HER MAJESTY THE QUEEN, v. CHARLES RASTAS JONAH., 2015 NBPC 2

CANADA 2015NBPC02 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN, -and- CHARLES RASTAS JONAH. JUDGE: The Honourable Marco R. Cloutier TRIAL HELD: Sussex, New Brunswick DATE OF DECISION: February 20, 2015 APPEARANCES: Larry Veniot on behalf of Her Majesty the Queen Wendell J. Maxwell, Q.C., on behalf of Mr. Jonah I. Introduction [ 1 ] M.R. CLOUTIER PROV. CRT J.: - Mr.

Jonah is charged that he had the care or control of a motor vehicle while his ability to do so was impaired by alcohol or drug and his blood alcohol level was over the legal limit. [ 2 ] Set out interrogatively, the central issue in this case can be framed this way: Is the Crown required to prove a risk of danger as an essential element of the offence of care or control when it relies on the presumption created by s. 258(1) (

a) of the Criminal Code ? As will be seen, answering this question requires unravelling the obscure intricacies of care and control jurisprudence. II Evidence [ 3 ] On February 23, 2013, Leon Hillier was driving on the Waterford Road, in Sussex, New Brunswick. At approximately 7:50 p.m., he came upon a sharp turn and observed Mr. Jonah standing next to his pick-up with cables in his hands. The pick-up was stuck on a snow bank in a ditch and all four wheels were off the ground. Using his own vehicle, Mr. Hillier made various attempts to pull the pick- up back on the road but to no avail. [ 4 ] Mr.

Hillier drove away to meet his son at Poley Montain. Approximately 10 minutes later, on his way back, Mr. Jonah stopped him again. Although he was persistent, Mr. Hillier refused to provide further assistance to Mr. Jonah as he noted an odour of alcohol coming from his direction. [ 5 ] Mr. Hillier left the scene and, at approximately 8:30 p.m., he reported what had occurred to Cst. Lutz at a nearby police check stop. She attended the scene immediately where she observed Mr. Jonah who matched the description provided by Mr. Hillier. That is, Mr.

Jonah, an older man wearing black ski pants, was present at the scene near a sharp turn on the Waterford Road and a pick-up, off the road, was stuck on a snow bank. It was also facing downhill. Cst. Lutz observed Mr. Jonah occupying the driver’s seat. Both the headlights and the interior lights were on but the engine was not running. Mr. Jonah stepped out of the pick-up and, unable to stand still, he spontaneously stated: “I hit the brakes and I just went into the ditch”. When Mr. Jonah finally faced Cst. Lutz, she detected an odour of alcohol on his breath. [ 6 ] At that time, Cst. Lutz advised Mr.

Jonah that she had a suspicion he had operated a motor vehicle with alcohol in his body. Therefore, she asked him to accompany her to the police vehicle to provide a breath sample into an approved screening device (“ASD”). Mr. Jonah agreed and stated that he had consumed three drinks earlier. [ 7 ] At 8:55 p.m., Cst. Lutz read the ASD demand to Mr. Jonah from a card to which, again, he responded: “yes”. Mr. Jonah provided a sample of his breath into the ASD while seated in the police vehicle. The result was a “fail”. At 8:59 p.m., she placed Mr.

Jonah under arrest for impaired driving and driving with blood alcohol over the legal limit. However, Mr. Jonah was later charged with care or control. At 9:05 p.m., Cst. Lutz read a Breathalyzer demand to Mr. Jonah to which he replied: “yes”. She also read him his Charter rights and cautioned him. At 9:10 p.m., Cst. Lutz left the scene with Mr. Jonah en route to the Sussex detachment. [ 8 ] After speaking with a legal aid lawyer in private from 9:30 p.m. to 9:37 p.m., Mr. Jonah provided two valid samples of his breath in an approved instrument at 9:46 p.m. and 10:06 p.m. respectively.

