Her Majesty the Queen - v. -, 2015 SKPC 42

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 042 Date: March 30, 2015 Information: 90004904 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Luke Derkson Appearing: Chris Davison For the Crown Darren Kraushaar For the Accused JUDGMENT J.D. KALMAKOFF , J INTRODUCTION [ 1 ] Luke Derkson is charged with operating a motor vehicle while impaired by alcohol, and operating a motor vehicle while his blood alcohol concentration exceeded the legal limit, contrary to sections 253(1) (

a) and (

b) of the Criminal Code . [ 2 ] At approximately 2:15 p.m. on December 14, 2013, Cst. Keith Salamon of the Regina Police Service was dispatched to the

[2] At approximately 2:15 p.m. on December 14, 2013, Cst. Keith Salamon of the Regina Police Service was dispatched to theparking lot of the liquor store on South Albert Street in Regina. The complaint was that a man was passed out in a vehicle in the parkinglot outside the store. Cst. Salamon arrived on scene at 2:25 p.m., and found Mr. Derkson in the driver’s seat of a Dodge Ram crew cabpickup truck. Mr. Derkson showed signs of alcohol impairment, so Cst. Salamon arrested him, made a breath test demand, and took himback to the Regina Police Service Headquarters for breath testing.

At 3:17 and 3:38 p.m., breath samples were obtained from Mr.Derkson. Both samples were analysed using an approved instrument, and found to contain 150 milligrams of alcohol in 100 millilitresof blood. [3] Mr. Derkson does not dispute that he was impaired when Cst. Salamon found him in the vehicle, nor does he challenge theadmissibility of the breath test results. However, he argues that, when Cst. Salamon arrived, he was not in care or control of a motorvehicle. He also argues that, even though he drove the vehicle before he was found by Cst.

Salamon, the Crown cannot rely on theresults of the breath samples to establish his blood alcohol concentration at the time of driving, given that there is evidence that heconsumed alcohol after he stopped driving. ISSUES [4] The evidence in this case gives rise to a number of issues. 1. Can Mr. Derkson be convicted of the offence of having “care or control” of a motor vehicle, even though the Information charges theoffence of “operating” a motor vehicle; 2. Has the Crown proved that Mr. Derkson was in care or control of the vehicle; (

a) Is the Crown entitled to rely on the presumption in s. 258(1)(

a) of the Criminal Code, or (

b) If the presumption in 258(1)(

a) does not apply, was Mr. Derkson in actual care or control; 3. Can Mr. Derkson’s admission of driving the vehicle earlier be considered as evidence against him? And, if so, does his testimony ofpost-driving consumption rebut the presumptions in sections 258(1)(

c) and 258(1)(d.1) of the Criminal Code? ANALYSIS 1. Can Mr. Derkson be convicted of the offence of having “care or control” of a motor vehicle, even though the Information charges theoffence of “operating” a motor vehicle? [5] Mr. Derkson is charged with operating a motor vehicle while his ability to do so was impaired, and while his blood alcoholconcentration exceeded the legal limit. However, the focus of the argument in this case was on the issue of whether Mr. Derkson was incare or control of the vehicle at the relevant time. [6] Cst. Salamon, the Crown’s only witness, never saw Mr.

Derkson operate the vehicle. That said, the case law is very clearthat the offence of “care or control” is included in the offence of “operating”: R v Drolet (1988), (QC CA), 14 MVR(2d) 50 (Que CA), aff’d (SCC), [1990] 2 SCR 1107. Section 662(1) of the Criminal Code makes clear that an accusedmay be convicted of the offence charged, or any included offence that is made out on the evidence. [7] Accordingly, I may find Mr.

Derkson guilty if the evidence establishes beyond a reasonable doubt either that he operated, orhad care or control of a motor vehicle while his ability to do so was impaired, or while his blood alcohol concentration exceeded the legallimit. 2. Has the Crown proved that Mr. Derkson was in care or control of the vehicle?

(

a) Is the Crown entitled to rely on the presumption in s. 258(1)(

a) of the Criminal Code? [8] Cst. Salamon found Mr. Derkson in the driver’s seat of his vehicle. Therefore, by virtue of section 258(1)(

a) of the CriminalCode, he is deemed to have care or control unless he establishes, on a balance of probabilities, that he did not occupy that position forthe purpose of setting the vehicle in motion: R v Whyte, (SCC), [1988] 2 SCR 3. [9] Mr. Derkson testified, and said that although he had driven the vehicle from Campbell Collegiate to the liquor store afterwatching some friends play basketball, he had no intention of driving any further.

