Her Majesty the Queen - v. -, 2019 SKPC 4

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 4 Date: January 17, 2019 Information: 90158823 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jeremiah Wade Bucko Appearing: J. Souter For the Crown B. Rintoul For the Accused DECISION I.J. CARDINAL , J INTRODUCTION [ 1 ] On the evening of December 31, 2017, Mr. Bucko celebrated the New Year by drinking in a bar. His cousin dropped him off around 10:45 p.m., and he had arranged with her that she would pick him up when he was ready to leave.

After drinking a considerable amount of alcohol, Mr. Bucko called his cousin to pick him up, but she was unable to do so. He discovered the bar was offering a complimentary shuttle ride home. He decided to take the shuttle and told his cousin she did not need to pick him up.

[ 2 ] The shuttle driver, Ms. Vickery, testified, and I accept, that the bar was offering a shuttle service for patrons to discourage drinking and driving. She and Mr. Bucko went out to her vehicle. She started it, let it warm up a few minutes, and drove it to the back door of the bar. She left the vehicle running and unlocked, with the accused in the front passenger seat, and went into the bar to get other patrons. She was gone only a few minutes, and when she came outside, the vehicle was in the same place she had left it, but was locked and not running. The only thing missing was Mr.

Bucko. [ 3 ] In that intervening few minutes, RCMP Officer Noey had seen Mr. Bucko walk around the outside of the vehicle and get into the driver’s side. He approached the vehicle and found Mr. Bucko, who was heavily intoxicated, occupying the driver’s seat. The officer arrested him and subsequently obtained two samples of his breath that were both over the legal limit. [ 4 ] Mr. Bucko was charged with having the care or control of a motor vehicle while being impaired and with having the care or control of a motor vehicle while over the legal limit, pursuant to s. 253(

a) and s. 253(b), respectively, of the Criminal Code . Mr. Bucko submits that he did not occupy the driver’s seat for the purposes of setting the vehicle in motion and has rebutted the presumption in law outlined in the Criminal Code . Further, he maintains he did not have de facto care and control of the motor vehicle. ISSUE [ 5 ] The sole issue to be decided is whether Mr. Bucko was in care or control of a motor vehicle within the meaning of s. 253 of the Criminal Code . FACTS [ 6 ] The facts are not seriously in dispute. Mr.

Bucko made admissions for the purposes of streamlining the trial, including jurisdiction, identity, date and time of the offence, that he was intoxicated, and the Certificate of a Qualified Technician (Exhibit P-1) indicating his blood alcohol content of 130 milligrams of alcohol in 100 millilitres of blood. It is also clear that it was an extremely cold night as temperatures dipped into the -30 C range. [ 7 ] The Crown called Melfort RCMP Constable Noey and Ms. Evelyn Vickery. Mr. Bucko testified on his own behalf and called his cousin, Ms. Stittle. [ 8 ] At approximately 1:00 a.m. on January 1, 2018, Cst.

Noey was on patrol in Melfort, Saskatchewan. He was travelling east on Saskatchewan Avenue when he observed a white SUV in the back alley by a local bar. He turned north onto Main Street, west onto Burrows Avenue and then into the back alley that goes past the bar. He testified that the vehicle engine was running and the headlights were on when he first saw it and there was no one around the outside of the vehicle.

However, while he was on Burrows Avenue, he saw a male at the corner of the back of the vehicle, slowly walking beside it, with a hand on the body of the vehicle. [ 9 ] When the officer was driving up to the rear of the vehicle, he saw the male, who was only about 100 metres away, open the driver’s door, enter the vehicle and close the door. He pulled up to the vehicle and activated his emergency lights. The officer testified that from the time he first saw the vehicle until he pulled up behind it and activated his emergency lights was less than one minute.

