Her Majesty the Queen - v. -, 2018 SKPC 76

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 76 Date: December 21, 2018 Information: 90164293 Location: Saskatoon ___________________________________________________________________________ Between: Her Majesty the Queen - and - Marvin Procyshyn Appearing: T. O’Hara For the Crown M. Owens For the Accused JUDGMENT R.D. JACKSON , J I BACKGROUND [ 1 ] The accused stands charged on a two count Information with impaired operation of a motor vehicle and operating while over .08.

The charges arise from an early evening incident March 18, 2018 when the accused drove his semi-truck and trailer into the centre median ditch on Highway #11 near Rosthern. [ 2 ] The evidence disclosed that the accused executed too wide a turn coming from an intersection thereby lodging his tractor

unit in the ditch which resulted in the two attached trailer units blocking both driving lanes of the highway heading southbound. [ 3 ] Constable Maki of the Rosthern RCMP was dispatched at 19:42 hours and arrived on scene at approximately 19:46 – 19:47 hours. [ 4 ] Constable Maki observed that the operator was in the driver’s seat with the engine running. He engaged the driver in brief conversation following which he made an ASD demand.

This was elevated to a formal section 254(3) demand by reason of further observation of the accused as he made his way to the police vehicle. [ 5 ] The accused was consequently arrested for impaired operation of a motor vehicle, given rights to counsel, formal breath demand, and police warning, following which he was transported to the Rosthern RCMP detachment. [ 6 ] Two samples of breath were ultimately obtained from the accused reflecting his BAC to be 240 milligrams per cent, and 250 milligrams per cent, respectively. [ 7 ] The trial proceeded by way of blended voir dire regarding Charter issues and voluntariness of utterances and statements made at the detachment, with counsel’s consent to apply all admissible evidence from the voir dire to the trial proper. [ 8 ] The accused alleges breaches of ss. 7, 8, 9, 10(

a) and 10(

b) of the Charter and seeks exclusion of the Certificate of Analyses pursuant to s. 24(2) and argues otherwise that the offences have not been proven beyond a reasonable doubt. II ISSUES [ 9 ] Multiple issues were presented for determination:

a) whether statements made at roadside are inadmissible by virtue of “use immunity” pursuant to s. 253(3) of The Traffic Safety Act [1] ;

b) whether the formal breath demand lacked reasonable and probable grounds to believe the accused’s ability to operate his motor vehicle was impaired by alcohol;

c) whether the formal breath demand was deficient by reason of the investigating officer having no evidence or reasonable belief that an offence had been committed under s. 253(1) of the Criminal Code in the preceding three hours;

d) voluntariness of any statements or utterances made by the accused at the detachment during the observation periods;

e) whether proper observation periods were conducted;

f) whether proper service compliance of the Certificate of Analyses has been proven pursuant to s. 258(7) of the Criminal Code ;

g) whether, if Charter breaches have been established, the appropriate remedy is to exclude the Certificate of Analyses pursuant to s. 24(2) of the Charter ;

h) whether the Crown has proven the elements of count #1 of the Information relating to impaired operation of the motor vehicle beyond a reasonable doubt. Use Immunity [ 10 ] Section 253(3) of The Traffic Safety Act states:

(3) In the circumstances mentioned in subsection (4), the person in charge of a motor vehicle that is involved in an accident shall: (

a) report the accident to the nearest peace officer as soon as is practicable after the accident; and

(

b) provide the peace officer mentioned in clause (

a) with any information or written statement concerning the accident that the peace officer may reasonably require to complete an accident report. [ 11 ] Accordingly, statements made pursuant to this legislation are considered to be statutorily compelled and thereby inadmissible for any other proceedings provided that the maker subjectively believed that he or she was so compelled to provide this information. [2] [ 12 ] In White the Supreme Court stated this principle at paragraphs 75 and 76: [75] . . . the test for compulsion . . . is whether, at the time the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given. [76] The requirement that the accident report be given on the basis of a subjective belief exists because compulsion, by definition, implies an absence of consent.

If the declarant gives an accident report freely, without believing or being influenced by the fact that he or she is required by law to do so, then it cannot be said that the sta t ute is the cause of the declarant’s statements. The declarant would then be speaking to police on the basis of motivating factors other than s. 61 of The Motor Vehicle Act. [ 13 ] In the instant case, Constable Maki acknowledged in his testimony that he had a duty under The Traffic Safety Act to investigate this accident.

