2010 QCCQ 13254, 2010 QCCQ 13254

R. c. Morrill 2010 QCCQ 13254 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ST-FRANÇOIS TOWN OF SHERBROOKE Criminal and Penal Division No: 450-01-059254-099 DATE: December 21 st 2010 ______________________________________________________________________ BY THE HONOURABLE SERGE CHAMPOUX, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Plaintiff v.

ERIC NEIL MORRILL Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused is facing two charges: one of driving a motor vehicle while the alcohol level in his blood was above the legal limit, and one of driving a motor vehicle while his ability to do so was impaired by alcohol. THE RELEVANT FACTS [ 2 ] On March 8th 2009, a call is received at the local police station.

The caller informs the dispatcher that an English speaking man that appears clearly intoxicated just bought two cases of 12 beers from the Depanneur Melbourne. [ 3 ] He would now be inside his vehicle in the parking lot of the depanneur, in a dark coloured van. [ 4 ] Officer Guindon of the Sûreté du Québec is on site two minutes later and quickly identifies a vehicle and its occupant that perfectly match the description.

The occupant, who is the accused, is behind the steering wheel, alone in the van. [ 5 ] She approaches the accused and in the following minutes, has to arrest him and handcuff him to transport him to the police station to obtain from him the necessary breath samples. [ 6 ] I won't go into details, but the arrest of the accused is not, to say the least, uneventful. His behaviour is clearly showing that indeed, he is intoxicated by alcohol.

I do not believe that he seriously challenges that, and this is not where his defence lies. [ 7 ] At the police station, the accused provides two breath samples, and obtains a result of 216 and 217 milligrams of alcohol per 100 millimetres of blood. That again is not challenged. [ 8 ] The accused testifies. [ 9 ] He explains that he has a severe heart condition and several other health issues. He is a heavy drinker. I understand that he drinks at least 24 bottles of beer per day.

He starts in the morning, goes to cut wood or do mechanic with his son Steve, drinks all day, then come back home and drinks again. [ 10 ] But he does not have a drivers licence. I am not sure if it is for medical reasons, but it is likely. The accused states that his vision is not good at all. Everything is blurry even at a small distance. Because of that, he claims that he does not drive the van, but he admits driving the tractor in the wood, because, it does not go fast. [ 11 ] On the 8th of March 2009, after a day of woodcutting, the accused and his son Steve arrive in Melbourne.

Steve is driving the van, a 1997 GMC Safari. They are carrying chainsaws and various tools. Clearly, the destination was the depanneur, to buy more beers. [ 12 ] Shortly before getting there, they see a pick-up truck for sale. Steve Morrill is interested to look at it. He leaves to go see it, leaving his father, the accused, with the van, in the parking lot of the depanneur. During that time, the accused will buy his beer, and make sure the van and its content are safe.

The accused will also likely work on the chainsaws and … will drink more beers. [ 13 ] Eric Morrill is left with the keys of the van, and remains present also for the reason that the locks on the van are defective:

some cannot be locked and the insurance company have advised them that they would not cover for theft, if the vehicle is leftunattended. [14] So, essentially, the accused is claiming that he never drove the van, and had no intention to do it, therefore, in his mind, heshould be acquitted. DISCUSSION [15] The accused has chosen to stand trial without an attorney. I have tried to draw his attention on the value of the services that alawyer could render him, but he has maintained his choice. [16] Some offences are included in other ones.

The major argument of the accused is that he did not drive the van in which he wasfound. That is true and the Crown does not dispute that fact. It is important to remind ourselves that the accusation against Eric Morrillis to have driven a motor vehicle under the influence of alcohol. Is it enough to be acquitted? [17]

Section 253 of the Criminal Code reads as follows: Operation while impaired 253.

(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or ofrailway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (

b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in onehundred millilitres of blood. For greater certainty

(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(

a) includes impairment by a combination ofalcohol and a drug. R.S., 1985, c. C-46, s. 253; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 59; 2008, c. 6, s. 18. [18] The Quebec Court of Appeal have decided in Drolet c. R. , that the offence of care and control of a motorvehicle is included in the offence of driving such a motor vehicle. That decision has been confirmed by the Supreme Court of Canada in1990 ( (SCC), [1990] 2 R.C.S. 1107). [19] The question then becomes: Did Eric Morrill have the care and control of the van in which he was arrested on the 8th ofMarch 2009? [20]

Section 258 1)

a) of the Criminal Code creates a presumption to that effect. 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in 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,vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall bedeemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accusedestablishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railwayequipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be; [21] This presumption can be rebutted, of course, by the accused.

The notion of care and control have been defined in thefollowing fashion by the Supreme Court of Canada, in The Queen v. Toews, (SCC), [1985] 2 S.C.R. 119. 10. There are, of course, other authorities dealing with the question. The cases cited, however, illustrate the point and lead to theconclusion that acts of care or control, short of driving, are acts which involve some use of the car or its fitting and equipment, or somecourse of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could becomedangerous.

Each case will depend on its own facts and the circumstances in which acts of care or control may be found will vary widely. [22] The facts here are showing that when the police officer arrives at the scene, the accused is sitting in the drivers position. Hehave possession of two sets of keys, one in his pocket and one hidden somewhere in the van. [23] Although he denies having any intention to drive, mainly because of his bad vision, when the police officer arrives, hisbehaviour is very disorganised and he looks disoriented.

He is saying his son left, leaving him there by himself, or that his wife wasdriving, which was clearly not the case. [24] The proof is clear that Eric Morrill can drive the van, as he can drive his tractor, at least, slowly. [25] His behaviour in the parking lot of the depanneur shows that he was very intoxicated and unpredictable. He tries to resist tohis arrest, acted in general in a reckless way.

I find very likely that, considering that nothing was preventing him from starting hisvehicle, there was a high risk of him using it. [26] The proof in his entirety tells me that considering his high level of intoxication, if he would have felt that his son would notcome back or that a customer at the depanneur would have asked him to move his car, I have no doubt that he would have, at least, tried

to do so. [ 27 ] The accused said himself that he considered moving or taking the vehicle. When he was released from the police station, he went to the garage where the van has been towed with the intention to recuperate it. He says he noticed that the doors were not properly locked. He is, at that time, accompanied by his wife and his son. [ 28 ] He claims he told his wife to drive the van or "he would to it himself". Fortunately, she agreed and drove it home.

That comment from the accused, in my mind, shows again, that the risk of him driving the van or any other vehicle was very real. [ 29 ] To use the word of Mr. Justice McIntyre in Toews [1] , " a risk of putting the vehicle in motion so that it could become dangerous " was present and has been proven. [ 30 ] Considering that finding on the entire proof, the accused is found guilty on the lesser count number 1 of having care and control of a motor vehicle while his alcohol level was above the legal limit and I order a stay of proceeding on count number 2. __________________________________ Serge Champoux, J.C.Q.

Me Emilie Baril-Côté Counsel for the prosecutor Eric Neil Morrill Date of hearing: October 28 th 2010