Her Majesty the Queen - v. -, 2012 SKPC 59

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 059 Date: April 3, 2012 Information: 24403446 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Chris Friesen Appearing: Ms. Valerie Adamko For the Crown Mr. Morris Bodnar, Q.C. For the Accused DECISION D.C. SCOTT , J Background [ 1 ] Mr. Friesen is charged that (1) on October 7, 2011 he had the care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol contrary to s. 253(1) (

a) of the Criminal Code ; and (2) on October 8, 2011 he failed or refused to comply with a demand pursuant to s. 254(3) to provide breath samples contrary to s. 254(5) of the Criminal Code .

[ 2 ] At the trial, R.C.M.P. Constable Steve Raymond, R.C.M.P. Constable Jean Strueby and the accused Chris Friesen testified. Written submissions were filed by Defence and Crown counsel. Issues [ 3 ] The following issues were raised by counsel: A. Has the Crown established beyond a reasonable doubt the offence of refusal? 1. Did Constable Raymond have reasonable grounds to make a breath demand pursuant to s. 254(3) of the Criminal Code ? 2. Was the breath demand made as soon as practicable within the meaning of s. 254(3) ? 3. When Constable Raymond asked Mr.

Friesen to accompany him to the breathalyzer room, was the demand still valid? B. Has the Crown established the offence of impaired care or control beyond a reasonable doubt? 1. Has Mr. Friesen rebutted the presumption of care or control in s. 258(1) (

a) of the Criminal Code ? 2. If the accused has rebutted the presumption, did he nonetheless have actual care or control of the vehicle? Evidence R.C.M.P. Constable Steve Raymond [ 4 ] Constables Raymond and Strueby were on duty on October 7, 2011, when they were dispatched at 9:54 p.m. to a field west of Asquith, Saskatchewan. They found a green pick-up truck facing east, in an open, unfenced field of wild grass at the end of Cecil Street.

No ditch or approach led to the field and no signs were posted indicating it was privately owned. [ 5 ] They each arrived in their own marked patrol cars at approximately 10:38 p.m. and used their “take down” lights to alert the occupants of the truck. The officers observed two males who appeared to be sleeping or passed out, slumped over facing each other. The accused occupied the driver’s seat, head and shoulders slumped toward the centre of the vehicle. [ 6 ] The engine was running, the exterior lights were off and the driver’s window was open.

The officer was uncertain about whether the vehicle had a standard or automatic transmission, but after viewing the photographs of the scene at trial, concluded with certainty that it was an automatic. He did not recall or make a note whether the emergency brake had been applied. [ 7 ] Constable Raymond woke Mr. Friesen by tapping his shoulder. Mr. Friesen opened his eyes slowly, one eye at a time and

pulled himself up. When asked his name, Mr. Friesen exhibited slurred speech. Mr. Friesen provided his first name and referred to his passenger as “Dim”; his passenger was in fact Conrad Holowach, Mr. Friesen’s cousin. The officer interpreted Mr. Friesen’s response as confusion. The officer observed beer bottles inside and outside of the vehicle. When the officer asked for identification, Mr. Friesen handed to him an empty cigarette package, which had been on the driver’s side dash. The officer obtained the accused’s driver’s licence later, in the patrol car. [ 8 ] At 10:46 p.m. the officer advised Mr.

Friesen he was under arrest for having the care or control of a motor vehicle while impaired. The officer assisted Mr. Friesen from the vehicle by holding his left arm, handcuffed him and placed him in the back of the patrol car. Constable Raymond assisted Constable Strueby in detaining Mr. Holowach, who was attempting to leave the scene. [ 9 ] At 11:06 p.m. Constable Raymond read to the accused his Charter rights and the standard police warning and at 11:07 p.m. he read the formal breath demand. Mr. Friesen indicated he understood and would provide samples of his breath. He also wished to contact his lawyer, Mr.

Bodnar. [ 10 ] Constable Raymond testified he made the breath demand based upon his observations and because he believed Mr. Friesen had alcohol in his body and was in the care or control of his vehicle while impaired. [ 11 ] At 11:12 p.m. the officers took photographs of the scene and secured the vehicle, which was left parked in the field. Constable Raymond tendered as evidence twelve photographs taken at the scene, illustrating the truck, empty beer bottles on the ground and beer cases and bottles inside the truck. [ 12 ] At 11:18 p.m.

