R. v. Kenderdine, 2019 MBPC 62

CITATION: R. v. Kenderdine, 2019 MBPC 62 THE PROVINCIAL COURT OF MANITOBA Virden Centre BETWEEN Her Majesty the Queen ) Richard Lonstrup ) ) for the Crown - and – ) ) ) Quinn C. Kenderdine ) ) Robert Harrison for the Accused Accused ) ) ) Reasons for Decision ) ) ) Delivered: December 13, 2019 at the Town of Virden, in the Province of Manitoba Hewitt-Michta, A.C.J. INTRODUCTION [ 1 ] Mr. Kenderdine left a bar after closing. Police intercepted him in the driver’s seat of his parked vehicle. There is no reliable evidence about the precise location of the keys at the relevant time.

The vehicle is equipped with command start. [ 2 ] Mr. Kenderdine was admittedly impaired and his blood alcohol concentration exceeded the legal limit. The only issue is whether he had care or control of the vehicle. The crown relies on the presumption in section 258(1) (

a) of the Canadian Criminal Code [CCC]. The defence asserts the accused’s evidence rebuts the presumption of care or control. Alternatively, the crown argues the accused had de facto care or control of the vehicle; that the accused engaged with the vehicle in a manner that created a realistic risk of danger to public safety. EVIDENCE [ 3 ] It was rodeo weekend in Virden and police had a watchful eye on the bars, alert to the possibility of impaired drivers. Around 3:30AM, Constable Maynard observed Mr. Kenderdine leave a bar and walk to the parking lot. The officer drove into the parking lot.

He saw vehicle headlights turn on then off. Constable Maynard approached the vehicle from the front and a second time saw headlights go on then off. [ 4 ] Mr. Kenderdine was the lone occupant. He was in the driver’s seat. He was not wearing a seatbelt. He demonstrated usual and obvious signs of impairment by alcohol, including a strong odor of liquor on his breath, slurred speech, watery bloodshot eyes, and difficulty producing documents. Once out of the vehicle, he was unbalanced and swaying from side to side. He used the vehicle to hold himself upright. Upon arrest for impaired driving, Mr.

Kenderdine was unsteady when walking and needed substantial police assistance

to get into the police truck. [ 5 ] Constable Maynard assumed the accused’s vehicle was running when he first approached the truck because of the headlight use, however, he could not say with certainty. The officer did not check for the presence of keys in the ignition. A pat down search prior to placing the accused in the police truck resulted in seizure of the vehicle keys from Mr. Kenderdine’s front pocket. [ 6 ] Officers who engaged with Mr. Kenderdine testified they observed signs of significant impairment throughout their dealings with him. Constable Foreman, who transported Mr.

Kenderdine from the scene to the police station, noticed the accused was sweating profusely, had difficulty getting out of the police truck and walking the short distance to the detachment office, and seemed confused. Entering the police station, officers said Mr. Kenderdine was wobbling and they once had to grab him to prevent him from falling. Officers testified they had difficulty deciphering Mr. Kenderdine’s words. [ 7 ] The officers all testified in a straightforward manner. They used notes made during their investigation to refresh their memories. They made seemingly appropriate concessions.

Their evidence was sensible. Their evidence did not falter under cross-examination. I find they were credible witnesses and I am satisfied their evidence is reliable. [ 8 ] Mr. Kenderdine testified. After attending the rodeo, he changed clothes and drove the 17km back to town for some drinks at the bar. He left his vehicle in a parking lot. He estimated he was in the bar from 11:00PM until after 3:00AM. He approximated his alcohol consumption at “ probably half a dozen beers ” and “ probably about four or five shots ”. He ordered his final drink at “ last call ”.

He denied an intention to drive, insisting he went to his vehicle to charge his cell phone so he could call his father to pick him up. [ 9 ] Mr. Kenderdine testified he used “command start” to start his vehicle. He was not specifically asked, but I understood him to say he started the vehicle as he was walking towards it, which would have caused the vehicle headlights to turn on and stay on. He testified that unlocking the vehicle also causes the lights to come on. The vehicle needed to be running to charge his phone but he did not intend to drive so he did not put the key in the ignition.

The vehicle will not drive unless the key is in the ignition. There was no risk of the vehicle rolling forward because of a barrier in front of the vehicle. [ 10 ] The accused testified police arrived at his vehicle within two or three minutes. Mr. Kenderdine did not seem to have a specific recollection of whether the vehicle was running when police attended [ 11 ] If unable to reach his father for a ride, Mr. Kenderdine suggested he would have walked twenty minutes to his brother’s home in Virden. [ 12 ] I did not find Mr. Kenderdine credible.

Inconsistencies and frailties in his evidence combined with his level of intoxication and the fact he lied to police during their investigation persuade me his memory and version of events are unreliable and self-serving. [ 13 ] It is apparent Mr. Kenderdine’s significant intoxication negatively affects his ability to recall the details of the incident. He admits consuming a substantial amount of alcohol. His blood alcohol concentration was 140 milligrams percent. His coordination and speech were significantly impacted.

