Her Majesty the Queen - v. -, 2011 SKPC 7

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 007 Date: February 08, 2011 Information: 24392470 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brandon M. Hitchings Appearing: Michael Segu For the Crown Haidah Amirzadeh For the Accused JUDGMENT P.S.

KOLENICK , J BACKGROUND [ 1 ] The accused is charged that he did, on or about June 23, 2010 at Warman, have the care or control of a motor vehicle while his ability to operate it was impaired by alcohol; and also, having consumed alcohol in such quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did have the care or control of a motor vehicle, contrary to sections

253(1) (

a) and 253(1)(

b) of the Criminal Code respectively. [ 2 ] The following issues arose during the course of the trial: 1. Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt the application of the presumption contained in s. 258(1) (

a) of the Criminal Code or de facto care or control? 2. Was the accused able to establish on the balance of probabilities that he did not occupy the driver’s seat for the purpose of setting the vehicle in motion? CROWN EVIDENCE Roger Lemaitre [ 3 ] Mr. Lemaitre confirmed that he had arranged for roughly ten of his daughter’s friends to attend at the residence for a grad party in Warman, Saskatchewan. The hope was to limit the number to ten so that they could sleep in a travel trailer he had parked in the yard which would sleep that number.

He assumed that there would be some alcohol consumption by the people at the party. They ended up with roughly thirty people when the party ended at 12:30 a.m. [ 4 ] He indicated also that for anyone who was not spending the night in the travel trailer, arrangements were being made to ensure everyone had a safe ride home with a sober driver. His first contact with the accused in that regard was at approximately 12:30 a.m., who he described as being agitated and intoxicated. He was apparently having an argument with his girlfriend who was staying in the travel trailer.

He had been offered a ride home but had refused and he had no place to stay. In his frustration, he had attempted to instigate a fight with Mr. Lemaitre, pushing him twice. [ 5 ] The accused refused to cooperate with their efforts to get him a safe ride home, and declined their offer to let him sleep at the Lemaitre residence. When he got in his motor vehicle to drive, Mr. Lemaitre asked his daughter to call the police, which she did. [ 6 ] The accused indicated he would sleep in his car. At roughly 2:00 a.m., when Mr.

Lemaitre was returning from his trip to deliver some of the guests to their homes, the accused was in the driver’s seat, with it reclined, music playing and the keys in the ignition. Earlier on he had believed that the accused was intoxicated with wobbly balance and some slurring of words. [ 7 ] In cross-examination Mr. Lemaitre confirmed that he had checked the party on a few occasions throughout the evening. He believed at one point the accused and his girlfriend were arguing. He was unsure how much the accused had to drink on this occasion and did not know him previously.

Further, the car in which the accused was seated was not running. [ 8 ] He also confirmed having provided a statement to the police and confirmed same for the record. He agreed that there had been no mention therein of any offer for the accused to spend the night at their residence, and that the statement was accurate. Constable Kristopher White [ 9 ] Constable White of the Delisle detachment of the RCMP had received a dispatch regarding a possible impaired driver at

Warman, Saskatchewan. He was able to attend in response to that, in the early hours. He located the accused behind the wheel of his motor vehicle, with the driver’s seat fully reclined. The radio was playing and his feet were by the pedals. The officer tapped on the window to get his attention. He asked the accused if the keys were in the ignition. The accused responded by pulling the keys therefrom and tossing them on the passenger seat. [ 10 ] The officer requested the accused to go to the police vehicle. When that had occurred, he observed in the accused a strong odour of liquor and stumbling of feet.

He advised to having consumed five beer earlier. The officer concluded that his ability to operate a motor vehicle was impaired by alcohol. At 1:25 a.m., he was placed under arrest for impaired operation of a motor vehicle and the breathalyzer demand was made at 1:34 a.m. The Certificate of Analyses was also admitted as an exhibit in these proceedings.

It confirmed breath samples of 190 milligrams percent and 170 milligrams percent at 1:59 a.m. and 2:44 a.m., respectively. [ 11 ] In cross-examination Constable White confirmed that he had never been the lead investigator in a drinking/driving investigation of this nature. As well, he did not note whether the accused had his seat belt on at the time, nor whether he had been asleep on their initial encounter. DEFENCE EVIDENCE Brandon Hitchings - The Accused [ 12 ] The accused, age 19, confirmed that he had been at work the day prior to this alleged matter.

He had arranged to meet his friend, Shane, the evening of the party, who led him out to it, because he had never been there before. [ 13 ] Once they were at the party, he had an argument with his girlfriend, who was intending to spend the night in the travel trailer. Regardless, the accused had intended to sleep in the car and had brought clothing to wear the next day at work, where he was scheduled to be early the next day. [ 14 ] He recalled speaking to Mr. Lemaitre at roughly eleven o’clock p.m., but denied being aggressive with him.