Constable Raymond and the accused departed for Delisle, arriving at the detachment at 11:43 p.m. In Delisle, Constable Raymond assisted Constable Strueby with Mr. Holowach, who was uncooperative and spitting at Constable Strueby, although the officer acknowledged Mr. Holowach was securely seated in the back of the patrol car. Constable Wirch transported Mr. Holowach to Saskatoon where he could be detained. [ 13 ] Once inside the detachment, Mr. Friesen was placed in an interview room with a phone and phone book. At 12:05 a.m. Constable Raymond attempted unsuccessfully to reach Mr.

Bodnar’s place of business, so he left a message for Mr. Bodnar to call the officer’s cell phone. At 12:35 a.m. the officer called Mr. Bodnar’s residence and again left a message. Mr. Friesen was also given an opportunity to call Mr. Bodnar or another lawyer. He made approximately eight calls without reaching counsel. Although he had been informed about Legal Aid, Mr. Friesen did not wish to speak with duty counsel. At 1:03 a.m. the waiver of his right to counsel was read to him, he indicated he understood and stated he did not wish to speak with any lawyer other than Mr. Bodnar.

Yet at 1:10 a.m. he attempted to reach Mr. Shapiro, without success. [ 14 ] Constable Raymond was becoming concerned about obtaining breath samples given that it had been more than two hours since he first encountered Mr. Friesen. At 1:11 a.m. Mr. Friesen was brought to the breathalyzer instrument. At that time Mr. Friesen stated he would not provide samples of his breath without first speaking with his lawyer. He was informed of the consequences of failing or refusing to provide a sample. [ 15 ] At 1:13 a.m. the consequences were again explained to him and he replied he was refusing to provide a sample.

He was charged and taken to his mother’s residence in the trailer court on Cecil Street in Asquith, near the field where his truck had been parked. R.C.M.P. Constable Jean Strueby [ 16 ] Constable Strueby is a qualified breathalyzer technician. She attended at the scene with Constable Raymond on the evening in question and then returned to the Delisle detachment to administer the breath test. [ 17 ] Constable Strueby confirmed Constable Raymond’s testimony that they found Mr. Friesen’s truck parked in a pasture, with

long grass, approximately 100 metres from the road. She approached the vehicle on the passenger side and inside they found two males passed out. The truck engine was running and the keys were in the ignition. She observed many empty beer bottles by the passenger side of the vehicle. [ 18 ] Constable Strueby woke the passenger, Mr. Holowach by shaking and yelling at him. She observed empty beer bottles inside the truck and the strong odour of alcohol. According to Constable Strueby, it was Mr. Holowach who turned off the engine, removed the keys from the ignition and handed them to her.

She did not recall whether the vehicle had a standard or automatic transmission. [ 19 ] She described Mr. Holowach as angry and uncooperative, confused and with poor balance. He was placed under arrest, because, according to Constable Strueby, he was drunk in a public place and had open liquor in a vehicle. With the assistance of Constable Raymond, she placed Mr. Holowach in her vehicle and transported him to Delisle. At the detachment, Mr. Holowach became very difficult and attempted to spit on Constable Strueby. It was determined that Mr.

Holowach would be detained, but he could not be held in Delisle as there were no cells at that detachment. She and Constable Raymond waited until Constable Wirch arrived to transport Mr. Holowach to Saskatoon. Mr. Holowach was turned over to Constable Wirch at 11:56 p.m. [ 20 ] Constable Strueby prepared to administer the breath test and was informed by Mr. Friesen that he wished to speak with Mr. Bodnar. She explained to Mr. Friesen that because it was the Thanksgiving weekend he might have difficulty reaching private counsel, but that if he contacted Legal Aid they would answer.

