Her Majesty the Queen - v. -, 2011 SKPC 85

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 085 Date: June 17, 2011 Information: 24292040 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lee Charron Appearing: Mr. Barrie Stricker For the Crown Mr. Gary Moore For the Accused JUDGMENT R. GREEN, J I. OVERVIEW [1] Mr. Charron is charged with operating or having the care or control of a vehicle while his ability to operate that vehicle wasimpaired by alcohol contrary to s. 253(1)(

a) of the Criminal Code. Count 2 on this information, driving over the legal limit, wasdismissed by me after a non-suit application by Mr. Moore (see R. v. Charron, 2011 SKPC 13 , 2011 SKPC 013). This wasbecause the first breath test was taken more than two hours after the offence was alleged to have occurred, and as a result thepresumption under s. 258(1)(

c) did not apply.

[2] The evidence relevant to the impaired driving count came from three Crown witnesses, Rachel Cochraine, Cst. KevinGranrude and Cst. Christopher Pshyk, and from the accused Mr. Charron. [3] Mr. Charron, together with his co-workers Rachel Cochraine and Kevin Boswell, were at a bar called Hag’s Hideaway inRocanville this evening. Mr. Charron drove his friends to the bar in his vehicle, arriving at about 6:00 p.m. The three departed around9:00 p.m., again with Mr. Charron driving. A short distance out of Rocanville, Mr. Charron missed the turn-off to his residence.

He thenunsuccessfully tried a u-turn, and subsequently tried a three-point turn. While trying this latter manoeuver, his back tires caught thegravel at the edge of the road, and he ended up backing into the ditch, where he became stuck. [4] At 9:15 p.m. that evening, Cst. Granrude, of the Moosomin RCMP, received a complaint about a truck in the ditch nearRocanville. He testified to arriving at the scene where Mr. Charron was stuck between 9:35 and 9:45 p.m. There he approached Mr.Charron’s truck and found Mr. Charron, Ms. Cochraine and Mr. Boswell standing beside it.

The truck was not running, and the keyswere in the ignition. Because Mr. Charron and Ms. Cochraine were covered in mud, and Mr. Boswell was not, the officer assumed Mr.Boswell had been the driver and took him back to his police vehicle. [5] Cst. Granrude spent some time speaking to Mr. Boswell in the vehicle, and then returned to where Mr. Charron and Ms.Cochraine were standing in the ditch. He did so, in his words, to determine who was the operator of the truck. After spending timespeaking to all three individuals, and after pepper spraying Mr. Boswell, Cst. Granrude arrested Mr.

Charron at 10:40 p.m. for operatinga motor vehicle while impaired. Cst. Granrude, at some point, asked Cst. Pshyk to attend to the scene. [6] The issues to be determined are:

(1) Whether there is proof beyond a reasonable doubt that Mr. Charron’s ability to operate a motor vehicle was impaired by alcoholwhen he was either operating or in the care or control of his vehicle; and

(2) If there is a reasonable doubt on the first question, whether there is proof beyond a reasonable doubt that Mr. Charron is culpable as aparty (under s. 21) for a similar offence committed by Kevin Boswell that night. II. WAS HE IMPAIRED WHILE DRIVING OR IN CARE OR CONTROL? [7] I am satisfied, based on both the Crown and defence evidence, that, at the time the officer came into contact with him, Mr.Charron’s ability to operate a motor vehicle was impaired by alcohol, to the standard set out in R. v. Stellato, (SCC),[1994] 2 S.C.R. 478. That is because:

(1) Cst. Granrude testified that, when he initially spoke to Mr. Charron, he had slurred speech, red face, watery eyes and was unsteadyon his feet when he walked to the police cruiser. At the detachment, Mr. Charron still showed signs of being intoxicated with slurredspeech, unsteadiness on his feet walking down the hallway of the detachment, a strong smell of liquor, red face and watery eyes;

(2) At the scene of the stop, Cst. Pshyk observed Mr. Charron moving slowly and deliberately with a slight stagger. He said that, at thedetachment, Mr. Charron was walking slowly and deliberately, with a slight stagger. His eyes were bloodshot and he had a strong odourof liquor on his breath. This officer further said that Mr. Charron grabbed the intoxilyzer tube after being told not to; and

(3) Mr. Charron, himself, described his condition, at a point just before Cst. Granrude arrived at the scene, as “buzzed”. [8] But was his ability to operate a motor vehicle impaired at the point he got out of his vehicle, after becoming stuck in theditch? I am satisfied, and find, that this was when he ceased to be in care or control of his vehicle.

