Her Majesty the Queen - v. -, 2012 SKPC 187

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 187 Date: December 13, 2012 Information: 24441845 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jeremy R. J. Lockhart Appearing: Daryl Bode For the Crown Thomas Campbell For the Accused JUDGMENT R. GREEN , J I. OVERVIEW [ 1 ] Jeremy Lockhart is charged in Yorkton on March 10, 2012 that: (1) while his ability to operate a motor vehicle was impaired by alcohol he had the care or control of a motor vehicle contrary to s. 253(1) (

a) of the Criminal Code ; and

(2) while the level of alcohol in his blood exceeded 80 milligrams percent he had the care or control of a motor vehicle contrary to s. 253(1) (

b) of the Criminal Code . [ 2 ] Based on these charges, in the order the issues are presented, I will determine whether there is proof beyond a reasonable doubt that:

(1) Mr. Lockhart’s ability to operate a motor vehicle was impaired by alcohol; (2) he was in the care or control of a motor vehicle; and (3) the other requisite elements of the .08 charge have been made out. [ 3 ] I thank both counsel for the written briefs they have provided to me. II. EVIDENCE FOR THE CROWN [ 4 ] Cst. Lortie was the only Crown witness. At 1:30 a.m. on March 10, 2012, he was on patrol near Holly’s Nightclub in Yorkton. He saw a vehicle parked in the Co-op parking lot, adjacent to Holly’s. The vehicle was running with the lights on. Without his emergency lights on, Cst.

Lortie pulled up behind the vehicle and ran the licence plate on his computer system. He then walked up to the driver’s side window and saw a male, who turned out to be Mr. Lockhart, in the driver’s seat. His head was down and not moving, and the officer believed him to be sleeping. [ 5 ] Cst. Lortie knocked on the window and Mr. Lockhart raised his head. The officer signalled to him to put his window down. Mr. Lockhart mistakenly put the rear driver’s window down, and then put his window down. Cst. Lortie told Mr. Lockhart to turn off the vehicle and asked for his driver’s licence and registration.

The officer noted the odour of liquor from his breath, and said Mr. Lockhart successfully provided his driver’s licence and registration with slow movements. [ 6 ] The officer asked him if he knew about the law of care or control. Mr. Lockhart said he had no intention of driving. He was in Holly’s, having a few drinks, and the music was loud and he was tired. He came out to his vehicle and turned it on so as not to be cold. Cst. Lortie admitted that he believed what Mr. Lockhart was saying. [ 7 ] The officer explained, further, to Mr.

Lockhart about his understanding of care or control, and told him to go back to Holly’s and not to come back to the car. He said he was giving Mr. Lockhart a chance, and it was clear he had decided not to detain Mr. Lockhart for an impaired driving investigation. He watched Mr. Lockhart, who was cooperative, walk back toward Holly’s and said Mr. Lockhart’s walking was okay and he was slow moving. [ 8 ] Cst. Lortie left the area, but was called back to Holly’s forty minutes later, responding to a complaint of a commotion outside the nightclub with potential volatility.

He admitted, from his experience policing in Yorkton, that there are often fights outside of Holly’s. [ 9 ] When the officer arrived back at Holly’s, there were people outside, and one other police vehicle, but there were only a few people standing there and there was no fight. He spoke to another police officer, and at that time looked back toward Mr. Lockhart’s vehicle in the Co-op parking lot. He saw someone, in his words, “puking” out of the driver’s window. The officer went over to the vehicle and discovered it was Mr. Lockhart. He asked Mr. Lockhart if he was okay. Mr.

Lockhart replied he was better off after vomiting. [ 10 ] Cst. Lortie asked Mr. Lockhart to step out of the vehicle. He detained him for an impaired driving investigation. He said the only signs of impairment he noted were the smell of alcohol and his slow movements. He called for an Approved Screening Device (ASD) to be brought to the scene, in his words to help get the grounds for a breath demand. The officer as well drove Mr. Lockhart’s

vehicle back and forth to ensure it was operable. Once the ASD arrived, Mr. Lockhart blew a fail and was arrested by Cst. Lortie for an offence under s. 253. [ 11 ] The officer said that, other than the breath demand, police warning and rights to counsel, there was no other discussion between them. He said, on the second occasion, Mr. Lockhart’s keys were on the console in his car. III. EVIDENCE FOR THE DEFENCE Jeremy Lockhart [ 12 ] Jeremy Lockhart is 20 years of age and has no criminal record. He was 19 years of age on this date.

