that the finder of fact is satisfied of the accused's guilt beyond a reasonable doubt. (See R. v.Lifchus, (SCC), [1997] 3 S.C.R. 320, and see R. v.

Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144) The W.(D.) Formulation [14] I must instruct myself that in the trial of criminal matters it is not a question of which witnesses' evidence or version of the eventsI believe, but rather whether, on the totality of the evidence, Crown has proven each essential element of each offence beyond areasonable doubt. [15] Where there is evidence of an accused person that raises a defence, as is the case in this matter, then I must further instructmyself and I must apply to this evidence the well known process of analysis set out in R. v.

W.(D.), (SCC), [1991] 1S.C.R. 742 found at paragraph 28: First, if [I] believe the evidence of the accused, obviously [I] must acquit. Second, if [I] do not believe the testimony of the accused but [I am] left in reasonable doubt by it, [I] must acquit. Third, even if [I am] not left in doubt by the evidence of the accused, [I] must ask [myself] whether, on the basis of the evidence which[I] do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [16] I am also guided by the following comments of the Prince Edward Island Court of Appeal in R. v.

J.M.H., 2012 PECA 6, [2012]P.E.I.J. No. 10, at paragraphs 30 to 31: [30] Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a complainant coupled with disbelief ofan accused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whetherthat evidence nevertheless raises a reasonable doubt, and if not, then going on to step three and determining whether the evidence takenas a whole raises a reasonable doubt (R. v. Ellis, 2006 PESCAD 25, at paragraph 18).

Proper application of the third step involvesmoving the focus from the evidence of the accused to the Crown's evidence and assessing it in its own right (in relation to all theevidence) on the criteria of coherency, reliability, credibility. This goes toward the issue of whether the Crown has satisfied the burden ofbringing evidence that can prove guilt beyond a reasonable doubt (R. v. S.F., 2007 PESCAD 17, at paragraphs 28-31). The SupremeCourt of Canada recently stated in R. v.

J.H.S., 2008 SCC 30 , at paragraph 8, that a series of decisions has affirmed andreaffirmed that where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment ofcredibility and the Crown's ultimate burden to prove the guilt of the accused to the criminal standard. [31] The third step in W.(D.) stresses that the onus is on the Crown to prove the guilt of the accused beyond a reasonable doubt. It ispossible that the trial judge would disbelieve the accused but still find the Crown had not proved guilt beyond a reasonable doubt.

Thekey is whether the correct burden and standard of proof were applied; not what words were used in applying them (R. v. C.L.Y., 2008SCC 2 at paragraph 7). [17] The supplemental test, enunciated by the British Columbia Court of Appeal in R. v. C.W.H., [1991] B.C.J. No. 2735, adds afourth step to the W.(D.) analysis, namely, if, after consideration of all the evidence, the court is unable to decide whom to believe withrespect to the central issue in a prosecution, then the accused must be acquitted.

Josiah Wood J.A. (as he then was) suggests thatlogically this ought to be second in order in the W.(D.) analysis. [18] It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times or toachieve a level of sanctity or immutable perfection. Once again, I must instruct myself on the main point that the burden never shiftsfrom the Crown to prove every element of the offence beyond a reasonable doubt. The lack of credibility on the part of the accused doesnot equate to proof of his or her guilt beyond a reasonable doubt. (See R. v.

S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152.) Assessing Credibility and Reliability of Witnesses [19] In this case, I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility and thereliability of the witnesses who provided this conflicting evidence. In doing so, I must weigh all of the evidence.

In so weighing theevidence, I may reject or accept some or all of the witness's testimony, after having taken into account a multitude of factors whichinclude, but are not limited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, andinternal or external consistency. [20] I must also direct myself that even honest witnesses may make mistakes in their evidence, or have errors of recollection, or maypresent upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [21] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another. (SeeR. v.

Jackson, 2007 BCSC 636; see also R. v. Mann, [2010] A.J. No. 1094.) The Difference Between Credibility and Reliability of Evidence [22] As noted above, I must have regard to the credibility and to the reliability of each witness's evidence. In R. v. C.(H.), 2009 ONCA56 , Watt J.A. explained the difference between credibility and reliability, at para. 41: [41] Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness'stestimony. Accuracy engages consideration of the witness's ability to accurately

i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514, at 526 (C.A.). Factors to be Taken Into Account When Assessing a Witness's Evidence [23] There are many factors to take into account when assessing a witness's evidence, some of which are: 1. Did the witness seem honest? Was he or she evasive or argumentative with counsel? 2.

Did the witness have an interest in the outcome of the case? 3. Did the witness have a good memory about the event? Did any inability to remember seem genuine or an excuse not to answerquestions? 4. Did the witness appear to be testifying as to what they actually heard or saw or are they adding in details based on other sources? 5. Was the testimony of the witness reasonable and consistent? Was the witness's evidence consistent with the other evidence in thecase? 6. Do any of the inconsistencies in the witness's evidence make their testimony more or less believable and reliable?

Is theinconsistency about something important, or a minor detail? 7. Was the witness's evidence plausible? (See: R. v. Shields, 2017 BCPC 395 , [2017] B.C.J. No. 2608; 2017 BCPC 395 at paragraph 60.) Perspectives for Assessing the Credibility and Reliability of Witnesses [24] In assessing the credibility and the reliability of those witnesses who have provided the conflicting evidence about the allegedoffence, the testimony of each of the witnesses can be considered from three perspectives:

a) their truthfulness; whether they are trying to tell the truth or intentionally lying when testifying;

b) their objectivity; whether they have been influenced by assumptions or emotions which may affect the accuracy of their perceptions;and

c) the accuracy of their observations; their abilities to observe, remember, and communicate accurately. [25] In the case of R. v.

Cuhna, 2015 BCPC 60 at paragraphs 5 and 6, the Honourable Judge Merrick provides a useful review of thefactors to be considered when assessing the testimony of a witness from these three perspectives: Truthfulness [26] Relevant factors for truthfulness include: previous inconsistent statements or occasions on which the witness has been untruthful;inconsistencies in testimony during direct examination and cross-examination; reliable evidence that conflicts with the testimony of thewitness and the attitude and the demeanour of the witness.

However when considering demeanour, it is important to consider all thepossible explanations for the witness's attitude, and to be sensitive to individual and cultural factors that may affect demeanour. Objectivity [27] When assessing a witness's objectivity, it is important to bear in mind that such objectivity may be influenced by the witness'sexpectations, the assumptions of unproven facts, or by subsequent events. Accuracy [28] Factors that may affect the accuracy of a witness's testimony include the attentiveness of a witness during the period ofobservation and the circumstances of the witness's observation.