[ 9 ] Ms. Cochraine said Mr. Charron had significantly less to drink than she did. At some point the three departed with Mr. Charron driving. He drove past the turn-off to his place, which she said was not well marked, and as Mr. Charron tried to turn around his back tires went off the pavement and the vehicle went into the ditch. [ 10 ] Ms. Cochraine said Mr. Charron was considerably more sober than her or Mr. Boswell but admitted that her intoxication affected her ability to assess his condition. She thought that a two-point turn was an acceptable procedure at the time, prior to getting stuck.

She further said, prior to the two-point turn, there was nothing unusual about Mr. Charron’s driving. She did not notice any slurred speech by Mr. Charron, nor did she notice any trouble by him in walking or any trouble in his getting into or starting the vehicle. [ 11 ] Cst. Kevin Granrude testified that, at the point where Mr. Charron’s vehicle became stuck in the ditch, there was in his view enough room on the highway for either a u-turn or a two-point turn. He did not ever see Mr. Charron, or anyone else, inside the vehicle.

He said he found two half full cans of beer in the cup-holder at the front of the subject vehicle, and that, when he drove Mr. Charron back to the Moosomin RCMP Detachment, Mr. Charron asked the officer for a break and that he take “the long way”. On cross-examination, this officer said that Mr. Charron told him he was driving and drove his vehicle into the ditch. [ 12 ] Cst. Pshyk said that, at the scene, near Rocanville, Mr. Charron was moved over to his vehicle from Cst. Granrude’s vehicle. This officer then claimed he was the one that drove Mr. Charron back to the detachment. [ 13 ] Mr.

Charron testified that, on this date, some time before 6:00 p.m., he left his home near Rocanville with Rachel Cochraine and Kevin Boswell. He drove to Hag’s in Rocanville. He said that both Ms. Cochraine and Mr. Boswell were out to have a good time and were drinking more than he was. He told both of his friends that his rule was that he would not drive after having four beer. He said this was because he had once passed a roadside breath test after having four beer. [ 14 ] Mr.

Charron said he ordered four beer, during the three and half hours he was at Hag’s, and left at least half of the final beer on the table when he departed. He denied drinking any of the shooters his friends put in front of him, saying he passed the full shooters back behind him to the bartender and the bartender returned empty glasses to him to make it appear to his friends that he was drinking these. Nevertheless, he said that his friends called him names because he was not drinking as much as they were. [ 15 ] Mr.

Charron said he departed with Rachel and Kevin around 9:00 p.m. and drove back toward his residence at a farm near Rocanville. It was dark out and he missed the turn. He then, at Mr. Boswell’s suggestion, tried to make a u-turn. When he found that there was not sufficient room for this manoeuver, he tried a three-point turn. While backing up at the start of this turn, his wheels became stuck on the gravel at the edge of the highway. Mr. Boswell then convinced Mr. Charron to back up into the shallow ditch beside the road, and try to get out from there. Mr.

Charron did back up into the ditch, but discovered he was stuck and put the vehicle in park. [ 16 ] Mr. Charron said that he, Kevin and Rachel then got out of the vehicle, and he told the other two that the vehicle was there until the morning. He removed the hard hats from the vehicle and five beer that had been inside the vehicle. He said he then started walking with the other two towards his house. He said, when they were 200 to 300 yards away from where the vehicle was stuck, either Rachel or Kevin got a call on their cell phone from a friend who was prepared to come and pull them out. Mr.

Charron said he was aware that this other friend had been drinking, and refused the offer. [ 17 ] At this point, a vehicle pulled up to them and made a similar offer to pull his vehicle out. Mr. Charron, again, declined because he was at that point drinking one of the beer he had taken with him. Mr. Charron said, at that point, he gave his keys to Kevin, and that Kevin and Rachel walked back towards his vehicle. He said Mr. Boswell said to him “I’m not drunk, I’ll take care of the vehicle”. [ 18 ] Mr. Charron said that he then began walking toward his home.

