Her Majesty the Queen - v. -, 2013 SKPC 157

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 157 Date: September 25, 2013 Information: 24479273 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kevin M. Lacasse Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Robert Fielding For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] Kevin M. Lacasse is charged with having the care and control of a motor vehicle while his blood alcohol content exceeded .08 percent. He is also charged with having care and control of a vehicle while impaired by alcohol. It is alleged that both offences occurred on December 22, 2012. THE EVIDENCE

[ 2 ] The only witness called was Cst. Duchesne of the Moose Jaw RCMP. He testified that he began with the RCMP in April of 2012, and in July 2012 was stationed to Moose Jaw. On December 22, 2012, he was on call and at home. At this time, he received a call from dispatch on his cell phone. The call was received at 6:55 a.m. The complaint was regarding an impaired driver who had left Highway No. 2, south of Moose Jaw, and was driving in a farmer’s field. [ 3 ] The officer testified that he arrived at this scene at approximately 8:00 a.m. on December 22.

The officer said that as he drove south on Highway No. 2, he noted a grid road coming from his left that intersected with Highway No. 2. At this point, Highway No. 2 runs almost straight north and south. The grid road ran east/west. The officer noted that there was a pickup truck just east of Highway No. 2 and on the south side of the grid road. The truck was facing south and running roughly parallel to Highway No. 2, and perpendicular to the grid road. The truck was nose down into the ditch on the south side of the grid road.

The officer testified that he looked into the farmer’s field and could see the tracks for the truck going through the snow in the farmer’s field for some distance. He could also see from the tracks that the truck went down into and through the ditch on the north side of the grid road, crossed the grid, and then the truck came to a stop in the ditch on the south side of the grid road. [ 4 ] The officer testified that he checked the plate on the truck and ascertained the registered owner of the vehicle. He then approached the vehicle. As he approached the vehicle, he ascertained that it was running.

He also ascertained that some gravel and snow had been thrown by the tires on the truck spinning, while the truck was in a stationary or relatively stationary position. [ 5 ] The officer testified that as he approached the truck, he ascertained that there was a lone occupant seated in the driver’s seat. When he got up beside the truck, he ascertained that the driver was sleeping in the driver’s seat. That is, the driver was seated where the driver normally sits, with his feet in front near the pedals. The officer knocked on the window and awoke the accused.

When the accused woke up, he opened the window and the officer immediately noticed the smell of alcohol. The accused told the officer that he was just coming from his friend’s place and had hit the ditch. The officer asked the accused if he drove in the field and the accused said he never drove in the field. The officer noted that the accused’s speech was slurred, and his eyes were watery and red. At this time, the accused said that he had called CAA. He then said that he hit the ditch at 4:00 or 5:00 a.m. However, a minute later, he said he didn’t call CAA. In the officer’s view, the accused was quite confused.

The officer got the accused out of his vehicle and had the accused turn off the vehicle. The officer immediately placed him under arrest on the basis of “care and control”. He helped the accused walk back to the police vehicle and placed him in the back seat of the police vehicle. [ 6 ] According to the officer’s notes, at 8:15 a.m., he read the accused the Charter notice. At 8:17 a.m. he made the breath demand and then issued the police warning. [ 7 ] The officer made a few notes, and then decided he should investigate where the accused drove from.

He got his camera, and walked at least 100 metres into the field following the tracks and taking pictures. At this time, he decided he was going too far and returned to the police vehicle. He checked the accused’s vehicle and around the vehicle to ascertain if the accused was drinking after the vehicle stopped.

The officer testified that he could find no empty bottles and no indication that the accused had any alcohol in the vehicle, or was drinking in the vehicle. [ 8 ] The officer seated himself in the front seat of the police car, and called a tow truck to tow the accused’s truck, and called Moose Jaw Police Service to make arrangements for a breath technician to be available, when he and the accused arrived at the Moose Jaw Police Station. They arrived at the Moose Jaw Police Service at 9:30 a.m. and booked the accused in. At 9:39 a.m. he began the observation period. Cst. Taylor Elder was the breath technician.

He took two breath samples from the accused, one at 10:01 a.m. and one at 10:23 a.m. Following these tests, Cst. Elder completed the Certificate of Qualified Technician and gave copies to Cst. Duchesne. Cst. Duchesne completed the Notice of Intention to Produce Certificate and served the accused at 11:00 a.m. [ 9 ] Under cross-examination, the officer agreed with defence counsel that the front end of the truck was down into the snow in the ditch. The officer agreed that he didn’t know if the truck was stuck or could be driven out of the ditch.

