Her Majesty the Queen - v. -, 2011 SKPC 130

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 130 Date: August 22, 2011 Information: 24299628 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Riley M. Ross Appearing: Tom Macnab For the Crown Aaron Fox For the Accused JUDGMENT M.L.

GRAY , J BACKGROUND [ 1 ] On September 27, 2009 at Kindersley, Saskatchewan, Riley Ross was charged with having the care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol contrary to ss. 253 and 255 of the Criminal Code and secondly, with having the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to ss. 253 and 255 of the Criminal Code .

[2] The matter proceeded to trial with two witnesses called for the Crown and two for the defence. Much of the evidence wasnot disputed and at the conclusion, Crown counsel conceded that impairment had not been established within the meaning of R. v.Stellato, (ON CA), [1993] O.J. No. 18 (C.A.), affd. (SCC), [1994] 2 S.C.R. 478 (S.C.C.). It wascommon ground that the presumption of care or control as set out in s. 258(1)(

a) of the Criminal Code did apply. The two questions leftfor the Court to determine were whether the evidence rebutted that presumption and if it did, whether the evidence established that theaccused had de facto care or control. EVIDENCE [3] Constable Bowey was on patrol in Kindersley with his partner at about 3:00 a.m. on September 27, 2009, when he noted acar parked at a 45 degree angle at a residential intersection. Given the unusual manner in which the vehicle was parked and the fact thatthe headlights were on caused the officers to approach the vehicle to check the occupants.

The accused was found behind the driver’swheel and was wearing his seat belt. The driver’s side window was down, the engine was running and the stereo was playing. Therewas a passenger in the vehicle with whom his partner, Constable Anderson, dealt. [4] The accused had red, glassy eyes and initially indicated that he had not had any alcoholic beverages; however, the officernoted a faint smell of alcohol from his breath and when confronted, the accused acknowledged he had one beer.

The officer felt that ademand for an approved screening device would be appropriate but as he was not qualified to take such samples, he advised ConstableAnderson of his observations of the accused. After a brief conversation with Constable Anderson, he returned to speak to the accusedand advised him he was being detained for impaired care and control. [5] At 3:05 a.m., Mr. Ross was asked to step from his vehicle and enter the patrol car. Constable Bowey heard ConstableAnderson read the demand for the approved screening device and watched him administer the test.

He saw that the device registered an“F”, which to his knowledge means that the blood alcohol being measured is more than 100 milligrams of alcohol in 100 millilitres ofblood. Based solely on that reading, he formed the opinion that the accused’s ability to operate a motor vehicle was impaired by alcoholand at 3:09 a.m., Mr. Ross was arrested.

He was advised of his right to counsel and said that he did not wish to call a lawyer. [6] The demand for breath samples was made at 3:11 a.m., but they remained at the scene to wait for other peace officers tosecure the accused’s car which was illegally parked and potentially a hazard to other traffic. They then proceeded to the RCMPDetachment where they arrived at 3:24 a.m. [7] Constable Anderson was the operator of the Intoxilyzer 5000 and the accused provided two suitable samples.

TheCertificate of Analyses was marked as P1 and reveals that both tests resulted in readings of 130 milligrams of alcohol in 100 millilitres ofblood. A true copy of that certificate was served on the accused prior to his release from custody. [8] Constable Bowey described Mr. Ross as a quiet, sad, polite, cooperative and respectful young man who demonstratedminimal symptoms of impairment. [9] Constable Bowey testified as to a conversation he had with the accused in the patrol car at approximately 3:11 a.m.

Hisrecollection was that the accused told him he had three beer since midnight at his friend’s house and that he had gone to get his car inorder to give the female a ride home. He did not know the girl’s name. There were no issues with respect to the voluntariness oradmissibility of this statement. [10] In cross-examination, the officer acknowledged that his handwritten notes contained no reference to that conversation, but itwas included in his written report which was prepared 22 hours later. He did not speak directly to the female passenger who he laterlearned to be Kaitlin Bleile.

The officer understood that the accused was waiting for another person and he drew a conclusion that theaccused was intending to give Ms. Bleile a ride home. [11] Constable Bowey also acknowledged that he did not make a handwritten note about the accused wearing his seat belt, but did

include that observation in the written report which he prepared the next day. [ 12 ] The officer testified that it was raining, windy and cool while he was speaking to the accused. Constable Burns Anderson [ 13 ] Constable Anderson is an officer with almost eight years experience with the Royal Canadian Mounted Police. On September 27, 2009, he was on patrol with Constable Bowey when his partner pointed out a motor vehicle which was illegally parked. They approached this vehicle and activated the overhead emergency lights as they did so.

Constable Bowey spoke to the accused and reported some signs of alcohol consumption. Constable Bowey also expressed the opinion that an approved screening device demand would be appropriate. [ 14 ] As a result, Constable Anderson spoke to the accused who confirmed that he had consumed alcohol; Constable Anderson also detected a faint smell of beverage alcohol from the accused. Consequently, he read the approved screening device demand.

