2022 QCCQ 3477, 2022 QCCQ 3477

R. c. Mamianskum 2022 QCCQ 3477 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI TOWN OF KUUJJUARAPIK “Criminal and Penal Division” No: 640-01-043568-204 DATE: February 24, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE RENÉE LEMOINE, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. JOB MAMIANSKUM Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Mamianskum is charged with having, on or about August 30, 2019, a blood alcohol concentration exceeding 80 milligrams of alcohol within two hours after ceasing to operate a motor vehicle and with operating a motor vehicle while his ability to do so was impaired. [ 2 ] On August 30, 2019, the police intervened while Mr. Mamianskum was leaning over an ATV.

He showed many signs of impairment. [ 3 ] The issue at trial was whether the accused had the care and control of the motor vehicle. [ 4 ] The Court must decide whether the prosecution discharged its burden to demonstrate the accused’s guilt beyond reasonable doubt. THE CONTEXT [ 5 ] At approximately 2:10 a.m., officers Neron, Béland and Pelletier were exiting the Kuujjuarapik Social Club when they saw Mr. Job Mamianskum leaning over an ATV and trying to pull start it.

They noticed the light was on. [ 6 ] They observed signs of impairment such as difficulty keeping his balance, slurred speech and a strong odour of alcohol coming from his breath. [ 7 ] He was brought to the police station to provide a breath sample. The tests were performed at 3:06 a.m. and 3:28 a.m., and the results were 220 mg of alcohol/100 ml of blood and 210 mg of alcohol/100 ml of blood, respectively. [ 8 ] Mr. Mamianskum testified in his defense. He explained he left his house to go to the Social Club around 6:30 or 7:00 p.m. He called a taxi, but they did not respond.

He decided to go to the Social Club on his ATV. [ 9 ] Halfway to the Social Club, the ATV stopped working. He switched on the reserve fuel tank but realized that the ATV was already on the reserve. His children had probably used the ATV and run it on the fuel reserve. [ 10 ] He started the ATV again and managed to get to the Social Club, but the engine stopped again. [ 11 ] He went to the Social Club and had some drinks. Around 8:00 p.m., his youngest son arrived at the Social Club.

He saw him briefly and did not have time to ask him to push the ATV from the social club to his son’s residence. [ 12 ] His son came back later, around 10:30 or 11:00 p.m. The accused asked him help to push the ATV to his son’s residence because he was afraid it would be stolen during the night. [ 13 ] His plan was not to drive the ATV. When he left the Social Club, he waited for his son. He tried to start the ATV but it did not work. [ 14 ] He was arrested and brought to the police station. [ 15 ] In fact, his son never went to the Social Club to push the ATV.

The accused stated he probably forgot because he was hanging around with his friends. [ 16 ] The next day he went to the Social Club and pulled the ATV with his vehicle.

THE LAW [ 17 ] Based on the statutory definition of the offence in 320.14(1)(b), the Crown must prove beyond a reasonable doubt that: − The defendant operated a conveyance by driving or being in the care or control of the vehicle; and − Within two hours after ceasing to operate the conveyance, the defendant had a blood alcohol concentration of 80 mg or more per 100 ml of blood; [ 18 ] In R . v.

Boudreault , [1] the Supreme Court of Canada wrote that the essential elements of “care or control” under section 253(1) of the Criminal Code (former section) were: (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 person or property. [ 19 ]

Section 320.35 of the Criminal Code establishes that a person occupying the driver’s seat of a motor vehicle is presumed to have the care or the control of that vehicle. To rebut this presumption, the accused has to prove lack of intention to set the vehicle in motion on a balance of probabilities. [2] [ 20 ] The Crown has three ways to establish care or control: through evidence of driving, by applying the presumption in

section 320.35 if the accused was in the seat normally occupied by the driver, or through evidence of de facto or actual control, which involves the risk of danger as an essential element. [ 21 ] In the case at bar, the accused was not occupying the driver seat. The Crown did not benefit from the presumption. [ 22 ] The risk of danger should be analyzed. [ 23 ] Mr. Mamianskum explained that he had no intention to drive.

He wanted to wait for his son in order to put the ATV in a safe environment for the night. [ 24 ] Even with that plan, the Court is of the opinion that there was still a realistic risk of danger because the alternate plan was not sufficiently concrete and reliable. Mr. Mamianskum explained he asked his son at the bar at around 10:30 or 11:00 pm. He did not discuss at what time his son would come to help him to push the ATV to his son’s residence. In fact, when the police intervened, it was 2:10 a.m., and his son was not there. [ 25 ] In cross-examination, Mr.

Mamianskum admitted that his son never went to the Social Club and he probably forgot. [ 26 ] Given his state of intoxication, there was a risk that he would make an unwise decision and change his mind about waiting for his son. Indeed, the accused had tried to pull the cord and the light was on.

The accused denied having pulled the cord, but when the Court watched the video he provided, we can see the accused pulling the cord, as stated by the police officer. [ 27 ] If we consider the plan alone, the inherent risk that the accused would change his mind was realistic in the particular circumstances of this case. [ 28 ] But the Court must also determine whether there was a realistic risk of danger, in light of the fact that the vehicle was inoperable because it was out of gasoline. [ 29 ] In R . v.

Boudreau , [3] the Supreme Court stated that an accused can present evidence to demonstrate that the vehicle was inoperable. [ 30 ] Mr. Mamianskum testified that he drove his ATV from his residence to the Social Club. His ATV stopped working halfway to the Social Club. He wanted to switch on the fuel reserve but realized that the ATV was already on the reserve. He managed to start the ATV again and drive to the Social Club, but the engine stopped again. [ 31 ] When the police intervened in the parking lot of the Social Club, the key was in the ignition and the light was on, but the ATV was not running.

As mentioned before, the accused tried to pull the cord, but the engine did not start and he was not able to put the vehicle in motion. [ 32 ] Video evidence shows that the day after, the accused went to the parking lot of the social club around 5:00 or 6:00 p.m. He towed the ATV with his vehicle. This way of recuperating his ATV confirms his version. [ 33 ] The only gas station in the community had closed at 6:00 p.m. so it was not possible for the accused to get gas during the night. The ATV was not on the public road but in the parking lot.

There was no risk that the vehicle would be a danger for someone circulating on the public road. [ 34 ] The Court believes the accused’s explanation that the ATV was out of gasoline and not functioning. The accused provided credible evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. [ 35 ] In the circumstances, the situation raised a reasonable doubt as to the realistic risk that the ATV would be set in a motion, and this doubt must benefit the accused.

FOR THOSE REASONS THE COURT: [ 36 ] ACQUITS the accused. Signed in Val-d’Or on February 24, 2022 __________________________________ RENÉE LEMOINE, J.C.Q. Mtre Annie-Claude Breton Attorney for the prosecution Mtre Jacques Stuart Attorney for the accused Date of hearing: December 16, 2021