He stated further that he did not know when he first arrived whether it was merely a traffic accident investigation or whether it would be a criminal matter. [ 14 ] Upon smelling alcohol coming from the truck cab he was “leaning heavily” to a criminal investigation. Shortly thereafter, he made an ASD demand.

No further steps were taken by him to complete any documentation or receive any information as it pertained to The Traffic Safety Act . [ 15 ] The extent of the interaction at roadside consisted of Constable Maki inquiring words to the effect “what’s going on?” The accused replied that he had made too wide a turn coming out of the intersection and went into the ditch.

In response to a question about his alcohol consumption that evening, the accused advised that he’d had only one drink approximately one hour ago in Prince Albert. [ 16 ] On the stand, the accused testified he believed he had to answer these questions put to him by Constable Maki because this is what he recalled from his Driver Handbook 18 years earlier when he became licensed to drive semi-trucks. [ 17 ] The issue then is whether, on balance, the Court accepts that the accused subjectively believed he was compelled to provide answers regarding the accident.

The Court is not persuaded that this is the case for the reasons that follow:

a) The accused testified that the police arrived some 30 – 45 minutes after he went into the ditch. However, he personally took no steps to contact them despite having a cell phone in his truck. It beggars belief that he would feel compelled under The Traffic Safety Act to answer questions from the officer yet not so obligated to ensure that the police were notified about this incident especially since his trailers were blocking two lanes of southbound traffic for that entire period on a busy four lane highway;

b) He acknowledged in his evidence that he lied to Constable Maki at roadside about his alcohol consumption. Transcript page 75, lines 32 – 41, page 76, lines 1 - 8 Q Okay. So when you get -- get back to the detachment and you’re speaking with the officers, or you’re speaking, I guess, on the tape that we observed last day, you said at 2044, and approximately ten seconds, on that timestamp, you said, You know, I had a drink in P.A., that’s all I had. You said I had “a drink”, and what you meant by that was, that you had one drink; isn’t that right? A Well, that would be

interpretation, but I had two -- two drinks. Well, actually, three drinks, sorry. Q Okay. But -- and at that time, at 20:44:10, you said, I had a drink in P.A., that’s all I had. A Yeah, well -- Q Is that true or not true?

A -- at -- at the time, when you’re talking to an officer, you -- you don’t really want to tell the truth. Q So you didn’t tell the truth at that time? A Not -- not at the start Transcript page 79, lines 29 – 37 Q Okay. So at 20:44 and ten seconds, the video you said: (as read) Yeah, I didn’t think I had that much to drink. You know, I had a drink in P.A., that’s all I had. And so, you testified a few minutes ago that you don’t always want to tell the truth the officers, so you weren’t telling the truth at that time, like that’s all the alcohol you had, right?

A When—when he first asked what I had to drink, I—I didn’t tell the truth. The Court adopts the reasoning of Rybchuk, J in R v Olson [3] when he stated at para 33: It is not reasonable for a person to think he has a legal duty to answer a police officer’s questions on the one hand, but then on the other hand think he does not have a legal duty to answer those questions truthfully.

c) The credibility of the accused generally was very poor. • He vacillated between having one drink to three drinks to back to one drink throughout the course of the investigation. • He was inconsistent as well as to when he had his last drink, first stating at scene “one hour ago” and then a few minutes later when he was put under arrest that his last drink was “a half hour ago” and then later at the detachment stating again that it was “one hour ago”. • On the stand, he denied ownership or any knowledge of the contents of the cooler found next to the driver’s seat where a partial bottle of rye whisky and a bottle of cola were located.

Yet at the detachment on the video he is seen stating “I’ve got a lot of stuff in there – like my cooler”. • He denied the knowledge of any plastic cup found in the centre console directly next to the driver’s seat, wet with an alcoholic beverage. • He stated at the detachment that he was impaired when he went into the ditch. When asked in cross-examination why he would say this if it wasn’t true, he stated it was because he had already blown over so had to admit it.

It was then pointed out to him that this statement was made before any tests had been taken, he responded “then I have no answer for that”. • Finally, he testified that he suffered from periodic dizzy spells which affected his balance arising from his diabetes. He denied however in cross-examination that this would impact his driving despite the fact that it could happen to him he said at any time without warning.

He also acknowledged that he had not referred to this on any supplementary information forms that were required to be filed by Saskatchewan Government Insurance (SGI). [ 18 ] In all of the circumstances, the Court does not accept the evidence of the accused that he answered the questions of Constable Maki because he believed he was statutorily compelled to do so. To the contrary, he appeared quite willing to provide self-serving information which was misleading and untruthful in its content. Accordingly, “use immunity” has not been established and all such responses are admissible in these proceedings.