He called dispatch with the licence plate number and it came back as registered to Evelyn Vickery. [ 10 ] The officer walked over to the vehicle and knocked on the driver’s window. The window was frosted but he could see movement inside the vehicle. He waited approximately 30 seconds to a minute. There was no response. [ 11 ] He knocked again, and the driver’s door opened. Mr. Bucko, the sole occupant, was

sitting upright in the driver’s seat, looking up towards the officer. Cst. Noey told Mr. Bucko he was an RCMP officer and asked for his driver’s licence and registration. He asked Mr. Bucko what he was doing there. Mr. Bucko said he was waiting for a ride and that he was in the passenger seat. This was an odd thing to say because Mr. Bucko was in the driver seat. [ 12 ] The officer noted that there was an odour of beverage alcohol emanating from Mr. Bucko’s breath. He had slurred speech, moved slowly, and overall had a dishevelled appearance. The officer could not recall where Mr.

Bucko’s hands were or if he was wearing a seat belt. [ 13 ] The officer arrested Mr. Bucko for the offence of impaired care or control of a motor vehicle and asked him to step out of the vehicle. Mr. Bucko complied and they walked toward the police vehicle, approximately five to ten metres away. Mr. Bucko was so intoxicated he could hardly walk. Cst. Noey held onto his shoulder and arm to keep him from falling over. [ 14 ] Cst. Noey testified that when he saw Mr.

Bucko enter the driver seat and shut the door, it was approximately three to five minutes before the officer announced his presence. [ 15 ] The officer testified that after arresting Mr. Bucko, he returned to the vehicle, turned it off, took the keys, and locked it. Evelyn Vickery approached him while he was still dealing with Mr. Bucko at the scene.

The officer returned her keys and allowed her to take the vehicle into her possession. [ 16 ] Officer Noey agreed in cross-examination that he did not observe any brake lights come on; the engine did not rev, nor did the vehicle move in any manner while he saw the vehicle or while Mr. Bucko was getting in it or getting out of it. He did not check to see if the doors were locked before Mr. Bucko stepped out of the vehicle and did not know if the vehicle had a standard or automatic transmission. [ 17 ] Evelyn Vickery testified she was working in the bar that night.

The bar offered a program to drive people home to discourage patrons from drinking and driving. She testified Mr. Bucko came into the bar just before 11:00 p.m. and was drinking. Ms. Vickery was working behind the bar and waiting tables. She and Mr. Bucko were seeing each other romantically at the time. They discussed the shuttle program and that she could give him a ride home. At about 1:00 a.m., the two of them went out together to her vehicle, which was in employee parking. She testified it is a 1999 Ford Explorer, with an automatic transmission.

She sat in the driver’s seat and started the vehicle by placing the keys in the ignition and turning it on. Mr. Bucko got into the front passenger seat. Both of them sat in the vehicle for about 10 minutes while it warmed up. She testified it tends to run rough when it is cold and she wanted to warm it up before driving people home. [ 18 ] After the vehicle warmed up, she drove it to the back door of the bar in the back alley. She left it parked close to the door, but it was half way into the lane of traffic. She left Mr.

Bucko in the front passenger seat, with the vehicle running, and went back into the bar to locate the patrons who were catching a ride with her. [ 19 ] Ms. Vickery testified she was gone about two to five minutes. When she returned, her vehicle was in the same place and position, locked, but was no longer running. Mr. Bucko was not in it. She saw him in the back of the police vehicle. She went to the police vehicle, spoke to the officer, and a few minutes later he returned her keys and allowed her to take her vehicle.

[ 20 ] Mr. Bucko testified that he had been working a split shift at a local restaurant and was dropped off at the bar by his cousin, Brittany Stittle, around 10:45 p.m. He and Ms. Stittle lived together at the time. He said he does not have a driver licence, nor a vehicle, and he does not drive but relies on others to give him a ride. At the bar he drank and had a good time. He called Ms. Stittle to pick him up but she could not do so as she was babysitting. He called her again but it was still not convenient so he said he would call her back. Mr.

Bucko called her again about 15 minutes later and said he would take the shuttle. [ 21 ] Ms. Stittle testified and confirmed she had picked Mr. Bucko up from work and dropped him off at the bar around 10:30 p.m. She was babysitting but planned to pick him up when he was ready. He called after midnight, but she could not leave. He called again around 1:00 a.m. but she would have to bring the child with her, so he said he would wait.

