Her Majesty the Queen - v. -, 2017 SKPC 78

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 078 Date: September 12, 2017 Information: 90017043 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dennis Dustyhorn Appearing: Mr. Justin Stevenson For the Crown Mr. Ian McKay Q.C. For the Accused TRIAL DECISION M. HINDS , J Introduction [ 1 ] In the early morning hours of April 29, 2016, Constable Lori Anne New received a call for service regarding a male that was passed out in the driver seat of a vehicle situated in a 7-11 convenience store parking lot.

When Constable New arrived on scene, she found the accused, Dennis Dustyhorn, sitting in the driver ’ s seat of the vehicle. Constable New observed that Mr. Dustyhorn was heavily asleep, with his arms crossed and head down. Constable New knocked on the driver ’ s side window a number of times before she awoke Mr. Dustyhorn. Constable New observed Mr. Dustyhorn to be visibly intoxicated.

[ 2 ] Mr. Dustyhorn was charged with having care or control of a motor vehicle: (1) while impaired by alcohol or a drug; and (2) while over .08, contrary to sections 255(1), 253(1)(

a) and 253(1)(

b) of the Criminal Code . Issue s [ 3 ] There are two issues to be determined in this case: 1. Has the accused rebutted the presumption that he had care or control of the motor vehicle? 2. Has the Crown established that Mr. Dustyhorn had defacto care or control of the motor vehicle? Facts [ 4 ] The accused, Dennis Dustyhorn is 54 years of age. At the material time he was renting a room in the city of Regina and working at the K + S Potash Mine. Mr. Dustyhorn’s brother Fred Dustyhorn lived on 10 th Avenue East in Regina. Helen Matechuk is Dennis Dustyhorn’s aunt.

She lived on Wallace Street in Regina which is located near a 7-11 convenience store located at the corner of Victoria Avenue and Winnipeg Street in Regina. Dwayne Matechuk is Dennis Dustyhorn’s first cousin. He lived in Regina. Helen Matechuk is Dwayne Matechuk’s mother and Dennis Dustyhorn’s aunt. [ 5 ] During the evening of April 28, 2016, between approximately 9:30 p.m. and 11:00 p.m., the accused attended the Four Seasons located at Park Street and Arcola Avenue in Regina for a dinner fund raiser. While at the Four Seasons, the accused met his brother Fred Dustyhorn and consumed about 3 beer.

As the accused had driven his vehicle to the restaurant, at around 10:00 p.m. he called his cousin, Dwayne Matechuk, and asked him to be his driver for the remainder of the evening/early morning. Mr. Matechuk agreed and walked from his residence to Four Seasons. At around 11:00 p.m. Mr. Matechuk arrived at Four Seasons and he drove the accused to his brother Fred Dustyhorn’s residence on 10 th Avenue East in Glencairn. Mr. Matechuk testified that the car he was driving was a grey Mustang. [ 6 ] The men met up again at Fred Dustyhorn’s residence around 11:30 p.m.

The accused and Fred Dustyhorn visited and drank alcohol. The accused consumed 7 shots of tequila and 4 to 5 beer. Mr. Dustyhorn testified that he was really intoxicated. Dwayne Matechuk was not drinking alcohol. The men ended their visit around 2:00 a.m. on April 29, 2016. [ 7 ] The accused and Dwayne Matechuk were aware that Helen Matechuk wanted some cigarettes. As a result, Mr. Matechuk drove himself and the accused to a 7-11 convenience store at the corner of Victoria Avenue and Winnipeg Street which is situated near Helen Matechuk’s home. Mr.

Matechuk parked the vehicle in front of the 7-11 and the two men went into the store. The accused bought two packs of cigarettes, one for Helen Matechuk and one for Dwayne Matechuk. The accused also bought some nachos. [ 8 ] The two men decided that Dwayne Matechuk would take a pack of cigarettes to his mother, Helen Matechuk. Prior to leaving, he gave the car keys to Dennis Dustyhorn. Mr. Matechuk testified that Mr. Dustyhorn was in the passenger side of the vehicle when he left. Mr. Matechuk then walked to his mother’s place to drop off the cigarettes and stayed for 60 to 90 minutes. When Mr.