She too had concerns about the time it was taking for Mr. Friesen to contact counsel and how that might affect the test. As she stated “he would be sobering up if we waited too long”. She was conscious of the need to take the test within two hours from the breath demand. She thought of Mr. Friesen as stubborn because he wished to speak with only one lawyer, but he was not difficult to deal with. [ 21 ] The Intoxilyzer instrument “timed out” because the sample had not been taken within the necessary time. She placed Mr.

Friesen in the phone room again to give him another opportunity to contact counsel, but he did not wish to speak with Legal Aid or anyone other than Mr. Bodnar. [ 22 ] She prepared the instrument again and explained what he needed to do. She believed she gave clear instructions. According to Constable Strueby Mr. Friesen outright refused. At no time did he offer to provide a breath sample. She explained to him the consequences of his refusal. Chris Friesen [ 23 ] Mr. Friesen is 42 years of age and resides in Asquith with his mother at 107 Cecil Street.

He operates a landscaping business and is a professional truck driver with a Class 1A licence. He drives 30 wheel tractor-trailer units long distance and hauls dangerous goods. As a professional driver, he has travelled approximately one-half million miles. Mr. Friesen testified he understands that alcohol alters one’s judgment and he is disciplined about not driving with alcohol in his system. Because of an impaired driving conviction in 1994, he testified he never drinks and drives.

As he put it, he has “zero tolerance” and will not have even one drink if he plans to drive. [ 24 ] On October 7, 2011, following a day of laying sod, Mr. Friesen purchased two cases of beer for himself and his cousin, Conrad Holowach. Between 6:30 p.m. and 6:45 p.m. he drove to the field to drink the beer, so they would not bother anyone, including his mother who was ill. He parked in the field approximately 200 feet from his residence on Cecil Street. Mr. Friesen testified the field belongs to his landlord Terry McPhail, and that he had permission from Mr.

McPhail to use the field for this purpose, so long as they did not make noise. Mr. Friesen tendered eight photos he took of the vehicle after the incident, but before it was moved. The photos show the truck’s location in the field and in relation to his home. [ 25 ] He parked where he did so he could walk home to sleep after they were finished drinking. His cousin also planned to spend the night at Mr. Friesen’s residence. [ 26 ] Mr. Friesen’s vehicle has a standard transmission. Once stopped, but before beginning to drink, he placed the vehicle in neutral, applied the emergency brake and turned off the ignition.

He placed the keys on the dash.

[ 27 ] Mr. Friesen testified he consumed between six and eight beer over a two to three hour period, consuming his last drink approximately one hour before the police arrived. At one point, Mr. Friesen’s mother called him to pick up tobacco, but he declined to do so telling her he was in no condition to drive. He continued drinking and believes he eventually fell asleep at approximately 10:00 p.m. Mr. Friesen acknowledged in his testimony that he was impaired when the police arrived and that he absolutely would not have operated the vehicle at that time. [ 28 ] Mr.

Friesen initially testified that at no time did he start the truck’s engine. It was Mr. Friesen’s belief that his cousin turned on the ignition, when they entered the truck to nap. Later in his testimony, Mr. Friesen acknowledged his letter to the Highway Traffic Board where he stated “so I would start the truck every hour or so just to stay warm and because we were listening to music” and admitted that to be true. [ 29 ] Mr. Friesen first became aware of the police presence when Constable Raymond woke him. Constable Raymond grabbed him by the arm, handcuffed and took him from the vehicle.

He has no recollection of giving Constable Raymond his cigarette package instead of his identification. [ 30 ] At the detachment, he wanted to speak with Mr. Bodnar, but did try to reach Mr. Shapiro and possibly others and understood he could call duty counsel. He testified he did not intend to provide a breath sample unless and until he spoke with Mr. Bodnar, even though he had not spoken with him since 1994. He also acknowledged he was physically able to provide the sample. He admitted he was intoxicated at the time but was not sure why he did not want to provide a sample.