The reasons for recalling an event and the length of time betweenwitnessing an event and providing testimony about it may affect the accuracy of the witness's testimony and hence its reliability. Somewitnesses may have difficulty communicating their evidence clearly, due to factors such as nervousness.

The Court's Approach in Summarizing the Evidence [29] For the purpose of these reasons I have broken the evidence into three categories. [30] First, what I view as non-controversial background facts that surround this case drawn from the whole of the evidence that I haveaccepted. [31] Next is the evidence adduced by Crown in support of the Crown's theory of the case for the most part provided by a civilian

witness and by a police constable. [ 32 ] Last is the evidence adduced by the defence in support of their theory of the case which has been provided by the Accused.

Summary of the Undisputed Circumstances [ 33 ] The combined sources of the undisputed circumstances are the Crown's two witnesses, Tamara McNay, the reporting civilian, and the attending RCMP member, Constable Luc Bonneau, and the sole defence witness, being the Accused, who testified on his own behalf. [ 34 ] Tamara McNay, was an off-duty, long-time paramedic, who at that time of the alleged offences was employed by BC Ambulance. She was walking her dog to a local park in Langford, British Columbia, in the late afternoon of September 30, 2020, around 5:00 p.m.

Her route to and from the park was in a residential area along Mattson Road near the intersection of Brock Avenue (the "Scene"). There are sidewalks on both sides of Mattson Road. Besides the local park, there is also a church and a nearby public elementary school and school grounds. At all material times there were other pedestrians walking at the Scene and other motor vehicles being driven at the Scene. [ 35 ] On her route to the park, Ms.

McNay observed and passed by a parked vehicle on the east side of Mattson Road, in an on-street angled parking stall, with its lights on and engine running and very loud music audible from within the vehicle ("the Vehicle"). The Vehicle was parked outside of the church, whose property was separated by a sidewalk from the street and also across the street from an apartment complex. The front of the Vehicle was facing into the parking stall about two or three feet back from the curb and the adjacent sidewalk. The driver's seat was occupied by a male individual.

That individual turned out to be the Accused. [ 36 ] It was approximately an hour or less later, as she was returning from the park, along the same route, walking on the sidewalk in front of the church when she observed the same Vehicle was in the same location with its engine still running, lights on, music blaring and the same individual inside the Vehicle. That individual appeared unresponsive and either sleeping or passed out in the driver's seat. [ 37 ] A partially consumed bottle of vodka was observed as being located on the front right passenger side of the Vehicle.

Given her paramedic background, she was concerned that the occupant may have suffered from a drug overdose. [ 38 ] Having observed the partially consumed bottle of vodka, she was also concerned because she did not want the occupant driving under the influence of alcohol. She did not have her cellphone with her but returned home and then came back to the Scene within about 10 minutes. Nothing had changed in the interval. [ 39 ] Ms. McNay then first called the non-emergency number for the Westshore detachment of the RCMP.

She was placed on hold for some 20 minutes and then called back on the 911 number to report the incident and her observations at the Scene. [ 40 ] She waited at the Scene until the police arrived some 20 minutes later. While she was waiting, and just before 6:00 p.m., Ms. McNay started taking photographs and made a short 16-second video of the Vehicle which showed the occupant and the interior of the Vehicle.

These were admitted into evidence. [ 41 ] Those photographs and the video depict the exterior of the parked Vehicle along with images, taken through the Vehicle windows, of the Accused seated in the driver's seat, eyes closed, with a bare torso, wearing a pair of short pants, with his head turned and slumped slightly to the right with his eyes closed. Ms. McNay observed the Accused's chest was rising and falling and hence he was breathing. His empty hands were in his lap.

The pictures further indicate that the Accused's hands were not in contact with the ignition key, the steering wheel, any gear selection levers, any buttons or dials or the manual parking brake, all located within the passenger compartment of the Vehicle. Also visible were images of the partially empty vodka bottle on the passenger seat. A set of crutches could be observed in the back seat of the Vehicle. At least one of her photographs was taken after the arrival of the police. [ 42 ] From the time of Ms.

McNay's initial observation of the Vehicle on her way to the park and her return from the park, and to the time that the police arrived on the Scene, there was no indication that the Vehicle had been moved or that the Accused had moved or shifted from his location in the driver's seat of the Vehicle, nor was he touching any of Vehicle's operating gears or levers. [ 43 ] The attending officer was Constable Bonneau. He is a regular duty police officer with the Westshore Detachment of the RCMP with significant experience in impaired driving investigations.

He had received a dispatch call around 6:00 p.m. on September 30, 2020.

He arrived in his police cruiser at the Scene around 6:30 p.m. [ 44 ] Based upon the evidence of Constable Bonneau, following his arrival at the Scene he observed the reported, parked Vehicle; he boxed the Vehicle in its parking stall with his own police cruiser to prevent the Vehicle from backing up into any vehicular or pedestrian traffic. [ 45 ] Constable Bonneau heard that the Vehicle's engine was running, observed that the driver's seat was occupied by a male, observed that there was a partially-consumed bottle of vodka on the front passenger seat within arm's reach of the drivers seat occupant; that the occupant appeared to be sleeping or passed out; his head was slumped down and slightly to the right but not over or in contact with the steering wheel.

Constable Bonneau photographed the reported Vehicle along with the sole occupant. [ 46 ] Constable Bonneau also observed a person being the civilian witness, Ms. McNay, with her dog, standing on the sidewalk at the front of the Vehicle. Because of safety concerns about the Vehicle's engine being running, he instructed her to move to the side, away from the front of the Vehicle in case the Vehicle was put in motion and unexpectedly moved forward and up on to the curb. [ 47 ] Constable Bonneau opened the unlocked driver's door of the Vehicle.

He reached across the seated Accused in the driver's seat, to the keys in the ignition, turned off the ignition key which in turn and stopped the Vehicle's engine. He removed the keys from the ignition.

[ 48 ] Thereafter, he and the Accused had an interaction during which time he made observations of the Accused and about his apparent level of intoxication. He then told the Accused he was being detained for an impaired driving investigation. He had the Accused exit the Vehicle and made other observations of his physical deportment and his speech. [ 49 ] The Accused was clothed only in shorts.

Sergeant Beardsmore, a certified technician for breath samples, who was also at the Scene, located a shirt from the rear of the Vehicle, which was provided to the Accused to cover his bare torso. [ 50 ] The Accused underwent a pat-down search. He had no wallet or identification with him nor on his person. Accordingly, the Accused did not produce a driver's licence but did identify himself by name to Constable Bonneau; he provided sufficient information to permit Constable Bonneau to access the Accused's driver's licence information from his police cruiser's computer and to thereby identify him.