Matechuk came back to check on his cousin, the vehicle and his cousin were no longer there. Mr. Matechuk testified that he had planned on driving the accused home. After Mr. Matechuk saw that the accused and the vehicle were not in the 7-11 parking lot, he walked home and he did not make any inquiries as to where the accused had gone. Mr. Matechuk was never contacted by the police. [ 9 ] The accused testified that he sat in the driver’s seat of the vehicle to eat his nachos. Shortly after eating, the accused fell asleep. At around 3:15 a.m. he was awoken by a police officer and was disorientated.

The accused had the keys to the vehicle in his right hand. He testified that he had been waiting for his ride when he fell asleep and never had intentions to drive. He further testified that if Mr. Matechuk had not returned he might have called a cab. However, on cross-examination, the accused stated that he probably would have driven home at 5:15 a.m. to catch the bus for work.

[10] Constable New testified that when she approached the vehicle she noticed that the engine of the vehicle was not running. Constable New stated that the vehicle, a red Dodge Magnum, was parked within the yellow lines of the parking lot facing the 7-11. Shenoticed that the accused was in the driver’s side of the vehicle and was heavily asleep with his arms crossed over his body and his headdown. Constable New also testified that the accused was not wearing a seatbelt. Constable New knocked on the driver’s side window 6-8 times and then 4 more times really hard to wake up the accused.

Constable New testified that when the accused woke up she sawthat there were keys in his right hand. She could smell an odour of alcohol on the accused’s breath but did not find any alcohol in thevehicle. Also, she observed that the accused had red bloodshot glassy eyes, a flushed red face, was slurring his speech, and wasunsteady on his feet. Constable New testified that when the accused awoke, he stated “who drove me?”, “how did I get here?” and “hethought he had a driver”. The accused was arrested for having care or control of a motor vehicle while impaired. Constable Newdemanded a sample of his breath.

He was subsequently transported to the Regina Police Station and provided two breath samples of 110 milligrams of alcohol in 100 millilitres of blood. Constable New then arrested Mr. Dustyhorn for having care or control of a motorvehicle while over .08. Has the accused rebutted the presumption that he had care or control of the motor vehicle? [11] In this case the Crown takes the position that the accused was in care or control of the vehicle. The Crown relies upon the factthat Constable New found the accused in the driver’s seat of the motor vehicle.

In particular, the Crown relies upon the presumption setout in subsection 258 (1)(

a) of the Criminal Code of Canada which reads as follows: 285(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or 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, . . .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 . . . [12] The issue of care or 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 SCR 231 [Ford]; R v Shuparski, 2003 SKCA 22 [Shuparski]; R v Boudreault, 2012 SCC 56 [Boudreault]; R v Poncelet, 2014SKCA 30 [Poncelet]; R v LaCasse 2013 SKPC 157 [LaCasse]; R v Derkson 2015 SKPC 42 [Derkson]; R v Meek 2010 SKPC 136[Meek]; R v Denys 2008 MBQB 109 [Denys]; and R v Michell (2002) (MB PC), 168 Man. R. (2d) 161 (Man Prov.Court) [Michell]. [13] Boudreault is considered the leading authority with respect to the offence of being in care or control of a vehicle contrary to s.253(1) of the Criminal Code.

In Poncelet, Chief Justice Richards summarises the law set out in Boudreault as follows: 22. In its decision, the Supreme Court described the essential elements of “care or control” as follows: (

a) an intentional course ofconduct associated with a motor vehicle; (

b) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds thelegal limit; and (

c) in circumstances that create a realistic risk of danger to persons or property (para. 33). 23. The Court underlined that the risk of danger must be “realistic” and not just “theoretically possible”. It said the risk need not be“probable” or “substantial” and, speaking through Fish J., described the low nature of the risk threshold as follows: [48] I need hardly reiterate that “realistic risk” is a low threshold and, in the absence of evidence to the contrary, will normally be theonly reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion.

To avoidconviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that norealistic risk of danger existed in the particular circumstances of the case. 24. As to the practical effect of its view of “care or control”, the Supreme Court stressed that intoxicated persons found behind the wheelof a vehicle will almost always face conviction: [45] As I mentioned at the outset, anyone found inebriated and behind the wheel with a present ability to drive will - and should - almostinvariably be convicted.

