2014 QCCQ 5619, 2014 QCCQ 5619

R. c. Napash 2014 QCCQ 5619 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF CHISASIBI Criminal Division No.: 640-01-027963-124 DATE: June 16, 2014 ______________________________________________________________________ BY THE HONOURABLE CLAUDE P. BIGUÉ, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Plaintiff c.

KELLY NAPASH Accused ______________________________________________________________________ JUDGMENT ON A VERDICT ______________________________________________________________________ [ 1 ] The defendant is charged with two counts arising out of an incident that took place on August 27, 2012: ➢ One count of having the care or control of a motor vehicle with a blood alcohol concentration over 80; ➢ One count of having the care or control of a motor vehicle while impaired by alcohol. [ 2 ] It was admitted that the accused was impaired. The rate of .204 is not contested either.

The identification of the accused is also admitted. The issue is whether or not he was in the care or control of his motor vehicle at around 7:30 a.m. that day. [ 3 ] That morning, when the police officers arrived at the accused’s residence, they saw him on the driver’s seat of his motor vehicle, which was parked in the driveway near his house. As they got out of their car, the police officers saw the accused getting out of his. He had the keys of the vehicle in his hand. They started talking to him. [ 4 ] Mr. Napash was obviously impaired. He admitted that right away.

The police officers observed that there were three empty cans of beer on the driveway, and another one on the car, near the windshield, close to the wipers. There were none inside the vehicle. [ 5 ] He was arrested and taken to the police station, where his blood alcohol concentration was found to be .228 mg, with .204 mg of alcohol in 100 ml of blood. ISSUES RAISED [ 6 ] Did the accused rebut the presumption established in section 258(1) C.C.C., by establishing that he was not occupying the driver’s seat for the purpose of setting the vehicle in motion? [ 7 ] Should the presumption of section 258(1)(

a) be rebutted, did the Crown prove, beyond reasonable doubt, all the elements of the accusation of having the care or control of a motor vehicle, under section 253(1) C.C.C.? THE FACTS [ 8 ] Mr. Napash started drinking beer at around midnight. He drank until about 5:00 a.m., sometimes in his house, sometimes outside the house. [ 9 ] He did not drink between 5:00 a.m. and 7:30 a.m., staying in his vehicle to listen to some music on the radio.

He said he stayed outside the house in order not to wake up his wife and children. [ 10 ] He said he never planned to leave his home, hence he did not intend to start his vehicle. ANALYSIS [ 11 ] When the police officers arrived at Mr. Napash’s home in the patrol car, he was on the driver’s seat. The engine was not running. They never saw him driving the vehicle.

[ 12 ] The police officers did not have to order the accused to get out of his vehicle. As they approached the property, they saw Mr. Napash getting out of his vehicle. [ 13 ] The accused had the keys in his hand. He was surprised to see the police officers, because he had not noticed that they were present before he got out of his vehicle. [ 14 ] The vehicle was not in a position for leaving the place.

Its front end was parked towards the property, in the driveway. [ 15 ] There was an empty can of beer on the car, near the windshield. [ 16 ] Even though the accused was impaired, the police officer confirmed that he fully understood his arrest, his right to call a lawyer, and the order to provide breath samples. The witness added that he complied well with the instructions of the police officers.

Finally, on the printouts providing the analysis of the samples of breath, the following information was entered by the police officers: “1 st test, blew correctly and 2 nd test, blew correctly”. [ 17 ] Using the balance of probabilities as the standard of proof for deciding about the presumption created by

section 258, I believe Mr. Napash when he says that he did not intend to drive his vehicle that morning. He said that he used his car because he wanted to listen to some music on the radio, outside of the house where his family was sleeping. The evidence provided by the police confirms that version. When the police arrived at the accused’s residence, he was getting out of his vehicle, and they never saw him operating the vehicle that morning. They never saw him driving and they did not see the engine working. The vehicle was parked in the driveway, and there was an empty beer can on the vehicle.

There is absolutely no evidence that would lead the Court not to believe the accused. [ 18 ] I find here that the accused has met his onus of proof on a balance of probabilities that, when he entered his vehicle and sat in the driver’s seat, it was not for the purpose of setting the vehicle in motion. [ 19 ] By doing so, he simply rebuts the presumption enacted by

section 258. But this is not a means of defence. [1] [ 20 ] It does not mean that he is not guilty of the accusation of being in the care or control of a vehicle when impaired. [ 21 ] The issue is not only to verify the accused’s intention when he was found seated in the driver’s seat.

The Court has to decide if there was a realistic risk that the accused could cause a danger to persons or property by putting the vehicle in motion. [ 22 ] Even if the Court decides that there was no intention to drive, the Crown suggests here that there was a realistic risk of danger because the accused was severely impaired by alcohol, as confirmed by his high results obtained through the analysis of a qualified technician. [ 23 ] As expressed in the Boudreault case, a realistic risk of danger may arise in at least three ways, of which two are relevant to this case.

An inebriated person, still impaired, may change his or her mind or unintentionally set the vehicle in motion. [ 24 ] As quoted by the Supreme Court in R. v. Boudreault , in reference to R. v. Penno , a decision also rendered by the Supreme Court, Lamer J. observed that “[t]he law . . . does not go so far as to punish the mere presence of an individual whose ability to drive is impaired in a motor vehicle”. [2] [ 25 ] A realistic risk is not based on speculation or conjecture. It is not speculative or only theoretically possible.