At approximately 6:30 p.m., the Accused was Chartered and warned by Constable Bonneau. A breathalyzer demand was made at 6:34 p.m. The Accused was transported to the Westshore detachment and arrived shortly thereafter. [ 51 ] Defence takes no issues with the detention and the arrest of the Accused, nor the procedures used leading up to and including the taking of two breath samples with the resulting readings of .230.

The Accused was processed and a number of notices and a copy of the Certificate of a Qualified Technician were served upon the Accused. [ 52 ] The Accused was deemed to be in a sufficient state of sobriety to be released from police custody. Constable Bonneau then transported the Accused back to the Scene which was in the near vicinity of the apartment complex where the Accused's adult son and daughter were residents. He was left in the presence of family members. The Vehicle was impounded and towed away at the direction of Constable Bonneau.

The Disputed Circumstances Evidence of the Crown Witness Constable Bonneau [ 53 ] The consistent theme of Constable Bonneau's evidence and one to which he kept returning, whether or not it was the focus of a question asked of him, was his fear about the safety concerns posed by the Vehicle at various times and its ability to accidently be put in motion by the Accused. [ 54 ] Constable Bonneau testified that when he opened the Vehicle's driver side door he was met with a strong smell of liquor which was emanating from the sole occupant of the Vehicle. [ 55 ] Constable Bonneau could not recall whether or not as he was reaching across whether the Accused awoke, started to adjust the reclined driver's seat upward and reach for the ignition key at which time Constable Bonneau stated to the Accused that he would be turning off the ignition. [ 56 ] Constable Bonneau contends that after he had turned off the ignition, he recalls rousing the sleeping occupant of the driver's seat (being the Accused) by placing his arm on the occupant's left shoulder and shaking him and speaking to him.

He was concerned about startling the Accused in case the Vehicle was then put in motion by the Accused. He says the Accused took about five seconds to wake up and up to 15 seconds to recognize that he was being addressed by a police officer. [ 57 ] Having told the Accused he was being detained for an impaired driving investigation, Constable Bonneau had to assist the Accused to exit the Vehicle by supporting him under his left arm; he had to steady the Accused while standing because the Accused was wobbly and unsteady on his feet. He was slurring his words.

The Accused's demeanour and reaction was, in Constable Bonneau's estimation, not consistent with the seriousness of the situation. [ 58 ] After the Accused had been processed at the RCMP Westshore detachment, Constable Bonneau was of the view that the Accused still remained highly intoxicated, but he was now understanding the seriousness of the situation and he had "been sobered a little bit" by it. Constable Bonneau stated that due to the continuing high level of intoxication, he would not have released the Accused if somebody was available to care for him.

In this case that apparently was the Accused's adult son and daughter who resided near the Scene, being the location to which Constable Bonneau ultimately returned the Accused. [ 59 ] In his cross-examination, Constable Bonneau stated that he has a "keen interest" in automotive mechanics and motor vehicles and is mechanically inclined; in a former career he worked as a mechanic on a number of different types and sizes of motor vehicles and equipment.

Constable Bonneau was not presented as nor qualified as an expert in this field. [ 60 ] Notwithstanding what was fairly obvious from a number of the photographic exhibits, Constable Bonneau was very reluctant to concede a number of things, including:

a) those based upon the seated position of the Accused in relation to the passenger side and the steering wheel, including whether the driver's seat was moved back away from the steering wheel and in a reclined position of some 20 degrees;

b) as to whether the Vehicle had either an automatic or standard transmission or in fact some other unidentified type of transmission;

c) whether or not there was a button or knob on the gear shift lever which had to be depressed or pushed in order to move the gear lever; and

d) as to what gear the Vehicle was in when he turned off the ignition. [ 61 ] Constable Bonneau was vigorously cross-examined on what steps he took to determine what, if anything, it would take to place this Vehicle in motion. His answers were not necessarily directly on point and he and defence counsel consistently sparred. In the end his additional evidence can be summarized as follows:

1. His primary focus, based upon his background in automotive mechanics and general familiarity with the age and type of the Vehicle was for safety reasons, to disable the engine and stop it from running by turning off the ignition and removing the key. 2. He was unable to say whether it was an automatic or manual transmission, seemingly to suggest that those were not the only two options, but eventually conceding that it was probably an automatic transmission. 3. He was not able to say which gear, if any, the transmission was in when he turned the ignition off. 4.

He did not enter into the interior of the Vehicle to make any observations from that vantage point, other than to reach in, across to the ignition. 5. He observed from one of the photograph exhibits that the parking brake located near the floor of the mid console was in the off position (that is disengaged) but he did not test the parking brake to determine whether or not it was operative or actually engaged. 6.

He was unable to say whether or not it was necessary to depress the brake pedal to change gears or it was necessary to press any button or devise on the transmission gear selection lever to permit the actual changing of gears, and to thereby put the Vehicle into motion. That said, he stated that sometimes there is a button under the gear shift lever, which has to be depressed in order to move the gear selection lever but he also contended that sometimes this type of safety button does not work. 7.

He took no steps to attempt or try to put the Vehicle into a gear that would allow it to move nor did he determine what steps were actually required to do so. 8. He maintained that in his view the gear selection and shift lever could be accidentally knocked, from which I infer the gear selection could be accidentally changed. 9. He did not conduct a safety inspection of the Vehicle either regarding whether any of the safety features were operative or inoperative. 10. He conceded that although he did not recall, it was "possible" that the Accused said something:

a) about the reason for his presence in the Vehicle - such as he was not permitted to smoke and drink inside at his son's and daughter's residences, but did not recall the specifics nor whether or not it actually happened;

b) furthermore, it was possible the Accused said something to the effect about denying that he had been driving the Vehicle; 11. He did not recall hearing the Accused say something during their first encounter at the Scene about living or staying in that vicinity, nor specifically saying that he was staying across the street from the parked Vehicle nor saying anything about having any physical injuries or disabilities. Constable Bonneau observed the crutches in the Vehicle but did not take them when he arrested and transported the Accused. 12.

In redirect examination, Constable Bonneau did indicate he could recall the Accused making a comment about having a "few bevvies" and wanting to speak to a lawyer. He also recalled a disdainful remark from the Accused about "not giving a shit". 13. Constable Bonneau's observations about the almost empty vodka bottle on the passenger seat and "within reach" of the Accused heightened his concerns for safety. 14.

He initially could not recall "a hundred percent" whether or not the Accused was shoeless notwithstanding that he had observed the Accused exiting the Vehicle and walking once he had exited the Vehicle but then reluctantly was prepared to concede - "I think he was barefoot". 15.

In the course of the pat-down search conducted upon the Accused by Constable Bonneau no wallet or cellphone was located. [ 62 ] In cross-examination, Constable Bonneau indicated that immediately prior to the release of the Accused and prior to transporting the Accused back to the Scene, he could not recall if the Accused refused to sign what I take to be the appearance notice or some other related documentation. Eventually he conceded that the Accused may not have signed any documentation.