Analysis Has the Crown established beyond a reasonable doubt the offence of refusal? [ 31 ] Section 254(3) of the Criminal Code provides in part: 254(3) If a peace officer has reasonable grounds to believe that a person is committing...an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable , require a person (

a) to provide, as soon as practicable (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood...(emphasis added) [ 32 ] The offence of refusal is found in s. 254(5) of the Criminal Code : 254(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section. [ 33 ] The Crown must prove beyond a reasonable doubt that (1) a proper demand was made; (2) the accused failed or refused to provide a sample of breath; and (3) the accused intended to produce that failure. The accused may offer a reasonable excuse for failing or

refusing to provide a breath sample (R. v. Lewko, 2002 SKCA 121 , [2002] S.J. No. 622 (Sask. C.A.)). [34] For the demand to have been proper Constable Raymond must have met the requirements in s. 254(3) of the Criminal Code. No issue was taken with the form of Constable Raymond’s demand. He read from his card, demanding Mr. Friesen provide samples ofhis breath to be analyzed on an approved instrument and that he accompany the officer for that purpose. The question then is whetherthe officer had reasonable grounds to believe Mr.

Friesen had committed an offence under s. 253 and whether the demand was made assoon as practicable. Reasonable grounds for making a breath demand [35] Section 254(3) of the Criminal Code requires that a police officer have reasonable grounds to believe a person is or within thepreceding three hours has committed an offence under s. 253 of the Criminal Code as a result of the consumption of alcohol, in order tomake a demand for a breath sample. [36] Reasonable grounds include both a subjective and objective component.

The police officer must hold an honest belief that theindividual committed an offence and there must be a reasonable basis for that belief (R. v. Bernshaw (1995), (SCC), 95C.C.C. (3d) 193 (S.C.C.); R. v. Shepherd, 2009 SCC 35 , [2009] S.C.J. No. 35). The test at this stage is not whether theaccused actually committed the offence, but rather whether the officer’s conclusion was reasonable in the circumstances (R. v. Bush,2010 ONCA 554, 101 O.R. (3d) 641 (Ont. C.A.) para. 66). [37] The Court must consider the totality of the circumstances available to the officer at the time of the demand.

There is no list ofindicators which must be present to form the basis for reasonable grounds. As Wilkinson J. stated in R. v. Kopperud, 2011 SKQB 192, [2011] S.J. No. 303 (Sask. Q.B.): [56] ... Each case has its own particular inflexions and accents, with some features more pronounced than others... [57] ...the absence of some indicia commonly found in impaired drivers does not necessarily undermine a finding of reasonable andprobable grounds based on the observed indicia and available information viewed in totality. [38] Constable Raymond’s observations at the time of the demand included the following:

(1) The accused and his passenger appeared to be asleep or passed out in the vehicle;

(2) Neither was aware of the patrol cars’ arrival, even though the “take down” lights were activated;

(3) The accused occupied the driver’s seat of a motor vehicle;

(4) Many empty beer bottles were on the ground close to the driver’s and passenger’s doors of the vehicle and beer bottles could beobserved in the vehicle;

(5) The officer detected an odour of alcohol;

(6) The accused awakened slowly, opening one eye first then the other;

(7) The accused’s speech was slurred;

(8) The accused seemed confused when asked the name of his passenger;

(9) When asked for his driver’s licence he handed the officer an empty cigarette package which had been on the dash. [39] Constable Raymond testified that based upon his observations, he formed the belief Mr. Friesen had alcohol in his body, thathe was impaired and that he had the care or control of his vehicle while impaired. Accordingly, he arrested Mr. Friesen for having thecare or control of his motor vehicle while his ability to operate a motor vehicle was impaired by alcohol and made the breath demand. Iaccept the officer held an honest belief that Mr.

Friesen was committing an offence related to the consumption of alcohol. [40] Was his honest belief objectively reasonable? The objective component is satisfied when a reasonable person placed in theposition of the officer would be able to conclude there were reasonable grounds (Bush, para. 38). [41] Here, Constable Raymond’s observations at the time of the demand form a constellation of objective criteria. Mr. Friesenwas found asleep or passed out behind the wheel of his vehicle with the engine running.

The accused’s speech was slurred, he appearedconfused about the identity of his passenger and mistook an empty cigarette package for his driver’s licence. In addition, the numerousempty beer bottles were evidence of a considerable amount of alcohol having been recently consumed. [42] The Defence argued Mr. Friesen was not passed out, but rather asleep, after a hard day’s work. And, momentary confusionupon being awakened is not uncommon for sober people. The Court need not speculate about other possible explanations.

