Her Majesty the Queen - v. -, 2012 SKPC 191

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 191 Date: April 20, 2012 Information: 24428308 Location: Yorkton, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Evan John Todoschuk Appearing: Todd Wellsch For the Crown Tom Campbell For the Accused Judgment B.M. Klause , J [ 1 ] Evan John Todoschuk is charged on April 8, 2011 at Yorkton, Saskatchewan with driving while over .08 contrary to s. 253(1) (

b) of the Criminal Code and with impaired driving contrary to s. 253 (

a) of the Criminal Code . [ 2 ] The trial was heard on January 12, 2012 with one witness for the Crown and one witness for the Defence.

[ 3 ] The evidence is not in significant dispute. The Crown evidence was that on the evening in question Constable Stark approached the vehicle of the accused which was parked near Hollies, a well known drinking establishment in Yorkton. It was approximately closing time and the bar was emptying. Constable Stark observed a GMC truck with a snowmobile on the back of it and pulled in behind the vehicle to check it.

The brake lights were on and they noticed a puff of exhaust from the vehicle as they approached the driver’s side door of the vehicle and saw the accused in the seat normally occupied by the driver with the seat slightly reclined and his head resting on the B pillar. A slight odour of alcohol was noted. The accused was asked to step out of the vehicle and a demand for roadside samples was made; he complied and failed. A subsequent demand for Intoxilyzer samples was made and the accused eventually supplied two samples which resulted in readings of .10 at 3:16 and 3:36 am.

Much of what transpired that evening was recorded and played in court. In both examination-in-chief and in cross-examination, Constable Stark agreed that it is not unusual for fights to occur at Holly’s, in his words they “repetitiously” occur there. He was not specifically looking to see if any cabs arrived at Holly’s but there was a cab in the parking lot at Hollies when he arrived on scene.

When the driver exited the car, Constable Stark noted that the keys to the vehicle were in the center console; the driver immediately advised him that he was just waiting for a cab. [ 4 ] The Accused testified on his own behalf. On the date in question he parked his vehicle in the Coop lot across from Holly’s as he knew that was a safe place to park his car. He is a more or less regular patron at Holly’s, and went to the bar by himself.

He usually takes a cab home which he subsequently clarified to “always” taking a cab home when he has been drinking because he owns his own semi and he will lose his business and will be unable to pay his mortgage if he loses his license. He parked his truck, took his cash with him for the bar and left his wallet in the truck so that it would not be lost. He said that there are often fights breaking out at Holly’s and the lot is usually chaos especially at closing time with a scramble for cabs at that time.

He left Holly’s at last call, called a cab and returned to his car to retrieve his wallet and wait for the cab. He testified that cabs usually come down Argyll Street eastbound before they turn into the lot at Holly’s where the cab often is swarmed by potential customers. The Co-op presumably is a safer place to wait for the cab to arrive plus he has a clear line of sight when the cab comes down the street. As he was wearing a light weight shell jacket he started the truck to keep warm. He repeatedly stated at the time, on the video and in court, that he had no intent to drive and was not going to drive anywhere.

He was simply waiting for his cab. The truck was only running for a couple of minutes before the police arrived. In cross-examination he indicated that the lobby at Holly’s is not a suitable place to wait as it is small, congested and that it is difficult to see the cab arrive from there. [ 5 ] The police evidence essentially supports everything the accused said about the evening in question. I do not find it surprising or indeed unusual that he may have told the police that the vehicle was not running. In fact it was running.

He further was given the chance in cross examination to agree that the seat was partially reclined which may have supported his defence of simply waiting for the cab but he indicated forthrightly that is the way he always drives the vehicle. [ 6 ] In short, I accept everything that the accused said as being an honest rendition of the facts; as he was reasonable, logical and made no attempt to exaggerate his situation or invent things as he went along. Similarly, his evidence is supported in several key respects by the evidence of Constable Stark and the videotaped evidence presented in court.

He insisted from the first moment of apprehension , and subsequently throughout the evening that he was only sitting in his truck waiting for a cab. He saw the police draw up across the street and if he thought that he was doing anything wrong, he had plenty of time to get out of the vehicle before they even approached him. His vehicle has an automatic transmission, he started it for warmth and he was in it for about two minutes before the police showed. To move the vehicle you have to put a foot on the brake and engage the gear shift lever.

Given his readings, he says he knew he was borderline but would not have risked driving anywhere; and he was not so drunk that he would decide to take a chance and drive. He was simply waiting for his cab to arrive and he never drinks and drives. [ 7 ] I totally believe everything he said. The Crown [ 8 ] The Crown agrees that the Accused has rebutted the presumption, and says that the accused

is in actual care or control as he was in the drivers seat of the vehicle, with the vehicle running. The inherent risk of this activity places him criminally liable for being in care or control of a motor vehicle while over .08. [ 9 ] They cite the cases of R. v. Toews [1] , R. v. Shuparski [2] and R v. Anderson [3] . The Defence [ 10 ] The Defence argues that Accused has successfully rebutted the presumption, and suggests that the question to be answered is whether or not the accused was in de facto care or control.

