) ) HER MAJESTY THE QUEEN ) A. Semchuk ) for the Crown - v. - ), 2012 MBPC 50

2012 MBPC 50 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) A. Semchuk ) for the Crown - and - ) ) ANDREA DAWN JONASSON ) Clayton Swanton ) for the Accused Accused. ) ) ) ) Judgment Delivered: ) May 5, 2012 SLOUGH, P.J. INTRODUCTION [ 1 ] Stranded in the middle of the night the accused and an acquaintance seek refuge in a motor vehicle. The police find the accused seated in the driver’s seat of that vehicle. The two issues to be determined in this case are: 1. Has the accused rebutted the presumption of care or control? 2.

If she has rebutted that presumption has the Crown proved that she was in actual care or control of the vehicle? FACTS [ 2 ] On April 23, 2010 the accused went to a banquet at the recreation center in Dauphin, Manitoba. During the evening she met a young dentist: Gurinder Kler (hereafter Kler). The two of them left the banquet with a group of other people and went to the beverage room of the Boulevard Hotel. Throughout the evening both the accused and Kler were consuming alcohol and by the end of the evening were in no condition to drive.

At approximately 2 a.m. they left the hotel with the intention of finding a taxi to take them to their respective homes. They got into one taxi but determined it was already occupied so they had that taxi drop them off in the parking lot of the recreation center where their vehicles were located. At this point both the accused and Kler got into the backseat of Kler’s car to get warm on what is described as a cool night. A taxi was called. Kler used either the vehicle’s command start or the key to start the vehicle.

Kler sought to “make out” with the accused but she was not interested and shortly thereafter left the backseat of the automobile. She went to her own vehicle got a CD and returned to the car getting into the front driver’s seat. At this point she operated the CD player and the two of them sat in the vehicle for a matter of 20 to 30 minutes with the motor running listening to music and conversing while waiting for the taxi to arrive. The vehicle attracted the attention of a security guard working at the recreation center.

The security guard approached the vehicle and spoke to the accused in order to determine whether or not she was okay. Regrettably, the accused responded with a number of abusive comments directed toward the security guard. His response was to phone the police. The police responded to the call arriving shortly before a taxi pulled into the parking lot. The police found the accused seated in the driver’s seat the keys no longer in the ignition; the keys having been removed by either Kler or the accused to be placed in Kler’s possession.

Shortly thereafter the accused was arrested for care or control of a vehicle while impaired. The evidence of impairment by alcohol is compelling and the breath certificate showing readings well above the legal limit is in evidence.

[3] A number of aspects of the car are worth noting. First of all, the driver’s seat was positioned for Kler to drive. Kler is 6”2’and indicated that when he drove he had the seat all the way back and the back portion of the seat tilted back in order to accommodatehis frame. Kler has subsequently married and indicates when his 5”9’ spouse drives the vehicle she needs to move the seat considerablyforward and adjust the back of the seat so that she is able to use the pedals of the vehicle. The evidence before me is that the accused isapproximately 5”6’ approximately 8 inches shorter than Kler.

In addition, the controls for the seat are not located on the left-hand sideof the seat as they are in many vehicles but are located on the right-hand side adjacent to the center consult. In order to put the vehicleinto motion it would have been necessary for the accused to perform the following acts: 1. Locate the controls for the seat and adjust the base and back of the seat; 2. Depress the brake; 3. Push the button on the shifter; 4.

Use the shifter to place the vehicle into drive or reverse. [4] It was Kler’s evidence that he was not prepared to allow the accused to drive his vehicle and that he would have attempted tostop her if she made any move to operate the vehicle other than to use CD player. The evidence demonstrates that the accused’s only useof the vehicle was to use the CD player and at the request of Kler she may have removed the keys and handed them to him.

In an ironictwist, it was Kler’s evidence that when the security guard approached the vehicle his stated intention was to get them to move on, inother words to commit the criminal offense that is the subject of these charges. The accused’s rude refusal to comply with this request ledto the police being called and her subsequent arrest.

APPLICABLE LEGAL PRINCIPLES [5] Section 258 (1) a of the Criminal Code provides that where it is proved that the accused occupies the seat ordinarily occupiedby the person who operates a motor vehicle, the accused will be deemed to have had care or control of the vehicle unless the accusedestablishes that he or she did not occupy the vehicle for the purpose of setting the vehicle in motion. It is clear that the accused occupiedthe driver’s seat when the police attended.