About 15 minutes later he called her and said he would take the shuttle offered by the bar and that is what she assumed he did as she did not hear from him again. [ 22 ] I note at this juncture that I accept Mr. Bucko had arranged with Ms. Stittle to pick him up but abandoned that plan in favour of catching a ride with Ms. Vickery. [ 23 ] Mr. Bucko continued drinking while waiting for Ms. Vickery. He admits he was highly intoxicated. [ 24 ] When Ms. Vickery was ready, he testified he went outside with her. They sat and talked while the vehicle warmed up.

She pulled the vehicle up to the bar door off the alley and she went into the bar. [ 25 ] According to Mr. Bucko, the vehicle stalled. He got out of the vehicle, went around it, and started it. Next he remembers being outside. The next thing he remembers is talking to the police officer and being told he was under arrest for drinking and driving. [ 26 ] In cross-examination Mr. Bucko testified he could not recall how much he drank but he was pretty intoxicated and had blackouts. He agreed he does not remember because he had a blackout.

He does remember the police officer knocking once on the window, and remembers speaking to the officer a bit. He recalls telling the police officer that he was in the passenger seat and testified he believed he was in the passenger seat. He said he believed he thought he walked around the back of the vehicle. He said the vehicle stalled and he walked around to the driver’s seat to start it so it would be warm. He knew the car had an automatic transmission. When asked why he did not just lean over from the passenger seat and start it by turning the key, he said did not believe it would start that way.

When asked why he did not leave the driver’s seat, he said he thought he had left it and was in the passenger seat. ANALYSIS Has Mr. Bucko rebutted the presumption? [ 27 ] On December 18, 2018, certain provisions of the Criminal Code were replaced, including the presumption outlined in Section 258(1)(a). It is now found in s. 320.35 and states: 320.35 In proceedings in respect of an offence under

section 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.

[ 28 ] Both counsel agree that this change is one of procedure and not substantive law and that

section 320.35 applies to the circumstances. I concur with that assessment. Although the wording is slightly different, this

section creates a rebuttable presumption that a person who occupies the driver’s seat of a motor vehicle (or conveyance) is deemed to have care or control of the vehicle, “unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion”. [ 29 ] The Crown can rely upon this presumption as Mr. Bucko clearly occupied the driver’s seat of the vehicle. Mr.

Bucko bears the onus of establishing on a balance of probabilities that, at the time he occupied the driver’s seat, he did not occupy that position for the purpose of setting the vehicle in motion. [ 30 ] I find he has met this onus and rebutted the presumption. I found Ms. Vickery to be a credible reliable witness and accept that she was in the process of taking Mr. Bucko home when he inexplicably moved from the passenger seat to the driver’s seat. Although Mr.

Bucko testified the vehicle had stalled and that he occupied the driver seat to start the vehicle and keep it warm, and thought he had moved back into the passenger seat, I accept the officer’s evidence that the vehicle was running the entire time he had visual contact with it. Notably, it was running before Mr. Bucko entered the driver’s seat. [ 31 ] I note as well that the officer testified that during his time observing the vehicle before Mr. Bucko exited it, there was no interaction by Mr. Bucko with the fittings of the vehicle.

For example, he did not engage the transmission, apply the brakes or attempt to move the vehicle. [ 32 ] While Mr. Bucko has rebutted the presumption, I must still consider whether he had de facto , or actual care or control of the motor vehicle on the basis of the test outlined in R v Boudreault , 2012 SCC 56 , [2012] 3 SCR 157 [ Boudreault ]. Did Mr. Bucko have de facto care or control of the motor vehicle? [ 33 ] In Boudreault , Mr.

Justice Fish outlined the test in paragraph 9 and 33 where he stated the essential elements of care or control under s. 253(1) of the Criminal Code are: . . . (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 , as opposed to a remote possibility , of danger to persons or property. [ 34 ] Further, the court observed: [45] As I mentioned at the outset, anyone found inebriated 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”. A conviction 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 to immediately set the vehicle in motion faces conviction on those facts alone. [ 35 ] I will now address each of these three factors.

