Her Majesty the Queen - v. -, 2016 SKPC 44

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 044 Date: March 22, 2016 Information: 24452741 Location: Rosetown _____________________________________________________________________________ Between: Her Majesty the Queen - and - Wesley Renouf Appearing: E. Thompson For the Crown C. Yarshenko For the Accused JUDGMENT R.D.

JACKSON , J I INTRODUCTION [ 1 ] The accused was charged on October 24, 2015 in the Rosetown district with having care or control of his motor vehicle while impaired by alcohol and while his blood alcohol exceeded .08 per cent. [ 2 ] The trial of the matter was heard February 9, 2016 in Rosetown. The Crown called one witness, the arresting officer, Constable Trevor Scott. The Defence called the accused as its sole witness.

[ 3 ] The Certificate of Qualified Technician was admitted by consent as Exhibit P-1, evidencing two readings of 130 milligrams per cent. The presumptions of identity and accuracy were admitted by the Defence. The Crown then stayed count #1 of having care or control of the vehicle while impaired by alcohol. [ 4 ] The triable issues were two fold:

a) Whether the accused, by his evidence, on a balance of probability, rebutted the statutory presumption in s. 258(1) (

a) of the Criminal Code , that he occupied the driver’s seat with the intention of setting the vehicle in motion; and if so,

b) Whether, notwithstanding, the Court is satisfied beyond a reasonable doubt that he was in de facto or actual care or control of the motor vehicle while occupying the driver’s seat. II EVIDENCE OF THE CROWN [ 5 ] RCMP Constable Scott encountered the accused’s vehicle while driving toward it on Highway #4, approximately 8 miles south of Rosetown, shortly after 1:45 a.m. on October 24, 2015.

The vehicle appeared to be oncoming, however, after drawing near, he observed it was actually stationary on the northbound side of the highway, pulled over out of the driving lane. [ 6 ] Constable Scott noted the vehicle to be running with its lights on complemented by an “after market” LED light bar, common to off roading vehicles.

He described this as “quite bright” and noted that it was this light which initially caught his attention some distance away. [ 7 ] The vehicle, a black Dodge pick up truck with Alberta plates, sat at a slight angle with the nose close to the ditch embankment and the rear outside tire up against the white fog line of the highway. The driver was not visible to Constable Scott as he cruised by. [ 8 ] When Constable Scott alighted and approached, he could hear the truck running and he observed the brake lights come on momentarily, which he attributed to be from a brief tap of the brakes.

He observed the driver’s seat to be reclined and that the driver sat up as he approached the driver’s window. He could not recall if he tapped on the window or merely shone his flashlight into the cab. [ 9 ] Upon questioning the driver, identified as the accused, he was told he was returning from Kindersley heading back to his oil rig.

He acknowledged he had taken some back roads coming out at highway #4 where he must have turned left or north towards Rosetown rather than right or southbound toward his job site. [ 10 ] While speaking to the accused, Constable Scott detected a smell of beverage alcohol on his breath and observed red, glassy eyes and a groggy demeanour. The accused further admitted to consuming alcohol earlier in the evening. He was then asked to accompany the officer to his patrol car for purposes of providing an ASD sample.

When the accused turned off his vehicle, Constable Scott noted the key fob to be in his hand. [ 11 ] The ASD was then administered resulting in a fail reading prompting the arrest of the accused for impaired care or control of his motor vehicle. Standard rights and warnings followed and Constable Scott then attended to secure the vehicle. When doing so, he was able to operate the column shift transmission without any difficulty and observed that the parking brake had not been engaged.

[ 12 ] The accused was then transported to the Rosetown detachment where he subsequently provided two suitable samples of his breath on the Intoxilyzer instrument. Following processing, he was driven back by Constable Scott to his vehicle where he was met by two of his fellow employees who then took charge of the vehicle and the accused. III DEFENCE EVIDENCE [ 13 ] The accused testified that he was a drilling supervisor responsible for the coordination of the drilling crew including onsite geologists.

His drilling rig was currently located south of Elrose and was in the process of dismantling and moving which, he stated, was a frequent occurrence in their business. [ 14 ] On the evening of October 23 he had made the approximate 150 kilometre trip to Kindersley to have dinner with other fellow drilling supervisors and employees. He expected that he would consume alcohol with his meal. He estimated he consumed three glasses of Budweiser beer from a pitcher and drank one extra bottle of beer.