Therefore, she has the evidentiary onus to establish on a balance of probabilities that she didnot occupy that seat for the purpose of setting the vehicle in motion. [6] As previously referenced, initially the accused did not sit in the driver seat of the vehicle. It was only after she went to collectthe CD from her vehicle that she chose to sit in the driver seat of the vehicle. I infer that she did so in order to operate the CD player andperhaps to avoid any further awkwardness with respect to Kler’s advances. I use the term infer because the accused did not testify.

Rather, she relied on evidence from her father and from Kler in order to establish her intent on this evening. While it is not a requirementthat she testify I did find it unusual that she chose not to do so. Nevertheless, I found Kler’s evidence to be compelling and his evidencewas not challenged on cross-examination. It is worth noting the only significant time Kler spent time with the accused was on thatevening. They have no ongoing relationship and I found his evidence to be honest and forthright.

Accordingly, I feel comfortable indrawing inferences as to what the accused's intention was on the evening in question on the basis of Kler’s evidence. I should note thatthe father’s evidence while credible really had very little bearing on the question at hand as he was not present and his evidence primarilyrelated to the accused’s past conduct when she had been drinking. The uncontradicted evidence is that the accused and Kler jointlyformed an intention not to drive after they left the beverage room of the Boulevard hotel.

They intended to take a cab home presumablyto collect their respective vehicles the following day. When the first taxi did not work out they went to Kler’s vehicle and used it to keepwarm. The fact the accused originally sat in the backseat confirms that it was not her intention to drive the vehicle. As already indicatedcertain events intervened and the accused ending up in the front driver’s seat. I am satisfied that she did not occupy the driver seat inorder to operate the vehicle but rather occupied it to operate the CD player.

Accordingly, I find that she has met the onus upon her andhas rebutted the presumption. [7] Having made this finding the question now to be determined is whether or not the Crown has proved beyond a reasonabledoubt that the accused was in actual care or control of the vehicle. The applicable case law is set out in R. v. Yablonsky 2006 MBQB159 , 2006 M.B. Q.B 159: “7 The elements of the offence are set out succinctly by our Court of Appeal in R. v. Burbella, 2002 MBCA 106, [2002] M.J. No.355 (Man. C.A.). The law is clear.

A person may still be convicted of having care or control of a motor vehicle even when they haveproven that they did not intend to drive. Proof that they did not intend to drive merely rebuts the evidentiary presumption under s.258(1)(

a) of the Criminal Code. 8 If the presumption is rebutted, a trial judge still has a duty to review all of the evidence. The trial judge must decide whetherthe Crown has proven that the accused person had actual care or control of the motor vehicle. The Crown must also prove tha theactions of the accused person generated a real possibility that the vehicle would be put in motion unintentially so as to create a danger tothe public.

Thus, there are three essential elements on this path to conviction: proof of actual care or control, the creation of a dangeroussituation, and proven impairment or excessive blood-alcohol concentration. Each element must be proven beyond a reasonable doubtbefore a conviction can be entered.

9 This analysis is supported by the decision of the Supreme Court of Canada in R. v. Ford, (SCC), [1982] 1S.C.R. 231, [1982] S.C.J. No. 4 (S.C.C.).

In that decision, Justice Ritchie said, for the majority, at p. 249: ...Care or control may be exercised without such intent where an accused performs some act or series of act involving the use of the car,its fittings or equipment, such as occurred in this case, whereby the vehicle may unintentionally be set in motion creating the danger thesection is designed to prevent. 10 It is also supported by Burbella, supra, where Chief Justice Scott said, at para. 8: ...The “evil” that sec. 253 is intended to address is voluntarily becoming intoxicated and placing oneself in a position of having the careand control of a motor vehicle... and concluded at para. 22: ...[D]anger is an essential element of care or control.

Only in the case where the presumption applies and care or control is conclusivelydeemed will the absence of danger not afford a defence. In many instances the circumstances themselves will establish the danger.

However, even where the accused establishes that he did not have the intention to set the vehicle in motion, evidence of acts involvingsome use of the vehicle which could accidentally cause it to become dangerous, whether by setting the vehicle in motion accidentally orcausing some other form of danger, will establish care or control.” [8] The finding by the Manitoba Court of Appeal that danger is an essential element of care or control is significant. Otherjurisdictions, at the appellate level, have found that danger is not an essential element of the offense.

Accordingly, caution must be usedwhen looking at cases from across the country as there is inconsistency in the approach taken by various courts of appeal see R. v.Mallory [2008] N.B.J. 72.

That decision outlines the disparate case law but given the issue is settled in Manitoba the most importantaspect of the Mallory decision is that it deals with the issue at the heart of this case: what is the significance to be attributed to the factthe accused was seated in the driver’s seat with the motor of the vehicle running: “47 It is easier to defend the position that danger should be an essential element of the offence by attacking the validity of thesufficient-interaction test for assessing care or control.