Rather, thequestion for the Court is whether the honestly held belief of the officer is objectively reasonable (R. v. Breland, [2011] S.J. No. 405(Sask. P.C.) para. 26). [43] On the totality of the information available, a reasonable person in Constable Raymond’s position would have been able toconclude, based upon the objective indicators, that Mr. Friesen was impaired by alcohol and that there were reasonable grounds for thedemand. I find Constable Raymond had reasonable grounds for making the breath demand. Was the breath demand made as soon as practicable? [44] Constable Raymond arrested Mr.

Friesen at 10:46 p.m. for having the care or control of a motor vehicle while impaired andthe breath demand was made at 11:07 p.m. The Defence argues that the demand was not made as soon as practicable, as required by s.253(4) of the Code. [45] The Crown bears the onus of proving that the demand was made as soon as practicable. The phrase “as soon as practicable”has been interpreted to mean “within a reasonably prompt time” and not “as soon as possible” (R. v. Squires, (ONCA), [2002] O.J. 2314 (C.A.) para. 31). [46] Following Mr.

Friesen’s arrest, Constable Raymond secured the accused and then assisted Constable Strueby with Mr.Holowach, who was uncooperative, angry and attempting to flee the scene. At 11:04 p.m. Mr. Friesen was taken to the patrol car and at11:06 p.m. the officer read to Mr. Friesen his Charter rights and police warning. Constable Raymond read the breath demand to Mr.Friesen at 11:07 p.m. [47] In assessing an officer’s actions which contributed to the delay, the Court may consider whether the actions were reasonable,necessary and professional (Squires, supra; R. v. Memisevic, 2010 BCSC 203; R. v.

Whitesell, (BC SC), 1998CarswellBC 249 (B.C.S.C.)).

[48] In R. v. Jaspal, 2007 ONCJ 429 , [2007] O.J. 3721 (Ont. C.J.), where a delay of 22 minutes in making the demandoccurred because the arresting officer assisted his partner in dealing with a difficult passenger, the demand was found to have been madeas soon as practicable. The Court accepted the officer’s explanation that he assisted a junior officer in securing the passenger, wheredrugs and other paraphernalia were found in the vehicle and the passenger attempted to bribe the officers.

In Squires, a delay of 59minutes in making the formal demand because of serious medical issues related to the accused was found to be as soon as practicable. [49] In this case, some of the 21 minute delay is attributed to securing Mr. Friesen, and reading to him his rights and warnings. Constable Raymond’s dealings with Mr. Friesen were interrupted temporarily to assist Constable Strueby with Mr. Holowach. At thispoint, neither the vehicle nor the passenger had been searched. It would have been incumbent upon Constable Raymond to ensure thesafety of his partner and assist in the arrest of Mr. Holowach.

In these circumstances, Constable Raymond’s conduct in assistingConstable Strueby to secure Mr. Holowach was reasonable and necessary. I find the demand was made within a reasonably prompt timeand as soon as practicable. Was the accused required to provide a sample of his breath as soon as practicable? [50] Sections 254(3) and 258(1)(c)(ii) of the Criminal Code require the taking of a breath sample as soon as practicable. [51] The Defence argued because of the time that had elapsed and the intervening events between the breath demand at 11:07 p.m.and 1:11 a.m. when Mr.

Friesen was brought to the Intoxilyzer instrument, the breath demand was no longer valid. This argumentsuggests that the breath demand, once made, may lapse or expire with the passage of time, if the accused is not presented to theIntoxilyzer instrument as soon as practicable. I do not agree with this proposition.

Neither has counsel provided any authority to supportthis argument. [52] The significance of requiring an accused to provide a breath sample as soon as practicable is that the Crown may rely on thepresumption that the certificate of analyses is proof of the accused’s blood-alcohol level at the time of the offence provided otherconditions are fulfilled. [53] As Brewer J. explained in R. v. Katwaru, 2006 CarswellOnt 8407, at para. 9: Section 258(1)(c)(ii) of the Criminal Code, is part of the scheme to ease proof of the concentration of alcohol in the accused’s blood forproving the “over 80” offence in

Section 253(b). Section 258(1)(c)(ii) provides that where the breath samples were taken “as soon aspracticable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than twohours after that time, with an interval of at least fifteen minutes between the times when the samples were taken”, then, provided certainother conditions are fulfilled, the prosecution may rely on the presumption of identity.

