2013 QCCQ 494, 2013 QCCQ 494

R. c. Tremblay 2013 QCCQ 494 JD 2679 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF CHICOUTIMI "Criminal and Penal Division" No.: 150-01-032506-116 DATE: January 23, 2013 ______________________________________________________________________ THE HONOURABLE RICHARD P. DAOUST, J.C.Q., PRESIDING ______________________________________________________________________ THE QUEEN Prosecutrix v.

MARIO TREMBLAY Accused ______________________________________________________________________ VERDICT ______________________________________________________________________ [ 1 ] Tremblay is charged with having, on March 3, 2011, had the care of control of his motor vehicle while his capacity to operate the said vehicle was impaired by alcohol or a drug. [ 2 ] The prosecution filed its evidence as exhibits P-1 and P-2, namely, the police officers' reports and the statement of the civilian witness, André Caron, as testimony. [ 3 ] The identification of the accused is admitted by the defence, as is the fact that, on March 3, 2011, the accused did not have the capacity to operate his vehicle and that he was impaired. [ 4 ] It is also admitted that the statement made to the police officers was spontaneous, free, and voluntary. [ 5 ] The accused testified, as did his father, Laurent Tremblay. [ 6 ] Two questions are raised in this case: [ 7 ] 1.

Since, at the time of the incident, the accused was sleeping in the seat ordinarily occupied by the person driving the motor vehicle and he is therefore deemed to have had care and control, has the defence rebutted this presumption by establishing that he did not occupy this seat for the purpose of setting the vehicle in motion, pursuant to paragraph 258(1) (

a) of the Criminal Code . [ 8 ] 2. If the defence successfully rebuts this presumption, are the mens rea and the actus reus of having care and control of a motor vehicle within the meaning of subsection 253(1) of the Criminal Code proved beyond a reasonable doubt? THE FACTS [ 9 ] The Court refers to the

summary of the facts prepared by the prosecution and filed with its written submissions: [ translation ] On the morning of March 3, 2011, police officers responded to a call received around 5:41 a.m. from a citizen alleging that an individual had been sleeping for several minutes in a pick-up type vehicle in the McDonald's parking lot on Ste-Geneviève Boulevard in

Chicoutimi-Nord. When they arrived at the scene around 5:50 a.m., the police officers observed the presence of a GMC Sierra pick-up parked on the west side of the McDonald's parking lot, slightly obstructing access to the said parking lot. At the site, a witness, André Caron, confirmed that this was the vehicle in question. The motor of the vehicle was running, and when Officer Dany Doucet approached the door on the driver's side, he observed a man sitting in the seat behind the wheel, sleeping with his head back and his mouth wide open, white spittle lining the corners of his mouth.

The police officer then observed that the key to the vehicle was in the ignition and that the transmission was on P (Park). Officer Doucet knocked on the window to wake up the individual, who was alone in the GMC truck. The man woke up quickly and opened his eyes, which the police officer was able to observe were very red. The man, later identified as Mario Tremblay (1989 – ...), hereinafter the accused, then tried to open the front window and accidentally opened the back left window instead.

Once the front window was open, the police officer detected an odour of alcohol coming from the accused's mouth when the latter asked him why the police officer was there. Tremblay then exited his vehicle and it was observed that his body was swaying. At 5:52 a.m., Officer Doucet arrested the accused for care and control of a motor vehicle while impaired by alcohol and read him his rights. The police officer then ordered him to follow him to the police station to provide him with a breath sample.

The accused then made the following statement to the police: Yes, when I went to sleep in my pick-up I was drunk, in the worst-case scenario, I would have gone home and you'd never have caught me, some people were supposed to come and get me but they never did. I slept in my pick-up because I didn't want to drive, and I let it run because it was cold, I didn't want to freeze . In his defence, the accused testified that he had spent the evening at the Bistrot du Fjord with a friend and that they had had a few drinks.