The results are indicated in a Certificate of Qualified Technician which the Crown offered into evidence. Cst. Lutz then served the certificate on Mr. Jonah along with other documents and released him

on a Promise to Appear. [9] On cross-examination, Cst. Lutz admitted that Mr. Jonah’s pick-up was not moveable on its own. Upon being questioned on theASD, she also admitted that she did not make notes of the temperature outside. She stated, however, that she administered the ASD toMr. Jonah inside the police vehicle. Although she could not testify as to exact calibration date, she was adamant that the Sussexdetachment has a policy of calibrating all ASDs every 14 days. Moreover, she explained that at the beginning of each shift, she has apractice of ensuring that the calibration date is not expired. Cst.

Lutz also acknowledged that she was not aware of the Defence’ssuggestion that, as per the RCMP operational manual, the ASD needs to be used in temperatures between minus 5 and 40 degree Celsius. [10] The Defence did not call any witness at trial nor did it file any Notice of Charter argument. III Position of the parties [11] The Defence says that the Crown failed to prove the exact time Cst. Lutz formed the reasonable suspicion that Mr. Jonah hadalcohol in his body. Therefore, the ASD demand was neither made forthwith nor in compliance with s. 254(2) of the Criminal Code. [12] It also contends that, because Cst.

Lutz offered no evidence of the temperature outside on the evening in question, the result of theASD, namely the fail, was not reliable in the circumstances. Also, the RCMP operation manual, it suggests, indicates the ASD is to beused between minus 5 and 40 degree Celsius. Likewise, the Defence argues that the Crown failed to prove that Cst. Lutz used an ASDwhich was properly calibrated. [13] Most importantly, the Defence submits that the Crown failed to prove care or control.

In particular, it argues that it failed to provea risk of danger as an essential element of the offence even if it relies on the presumption created by s. 258(1)(

a) of the Criminal Code.The Defence also claims that the Crown’s evidence is that Mr. Jonah’s pick-up was either immoveable or inoperable. [14] The Crown, on the other hand, submits that where, like here, the statutory presumption set out in s. 258(1)(

a) has not beenrebutted, it is not required to prove that Mr. Jonah's occupation of the driver seat created a realistic risk of danger. The Crown alsosubmits that the other Defence’s arguments are without merit. I agree. III. Law and Analysis Did Cst. Lutz make the ASD demand forthwith? [15] Section 254(2)(

b) requires that a sample of breath be taken forthwith after the demand is made. While the

section does not specifythat the demand itself be made forthwith, it must be made as soon as the police officer has reasonable grounds to suspect that the driverhas alcohol in his or her body: R. v. Anderson, 2011 SKCA 13. [16] Likewise, the calculation of minutes is not determinative of whether there was a breach of the "forthwith" requirement. Rather, abroad purposive

interpretation should be given to Charter rights: R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 at paras. 15-18. Clearly, the purpose of the statutory protection is to prevent unnecessary and long detention of a suspect where the police do not haveevidence to lay charges. An officer is not to engage in tasks unnecessary or unrelated to the purpose of the stop and the administration ofthe ASD. [17] I also take the liberty of reproducing par. 61 of this Court’s decision in R. v. Thomas [2013] N.B.J. No. 396 (QL) where Icommented on the meaning of "forthwith" as per the directions from the Ontario Court of Appeal in R. v. Quansah, 2012 ONCA 123: 61 In

summary, it is clear from a review of jurisprudence in Canada that the immediacy requirement will not be met and a demand foran ASD will not be made forthwith, nor will it be lawful if, between the forming of an officer's reasonable suspicion and the making ofthe ASD demand under s. 254(2), he or she engages in small talk, conducts an incidental investigation of the vehicle's condition, or goesback to the police vehicle to complete notes, to conduct computer checks on the driver and his vehicle, or to write a traffic ticket.

Thatbeing said, however, I am of the opinion that, between this period of time, an officer is allowed to take brief notes, here and there, so tospeak, and it does not constitute a breach of the "forthwith" or "immediacy requirement" under s. 254(2) so long as the delay is notunreasonable and there is no evidence that the officer was focused on anything other than the task at hand. [Emphasis added] [18] In the instant case, Cst. Lutz arrived on scene shortly after 8:30 p.m. A delay was obviously required to confirm that both Mr.Jonah and the accident scene matched the description provided by Mr. Hillier.