This presumption simply deems the results of thebreath test to be proof of the accused’s blood alcohol level at the time of the offence in the absence of evidence to the contrary. In orderto satisfy the “as soon as practicable” requirement, the Crown must demonstrate that the police acted reasonably, in the sense that thetests were taken within a reasonably prompt time under the circumstances. The entire chain of events must be considered, bearing inmind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. (See also R. v.

McCoy, (SK KB), [1990] S.J. No. 657 (Sask. Q.B.)). [54] However, reliance on the presumption does not arise in this case. Mr. Friesen refused to provide samples of his breath andaccordingly there is no certificate of analyses. [55] Furthermore, there is no indication that the passage of time between the demand and when he was brought to the Intoxilyzerinstrument prejudiced Mr. Friesen. For example, he has not brought an application pursuant to The Charter of Rights and Freedomsalleging an arbitrary detention during the period of time in question.

[56] Neither has Mr. Friesen argued that the officers’ failure to present him to the instrument as soon as practicable availed him ofa reasonable excuse for refusing to provide a sample of his breath. Generally, “reasonable excuse” within the meaning of s. 254(5) refersto matters which are outside of the requirements that must be met in s. 254(3) of the Code (R. v. Taraschuk, (SCC),[1977] 1 S.C.R. 385; R v. Brownridge, (SCC), [1972] S.C.R. 926). [57] In any event, having reviewed the evidence I find that Mr.

Friesen was taken to the Intoxilyzer instrument as soon aspracticable after the officer formed his opinion. Intervening events have been satisfactorily explained and the delay was reasonable inthe circumstances. Constable Raymond assisted Constable Strueby with Mr. Holowach at the scene and at the detachment, because hewas difficult to deal with. Approximately ten minutes were spent securing the accused’s truck, emptying beer bottles and takingphotographs at the scene before departing for Delisle. It took 25 minutes to drive to the Delisle detachment.

At the detachment,Constable Strueby, who was also the breath technician responsible for preparing the instrument, was involved in the transfer of Mr.Holowach to Constable Wirch. [58] The time between 12:05 a.m. and 1:13 a.m. was spent attempting to reach Mr. Bodnar or other counsel of Mr. Friesen’schoice. The officers were diligent in assisting Mr. Friesen to reach legal counsel. Diligent efforts to assist an accused in exercising hisor her right to legal counsel will have an impact on the timing of the breath test. Mr. Friesen admitted he was being stubborn in wantingto speak only with Mr.

Bodnar, given the time of day, the fact that it was a long weekend, that Mr. Bodnar had not replied to themessages left and duty counsel was available. [59] According to the Saskatchewan Court of Appeal in R. v. Carter (1981), (SK CA), 59 C.C.C. (2d) 450(Sask. C.A.), the “as soon as practicable” requirement must be applied within reason.

The Court held there is no need to explain everyincident which occurred from the time of the offence to the time the samples were taken unless the trial judge is not satisfied on theevidence that the samples were taken as soon as practicable. [60] In all of the circumstances, I am satisfied that Mr. Friesen was brought to the Intoxilyzer instrument as soon as practicable. Further, I am satisfied that the demand was made as soon as practicable and remained valid throughout. [61] Ultimately, when Mr. Friesen was presented to the breath machine, he unequivocally refused to provide a sample of hisbreath.

He testified that he had no intention of doing so without legal advice and he understood the consequences of his refusal. [62] The Crown has established the elements of the offence, as required by Lewko. It is open for the accused to offer a reasonableexcuse for refusing. Mr. Friesen testified that he was not willing to provide samples of his breath without the benefit of legal advice. Hewas afforded ample opportunity in these circumstances to reach his counsel of choice and failing that, to speak with duty counsel, whichhe declined to do. Mr.