When the bar closed, his friend's spouse came to get them and drove Tremblay to his vehicle, which was parked in the McDonald's parking lot in Chicoutimi-Nord. The accused says that he then contacted his father, Laurent Tremblay, so that he could come and get him because he knew he was in no state to drive the said vehicle. Even though the restaurant was open 24 hours, the accused decided to sit inside his vehicle instead of the restaurant to wait for his father, who had told him he would pick him up around 6:00 a.m.

Because of the temperature outside, Mario Tremblay started the vehicle so that he could turn the heater on. As noted above, the police officers arrived on the scene later and, after making their observations, proceeded with Mario Tremblay's arrest. The accused's father, Laurent Tremblay, testified at trial that he did in fact go to the said restaurant around 6:15 a.m. and saw that no one was there. Laurent Tremblay also confirmed that his son had called and asked him to pick him up at the McDonald's parking lot.

It is relevant to note that, at trial, the defence admitted not only the identification of the accused but also the fact that the accused was in no state to be driving his vehicle. [ 10 ] To this

summary of the facts, the Court adds four points: [ 11 ] - In his statement to the police, the accused said, among other things: [ translation ] "Some people were supposed to come and get me but they never did." The accused explains that, when he woke up, he did not know what time the police had arrived and concluded as he did because his father was not yet there.

He did not know that his father would arrive at 6:15 a.m. - In his testimony, Laurent Tremblay, who did not attend the beginning of the trial, testified that he had told his son that he would pick him up around 6:00 or 6:15 a.m. and indeed, he arrived at 6:15 a.m. The police had just left. - The accused explained why he believed that the police said that his vehicle was obstructing the area. It may be that a plough had cleared the snow away and that his vehicle seemed to be a little bit in the way, although it did not prevent anyone from driving by.

In this respect, he also states that, when he returned after the bar closed, he preferred to leave his car where it was instead of moving it because he did not have the right to. - Regarding the fact that the accused had asked the police officers to give him a break in his statement, the accused said the following at trial: [ translation ] "It's written in the report that I said, "can you give me a break, you know, at worst, wait with me for my father," I knew he was coming." [1] This occurred well after he woke up. ANALYSIS [ 12 ] 1.

Since, at the time of the events, the accused was sleeping in the seat ordinarily occupied by the person driving the motor vehicle and he is therefore deemed to have had care and control, has the defence rebutted this presumption by establishing that he did not occupy this seat for the purpose of setting the vehicle in motion, pursuant to paragraph 258(1) (

a) of the Criminal

Code . [ 13 ] Tremblay left his vehicle in the McDonald's parking lot and was driven to the Bistrot du Fjord, knowing that he was going to drink alcohol. After the bar closed, it was his friend's spouse, who had been called for this specific purpose, who drove the accused from the Bistrot du Fjord to the McDonald's restaurant. He then called his father to come and get him. His father agreed, and even arrived there after the police did. [ 14 ] The statement the accused made to the police officers and adduced by the prosecution also indicates that Tremblay's intent was not to drive the vehicle.

When he sat in his car and turned the motor on, he was warming himself up as he waited for his father to pick him up. [ 15 ] The accused has discharged his burden of proving that he was not occupying the driver's seat for the purpose of setting the vehicle in motion. [ 16 ] 2. If the defence successfully rebuts this presumption, are the mens rea and the actus reus of the care and control of a motor vehicle within the meaning of section 253(1) of the Criminal Code proved beyond a reasonable doubt? [ 17 ] With respect to the application of

section 258, while the intention to drive is important to rebut the presumption, it is of no use in determining whether the accused had care and control of his motor vehicle. [ 18 ] To have care and control within the meaning of section 253(1) , the prosecution must prove the following elements beyond any reasonable doubt: [ 19 ] 1. an intentional course of conduct associated with a motor vehicle; 2. by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; 3. in circumstances that create a realistic risk of danger to persons or property. [ 20 ] There is no doubt that the first two conditions are met.