He had explained the need to remain with his car so that he could drive to work early the next day. Therefore, he could not leave his car at that location and get a ride home with a sober driver because he needed it to drive himself from that location in the morning. Therefore, he also explained to him that he would sleep in the car. [ 15 ] The accused denied that he had any intention to drive whatsoever. On this occasion, he reclined in the seat and turned on the music, but had not started the car. He fell asleep and had no problem until he was awakened by the police.

In the morning, he did drive to work, but not from where he had planned to spend the night in his car. [ 16 ] In regard to alcohol consumption, the accused stated he had roughly eight beer. [ 17 ] In cross-examination, the accused confirmed that he started work the following day at 7:00 a.m. As well, his friend Shane was staying at his girlfriend’s place, so they would not be travelling together in the morning.

Rather, the accused had fully intended to sleep in his car, so he had brought a change of clothes, pillow and blanket. [ 18 ] He indicated also that he had roughly eight beer at the party and denied he told the police five beer. Therefore, the evidence of the police officer to that effect was incorrect, even though the accused himself had no notes of the event. Likewise he agreed that memory can be adversely affected by alcohol and the passage of time.

Regardless, it was not unusual for him to drink eight beer on the weekend. [ 19 ] The accused also denied that he had advised Roger Lemaitre that he intended to drive home and that he was mistaken in that

respect. Rather, he had been offered a ride home, but needed his motor vehicle in the morning for work. [20] Further, the party had ended at roughly 12:30 a.m. His intention was to drive in the morning, approximately five hours later,with a blood alcohol concentration earlier which had been twice the legal limit. However, he would not have driven in the morning hadhe felt he was still impaired, in his own estimation. [21] He also did not consider giving the car keys to Shane to better ensure that there would be no problem because of hisintoxication.

As such, he could have changed his mind and driven the car, because he did have the keys and was responsible for the car. [22] As well, he did not get in the back seat to sleep because he was more comfortable sleeping in the front seat. [23] In re-examination the accused indicated that in his own experience, consumption of more than twelve beer would have beennecessary for him to be still impaired in the morning when he drove to work. Shane Knight-Waters [24] Mr. Knight-Waters and the accused are friends.

They had arranged to meet at the Knight-Waters’ residence on the night ofthe party for the accused to follow his motor vehicle to the party on his own, because the accused was not familiar with the party locale. The two of them proceeded to the party on that basis, each in their own motor vehicles. [25] The hosts of the party had set up a trailer in the yard, in which some of the guests could sleep overnight. However, it wasbeing occupied by girls so the boys could not sleep in it. Regardless, the accused had brought a sleeping bag and pillow because it hadbeen his intention to sleep in the car.

In the meantime, they had been playing drinking games and hung out with other friends. Atroughly 11:30 p.m., the accused was ousted from the girls’ trailer, and he did not see the accused again until the following day. [26] In cross-examination, Mr. Knight-Waters confirmed that they had been close friends for eight or nine years. At the materialtime they had spent roughly one hour before departing for the party at Warman. They both took alcohol to the party, but had notconsumed any of it before departing. Once they were there socializing, he had less contact with the accused as the evening wore on.

Inthat regard he was unable to say what shape the accused may have been in from alcohol by 11:00 p.m. [27] He disputed as well that he would have been able to give the accused a ride in the morning because he was quite intoxicatedhimself. Regardless, the accused had indicated an intention to sleep in the car, although he did not actually see him therein. He agreedalso that the two of them have gotten drunk before and when that does happen the accused can make some poor decisions. [28] In re-examination he confirmed that the accused himself has no history of drinking and driving.

ANALYSIS [29] My thanks for the case authorities which have been placed on the record. They included these from the Crown: R. v. Switzer, 2003 CarswellOnt 6660 (Ont. Sup. Ct. Justice, Fragomeni J.) R. v. Baboolall, 2004 CarswellOnt 2765 (Ont. Sup. Ct. Justice, Dunnet J.) R. v. Epp, 2010 SKPC 89 , 2010 SKPC 089 (Sask. Prov. Ct., Whelan J.)