He then left the restaurant at approximately 11:15 p.m. to return to his work site, stopping at a local bar to purchase six off sale beer for the next day. He denied consuming any alcohol while driving back. [ 15 ] His return trip took him east on highway #7, then south on highway #30 near Eston where he turned east to highway #4. Upon arriving at highway #4 he made the erroneous turn north instead of the opposite direction toward the location of his drilling rig. He was emotionally distraught at this time he stated because he had been arguing with his wife on his mobile phone.

The discussion had centred around her suspected cocaine use and infidelity which had greatly upset him, particularly because they had an 8 year old son at home. [ 16 ] The accused stated he pulled over on the side of highway #4 to continue his conversation. The call took approximately 30 minutes and after disconnecting he consumed four beer in rapid succession lasting about 15 minutes in total. Realizing he was probably over the legal limit he made the decision to stop driving any further. [ 17 ] He stated he was very upset and was crying because nothing had been resolved with his wife.

He then reclined the driver’s seat to sleep and left the vehicle running for warmth, the outside temperature being approximately 10 degrees. He also left the light bar on and didn’t attempt to turn off any other lights so his vehicle could be readily seen by other drivers. [ 18 ] The accused testified that his plan was to sleep until 5:00 a.m. and then call a couple of his employees to come and pick him up which they had done in past. He would have called them earlier to come but he was angry, upset and had been crying and he didn’t want his crew members to know he was in this condition.

He then set his mobile alarm to 6:00 but stated he woke up in any event at 5:00 a.m. every day. Prior to going to sleep, he sat in the vehicle for approximately 15 minutes having a cigarette. [ 19 ] The accused testified that, in his view, there was no prospect that he could have inadvertently put the truck in motion as he could not reach the column shifter in a reclined position.

He acknowledged he could have kicked the brake while he was moving around. [ 20 ] In cross-examination the accused admitted that he had to be back at his rig no later than 5:30 a.m. in order to file his daily site report to his company by 6:00 a.m. He acknowledged telling the RCMP officer earlier in the evening that he had to be back at this time or lose his job - he had no other option. [ 21 ] He further testified that he was surprised that he was pointed toward Rosetown and he didn’t know precisely where he was.

He allowed that it would have been better to contact his employees earlier rather than later since they would have to travel from the oil rig to retrieve him. Further, he had communicated with them by text on previous occasions which he could have done at this time rather than phoning in an emotional state.

IV DECISION [22] Since the accused was found in the seat ordinarily occupied by the driver, he is deemed to have had care or control of the vehicle unless he can establish that, on a balance of probability, he did not occupy the seat for the purpose of setting it in motion.[1] [23] If the accused is not able to rebut this presumption, the inquiry ends there and the Crown can simply rely upon this statutoryshortcut to prove this element of the offence.

However, if the presumption is rebutted, the Court must then consider whether the Crownhas proved beyond a reasonable doubt that the accused was in actual, or de facto, care or control at the time. Rebutting the Presumption [24] Has the accused then rebutted the presumption in s. 258(1)(a)? On the evidence presented, the Court is satisfied that he has. He made a conscious decision to pull over to the side albeit in a slightly angled manner. He testified he thought the truck was square andthe evidence supports it was nearly so.

Further, he recognized he had consumed to probable excess and thereafter reclined his seat forthe purpose of sleeping. To keep the vehicle running at this time of year for purposes of warmth is consistent with this purpose. Therefore, in all respects, he probably intended to do as he said i.e. to get some sleep rather than to continue on. Actual Care or Control [25] The Supreme Court in R v Boudreault [2012] 3SCR 157, 2012 SCC 56 has now succinctly defined the elements ofcare or control, as articulated by Mr.

Justice Fish at para 9 of the decision: [9] For the reasons that follow, I have concluded that “care or control”, within the meaning of s. 253(1) of the Criminal Code, signifies(1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose bloodalcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger topersons or property. [26] The facts of Boudreault bear some similarity to the present case.

