Her Majesty the Queen - v. -, 2012 SKPC 165

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 165 Date: October 18, 2012 Information: 244022540 Location: Esterhazy _____________________________________________________________________________ Between: Her Majesty the Queen - and - Trevor Dean Huber Appearing: Darren Grindle For the Crown Shane Wagner For the Accused JUDGMENT R. GREEN , J I OVERVIEW [ 1 ] Trevor Huber is charged with having the care or control of a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams percent and while his ability to operate a motor vehicle was impaired by alcohol. [ 2 ] Mr.

Wagner acknowledged, from the outset, that the only issue in dispute in the trial was whether the Crown could prove

[ 2 ] Mr. Wagner acknowledged, from the outset, that the only issue in dispute in the trial was whether the Crown could prove beyond a reasonable doubt that Mr. Huber was in the care or control of his vehicle when found in the driver’s seat of his parked vehicle, on Main Street in Esterhazy, by Cst. Barnett on September 30, 2011. That proof can result either from the application of the presumption found in s. 258(1) (

a) of the Criminal Code or from evidence that Mr. Huber was in the care or control of his vehicle (referred to as de facto care or control). II THE PRESUMPTION OF CARE OR CONTROL [ 3 ] 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. [ 4 ] Cst. Barnett found Mr. Huber in the driver’s seat of his vehicle at 11:30 p.m. this day. The vehicle was running, with its lights on and heater engaged. It was angle-parked about a half block down from the Old Central Hotel. Based on his observations of Mr. Huber, Cst. Barnett concluded that he was highly intoxicated. [ 5 ] Mr.

Huber said he arrived home from work, at Debuc, between 5:00 and 5:30 p.m. that day. He drove to Yorkton, and then back to the Old Central Hotel on Main Street in Esterhazy. He said his practice, when drinking at Esterhazy in the past, was not to drive home, but rather to get home by either a designated driver or a taxi cab. [ 6 ] Mr. Huber said he did not keep track of how much he drank, but I am satisfied he had a significant amount of alcohol. At some point, he felt sick and asked the bartender to call a taxi for him. The bartender phoned for a taxi for him, and told him the taxi was on the way.

He told the bartender he would be outside, in his vehicle. Just outside the bar, Mr. Huber vomited and then went to his vehicle. He said the temperature was cold and it was windy. He got into his vehicle, started the engine and turned on the heater. He said he was not warmly dressed, and that he did not intend to drive the vehicle. He said, if the taxi had not showed up, he would have walked back to the bar. His intent was to pick his vehicle up from Esterhazy the next day after work. [ 7 ] Roxanne Duchak was working at the Old Central Hotel bar this night.

Sometime before midnight, she became aware of someone in a vehicle parked up from the bar on Main Street. The woman who advised her of this feared the person in the vehicle was intoxicated and would drive the vehicle. Ms. Duchak walked up the street and found Mr. Huber hunched over the steering wheel in his vehicle, with the window open a crack, the engine running, the doors locked and the lights on. She banged on the window and Mr. Huber did not respond. She was concerned he would drive away, so she banged on the window and yelled: “Hey buddy!” Mr. Huber barely moved.

She concluded he was either very tired or very intoxicated, and went back to the bar and called the police. [ 8 ] Merv Shewfelt was a taxi driver this evening, and responded to a call from the Old Central Hotel around 11:00 p.m. He did not have a name for the passenger he was to pick up, and when he arrived at the hotel he said the police and ambulance were there already. [ 9 ] During the cross-examination of Cst. Barnett, the officer agreed that an Environment Canada printout for Yorkton was close to the temperature and wind speed for Esterhazy on this date.

That printout (Exhibit D-1) listed the temperature at 11:00 p.m. as 11.9 degrees Celsius and the wind speed as 26 kilometres per hour. [ 10 ] I accept Mr. Huber’s evidence that he went to his vehicle to wait for the taxi, which I am satisfied had been called by a bar employee for him. I further accept his evidence that he was cold - which is reasonable in view of the temperature and wind - and that he started his vehicle and turned on the heater as a result of being cold. Lastly, I accept that he did not enter his vehicle, or get into the driver’s seat, with the intention of driving.

As a result, the presumption in s. 258(1) (

a) is rebutted. III DE FACTO CARE OR CONTROL [ 11 ] The remaining question is whether the Crown has proved beyond a reasonable doubt that Mr. Huber was in de facto care or control of his vehicle. Put another way, the question is whether Mr. Huber’s conduct 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 itcould become dangerous (R. v. Toews, (SCC), [1985] 2 S.C.R. 119 (at para. 10)). [12] I accept, based on Cst. Barnett’s evidence, that Main Street in Esterhazy - the street upon which Mr. Huber was angle parkedup the block from the Old Central Hotel - is the second busiest roadway in Esterhazy.

I further accept that this vehicle was operational(given that the officer drove it back and forth to check this) and that, to put this vehicle into gear, the driver needs to engage the brakeand pull the shifter back and down. Mr. Huber said, in cross-examination, that it was easy to shift the car into gear and that it was anatural reaction for him to do so. [13] Given that Mr. Huber did not recall Ms. Duchak banging on his window, given that Mr. Huber (upon exiting the vehicle)asked Cst. Barnett why he had stopped him and given the officer’s observations that Mr.