(1) An intentional course of conduct associated with a motor vehicle; [ 36 ] Mr. Bucko admits that he intentionally moved from the passenger seat of the vehicle to the driver’s seat of the vehicle. He entered the driver’s seat with the intention to start the vehicle to keep it warm, as he thought it had stalled. However, I find the vehicle was running, had not stalled at any point, and Mr. Bucko was seated, upright, in the driver’s seat.

(2) By a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; [ 37 ] It is admitted, and clear from the evidence, that Mr. Bucko’s ability to drive was impaired by alcohol and that his blood alcohol level exceeded the legal limit.

(3) In circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property. [ 38 ] In describing the realistic risk, Justice Fish in Boudreault , stated the risk “must be realistic and not just theoretically possible.... But nor need the risk be probable, or even serious or substantial”. [ 39 ] Further, in Boudreault the court observed: [42] In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways.

First, an inebriated 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. . . . [48] I need hardly reiterate that “realistic risk” is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion.

To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. [ 40 ] In R v Derkson , 2015 SKPC 42 para 20 Judge Kalmakoff, as he then was, outlined a number of factors to consider in assessing whether there was a realistic risk that the accused might put the vehicle in motion either intentionally or accidentally: -his level of impairment -whether the keys were in the ignition -the location of the vehicle -whether or not he had reached his final destination -whether he drove the vehicle to the location where it was found -whether he had started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving

-whether he had a plan to get home that did not include driving while impaired or over the legal limit -whether he had a stated intention to resume driving -whether he was seated in the driver’s seat, regardless of the applicability of the presumption -whether he was wearing his seatbelt -whether he failed to take advantage of alternative means of leaving the scene -whether he had a cell phone to make alternative arrangements and failed to do so. [ 41 ] In all of the circumstances of this case, I find that there was no realistic risk that Mr.

Bucko might put the vehicle in motion either intentionally or accidentally. There was no evidence Mr. Bucko did anything other than sit in the driver’s seat. I accept that once he entered the driver’s seat, he blacked out momentarily. He did respond to the officer’s knock on the window by opening the door, but did not engage the transmission, brakes or otherwise operate the controls of the motor vehicle. [ 42 ] As well, it is clear Mr. Bucko had two plans for a designated, sober driver to take him home. While he abandoned the plan involving his cousin, he clearly intended for Ms. Vickery to drive him home.

This plan was in the process of being executed when Mr. Bucko inexplicably left the passenger seat when Ms. Vickery went inside to gather up the other patrons who wanted a ride home. [ 43 ] I find that the stationary vehicle did not endanger persons or property from the manner in which it was parked by Ms. Vickery and occupied by Mr. Bucko. The police officer did not move the vehicle, but shut it off, locked it and left it. Had it been a danger, one would expect the officer would move it so it no longer posed a danger to anyone or anything. The officer kindly returned the keys to Ms.

Vickery a few minutes after she approached the police vehicle so she could continue to drive other patrons home. [ 44 ] The timing outlined in the circumstances of this case also play an important role. Here the police saw Mr. Bucko enter the driver’s seat and he was only in it for approximately two minutes. This should not be taken to mean that in every case where the police intervene that an impaired person behind the wheel of a motor vehicle will escape criminal liability.

Criminal cases turn on their facts and a slight change in the facts could result in an entirely different result. [ 45 ] It is laudable that the bar was offering a shuttle service to their patrons to discourage drinking and driving, and such programs should be encouraged as a matter of public policy. However, it is also incumbent on the shuttle driver to take precautions so that no intoxicated person can access the driver’s seat at any time. [ 46 ] Finally, I thank Ms. Souter and Ms. Rintoul for their capable handling of this matter and diligent work in narrowing the issues. It is appreciated.

CONCLUSION [ 47 ] I find Mr. Bucko not guilty of both counts in the information.

__________________ I.J. Cardinal, J