The accused did not demonstrate any significant symptoms of impairment and the approved screening device demand was based upon the admission of drinking and the smell of alcohol. [ 15 ] Constable Anderson was qualified in the use of the approved screening device in 2004 and on September 17, 2009, he used an Alcotest 7410 GLC. As the accused denied consuming alcohol in the preceding 15 minutes, Constable Anderson promptly administered the roadside test and received a “fail” reading at 3:05 a.m.

Constable Bowey, having observed the “fail”, read the accused his rights to counsel and made the breath demand. [ 16 ] Other officers were called to deal with the illegally parked vehicle which was moved and parked legally. [ 17 ] Constable Anderson did not speak to the accused about what he was doing or where he may have been going. Riley M. Ross [ 18 ] Mr. Ross is a 22 year old farmer and apprentice plumber. In September 2009, he was living in Kindersley to play Junior A hockey. On the 26 th of September, his hockey team won a game and gathered afterward at the residence of one of the players.

He and his roommate ate at a local fast food restaurant, then bought 18 beer before driving to the party which was being held at a home only ten houses away from his own. He parked at an unusual angle because space was at a premium, but did not feel concerned for the safety of his car because it was a residential area in a small town. His intention was to walk home after the party. As his father is a police officer, he grew up well aware of the dangers of drinking and driving.

Further, such conduct could have jeopardized his future in hockey. [ 19 ] He arrived at the party about 11:00 p.m. where more than 20 people were in attendance. When the homeowners began to call an end to the party, he walked outside to wait for his roommate as they shared a key to their basement accommodation and they did not want to wake their landlord twice by entering separately. While waiting, he saw a girl who he later learned was Kaitlin Bleile. She told him that she was waiting for her ride home.

Because it was cold and windy, he offered her the shelter of his car which he started, then turned on the radio and the heater. He reclined his seat because he had no intention to drive; he did not put on his seat belt. [ 20 ] His car had a standard transmission with the emergency brake located between the front seats; he engaged that brake when he initially parked. In order to set the vehicle in motion, the brake would have to be disengaged, the clutch pushed in, a gear selected and the gas pedal depressed while simultaneously releasing the clutch.

He had taken none of those steps prior to being approached by police nor had he any intention of doing so. [ 21 ] Ms. Bleile drew his attention to the police car, and once he saw the emergency lights, he pulled out his driver’s licence and

registration. He told the officer that he had one beer and confirmed that he was ultimately asked to provide a breath sample at theroadside which resulted in a fail reading. He was then taken to the police station. [22] In cross-examination, the accused acknowledged that he could have completed the steps necessary to set the car in motion inabout five seconds. He admitted that he had five or six beer that evening, not just one as he told the officer. He agreed that he wasfeeling the effects of the alcohol. He denied telling the police officer that he retrieved his car in order to give Ms. Bleile a ride.

Kaitlin Bleile [23] Ms. Bleile is a resident of Kindersley and recalled attending the party referred to by the accused. When it was time to leave,she went outside to wait for a “guy friend” who was the designated driver for the evening. She did not know the accused and did nothave any discussion with him about a ride home. In cross-examination, she said that she met the accused for the first time at the party. [24] She has not discussed the events of that evening with him although she did speak to someone from the office of defencecounsel on September 30, 2009.

The only reason that she got into the accused’s vehicle was to take shelter as it was windy and cold withwet snow falling. The accused told her that he was waiting for his roommate and never offered her a ride; she was confident that herfriend would collect her. She admitted that the engine was running, that the heater was on, but could not recall whether the accused waswearing his seat belt. She did not notice anything unusual about the way that the car was parked.

DEFENCE POSITION [25] Counsel for the accused argues that although the presumption of care or control applies, the accused has rebutted thatpresumption. Further, the accused gave credible evidence, which was corroborated by Ms. Bleile, that the vehicle was only being usedas shelter and the Crown has not proven actual care or control in the face of this evidence. CROWN POSITION [26] The Crown argues that the circumstances show de facto care or control.

The manner in which the vehicle was stopped isconsistent with having stopped to pick up a passenger and not consistent with the manner in which a car would be parked normally. Further, if the Court accepts that the accused was indeed wearing his seat belt, this provides circumstantial proof that the intention of theaccused was to drive away. Similarly, if the Court accepts that the accused was apologetic in explaining to the officer that his intentionwas to give Ms. Bleile a ride, this too provides evidence of his intent.

Finally, the Crown argues that these are the kind of circumstancesin which the accused might change his mind about driving, thus incurring the risk which the legislation is designed to prevent. THE LAW AND APPLICATION (

i) Does the evidence rebut the presumption set out in s. 258(1)(a)? [27] Section 258(1)(

a) of the Criminal Code deems that a person who occupies the seat normally occupied by the operator of amotor vehicle has the care or control of that motor vehicle. This presumption can be rebutted by evidence, which if accepted, establisheson a balance of probabilities that the accused did not assume that position with the intention of setting the vehicle in motion: see R. v.Ford, [1982] S.C.R. 231 (S.C.C.) at para. 6 and R. v.