At one point, Mr. Jonah stepped out of his pick-up andexplained to Cst. Lutz the circumstances under which he drove in the ditch on top of the snow bank. Recall, however, that she could notget him to stand still. In fact, it was only once she managed to get him to face her that Cst. Lutz detected the odour of alcohol on hisbreath. On the totality of the circumstances, I find that it was at that time she formed the reasonable suspicion that Mr. Jonah had alcoholin his body, especially as she then asked him to accompany her to the police vehicle to provide a breath sample into the ASD.

At anyrate, at 8:55 p.m., Cst. Lutz read the ASD demand to Mr. Jonah from a card. [19] I find that any delay between the forming of Cst. Lutz’s reasonable suspicion and the making of the ASD demand to Mr. Jonahwas reasonable. It is so because there is no evidence that she was focused on anything other than the task at hand. It follows that, in myview, Cst. Lutz made the ASD demand "forthwith" and that it met the "immediacy requirement" as per the court’s direction in Quansah,supra.

In my opinion, the approach submitted by the Defence, which I reject, seeks to the make the calculation of minutes determinativeof whether there was a breach of the "forthwith" requirement. It also fails to analyze the forthwith or immediacyrequirement contextually. Did Cst. Lutz have objectively reasonable grounds for believing the ASD was in working order? [20] It is trite law that the Crown is not required to prove that the ASD was in good working order, but rather that the officer had

objectively reasonable grounds for believing it was in working order. See, for instance, R. v. Topaltsis, (ON CA),[2006] O.J. No. 3181 (C.A.). [21] In R. v. Mastromartino, (ON SC), [2004] O.J. No. 1435, Durno, J. stated at par. 79: An officer using an ASD need only have a reasonable belief that the device is properly calibrated and in working order before relying ona "fail" result to confirm his or her suspicions that a driver may be impaired or over the legal limit.

There is no requirement the officerknew the calibration setting of the device, when it was last calibrated, or whether the device was in fact working properly: R. v.MacPherson, unreported, released, March 11, 2004 (S.C.J.); R. v. Coutts (1995), (ON CA), 45 O.R. (3d) 288 (Ont.C.A.); R. v. Hill [2001] O.J. No. 4505 (S.C.J.) (QL). [Emphasis added] [22] Similarly, in R. v. Robichaud, [2009] N.B.J. No. 144, Mr.

Justice McIntyre of the Court of Queen's Bench stated that, in a trialwith respect to an offence under s. 253(1)(b), the Crown does not have to establish that an officer is qualified to operate the ASD and,likewise, it does not have to adduce evidence with respect to its calibration. [23] It is also clear from a review of jurisprudence in Canada, particularly from R. v. Paradisi, (ON CA), [1998]O.J. No. 2336 at par. 1 (C.A.), that the onus is on an accused to lead evidence at trial that there is a “high degree of unreliability withrespect to the ASD” at the time it was administered.

Where no such evidence exists, an officer is entitled to rely on the device yieldingreasonable and probable grounds. For similar views in New Brunswick, see R. v. Bonnar, [2013] N.B.J. No. 395. [24] As explained by this Court in Bonnar, supra, while there may be many reasons that the result of an ASD may be found to beunreliable, without some evidence that any such reason exists, it is speculative to assert that the ASD may have been unreliable. So toohere.

While I find the suggestion by the Defence pertaining to the effect of outside temperature on the readings of the ASD superficiallyattractive, it has not led any evidence that "there was a high degree of unreliability" with respect to the device. Consequently, there is noevidence before me, but only pure speculation, that the ASD was not working properly or was giving inaccurate readings as a result ofoutside temperature. Parenthetically speaking, the argument is a moot one. That is, the evidence is clear that Cst. Lutz retrieved andadministered the ASD to Mr.