Friesen also had an obligation to be reasonably diligent in accessing legal advice (R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429). Mr. Friesen has not provided a reasonable excuse in these circumstances for failing to provide breathsamples. Has the Crown established the offence of impaired care or control beyond a reasonable doubt? [63] The Defence did not take issue with the fact that the accused’s ability to drive was impaired by alcohol and the accusedacknowledged that fact. The question remains whether the accused had the care or control of his vehicle. Has Mr.

Friesen rebutted the presumption of care or control? [64] Section 258(1)(

a) of the Criminal Code provides in part: ...where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle...the

accused 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... [65] The presumption of care or control can be rebutted by evidence which, if accepted, establishes on a balance of probabilitiesthat the accused did not occupy the driver’s seat for the purpose of setting the vehicle in motion (R. v. Ford, (SCC),[1982] 1 S.C.R. 231 (S.C.C.); R. v. Shuparski, 2003 SKCA 22). The undisputed evidence is that Mr.

Friesen was found by the officers inthe driver’s seat of his truck. Therefore, the presumption of care or control applies. [66] Mr. Friesen testified he intended to use his vehicle as a place to drink and he parked his truck in the field, with his landlord’spermission, for that purpose. Afterward, he intended to walk home, which was approximately 200 feet from where he had parked.

Hisreason for drinking in his vehicle in the field was that his mother, with whom he lives in a mobile home, was ill and he did not wish todisturb her. [67] He parked, placed the vehicle, which had a standard transmission, in neutral gear, engaged the emergency brake and placedthe keys on the dash. The vehicle’s lights were turned off. They began drinking outside the vehicle. This is supported by the officers’testimony that there were numerous beer bottles on the ground. At some point, Mr. Friesen and his cousin re-entered the truck. Initially,Mr.

Friesen testified he had not started the engine, but later admitted that from time to time both he and his cousin had done so to listen tothe radio and to keep warm. He insisted that he did not intend to set the vehicle in motion, once he began to drink. [68] On the totality of the evidence, I accept Mr. Friesen’s testimony and his explanation. His practice was to refrain from drivingafter consuming even one drink. He had purchased a case of beer for himself, clearly with the intention of consuming a good deal ofalcohol.

He parked his truck in a field in close proximity to his residence, as verified by the photographic evidence and testimony of theofficers. He and his cousin consumed much of the alcohol outside of the vehicle. They entered the truck to stay warm and listen tomusic. I am satisfied on a balance of probabilities that Mr. Friesen did not take his position in the driver’s seat of his vehicle for thepurpose of setting it in motion. Did Mr. Friesen have actual care or control of his vehicle? [69] Where the presumption has been rebutted, the Crown may prove actual care or control. [70] According to R. v.

Toews, (SCC), [1985] 2 S.C.R. 119, the Supreme Court of Canada stated at para. 7: ...the mens rea for having the care or control of a motor vehicle is the intent to assume care or control after the voluntary consumption ofalcohol or drug.

The actus reus is the act of assumption of care or control when the voluntary consumption of alcohol or drug hasimpaired the ability to drive. [71] The Court went to state at para. 10: ...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 the risk of putting the vehicle in motion so that it could become dangerous.

Each case will depend on its own facts and the circumstances in which acts of care or control may be found will vary widely. [72] The risk is that the accused might awaken too intoxicated to adhere to his previous determination not to drive or that he mightinadvertently set the vehicle in motion. The act of starting the engine of a motor vehicle will not necessarily amount to care or control inall cases (R. v. Buckingham, 2007 SKCA 32). [73] In the recent decision of R. v.

Anderson, 2012 SKCA 37, the Saskatchewan Court of Appeal found that the risk of dangerposed by the accused was real and evident where he was asleep in the driver’s seat of a running vehicle parked in a public parking area. The Court reasoned that because the accused could have set the vehicle in motion inadvertently by simply depressing the brake and

engaging the gear shift, and because he had intended to drive home after he slept off his intoxication, and had awakened confused and disorderly, there existed a real and evident risk of danger to the public. It is this element of danger that is central to care or control cases ( Shuparski , para. 47 ). [ 74 ] Here, the Court has accepted Mr. Friesen’s explanation that he did not intend to drive his truck. However, the question is whether he would change his mind about driving after having consumed alcohol. There is no evidence Mr.