[30] The accused had included the following: R. v. Hannemann, (Ont. Sup. Ct. Justice, Hill J.) R. v. Shuparski, 2003 SKCA 22 , [2003] 6 W.W.R. 428 (Sask. C.A.) [31] All the cases on this issue tend to be a product of their individual facts. In the course of deliberation I have also consideredtwo judgments of my colleague Judge Green: R. v. Lundrigan (D.J.), 2009 SKPC 73 , 339 Sask. R. 108 and R. v. Richard, 2010SKPC 18. Once again these cases are quite fact specific but offer some guidance as to the appropriate legal principles to be applied,including the

interpretation of s. 258(1)(

a) of the Criminal Code, which states as follows: 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, vesselor aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed tohave had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes thatthe accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion orassisting in the operation of the aircraft or railway equipment, as the case may be; [32] In Lundrigan, supra, the Court had concluded that the accused had not been in care or control of his motor vehicle incircumstances where he was sleeping or resting for a few hours before continuing his driving to Manitoba, noting as follows,commencing at para. 6: I.

CARE OR CONTROL [6] Cpl. Guider and Cpl. Roussel found Mr. Lundrigan seated in the driver's seat with the motor of his vehicle running. Section258(1)(

a) of the Criminal Code provides where the accused occupied the driver's seat of his vehicle, he shall be deemed to have had thecare or control of that vehicle unless he establishes that he did not occupy that seat for the purpose of setting the vehicle in motion. [7] In this case, I accept that:

(1) Mr. Lundrigan was reclining in the driver's seat when the police drove up, (2) he had returned to hisvehicle after urinating in the ditch and started up his vehicle to keep warm, and (3) that he was planning on resting or sleeping for anumber of hours before driving on to Manitoba. As a result, I am satisfied on a balance of probabilities that he did not occupy thedriver’s seat for the purpose of setting his vehicle in motion. The presumption is rebutted. [8] The Crown can then prove Mr. Lundrigan was in de facto care or control.

Acts of care or control, short of driving, are acts whichinvolve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve arisk of putting the vehicle in motion so that it could become dangerous (as stated by McIntyre J. in R. v. Toews, (SCC),[1985] 2 S.C.R. 119 at paragraph 10). Some twenty-three years after this standard was set in Toews, the New Brunswick Court ofAppeal, in R. v. Mallery (2008), 2008 NBCA 18 , 231 C.C.C. (3d) 203, provided an excellent

summary of what is required toprove 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)

Section 258(1) (

a) Criminal Code - Presumption [ 33 ] The uncontradicted evidence from the accused was that he was intending to sleep in his car after the party was over so that he could drive to work in the morning. For that purpose he had brought to the party a pillow and blanket, as well as clothing to wear the next day at work, starting at 7:00 a.m. Presumably those articles were in the car when he was checked by the police. [ 34 ] In that same vein, Roger Lemaitre had indicated in his testimony that the accused had stated he would sleep in the car.

Thereafter, he observed the accused in the driver’s seat, with the said seat reclined, music playing, and keys in the ignition. [ 35 ] Constable White described a similar scenario when he checked on the accused. He was located behind the wheel with the driver’s seat fully reclined. The radio was playing and his feet by the pedals. When he asked the accused if the keys were in the ignition he pulled them out and tossed them on the passenger seat. [ 36 ] The accused testified also that he had reclined the seat, turned on the music but had not started the car.

He slept in the front seat rather than the back, because the front seat was more comfortable. He fell asleep and had no problem being roused by the police. [ 37 ] His friend, Shane Knight-Waters also confirmed his testimony that the accused had planned in advance to sleep in his car and drive himself to work in the morning.

It had not been a spur of the moment decision made at the party that night. [ 38 ] Therefore there is ample evidence for the accused to establish on a balance of probabilities that he did not occupy the driver’s seat for the purpose of setting the vehicle in motion, and the Court does so conclude. De Facto Care and Control [ 39 ] The accused’s use of the fittings and equipment in the vehicle was minimal and minor, consistent with his intention to spend the night sleeping.

As well, there were no intervening circumstances of any nature involving the accused with fittings and equipment which would cause concern that public safety was at risk. In due course he was roused by the officer where he was sleeping, without incident. To his credit, the accused conceded that at the time he was responsible for the motor vehicle. As such, in theory, he could have changed his mind and driven the motor vehicle because he did have the keys.

However, the manner in which he had conducted himself with the motor vehicle at the material time does not support the Court concluding there was a reasonable risk of that occurring. In that same vein he had indicated that if in his own estimation he had still been impaired in the morning, he would not have driven to work as planned. At least he had given some consideration to that potential issue arising. CONCLUSION [ 40 ] The evidence for the Crown is not sufficiently credible to prove beyond a reasonable doubt that the accused had been in de facto care or control of the motor vehicle.

As such, he is not guilty of that count, contrary to s. 253(1) (

b) of the Criminal Code . In those circumstances, it would not be appropriate for the Court to consider any different result on the impaired operation count. Therefore the accused is also not guilty on the count contrary to s. 253(1)(

a) of the Criminal Code .

__________________________________ P.S. Kolenick, J