He said that he was just waiting at the liquor store,where he expected a friend to meet him, they would buy more alcohol, and then the friend would drive to their next destination - thehome of another person - for more socializing and drinking. He said that, after waiting for his friend for a short time, he noticed that hehad a mickey of rye whisky in the console, so he decided to drink from it while he continued to wait. He proceeded to drinkapproximately seven ounces of rye in a short period of time, then fell asleep, and was awakened only when Cst.

Salamon was poundingon his window. [10] I do not accept that Mr. Derkson had fully abandoned his intention to drive before he fell asleep. He explained that, becauseof a past conviction for an impaired driving-related offence, he was well aware of the consequences of drinking and driving, andtherefore, he would not do such a thing. Yet, in contrast to that assertion, after a night of significant alcohol consumption, he drove hisvehicle to Campbell Collegiate to watch a basketball game soon after waking.

Then, after the basketball game, he drank from a bottle ofwhisky that was being passed around amongst his friends in the parking lot. Then he drove his vehicle, in which he kept a bottle ofwhisky in the console - in easy reach of the driver’s seat - from Campbell Collegiate to the liquor store, where he says he expected towait only a short period of time for his friend to come and pick him up.

There, despite his professed aversion to drinking and driving,and after only a few minutes of waiting, he tied into the bottle of whisky, while sitting in the driver’s seat, with his seat belt still on, andthe engine running. Those do not strike me as the actions of someone who finds drinking and driving as objectionable as Mr. Derksonwould have me believe. [11] Furthermore, there is no admissible evidence that the friend he was expecting to come and pick him up ever arrived at thescene, despite the fact that Mr. Derkson was there nearly an hour before Cst.

Salamon left the scene with him. [12] I also do not accept that Mr. Derkson reclined his seat. Cst. Salamon testified that, when he arrived, Mr. Derkson’s head wastilted forward, and the seat was still upright. Cst. Salamon’s evidence conflicts with Mr. Derkson’s testimony, and on this point I acceptthe evidence of Cst. Salamon, and reject that of Mr. Derkson. [13] As I indicated, I did not find Mr. Derkson’s evidence credible. It is clear that he stopped his vehicle, at least temporarily, inthe liquor store parking lot.

However, given all the surrounding circumstances, and the lack of credibility I find in his evidence, I am notsatisfied on a balance of probabilities that he had abandoned his intention to continue to drive. Accordingly, he has not rebutted thepresumption in section 258(1)(a), and he was in care and control of the motor vehicle when Cst. Salamon arrived. (

b) If the presumption in 258(1)(

a) does not apply, was Mr. Derkson in actual care or control? [14] As to the second part of the care or control equation, even if the presumption in s. 258(1)(

a) had been rebutted, the evidencesatisfies me beyond a reasonable doubt that Mr. Derkson was actually in care or control of the vehicle when Cst. Salamon arrived andfound him in the driver’s seat. [15] In R v Boudreault, 2012 SCC 56, [2012] 3 SCR 1157 [Boudreault], the Supreme Court of Canada said that “care or control”within the meaning of

section 253 of the Criminal Code refers to an intentional course of conduct associated with a motor vehicle, by aperson whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit, in circumstances that create a realisticrisk of danger to persons or property. [16] A realistic risk of danger, according to Boudreault, is one that is more than simply theoretically possible. While the objective

of the care and control offence in

section 253 is to prevent the risk of danger to public safety that normally arises from the mere combination of alcohol and automobile, conduct that presents no such risk falls outside the intended reach of the offence. [ 17 ] Whether or not there is a realistic risk of danger is a question determined on the facts of each case. However, the Court in Boudreault said that, in the absence of evidence to the contrary, a realistic risk of danger will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion.

To avoid conviction, the accused will in practice face a tactical necessity of adducing evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. [ 18 ] An intoxicated person behind the wheel of an operable vehicle will very frequently, but not inevitably, present a realistic risk of danger. In Mr. Derkson’s case, I must consider not only the risk of him accidentally setting the vehicle in motion, but also the risk of him intentionally doing so, despite his professed intention to refrain from driving.