The accused intentionally sat in the driver's seat and he deliberately started the motor to heat the inside of the vehicle. It is also admitted that he did not have the capacity to drive because his ability was impaired by alcohol. [ 21 ] With respect to the third criterion, the risk of danger must be realistic, not merely theoretically possible. [ 22 ] As the Supreme Court said in Boudreault , [2] Parliament's objective in enacting

section 253 of the Criminal Code was to prevent the risk of danger to public safety that normally arises from the mere combination of alcohol and automobile.

Conduct that presents no such risk falls outside the intended reach of the offence. [ 23 ] Whether or not a realistic risk of danger exists is a matter of fact that is normally the only reasonable inference where the Crown establishes impairment and a preset ability to set the vehicle in motion. [ 24 ] To avoid conviction, the accused must adduce evidence tending to prove that no realistic risk of danger existed. [ 25 ] The trial judge must examine all of the relevant evidence and may consider a number of factors, including whether the accused took care to arrange an alternate plan to ensure his safe transportation home. [ 26 ] In this case, certain elements clearly indicate that no risk of the accused setting the vehicle in motion existed because, inter alia, of the existence of a credible and concrete alternate plan that materialized on the day of the incident. [ 27 ] In finding that no realistic risk existed, the Court considers the following specific elements: - The death of Normand Tremblay, the uncle of the accused, that Laurent Tremblay's family followed a clear rule: [3] Call your parents when you have been drinking so that they can come and get you . - The spontaneous statement filed into evidence by the prosecution is entirely consistent with the plan that has been proved and that materialized; - Laurent Tremblay confirms that he received the call around 4:30 a.m.; - Laurent Tremblay testifies that he went to the location around 6:15 a.m., after his son had been arrested and the vehicle was gone; - Laurent Tremblay's work schedule, which began at 7:00 a.m. at the Miobec mine, was consistent with the time he planned to pick up his son; - Laurent Tremblay had gone to pick up his son or his daughter in similar circumstances on a few prior occasions; - The accused's father would have been the third person that night to give the accused a lift somewhere so that he would not use his car; - The police officers must have left just before Laurent Tremblay arrived, since the accused used the facilities at the McDonald's restaurant at 6:08 a.m. and the police officers arrived at the Arvida police headquarters at 6:25 a.m; - Laurent Tremblay needed his car to go to work in the morning, and the accused was aware that he did not have the ability to drive his

own vehicle; - The accused lives with his parents; - The temperature was around -30 O C and the accused was wearing only sneakers, dress pants, a t-shirt, and a windbreaker, with no hat or mittens. This explains why the accused turned the motor on to warm up as he waited for the specific plan that he had made to materialize; [ 28 ] Beyond intention, there were all of the specific and credible measures that the accused had put into place that ruled out any realistic risk that he would use the motor vehicle for any other purpose than to warm up.

In fact, there was no realistic risk because concrete, material, and external measures had been put into place and they were coming to be regardless of the accused's intention, since the short time it took for them to be executed and the state of the accused prevented him, for all intents and purposes, from changing his mind. In this case, the testimony of Laurent Tremblay places the story in its full context, from beginning to end.

There is no doubt that the plan materialized. [ 29 ] Moreover, although as in Boudreault , supra , the prosecution made no allegation that the vehicle could be set in motion involuntarily, this possibility was highly unlikely.

The vehicle was an automatic, its gear shift was on the steering wheel, its front seat was a little lowered for comfort, and it was in a level parking lot. [ 30 ] Therefore, in the absence of a realistic risk of danger, one of the elements of the actus reus has not been proved and Tremblay should be acquitted. [ 31 ] FOR THESE REASONS, THE COURT: [ 32 ] RENDERS a verdict of acquittal. __________________________________ RICHARD P. DAOUST Judge of the Court of Quebec Mtre Karen Inkel For the prosecutrix Mre Jean-Marc Fradette For the respondent