Her Majesty the Queen - v. -, 2014 SKPC 164

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 164 Date: August 15, 2014 Information: 24487792 Location: Southey _____________________________________________________________________________ Between: Her Majesty the Queen - and - Daryl Shewchuk Appearing: Mr. D. Maher For the Crown Mr. B. Nychuk For the Accused DECISION AFTER TRIAL M. HINDS , J Introduction [ 1 ] Around 10:40 p.m. on March 16, 2013, Corporal Logan found Mr. Shewchuk sitting in the driver ’ s seat of a Ford Escape motor vehicle which was parked in the centre of a grid road.

The motor of the Ford Escape was running and the headlights and radio were on. Mr. Shewchuk was initially slumped against the driver ’ s door and had to be awakened by Corporal Logan. [ 2 ] Mr. Shewchuk was charged as follows:

on or about the 16 th day of March A.D. 2013 near the Resort Village of Island View in the Province of Saskatchewan while his ability to operate a motor vehicle was impaired by alcohol did have the care and control of a 2004 Ford Escape contrary to section 253(1) (

a) of the Criminal Code . [ 3 ] At the onset of the trial, counsel for Mr. Shewchuk admitted that Mr. Shewchuk was impaired by alcohol on March 16, 2013. The Defence took the following positions: (1) the defence of necessity is available to Mr. Shewchuk; and

(2) Mr. Shewchuk did not have care and control of the vehicle at the relevant times. Issues [ 4 ] There are two issues at trial: 1. Does the defence of necessity apply to Mr. Shewchuk ’ s operation of a motor vehicle while he was impaired by alcohol? 2. Was Mr. Shewchuk in care and control of the motor vehicle when he was found by Corporal Logan? Decision in Brief [ 5 ] I found that the defence of necessity was not available to Mr. Shewchuk. I also found that Mr. Shewchuk was in care and control of the motor vehicle when he was found by Corporal Logan. Facts [ 6 ] On March 16, 2013, Mr.

Shewchuk decided to go ice fishing at Last Mountain Lake, Saskatchewan. He left home around 7:30 a.m., got to the lake and parked the Ford Escape motor vehicle he was driving at Island View Beach launch. It was a cold winter day in Saskatchewan. The temperature at 8:00 a.m. was -15.7 degrees Celsius. The temperature at 10:00 p.m. was -25 degrees Celsius. Mr. Shewchuk was dressed for the cold weather. He began ice fishing in his portable ice shack around 9:00 to 9:30 a.m. He was joined by his friend Mike Fink. The two men fished during the day. They did not catch any fish. [ 7 ] Around 3:00 p.m. Mr.

Shewchuk and his friend helped free a nearby vehicle that was stuck on the ice. For their efforts, Mr. Shewchuk and his friend were given three beers which they consumed. [ 8 ] Mr. Shewchuk ’ s friend decided to stop fishing around 6:00 p.m. He drove Mr. Shewchuk across the lake and dropped him and his portable ice shack about 100 to 200 yards away from the Island View Beach launch where Mr. Shewchuk had parked his vehicle. Mr. Shewchuk fished by himself for awhile. Between 7:30 p.m. and 8:00 p.m. Mr. Shewchuk pulled his portable ice shack and equipment to his vehicle.

On the way he helped push another vehicle out of a snowbank. The last person he assisted poured Mr. Shewchuk a couple of drinks. These drinks were free poured into a Solo cup and consisted of vodka mixed with Coke. Mr. Shewchuk did not know how much vodka was poured into each of his two drinks. He candidly stated in chief that “ It was quite a lot ” . He also testified that he had not consumed any alcohol for the past 15 months. [ 9 ] After drinking the vodka cokes, Mr. Shewchuk packed his ice fishing equipment and gear, including his skidoo suit, in his vehicle. Mr.

Shewchuk then got into his vehicle around 9:00 p.m. and started it. Mr. Shewchuk testified at this point he started to warm up and he felt the effects of the alcohol. He added that as he hadn ’ t eaten since lunch, he felt “ impaired ” and “ really drunk ” and he knew he shouldn ’ t drink and drive. By this time Mr. Shewchuk was alone in the parking lot of the Island View Beach launch.