As the Saskatchewan Court of Appeal noted in R v Poncelet , 2014 SKCA 30 , 433 Sask R 237 [ Poncelet ], and R v Coleman , 2012 SKCA 65 , 399 Sask R 27, this sort of risk is very real, because those individuals whose ability to drive is impaired by alcohol have a diminished capacity to make safe judgments, and frequently act in ways that endanger themselves and the public.

Impaired judgment is a key element of the risk equation in this type of case. [ 19 ] Of course, as the Ontario Court of Appeal pointed out in R v Smits , 2012 ONCA 524 , 294 OAC 355, a realistic risk of danger, including a risk based on the accused changing his or her mind and deciding to drive, must be based on more than speculation and conjecture.

It must have an evidentiary foundation, and must relate to (1) a risk that the accused will set the vehicle in motion unintentionally, (2) a risk that, through negligence a stationary or inoperable vehicle may endanger the individual or others, or (3) a risk that an individual who has decided not to drive will change his mind and drive while impaired.

This is consistent with the decision of the Saskatchewan Court of Appeal in R v Andersen , 2012 SKCA 37 , 399 Sask R 1 [ Andersen ]. [ 20 ] I must examine all of the relevant evidence and may consider a number of factors, including those discussed by Justice Gonsulus in R v Topfer , 2014 ONSC 5669 at para 16 , in determining whether there was a realistic risk that Mr. Derkson might put the vehicle in motion either intentionally or accidentally.

Those factors include: - his level of impairment, - whether the keys were in the ignition, - the location of the vehicle, - whether or not he had reached his final destination, - whether he drove the vehicle to the location where it was found, - whether he had started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving, - whether he had a plan to get home that did not include driving while impaired or over the legal limit, - whether he had a stated intention to resume driving, - whether he was seated in the driver’s seat, regardless of the applicability of the presumption, - whether he was wearing his seat belt, - whether he failed to take advantage of alternative means of leaving the scene, - whether he had a cell phone to make alternative arrangements and failed to do so. [ 21 ] When Cst.

Salamon got to the scene, Mr. Derkson’s truck was in a parking stall directly in front of the doors of the liquor store, where customers enter and exit. The engine was running. EMS and fire personnel were already on scene, and trying, unsuccessfully, to get Mr. Derkson’s attention. Mr. Derkson was the only person in his vehicle, and was sitting in the driver’s seat, with his seat belt on.

[ 22 ] When Cst. Salamon banged on the door of the truck, it took some time for Mr. Derkson to wake up and respond. Then, when Mr. Derkson opened his eyes, he looked toward Cst. Salamon, and stepped on the gas pedal. The engine began to rev. Cst. Salamon yelled at Mr. Derkson to shut the vehicle off and open the window. Once again, Mr. Derkson revved the engine. Cst. Salamon continued to yell at Mr. Derkson to open the door or the window. Eventually, Mr. Derkson rolled down the window enough to allow Cst. Salamon to reach inside, and open the door. The vehicle was then shut off. [ 23 ] Cst. Salamon told Mr.

Derkson to get out of the vehicle. Mr. Derkson attempted to do so. He turned toward the door, and tried to step out, but was unable to do so because his seat belt was still fastened. Mr. Derkson then sat back into the driver’s seat, unfastened the seat belt, and got out. [ 24 ] Cst. Salamon noticed that Mr. Derkson’s speech was slurred, and that he had some difficulty walking. A mickey of Wiser’s whisky was observed in the centre console, and some marihuana was also found in the vehicle. [ 25 ] Mr.

Derkson acknowledged that, given the quantity of alcohol he had consumed in the short time he was in his vehicle, he was intoxicated. From all the evidence, I am satisfied beyond any doubt that his ability to drive was impaired at the time Cst. Salamon encountered him. His physical coordination was diminished, and his movements lacked control. His speech was slurred. He was disoriented. And, by sitting in a running vehicle, in a very public space, consuming alcohol, he displayed impaired judgment.

There is no question that the combination of these factors meant that all facets of his ability to drive were impaired. [ 26 ] Mr. Derkson did not initially get into his vehicle with the intention to remain in one spot, and he was not at his final destination when he parked in front of the liquor store. He drove there from Campbell Collegiate, and he had plans to continue on to another location. Although he said that he meant for another friend to meet him at the liquor store to drive to that other location, there is no admissible evidence that this other person ever arrived at the scene. Furthermore, Mr.