The officer also agreed that the accused told the officer that he wasn’t driving. The officer also agreed that it was fairly cool outside and accepted that the engine was running because it was cold.

[10] The defence called no evidence. ISSUES [11] The following issues arise from the arguments of counsel:

(1) Was the accused in care and control of the motor vehicle?

(2) If the accused was in care and control of the motor vehicle, were the breath samples obtained as soon as practicable?

(3) Has the Crown proved that the accused was impaired by alcohol? ANALYSIS

(1) Was the accused in care and control of the motor vehicle? [12] The issue of care and control has been extensively litigated in Canada, and there is a significant list of appellate courtdecisions to provide guidance on the

interpretation and application of this section. I refer to Ford v. The Queen, (SCC),[1982] 1 S.C.R. 231; R. v. Toews, (SCC), [1985] 2 S.C.R. 119; R. v. Brahniuk, 2002 SKCA 104; R. v. Shuparski, 2003SKCA 22; R. v. Buckingham, 2007 SKCA 32; and R. v. Boudreault, 2012 SCC 56 , 2012 S.C.C. 56. [13] Prior to looking at these cases however, I begin by noting that s. 258(1)(

a) of the Criminal Code reads as follows: 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in anyproceedings under any of subsections 255(2) to (3.2), (

a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, ... theaccused shall be deemed to have had the care or control of the vehicle, ... unless the accused establishes that the accused did not occupythat seat or position for the purpose of setting the vehicle ... in motion ... [14] In the Ford case, supra, the Court held that this subsection created a rebuttable presumption.

Where it is established that theaccused occupied the position normally occupied by the operator of the vehicle, there was a rebuttable presumption that this individualwas in care and control. The accused was then required to establish that he did not enter or mount the vehicle for the purpose of setting itin motion. [15] In the Buckingham decision, supra, at page 5, the Court of Appeal stated: As I have indicated above, the Crown conceded that the respondent had entered the vehicle solely for the purpose of getting warm anddid not intend to drive the automobile.

He had therefore met the onus under s. 258(1) by establishing that he did not occupy the driver’sseat for the purpose of setting the vehicle in motion. Thus, the presumption of care and control arising pursuant to that subsection wasrebutted. Accordingly, the sole issue was whether the facts as I have outlined them were in themselves sufficient to establish de factocare and control of the vehicle. [16] From this statutory provision and from these statements in these two cases, I would conclude the method of analysis to be asfollows: 1) Has the Crown established that the accused was occupying the driver’s seat?

If yes, then the presumption contained in s. 258(1)(a)applies.

2) Has the accused adduced evidence to rebut the presumption in s. 258(1) (a)? If the accused has not rebutted the presumption, then the Court should conclude that the accused is in care and control of the vehicle.

If the accused has not rebutted the presumption, and the Crown has proved the other requisite elements of the offence, then the accused must be convicted of the charge. 3) If the accused has rebutted the presumption, then the Court must determine whether on all of the evidence, the accused is in de facto care and control of the vehicle. [ 17 ] It seems to me that in most, if not all of the above mentioned cases, the Court concluded that there was evidence to rebut the presumption, and the Courts then addressed the difficult third step in the analysis to determine whether the accused could then be convicted of being in care and control of the motor vehicle. [ 18 ] I will apply this method of analysis to this case.

Doing that, there is clearly evidence that the accused occupied the driver’s seat so that the presumption would then come into play. Did the accused then rebut the presumption? In my view he did not. The officer conceded that it was cold outside and the accused may have been running the vehicle to keep warm. The officer also agreed that he didn’t know if the truck was stuck or could be driven out of the ditch. However, the accused did not take the stand and the defence led no evidence. Section 258(1) (

a) says that the accused shall be deemed to have care and control “unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle in motion”. There is no evidence upon which I could conclude that the accused did not occupy the seat for the purpose of setting the vehicle in motion.

As a result, I conclude that the accused has not rebutted the presumption and the Crown has established that the accused was in care and control of the vehicle. [ 19 ] In case I am in error however, I will proceed to examine whether the accused is in de facto care and control, on the basis of the above mentioned decisions. [ 20 ] In the Boudreault case, supra , at paragraphs 33 to 35, the Court stated: [33] In this light, I think it helpful to set out once again the essential elements of “care or control” under s. 253(1) of the Criminal Code in this way: (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. [34] The risk of danger must be realistic and not just theoretically possible: Smits , at para. 60.