He conceded that on occasions when individuals are uncooperative with signing documents he has simply tucked those documents inside an individual's shirt or other clothing. Here he could not recall if he placed any documents down the front of the Accused's shirt. He seemed to deny that he crumpled them up into a ball and placed them inside the Accused's shirt. Evidence of the Defence Witness - the Accused [ 63 ] The Accused testified that he is 54 years of age and is a registered massage therapist and conducts his practice in Cobble Hill, in the Cowichan Valley Regional District.

He conceded that he has struggled "off and on" with an excessive alcohol consumption problem. He describes himself as a "functional alcoholic" with a pattern of daily drinking and an addiction to alcohol. At the time of the alleged offences he was actively in the midst of that struggle and had been seeking to curtail his consumption, by detoxing for about two or three weeks in anticipation of entering into a lengthy recovery program. [ 64 ] He had been residing on a short-term basis at his son's residence near the Scene, and specifically right across the street and some 60 feet from where the Vehicle was parked.

His daughter resided in a separate unit in the same complex. The "unwritten" family house rules were that he was neither to smoke nor to drink alcohol in the residences of his adult children. [ 65 ] He was scheduled to go into a faith-based Christian substance abuse recovery program in Fort Langley, British Columbia, for a period of one year, starting in early October 2020. This was with the encouragement and support of both of his adult children. September 30, 2020 was his last day for work before entering into the recovery program.

[ 66 ] On September 30, 2020, after work, he had been visiting with his parents, who lived locally in the Western Communities, after having purchased and delivering to them some pre-made meals. He neither smokes nor drinks at his parents' residence. However, sometime between 2:30 and 3:30 p.m., he extracted cash from his bank account, in order to avoid detection by his adult son that he was in the process of making a purchase of a 26-ounce bottle of vodka from the liquor store.

He planned to "tie one on", that is to consume a lot of alcohol to the point of drunkenness, prior to and in anticipation of his entry into the recovery program. [ 67 ] Having purchased the bottle of vodka, he travelled to the Scene, parked the Vehicle on the street across from his children's residential complex and went into his adult son's residential unit, having left the unopened bottle of vodka in the Vehicle. [ 68 ] He waited until his son was leaving to go out for the evening around 5:30 p.m.

It was a very hot day with temperatures in the high 80s on the Fahrenheit scale; the Accused had changed into his bathing suit but without a top. After his son's departure, the Accused, dressed only in his bathing suit and without shoes, and without a shirt, and without his cellphone, wallet or driver's licence in his possession but with his Vehicle keys in hand, walked to the Vehicle with the aid of crutches. [ 69 ] This use of crutches was necessitated because he was in significant pain caused by a chronic physical condition whereby his joints, such as his knees, are "attacked".

It results in him not being able to bend his legs nor have a full range of motion. He testified that his chronic physical condition, lack of a range of motion and the pain made it very difficult to put on any shoes. It also caused him difficulty both entering and exiting his Vehicle, thus requiring him to move back the position of the driver's seat in order to get fully seated in the Vehicle, once having plopped his backside into the seat. Thereafter, he was able to raise one leg at a time in order to get seated and then he reclined the driver's seat once he was in the Vehicle.

He testified that while in that location he could not properly reach the gas pedal in order to drive the Vehicle, without moving the seat forward. [ 70 ] He described that he had to similarly adjust himself and turn to get his back over the hand brake in order to exit the Vehicle. [ 71 ] The Accused testified that his plan was to listen to a Christian music radio station, to have a "few drinks" and to smoke cigarettes.

He adamantly denied that he had any intention to drive anywhere in the Vehicle but rather his intent was to return back to his adult son's nearby apartment after consuming some vodka and smoking his cigarettes. [ 72 ] He further stated that he had no intention of falling asleep but "simply" did fall asleep. However, he did so after consuming over half of the bottle of vodka, drinking it, by means of sips and gulps, straight from the bottle. It was his intention to consume the entire bottle.

He says that he fell asleep because of his fatigue from his physically challenging work, a lack of sleep and the significant recent efforts required of him in making the various arrangements associated with entry into rehabilitation. These included relocating himself from his family home in Shawnigan Lake and re-arranging the parenting

schedule for his teenage son, for the extended period of time when he was scheduled to be in residential rehabilitation. [ 73 ] Having entered the Vehicle and having started to drink the vodka, but before falling asleep, the Accused had manually rolled down the Vehicle windows because of the high outside temperature and a lack of air conditioning in the Vehicle. He also turned on the radio, which he was able to do so without starting the engine. He testified that he had purchased the Vehicle used from a family member, a couple of months prior.

Based upon his past history with the Vehicle, he was concerned that the Vehicle's battery would go dead because of the radio's operation if he did not start the Vehicle's engine. Therefore, after about 20 minutes of listening to the radio he manually rolled up the windows, started the engine and relied upon the Vehicle's ventilation fan to provide some air circulation. He conceded that he drank directly from the vodka bottle before he turned on the Vehicle's engine and "probably" after he turned the engine on.

Therefore, at the material times he had alcohol in his system and he was drunk. [ 74 ] The Accused stated that his purpose for turning on the Vehicle's engine was to be able to continue listening to the radio without causing the battery to go dead. He testified consistently that it was not for the purpose of putting the Vehicle into motion. [ 75 ] The Accused testified that the Vehicle had an automatic transmission without any clutch. The gear selection lever was located in the console, on the right-hand side of the driver's seat just above the floor level.

While making reference to one of the photographs admitted into evidence that showed that the Vehicle's transmission was in the "park" position, he testified that the Vehicle would not roll or be able to be moved while the transmission was in the "park" position. [ 76 ] According to the Accused's testimony, in order to put the Vehicle into motion it was necessary to have the Vehicle's transmission in either the neutral, drive or reverse positions.

In order to do so the following was required: it was necessary to click and then press a button on the left-hand side of the gear selection lever, using one's right-hand thumb and at the same time, using one's foot to depress the foot brake, thereby allowing the gear selection lever to be pulled down into place, in any of the three required locations which would permit the Vehicle to move. [ 77 ] The Accused stated that it was not possible to bang or knock the gear lever in some fashion and to thereby unintentionally cause it to change or in some other fashion unintentionally cause it to change gears and to thereby permit the Vehicle to move unintentionally.

This was because of the necessity to take the required steps described above to change the gear selection. [ 78 ] The Accused further testified that he never touched or manipulated the foot brake, or the gear shift, nor put it in any gear, after he had started the engine and that the Vehicle remained unmoved and with the transmission's "park" position unaltered. [ 79 ] The Accused conceded that the manual hand brake was not engaged at the time he was sitting in the Vehicle with the engine running, stating that it was not necessary because the road surface was not on an incline and if the Vehicle did move, it would roll forward into the curb at the front of the vehicle.