Boudreault realised after a night of drinking that he was notin a condition to drive his truck home so a taxi was called for him. He then entered his truck to wait, turned it on for heat, and fell asleepin the driver’s seat. The taxi operator upon encountering Mr.

Boudreault immediately telephoned the police and he was subsequentlycharged with care or control of his vehicle while his ability to do so was impaired by alcohol. [27] The accused was acquitted at trial on the basis that the judge found as a fact that in these circumstances, the essential elementof risk of danger had not been proven, leading ultimately to the adjudication in the Supreme Court. [28] The Court must now parse the three criteria laid down by Mr. Justice Fish to establish care or control against the evidencepresented to the Court.

That the accused embarked upon an intentional course of conduct with his vehicle when his ability was impairedby alcohol has been established beyond doubt. The focus then turns to whether, in the circumstances of this case, a “realistic risk” ofdanger to persons or property was created, as opposed to a “remote possibility” of same. [29] The concept of “realistic risk” of danger was discussed at length in Boudreault by Mr. Justice Fish at paras 42 - 53 inclusive: [42] In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways.

First, aninebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so;second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad

judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property. [43] The only risk of danger alleged by the Crown in this case was that Mr. Boudreault would, at some point, set his vehicle in motionintentionally. [44] The Crown contends that a risk of danger is not an essential element of care or control under s. 253(1) of the Code. It submits that,even where the presumption of care or control under s. 258(1)(

a) is not engaged, the Crown need only prove voluntary consumption ofalcohol beyond the legal limit (or leading to impairment) and “some use of the car or its fittings and equipment” (R.F., at para. 32, citingToews, at p. 126). Accordingly, in the Crown’s submission, an inebriated accused found behind the wheel of a car, with the key in theignition and the motor running, is subject to automatic conviction. [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.

It hardly follows, however, that a conviction in these circumstances is, or should be, “automatic”. Aconviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case. [46] The care or control offence captures a wide ambit of dangerous conduct: Anyone who is intoxicated and in a position toimmediately set the vehicle in motion faces conviction on those facts alone. [47] Parliament, in its wisdom, has until now seen fit to create only one reverse onus in the context of the care and control offence.

It isfound in s. 258 of the Code and is not in issue on this appeal. Any other reversal of the burden of proof
for example, as to theexistence of a realistic risk of danger to persons or property
is a matter for Parliament and not for the courts. And it would be subject,of course, to constitutional scrutiny under the Canadian Charter of Rights and Freedoms. [48] I need hardly reiterate that “realistic risk” is a low threshold and, in the absence of evidence to the contrary, will normally be theonly reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion.

To avoidconviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that norealistic risk of danger existed in the particular circumstances of the case. [49] The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account ofits location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger. Likewise, use of the vehicle for amanifestly innocent purpose should not attract the stigma of a criminal conviction.

As Lamer C.J. observed in Penno, “The law . . . isnot deprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to drive is impaired ina motor vehicle” (p. 877). [50] The existence or not of a realistic risk of danger is a finding of fact: see R. v. Lockerby, 1999 NSCA 122 , 180 N.S.R. (2d)115, at para. 13; Smits, at para. 61. The trial judge must examine all of the relevant evidence to this end and may consider a number offactors: see, e.g., R. v. Szymanski (2009), (ON SC), 88 M.V.R. (5th) 182 (Ont. S.C.J.), at para. 93, per Durno J.; R.v.

Ross, 2007 ONCJ 59 , 44 M.V.R. (5th) 275, at para. 14, per Duncan J. [51] One of the factors of particular relevance in this case is that the accused took care to arrange what some courts have called an“alternate plan” to ensure his safe transportation home. [52] The impact of an “alternate plan” of this sort on the court’s assessment of the risk of danger depends on two considerations: first,whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused.

A plan mayseem watertight, but the accused’s level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic riskthat the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed thatthe actions of the accused when behind the wheel will accord with his or her intentions either then or afterward. [53] For example, even where it is certain that the taxi will show up at some point, if the accused occupied the driver’s seat without a

valid excuse or reasonable explanation, this alone may persuade the judge that “his judgment [was] so impaired that he [could not] foresee the possible consequences of his actions”: Toews, at p. 126, again citing Price, at p. 384. The converse, however, is not necessarily true.