It hardly follows, however, that a conviction in these circumstances is, or should be, “automatic”. A convictionwill be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case. [14] In LaCasse at para 16, Judge Kovatch set out a method of analysis for care or control cases as follows: 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 theCourt should conclude that the accused is in care and control of the vehicle. If the accused has not rebutted the presumption, and theCrown 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. [ 15 ] I adopt this method of analysis. Impairment/blood alcohol exceeding the legal limit [ 16 ] The accused admits that he was intoxicated on April 29 th , 2016. Constable New’s observations of Mr. Dustyhorn that early morning confirm this. In addition the Certificate of Qualified Technician (Mr. Dustyhorn’s breath samples), established that the accused’s blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood.

Therefore, I find this part of the Boudreault analysis to be satisfied. However, the analysis does not end there. The Presumption of Care or Control [ 17 ] The evidence reveals that on April 29, 2016, around 3:14 am, the police found Mr. Dustyhorn in the driver ’ s seat of his vehicle. Therefore, the presumption that the accused had care or control of the vehicle applies.

Rebutting the Presumption [ 18 ] The presumption of care or control can be rebutted by evidence which, if accepted, establishes on a balance of probabilities that the accused did not occupy the driver ’ s seat for the purpose of setting the vehicle in motion ( Ford and Shuparski ). It is incumbent upon the accused to rebut the presumption ( Meek ). The presumption focuses on the intention of the accused at the time he occupied the driver ’ s seat ( Denys ). [ 19 ] Crown counsel submitted the decision of Denys , a decision that has some similar facts to the case at hand.

In Denys , the accused hired a sober driver earlier in the evening to drive him from different parties. Later in the evening, the accused was found unconscious in the driver’s seat at a 7-11 store. He had no recollection on how he got there. The accused and his friend, Rath, who had also been drinking, testified. The designated driver did not testify. The trial judge found that the accused had rebutted the presumption on the basis of the accused’s and Rath’s evidence of an intention not to drive formulated earlier during the day.

There was no evidence of the accused’s intention at the time he occupied the driver’s seat of his truck as he “blacked out” and could not explain how or why he ended up in the driver’s seat or how he got to 7-11. On appeal, the Court held that evidence of the accused’s earlier intentions did not establish his intentions at the time he occupied the driver’s seat. Since there was not enough evidence to support the trial judge ’ s conclusion and because the trial judge applied the incorrect legal principle, the Court entered a conviction. [ 20 ] Although Denys has many similarities to Mr.

Dustyhorn’s situation, given that both the accused had a designated driver and both had fallen asleep in the driver’s seat of a vehicle at a 7-11 store, there are many distinguishing factors. In Denys there was no evidence to indicate why the accused was sitting in the driver’s seat or how he got there. In this case, the accused testified that he and his cousin went to the 7-11 to buy his aunt cigarettes and that once he got there he bought nachos, ate them in the driver’s seat of the vehicle and then fell asleep. There was also evidence in Denys that the accused “blacked out” for 2-3 hours after leaving a party.

This did not occur in the case before me. Here the accused did not recall how long he had been sleeping. However, he recalled that his cousin had been driving. The main distinguishing factor is that in Denys the designated driver did not testify and there was no evidence about what happened to the designated driver. In this case, Mr. Matechuk testified and provided credible evidence that he was the designated driver the whole night and that he drove to 7-11, took cigarettes to this mother’s house and then returned to check on his cousin so that he could drive him home.

Thus, I cannot rely on Denys to come to the conclusion that the accused did not rebut the presumption. I find that Mr. Matechuk’s testimony established that the accused had a plan to have a designated driver for that night/early morning. [ 21 ] Crown counsel questioned whether Mr. Matechuk actually drove the accused’s vehicle and if he was in fact the designated driver . While there is some conflicting evidence, particularly the car description that Mr. Matechuk gave (that it was a grey Mustang), as opposed to the description Constable New gave (that it was a red Dodge Magnum), nonetheless, I find Mr.