Ms. McNay testified that the slope of the road surface sloped in the opposite direction. Constable Bonneau provided no evidence as to the direction of the slope of the road surface. [ 80 ] In his examination in chief, the Accused says that he recalls that he was aware that the police officer was opening the door and he woke up immediately, realizing that it was the police. The engine of the Vehicle was still running to keep the battery charge up.

He said that he was disoriented for five or more seconds and started to reach to turn off the Vehicle's ignition, at which point the police constable said to him, "That's okay, I will do that."

[81] He recounted conversations he had with Constable Bonneau, very shortly after his immediate detention by the police officer.According to the Accused, he told Constable Bonneau that he was "just having a smoke and some bevvies" (which I take to meansmoking and having alcoholic beverages) in the Vehicle because he was not permitted to do so in the nearby residences of his son anddaughter or on their property.

The Accused stated that he provided that explanation to Constable Bonneau "at least half a dozen times".There was no conversation with Constable Bonneau about driving. [82] In cross-examination, the Accused conceded that with the Vehicle's engine running "he could have driven away if [he] hadwanted to" and he could have performed the necessary steps with the Vehicle "easily" in order to drive it away. He therefore admitted allof this as possible. [83] However, the Accused stated that he would not have done so after drinking a bottle of vodka, notwithstanding that he could haveeasily done so.

Crown submitted to the Accused that he could have driven to a liquor store to get more liquor. In response the Accusedstated that there was no reason for him drive to the liquor store because it was within a couple of blocks and he could walk there. [84] In cross-examination, the Accused admitted he was significantly intoxicated but he was actually surprised at how high his bloodalcohol reading level was. He also conceded that when he was quite drunk it was possible for him to make decisions that he would notmake if he were sober.

He further admitted that in the past he had made decisions and said things while drunk that he regretted when hesobered up.

He also conceded that putting the Vehicle in motion while he was intoxicated was the type of decision that could be madewhile intoxicated. [85] Having admitted that and furthermore he could have "easily" put the Vehicle in motion (because he had the means and the abilityto do so) the Accused countered by saying that he “would not have done that" and further he "did not do it". [86] In re-direct examination he confirmed that he did not have a wallet with him and hence he had no ability to purchase alcohol, andfurther, that although he had never tried it, he did not think he could get served in a liquor store without wearing a shirt or without shoes. [87] The Accused testified that immediately prior to his release, Constable Bonneau presented him with a number of documents, andindicated that he was to sign certain documents.

He told Constable Bonneau that he was not going to sign them because he could not readthem and he did not want to admit guilt to something he did not do. At that point, according to the Accused, Constable Bonneau became"mad" (which I take to be angry), and placed a crumpled ball of the documents down the front of his shirt.

That anger on the part ofConstable Bonneau continued, according to the Accused, resulting in the Accused being tightly handcuffed to the point of extremediscomfort while being transported back to the Scene in the police cruiser; then Constable Bonneau telling the Accused that he hadchanged his mind and was now going to have the Vehicle towed. That type of scenario was not canvassed in any detail with ConstableBonneau nor volunteered by him in his evidence. The Applicable Law [88] The Supreme Court of Canada in R. v.

Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157, establishes the analytical framework forthis matter and on the issue of care and control. [89] In Boudreault the court considered aspects of its earlier decisions of R. v. Toews, (SCC), [1985] 2.S.C.R. 119,and R. v.

Penno, (SCC), [1990] 2 S.C.R. 865, on the issue of what is care and control noting as follows: 30 In Toews, McIntyre J. held 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 ofconduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous.[Emphasis added; p. 126.] 31 And in Penno, citing Toews, Lamer C.J. reaffirmed the requirement of risk of danger in these terms: The law . . . is not deprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to driveis impaired in a motor vehicle.

In fact, Toews stands for the proposition that when a person uses a vehicle in a way that involves no riskof putting it in motion so that it could become dangerous, the courts should find that the actus reus was not present. [Emphasis added; p.877.] 32 Parliament’s objective in enacting s. 253 of the Code was to prevent a risk of danger to public safety: Toews, at p. 126, citing R.v. Price (1978), (NB CA), 40 C.C.C. (2d) 378 (N.B.S.C., App. Div.), at p. 384.

Accordingly, conduct that presents nosuch risk falls outside the intended reach of the offence. [90] In Boudreault the Supreme Court then considered "care and control" of a motor vehicle within the meaning of the then applicableprovision of s. 253(1) of the Criminal Code. That

section created an offence to have "care or control" of a motor vehicle while one'sblood alcohol ratio exceeds the legal limit of 80 milligrams of alcohol per 100 millilitres (".08") or while one's ability to operate thevehicle is impaired. [91] Section 253(1) at that time read as follows: 253.

(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or ofrailway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (

b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in onehundred millilitres of blood.

[92] The majority of the Supreme Court in Boudreault held that "care or control" within the meaning of s. 253(1) of the CriminalCode signifies: 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. [93] The Supreme Court in Boudreault then went on to say that with respect to the third element, the risk of danger must be realisticand not just theoretically possible.

Parliament's objective in enacting s. 253 of the Criminal Code was to prevent the risk of danger topublic safety that normally arises from the mere combination of alcohol and automobile. Conduct that presents no such risk falls outsidethe intended reach of the offence. To require that risk be "realistic" is to establish a low threshold consistent with Parliament's intention.To require only that the risk be "theoretically possible" is to adopt too low a threshold since it would "criminalize unnecessarily a broadrange of benign and inconsequential conduct" (see: paragraph 35). [94] Mr.

Justice Fish, on behalf of the majority of the Supreme Court, at paragraph 38 and citing R. v. Whyte, (SCC),[1988] 2 S.C.R. 3 at page 19, states: "it cannot be said that proof of occupancy of the driver's seat leads inexorably to the conclusion thatthe essential element of care or control exists . . . " [95] Mr. Justice Fish then goes on to state as follows: 39 Put differently, s. 258(1)(

a) indicates that proof of voluntary inebriation and voluntary [page 169] occupancy of the driver's seat donot by their coexistence alone conclusively establish "care or control" under s. 253(1) of the Criminal Code. Something more is requiredand, in my view, the "something more" is a realistic risk of danger to persons or property. 40 I agree with Justice Cromwell that Parliament's purpose in enacting the care or control provision was preventive, and directed atthe inherent danger that normally arises from the mere "combination of alcohol and automobile": Saunders, at p. 290.