[10] Mr. Shewchuk became concerned with his situation. He got out his Blackberry cell phone. He planned on calling a friend,who lived nearby at Saskatchewan Beach to assist him. He was unable to use his Blackberry cell phone as he could not correctly type inhis password (1212) or the word “Blackberry”. He attributed his inability to use his cell phone to (1) his numb fingers; (2) his eyesight,he did not have his reading glasses; and (3) the fact that he was feeling impaired. [11] Mr. Shewchuk decided to drive his vehicle to a place where he would be more visible.

He testified that he was hoping to befound by “someone other than the R.C.M.P.” He left the parking lot of Island View Beach launch and drove approximately a third of amile up a hill on to a grid road. He also testified that he “deliberately parked in the middle of the road, so someone would find me.” [12] This portion of the road was near an acreage and close to Island View, Saskatchewan. Mr. Shewchuk testified that he did notthink that anyone would be at either of these places, though he did not make any effort to confirm this. [13] At approximately 10:40 p.m., R.C.M.P. Corporal Logan found Mr.

Shewchuk, parked in the middle of a well used grid roadwith the headlights on the high beam setting and the radio on. The engine was also running. The vehicle’s emergency lights were notactivated. Mr. Shewchuk himself was asleep in the driver’s seat. He had a cell phone between his legs. [14] Corporal Logan approached Mr. Shewchuk’s vehicle and knocked on the driver’s door. There was no response. He opened thedriver’s door and nudged Mr. Shewchuk and asked if he was okay. After a few seconds Mr. Shewchuk opened his eyes and stared atCorporal Logan for approximately 30 seconds. Initially Mr.

Shewchuk asked “Where are you?” Corporal Logan told him “by IslandView and Rowan’s Ravine.” Mr. Shewchuk also asked Corporal Logan if he “could help me.” Corporal Logan smelled liquor comingfrom Mr. Shewchuk’s breath. He asked Mr. Shewchuk to accompany him to the police car. Corporal Logan observed Mr. Shewchuk’smovements to be slow and deliberate. He also observed Mr. Shewchuk to stumble once when getting into the police vehicle. Once inthe police vehicle Corporal Logan again smelled beverage alcohol coming from Mr. Shewchuk. [15] Corporal Logan arrested Mr.

Shewchuk for impaired care and control of a motor vehicle and read him his Charter rights and police warnings. Analysis Does the defence of necessity apply to Mr. Shewchuk’s operation of a motor vehicle while he was impaired by alcohol? [16] While Mr. Shewchuk has admitted that he was impaired by alcohol on March 16, 2013, he takes the position that his actionswere necessary.

While necessity is spoken of as a defence, it is more accurate to think of it as an attack on the assumption ofvoluntariness. [17] For the Court to consider the defence of necessity, I must first demonstrate that there is an air of reality to this claim. Therequirements for the air of reality are outlined in R. v. Cinous, 2002 SCC 29 at para. 49. The question is whether a properly instructedjury, acting reasonably, could acquit on the basis of the evidence. [18] This is a low threshold, and I am satisfied that there is an air of reality to this argument.

As such, the burden of proof shifts backto the Crown, who must prove that necessity is not available to this accused. [19] In R. v. Perka, (SCC), [1984] 2 S.C.R. 232, the Supreme Court of Canada set out 10 elements of the defence of necessity. They are: 1. The defence of necessity could be conceptualized as either a justification or an excuse; 2. It should be recognized in Canada as an excuse, operating by virtue of s. 7(3) of the Criminal Code;

3. Necessity as an excuse implies no vindication of the deeds of the actor; 4. The criterion is the moral involuntariness of the wrongful action; 5. This involuntariness is measured on the basis of society’s expectation of appropriate and normal resistance to pressure; 6. Negligence or involvement in criminal or immoral activity does not disentitle the actor to the excuse of necessity; 7. Actions or circumstances which indicate that the wrongful deed was not truly involuntary do disentitle; 8.