Jonah in the back of the police vehicle. [25] I also find that, based on the totality of the circumstances, although Cst. Lutz had not made notes of the ASD’s calibration, shenonetheless had objectively reasonable grounds for believing it was in working order. I would emphasize that there is no requirement atlaw she knew the calibration setting of the device or when it was last calibrated.

I accept her evidence as being reliable and credible and,in particular, the part where she stated that, although she could not testify as to exact calibration date, she was adamant that the Sussexdetachment has a policy of calibrating all ASDs every 14 days. Moreover, she explained that at the beginning of each shift, she has apractice of ensuring that the calibration date is indeed not expired. [26] In light of these findings, I will admit the Certificate of the Qualified Technician into evidence. Care or Control (

i) The presumption found in s. 258(1)(

a) of the Criminal Code [27] Section 253(1) of the Criminal Code prohibits not only driving or operating a vehicle while impaired, but also prohibits placingone's self in the position to drive while impaired by assuming "care or control" of a vehicle. The actus reus of the offence is theassumption of care or control when the ability to drive has been impaired by the consumption of alcohol. The mens rea is the intent toassume care or control after the voluntary consumption of alcohol: R. v. Toews, (SCC), [1985] 2 SCR 119 at par 7. [28] Section 258(1)(

a) of the Criminal Code provides that: 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in anyproceedings under any of subsections 255(2) to (3.2), (

a) 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 he did not occupy thatseat or position for the purpose of setting the vehicle in motion ...; [29] When the presumption is not rebutted, all elements of “care or control” (both the mens rea and actus reus components) aredeemed to exist. Obviously, Parliament enacted the presumption as an attempt to reinforce the need for separation between a motorvehicle and an impaired driver. [30] The presumption created by s. 258(1)(

a) is rebuttable and, if a court is satisfied on a balance of probabilities that an accused hadno intention of setting the vehicle in motion, the presumption will be rebutted. If the presumption does not apply, the Crown can stillprove that the accused was in "care or control" within the meaning of s. 253(1) by establishing: (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 persons or property: R. v.

Boudreault, 2012 SCC 56 , [2012] S.C.J.No. 56 (S.C.C.). [31] These are the essential elements of what is commonly referred to as de facto care or control. It appears that prior to the Supreme

Court's decision in Boudreault, supra, the courts were divided on whether "a realistic risk of danger" was an element of de facto care orcontrol. After Boudreault, supra, it is clear that to establish de facto care or control, when the presumption does not apply, the Crownmust prove that the accused's intentional course of conduct with a motor vehicle, while impaired or over the legal blood alcohol limit,created a realistic risk of danger. (ii) Does the Crown have to prove that the accused's occupation of the driver’s seat created a realistic risk of danger in order for thepresumption created by s. 258(1)(

a) to apply? [32] As I see it, if the presumption were not to apply unless the Crown establishes a "realistic risk of danger", the presumption wouldserve no purpose. The Crown would be required to prove that the accused was seated in the driver's seat of a vehicle, an intentionalcourse of conduct associated with a vehicle, and that sitting in the driver's seat created a realistic risk of danger to persons or property.This would clearly be the same onus that the Crown would have to satisfy if the presumption did not exist. To interpret the presumptionin this way would make it ineffective, essentially meaningless and, respectfully, this approach to

interpretation would be wrong at law.One final point. The Crown is not required to elect formally to rely on the presumption: R. v. Journeaux, [1992] O.J. No. 1400 (C.A.). [33] In my opinion, the Crown did not have to prove that Mr. Jonah's occupation of the driver’s seat created a realistic risk of danger inorder for the presumption created by s. 258(1)(

a) to apply. I find comfort in this

interpretation given that numerous courts across Canada,including R. v. Blair, 2014 ONSC 5327 , have reached the same conclusion. See also R. v. Brzozowski, [2013] O.J. No. 2483(S.C.J.), Oleskiw J. in R. v. Tharumakulasingam, 2014 ONCJ 362 , R. c. Normand, 2013 QCCS 369 and R. v.MacKenzie (2013), 50 M.V.R. (6th) 1 (Alta. Q.B.). [34] I would note, in passing, the comments of Mr. Justice Robertson from the Court of Appeal of New Brunswick in R. v. Mallery,2008 NBCA 18 , at par. 46: (…) If danger is not already an essential element of the offence, it should be, with one exception.