Reasonable and Probable Grounds re: Impairment [ 19 ] Upon initially encountering the accused, Constable Maki decided to make an ASD demand, based upon the following: • the smell of alcohol in the cab; • admission of drinking;

• some slurring of speech; • admission that he had made too wide a turn and driven his semi-truck across the two lanes and into the ditch. [20] Constable Maki’s suspicion was raised to a belief that the accused was impaired by alcohol after observing him make his wayout of the truck and over to the patrol vehicle.

These observations included: • Struggling to get out of the vehicle; • Reaching for the door to assist himself to get down; • Dexterity wasn’t very sure – fumbling to put on boots which seemed a little difficult to do; • Made contact with the ground, stumbled and nearly fell over; • Walking on level patch towards police cruiser, unable to walk a straight line – stumbling left and right; (on cross-examination heestimated this distance to be 8 to 9 feet, certainly far enough to make these observations) • Leaned heavily on the vehicle and used the vehicle for support to guide himself around to the rear door; • Attempted to get into the vehicle and nearly fell out because he missed the back seat. [21] The standard to make a formal breath demand has been articulated by our Court of Appeal in R v Gunn[4] as one of reasonableprobability meaning that on the whole of the evidence, a reasonable person standing in the shoes of the officer would believe theindividual’s ability to operate the motor vehicle was impaired by alcohol.

The Court goes on to state “when determining whether thestandard of “reasonable grounds to believe” has been met, it is important to keep in mind that a police officer need only believe anindividual’s ability to drive is slightly impaired. This follows on the ratio in R. v. Stellato (1993), (ON CA), 78C.C.C. (3d) 380.” [22] The Court found Constable Maki to be a credible witness. In all respects he appeared fair, if not overly so, in his attempts toanswer in a straightforward unembellished fashion. He was candid and forthcoming in admitting he made mistakes in his investigation.

The Court accepts his observations at roadside which would be more than sufficient to satisfy a third party observer that Constable Makihad reasonable and probable grounds to believe the ability of the accused to operate his vehicle was impaired by alcohol.

No Time of Driving Established [23] Defence counsel contends that Constable Maki had no knowledge of the time of driving and accordingly a formal breathdemand was neither proper nor lawful. [24] Section 254(3) of the Criminal Code reads: If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person . . . [25] Proper compliance with this

section is required both by statute and pursuant to the Charter.[5] [26] That Constable Maki failed to establish the time of driving is irrefutable, as evidenced by the following exchanges in cross-examination: Transcript page 34, lines 25 – 33 Q So I didn’t ask you when his last drink was. I asked you about his last time of driving. So when you made that breath demand, youdidn’t know whether, in fact, he had driven that vehicle within even three hours; correct?

A That’s correct . . . Q And I take it -- and -- and in fairness to you, I take it that you didn’t even apply your mind to any timing of the last time of driving. You only applied your mind to the last time of a drink, fair? A I believe I -- well, yeah, I guess that’s fair . . . [ 27 ] Notwithstanding, Crown counsel argued that the Court can examine all of the surrounding circumstances and draw the inference that Constable Maki believed the driving occurred within the previous three hours.

Perhaps if Constable Maki had testified even that in all the circumstances, he assumed this to be the case, the Court might have been able to accede to this. [6] However, he was definitive in his answers that he simply did not turn his mind to the time of driving. [ 28 ] Although not raised in argument, the Court is of the view that this does not end the matter. The operative language of s. 253 reads: 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 of railway equipment or has the care or control of a motor vehicle , vessel, aircraft or railway equipment, whether it is in motion or not . . . [emphasis added] [ 29 ] As shown, the wording is disjunctive referring to the operation of the motor vehicle or the care or control of the vehicle as constituting an offence under s. 253 i.e. either scenario would suffice. [ 30 ] It is clear from the evidence that when Constable Maki first encountered the accused he was in the driver’s seat of the semi-truck: Transcript, Volume 1, page 48, lines 11 – 19, in chief . . .so I approached the vehicle and had to go through some snow to get to it, and I noticed that the driver door was open, and . . .

I’m sorry, an individual in the driver’s seat who I approached and climbed up the driver’s side of the vehicle to speak to, and discussed what was going on. Transcript, Volume 1, page 71, lines 26 – 32, in chief Q . . . So when you first came upon the scene and walked up to the semi, where was Mr. Procyshyn inside that semi truck? A In the driver’s seat. Q He was in the driver’s seat. And was the engine running? A Yes . . .