Derkson did not shut off his vehicle, take the keys out of the ignition or remove his seat belt. He simply sat in a fully operable vehicle, and left the engine running. He never moved from the driver’s seat. He was not using the truck as simply a warm and safe place to sleep. In fact, on the evidence before me, I find that he did not make the conscious decision to go to sleep; he simply passed out in the midst of continuing alcohol consumption.

In my view, this is a significant factor which distinguishes this case from cases like Poncelet, R v Gunther , 2014 SKPC 153 , and R v Lockhart , 2012 SKPC 187 , 410 Sask R 291. [ 27 ] In addition to that, even though Mr. Derkson did not touch the steering wheel or gearshift when he was awakened by Cst. Salamon, he stepped on the gas more than once, and caused the engine to rev. This demonstrates that he was only minimally in control of his movements, due to his level of intoxication, and even though it did not happen, the risk of him unintentionally putting the vehicle into gear was more than negligible.

As the Court of Appeal noted in similar circumstances in Andersen , at paragraph 17 : [17]...the risk of danger in this case was real and evident. [ the accused ] was intoxicated. [ the accused ] occupied the driver’s seat of his vehicle. [ the accused ’s ] vehicle was not disabled in any way, was running and was parked in a public parking area and, therefore, could have been easily put into motion by simply depressing the brake and engaging the gear shift (regardless of how many discrete steps one might characterise this as taking).... given [ the accused ’s ] intoxicated state, these circumstances necessarily involved a risk that [ he ] could have inadvertently set his vehicle in motion, or that [ he ] could have, if he awoke, intentionally set his vehicle in motion. [ 28 ] Furthermore, given the evidence before me, namely: - that Mr.

Derkson, despite his professed aversion to drinking and driving, drove his vehicle only minutes after consuming alcohol in the Campbell Collegiate parking lot, - that Mr. Derkson kept a bottle of alcohol in the vehicle within easy reach of the driver’s seat, - that, despite his professed aversion to drinking and driving, Mr. Derkson began drinking, at a rapid pace, while still in the driver’s seat of his vehicle with the engine running, in a public parking lot near a busy liquor store, - that Mr. Derkson’s plan was to purchase more alcohol, and go to another location to keep drinking,

- that the friend who was supposed to transport Mr. Derkson to his next destination did not arrive, I am satisfied that, even if Mr. Derkson had a plan that did not involve him driving his vehicle any further (a fact of which I amsceptical), there was little chance that he would adhere to that plan, given the circumstances and the extent to which his judgment wasimpaired. [29] After considering all the relevant circumstances, I am satisfied beyond a reasonable doubt that there was a realistic risk thatMr. Derkson would put the vehicle in motion, either intentionally or unintentionally.

In short, I am satisfied that, in addition to nothaving rebutted the presumption, Mr. Derkson was also in actual care or control of the vehicle. 3. Can Mr. Derkson’s admission of driving the vehicle earlier be considered as evidence against him? And, if so, does his testimony ofpost-driving consumption rebut the presumptions in sections 258(1)(

c) and 258(1)(d.1)? [30] In his testimony, Mr. Derkson admitted that he drove his vehicle before arriving at the liquor store parking lot. Even thoughmost of the questioning focussed on the events after Cst. Salamon’s arrival, and whether Mr. Derkson was in care or control at that point,Mr. Derkson’s testimony about driving the vehicle earlier is admissible, and it is relevant evidence that I can consider in determiningwhether he operated or had care or control of the vehicle: R v Pincemin, 2004 SKCA 33, 249 Sask R 86; R v Heaton, 2014 SKCA. [31] Mr.

Derkson said that the basketball game he was watching at Campbell Collegiate began at noon, and lasted approximately1½ hours. Following that, he waited and talked with his friends who had played in the game while they changed their shoes, then wentout to the parking lot, and talked some more while they passed around a bottle of whisky. Mr. Derkson drank from it. After that, Mr.Derkson drove his truck to the liquor store, a trip which he estimated took approximately five minutes. [32] Although Mr.