With respect,however, I believe this supports my view that Parliament's intention in enacting s. 253(1) of the Criminal Code was to criminalize onlyconduct that creates a realistic risk of danger. 41 A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an intention toset 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: Aninebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion - without intending at thatmoment to do so - may nevertheless present a realistic risk of danger. 42 In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways.

First, aninebriated 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, badjudgment or otherwise, a stationary or inoperable vehicle may endanger persons or property. [Emphasis in original] [96] Boudreault goes on to say that the existence of a realistic risk of danger is a matter of fact.

In the absence of evidence to thecontrary, a realistic risk of danger will normally be the only reasonable inference where the Crown establishes impairment and a presentability to set the vehicle in motion. [97] In order to avoid conviction, an accused person will in practice face a tactical necessity of adducing evidence tending to provethat no realistic risk of danger existed in the particular circumstances of the case. [98] Therefore, a trial judge must examine all of the relevant evidence and may consider a number of factors, including whether theaccused person took care to arrange an alternate plan to ensure his safe transportation home.

Case Authorities Relied Upon By Crown [99] Crown cites and relies upon the following case authorities:

a) R. v. Boudreault, supra;

b) R. v. Williams, 2013 ONSC 6478 (B.P. O'Marra, J.);

c) R. v. Osbourne, 2021 ONCJ 58 (R. Silverstein, J.). Cases Relied Upon by Defence [100] Defence cites and relies upon the following case authorities:

a) R. v. Boudreault, supra;

b) R. v. McLachlan, [2009] B.C.J. No. 631; 2009 BCSC 431 (K.M. Ker, J.);

c) R. v. Landsdown, unreported, Victoria Registry 140622-1, (May 20, 2008) (M. Hubbard, PCJ);

d) R. v. Martindale, [1995] B.C.J. No. 2249 (S.C.) (Oliver, J.)

Observations About the Case Authorities [ 101 ] Although I may not make specific reference to the case authorities referenced above, I can assure the parties that I have read and carefully considered each in coming to my conclusions and decision in this matter. [ 102 ] It is noteworthy that similar circumstances may result to different results in care and control cases. As noted in R. v. McLachlan at paragraph 4 , referencing the comments of Mr. Justice McIntyre in paragraph 10 of R. v.

Toews : "each case will depend on its own facts and the circumstances in which acts of care and control may be found will vary widely". Ker J. then goes on in paragraph 4 to reference the three appeals before that court noting that they "clearly illustrate the myriad of circumstances that arise in assessing the factual matrix of care or control cases." [ 103 ] McLachlan offers a useful examination of the different circumstances that can arise.

Many of the other authorities do likewise and also reference and summarize similarly helpful cases. [ 104 ] Given that each case will depend on its own facts and the circumstances, I do not intend to provide any further

summary of the cases submitted by counsel or the cases referenced in any of those authorities. The Mens Rea for the Offence of Having Care and Control of a Motor Vehicle [ 105 ] There is no apparent disagreement as between Crown and Defence that the mens rea of the offence of care or control of a motor vehicle is the intent to assume care or control after voluntary consumption of alcohol or a drug. The mens rea is not an intention to drive and the absence of such an intention does not afford a defence.

Nevertheless, the intention of an accused person is still relevant to the issue insofar as it may contribute to the presence of the required mens rea or tend to exclude it. Proof of a lack of intention to drive or lack of an intention to set the vehicle in motion generally rebuts the statutory presumption of care and control contained within the Criminal Code . (See: R. v. Toews , supra at paragraphs 7-8 ; see R. v. McLachlan , supra , at paragraph 45 ). [ 106 ] I accept that statement to be correct and binding upon me. [ 107 ] I further understand that the parties agree that R. v.

Toews establishes the following legal framework for the purposes of analysis of any actual care or control case, where the presumption in s. 320.35 of the Code (previously s. 258(1)(a)) has been rebutted or is unavailable.

That legal framework requires the Crown to establish the elements of the offence such that the court is satisfied of the following: 1) that the accused person voluntarily consumed alcohol or drugs; 2) that the accused person became impaired as a result; 3) that while impaired, the accused engaged in acts which involved some use of a motor vehicle or its fittings and equipment, or some course of conduct associated with the motor vehicle; 4) that those acts or courses of conduct involved a risk of danger of setting the vehicle in motion, either accidentally or intentionally; and 5) if the motor vehicle were set in motion, it could become dangerous. [ 108 ] I accept that statement as being correct and binding upon me.

Crown's Position and Submissions [ 109 ] Crown submits that the whole of the evidence demonstrates and it should lead the court to conclude that Items 1 to 3 and Item 5 above have been adequately established.

Hence the court must decide whether the Crown has met the test in establishing Item 4 above, that being that there was a realistic risk of danger. [ 110 ] In its submissions, Crown agrees with the court in McLachlan at paragraph 96 where it states that the "mere possibility of a future change of intention on its own" or "conjecture" is insufficient for finding there is a risk of danger of setting a vehicle in motion, and such that an accused might be found to be in actual care or control of a motor vehicle and found criminally liable. [ 111 ] However, says Crown, decisions such as the Saskatchewan Court of Appeal in R. v.

Shuparski , 2003 SKCA 22 , which was referenced in McLachlan and in the conclusions reached in the McLachlan decision itself (at paragraph 96), illustrate the importance of assessing intentions in light of all of the evidence adduced at a trial. [ 112 ] Crown therefore relies upon the court's statement in McLachlan that the possibility of a future change of intention remains a factor to be considered in the overall contextual assessment of any given case. [ 113 ] Furthermore, says Crown and as noted in McLachlan at paragraph 96 : . . .

In some cases, the attitude demonstrated by an accused, measured against all the surrounding circumstances, may support or detract from a finding of risk of setting the vehicle in motion. [ 114 ] Crown then notes the continuing analysis and guidance to this court in McLachlan at paragraph 98 : 98 At any rate, the answer to the question before the Court is clear: while Toews clearly contemplates a risk of danger arising from the possibility of intentionally or unintentionally setting the vehicle in motion, it does not stand for the proposition that the mere possibility of a future change of intention on its own can form the basis for conviction in these types of cases.

Rather, Toews and the jurisprudence flowing from it supports the view that the possibility of a future change in intention remains a consideration or factor that

is weighed in light of all the objective circumstances and other evidence that any particular case presents. In each particular case, a courtmust look at all the surrounding circumstances pertaining to an impaired accused's relationship to their vehicle, including his or herintended course of action, and consider whether a real risk exists that the vehicle will be set in motion in the context of that relationship.In that sense, the element of apprehension of what may happen in the future is an appropriate consideration.