Transcript, Volume II, page 35, lines 10 – 14, in cross-examination Q -- but what I’m saying is, is that the reason you didn’t charge him with care or control, is because you actually didn’t see him occupy the seat normally occupied by a driver, fair? A Well, that’s -- that’s not fair, because that’s all I seen him in.

I never seen him outside of the driver’s seat. [ 31 ] This fact scenario is distinguishable from Scharf where the accused was encountered outside of his vehicle (and thus not in care or control) and the Crown was unable to establish time of driving within the past three hours. [ 32 ] It is also well established that the offence of care or control is included in the act of driving such that a conviction for care or control can register when driving or operation is charged. [7] [ 33 ] The result is that Constable Maki made a lawful and proper s. 254(3) demand on the accused at roadside notwithstanding that he did not turn his mind to the actual time of driving.

He did not have to in order to meet the criteria required for a lawful demand under s. 254(3) because he found the accused in care or control by occupying the driver’s seat. This would satisfy his belief that an offence has been committed under s. 253 of the Criminal Code within the preceding three hours.

Voluntariness of Statements [34] The Crown seeks to tender the statements and utterances of the accused made at the detachment as evidence in theseproceedings. To do so, the Crown must prove beyond a reasonable doubt that such were made voluntarily. [35] In Scharf, Mr. Justice Danyliuk stated inter alia at para 35: [35] . . . it is simply not enough for Cst. Roszell to indicate that he gave the standard warning and Charter rights and that in his viewno threats were made or inducements given. The Crown’s onus is more burdensome than that.

As Barclay, J stated in R v White, 2002SKQB 73, [2002] 7 W.W.R. 704: [4] The burden of proof that a confession is voluntary rests on the Crown and will “... rarely, if ever, be discharged merely by proof thatthe giving of the statement was preceded by the customary warning and expression of opinion on oath by the police officer, whoobtained it, that it was made freely and voluntarily”: Sankey v. the King (1927), (SCC), 48 C.C.C. 97 (S.C.C.) at p 101;Monette v. The Queen (1956), (SCC), 114 C.C.C. 363 (S.C.C.).

Where the evidence adduced by the Crown isexhaustive in respect of everything that was said to the accused by persons in authority and it discloses no threats or inducements, thenthe statement is likely to be found voluntary. The only way available to the Crown to prove such a negative proposition is to produceevidence of everything that was said to or in the presence of the accused and all the circumstances relevant to the making of thestatement.

In the case at bar, the Crown complied with that procedure. [36] The evidence in the present case discloses that the police warning was given to the accused at roadside, subsequent to arrest,which he said he understood. The video evidence from the detachment also reveals that Constable Maki advised the accused as theyentered the observation room that everything in there was video and audio recorded. [37] The video evidence discloses no threats, coercements or inducements emanating from Constable Maki.

The tone is cordialand non-intimidating and encompasses the whole of the circumstances relevant to the making of the statements by the accused. [38] The Court is therefore satisfied that the Crown has discharged its burden of proof that any and all statements and utterances atthe detachment were voluntary and thereby admissible.

Observation Periods [39] During the course of cross-examination, Constable Maki acknowledged he may have glanced at his phone to check the timeperiodically “out of habit”. [40] Defence counsel maintained he was texting for a period of 15 to 20 seconds which was not admitted to by Constable Maki. [41] The video evidence is inconclusive in this regard, however at no time does the accused appear to have burped or regurgitatedaccording to what the Court viewed on the video.

He did sneeze a couple of times but by his own admission he did not burp orregurgitate anything in the process. [42] The potential issues raised here as set out in R v By[8] appear to have been rendered moot in any event by the recent pronouncement of the Supreme Court in R v Cyr-Langlois[9], where the technician failed to conduct the 15 minute observation periods.

The Court stated that the accused must nonetheless: “1) adduce evidence relating directly to the malfunctioning or improper operation ofthe instrument and 2) . . . establish that this defect tends to cast doubt on the reliability of the results”, otherwise it simply falls within therealm of speculation and does not meet the accused’s evidentiary burden.