Even where it is probable that the taxi will appear at some point and the accused occupied the driver’s seat with a valid excuse or reasonable explanation, the trial judge may nonetheless be satisfied beyond a reasonable doubt that there remained a realistic risk of danger in the circumstances. [ 30 ] As para 42 points out, absent a contemporaneous intent to drive (not the case here on the facts), a realistic risk of danger can arise in one of three ways (paraphrasing) by waking up and changing one’s mind not to drive, unintentionally setting the vehicle in motion and finally, the vehicle creating a risk of danger in its stationary position.

The Court will deal with the latter two first and then return to the “change of mind” scenario as this encompassed the larger scope of the Crown’s position at trial in the present case. Unintentional setting in motion [ 31 ] The accused was found in the driver’s seat reclined back to accommodate sleeping. The vehicle was running and the parking brake was not engaged. As Constable Scott walked to the truck he observed the brake light to come on and go off almost simultaneously - “less than a second”. He surmised it was caused by a brief tap on the brake.

The accused acknowledged in his evidence that he likely did this while moving around. Immediately thereafter, Constable Scott was at the window as the accused appeared to be arising at that moment to a sitting position. Constable Scott could not recall on cross-examination whether he may have tapped on the window first or not. [ 32 ] To set the vehicle in motion, the accused testified that the brake would have to be depressed and the column shift transmission simultaneously engaged. He testified that he was unable to reach the transmission from his reclined position being over two feet away.

Constable Scott corroborated that the seat was reclined all the way back to a sleeping position and that the accused was not visible to him as he drove by, the obvious inference being that he was lying back on the seat at the time. [ 33 ] Even though the truck was running, given that it had a column shift transmission, the combination of depressing the brake and concurrently engaging the transmission could not be achieved from this prone position.

Perhaps if it had been a console shift that was within reach of the accused as he slept, the result would be different, elevating the risk of danger of motion from remote to realistic. Putting the park brake on would have been an added precaution as the Crown points out, but this does not detract from the degree of difficulty required to accidentally put the vehicle in motion on the facts of this case. [ 34 ] The Court is satisfied on the evidence that the risk of this accused placing this vehicle in motion unintentionally in these circumstances would pose only a remote risk of danger.

Danger as stationary [ 35 ] The truck was first observed by Constable Scott some distance off primarily due to its unusual bright light display. He ultimately discovered this to be an after market LED light bar usually seen on off road vehicles. Additionally, the truck’s headlight beams were on and the vehicle was pulled out of the driving lane over on the shoulder. The angle he noted was somewhat askew in that the nose was closer to the ditch and the outer rear portion was up against the white fog line.

Although somewhat odd, perhaps indicating a more abrupt stop than would be normal, it did not pose as an impediment to the driving lane traffic, he conceded. [ 36 ] Most importantly, Constable Scott saw fit after straightening the vehicle, to leave it at roadside without calling to have the vehicle seized and towed. Although he stated there was some confusion between he and his dispatch regarding the ability to seize out of province vehicles, he himself felt comfortable to leave it there.

Further, before departing, Constable Scott had turned off the truck which undoubtedly would have left it in a darkened condition compared to the unusually bright and well lit state when occupied by the accused. [ 37 ] On these facts, the Court cannot conclude that the manner in which the accused had either by negligence, or bad judgment, positioned the stationary truck so as to pose a danger to persons or property.

Change of mind [ 38 ] The accused had resolved not to drive any further because of his fatigue and rapid consumption of four cans of beer. He made a plan to sleep and then to call his co-workers around 5:00 a.m. to come and retrieve him and his vehicle. The Crown properly assailed the credibility of this plan questioning its implementation and the quality of the accused’s judgment to that point. [ 39 ] As pronounced by Mr. Justice Fish at para 52, supra , the Court must assess whether such plan was reliable and whether it was implemented by the accused. Also, as pointed out by Mr.

Justice Fish “. . . a plan may seem watertight, but the accused’s level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward.” [ 40 ] In R v Coleman [2] Mr. Justice Richards stated at para 24: The relevant risk does not relate solely to the possibility of an impaired driver acting inadvertently to put a vehicle in motion.