Derkson could not be precise about the times, I conclude from all the evidence that he most likely drove hisvehicle to the parking lot of the liquor store some time between 1:40 and 1:50 p.m. At the very least, I am satisfied beyond a reasonabledoubt that he drove his vehicle at some time between 1:17 p.m. and Cst. Salamon’s arrival at 2:25 p.m. The first breath sample wasobtained from Mr. Derkson at 3:17 p.m., so it is clear that, at least with respect to the section 253(1)(

b) charge, his driving took placeduring a time period that is relevant to the statutory presumptions in sections 258(1)(

c) and 258(1)(d.1). [33] Given the evidence before me, the Crown is entitled to rely on the presumption contained in section 258(1)(

c) of the CriminalCode (the “first” presumption of identity). All the statutory preconditions have been established, and there is no evidence to suggest thatthe approved instrument malfunctioned or was improperly operated. [34] That said, Mr. Derkson testified, and I accept, that he consumed as much as seven ounces of rye whisky after he stopped hisvehicle in the parking lot. This raises the question of whether such evidence of post-driving consumption is, in and of itself, “evidence tothe contrary” which displaces the “second” presumption of identity in section 258(1)(d.1). [35] In my view, it is not.

This issue was dealt with directly by the Newfoundland and Labrador Court of Appeal in R v Benoit, 2013 NLCA 3, 41 MVR (6th) 230 [Benoit]. In that case, the Court noted that section 258(1)(d.1) was enacted in response to the SupremeCourt of Canada’s decision in R v St. Pierre, (SCC), [1995] 1 SCR 791.

In essence, section 258(1)(d.1) put an end tothe notion that certificate evidence of breath test results, which are presumptive proof of blood alcohol concentration at the time ofdriving, can be rebutted by simply leading evidence that alcohol, in any quantity, was consumed after the accused stopped driving. [36] Section 258(1)(d.1) provides that a person who consumes alcohol after relinquishing care or control of his or her vehicle, butbefore providing breath samples, can still raise a reasonable doubt about the breath sample results accurately reflecting his or her bloodalcohol level at the time of driving, but only if he or she meets the evidentiary criteria set out in the section.

This requires some evidencethat relates the alcohol consumption timing and quantity testified to by the accused to expected blood alcohol readings at the time ofoperation or care and control, and expected blood alcohol readings at the time of providing breath samples. As Hoegg J.A. noted inBenoit, at paragraph 21:

Section 258(1)(d.1) requires an accused to show that what he or she says about his or her consumption of alcohol, both before and after driving, tends to be consistent with: (1) his or her being under the legal limit when he or she drove, and (2) with his or her test results. A trial judge necessarily has to advert to the evidence and find that it establishes both of these consistencies before he or she can find that the presumptive proof of the certificate evidence is rebutted.

The type of evidence the trial judge needs in order to determine the two consistencies, will, as a practical necessity, come from an expert, for an ordinary person is not able to say whether the quantity of alcohol an accused says he or she consumed, both before and after driving, is consistent with that accused’s blood alcohol level not exceeding .08 when driving and consistent with his or her breathalyzer test results. An ordinary person is simply not possessed of the skills, knowledge and tools necessary to give evidence which addresses the absorption rate of alcohol an accused says he consumed. [ 37 ] Mr.

Derkson led no evidence which would tend to suggest that his consumption of alcohol was (1) consistent with a blood alcohol concentration that did not exceed the legal limit at the time the offence was alleged to have been committed, and (2) consistent with the results of the breath tests. Therefore, the presumption of identity in section 258(1) (d.1) is not displaced, and the Crown is entitled to rely on it.

More to the point, the evidence of the analyses of breath samples contained in the Certificate of Qualified Technician is proof that, at the time he drove his truck from Campbell Collegiate to the liquor store on Albert Street, Mr. Derkson’s blood alcohol concentration exceeded the legal limit. CONCLUSION [ 38 ] I am satisfied beyond a reasonable doubt that, at the time Cst. Salamon found Mr. Derkson at 2:25 p.m., he was in care or control of a motor vehicle. I am also satisfied beyond a reasonable doubt that he operated that motor vehicle at some point between 1:17 and 2:25 p.m.

The first breath sample was obtained at 3:17 p.m. Given the evidence before me, the Crown is entitled to rely on the presumptions in sections 258(1) (

c) and 258(1)(d.1) of the Criminal Code . Accordingly, I am satisfied beyond a reasonable doubt that at the relevant times, Mr. Derkson’s blood alcohol concentration exceeded the legal limit. I find him guilty on Count 2. [ 39 ] I am also satisfied beyond a reasonable doubt that, at 2:25 p.m., Mr. Derkson’s ability to operate a motor vehicle was impaired by alcohol. I find him guilty on Count 1. However, given my finding with respect to Count 2, I enter a conditional stay on this count, to become absolute upon the expiry of the appeal period. J.D. Kalmakoff, J