Matechuk to have been a credible witness and I find that he acted as the accused ’ s designated driver that evening/early morning and had planned on driving the accused home. [ 22 ] I find the accused to be a credible witness. I accept his evidence that he fell asleep in the vehicle after eating nachos from 7-11. Constable New’s testimony that she found the accused heavily asleep corroborates the accused’s testimony. I accept that the accused had no intentions of occupying the driver’s seat for the purpose of setting the vehicle in motion as he was waiting for Mr. Matechuk to return to drive him home .

There was no evidence to support the fact that the accused attempted to drive or that the vehicle was recently running. Also, Constable New testified that the accused did not indicate that he had any intentions to drive. I find that the vehicle was being used for an innocent purpose and that on a balance of probabilities, the accused did not occupy the driver ’ s seat for the purpose of setting the vehicle in motion. Thus, I find that the accused has rebutted the presumption of care or control. Defacto Care or Control [ 23 ] However, the analysis does not end here.

Even if an accused is able to establish that there was no intent to drive, care or control is made out where there is a realistic risk of danger ( Boudreault at para. 33 ). This risk must be “ realistic and not just theoretically possible … but nor need the risk be probable, or even serious or substantial ” ( Boudreault at para. 34 ). This realistic risk can be made out in several ways. The impaired person may change their mind and drive. They may unintentionally set the vehicle into motion. The vehicle could also be dangerous through negligence or bad judgment, even when the vehicle remains stationary.

[ 24 ] Also, in Derkson at para. 20 , Judge Kalmakoff listed factors to look for when determining whether there was a realistic risk that the accused might put the vehicle in motion either intentionally or accidentally.

These factors included: - his level of impairment, - whether the keys were in the ignition, -the location of the vehicle, -whether or not he had reached his final destination, -whether he drove the vehicle to the location where it was found, -whether he had started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving, -whether he had a plan to get home that did not include driving while impaired or over the legal limit, -whether he had a stated intention to resume driving, -whether he was seated in the driver’s seat, regardless of the applicability of the presumption, -whether he was wearing his seatbelt, -whether he failed to take advantage of alternative means of leaving the scene, -whether he had a cell phone to make alterative arrangements and failed to do so. [ 25 ] One possible way of proving that there was no realistic risk of danger is to show that the accused had an alternate plan to get home that evening.

In Boudreault at para. 52 Justice Fish examined whether the accused had an alternate plan and queried whether the plan was objectively concrete and reliable, and whether it was in fact implemented by the accused.

Justice Fish noted that “a plan may seem watertight, but the accused’s level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation”. [ 26 ] However, in Derkson Judge Kalmakoff cited R v Smitts 2012 ONCA 524 at para. 19 which stated: A realistic risk of danger, including a risk based on the accused changing his or her mind and deciding to drive, must be based on more than speculation and conjecture.

It must have an evidentiary foundation and must relate to (1) a risk that the accused will set the vehicle in motion unintentionally, (2) a risk that, through negligence a stationary or inoperable vehicle may endanger the individual or others, or (3) a risk that an individual who has decided not to drive will change his mind and drive while impaired. [ 27 ] I must now determine whether on all of the evidence before me, the accused was in de facto care or control of the vehicle . [ 28 ] A realistic risk of danger can arise where the danger arises due to the accused unintentionally setting the vehicle into motion.

In Boudreault at para. 45 Justice Fish stated the following: Does the act of a person sleeping in a reclined position in the driver ’ s seat of a vehicle that is stopped in “ park ” , the engine off and the keys not in the ignition show a risk of putting the vehicle in motion? The answer is clearly No. [ 29 ] From this statement and given the evidence before me I find that there was no risk of the accused unintentionally setting the vehicle into motion. The accused was parked in a convenience store parking lot.

The vehicle engine was not running, there were no keys in the ignition and the accused was heavily asleep with his arms crossed over his body and his head down. Constable New testified that it took multiple hard knocks on the accused’s window in order to wake him up . Therefore, there would have been no realistic risk of the accused unintentionally setting the vehicle into motion while he was sleeping. [ 30 ] Alternatively, a realistic risk of danger can arise when an impaired person who initially does not intend to drive but changes his or her mind and drives intentionally.

