R. v. Nikolic, 2011 MBPC 63

CITATION: R. v. Nikolic , 2011 MBPC 63 Date: 20110928 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) L. Cupples, ) for the Crown ) and ) ) ) David Nikolic ) J. Weinstein, Accused ) for the Accused ) ) ) Reasons for Decision delivered: ) September 28, 2011 ) Curtis P.J. [ 1 ] The accused is charged with care/control impaired pursuant to s. 253(1) (

a) of the Criminal Code of Canada . Background [ 2 ] On July 18, 2010 Constables MacDonald and Crane were working in District 6 of the City of Winnipeg when at 10:40 p.m. they received a call with respect to an impaired driving complaint. As Constable MacDonald explained, all they knew at the time was they had a complaint of an erratic manner of driving by a Pontiac Firebird with licence plate number FJH 397 in the area of Corydon Avenue and Edgeland Street. They did a computer check and the registered owner came up as having an address at 2077 Grant Avenue.

Constable MacDonald testified that this was on the way to where they were going so they swung by the home of the registered owner and saw the car in the driveway. It was 10:50 p.m. when they pulled behind the vehicle in the driveway and parked behind it. The accused was in the driver’s seat of the car. At issue is whether he was in impaired care and control of the vehicle at the time. [ 3 ] Section 258(1) (

a) of the Criminal Code provides “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 occupy that seat or position for the purpose of setting the vehicle…in motion….” [ 4 ] The Crown must prove the accused was impaired at the time.

It also must prove the accused was in the “seat or position” normally occupied by the driver. [ 5 ] Constable MacDonald described a scenario where the door to the Pontiac Firebird was slightly ajar and he observed a male in the driver’s seat who appeared to be passed out. He had keys in his right hand and a cell phone in his left hand. Constable MacDonald tried to speak with him and wake him up but described his reaction as waking up for a second and then dozing back off.

He said it took a minute to two minutes to get him awake, first by talking to him and then shaking his shoulder and talking to him in a louder tone. Once he got his attention, the first thing he asked him was if he was okay. The response eventually from the male was that he was “just resting”. The officer asked him his name and the response he got was that his name was “David”. The officer explained they were there in response to a complaint of erratic driving.

Constable MacDonald’s evidence was that “David” wasn’t saying a lot to them at the time but they needed to confirm his identity so they asked for his driver’s licence. He did manage to produce a driver’s licence in the name of

David Nikolic. The officer compared the photo portion on the driver’s licence to “David” and found him to be one and the same. [6] Constable MacDonald made observations at the time with respect to the male. He was sleeping or passed out and he couldsmell alcohol on his breath. Once he started to talk he could see that his eyes were bloodshot, his speech slow and deliberate like he wastrying to really focus on what the answers would be. When asked to go to the police car with the officers to confirm his identity his gaitwas described as being fairly unsteady on his feet.

He described it “when I saw him it was more like he’d take a step here and then, youknow, a step over there...that’s the sign for me of the unsteady walking.” (transcript, page 16). [7] Based on his observations Constable MacDonald formed the opinion Mr. Nikolic’s ability to operate a motor vehicle wasimpaired by alcohol. He read him his Notice of Arrest at 11:00 and another crew was called to attend to the vehicle along with a towtruck. They did their CPIC checks while they were waiting.

They arrived at District 6 at 11:48 p.m. and the accused was eventuallyreleased by the officers who drove him home at 2:25 a.m. [8] During the time he was in their company the officers did not notice any change in the level of impairment. [9] The evidence of both officers was that Mr. Nikolic’s ability to drive was impaired by alcohol. They described the indiciawhich led them to form that opinion. Taken individually some of the signs of impairment described by the officers could have otherexplanations.

In the context of this situation, however, the observations made by the officers are uncontradicted by any other evidence. Iam satisfied in this case Mr. Nikolic’s ability to drive was impaired by alcohol. [10] The Crown’s position is that the accused is deemed to have care or control unless he establishes on the balance of probabilitiesthat he did not occupy the driver’s seat for the purpose of setting that motor vehicle in motion. He must establish that on a balance ofprobabilities. [11] The Crown says there is no other evidence before the Court other than that of the police officers.