It also includes the possibility of such a driver acting intentionally in this regard. The reason for this is self-evident. Impaired drivers have a diminished capacity to make safe judgments. They frequently act deliberately in ways which endanger themselves and the public. [ 41 ] Did the accused have a concrete and reliable plan? He stated that he was going to call his co-workers to come get him which he had done on occasion in past and which they were more than willing to do. He did not want to call immediately for two reasons.

First, after 5:00 a.m. the crew would be done tearing down the rig to move and so would be available to come. Second, he was left in an extremely emotional and distraught condition from talking to his wife which had included allegations of her cocaine use and suspected infidelity. [ 42 ] Although the accused admitted to taking a wrong turn at highway #4 - going north instead of south toward his rig, he was unaware that he had done so at the time.

Even though he couldn’t state definitively where he had stopped, he testified his rig was south of Elrose, which town was very close to the turnoff on highway #4 where he had inadvertently made the wrong turn. He testified to leaving his job site earlier and travelling down highway #4 to highway #7 then west to Kindersley so he would know he was on highway #4 which was in reasonable proximity to his work location. Calling his co-workers to come get him in the morning would not have been logistically difficult to work out. Indeed, this is precisely what ultimately did occur.

While being transported back to his truck by Constable Scott he called his employees who arrived within the hour to collect him and his truck. [ 43 ] The Crown points out however that he could well have changed such intention by virtue of his alcohol consumption and other bad judgment decisions he had exhibited earlier that evening. These included travelling to Kindersley knowing he would imbibe alcohol without an alternate driver or contingency plan for a place to stay.

Also, consuming four beer at the restaurant which could have put him over the 24 hour limit of .04 at the very least, and then four beer later at roadside. [ 44 ] These criticisms however ignore the fact that the accused had made several good decisions that evening. He declined the invitation of his co-workers to continue drinking at the Kindersley Inn, opting to head straight back to work. He made sure he was over to the side of the road and that all of his lights including the LED light bar remained operational to alert other motorists while he slept.

He decided not to drive any further despite the fact that he would have been reasonably close to his destination having travelled well over an hour to that point of his approximately one and one-half hour trip back. [ 45 ] Most importantly, in the Court’s view, the accused decided not to just keep going even though it was absolutely critical for him to get back in time at 5:30 a.m. or so to file his daily report by 6:00 a.m. His very job depended on this yet he exercised very sound discretion by considering his perceived inability to drive following the alcohol consumption as paramount.

This was also when he was in a highly charged emotional state which would have exacerbated his potential to make a bad decision. He further testified he sat for fifteen minutes having a cigarette after he had consumed the beer and concluded talking to his wife, which provided ample opportunity to change his mind and just keep going, yet he did not. As far as implementing the plan was concerned, he was frustrated in this process by Constable Scott happening along around 2:00 a.m.

[ 46 ] He gave credible evidence as to why he didn’t attempt to contact his co-workers immediately - by calling at 5:00 a.m. they would be available to come because the tearing down would have been completed and he was embarrassed about his emotional upset. [ 47 ] As stated, although the threshold to find realistic risk is low which will more often than not lead to conviction based upon the Boudreault criteria, such conviction is not automatic. Each case must be determined on its own peculiar facts to assess whether the three stated criteria of Mr. Justice Fish have been met to constitute care or control.

IV CONCLUSION [ 48 ] In all the circumstances, the Court finds as a fact that the criteria enunciated by the Supreme Court in Boudreault has not been met. Therefore, the accused was not in actual care or control when encountered in his vehicle by Constable Scott. [ 49 ] The accused is found not guilty on count #2 of the Information. [ 50 ] A final word concerning the conduct of counsel at trial is warranted. Both Crown and Defence counsel conducted themselves in a very balanced and professional manner paring down the non-essentials by agreement and focusing on the true issues to be litigated.

Both treated opposing counsel, witnesses and the Court with utmost civility and decorum which was a pleasure to adjudicate. _____________________ R.D. Jackson, J [1] S. 258(1) (

a) Criminal Code - . . . where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, . . . the accused shall be deemed to have had the care or control of the vehicle, . . . unless the accused establishes that the accused did not occupy that seat of position for the purpose of setting the vehicle. . . in motion. . . [2] 2012 SKCA 65 , 288 CCC (3d) 429 (Sask CA)