Her Majesty the Queen - v. -, 2012 SKPC 13

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 013 Date: January 10, 2012 Information : 24403086 Location: Indian Head _____________________________________________________________________________ Between: Her Majesty the Queen - and - Elvis Hotomanie Appearing: Erin L. Schroh For the Crown Jill McMahon For the Accused JUDGMENT M.

HINDS , J BACKGROUND [ 1 ] On May 3, 2011 at Sintaluta, Saskatchewan, Elvis Hotomanie was charged with the following offence: (1) having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood did unlawfully have care and control of a motor vehicle contrary to section 253(1) (

b) of the Criminal Code .

[ 2 ] The matter proceeded to trial. Constable Chorney was the sole witness called by the Crown. Elvis Hotomanie, his sister- in- law, Donalda Hotomanie, and her niece, Tiffany Hotomanie, testified for the defence. It was common ground that the presumption of care or control as set out in s. 258(1) (

a) of the Criminal Code applied. The two questions left for the Court to determine were whether the evidence rebutted that presumption and if it did, whether the evidence established that the accused had de facto care or control. EVIDENCE Constable Chorney [ 3 ] Constable Chorney is a seven year member of the R.C.M.P. She is posted to the detachment at Indian Head. On May 3, 2011, she was on patrol duty. Cst. Chorney received a call from dispatch just before 6:00 p.m. advising of a driver situated in a truck near the bar at Sintaluta, Saskatchewan.

She arrived in Sintaluta a short time later and observed the accused, Elvis Hotomanie sitting in the drivers seat of a truck parked nearby the bar. She also observed a male passenger named Morris Grey in the front passenger seat and Mr. Hotomanie’s wife situated in the back seat of the truck. [ 4 ] Constable Chorney approached the truck and spoke to Elvis Hotomanie. Cst. Chorney smelled the odour of beverage alcohol on Mr. Hotomanies breath and testified that Mr. Hotomanie’s speech seemed to be slurred.

She also observed that keys were in the ignition, however, was unable to recall if the engine of the truck was running. She acknowledged on cross-examination that she did not attempt to see if the keys in the ignition actually worked. Cst. Chorney asked Mr. Hotomanie to get out of the truck and come to her police vehicle where they could do some more talking. Cst. Chorney observed that Mr. Hotomanie stumbled a bit when he got out of the truck and was swaying a little as he walked to the patrol vehicle. After observing Mr Hotomanie for 5 to 10 minutes Cst. Chorney concluded that Mr.

Hotomanie was intoxicated and arrested him for impaired driving around 6:10 p.m. Cst. Chorney also demanded that Mr. Hotomanie provide samples of his breath at 6:12 p.m. and read him his rights and warnings. Cst. Chorney put Mr. Hotomanie in the care of Cst. Hickie who subsequently transported Mr. Hotomanie from Sintaluta to Indian Head, where samples of Mr. Hotomanie’s breath were obtained. [ 5 ] Cst. Chorney testified that while Mr. Hotomanie did not give her any trouble that evening, she had some difficulties understanding Mr. Hotomanie.

Elvis Hotomanie [ 6 ] Elvis Hotomanie lives on Carry the Kettle First Nation. He is an older man who suffers from pain in his shoulder area. He takes prescription medications including hydromorphine and valium for this condition. Between 9:00 p.m. on the evening of May 2, 2011 and 6:00 a.m. on May 3, 2011, Mr. Hotomanie testified that he was drinking alcohol with his son, who had returned home from being in the army. Mr. Hotomanie then went to sleep and got up later on May 3, 2011. [ 7 ] On May 3, 2011, Mr.

Hotomanie wanted to go into Sintaluta to get his mail, however, he decided against driving to town as he had previously consumed alcohol and his prescription medications. Later that day Mr. Hotomanie’s brother- in-law, Morris Grey, came to his home. Mr. Grey drove Mr. Hotomanie and his wife into Sintaluta. Mr. Grey parked his Silverado truck in front of the liquor board store. Mr. Hotomanie testified that he and his wife got out of the truck and checked on their mail at the post office. Prior to going to the post office, Mr. Grey asked Mr.