Shuparski, 2003 SKCA 22 , 2003 SKCA 022 at para. 23. [28] The accused has testified that he had no intention to drive and that his car simply provided a warm place for him and Ms.Bleile to wait when the party drew to an end. Constable Bowey and Ms. Bleile both provide supportive evidence that the weather wouldwarrant taking shelter; it is uncontradicted that the parents hosting the party were bringing it to a close. Ms. Bleile confirms the evidenceof the accused that there was no plan to drive as she was expecting a ride from someone else. Further, the accused lived a very short

distance away. On the whole of this evidence, I am satisfied on a balance of probabilities that the presumption of care or control has beenrebutted and that the accused did not enter the vehicle for the purpose of setting it in motion. (ii) Does the evidence establish de facto care or control? [29] Where there is found to be evidence capable of rebutting the presumption, it is open to the Crown to prove actual care orcontrol by establishing both the actus reus and mens rea of the offence without relying on the presumption set out in s. 258(1)(

a) of theCriminal Code. In R. v. Toews, (SCC), [1985] 2 S.C.R. 119 at para. 7, the Supreme Court of Canada defined theelements of care or control as follows: ...the mens rea for having the care or control of a motor vehicle is the intent to assume care or control after the voluntary consumption ofalcohol or drug. The actus reus is the act of assumption of care or control when the voluntary consumption of alcohol or drug hasimpaired the ability to drive. [30] An intent to drive or set the vehicle in motion is not essential to the proof of the offence of care or control.

Rather as stated inToews, supra at para. 10: ...acts of care or control ...are acts which involve some use of the car or its fittings and equipment, or some course of conduct associatedwith the vehicle which would involve the risk of putting the vehicle in motion so that it could become dangerous. Each case will dependon its own facts and the circumstances in which acts of care or control may be found will vary widely. [31] Nor will the act of starting the engine of a motor vehicle amount to care or control in every instance: see R. v. Buckingham,2007 SKCA 32 (Sask. C.A.) at para. 23.

Rather what is required is some act such as starting the vehicle with the intention of driving orsome act or course of conduct in relation to the vehicle which creates a risk that the vehicle will be set in motion inadvertently or thatthere is a significant likelihood that the vehicle will deliberately be set in motion. A negligible risk of either occurring is insufficient tofound a conviction: see Shuparski, supra, Buckingham, supra, R. v. Bodnaruk, 2010 SKPC 97 , 2010 SKPC 097 (Sask. P.C.),and R. v. Gervan, 2009 SKQB 159 (Sask.

Q.B.). [32] Clearly, if the Court accepts that the accused expressed an intention to drive, actual care or control is made out. In weighingthe evidence as a whole, I find that the evidence of the accused and Ms. Bleile has created a reasonable doubt with respect to theconversation reported by Constable Bowey. I have no doubt that the officer believed that the accused was about to drive Ms. Bleilehome, and that the circumstances in which the car was parked might well have caused him to draw the inference that the accused hadjust pulled up to pick up a passenger.

Although his report referenced an admission from the accused as to his intention, that conversationwas not recorded contemporaneously, nor was it recorded in a question and answer format with a view to creating the most accuraterecord possible. Similarly, there was no contemporaneous note made of whether the accused was wearing a seat belt; rather this notationalso was made after the fact. These circumstances coupled with the defence evidence creates a question with regard to the reliability ofthe officer’s evidence on points which are central to the question of care or control.

Having said that is not to suggest that the officer wasdishonest or fabricating the admissions which he believed were made by the accused; it simply raises a doubt as to whether his belief wasbased solely on words spoken by the accused or whether that belief was based on an inference or conclusion drawn from the presence ofMs. Bleile in the car, the manner in which the car was parked and the demeanour of the accused which he described as apologetic. Afterweighing the evidence as a whole, I am not satisfied beyond a reasonable doubt that the accused specifically stated that he was going todrive Ms.

Bleile home. [33] Given the number of steps required to set this particular car in motion, I am satisfied that the risk of doing so inadvertently isnegligible. Similarly, the Court is not satisfied that there was a realistic probability that the accused would change his mind aboutoperating the vehicle. In coming to this conclusion, I note that there is no evidence that the accused had driven after consuming alcohol,he was well aware of the dangers of drinking and driving and the potential consequences, and he had a plan to leave the vehicle and walkto his residence which was very near.

Most significantly, the evidence of the accused was supported in large part by Ms. Bleile whopresented as a neutral witness with no particular connection to the accused. CONCLUSION [34] With respect to the charge of impaired care or control, I am satisfied that there is no evidence to establish an impairment of

the ability to operate a motor vehicle as enunciated in Stellato, supra . In view of the findings with respect to the presumption of care or control and the absence of proof beyond a reasonable doubt of actual care or control, the accused is accordingly found not guilty of both counts. ________________________________ M.L. Gray, J