Her Majesty the Queen - v. -, 2015 SKPC 97

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2015 SKPC 097 Date: June 29, 2015 Information: 31803267 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - T.J.P. Appearing: Mr. Rob Parker For the Crown Mr. Merv Nidesh, Q.C.

For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ JUDGMENT D. KOVATCH , J _____________________________________________________________________________ BACKGROUND

[ 1 ] The accused, T.J.P., is charged with having the care and control of a motor vehicle while he was impaired by alcohol or a drug. The sole issue to be determined by the Court is whether he was in de facto or actual care and control of the motor vehicle. THE EVIDENCE [ 2 ] Defence counsel made significant admissions of fact and as a result the police officer was not required to testify. Defence admitted that on March 30, 2014, at approximately 1:30 a.m., Cst. Forbes was dispatched to the area around the intersection of Saskatchewan Street and Algoma in Moose Jaw.

In the 600 block of Saskatchewan Street West, the officer found the accused sitting behind the wheel of his car. The vehicle was parked next to the curb and relatively close to another car parked in front of it. The driver’s door was slightly open. The engine was running and the running lights for the vehicle were on. Music from the vehicle was playing loudly. The accused was seated in the driver’s seat, and was leaning part way out of the partially opened driver’s door. There was fresh vomit inside the door area of the vehicle. There was also fresh vomit on the accused’s jacket. He was quite impaired by alcohol.

The accused’s feet were at the pedals of the vehicle. [ 3 ] The accused was asleep. The officer was able to call to him and wake him up. When the accused awoke and was speaking to the officer, his foot hit the accelerator, temporarily increasing the speed of the motor. The accused then turned off the vehicle and put the keys on the front passenger seat. The officer asked the accused to exit the vehicle, and the accused did so. He was immediately arrested for impaired care and control.

The defence admitted that the accused was impaired by alcohol. [ 4 ] In addition, by consent, they played and entered the DVD taken by the in-car video. That video shows the police officer pull up behind the accused’s car. The driver’s door was slightly ajar or slightly open. The music was clearly playing loudly, as we can easily hear the music playing. We can see the police at the vehicle and them getting the accused from the vehicle. He is very unsteady on his feet. [ 5 ] The accused, T.J.P., gave evidence. He testified that at the time of trial, he was 17 years of age.

He was 16 years of age at the time of this incident. At trial, he was in Grade 12 at Central Collegiate in Moose Jaw. [ 6 ] The accused testified that he is the owner of the car. During the evening prior to being arrested, he was drinking. Another individual, one Blerim Zymberi drove his car. They picked up some other individuals and went to a party. The party was close to where the police found the accused in the vehicle. Mr. Zymberi parked the vehicle there, and they went to the party. [ 7 ] The accused testified that it was their intention that Mr. Zymberi would drive them home.

Further, that he gave his car keys to Mr. Zymberi. However, while at the party, he began to feel ill. He testified that he advised his friends of this and said “let’s go”. He said that Mr. Zymberi then returned his keys to him, and his friends directed that he should go start the car. They advised that they would be along in awhile. [ 8 ] The accused said that he followed these directions. He went to his car and got in and started the car because it was cold out. He then apparently got sick to his stomach and fell asleep and then was awoken by Cst.

Forbes. [ 9 ] The accused was very unclear as to how long he was at the car or asleep before being woken by the police officer. At one point, he estimated this time to be approximately two hours. Later however, he said it may have been as little as a half hour. No evidence was led that Mr. Zymberi or any of the accused’s friends actually returned to this vehicle or were seen by the police officer. [ 10 ] Under cross-examination, the accused admitted that he did hit the accelerator when speaking to the police.

He said this was an accident because he was drunk, and this would not have otherwise happened. [ 11 ] The accused also testified that he believed he had a cell phone in his possession. However, he did not call anyone for help.

His plan was to wait for his friends. He advised that it was his intention to get home that night. He could not remember if he was wearing his seat belt. He conceded that it might have been on. ANALYSIS AND DECISION [ 12 ] In the case of R v Silzer , 2015 SKPC 16 , I also considered whether the accused was in care and control of the vehicle. In that decision, I stated: I have previously written judgments that referred to the three Saskatchewan Court of Appeal decisions on care and control. Those are: R v Brahniuk, 2002 SKCA 104 ; R v Buckingham , 2007 SKCA 32 ; and R v Shuparski , 2003 SKCA 22 .

More recently, the Supreme Court of Canada issued its judgment in R v Boudreault , 2012 SCC 56 . In my view, the following principles can be distilled from those cases: 1. Pursuant to s. 258(1) of the Criminal Code , where it is proved that the accused occupied the seat or position ordinarily occupied by the vehicle operator, there is a rebuttable presumption that the accused was in care and control of the vehicle. 2. The accused may rebut this presumption by providing evidence that he did not occupy the driver’s seat or position for the purpose of setting the vehicle in motion. 3.