Friesen drove after he began drinking; rather, the vehicle was being used as shelter while he consumed alcohol. He deliberately parked his vehicle in close proximity to his home, so that he could walk to his final destination that evening. His vehicle was parked in a private field on the perimeter of town. I find that the risk was negligible that Mr. Friesen would awaken and change his mind about driving, thereby posing a danger. [ 75 ] I also find the risk to have been negligible that Mr. Friesen could have inadvertently set his truck in motion. He was parked in a field or pasture with tall grass.

He was asleep in the driver’s seat, slouched over facing his passenger. Although he was confused when awakened, there is no evidence of the disorderly conduct displayed by the accused in Anderson . No evidence was tendered with respect to the number of motions it would take for Mr. Friesen to set the truck in motion. However, Mr. Friesen testified that the truck had a standard transmission, that he had put the vehicle in neutral gear and had engaged the emergency brake.

Constable Raymond testified the truck had an automatic transmission, but he was initially uncertain and reached his conclusion only after reviewing the photographs at trial. He made no notes regarding the transmission or the emergency brake. I accept Mr. Friesen’s testimony with respect to these matters. [ 76 ] In R. v. Gervan , 2009 SKQB 159 , the accused had started the engine of a vehicle with a standard transmission, which was in neutral gear and where the emergency brake had been applied. The Court stated: [24] Mr. Gervan had already started the engine.

For him to have set the vehicle in motion, he would have had to release the emergency brake, depress the clutch, move the stick shift into gear (probably first or reverse), and apply pressure to the accelerator while partially releasing pressure on the clutch so that the amount of pressure on the accelerator accorded with the amount of pressure on the clutch, to avoid the vehicle stalling. [25] From a practical perspective, the risk of Mr. Gervan performing all of these functions – inadvertently, and having started from a reclining position – is negligible.

The possibility exists, but it is so improbable as to approach impossibility. [26] Alternatively, after releasing the emergency brake, depressing the clutch, moving the stick shift into a gear, and applying pressure to the accelerator, Mr. Gervan could have released all pressure on the clutch probably resulting in the vehicle lurching forward before stalling. [27] Again, from a practical perspective the risk of Mr. Gervan performing all of these functions – inadvertently, and having started from a reclining position – is negligible.

Again, the possibility exists, but it is so improbable as to approach impossibility. [28] As a matter of law, the facts do not reveal more than a negligible risk that Mr. Gervan would have set the vehicle in motion inadvertently. Mr. Gervan did not have de facto care or control of the vehicle in this sense either. [ 77 ] Unlike in Gervan , Mr. Friesen was not in a reclined position. However, he was sleeping slouched over facing inward toward his passenger. His position does not change the improbability of his inadvertently setting into motion the truck.

He would have been required to take all of the same steps as Mr. Gervan to set his truck in motion. Although the engine was running, I find the possibility to have been negligible that Mr. Friesen would have been able to inadvertently set his truck in motion such that it would pose a danger. I conclude Mr. Friesen did not have actual care or control of his vehicle. Conclusion [ 78 ] In conclusion, I have found Constable Raymond had reasonable grounds to make the breath demand, the demand was made as

soon as practicable and remained valid throughout. Mr. Friesen unequivocally refused to provide a sample of his breath and offered no reasonable excuse. The Crown has proven beyond a reasonable doubt the elements of the offence and I therefore find Mr. Friesen guilty of refusing or failing to provide a sample of his breath contrary to s. 254(5) of the Criminal Code . [ 79 ] Further, I have found that although Mr.

Friesen occupied the driver’s seat of his vehicle, he has rebutted the presumption that he did so for the purpose of setting the vehicle in motion; and the Crown has failed to prove beyond a reasonable doubt that Mr. Friesen had actual care or control of his vehicle. I find Mr. Friesen not guilty of having the care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol contrary to s. 253(1) (

a) of the Criminal Code . “D.C. Scott, J” D.C. Scott, J