When he was halfway back to his home, he felt guilty for giving the keys to Mr. Boswell. He walked back to his vehicle and found Kevin standing beside it. Mr. Charron said that he told the driver of the other truck not to pull his vehicle out, and that the other truck then departed. Mr. Charron said that another vehicle came up and offered help. He said Mr. Boswell still had the keys at that point. Mr. Charron said he left the scene to go home and Kevin and Rachel remained.

[ 19 ] Mr. Charron said he returned to his home, sat on the porch for 30 to 45 minutes, and consumed two to three beer, which made a “buzz” come over him. At that point, he heard tires spinning in the distance and walked back to where his vehicle was stuck. There he discovered Kevin and Rachel standing beside his vehicle, and the other vehicle, whose driver had offered help, was now in the ditch, and stuck beside his vehicle. At that point, the driver of the other vehicle stepped on the gas and sprayed him with mud. [ 20 ] Mr. Charron said the police then arrived. Mr.

Charron denied knowing which vehicle he heard spinning tires from his porch and further denied that he had any knowledge of his vehicle being started after he gave the keys to Kevin, nor did he know if his keys were in the ignition of his vehicle when he returned to the scene. [ 21 ] On cross-examination, Mr. Charron described both Kevin and Rachel as intoxicated, not because of any outward symptoms but because of how much they had drank to his knowledge. He described Kevin as belligerent, swearing and argumentative. He did not believe Kevin would become a hazard, as he didn’t think he could get the vehicle out.

He said he knew he gave permission to a person who was drunk to operate his vehicle. [ 22 ] Despite Mr. Charron’s condition when he came into contact with the officers, after carefully considering his evidence in the context of all evidence at this trial, I have concluded that Mr. Charron’s version could be true. I am satisfied that it is possible that Mr. Charron left the scene for a period of time before the police arrived, consumed beer, and then returned to the scene before Cst. Granrude arrived. That is because:

(1) In my view, the times given by Mr. Charron appeared to have been approximations, and he could have been mistaken about the time periods he stated, in the same way that at least one of the officers was obviously mistaken, with both testifying that they separately drove Mr. Charron back to the detachment. In my view it is possible that Mr. Charron: (1) left the bar around 9:00 p.m.; (2) drove a short distance to where his vehicle became stuck; (3) conferred with his friends; (4) walked back to his residence; (5) sat on his porch; and (6) returned to the scene in advance of Cst. Granrude arriving;

(2) Ms. Cochraine’s memory of this night was sketchy at best. She said, on a number of occasions, that she did not recall what had happened at the scene. While Mr. Moore did not suggest to Ms. Cochraine that Mr. Charron had left the scene for a period of time, he did ask her whether the three of them stayed in each other’s presence at all times. She responded: “We weren’t in each others presence at all time(s). People - you know - I don’t know, just wandering around the truck, I guess”. Given this response and her lack of recall, I am satisfied that Mr. Charron may have left the scene as he described;

(3) No other witnesses presented at the trial - other than Mr. Charron and Ms. Cochraine - were present prior to Cst. Granrude arriving; and

(4) Any statement to the effect that the police officer should take the “long way” to the detachment would not, in itself, cause me to reject Mr. Charron’s version about leaving the scene. Such a statement - in Cst. Granrude’s opinion, if in fact it was made to him - referred to the chance of a reduced Intoxilyzer reading. Those readings would only be relevant to the .08 charge, which was dismissed. Given that I am satisfied Mr.

Charron was legally impaired while in the police vehicle, he may well have been hoping for a lower reading, or, as he said, that the test could not be taken within two hours of him driving. But by itself, I do not accept that this statement renders his version of leaving the scene, a few hours earlier, impossible or unbelievable. [ 23 ] As I am satisfied that it is possible that, before the police arrived, Mr.

Charron left the scene for an extended period of time and consumed as many as three beer, I am further satisfied that it is possible that the physical symptoms the two officers noted at the scene and at the detachment were caused by the beer he drank after driving. [ 24 ] The observations given by Ms. Cochraine do not support impairment at the point of, or prior to, becoming stuck in the ditch. The other key evidence on impairment was Mr. Charron’s manner of driving, and in particular how he got stuck in the ditch.