Hotomanie to check his mail box and gave him a leather case with a key to his mail box and a key to another truck on it. Mr. Hotomanie and his wife returned to the Silverado truck about 15 minutes later and observed that Mr Grey was passed out in the driver’s seat of his truck. They did not observe the key to the Silverado in the ignition. [ 8 ] Mr. Hotomanie shook Mr. Grey and attempted to wake him up. Mr. Grey briefly responded. Mr. Hotomanie observed Mr. Grey get out of the driver’s seat, walk around the front of the Silverado truck and get back in the truck, in the front passenger’s seat.

Mr. Hotomanie tried to wake Mr. Grey up again, but was unsuccessful. While he was attempting to wake Mr. Grey, Mr. Hotomanie saw a man he knew by the name of Shane Thompson by the liquor store. Mr. Hotomanie asked Mr. Thompson to telephone his brother, Errol at Carry the Kettle First Nation, to come into Sintalulta and get him. Mr. Thompson said “Ok” and walked on. Donalda Hotomanie [ 9 ] Donalda Hotomanie lives on Carry the Kettle First Nation with her husband Errol.

She testified that she was at home on May 3, 2011 and received a telephone call from Shane Thompson who said that her brother- in- law, Elvis Hotomanie, was in Sintaluta and wanted Errol to come and pick him up. Donalda testified that Errol was not home and that she told Mr. Thompson she could not come to town to pick up Elvis Hotomanie. A short time later she changed her mind and drove her vehicle into Sintaluta accompanied by her son and two of his friends. When she got to Sintaluta she saw and spoke to Elvis Hotomanie.

She told Elvis Hotomanie that her car was full but that she would get her niece, Tiffany Hotomanie, who lived in Sintaluta, to give him a ride home. Donalda Hotomanie testified that when she spoke to Elvis he was in the Silverado truck, however, the truck’s engine was not running. Donalda then went to Tiffany’s home and got her to accompany her back to the Silverado truck. When Donalda returned to the Silverado truck she observed that Elvis was inside the R.C.M.P. vehicle and that Mr.

Grey and Kerry Degan remained in the Silverado. [ 10 ] Donalda testified that one of the officers on the scene asked if she and Tiffany had driver’s licences. They told the officer that they did . The officer then gave Tiffany some keys. Donalda observed Tiffany get into the drivers seat of the Silverado and attempt to put the key she had been given into the ignition. Donalda further testified that while the key would go into the ignition of the Silverado, it would not turn. As a result the engine would not start. Donalda then observed Mr.

Grey to be swearing to himself and then he gave Tiffany some other keys which worked in the ignition and started the Silverado. Tiffany drove the Silverado with Mr .Grey and Ms. Degan in it to her home in Sintaluta and went into her house. Tiffany Hotomanie [ 11 ] Tiffany Hotomanie confirmed that her aunt, Donalda, came to her home in Sintaluta and asked her to drive Elvis Hotomanie and Morris Grey to Carry the Kettle First Nation. She initially agreed to do this. Tiffany accompanied Donalda back to the Silverado truck parked near the liquor board store. Tiffany saw a police vehicle parked behind Mr Grey’s truck.

She also observed that Mr. Grey and Ms. Degan were in the Silverado. Tiffany then got out of Donalda’s vehicle and walked up to Mr. Grey’s truck. She testified that a police officer asked her if she had a licence and whether she could drive Mr. Grey’s vehicle. The officer gave her some keys. She then recalled that Mr. Grey began swearing at her as she attempted to start the Silverado. She heard Mr. Grey say, “you are going to break my keys.” Mr. Grey then searched his own pockets and located two keys on a fob which he gave to Tiffany. Tiffany was able to start the Silverado with this set of keys.

She drove the Silverado to her house. She was unwilling to drive Mr. Grey to Carry the Kettle as he did not agree to give her $10.00. DEFENCE POSITION [ 12 ] Counsel for the accused argues that the presumption of care or control has been rebutted. The defence contends Mr. Hotomanie gave credible evidence, that at all times the engine of the Silverado truck was running and could be set in motion. He was a passenger, not the driver of the truck.

