Her Majesty the Queen - v. -, 2012 SKPC 037

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 037 Date: February 28, 2012 Information: 24415250 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Chad Michael Stefanski Appearing: J. Claxton-Viczko For the Crown A. Pandila, Q.C. For the Accused JUDGMENT H. M. HARRADENCE, J I. INTRODUCTION [ 1 ] The accused is charged as follows: Count#1: did, while his ability to operate a motor vehicle was impaired by alcohol or a drug, did have the care or control of a motor vehicle contrary to section 253(1) (

a) and section 255(1) of the Criminal Code .

Count#2: did having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, did have the care or control of a motor vehicle, contrary to section 253(1) (

b) and section 255(1) of the Criminal Code . [ 2 ] As concisely stated by counsel, the only issue to be decided is whether I am satisfied that the accused was in care and control of a motor vehicle at the time of his detention and arrest. [ 3 ] In the presentation of the evidence counsel focused on this issue, so the evidence is straightforward and largely uncontested. II. THE FACTS [ 4 ] Cst. Leblond was the only witness called by the Crown. He testified that on July 9, 2011, he attended a house party north of Prince Albert as a result of a noise complaint. The time was 1:39 a.m.

On his attendance the constable noted a blue Volkswagen vehicle parked in front of the house. The vehicle’s engine was running. The accused was seated behind the wheel in the driver’s seat. There was a strong smell of marijuana and a smell of alcohol coming from both the vehicle and the accused. There were three occupants of the vehicle. The accused was in the driver’s seat. The individual seated in the passenger seat had a marijuana pipe, or bong as it was referred to by the officer. It was evident that the occupants were smoking marijuana and drinking in the vehicle.

There was no evidence that the vehicle had been moved recently. Given the smell of alcohol, the accused’s red eyes and the accused’s speech, the officer made an Intoxilyzer demand, and arrested the accused. The accused was taken to the RCMP detachment where he blew 120 milligrams in 100 mililitres of blood at 3:12 a.m. and 110 milligrams in 100 mililitres of blood at 3:33 a.m. [ 5 ] The officer agreed in cross-examination that the accused was cooperative throughout. Shortly after the tests were completed the officer released the accused to his father.

While it is apparent that the accused had been drinking and smoking marijuana, and that he blew over the legal limit, there was no evidence that the accused was highly intoxicated. There was also no evidence that the accused was acting inappropriately, other than his speech appeared, to the officer, to be repetitive. Given the evidence before him the officer did form the belief that the accused was in care and control of the vehicle. At the scene the officer attempted to explain the offence of care and control to the accused. [ 6 ] The defence called three witnesses.

The accused testified that he is 20 years old, an apprentice electrician, with no criminal record. On July 8 th he drove to his friend’s house. The house is located in rural Prince Albert. Pictures were filed by the accused and marked as Exhibits D1 and D2. These pictures show the rural nature of the setting where the accused’s car was parked. The accused says that once he started drinking he decided not to drive. He testified as to his adamant practice not to drink and drive. [ 7 ] The accused indicated that as of approximately 9:00 p.m.

July 8 th he had no intention of driving his vehicle and was going to stay the night at his friend’s house. As the evening progressed the accused says he decided to smoke some marijuana. The homeowner, Tyler Hoover, would not permit this in his house and told the accused to either go out to the deck or to the accused’s car. The accused says that he, his brother, and a friend, went to his car at approximately 1:30 a.m. on July 9, 2011. It is apparent that they were only there a short period of time before the officer arrived. The intention of the three was to smoke marijuana in the car, they also took some beer.

The accused admits he started the vehicle in order to turn on the air conditioning and the music. He says the car had a manual transmission and the park brake was on when they entered the vehicle. He says when the officer arrived he was surprised he was arrested and explained to the officer that he had no intention to drive and was going to stay the night at his friend’s house. [ 8 ] Tyler Hoover also testified for the defence. He is aged 21 and has been a friend of the accused his entire life. On July 8 th Tyler Hoover had a BBQ to celebrate his new house.

When his friends started drinking he told them all, and specifically this accused, that they should stay the night. Tyler Hoover also confirmed that he requested that the accused not smoke marijuana in his house. He believes the accused went to his car to smoke marijuana. When the police arrested the accused, Tyler Hoover says he protested saying that the accused was going to spend the night at his home. [ 9 ] The final defence witness was Elizabeth Stefanski, the mother of the accused. She testified that she and her husband always told their children not to drink and drive.