The existence of a reasonable legal alternative similarly disentitles; to be involuntary the act must be inevitable, unavoidable and afford no reasonable opportunity for a course of action that does not involve a breach of the law; 9. The defence only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril; and 10. Where the accused places before the Court sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt. [ 20 ] In R. v.

Latimer , 2001 SCC 1 at paras. 29-31 , the Supreme Court of Canada set out a more specific test for necessity. The requirements are that: 1. There must be an urgent situation of clear and imminent peril; 2. There must be no reasonable legal alternative to disobeying the law; and 3. There must be proportionality between the harm inflicted and the harm avoided.

The third requirement is objective, the first and second are to be decided on a modified objective standard, taking into account the situation and characteristics of the accused. [ 21 ] There is another requirement of necessity, which is that necessity is not available when the accused should have expected the necessitous situation to occur.

There is some debate as to whether or not this is a fourth “ contributory fault ” category to the test set out in Latimer , or whether or not putting oneself in harms way is simply a lawful alternative, under the second stage of Latimer . [ 22 ] For simplicity, I will discuss it as a fourth requirement, as was done by this Court in R. v. M.(S.R.) , 2010 SKPC 93 , 361 Sask. R. 46 .

For this category to be engaged, the necessitous situation must be “ clearly foreseeable to a reasonable observer, if the actor contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law. ” ( R. v. V.(C.W.) , 2004 ABCA 208 , 2 M.V.R. (5 th ) 165 ). An Urgent Situation of Clear and Imminent Peril [ 23 ] The first requirement asks whether “ at minimum, the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable. ” ( R. v.

Perka , supra ) [ 24 ] Cold weather could meet the requirement for the first stage of the Latimer test. In this case, it is conceivable that Mr. Shewchuk could have been injured, or died, had he done nothing at all. Depending on the precise conditions, it is entirely possible, and even likely, that normal human instincts would cry out for action. It is fairly well established that medical emergencies may result in an urgent situation of clear and imminent peril, see R. v. Trencs , 2011 ONSC 450 , 8 M.V.R. (6 th ) 135 ; R. v. Costoff , 2010 ONCJ 109 , 74 C.R. (6 th ) 369 ; R. v.

Desrosiers , 2007 ONCJ 225 , 48 C.R. (6 th ) 85 . The Absence of Reasonable Legal Alternatives [ 25 ] The second stage of this test acts to limit the scope of permissible action, when human instincts cry out for action.

[26] This stage of the test is important. In R. v. Perka, supra at para. 42 the Court held that “the importance of this requirement thatthere be no reasonable legal alternative cannot be overstressed”. The courts should not consider unreasonable legal alternatives, but mustconsider a realistic appreciation of the alternatives open to the accused. [27] In this case, the evidence was clear that Mr. Shewchuk had spent the entire day ice fishing, and had appropriate gear and clothingto do so.

While his gear and clothing (skidoo suit) was loaded in the vehicle, he could have put his skidoo suit back on and unloadedwhatever else he needed and then simply remained inside the vehicle. He could have ran the engine from time to time for heat. Once hewas more sober he also could have again attempted to use his phone, including dialling 911. [28] As such, I am not satisfied that Mr. Shewchuk had no reasonable legal alternatives to driving while impaired.

Proportionality Between Harm Inflicted and the Harm Sought to be Avoided [29] Had there been an absence of a reasonable legal alternative, it is possible that the harm inflicted in this situation would have beenproportional to the harm sought to be avoided. [30] The harm that Mr. Shewchuk was trying to avoid was very serious. He could have been injured, or even died from the cold. While it is very clear that drinking and driving is a serious problem in Saskatchewan, the fortunate fact is that there was no injury causedto anyone in this situation.

Additionally, the fact that he drove a short distance and stopped on the grid road instead of continuing homedoes suggest that he was considering the proportionality of his actions. On the other hand it is noted that Mr. Shewchuk stopped hisvehicle in the middle of the grid road and did not engage his emergency lights and presented a very real hazard to other motorists. Contributory Fault [31] Underlying the R. v. Latimer factors is the very simple fact that Mr. Shewchuk did not need to drink alcohol to the point ofimpairment, without an alternative way to get home. He did not need to drink beer that afternoon.