He was not drinking alcohol before he arrived at Holly’s between 11:30 p.m. and midnight this evening. He was with his friend Michael Wintonyk. After he had been drinking for awhile - he said he had lots of drinks but then said he was not sure what or how many - he said he was not feeling well and wanted to get away from the lights and loud music. I am satisfied this was some time shortly after 1:00 a.m. [ 13 ] Mr. Lockhart said he did not intend to drive but rather wanted a place to stay warm and to check the program FaceBook on his cell phone.

He said he was looking down at his phone on his lap when the police officer came up to him, and that he was not sleeping. He said he initially rolled down the wrong window of his vehicle as there were four buttons and he pushed the wrong one. Although he didn’t recall the conversation, he understood that the officer said he should go back to Holly’s and get a taxi. [ 14 ] Mr. Lockhart said that, after he returned to Holly’s, he spoke to Mr. Wintonyk about his plan to get a taxi. Mr. Wintonyk convinced him to wait outside for awhile, and they would walk back to Mr. Wintonyk’s place for the night. Mr.

Lockhart said, in the past when he went drinking at Holly’s, he would call his father for a ride or go stay at Mr. Wintonyk’s place, which was four to five blocks from Holly’s. [ 15 ] Mr. Lockhart said he then went to Robin’s Donuts, next to Holly’s. He was having a slice of pizza and felt ill again - both because of the pizza and some marihuana he smoked earlier. He said he returned to his car to wait for Michael, as it was the only safe place to wait. He said he was not looking for a fight and he did not want to wait outside of Holly’s as there had been a fight there every time he had been to Holly’s.

He maintained that his vehicle was the safest place to wait and, again, said he did not intend to drive. [ 16 ] Mr. Lockhart put his keys onto the console in his vehicle. Pursuant to s. 655 of the Criminal Code , the defence made one admission in this trial, that to open the window of his vehicle Mr. Lockhart had to put the key into the ignition of the vehicle. In his evidence, Mr.

Lockhart said that his remote device would start the engine, but the key would have to be inserted into the ignition to move the vehicle. [ 17 ] Other than the Certificate of Analyses - which showed two readings of 100 mg% at 3:19 a.m. and 3:40 a.m. - the other material evidence at the trial came from Mr. Lockhart’s father Russell Lockhart, and Mr. Wintonyk. Russell Lockhart [ 18 ] Russell Lockhart said, over the past three to four years, his son has phoned him six to ten times for a ride while he was drinking and he was not staying at a friend’s house. He said his son knows not to drink and drive.

He denied that his son smokes drugs. Michael Wintonyk

[ 19 ] Michael Wintonyk said Mr. Lockhart had not been drinking before he drove Mr. Wintonyk to Holly’s this evening. He spoke to Mr. Lockhart just outside of Holly’s at 1:30 a.m. Mr. Lockhart said he was going to call a taxi. He told Mr. Lockhart to wait outside for him and they would walk to his place after he was done in Holly’s. He said Jeremy had stayed at his place on other occasions and Mr. Wintonyk had never seen Mr. Lockhart drink and drive. IV. ANALYSIS Impairment [ 20 ] The first issue is whether there is proof beyond a reasonable doubt that Mr.

Lockhart’s ability to operate a motor vehicle was impaired by alcohol. There were two times that Cst. Lortie dealt with Mr. Lockhart this night. The first was at 1:30 a.m., when the officer decided not to detain him for an impaired driving investigation, and sent him back to Holly’s. The second time was around 2:10 a.m., when he detained Mr.