Like my conclusion of his account of what happened after the vehicle became stuck, I am similarly satisfied that Mr. Charron’s account of how he became stuck could reasonably be true, and as a result is not necessarily a sign of impairment. Further, while Mr. Charron did not tell Cst. Granrude that he had left the scene, there was no evidence he was asked about this, and Mr. Charron testified that he told the officer, before he was arrested, that he had been drinking after he drove.

[25] Taken together, when considering all of the relevant evidence on the impairment issue - including the symptoms observed bythe officers, the open liquor found by Cst. Granrude in the vehicle, the evidence of Ms. Cochraine and that of Mr. Charron - I have areasonable doubt that Mr. Charron’s ability to operate a motor vehicle was impaired by alcohol when he was last operating or in care orcontrol of his vehicle, which I have found was when he got out of the driver’s seat after he became stuck. III. WAS MR. CHARRON A PARTY TO AN OFFENCE? [26] In argument, Mr. Stricker submitted that, in addition to whether Mr.

Charron was personally operating or in care or control ofhis vehicle while impaired, his act of surrendering his keys to Kevin Boswell, in these circumstances, made him a party to the offence ofhaving care or control of a vehicle while impaired committed by Mr. Boswell. Section 21(1) of the Criminal Code provides that everyone is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commitit; or (

c) abets any person in committing it. [27] While it is possible that a person could be held liable as a party to the unlawful driving of another (see R. v. Akapew, 2009SKCA 137), in my view the evidence in this case does not establish beyond a reasonable doubt that Mr. Boswell, or any one other thanMr. Charron, was driving or in the care or control of Mr. Charron’s vehicle. While Mr. Charron appears to have anticipated that thiswould be the result and while the evidence establishes that Mr. Boswell was intoxicated, Ms. Cochraine at no time testified to anyoneother than Mr. Charron driving.

While she did say that a passerby tried to pull them out, she did not say who, if anyone, was behind thewheel of Mr. Charron’s vehicle. [28] Neither officer saw Mr. Boswell, or anyone else, being behind the wheel of this vehicle. Mr. Charron, while saying that heheard wheels spinning in the distance while drinking on his porch, said that when he walked back to where his vehicle was stuck, hefound Ms. Cochraine and Mr. Boswell standing beside his vehicle.

He said the driver of another vehicle, close by, was also stuck andwas attempting to get back onto the road, and sprayed mud all over him in that attempt. [29] I note that s. 23.1 provides that sections 21 to 23 apply in respect of an accused notwithstanding the fact that the person whomthe accused aids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence.

While there has notbeen much judicial consideration of this section, the annotations to Martin’s Annual Criminal Code Judicial Edition (2011) suggests that“examples of circumstances under which the other accused may not be convicted would be if the person is under 12 years or is not guiltyby reason of insanity” (at page 75). [30] R. v. S. (F.J.) (1997), (NS CA), 115 C.C.C. (3d) 450 (N.S.C.A.) is one of the few cases which considereds. 23.1, albeit in the context of a charge of being an accessory after the fact and not a charge of aiding or abetting another to commit anoffence.

At paragraph 23, the Court cites with apparent approval, the following passage from Principles of Criminal Law (2d) byProfessor Eric Colvin (at p. 367 of the text), regarding the liability of a party for the acts of a principal: Secondary liability does, of course, require that there be a principal. There is, however, a line of English authority which holds that inthis context a principal need not always be someone who could have been convicted of the substantive offence. It will suffice toconstitute “a principal” if the actus reus was committed. [31] In my view, no

section of the Criminal Code, nor any principle of the common law, renders a person liable as a party for anoffence committed by a principal (here, Kevin Boswell) where there is not proof beyond a reasonable doubt that, at the least, the actusreus of the other offence has been committed by that principal. Here, I have a reasonable doubt that any person other than Mr. Charron -including Mr. Boswell - was, this day, operating, or in the care or control of, Mr. Charron’s vehicle while their ability to operate a motorvehicle was impaired by alcohol. As a result, I similarly have a reasonable doubt that Mr.

Charron was a party to such an offence. IV. CONCLUSION [32] Because I hold a reasonable doubt that Mr. Charron’s ability to operate his vehicle was impaired by alcohol when he wasoperating or in the care or control of that vehicle, and because I, as well, hold a reasonable doubt that he was a party to a similar offencecommitted by Kevin Boswell, Mr. Charron is found not guilty on count one.

R. Green, J