However, in and of itself,without any connection to the evidence of the accused's conduct and attitude in relation to the vehicle, the mere possibility of a futurechange of intention about driving, which surely technically exists in every case, cannot be sufficient to ground a conviction. [Emphasis in original] [115] Crown submits that on the evidence before this court and taking into account all of the surrounding circumstances pertaining tothe impaired Accused's relationship to the Vehicle, that this court can and should conclude that there was a sufficient and reasonablelikelihood and risk that the Accused could change his mind and drive the Vehicle. [116] Therefore, Crown argues that it has established that on the whole of this evidence that there existed a real risk that the Vehiclewould be set in motion, and specifically in the context of the Accused's relationship to the Vehicle.

In that regard, as I understand theargument, given the significant state of intoxication of the Accused, and given that the Vehicle's engine was running, the Accused couldhave easily changed his mind and then put the Vehicle in motion. [117] Crown further submits that in this case a realistic risk of danger has arisen as described in paragraph 42 of Boudreault, set outabove. As I further understand it, Crown is saying that the Accused in this case could have changed his mind and then proceeded to drivewhile still impaired.

Thus, the Accused falls within the category described in paragraph 41 of Boudreault being a person who is foundbehind the wheel of a motor vehicle and who "has the present ability to set the vehicle in motion - without intending at that moment to doso." Thus, the Accused in this case did present such a realistic risk of danger. [118] Crown submits that this court does not need to consider the required steps that must be taken to put the Vehicle in motion,because that relates only to the second realistic risk of danger that may arise, and as set out paragraph 42 of Boudreault, namely,unintentionally setting the Vehicle in motion. [119] Crown also places great weight on the lack of an "alternate plan" for the Accused arguing that given the high level ofintoxication, this is a situation where the court can be satisfied that there was realistic risk the Accused would abandon his plan of notdriving the Vehicle, for example to the liquor store.

It is then further argued that this is a decision that the Accused could easily havemade. [120] Therefore Crown says that it has discharged its burden and proven the offences beyond a reasonable doubt and therefore seeks aconviction on both of the charges. Defence's Position and Submissions [121] Defence submits that in addition to the analysis and the guidance contained in Boudreault, this court is bound by the earlier B.C.Supreme Court decision in McLachlan. [122] In the context of three

summary conviction appeals, McLachlan dealt with the following issue: Is the possibility of a futurechange of intention to drive on the part of an accused person a sufficient basis upon which there is a risk that they will set their vehicle inmotion thereby having actual care or control of a motor vehicle for the purposes of s. 253(1)(

a) of the Criminal Code? [123] McLachlan considered carefully the Supreme Court of Canada decision and its analysis in Toews. [124] In McLachlan, Ker, J. starts at paragraph 98 set forth above and then states as follows:. 99 Thus, in British Columbia, Saskatchewan and arguably Ontario too, the jurisprudence does not support the Crown's position thatthe mere free-floating risk or possibility of future change of intention alone is an appropriate basis for conviction.

In most cases,however, the possibility of a future change of intention is necessarily an appropriate consideration to the risk of danger analysis, but theanalysis of whether the possibility of a future change of intention is realistic and exists, so as to give rise to a risk beyond a reasonabledoubt, must flow from the finding of "acts" or "course of conduct" of the accused in relation to the vehicle. 100 As noted earlier in this decision, the presence of an impaired person inside a motor vehicle with ready access to the fittings orequipment that makes a vehicle operational may well present a possible risk to public safety; however, presence and opportunity on theirown are not going to be sufficient for care or control purposes.

Use of a vehicle by an impaired person in a manner that does not involvethe risk of putting it in motion does not satisfy the requirements for the actus reus of the offence: R. v.

Penno (1990), (SCC), 59 C.C.C. (3d) 344 at 352; Hannemann at para. 47. 101 While courts across Canada are repeatedly called upon daily to "unravel the obscure intricacies of care and control jurisprudence"(Hannemann at para. 2), the legal framework established in Toews assists in identifying a rational scheme of criminal proscription.When properly applied to the circumstances of any case, this analytical framework assists in determining whether any given accused'sconduct is properly found culpable or otherwise. [Emphasis in original] [125] Defence submits that in British Columbia, McLachlan is good law and puts an end to the argument that just because an accusedperson might change their mind about putting a vehicle in motion, it produces a sufficient risk to amount to care and control of a motorvehicle. [126] A similar conclusion was reached in Martindale, at paragraph 17 where it states that a "mere possibility of future change ofintention does not form a sufficient basis for conviction".

[127] Defence submits that a review of all of the evidence (and specifically rejecting any contrary evidence of Constable Bonneau) andapplying the analysis in Boudreault, must lead this court to conclude that in this case there was no realistic risk of danger from theAccused occupying the driver's seat, while impaired. [128] The Accused's evidence was unchallenged that he had no intention of driving the Vehicle nor any other plans to go anywherefrom the parked location of the Vehicle or the need to go anywhere, since he was already "at home".

He did not need an alternate planabout getting home other than by driving the Vehicle.

He was already there. [129] Furthermore, he was seated in the Vehicle only to allow himself the opportunity to smoke, drink and listen to the radio away fromthe residential units of his adult children where he was staying. [130] All of the surrounding circumstances were consistent with that decision not to drive the Vehicle or to set the Vehicle in motion.Furthermore, the un-contradicted evidence about the necessary steps to put the Vehicle's automatic transmission into gear negates thepossibility the Vehicle could unintentionally be placed in motion and to thereby create a realistic risk of danger to persons or property.Defence does concede that such may not necessarily be the case if the Vehicle was equipped with a standard transmission. [131] Therefore on the basis that Crown has failed to prove the offence beyond a reasonable doubt, defence seeks acquittals on bothcharges Analysis General Observations About the Testimony of the Witnesses [132] All three witnesses have the challenge of testifying about events which took place almost a year ago, as at the start of the trial. [133] This is an important factor when considering the reliability of their evidence, since the passage of time tends to cause memories tofade and past memories of situations to get intermingled with each other.

All of this tends to erode the quality of the evidence, as does thewhole of the circumstances surrounding the events in question. Demeanour [134] Trial judges should not place too much emphasis on how a witness behaves while giving evidence when assessing theircredibility. (See R. v. Jeng, 2004 BCCA 464 , at paragraph 54.) [135] In court, witnesses are required to speak about difficult events in a very foreign and public environment. They are often nervousand feel significant pressure when undergoing a prolonged cross-examination. (See R. v.

Shields, supra, at paragraph 74.) [136] After allowing for these considerations and having applied the various tests and considerations when assessing the evidence ofwitnesses and, in particular, their reliability and credibility, all of which are described in some detail above, I have reached the followingconclusions about the witnesses in this case. Observations About the Witnesses [137] I found that the civilian witness Tamara McNay was a credible and reliable witness.