Lockhart for such an investigation and called for an Approved Screening Device to be brought to the scene. [ 21 ] I view these as two separate incidents, and the question is whether the Crown can rely on both for proof of the two charges before the Court, both alleged to have occurred on March 10, 2012 at Yorkton.

While I have some hesitancy in considering the first incident toward the substantive issue of proof on the impaired driving count - given that the officer determined not to detain or charge him - in the absence of a Charter argument on this point, I will consider both incidents toward the proof of count #1, impaired driving. [ 22 ] I am, however, satisfied that there is a legal distinction about this issue on count #2, the .08 charge. On the latter count, under s. 258(1)(

c) of the Code , the Certificate of Analyses relates only to an offence for which the breath tests are taken as soon as reasonably practicable after the offence is said to have occurred. Given the officer’s decision on the first incident not to detain Mr. Lockhart and to let him walk back to Holly’s, I am satisfied that on the .08 charge, it is only the second incident that can be relied on for substantive proof of the offence, given that it was after this incident, and not the first one forty minutes earlier, that the breath tests were taken as soon as was reasonably practicable.

However, given the subsequent findings I will make, whether I consider the latter incident, or both incidents, will not change my ultimate determination. [ 23 ] Regarding proof of impairment, the two symptoms of impairment noted by the officer during both incidents were the smell of alcohol from his breath and slow movements. I view it as significant that the officer, upon detaining Mr. Lockhart, quickly determined that he needed an ASD test to give him sufficient grounds to arrest him under s. 253 and read him the breath demand. In the officer’s words, he needed the ASD test to “help him with his grounds”.

It was therefore obvious that the officer, after the two dealings with Mr. Lockhart, did not have, based on his observations, reasonable grounds to believe Mr. Lockhart’s ability to operate a motor vehicle was impaired by alcohol. [ 24 ] When I consider: (1) that Mr. Lockhart was not drinking before he arrived at Holly’s between 11:30 and midnight; (2) the relatively short time Mr. Lockhart was in Holly’s before he initially left the nightclub; (3) that although Mr.

Lockhart initially said he had lots to drink, he had no recollection of what he drank over the relatively short time he was in Holly’s and there was no other evidence on how much he drank; (4) that Mr. Lockhart did not drink any alcohol after initially leaving Holly’s; (5) that the sickness he felt initially and on the second occasion before he vomited was as likely caused by what he ate or smoked as what he drank; and (6) most significantly, the absence of any other indicia of impairment noted by the officer, I am left with a reasonable doubt that Mr.

Lockhart’s ability to operate a motor vehicle was impaired by alcohol. Care or control [ 25 ] Regarding the second issue of whether he was in care or control of his vehicle, Mr. Lockhart was found in the driver’s seat of his vehicle by the officer. Section 258(1) (

a) of the Criminal Code provides that when an accused occupies the driver’s seat of a vehicle, he is deemed to be in care or control of that vehicle unless he establishes that he did not enter the driver’s seat for the purpose of setting the vehicle in motion.

[26] Here, Mr. Lockhart testified that he did not intend to drive on either occasion when the officer saw him in his vehicle. I haveconsidered Mr. Lockhart’s evidence about why this was so: (1) that he was not feeling well and wanted a place to go to keep warm andlook at FaceBook on his cell phone, on the first occasion, and a safe place to wait for Mr. Wintonyk away from the potential of fights infront of Holly’s, on the second; and (2) that he always had a contingency plan - whether calling his father for a ride or walking homewith Mr. Wintonyk - to avoid driving after drinking at Holly’s.

When I consider the evidence of the officer and Mr. Wintonyk about thefrequency of fights outside of Holly’s and the corroborating evidence from Mr. Lockhart’s father and Mr. Wintonyk about a number oftimes when Mr. Lockhart made alternate plans to him driving on departure from Holly’s - even considering this evidence was givenbefore Mr. Lockhart testified and that his father did not know that Mr. Lockhart smoked marihuana - I, nevertheless, accept Mr.Lockhart’s evidence about his intention not to drive that night. [27] While the officer may well have reasonably thought Mr. Lockhart was sleeping, having heard Mr.