It seems draconian in the age of the Charter to hold that a person may beconvicted of having care or control of a vehicle while impaired, even though the accused had no intention of putting the vehicle inmotion and the facts do not otherwise support a finding of risk to public safety. To hold that neither the intent to drive nor the presenceof danger is an essential element of the offence is to risk the criticism that the offence bears too close a resemblance to an absoluteliability offence.

Admittedly, the mens rea for the offence persists (the intent to assume care or control after the voluntary consumptionof alcohol), but the notion that the accused cannot speak to his or her presence in a vehicle while in a state of inebriation is arguablyinconsistent with fundamental principles of criminal law. Indeed the whole purpose of having the statutory presumption set out in s.258(1)(

a) of the Criminal Code is to protect the public interest without exposing an accused to an absolute liability offence. ChiefJustice Dickson wrote in Whyte at paragraph 47: This history shows that there is a serious problem with the mental element of this offence, because the fact of intoxication itselfraises doubts about the accused’s mental state and ability to form an intention. The presumption was created by Parliament in responseto that history.

On the one hand, it was repugnant to theories of criminal liability that a person could be convicted on an absolute liabilitycrime, with no possibility of a defence based on the mental state of the accused. On the other hand, as the Minister of Justicecommented, it is shocking to hear that an accused could be acquitted of an offence for which consumption of alcohol is a requiredelement, because he was too intoxicated to be guilty. The presumption was added to resolve the problems caused by both of thesealternatives.

Parliament wished to discourage intoxicated people from even placing themselves in a position where they could set avehicle in motion, while at the same time providing a way for a person to avoid liability when there was a reason for entering the vehicleother than to set it in motion. The position adopted is admittedly a compromise. It is an attempt to balance the dangers posed by aperson whose abilities to reason are impaired by alcohol with the desire to avoid absolute liability offences.

It is an attempt byParliament to recognize that alcohol, because of its effects on the reasoning process, may in some cases require a special treatment, whileavoiding absolute liability offences. 50 If I am correct in my assertion that the sufficient-interaction test is not truly a test, but rather a declaration that any onewho is found drunk behind the wheel of their vehicle with the motor running is guilty of the offence, then it is clear that the so-called testis open to a further criticism; it leads to arbitrary results. The following hypothetical bears out this allegation.

The local Legion closesits doors at 1:00 a.m. and the temperature is thirty below. Before leaving, the impaired patron phones home and arranges with a familymember to be picked up within the next twenty minutes. The accused then goes to his car, places himself behind the wheel and startsthe engine to keep warm while waiting to be picked up. In the interim, the police arrive on the scene and approach the accused, who isstill sitting in the front seat. A minute later, the family member drives up and parks beside the two cars.

According to the Crown, theaccused would have to be found guilty because he was observed by the police sitting behind the wheel with the engine running. Ineffect, the Crown would insist that the accused does not have the right to explain the circumstances surrounding his decision to enter thevehicle and start the engine in an impaired state. Now, alter one fact of the hypothetical. Rather than the accused having started thevehicle before the police arrived on the scene, assume that the accused merely placed the keys in the ignition.

From the SupremeCourt’s decision in Toews, we know that a conviction would not automatically follow. The accused would be permitted to advance thefirm-plan defence to the Crown’s change-of-mind argument. On similar facts, the accused in R. v. Friesen, supra, was acquitted of the

offence. In my view, the difference between placing the keys in the ignition and using them to start the vehicle’s motor cannot be the determinative factor. Both the distinction and the legal outcome fall within the classifications of “arbitrary”. There is no juridical reason for allowing the distinction to bring about difference results.” [ 9 ] Counsel provided many cases for my consideration. Many of them deal with a scenario whereby an intoxicated accused is found asleep while seated in the driver’s seat of their vehicle.

In those cases the Court’s difficult task is to assess the danger posed by the accused awakening from their stupor and unintentionally putting the vehicle in motion. This is not such a case. Rather in this case, the accused’s intention was consistent from the start: she wanted to take a taxi home in order to avoid driving while impaired. She was awake while she was in the vehicle. In order to set the vehicle in motion she would have had to have taken a number of steps to get the vehicle in a position where she could drive.

There is no evidence she ever took or attempted to take any of those steps. (While it does not go to the accused’s intention Kler’s evidence was that he would not have permitted her to drive under any circumstances.) On the facts of this case, I have a reasonable doubt that there was a danger that the accused could have unintentionally set the vehicle in motion. In these circumstances I find that the Crown has not proven that the accused was in actual care or control of the vehicle and an acquittal will be entered on both charges. __________________________ Slough, P.J.