In cases where the Crown invokes thestatutory presumption and the accused is unable to rebut it, the accused is deemed to have care or control of the vehicle pursuant to s.258(1)(

a) of the Criminal Code. Hence, there is no need to embark on a danger inquiry. [Emphasis added] [35] Although the decision in Mallery, supra, was renderedprior to Boudreault, supra, from the Supreme Court of Canada,this passage, in my view, remains good law. For similar views,see R. c. Jubinville, 2014 QCCM 285 and R. v. Howitt,[2007] O.J. No. 1051. [36] I need hardly reiterate that Boudreault, supra, was squarely focused on s. 253(1) of the Criminal Code. While s. 258(1)(

a) wasreferred to in Fish J.’s reasons, the operation of the presumption was not an issue in that case because it had been rebutted by theaccused. Boudreault, supra, establishes that, when the Crown seeks to establish actual or de facto care or control, it is required to provea realistic risk of danger.

In my view, it does not follow that, when the accused is unable to rebut the presumption, the Crown mustprove this element. [37] As Browne, J. admirably explained in MacKenzie, supra, at par. 32: Boudreault dealt with de facto care or control, as the accused had rebutted the presumption at trial, it is therefore reasonable to assumethat the Supreme Court was aware of the comments made in R. v. Mallery and R. v. Burbella in regards to the risk of danger not being anelement of the statutory presumption.

The Court’s silence on this issue suggests that the pre-existing authorities were correct inconcluding that the presence or absence of danger will have no effect when the statutory presumption applies and is not rebutted. [Emphasis added] [38] Turning back to the facts of this case, I find that Mr. Jonah was occupying the driver's seat of the pick-up when Cst. Lutz arrivedat the scene. In these circumstances, the presumption in s. 258(1)(

a) of the Criminal Code applies and, therefore, the Crown is notrequired to prove a realistic risk of danger: Mr. Jonah is deemed to have had the care or control of the pick-up unless he establishes thathe did not occupy the driver's seat "for the purpose of setting the vehicle . . . in motion.". As noted, Mr. Jonah has not led evidence of hisintention and, in the totality of the circumstances, I find that he has not rebutted the presumption. (ii) Immoveable VS inoperable vehicles [39] The Defence further submits that the presumption has been rebutted by evidence that Mr.

Jonah’s pick-up was either immoveableor inoperable. I will therefore review the law on this very narrow and somewhat convoluted issue. [40] There is authority for the proposition that evidence of a vehicle which is “inoperable” in the sense that it cannot be driven iscapable of rebutting the presumption in s. 258(1)(

a) of the Criminal Code. In R. v. Amyotte, [2009] O.J. No. 5122, Durno J. stated (atpar. 102):

Unless an inoperable vehicle "defeats" the presumption or in itself precludes a finding of care or control, the onus was on the appellant to establish that he probably did not occupy the seat for the purpose of setting the vehicle in motion. [41] Of course, I recognize that a distinction is drawn in Amyotte, supra, between vehicles that are "inoperable" and those that are "immoveable". Only the former defeats the presumption. As I understand the distinction, "immoveable" vehicles are those which are temporarily incapable of moving but which may become moveable . [42] Let us recapitulate.