But nor need the risk be probable, or even serious or substantial. [35] To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention to prevent a danger to public safety. To require only that the risk be “theoretically possible” is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct. [ 21 ] In virtually all of these cases, it is proved that the accused does have an intended course of conduct associated with the motor vehicle and that the person’s ability to drive is impaired.

The cases turn on whether the circumstances create a realistic risk of danger to persons or property. In my view, the above mentioned cases demonstrate that there are a number of common facts that the Court will examine in making this determination. For example, in the cases of Ford , Shuparski , Brahniuk and Buckingham , the Courts pay particular attention to whether the engine was running or not running.

In the Shuparski case, the Court noted in addition to the car not running, that the keys had been removed from the ignition and placed on the passenger seat. [ 22 ] In the Ford and Boudreault cases, there was evidence that the accused had made another plan or arrangement for a ride home, and that the accused did not plan or intend to drive.

In Boudreault , the Court placed particular importance on the finding of fact by the trial judge that the accused had made another arrangement so that there was no realistic risk of danger. [ 23 ] In other cases, such as Brahniuk and Shuparski , the Court noted whether the car was disabled or not drivable.

[24] When I look at and examine these factors, and apply them to the case at bar, I am again compelled to the conclusion that theaccused was in care and control of this vehicle. There is not the slightest evidence that this accused had made any other arrangement orplan or that he did not intend to drive. The engine was running. The car was not disabled in any way. In the Brahniuk and Buckinghamdecisions, the Court of Appeal upheld convictions on the basis that the motor was running and there was a realistic danger that theaccused would awaken and set the car in motion.

In my view, this case is on all fours with both of those decisions. [25] Simply stated, whether I address the question of care and control by simply applying the presumption contained in s. 258 ofthe Criminal Code, or I address care and control by examining the case law and looking for a realistic risk of danger to persons orproperty, my conclusion is the same. I conclude that this accused was in care and control of the motor vehicle at the time he was locatedby Cst. Duchesne.

(2) If the accused was in care and control of the motor vehicle, were the breath samples obtained as soon as practicable? [26] Defence counsel argues that the breath samples were not taken as soon as practicable, as required by s. 258(1)(c)(ii) of theCriminal Code and as a result, the Certificate of Analyses should not be admitted into evidence and the Crown cannot rely upon thepresumptions established by s. 258. This

section clearly does require that the samples be taken as soon as practicable. In my view, thesamples were not taken as soon as practicable, and this defence objection is a valid one. In allowing this objection, I attribute absolutelyno ill will or ill motive to the police officer. To the contrary, this young officer, who was on the job for about six months at the time ofthis incident, was attempting to be very diligent in this investigation. He testified that he followed the tracks into the field and took anumber of pictures.

He examined the truck and area around the truck to ascertain if there was any evidence that the accused wasdrinking in the vehicle. Only after taking these steps did he radio for a tow truck, and then he waited for the tow truck to arrive toactually tow the vehicle away, before departing for Moose Jaw. The officer freely admitted to defence counsel that he made what Iwould describe as “some rookie mistakes” and the officer vowed to do better in the future.

While the officer was attempting to be verydiligent and in that respect his actions were certainly understandable, I still must conclude that it was not necessary for him to take thesesteps at that time. He could have left for Moose Jaw quite promptly and had the samples taken as soon as practicable. As a result, Imust conclude that the certificate is not admissible and I find the accused not guilty of the charge of driving while over .08 percent.

(3) Has the Crown proved that the accused was impaired by alcohol? [27] Defence counsel argued that there was insufficient evidence that the accused was impaired by alcohol. With the greatest ofrespect, I simply cannot agree. Cst. Duchesne was very careful in his investigation and in his presentation of the evidence. I completelyaccept his evidence regarding his observations of the accused. He testified that there was clear evidence that the accused drove througha field for a considerable distance, through a ditch, across the grid road and again into the ditch.

When he found the accused, he wasasleep behind the wheel. When he awoke the accused, he noted that the accused smelled of alcohol, had bloodshot watery eyes andslurred speech. He also noted that the accused was clearly confused and at first indicated that he had called CAA, and then retracted thatand said that he did not call CAA. [28] The case of R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.) has been applied many times inthis jurisdiction.

That case stands for the proposition that if the evidence of impairment establishes any degree of impairment, rangingfrom slight to great, the offence is made out. In my view, the officer’s evidence of the accused’s impairment meets this test, and accordingly, I find Mr. Lacasse guilty of the offence ofimpaired driving. [29] Dated at the City of Moose Jaw, in the Province of Saskatchewan, this 25th day of September, 2013.

D. Kovatch, J