If the accused provides evidence to rebut this presumption, the Court must then decide if the accused remains in de facto care and control of the vehicle. If not, then the accused has successfully rebutted the presumption and must be acquitted. If however, there was a realistic danger of the use of the fittings or the vehicle itself then the Court will conclude that the accused is in de facto care and control and will convict. 4.

Each of these cases is very dependent upon its own specific facts. [ 13 ] In preparation for this decision, I also reviewed R v Andersen , 2012 SKCA 37 ; R v Coleman , 2012 SKCA 65 [ Coleman ] and R v Derkson , 2015 SKPC 42 . In my view, these decisions do not alter the legal principles that I have set out above. The differences between these decisions are explicable by the differences in the facts of each case and the factual findings made by the trial judge. [ 14 ] In this case, it is very clear that the accused occupied the seat or position ordinarily occupied by the vehicle operator.

As a result, the Crown was entitled to rely upon the rebuttable presumption that he was in care and control. The accused gave evidence that he did not occupy the driver’s seat for the purpose of setting the vehicle in motion. He gave evidence to rebut the presumption. I accept his evidence, and as a result must determine this case on the basis of whether he was in actual or de facto care and control. [ 15 ] In the Boudreault case, at paragraph 33 and following, the Supreme Court stated that there must be a realistic risk of danger to persons or property by the accused using the vehicle or fittings of the vehicle.

The Court stated that this risk must be more than just a theoretical possibility. However, the risk need not be “probable, or even serious or substantial”. At paragraph 48, it elaborated and further defined realistic risk as follows: I need hardly reiterate that “realistic risk” is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion.

To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. [ 16 ] The Court also noted at paragraph 45: As I mentioned at the outset, anyone found inebriated and behind the wheel with a present ability to drive will - and should - almost

invariably be convicted. [ 17 ] In my view, in this case, there was more than a realistic danger that the accused could set this vehicle in motion creating a danger to life or property. As a result, I must determine that he was in de facto care and control of the vehicle. The threshold, as noted is low. It includes accidentally setting the vehicle in motion. I note there was evidence that the accused accidentally stepped on the accelerator, temporarily causing the motor to increase its RPMs.

The accused testified that this was accidental, and would not have happened but for his drunkenness. [ 18 ] The accused testified that he did not intend to drive the vehicle, and had in fact made a plan with Mr. Zymberi for Mr. Zymberi to drive the vehicle home. However, I note that part of that very same plan was to place the keys in the hands of Mr. Zymberi so that the accused could not drive home. During the course of the evening, the accused and Mr. Zymberi changed that plan, put the keys back in the hands of the accused, and put the accused in his vehicle with the motor running.

In my view, there was more than a realistic danger that the plan would further change and the accused might awaken and decide to drive home. In the Coleman case, the Court of Appeal stated at paragraph 24 that the possibility of an impaired driver changing his mind and intentionally driving was properly considered by the Court in determining there was a realistic danger of the vehicle being set in motion. [ 19 ] I also note that the accused had no clear idea as to how long he had been in his vehicle and asleep prior to the arrival of the police officers. There was no evidence presented of Mr.

Zymberi or the accused’s other friends returning to the vehicle at any time. In my view, the realistic danger that the vehicle would be set in motion increased with the passage of time. As time passed, the danger increased that he would awaken, and want to get home and might set the vehicle in motion. [ 20 ] In the Derkson case, his Honour Judge Kalmakoff set out a number of factors that courts have examined to determine if there was a realistic risk the vehicle would be set in motion. One factor often considered is whether the keys were in the ignition and whether the engine was running.

The keys not being in the ignition and the engine not running seem to be important in the Court entering an acquittal in the Shurparski case. On a number of other occasions, when the keys were in the ignition and the engine was running, I have quoted from paragraphs 21 and 23 of the Buckingham decision. That quote is as follows: Nonetheless, it is my respectful view that the trial judge paid too little attention to the fact that the respondent had started the engine and, indeed, was exerting pressure on the accelerator to rev it when he was discovered.

This was a significant use of the vehicle’s fittings and equipment by an individual in a highly intoxicated state, and one that necessarily enhanced both the risk that the vehicle could inadvertently be set in motion, and the risk that if he awoke, he might intentionally set the vehicle in motion, given his intoxicated state. However small those risks were, they were not negligible, and the realization of those risks was considerably more likely as a result of the motor being activated than it would otherwise have been. It is just this creation of risk that s. 253 of the Code is intended to address. ...

I do not think it is possible to say absolutely, as Crown counsel urged, that turning on the car engine ipso facto amounts to care and control. In the instant case, however, the vehicle was in a public parking lot and was not disabled in any way. [ 21 ] Despite all of the care and control cases that have been heard and determined since the Buckingham case, it remains good law. The above mentioned passage is entirely applicable to this case. [ 22 ] For all of the above mentioned reasons, I conclude that the accused was in care and control of the motor vehicle. He was clearly impaired.

He must be found guilty of the charge. [ 23 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan this 29 th day of June 2015.

D. Kovatch, J