[ 43 ] On both the facts presented and the legal implications of same, no issue arises in this case respecting proper observation periods and their impact on the admissibility of the Certificate of Analyses. Service of Certificate of Analyses [ 44 ] Constable Maki in his evidence stated that he served a copy of the Certificate of Analyses on the accused. He did not state how he made the copy, nor was he asked this in cross-examination. [ 45 ] Service of a copy of the Certificate of Analyses must be made on the accused as required by s. 258(7) of the Criminal Code . Neither this

section nor any other of the Criminal Code requires any specific form of notice. The purpose of this

section is to simply convey to the accused what the Crown intends to rely upon at trial i.e. production of the certificate, and absent any confusion or ambiguity in this regard, evidence that a copy was provided to the accused is sufficient compliance with s. 258(7) . [10] [ 46 ] In the instant case, the evidence before the Court is that a copy of the Certificate of Analyses was served on the accused. Nothing was raised suggesting that the accused did not receive same or was not informed by its content of the case he had to meet.

Therefore, on balance, the Court is satisfied that proper compliance of s. 258(7) has been made. Charter Breaches [ 47 ] For the reasons stated, the Court does not find that any breaches of the Charter as alleged, have been made out. Therefore, all evidence tendered in the voir dire is admissible and is applied to the trial proper, by consent. Impaired Operation [ 48 ] The accused is charged in count #1 of the Information with impaired operation of the motor vehicle.

For the reasons that follow the Court is satisfied beyond a reasonable doubt that the Crown has proven the accused is guilty of this charge. [ 49 ] To make this determination the Court must be satisfied that impairment was the only reasonable conclusion available on the totality of the evidence. [11] When viewing the whole of the evidence at the scene and subsequently at the detachment, the Court is so satisfied. [ 50 ] At the scene, Constable Maki’s suspicion was raised to a belief that the accused was impaired by alcohol after observing him make his way out of the truck and over to the patrol vehicle.

All of the indicia included: • the smell of alcohol in the cab; • admission of drinking; • some slurring of speech; • admission that he had made too wide a turn and drove his semi-truck into the ditch. • Struggling to get out of the vehicle; • Reaching for the door to assist himself to get down; • Dexterity was not very sure – fumbling to put on boots which seemed a little difficult to do; • Made contact with the ground, stumbled and nearly fell over; • Walking on level patch towards police cruiser, unable to walk a straight line – stumbling left and right; • Leaned heavily on the vehicle and used the vehicle for support to guide himself around to the rear door; • Attempted to get into the vehicle and nearly fell out because he missed the back seat.

[ 51 ] The Court has also had the opportunity to carefully review the detachment video which evidenced the following: • The accused is noted throughout to be speaking in a slow, deliberate manner with his head down and shoulders slumped.

This was clearly distinguishable from the way in which he testified at trial both in cadence and apparent alertness; • His conversation was extremely repetitive and unsolicited: “I turned too damn wide and put her in the ditch”; “I guess I was impaired and turned too wide and put her in the ditch”; “I have no problems with you people – I turned too wide”; “Usually I don’t do this – 17 years of driving”; “Other than that I can’t tell you anything – no excuse for what I did”; “I don’t want to hurt anybody – don’t want to hurt myself or anybody”; “Going to go home – made the turn too damn wide”; “Not what I wanted to do”; “Don’t understand how I did that – guess my judgment was out”; “No I’ve never done anything stupid like that before – turned too damn wide and hit the ditch – never done that”; “Tonight – just pisses me off what I did”; “I never do this – never do this – 17 years driving a truck and I go and do this tonight”; “I drive a semi – professional driver – not going to kill anyone”; “didn’t turn properly – after 17 years go and do something stupid like this”; “I never do anything like this – my judgment wasn’t there – simple as that”. • At one point attempting to retrieve a Kleenex from the desk in front of him he alights from the chair and falls into the wall and then forward over the desk and has to be assisted by Constable Maki.

His explanation that this was due to dizzy spells from his diabetes. The Court finds that this explanation was not reasonable or credible since he testified that these dizzy spells could hit him at any time without warning yet it would have no impact whatsoever on his ability to drive a semi-truck.

Further, he never once reported any of these conditions to SGI or filled out any forms evidencing same or called any medical evidence at trial to substantiate or correlate dizzy spells to diabetes. [ 52 ] All of these video observations taken collectively tend to corroborate the indicia of impairment reported by Constable Maki at the scene rather than detract from them. [ 53 ] The Court also noted that Mr. Procyshyn stated several times that he was a professional driver for 17 years and that nothing had ever happened like this before.

Considering that he turned the semi onto Highway #11 from a dead stop at the intersection and drove directly into the centre median ditch with no other apparent extenuating circumstances such as limited visibility or poor road conditions being evident.