He agrees that the Crown does not have to prove an intent to drive and argues that the accused was telling the truth. Further, the accused has a great deal to lose by drinking and driving. There was no danger of him setting the vehicle in motion accidentally given his stated intent to wait for his cab and his low blood alcohol readings. He had absolutely no intent to drive as demonstrated by his actions both prior to and subsequent to the arrival of the police. [ 11 ] He cites Buckingham [4] and Shuparski, supra, and Ogrodnick [5] , both in the Alberta Court of Queen ’ Bench and the Court of Appeal.

Analysis [ 12 ] It is almost impossible to synthesize and rationalize the vast majority of cases in this area and I make no attempt to do so. The Crown urges me to consider, in particular paragraph 47 of Shuparski : 47. I conclude this issue of "position" by this observation. As many cases have noted, including the cases cited earlier, the element of dangerousness arising from the risk of putting a vehicle in motion while a person is under the influence of alcohol is at the centre of these care or control cases.

The elimination of that element of dangerousness is what Parliament had in mind when it passed the legislation in question. Whether a potential for dangerousness should be a cause for concern where a person is in a "position" to set a vehicle in motion depends not so much on the physical "position" the person happens to be in as it does on his attitude or disposition towards potential dangerous situations. If it is nonchalant, non-caring or reckless, that is one thing. If the attitude is to specifically address the situation with a view to eliminating it, that is quite another thing.

In the present case, the defendant's deliberate rational decision, after he realized his driving may be creating a dangerous situation, to stop his driving in order to sleep is strong evidence of his attitude to potential dangerous situations: It is an attitude towards eliminating those situations after a realization takes hold. Given that attitude, it is unlikely that after eliminating one potential dangerous situation, he would be apt to create a new dangerous situation by driving after he awoke if he was unfit to drive.

In other words, when the facts of the case are viewed from an "overall" perspective that element of dangerousness that is central to all of these care or control cases was not present in this case, which is to say the Crown failed to prove this element of the offence beyond a reasonable doubt. [ 13 ] I am also drawn to the dissenting decision of Madam Justice Jackson and in particular to the following paragraph: 70.

In adopting this construction, I recognize that if a court is satisfied that an accused was not occupying the driver's seat for the purpose of setting the vehicle in motion, and is therefore able to rebut the presumption, it is unlikely a court will find the accused to be in actual care or control, unless danger emanates from some other source. In this respect, the

interpretation of clause 258(1)(

a) found in Hudson, Hatfield and George narrows the exception more than the

interpretation which I have adopted, because it is less likely that an accused would be able to rebut the presumption, and, therefore, is more likely to be convicted. [ 14 ] It is my conclusion that the accused in the circumstances of this case has successfully rebutted the presumption contained in the section. I am therefore left with examining whether or not he was in actual care or control. Everything to which he testified is supported in many material aspects by the police evidence.

This compels me to the conclusion that he has in fact raised a reasonable doubt as to whether or not he was in actual care or control. The accused from this moment he arrived at the night club area established a safe and secure protocol for him which would have prevented him from becoming involved in an impaired

driving operation: (

a) his choice of parking spot; (

b) his arrangements in arranging for a cab; (

c) situating himself in his motor vehicle so as to see the arrival of the cab prior to its arrival at the Holly’s parking lot; (

d) his explanation that he left the bar area because of a fight in the area and it being an unsafe place to wait for a cab, all of which issupported by the police evidence; (

e) the relatively brief period of time in which he occupied the seat of the motor vehicle; (

f) his vehement protestations of innocence and attempted explanations to the police which commenced immediately upon hisapprehension and continued throughout the nite; (

g) the relative importance to his financial and employment security that the loss of a license would entail and (

h) his relatively low readings on the Intoxilyzer and significant lack of symptoms of gross impairment which lead me to the conclusionthat he would not have changed his mind and suddenly driven anywhere. [15] I note for the record that this case is significantly unusual on its facts as it is seldom the case where an accused can establish the aforementioned as the accused has established in this case. It is therefore my opinion that theelement of “dangerousness” has not been established in the circumstances of this case or at the very least, I have a reasonable doubt as tothat issue.

I therefore resolve that doubt in favour of the accused and acquit him of all charges. ______________________ B.M. Klause, J [1] (SCC), [1985] 2 S.C.R. 119 [2] [2001] S.J. No. 220 (Sask. Prov. Court); 2003 SKCA 22 , [2003] S.J. No. 147 (Sask. Ct. of Appeal); [2003] S.C.C.A. No.167 [3] 2009 SKPC 69 convicted, 2001 SKQB 92 overturned, 2012 SKCA 37 (restores SKPC conviction decision) [4] [2008] S.J. No. 138; 2007 SKCA 32; 218 C.C.C. (3d) 203 [5] 2007 ABCA 161; [2007] A.J. No. 514