Crown counsel submitted that a realistic risk of danger arose because although the accused may not have initially intended to drive, he may have changed his mind and drove intentionally. Crown counsel relies on the accused’s testimony that he may have driven home at 5:15 a.m. to catch the bus for work, to show that the accused could have changed his mind and driven home that evening. This statement, however, is based on the assumption that Mr. Matechuk did not come back prior to 5:15 a.m. In this case I find that Mr. Matechuk did in fact come back to the 7-11 parking lot prior to 5:15 a.m.

In addition, I am reminded that the accused further testified that if Mr. Matechuk had not come back that evening he would have called a taxi. I find that the accused ’ s initial testimony was based on speculation and conjecture and not an indicator that he was at risk of changing his mind and driving while impaired. [ 31 ] Crown counsel also raised the concern that based on his level of intoxication he may have chosen to drive.

Crown counsel cites Derkson at para. 18 where it states “those individuals whose ability to drive is impaired by alcohol have a diminished capacity to make safe judgments, and frequently act in ways that endanger themselves and the public”. Based on the totality of evidence

before me, I have doubt that the accused would have changed his mind and driven. I find that the accused had a plan throughout the entire night to have Mr. Matechuk as his designated driver. [ 32 ] The fact that the accused had the keys in his hand did pose some risk of danger because he could have easily started the engine of the vehicle. In Michell , the Court held that there was not sufficient evidence to establish care or control when the accused was merely sitting in the driver’s seat of a vehicle with the keys in his hand and when the accused had the intent to wait for a ride from a sober driver.

In Michell , the accused had been waiting in his vehicle for a ride because it was cold outside and had fallen asleep. The Court held that it was relevant that the accused had spent the night sleeping at his friend’s house after consuming alcohol rather than trying to make his way home that night. The Court in Michell , indicated that as a matter of policy people should be encouraged to make these kinds of arrangements. I find in this case the accused made arrangements throughout the night to have a designated driver and that this should be encouraged as a matter of policy.

I find that the accused had the intent to wait for Mr. Matechuk to return to give him a ride home. Thus, I find that while the accused’s act of holding the keys in his hand did pose some risk of danger, I am of the view that he would not have changed his mind and driven. [ 33 ] I find this situation to be similar to the facts in Boudreault . In Boudreault , the accused went out drinking at a bar and when the bar closed, his friend, who was apparently sober, drove the accused’s truck for him to her apartment. After being at the apartment, the accused decided to go home, so his friend called a taxi for him.

After waiting 45 minutes, there was still no taxi so the accused’s friend called for a taxi again. The accused’s friend wanted to go to sleep so she asked him to wait outside for the taxi. Since it was cold that morning the accused started the engine and fell asleep. A taxi arrived 20-25 minutes after the second call and found the accused asleep in the driver’s seat of the vehicle. The police received a call from the taxi driver and upon arrest, the accused asked that he be left alone so that he could drive home. The trial judge placed no probative weight to this statement.

The only risk of danger alleged by the Crown in Boudreault was that the accused would, at some point, set his vehicle in motion intentionally. The factor that had particular relevance in that case was that the accused had an alternate plan to ensure his safe transportation home. The trial judge held that although the accused was intoxicated, he knew what he was doing and took all the necessary precautions. Thus, the accused had a concrete and reliable plan to get home.

Also, the evidence established that his plan would in fact have prevented him from driving since it was the driver of the taxi that he had summoned who called the police. The Supreme Court of Canada restored the acquittal at trial. [ 34 ] Similar to Boudreault , the accused was waiting in his vehicle for Mr. Matechuk to return to drive him home and then he fell asleep . However, in Boudreault , the accused told police that he wanted to drive home at the time of the event while still intoxicated. Here, the accused made no such statements while occupying the driver ’ s seat.

Rather upon being awoken , he stated “who drove me?”, “how did I get here?” and “he thought he had a driver”. In my view these statements corroborate that Mr. Dustyhorn had made plans to have someone else drive him that early morning. Conclusion [ 35 ] In

summary, although there is the presumption that the accused had care or control of the vehicle since he occupied the driver’s seat, I determined that Mr. Dustyhorn rebutted the presumption. Lastly, I have a reasonable doubt that the accused had de facto care or control of the vehicle. As a result Mr. Dustyhorn is acquitted of the charges before the Court. ____________________________ M. Hinds, J