Amyotte , supra, stands for the proposition that an inoperable vehicle may defeat the presumption found in s. 258(1) (

a) or, in itself, precludes a finding of care or control. At the same time, the court in Blair , supra, suggests that the Crown is not required to prove a realistic risk of danger for the presumption to apply. Are those two decisions inconsistent? [43] In my view, Amyotte, supra, and Blair, supra, can be reconciled. In cases where the presumption in s. 258(1) (

a) applies, a realistic risk of danger is presumed. The decision in Amyotte, supra, suggests that this "secondary presumption" can be rebutted by evidence that the vehicle is inoperable. However, it is for the Defence to rebut that presumption. As Blair, supra, makes clear, there is no onus on the Crown to establish a realistic risk of danger. See also R. v. Coomansingh, [2014] O.J. No. 5120 (QL) . [44] Returning to Amyotte, supra , Durno J. considered a number of cases involving immoveable vehicles, all of which were stuck in some way in a ditch or elsewhere.

In each of these cases, there was a realistic possibility that the vehicle could become unstuck and then be driven, which is why the presumption remained intact. In particular, Durno J. comments as follows with respect to immoveable vehicles: 109 While the police officers and trial judge referred to the truck as "inoperable," there was no evidence it was inoperable, in the sense that it could not be driven. The truck was immoveable or immobilized, being stuck on the tree and/or in the mud. It was incapable of being moved without the assistance of a tow truck.

There was no evidence that the truck could not have been driven had it become unstuck . The investigating officer's first description of the truck's condition was that it was inoperable in terms of getting it out of that spot . The truck had been driven up the hill. It became stuck against a tree. The hood remained warmer than the air. The only reasonable inference is that the vehicle was drivable, but temporarily immoveable without the assistance of a tow truck. 110 I am not persuaded that an immoveable vehicle in itself defeats the presumption or removes an essential element of care or control.

I reach this conclusion relying on several care or control cases from the Court of Appeal in which immoveable vehicles were involved and convictions entered. [Emphasis added] [45] Likewise, in R. v. Coomansingh, supra, the s . 258(1) (

a) presumption applied to the accused being in care or control of a vehicle given that he was found in the driver's seat. He failed to rebut the presumption. An absence of risk of danger could possibly rebut the presumption if evidence had been led, but there was no onus on the Crown to establish a realistic risk of danger. An immoveable vehicle did not defeat the presumption, while an inoperable vehicle might. There was no evidence that the car could not have been extricated with additional effort.

The accused was convicted of being in care or control of a motor vehicle with alcohol over the legal limit based on the breath sample evidence. [46] The facts of this case are strikingly similar to those in Amyotte, supra . While Cst. Lutz admitted on cross-examination that Mr. Jonah’s pick-up was "inoperable," and Defence counsel argued accordingly on closing arguments, there was no evidence it was “inoperable” in the sense that it could not be driven.

In fact, the word “immoveable” was just as often alluded to at trial. [47] What is clear, on the evidence before me, is that the pick-up was immoveable or immobilized, being stuck on a snow bank in a ditch. However, there is no evidence that it could not have been extricated with additional efforts. Similarly, t here was no evidence that the pick-up could not have been driven had it become unstuck. It was simply incapable of being moved without the assistance of a tow truck or someone better equipped than Mr. Hillier. [48] Moreover, shortly after 8:35 p.m., Mr. Jonah admitted to Cst.

Lutz that he drove the pick-up in the ditch until he became stuck on a snow bank. The only reasonable inference is that the pick-up was drivable, but temporarily immoveable. In other words, this is not a case where the pick-up was inoperable in the sense that it could not be driven given property damage. Consequently, I find that the presumption found in s. 258(1) (

a) remains intact. [49] In

summary, I am not persuaded that where, like here, a vehicle is found immoveable, it defeats the presumption of care or control found in s. 258(1) (

a) of the Criminal Code . It bears underscoring that an immoveable vehicle does not defeat the presumption while an inoperable vehicle might. Likewise, the absence of a risk of danger could possibly rebut the presumption if evidence is being led, but there is no onus on the Crown in such case to establish a realistic risk of danger. [50] While I accept, on the basis of Amyotte , supra , that evidence that a vehicle is inoperable can defeat the presumption in s. 258(1) ( a ), on the facts of this case, I do not find that the pick-up was inoperable.