Huber appeared to be grossly intoxicated, Iaccept and find that Mr. Huber was significantly intoxicated when found by Cst. Barnett. [14] R. v. Buckingham, 2007 SKCA 32, was a case markedly similar to this case. Mr. Buckingham, like Mr. Huber, was in thepractice of driving to the bar and taking a taxi home. Like Mr. Huber, Mr. Buckingham left the bar to wait for a taxi, and in anintoxicated state entered his vehicle, started it and turned on the heater. Ten or fifteen minutes later, Mr.

Buckingham was found asleephunched over the steering wheel of his vehicle with the engine and heater running and with his foot on the accelerator pedal. The trialjudge considered whether Mr. Buckingham’s use of the vehicle’s fittings and equipment, together with his state of intoxication, created arisk that his vehicle could be set in motion, creating a danger to the public.

That risk could involve: 1) that the accused may awake and be too intoxicated to remember his previous intent not to drive; and 2) that the accused, in his intoxicated state, may inadvertently set the vehicle in motion. (at para. 19 and 20) [15] While noting that the trial judge properly considered Mr.

Buckingham’s past practice and his determination not to drive whileintoxicated, together with the steps (similar to this case) required to put the car in gear, Smith J.A. of the Court of Appeal said thefollowing at paragraph 21: ... the trial judge did consider the risk that the vehicle might be inadvertently set in motion. He commented that it took two motions to putthe vehicle into driving gear: it was necessary to depress the brake and then to pull the gear lever forward and down. He commented thatthe vehicle was parked off the road on a flat surface.

Again, these were, in my respectful view, relevant considerations and were properlyconsidered by the trial judge as relevant to the assessment of the risk. [16] Further Justice Smith said: I do not think it is possible to say absolutely, as Crown counsel urged, that turning on the car engine ipso facto amounts to care andcontrol.

In the instant case, however, the vehicle was in a public parking lot and was not disabled in any way. (para. 23) [17] In conclusion in Buckingham, Justice Smith found that, in “the circumstances of this case, starting the engine running wassufficient to establish care and control of the vehicle”. (para. 24) [18] Further, there are a number of similarities between this case and R. v. Andersen, 2012 SKCA 37. In that case, as well, Mr.Andersen was found unconscious behind the steering wheel of his parked vehicle, with the engine running and the heater operating. Thelights of the vehicle were on.

As well, to put his vehicle into gear, Mr. Andersen had to first depress the brake and then push a button onthe gear shift before shifting the vehicle into gear. Unlike this case, Mr. Andersen was belligerent when awoken and had to be subduedby the police once he was extricated from the vehicle. In finding that Mr. Andersen was in care or control of his vehicle, Caldwell J.A.said the following at paragraph 17: In my respectful opinion, the risk of danger in this case was real and evident. Mr. Andersen was intoxicated. Mr. Andersen occupied the

driver's seat of his vehicle. Mr. Andersen's vehicle was not disabled in any way, was running and was parked in a public parking area and, therefore, could have been easily put into motion by simply depressing the brake and engaging the gear shift (regardless of how many discrete steps one might characterize this as taking). I find no fault with the trial judge's conclusion that, given Mr. Andersen's intoxicated state, these circumstances necessarily i nvolved a risk that Mr. Andersen could have inadvertently set his vehicle in motion, or that Mr.

Andersen could have, if he awoke, intentionally set his vehicle in motion. [ 19 ] Finally, in R. v. Coleman , 2012 SKCA 65 - the most recent consideration of care or control by our Court of Appeal - Justice Richards, speaking for a unanimous Court, cited with approval the legal standard for care or control set out in Buckingham and Andersen (at para. 25 and 26 of Coleman ). [ 20 ] In this case, Mr. Huber was behind the wheel of his vehicle parked on Main Street in Esterhazy, the second busiest street in that town.

He was significantly intoxicated and disoriented, so much so that he eventually passed out behind the wheel. He started the vehicle and turned on the heater and then passed out. The doors of the vehicle were locked and the vehicle’s lights were on. Given Cst. Barnett’s evidence, I accept that the vehicle was not disabled in any way, whether by parking brake or otherwise. I also accept that Mr.

Huber was familiar with his vehicle and its fittings in that he, in effect, did not have to think about shifting gears on his vehicle as it was a natural reaction. [ 21 ] Taken together, while still considering what was required to place the vehicle into gear, I am satisfied beyond a reasonable doubt that the circumstances in this case involved a risk that Mr. Huber could have inadvertently set his vehicle in motion or that he could, if he awoke, intentionally set his vehicle in motion. Put another way, based on the analysis from the Toews case, I am satisfied to that standard that Mr.

Huber’s conduct involved some use of his vehicle or its fittings and equipment, or some course of conduct associated with his vehicle, which involved a risk of him putting his vehicle in motion so that it could become dangerous. IV CONCLUSION [ 22 ] I am satisfied beyond a reasonable doubt from the evidence that Mr. Huber had a blood alcohol concentration - measured on the Intoxilyzer to be 220 milligrams percent at 00:49 hours and 210 milligrams percent at 01:09 hours - that exceeded 80 milligrams percent. As well, as mentioned above, I have found that Mr.

Huber was significantly intoxicated when he was found by Cst. Barnett, and, as a result, I am satisfied beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol at that time. Lastly, I am satisfied beyond a reasonable doubt that Mr. Huber was in the care or control of his vehicle when Cst. Barnett found him. As a result, he is found guilty on count #1, and I direct a conditional stay on count #2. R. Green, J