Lockhart’s explanationabout the encounter which occurred at 1:30 a.m. in a parking lot with the officer looking down through a window at him, I am satisfiedthat it may reasonably be true that Mr. Lockhart was looking down at FaceBook on his cell phone and was not sleeping, and that Mr.Lockhart then mistakenly hit the wrong button to put down his window. [28] Taken together, I am satisfied that Mr. Lockhart has rebutted the presumption under s. 258(1)(a).

That then leaves thequestion of whether there was proof beyond a reasonable doubt that he was in the de facto care or control of his motor vehicle. [29] The Supreme Court of Canada, in R. v. Toews, (SCC), [1985] 2 SCR 119 said the issue in determining care orcontrol is whether the conduct of the person (here Mr. Lockhart) involved some use of his vehicle or its fittings and equipment, or somecourse of conduct associated with his vehicle, which would involve a risk of putting his vehicle in motion so that it could becomedangerous (as per McIntyre J. at para. 10).

Within the last month and a half, the Supreme Court in R. v. Boudreault, 2012 SCC 56provided guidance on what, in law, would constitute such a risk.

At para. 9 of Boudreault, Fish J. for the majority of six, said: I have concluded that "care or control", within the meaning of s. 253(1) of the Criminal Code, signifies (1) an intentional course ofconduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds thelegal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property. [30] Then, at para. 13, His Lordship said: Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherentrisk of danger.

In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to provethat the inherent risk is not a realistic risk in the particular circumstances of the case. [31] In R. v. Andersen, 2012 SKCA 37, Caldwell J.A. said the following about “the risk of danger” in determining care or control(at para. 16): “Practically speaking, the risk of danger will be established where the evidence indicates the accused might haveintentionally or inadvertently put the vehicle in motion, or both”.

In my view, that underlines the point Justice Fish later made inBoudreault, that a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger. [32] In this case, however, I am satisfied that Mr. Lockhart has provided information that tends to prove that the inherent risk ofputting his vehicle in motion so that it would become dangerous, which accompanies his Intoxilyzer reading of 100 mg%, was not arealistic risk in the particular circumstances of this case. That is because:

(1) I am satisfied Mr. Lockhart did not intend to drive hisvehicle;

(2) I am satisfied that he had an alternate plan for leaving Holly’s which did not make any such risk realistic;

(3) I am notsatisfied that he was intoxicated, and as a result that it could be said there was a realistic risk he would forget his previous intention anddrive; and (4) that the use Mr. Lockhart made of his vehicle or its fitting and equipment were in my view minimal. [33] On the latter point, the evidence was that on the first occasion the motor of his vehicle was running and the lights were on. While there was an admission that he needed to have the keys in the ignition to put his window down, there was no evidence aboutwhere the keys were when his car was running before the officer spoke to Mr. Lockhart.

Other than the admission about opening thewindow, there was only Mr. Lockhart’s evidence that the vehicle could be started from a remote control and that the key would have tobe put into the ignition for the vehicle to move. On the second occasion, the use of the fittings and equipment was limited to putting the

keys into the ignition to put down the window through which he was vomiting. [ 34 ] Taken together, I have a reasonable doubt that Mr. Lockhart’s conduct, on both occasions, involved some use of his vehicle or its fittings and equipment, or some course of conduct associated with his vehicle, which would involve a risk of putting his vehicle in motion so that it could become dangerous. I do not view any such risk here as a realistic one, but rather as a remote possibility. As a result, I have a reasonable doubt that he was in the care or control of his vehicle on either occasion he encountered the officer. V.

CONCLUSION [ 35 ] Because I hold a reasonable doubt that Mr. Lockhart’s ability to operate a motor vehicle was impaired by alcohol and that he was in the care or control of his vehicle, he is found not guilty on count #1. Because I hold a reasonable doubt that Mr. Lockhart was in the care or control of his vehicle, despite the other admissible proof that his blood alcohol content was over 80 mg% as measured at 100 mg%, he is found not guilty on count #2. R. Green, J