He does not remember mistakenly passing the officer a twenty-dollar bill while searching for his license. He did not recall trying to tell police about “other people”. While testifying, he made approximations and used qualifiers like “probably”, “likely”, and “maybe”. [ 14 ] Mr. Kenderdine gave contradictory and confusing evidence. In direct examination, he said he knows he started the vehicle using the remote starter. Because the officer approached so quickly, he said he believes the vehicle would still have been running.

He went on to suggest that maybe he pushed the button to turn the vehicle off when he saw police. Later in direct examination, he said he did not know if the vehicle might have timed out and turned off when police arrived. In cross-examination, Mr. Kenderdine testified he believes the vehicle did turn off when the officer approached but denied turning it off intentionally saying it may have timed out or he may have bumped the remote in his pocket accidentally. Then Mr. Kenderdine denied ever saying he believed the engine was running, insisting that evidence came only from the police witnesses.

When challenged, Mr. Kenderdine conceded the possibility he intentionally turned the engine off when he saw the police. [ 15 ] Aspects of Mr. Kenderdine’s evidence were evasive and self-serving. When asked if he remembered talking to police about “other people”, he deflected saying what he did remember was suffering nerve damage from tight handcuffs. Further, he admitted telling police that he consumed only two beers four hours earlier. When asked whether he was deliberately lying to police or just mistaken, Mr. Kenderdine alleged he was mistaken.

When challenged, he continued to be evasive insisting it was just a mistake because he did not know exactly how many drinks he consumed. When pressed further, he admitted he lied to the police about the extent of his consumption. He said he lied because he has “ never had any luck with police ”. [ 16 ] Mr. Kenderdine’s demonstrated willingness to lie to avoid legal consequences contributes to my conclusion his evidence is not trustworthy. [ 17 ] Mr. Kenderdine’s evidence is not reliable. He was not a credible witness. ANALYSIS [ 18 ] The section 258(1) (

a) CCC presumption is obviously engaged. Police located Mr. Kenderdine sitting in the driver’s seat of his vehicle. Mr. Kenderdine admits he occupied the driver’s seat of the vehicle. [ 19 ] To rebut the presumption of care or control, Mr. Kenderdine must establish on a balance of probabilities that he did not occupy the driver’s seat to put the vehicle in motion. [ 20 ] There is no reliable evidence about whether the key was or was not in the ignition during the relevant time. When arrested, the key

was on Mr. Kenderdine’s person. [ 21 ] Mr. Kenderdine’s evidence was not forthright and is too unreliable to rebut the presumption of care or control even on a balance of probabilities. Mr. Kenderdine was very intoxicated. He was significantly impaired. His recall of the incident is demonstrably frail. During the investigation, he revealed an inclination or willingness to lie in order to escape legal consequences. [ 22 ] I place no weight on Mr. Kenderdine’s assertion that he remembers starting the vehicle remotely with the singular intention of charging his phone so he could call for a ride.

I have no confidence in the quality of his memory of the evening. His attempt to reconstruct and rationalize from hazy memory his past behaviour and intentions while highly intoxicated was wholly unconvincing. [ 23 ] Pursuant to section 258(1)(

a) CCC the accused is presumed to have been in care or control of the vehicle. [ 24 ] Failure to rebut the presumption means the court need not assess whether the evidence establishes beyond a reasonable doubt that the circumstances created a realistic risk of danger. Therefore, an exhaustive risk of danger analysis is unnecessary. [ 25 ] Setting aside the presumption, I would have convicted the accused based on de facto care or control. The accused was not wearing a seatbelt and there is no evidence he attempted to put the vehicle in motion. However, the accused’s level of impairment was substantial.

The keys were immediately available on his person. Whether by remote starter or via key in the ignition, the engine was running for a period. The accused was positioned in the driver’s seat and admittedly engaging with the vehicle. Mr. Kenderdine was alone and a significant distance from his home. He drove himself to the licensed premise with the intention of drinking and without a formalized plan to get home. He had a cell phone but was inattentive to battery life casting doubt on his stated intention of calling for a ride.

If he had been unable to reach his father by phone, his feigned plan of walking twenty minutes to his brother’s home was wholly unrealistic given police observations of his physical condition and coordination. There were no open businesses or services proximate to the accused’s location. Even giving the accused the benefit of the doubt that he intended to try calling for a ride, were he unsuccessful, his conduct in relation to the motor vehicle created a realistic risk that he would drive while impaired thereby creating a danger to the public.

CONCLUSION [ 26 ] The evidence establishes the accused had care or control of the motor vehicle. The crown proved all elements of the

section 253(

a) and (

b) CCC offences beyond a reasonable doubt. “original signed by ACJ Hewitt-Michta” Associate Chief Judge S. Hewitt-Michta