Accordingly, the presumption applies and the Crown has proven that Mr. Jonah was in care or control of the pick-up at the time Cst. Lutz arrived on scene shortly after 8:30 p.m on February 23, 2013. The Certificate of the Qualified Technician being admitted into evidence, the Crown has also proven that Mr. Jonah’s blood alcohol was over 80 mg of alcohol per 100 ml of blood. (iii) de facto care or control [51] Even if, contrary to my view, Mr. Jonah had rebutted the statutory presumption, or in the event that I am wrong in adopting the rationale and conclusions in R. v.

MacKenzie , supra, when considering the evidence as a whole, it is clear that Mr. Jonah had de facto care or control of his pick-up when Cst. Lutz arrived on scene. This is because: (

a) he admitted to Cst. Lutz: “I hit the brakes and I just went into the ditch”; (

b) he was occupying the driver's seat when Cst. Lutz attended the scene; (

c) he did not leave the scene and nothing in his conduct indicates to me that he took any steps or even intended to divest himself of care or control of his pick-up. For similar views, see, for instance, R. v. Gooden, [2013] O.J. No. 2847 (QL) .

[52] It is also my opinion that there was a realistic risk that Mr. Jonah might re-enter his pick-up and drive. Although the pick-up was immovable when Cst. Lutz attended the scene, there was no evidence, nor was any reasonable doubt raised, that the pick-up could not be driven. I find that, but for the intercession of Cst. Lutz, there was a realistic risk Mr. Jonah would try to drive away. This is not speculation. I draw this inference based on the evidence before me. Let me explain. [53] The scene of the accident was not in a remote or untraveled area.

The Crown’s evidence, which I accept, is that Waterford Road is borrowed by traffic going to and from Poley Mountain. Therefore, in my view, it is expected that, at some point, Mr. Jonah would stop other automobilists and seek assistance to haul his pick-up back on the Road. That is exactly what he did with Mr. Hillier and, as noted, he became increasingly persistent. With someone so determined to set the pick-up in motion, as Mr. Jonah was that night, and with no real evidence that it was inoperable in the sense that it could not be driven, there was clearly a realistic risk of danger. IV.

Conclusion [54] The Crown has proven beyond a reasonable doubt that Cst. Lutz made an ASD demand to Mr. Jonah “forthwith” and in compliance with s. 254(2) of the Criminal Code . It also meets the immediacy requirement. [55] I also find that Cst. Lutz had objectively reasonable grounds for believing the ASD was in working order.

On the facts of this case, t here was no requirement that she testify as to the exact date it was last calibrated . [56] There is no evidence before me, but only pure speculation, that the ASD was not working properly or was giving inaccurate readings as a result of outside temperature. [57] In the result, the Certificate of the Qualified Technician is admitted into evidence and it establishes blood alcohol level of Mr. Jonah over the legal limit. [58] If the Crown establishes that an accused was found in the driver’s seat of a motor vehicle, then the presumption in s. 258(1) (

a) is engaged. Once the presumption is engaged, an accused must establish on a balance of probabilities that he did not occupy the driver’s seat for the purpose of putting the vehicle in motion. If an accused fails to rebut the presumption, the court must find that he was in care or control of the motor vehicle. A court does not need to determine whether or not there was a realistic risk of danger.

Put differently, a realistic risk of danger is embedded in the presumption created by s. 258(1) (a). [59] Only if and when the court finds that the presumption is rebutted, it must also assess the evidence to determine whether de facto care or control has been proven by determining whether a realistic risk of danger to persons or property may arise. [60] On the totality of the evidence, I find that the Crown has proven beyond a reasonable doubt that Mr. Jonah was in care or control of a motor vehicle while his blood alcohol level was over the legal limit.

Therefore, I find him guilty of the offence under s. 253(1) (

b) of the Criminal Code . [61] Due to the rule against the entry of multiple convictions applicable in these circumstances, I enter a conditional stay on the s. 253(1) (

a) charge. Dated at Sussex, New Brunswick, this 20 th day of February 2015. ____________________________________ Marco R. Cloutier Judge of the New Brunswick Provincial Court