They received a call at10:40 p.m. and ten minutes later attended to the address of the registered owner where they found the same described vehicle with thesame plate in the driveway. The accused was in the driver’s seat, passed out with keys in his hand. Their argument is that while theofficers testified that what appeared to be in the accused’s hand were car keys, neither one of them could recall having tested the keysthemselves to make sure that they belonged to that vehicle.

The evidence given was that they turned the vehicle over to another crew andthat there was no problem with the tow truck having been able to remove the vehicle. The Crown’s position is that the case law is clearthat even if you do not have keys the presumption applies. She refers to R. v. Whyte, (SCC), 1988 2 S.C.R. 3 atparagraph 28 where Dickson CJ says: The basic fact which the Crown must prove to invoke the

section is that the accused occupied the seat normally occupied by the driverof the vehicle. [12] Justice Dickson referenced the fact that Parliament enacted s. 258(1)(

a) creating the presumption for a dual purpose. One wasto discourage intoxicated people from putting themselves in a position where they could set a vehicle in motion and the other was toprovide a way to avoid conviction if the individual did not occupy the driver’s seat for the purpose of putting the vehicle in motion. Itwas a compromise intended to balance the need to protect the public from the danger posed by drunk drivers and at the same time avoidcreating an absolute liability offence.

The presumption allows an individual to rebut on a balance of probabilities that they did not occupythe driver’s seat of the motor vehicle with the intention of putting the vehicle into motion. [13] The defence position is that, firstly, the accused has to be shown to be impaired. Obviously it is not an offence to occupy thedriver’s seat with an intention to put the vehicle in motion if one is not impaired. Secondly, the issue is whether or not the presumptionhas been rebutted.

While the accused did not give evidence in this case, his argument is that his response to police when they asked himif he was okay was that “Yeah, I’m just resting.” shows he had no intent to drive. He acknowledges that whether or not the keys he hadin his hand were to the ignition of the vehicle does necessarily rebut the presumption, but suggests it does go toward what the intention ofthe driver was at the time. The argument is that he may have been driving but he had reached home at that point and there was noevidence of any further intention to drive from there. [14] The accused did not testify.

It is trite law to say that the accused does not have to take the stand and explain himself or herselfin a criminal case. However, the presumption in this

section has been found to be saved by s. 1 of the Charter of Rights in the Whytedecision, supra. Chief Justice Scott addressed the issue of the s. 258 presumption in R. v. Burbella, 2002 MBCA 106 , [2002]M.J. No. 355 (M.C.A.), where he commented on the Supreme Court of Canada’s decision in Whyte.

At paragraph 16 he observed: …the significance of the decision in Whyte is that the court made it clear that if the presumption applies and is not rebutted, then theaccused is conclusively deemed to be in care or control of the motor vehicle whether the trial judge has a reasonable doubt that he is incare or control or not….. And in paragraph 22: In my opinion, the Supreme Court in its decisions has been consistent that danger is an essential element of care or control.

Only in thecase where the presumption applies and care or control is conclusively deemed will the absence of danger not afford a defence. [15] The onus is on the accused to rebut the presumption. In this case, the accused points to three things to show he had no intent todrive: (1) the fact that the accused was in his own driveway, (2) there is no specific evidence the keys in his hand were the keys to theignition of his vehicle, and (3) his comment to the officer that he was “just resting”. [16] I am not satisfied that in this case the Mr. Nikolic has rebutted the presumption.

He also had a cell phone in his hand. To try todraw any conclusion of his intention from these points without further admissible information would be to engage in the kind ofspeculation courts routinely guard against. [17] I find the accused David Nikolic was in the driver’s seat of a vehicle registered to himself. His ability to drive was impaired by

alcohol. He has not rebutted the presumption set out in s.258 of the Criminal Code . A conviction is entered. Original signed by Judge K.M. Curtis P.J.