He did not need to drink vodka afterhelping another driver get out of the snow, particularly given that he did not know how much liquor was in each of the cups. [32] Had Mr. Shewchuk chosen to not drink alcohol, drink less alcohol, or arranged an alternate way to get home since he wasdrinking, this situation would not have arisen. In my view it is not just clearly foreseeable, but extremely probable, that continuedalcohol consumption will lead to impairment.

This is particularly true if one has not consumed alcohol in over a year. [33] In sum, I am satisfied beyond a reasonable doubt that the defence of necessity is not available to Mr. Shewchuk. Was Mr. Shewchuk in care or control of the vehicle when Cpl. Logan encountered him? [34] Section 258(1)(

a) of the Criminal Code provides in part: ... where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle...theaccused shall be deemed to have had the care or control of the vehicle ... unless the accused establishes that the accused did not occupythat seat or position for the purpose of setting the vehicle ... in motion ... [35] The issue of care or control has been extensively litigated in Canada, and there is a significant list of appellate court decisionsto provide guidance on the

interpretation and application of this section. I refer to Ford v. The Queen, (SCC), [1982] 1S.C.R. 231; R. v. Toews, (SCC), [1985] 2 S.C.R. 119; R. v. Brahniuk, 2002 SKCA 104; R. v. Shuparski, 2003 SKCA 22;R. v. Buckingham, 2007 SKCA 32; R. v. Boudreault, 2012 SCC 56 , 2012 S.C.C. 56; R. v. Anderson, 2012 SKCA 37; and R. v.Poncelet, 2014 SKCA 30. [36] R. v. Boudreault, supra, is considered the leading authority with respect to the offence of being in care or control of a vehiclecontrary to s. 253(1) of the Criminal Code. In R. v. Poncelet, supra, Chief Justice Richards summarizes the law set out in R. v.Boudreault as follows:

22. In its decision, the Supreme Court described the essential elements of "care or control" as follows: (

a) an intentional course ofconduct associated with a motor vehicle; (

b) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds thelegal limit; and (

c) in circumstances that create a realistic risk of danger to persons or property (para. 33). 23. The Court underlined that the risk of danger must be "realistic" and not just "theoretically possible". It said the risk need not be"probable" or "substantial" and, speaking through Fish J., described the low nature of the risk threshold as follows: [48] I need hardly reiterate that "realistic risk" is a low threshold and, in the absence of evidence to the contrary, will normally be theonly reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion.

To avoidconviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that norealistic risk of danger existed in the particular circumstances of the case. 24. As to the practical effect of its view of "care or control", the Supreme Court stressed that intoxicated persons found behind the wheelof a vehicle will almost always face conviction: [45] As I mentioned at the outset, anyone found inebriated and behind the wheel with a present ability to drive will - and should - almostinvariably be convicted.

It hardly follows, however, that a conviction in these circumstances is, or should be, "automatic". A convictionwill be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case. [37] In R. v. LaCasse, [2013] S.J. No. 597 at para. 16, my brother Judge Kovatch set out a method of analysis for care or control cases as follows: 1. Has the Crown established that the accused was occupying the driver’s seat? If yes, then the presumption contained in s. 258(1)(a)applies. 2. Has the accused adduced evidence to rebut the presumption in s. 258(1)(a)?

If the accused has not rebutted the presumption, then theCourt should conclude that the accused is in care and control of the vehicle. If the accused has not rebutted the presumption, and theCrown has proved the other requisite elements of the offence, then the accused must be convicted of the charge. 3. If the accused has rebutted the presumption, then the Court must determine whether on all of the evidence, the accused is in de factocare and control of the vehicle. I adopt this method of analysis. [38] The evidence reveals that on March 16, 2013 sometime between 9:00 p.m. and 10:40 p.m. Mr.