A realistic risk is opposed to a remote possibility. [ 26 ] The existence or not of a realistic risk of danger is a finding of facts. [ 27 ] In order to persuade the judge that there is no realistic risk, one of the main methods found in the case law is for the accused to demonstrate that he or she had a well established plan in order to prevent himself or herself from driving the vehicle.

As the Supreme Court calls it in the Boudreault decision, this plan is an “alternate plan” to ensure safe transportation home. [ 28 ] In the Boudreault decision, the accused had been found impaired in his car, on a cold and windy day. He had started the vehicle, in order to use the heater while waiting for a taxi that he had called twice in the preceding minutes, from the house where he had spent the night. He fell asleep in his vehicle a few minutes before the taxi arrived. The taxi driver called the police.

Boudreault was acquitted because his alternate plan was determined to be appropriate by the Court. [ 29 ] In R. v. Leroux , [3] Judge Suzanne Paradis accepted the alternate plan of the accused, who explained that he had parked his vehicle in the parking lot of a Tim Horton’s restaurant for the night, planning to walk later to get back home. After going to a bar, he had a meal at the Tim Horton’s, but decided to have a nap in his car before he would walk. He then started the car in order to use the heater, because it was November 21.

If the police had not found him in his car, the judge believed that he would have walked home, a 45-minute walk. The plan was determined to be highly feasible. He was acquitted. [ 30 ] In R. v. Desgroseilliers , [4] the accused was found impaired, in a parking lot near the apartment of his sister’s boyfriend. He said he was waiting with a friend in his car for a ride to be given by a sober driver belonging to their group of friends, who planned to get together at a bar. The sober driver had to do two trips to take all of them to the bar. The accused was to be in the second party.

The accused’s plan that night was to be driven to the bar by that sober friend and to come back with a taxi. The police showed up in front of the accused in his car before the sober driver came back. His vehicle had not been turned on, nor were any accessories such as lights, radio or power windows used. The passenger friend had the key. The risk of the accused changing his mind was speculative, a theoretical possibility that would not support a conviction, as it was decided. [ 31 ] What happens then if the vehicle is parked at the accused’s house, as in the present case?

This also has been decided by the Court concerning similar facts.

[32] In R. v. Hotte[5], the accused’s car was parked in front of his apartment. Shortly before midnight, he had an argument with hisspouse. He was impaired and he knew it. He left the apartment. He went to his vehicle. Without starting the engine, he turned his key tothe “on” position to listen some music. He fell asleep. The judge believed him when he said he did not intend to start his vehicle, or todrive. He had nowhere to go and just wanted a place for a break outside his home after a serious argument with his spouse.

Daoust J.decided that there was no realistic risk that the accused would create a danger by putting the vehicle in motion intentionally or not. Hehad no plan to go anywhere else. There was no risk that he would use his car. So this was a case of a plan to stay at home. An acquittalwas decided. [33] A similar reasoning was made by Judge Réal R. Lapointe in R. v. Duchesne,[6] where the room of a motel was considered to bethe equivalent of the accused's home. The accused had occupied that room for five nights for work purposes. The vehicle was parked 10feet from the door of the motel unit.

The accused was found asleep by police officers, on the driver’s seat, right in front of his room. Hewas listening to music on the radio; the engine was running, for the heater. The judge considered that the accused had no intention ofleaving his motel and going home or anywhere else. The risk of using the motor vehicle was hypothetical, not realistic. He was acquitted. [34] If we apply these teachings to the case at bar, we must first point out that the main reason why the Crown supports an allegationof a realistic risk of danger is the high level of intoxication.

But, as stated earlier, the police witness confirmed that the accused was notsufficiently impaired to misunderstand his arrest or the instructions given by the police officers. In the Duchesne case, the accused alsoblew more than double the maximum rate of alcohol allowed by the law.[7] [35] Mr. Napash never drove the car and did not even start it. He was getting out of the car when the police arrived, heading towardshis house. He had no plan to leave the place. He intended to go back inside his house once his wife and children were up.

The fact that hedoes not use his car regularly to listen to music when he drinks at night does not change the fact that the day in question, August 27, heused his car to relax, “not even to sleep,” to listen to music (as seen in other court decisions), with the key in the “on” position only forthe radio. He did not use any other device on his car. [36] Applying the test of R. v.

W.(D.)[8] to the assessment of the accused’s testimony, I decided as a first step that I believe theexplanations provided by the accused, supporting his contention that he planned to stay at his home, and not to leave, using his car as aplace to relax, and not as a vehicle to drive. He was coherent and credible. [37] Consequently, there was no realistic risk that he would use his vehicle.

The proposal by the Crown that the accused wouldchange his mind and operate his vehicle, thereby creating a danger, is purely speculation and conjecture in these circumstances. [38] Even if I had detected a few deficiencies in the accused’s testimony―which I did not―we would at least have had to give himthe benefit of the reasonable doubt as the second step of the analysis learned from the well known case of R. v. W.(D.). FOR THESE REASONS, THE COURT: [39] ACQUITS the accused on both counts. __________________________________ CLAUDE P. BIGUÉ J.C.Q. Mtre. Geneviève LamontagneFor the Crown Mtre.

Ratha HeangFor the accused Dates of hearing: February 12 and 14, 2014 [8] R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742.