In other words, there doesn’t appear to be any reasonable explanation for this result that would lead one away from the conclusion that his ability to operate was impaired by alcohol. [ 54 ] On the whole of the evidence, the Court is satisfied that the degree of impairment evidenced his closer to great than slight on the Stellato continuum. [ 55 ] As far as operation of the motor vehicle was concerned, he admitted numerous times at the detachment that he drove the semi into the ditch, as noted.

Such statements were made gratuitously without prompting from Constable Maki and have been ruled voluntary and admissible. [ 56 ] If the Court is incorrect in this conclusion, the accused also stands in jeopardy of being convicted of the included offence of care or control while his ability to operate was impaired by alcohol, as referenced in Drolet, supra .

[57] This principle was referenced by the learned author Kenkel in Impaired Driving in Canada, 5th edition at page 94:

(6) Operation Charged, Care or Control Proved Care or control is an included offence to impaired driving. R v Drolet, (QC CA), [1988] JQ no 2283 (CA), aff’d (SCC), [1990] SCJ No 101 The charge of impaired driving includes the assumption of care or control of the motor vehicle and the intention to assume such control. One cannot drive a motor vehicle without first having intended to assume and then assumed care or control of the motor vehicle.

Theimpaired driving offences thus contain the essential elements of the care or control offence and provide sufficient notice to the accusedthat he or she faces that included offence. R v Plank, (ON CA), [1986] OJ No 318 (CA) R v Rana, [2014] OJ No 2732 at para 14 (SCJ) R v Dumont, 2014 ONCJ 47 , [2014] OJ No 571 (CJ) [58] Numerous cases in Saskatchewan have followed this reasoning including R v McKee, R v Watson and R v Campbell.[12] [59] In McKee, the accused was charged with impaired driving.

No evidence was adduced of driving, however the Court stated: . . . but care or control is an included offence of operating a motor vehicle as stated by the Supreme Court of Canada in R v Drolet (1988) (QC CA), 14 MVR (2d) 50 (CA Que), aff’d (SCC), [1990] 2 SCR 1107 and noted in R v Pinceman,2004 SKCA 33 at para 24, [2004] S.J. No 134 (QL) and R v Campbell, 2002 SKQB 109. [60] Similarly, in Watson, the accused was charged with impaired driving and convicted of the included offence of care or control.

This ruling was upheld on appeal.[13] [61] Constable Maki first encountered the accused when he was in the driver’s seat. Section 258 (1)(

a) of the Criminal Code setsout a rebuttable presumption that a person occupying the driver’s seat had the necessary intent to assume care or control of the vehicle. [62] The accused explained he only momentarily occupied the driver’s seat for purposes of exiting the vehicle. This is at oddswith Constable Maki’s observations at the scene and with statements of the accused made at the police station: “I tried to spin out ofthere but couldn’t get enough traction”; “I could rock back and forth a little bit but couldn’t get it out – too much weight in the backend”. Clearly by his own admission, the accused has not rebutted the presumption created in s. 258(1)(

a) of the Criminal Code. [63] If the Court is incorrect in this conclusion, the evidence nonetheless is that he performed a number of operations with thefittings of the vehicle and would be determined thereby to be in actual care or control. [64] In order, however, to register a conviction the Court must examine all of the circumstances to determine if the requisite elements have been met as laid down in R v Boudreault[14]: (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; and (3) in circumstances that create a realistic risk of danger to persons or property. [65] The concept of “realistic risk” of danger was discussed at length in Boudreault at paras 42 to 53 inclusive.

Paragraph 42 isgermane to the present circumstance: [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 added]

Similarly at para 49: [49] The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger. . . . [ 66 ] The first two elements of an intentional course of conduct associated with a motor vehicle by a person whose ability to drive is impaired, have been satisfied.

The only issue remaining to be determined is whether the vehicle posed a realistic rather than a theoretical danger or risk. [ 67 ] In the Court’s view, the two trailers blocking the entire two lanes of a major highway at night falls squarely within the third criteria outlined in para. 42 of Boudreault . This risk continued for several hours until such time as the unit was finally removed. Mr.

Procyshyn’s continued attempts to rock out the semi-trailer would serve to exacerbate this risk. [ 68 ] Therefore, the test to convict for care or control in Boudreault has been met and the accused could have been convicted accordingly. [15] Conclusion [ 69 ] The accused is found guilty on both counts of the Information. The Court will take direction from the Crown as to which count it is seeking conviction upon. The remaining count shall be then stayed pending completion of any appeal period. ___________________ R.D. Jackson, J