She gave her answers in a forthright manner.She admitted when she either did not know or was not certain. [138] I found the Accused gave relatively straightforward answers and his evidence stood up well to cross-examination. Accordingly, Igenerally found him to be both a credible and reliable witness and believable. [139] I found Constable Bonneau to be an unnecessarily stubborn witness. At times he would not even admit the obvious or wouldclaim that he could not recall or could not be a hundred percent certain. He was unnecessarily combative with defence counsel duringcross-examination.

Defence characterizes him as having a "campaigning" manner, which I take to be continually trying to bring thenarrative back to his talking points, notwithstanding the question. I do not find that this is an unfair characterization.

Therefore, wherethere is a material conflict between the evidence of the Accused and Constable Bonneau, on the whole of the evidence, I generally acceptthe evidence of the Accused on material matters including everything from the existence of an automatic transmission in the Vehicle, therequired steps to put the Vehicle in motion, the discussions or absences thereof between the Accused and Constable Bonneau, and evensuch matters as the lack of shoes on the Accused. [140] In making this conclusion, I am mindful of the direction provided to me in the decision of R. v. Jackson noted above.

Analysis Consideration and Conclusions Drawn from the Whole of the Evidence Application of the W.(D.) Formulation [141] The Alberta Court of Appeal's decision in R. v. Ryon, 2019 ABCA 36 , [2019] A.J. No. 111; 2019 ABCA 36, providessome very useful guidance in the application of the W.(D.) instruction and which I have followed in this case. [142] In applying the first prong in the W.(D.) instruction, I am mindful that the instruction is to apply to all exculpatory evidence theCrown must negate beyond a reasonable doubt, whether found in the Crown or the defence case.

I am further mindful that the instructiononly applies to exculpatory evidence in both the Crown and defence case, and not to evidence that is inculpatory or neutral. (See R. v.Ryon at paragraphs 29 and 30 and paragraph 49.) [143] In applying the second prong of the W.(D.) instruction, I am further mindful that when assessing exculpatory evidence as the

finder of fact, I need to understand that I have three choices, namely: first, I may accept the evidence; or second, I may reject it; or third, I may find myself in the "middle ground" of being unsure whether the evidence is true or false. If I find myself in this so-called "middle ground", that usually means I have a reasonable doubt and therefore that benefits the accused person. (See: R. v.

Ryon at paragraphs 35 to 38 .) [ 144 ] In applying the third prong of the W.(D.) instruction, as the finder of fact, I must attempt to resolve the conflicting evidence bearing on the guilt or innocence of the accused person, mindful always that a trial is not a credibility contest which requires the finder of fact to decide that one of the conflicting versions is true. Again, if, after careful consideration of all the evidence, as the finder of fact, I am unable to decide whom to believe, I must acquit (see Ryon at paragraph 46 ).

I must also instruct myself that, as the finder of fact, if I completely reject the accused person's evidence (or, where applicable, other exculpatory evidence), I may not simply assume the Crown's version of events must be true. Rather, I must carefully assess the evidence I do believe and decide whether the evidence persuades me, beyond a reasonable doubt, that the accused person is guilty. Mere rejection of the accused person's evidence (or, where applicable, other exculpatory evidence) cannot be taken as proof of the accused's guilt. [ 145 ] Applying the W.(D.) formulation and following the guidance of R. v.

Ryon assists me in properly determining whether or not the evidence supports a finding, beyond a reasonable doubt, that the Accused had the care or control of the Vehicle. Conclusions as to the Facts [ 146 ] I accept that Crown has discharged and proven beyond a reasonable doubt the following elements of the offences:

a) the Accused voluntarily consumed alcohol or drugs;

b) as a result, the Accused became impaired;

c) while impaired the Accused was sitting in the driver's seat of the Vehicle, he turned on the engine, but at all times the automatic transmission of the Vehicle remained in park and he did not move the Vehicle. Based upon that, Crown has therefore established that the Accused was engaged in acts which involved some use of the Vehicle's fitting and equipment; and

d) if the Vehicle were set in motion, it could have become dangerous given the proximity of pedestrians and other vehicles at the Scene. [ 147 ] However, I am not satisfied that Crown has met the test set out in Boudreault and established beyond a reasonable doubt that the Accused's type of engagement with the Vehicle resulted in a "realistic" risk of existing danger, having regard to the particular circumstances of this case.

Ultimately, I conclude that Crown has failed to prove care or control of the Vehicle using the formulation set out in Boudreault . [ 148 ] As it relates to this issue, I generally adopt defence's submissions and arguments. [ 149 ] In coming to this conclusion, I accept the Accused's explanation for entering the Vehicle and for eventually starting the engine. I further accept his explanation that he had no intention of driving the Vehicle or putting it in motion but only intended to continue listening to the radio while drinking alcohol and while smoking cigarettes.

He was not positioned while in the driver's seat that would have allowed him to operate the Vehicle. [ 150 ] I further accept his evidence that he had no reason for changing his mind and to thereafter intentionally putting the Vehicle in gear, or motion or driving it.

I accept that he had nowhere to go in the Vehicle on that particular occasion. [ 151 ] I further accept that he did not have an "alternate plan" but in the whole of the circumstances the existence of an alternate plan was not required because of both his existing plan to return back to his nearby accommodation after drinking and smoking in the Vehicle and his lack of an intention to use the Vehicle for any purpose other than as a location for drinking and smoking, away from the nearby residences of his children. [ 152 ] I further accept that the Accused did not have with him items that would commonly be required on one's person, such as a wallet including a means for paying for items, a shirt, shoes, or even the ubiquitous cellphone, if he was intending on going to most other locations for a particular purpose. [ 153 ] I further accept that there was not a realistic risk of the Accused unintentionally putting the Vehicle in motion, given the series of steps that would have been required in order to put the Vehicle into motion. [ 154 ] The actions of the Accused of choosing to consume alcohol in a motor vehicle on a public street with the engine running are far from commendable; he has accepted and I certainly agree that it was "not (his) finest day". [ 155 ] My decision in this case must not be interpreted as some sort of endorsement nor an invitation for others to emulate or copy the Accused's irresponsible behaviour and to select a motor vehicle as an appropriate location to consume liquor.

Simply put, it is not. [ 156 ] The Accused's behaviour could have given rise to other charges and convictions on those charges. However, those other potential charges are not the charges that he faces in this case. Decision [ 157 ] Based upon all of the foregoing and having regard for the authorities that are binding upon me, including Boudreault , Toews, and McLachlan and the analysis contained therein, I have concluded that the Crown has not met its evidentiary burden to establish the Accused's care or control of the Vehicle. [ 158 ] Accordingly, I must acquit him on both counts.

[ 159 ] I wish to thank counsel for their thoughtful and useful submissions. [ 160 ] That concludes my reasons for judgment. (JUDGMENT CONCLUDED)