Shewchuk drove a motor vehiclefrom the Island View Beach launch to the grid road while he was impaired by alcohol. Having care and control of a vehicle includesdriving (R. v. Pincemin). As such, Mr. Shewchuk was in care and control of a motor vehicle while impaired by alcohol when he drovethe vehicle. If this is not dispositive of this case, I also find for the reasons below that he was in de facto care and control of the vehiclewhen Corporal Logan encountered him on March 16, 2013 at 10:40 p.m. [39] Mr. Shewchuk was found in the driver’s seat of his vehicle. Therefore, the presumption that Mr.

Shewchuk had care orcontrol of the vehicle applies. The presumption of care or control can be rebutted by evidence which, if accepted, establishes on abalance of probabilities that the accused did not occupy the driver’s seat for the purpose of setting the vehicle in motion (R. v. Ford, (SCC), [1982] 1 S.C.R. 231 (S.C.C.); R. v. Shuparski, 2003 SKCA 22). [40] I found Mr. Shewchuk to be a credible witness.

I accept his evidence that after finding himself to be alone in the isolated boatlaunch area by Last Mountain Lake on a cold winter evening and being impaired by alcohol he drove his vehicle a short distance to thegrid road where he thought he would be more visible and could receive assistance. I also accept his evidence that he did not intend todrive any further than he did and that at 10:40 p.m. he no longer occupied the driver’s seat for the purpose of setting the vehicle inmotion. Hence, I find that Mr. Shewchuk has rebutted the presumption of care and control. [41] However, the analysis does not end here.

Even if an accused is able to establish that there was no intent to drive, care orcontrol is made out where there is a realistic risk of danger (R. v. Boudreault, 2012 SCC 56 at 33). This risk must be “realistic and notjust theoretically possible…but nor need the risk be probable, or even serious or substantial” (R. v. Boudreault at 34). This realistic risk

can be made out in several ways. The impaired person may change their mind and drive. They may unintentionally set the vehicle intomotion. The vehicle could also be dangerous through negligence or bad judgment, even when the vehicle remains stationary.

Hence, Imust now determine whether on all of the evidence before me, the accused was in de facto care or control of the vehicle. [42] De facto or actual care or control of a motor vehicle involves some use of the vehicle, or its fittings and equipment, orconduct associated with the vehicle that would involve a risk of putting the vehicle in motion so that it could become dangerous (R. v.Toews, R. v. Ford, R. v.

Shuparski, supra). [43] The accused may also be found in actual care or control where the danger arises due to other circumstances such as the vehicle being parked in the middle of a street or thoroughfare where its mere presence is a danger, regardlessof whether it can be put in motion. In R. v. Mallery (2008), 2008 NBCA 18 , 231 C.C.C. (3d) 203 (N.B.C.A.), the NewBrunswick Court of Appeal provided a helpful

summary of what is required to prove de facto care or control: In care or control cases, the ultimate task of the trial judge is to decide whether the Crown has met the burden of establishing beyond areasonable doubt that the accused's interaction with his or her vehicle presented a danger or, as it is sometimes phrased, a "risk of danger"or a "risk to public safety".

If the facts establish beyond a reasonable doubt a risk of the accused putting the vehicle in motion, eitherintentionally or unintentionally, or if the facts otherwise support a finding of danger (such as from parking one's car in the middle of apublic thoroughfare), then care or control will have been established. (paragraph 52) [44] The evidence reveals that at 10:40 p.m. Mr. Shewchuk parked his vehicle in the middle of a well used grid road with the engine running, radio on and headlights on the high beam setting. The vehicle’s emergency lights werenot activated. Mr.

Shewchuk himself was asleep in the driver’s seat. [45] In this case, I am satisfied beyond a reasonable doubt that the facts support a finding of a risk of danger. In my view parkinga vehicle in the middle of a well travelled grid road between 9:00 and 10:40 p.m. without engaging the emergency lights gives rise to arealistic risk of danger to other users of the roadway. Accordingly, I am of the view that care or control of the vehicle has beenestablished. Conclusions [46] In

summary, I reject the argument of necessity and I find that Mr. Shewchuk was in de facto care or control of the vehicle. As a result, I find that Mr. Shewchuk is guilty of the offence. ____________________________ M. Hinds, J