She stated that either she or her husband would pick up their children at any time of the night, or that there was always cab fare left at their house. At the time the accused was charged he was living at his parents’ home in rural Prince Albert, approximately two miles from the Hoover residence. III. ANALYSIS

[10] There are two ways for the Crown to establish care and control. Given this accused was found by the officer occupying thedriver’s seat, the presumption in s. 258(1)(

a) of the Criminal Code must be considered: 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, vesselor aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed tohave had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes thatthe accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion orassisting in the operation of the aircraft or railway equipment, as the case may be. [11] As indicated by His Honour Judge Hinds in R. v.

Hotomanie, the presumption is rebuttable: [15] Section 258(1)(

a) of the Criminal Code deems that a person who occupies the seat normally occupied by the operator of amotor vehicle has the care or control of that motor vehicle. This presumption can be rebutted by evidence, which if accepted, establisheson a balance of probabilities that the accused did not assume that position with the intention of setting the vehicle in motion: see R. v. Ford, [1982] S.C.R. 231 (S.C.C.) at para. 6 and R. v. Shuparski, 2003 SKCA 22 , 2003 SKCA 022 at para. 23.[1] [12] The fact that the presumption is rebutted in the circumstances of this case is not disputed by the Crown. I agree.

Theaccused’s evidence is believable and satisfies me that he did not occupy the driver’s seat with the intention of setting the vehicle inmotion. [13] The contentious question in this case is whether the Crown has proven beyond a reasonable doubt that the accused was in de facto or actual care and control of the vehicle. The Crown refers to R. v. Ford, R. v. Penno, and R. v. Buckingham.[2] The defence refers to R. v. Barlow, R. v. D’Amato, and R. v. Bartlett.[3] From these, and other cases, principles of the offence of care and control can bederived: 1.

Without the presumption, the Crown is required to prove care and control beyond a reasonable doubt.[4] 2. The Crown is not required to prove an intention to set the vehicle in motion.[5] Put another way, “An intention to drive is not an essential element of the offence.”[6] 3. The Court must assess the facts to determine whether the Crown has established that the accused performed, “Some act or series ofacts involving the use of the car, its fittings or equipment…whereby the vehicle may unintentionally be set in motion creating the danger the

section is designed to prevent.”[7] 4. Due to the contextual nature of the assessment, “Circumstances in which acts of care and control may be found will vary widely.”[8] 5. Where the evidence fails to prove a risk of setting the vehicle in motion, “So that it would become dangerous, the Court should find the actus reus was not present.”[9] [14] In this case the accused was not in a “highly intoxicated state” nor was he, “exerting pressure on the accelerator to rev it upwhen he was discovered.” Madam Justice Smith in R. v.

Buckingham, supra, stated the following at paragraph 21: [15] The accused agrees that he started the vehicle in order to turn on the music and air conditioner, as it was a warm evening. Thevehicle had a manual transmission, which was in neutral, and the parking brake was applied. There was no evidence that the accused inany way touched the transmission or parking brake when he entered the vehicle at approximately 1:30 a.m. The evidence leads to the

conclusion that the accused was using the vehicle to smoke marijuana with his brother and a friend, as they could not do this in the house. The vehicle was parked directly in front of the house where this accused intended to spend the night, in a rural, not heavily populated area, as shown in Exhibits D1 and D2.

The evidence of both the accused and his mother is of limited relevance to the assessment of care and control, but it does establish the accused’s practice, [11] relating to drinking and driving, and it demonstrates his awareness of the potential consequences, [12] which I accept. [ 16 ] The use of policy considerations, and evaluating whether the risk created is negligible or not, add a level of analysis to the assessment which, in my view, is unnecessary. As stated in R. v. Ford , [13] and reiterated in R. v.

Toews , the focus of the assessment must be whether the Crown has proven beyond a reasonable doubt, “… acts which involve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous.” [14] [ 17 ] In this case I have indicated that I accept the evidence of the accused. His evidence was straight forward and clear.

This evidence, combined with his level of sobriety on the evening of July 9, 2011, the engaged parking brake, and the location of the vehicle, leave me with a reasonable doubt as to whether the accused was in care and control of the vehicle on July 9, 2011. [ 18 ] The accused is found not guilty. [ 19 ] Dated at the City of Prince Albert, in the Province of Saskatchewan this 28 th day of February, A.D. 2012. ________________________ H. M. Harradence, J [3] R. v. Barlow , 2006 SKQB 220 , R. v. Mark D’Amato , His Honour Judge H. W. Goliath, Prince Albert Provincial Court, June 23, 2011, and R. v.

Bartlett , 2011 SKPC 187 .