The defence contends that when Mr Hotomanie was seated in the driver’s seat of the Silverado truck the proper key for the ignition was on the person of the registered owner of the truck, Mr. Grey, who was occupying the front passenger seat of the truck. Moreover, the defence takes the position that at no time did Mr. Hotomanie occupy the driver’s seat for the purpose of setting the truck in motion. CROWN POSITION [ 13 ] The Crown argues that the presumption of care or control has not been rebutted. In the alternative the Crown argues the circumstances show de facto care or control. THE LAW AND APPLICATION (

i) Does the evidence rebut the presumption set out in s. 258(1) (a)? [ 14 ]

Section 258 of the Criminal Code reads, in part, as follows:

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

section 253 ... (

a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, ... theaccused shall be deemed to have had the care or control of the vehicle ... unless the accused establishes that the accused did not occupythat seat or position for the purpose of setting the vehicle ... in motion ... [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. [16] In this case the accused gave his evidence in a straight forward credible manner. Mr.

Hotomanie knew he was in no conditionto drive a motor vehicle that day. As a result he avoided driving that day and made several efforts to obtain a ride to and from Sintaluta. When he was given the leather key holder from Mr. Grey he knew it contained a mail box key and a key to a different vehicle owned byMr. Grey. Upon his return to the Silverado truck he found Mr. Grey passed out in the driver’s seat and attempted to rouse him. Mr.Grey was roused briefly. Mr. Grey relocated himself to the passenger seat of the truck. Mr .Grey had the key to the Silverado on a fob. Mr.

Hotomanie sought Shane Thompson’s assistance to make contact with his brother to provide him a ride back to Carry the Kettle FirstNation. In addition, Mr. Hotomanie made no attempt to start the Silverado or put it in motion. Rather, he placed a key from Mr.Hotomanie’s leather key set in the ignition of the Silverado. I accept his evidence, that he knew this key would not start the Silveradotruck. Rather, his purpose in placing it in the ignition of the Silverado was to ensure Mr. Grey found the two keys from the leather keyset. [17] Mr.

Hotomanie’s evidence respecting the non functional key found in the ignition is supported by other witnesses. While Cst.Chorney observed that a key was in the ignition of the Silverado, she was unable to recall if the engine of the truck was running. Shealso acknowledged on cross- examination that she did not attempt to see if the keys in the ignition actually worked. [18] When Donalda Hotomanie and her niece Tiffany arrived at the scene in Sintaluta, she testified that one of the officers on thescene asked if she and Tiffany had driver’s licences. They told the officer that they did .

Donalda observed the officer give Tiffanythe key obtained from the ignition of the Silverado . Donalda observed Tiffany get into the driver’s seat of the Silverado and attempt toput the key she had been given into the ignition. Donalda further testified that while the key would go into the ignition of theSilverado, it would not turn. As a result the engine would not start. Donalda then observed Mr. Grey to be swearing to himself and thenhe gave Tiffany some other keys which worked in the ignition and started the Silverado. [19] Tiffany Hotomanie’s evidence corroborates her aunt’s evidence.

Importantly, she recalled that Mr. Grey began swearing ather as she attempted to start the Silverado with the key she had been given. She heard Mr. Grey say, “you are going to break my keys.” Mr. Grey then searched his own pockets and located two keys on a fob which he gave to Tiffany. Tiffany was able to start the Silveradowith this different set of keys.

She drove the Silverado to her house. [20] Given the foregoing, I am of the view that the accused has established, on a balance of probabilities, that he did not occupythe driver’s seat or position for the purpose of setting the vehicle in motion and has rebutted the presumption set out in section 258(1)(a)of the Criminal Code. [21] The evidence reveals that Mr. Hotomanie took active steps to avoid driving or taking care or control of a motor vehicle onMay 3, 2011. I accept Mr. Hotomanie’s evidence that at no time did he possess the actual key that would start the truck.

That key,located on a fob, was at all times on the person of Mr. Grey up to the time he surrendered the Silverado key to Tiffany Hotomanie whothen was able to start and operate the Silverado. In this case, I am left with a reasonable doubt that at any time Mr. Hotomanie haddefacto care or control of the Silverado. CONCLUSION [22] I find Elvis Hotomanie to be not guilty of the charge before the court.

________________________________ M.J. Hinds, J