Her Majesty the Queen - v. -, 2015 SKPC 129

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 129 Date: October 7, 2015 Information: 43374725 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ochibjoki Odhiang Appearing: Rob Parker For the Crown Self-Represented For the Accused JUDGMENT M. GORDON , J [ 1 ] Mr.

Odhiang is charged that: Count 1 - On or about the 14 th day of March 2015, at or near Moose Jaw, Saskatchewan did, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, have the care or control of a motor vehicle contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code . Count 2 - On or about the 14 th day of March 2015, at or near Moose Jaw, Saskatchewan, while his ability to operate a motor vehicle was impaired by alcohol or a drug, have the care or control of a motor vehicle contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code .

[2] The Crown proceeded summarily and the trial was held on August 27, 2015. [3] Mr. Odhiang represented himself and as a result, a pre-trial conference was held before Judge Kovatch. The purpose of suchconference is to ensure that an accused person has received disclosure, knows how to subpoena any witnesses if necessary and the trialprocess is explained to him. In addition, often the trial judge explains the law in the area. [4] The only issue at trial is whether the Crown has proven beyond a reasonable doubt that Mr. Odhiang had the care or controlof the motor vehicle. [5] Section 258(1)(

a) of the Criminal Code reads 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; [6] In Ford v The Queen, (SCC), [1982] 1 SCR 231, the Court held that this subsection creates a rebuttablepresumption.

In other words, where it is established that the accused occupied the position normally occupied by the operator of thevehicle, there is a rebuttable presumption that this individual was in care and control. The accused is then required to establish that hedid not enter the vehicle for the purpose of setting it in motion. [7] The issues are 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 the accused is in care and control of the vehicle. If the accused has not rebutted the presumption and the Crownhas 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. [8] It is clear that when Cst. Cunningham came on the scene, the accused occupied the driver’s seat of the motor vehicle. Theaccused admitted he was seated in the driver’s seat. Therefore the presumption applies. Has the accused rebutted the presumption? [9] Mr. Odhiang testified that Mr. Thompson and Leif wanted to leave the bar early. As a result, he gave them his car keys.

Atthe end of the evening he and Hope, his girlfriend, talked about how they were going to get home. It was decided that John could givethem a ride home and Hope called John. Mr. Odhiang said he went to his car to retrieve his wallet, passport and phone that he had left inhis vehicle. He said he was reaching over to lock the passenger’s side door when he saw the lights of the police vehicle and as a result,sat down and did not move. He decided that would be a more prudent course of action. Mr. Odhiang explained he had driven directly to

the bar from being at work in Saskatoon for a period of time. He joined his friends, including his girlfriend Hope, at the bar. He had taken some cash into the bar as a way to limit his spending. Mr. Odhiang testified that he may have touched the brake and that accounted for the brake lights going on when he was retrieving his belongings. Mr. Odhiang was adamant that the car keys were in his inside jacket pocket. He recalls Cst. Cunningham asking for them and he reached into his pocket to hand them over. As well, he does not think the radio was on.

He explained that he had to use the key to open the trunk of the car as it is an older vehicle. Mr. Odhiang testified that it was never his intention to drive home that night. He and his girlfriend had arranged for a ride and she was calling their friend. He stated that he agreed with the officer that there was alcohol in the vehicle but denies taking any alcohol to the vehicle. [ 10 ] John Kamar testified he received a call from Hope just before 2:00 a.m., asking him to come and get them when the bar closed. When Mr. Kamar arrived at Champs, Hope was in the parking lot on the east side. He saw Mr.

Odhiang and the police car on the other side of the street. [ 11 ] Mr. Emmanuel Tabian was also with this group at Champs. At closing time he said Mr. Odhiang went to his car to get something. He saw Mr. Odhiang talk to his girlfriend Hope and then saw Mr. Odhiang go to into his car. He also confirmed that Mr. Odhiang was in the driver’s seat when the police arrived. He had been told by Hope that they had a ride home with another friend and Mr. Tabian had arranged for his own ride. [ 12 ] Obdiaha Thompson testified that he and a fellow called Leif were also at Champs with Mr. Odhiang and the others that evening.

They had arrived around midnight when all the action starts. Mr. Thompson said he was not having a good night or any fun at Champs so they asked Mr. Odhiang for his keys and they went to the vehicle to wait for him. After waiting in the car for approximately 45 minutes, Mr. Thompson sent a text message to Mr. Odhiang to hurry up. Mr. Thompson testified that he was in the back seat of the vehicle waiting for Mr. Odhiang. At one point Mr. Thompson reached over with his hand (Mr. Thompson is a very tall man) and put the vehicle in neutral and tried to start the vehicle. It was getting cold.

The vehicle would not start. He said he gave the keys back to the accused at the bar and called a cab and he and Leif made their own way home. He said that when he went back to the bar to return the keys, he saw Hope talking on her cell phone. He understood she was calling a friend for a ride. Mr. Odhiang was nearby at that time. [ 13 ] The strongest evidence the Crown has is Cst. Cunningham’s testimony that the keys were in the ignition in accessory mode, that he heard music and that Mr. Odhiang was in the driver’s seat. The officer does not believe the car was running. On the other hand, Mr.

Odhiang says the keys were in his jacket pocket. I have to accept the evidence of Cst. Cunningham on this point; that the keys were in the ignition in accessory mode. This is one of the first observations a police officer would make in an impaired driving investigation. It may be that out of habit Mr. Odhiang, who admitted he had to use the key to gain access to the trunk of the car, without thinking put the keys in the ignition. But, of course, it is significant the key was in the accessory mode and the vehicle was not running. [ 14 ] Mr.

Thompson testified that he and Leif were waiting approximately 45 minutes in Mr. Odhiang’s vehicle to get a ride home. Mr. Odhiang was not cross-examined on this point. Mr. Odhiang did not testify to the fact that his friend Mr. Thompson had got the car keys somewhat earlier. In the circumstances I accept that Mr. Odhiang was so focused in his testimony relating to the Court the reasons for him being in the vehicle and that he did not intend to drive. There are several reasonable inferences including that Mr.

Odhiang changed his mind during that 45 minute period and decided not to drive home or that when he gave the keys to Mr. Thompson and Leif, he assumed they would just take the car home. Mr. Odhiang was not directly cross-examined on this point. [ 15 ] I accept John Kamar’s evidence that he received a phone call from Hope, Mr. Odhiang’s girlfriend, about a ride home from Champs. Mr. Kamar went to Champs just after closing and Hope was in the parking lot on the east side, not across the street with her boyfriend. I accept Mr. Odhiang’s evidence that he returned to his vehicle briefly to retrieve his valuables.

The vehicle was parked on Manitoba Expressway facing east in the parking lane. I accept that he was reaching over to lock the passenger’s side door and when he saw the lights of the police vehicle, he decided to sit down and stay put being the safest course of action. As well, it would be prudent not to keep the driver’s side door ajar as it would be sticking out onto the travelled eastbound lane of Manitoba. In my view this accounts for Mr. Odhiang being found in the driver’s seat. [ 16 ] Mr. Thompson also testified he was aware that Mr. Odhiang was going to grab something from the car.

He was aware from Hope that they had a ride home. [ 17 ] In conclusion, there is ample evidence which I accept and consequently, I find that the accused has successfully rebutted the presumption.

[18] This leaves the question of whether there is proof beyond a reasonable doubt that Mr.

Odhiang was in fact in de facto care orcontrol of this motor vehicle. [19] In R v Toews, (SCC), [1985] 2 SCR 119, McIntyre J. writing for the Court stated at page 126: ... acts of care or control, short of driving, are acts which involve some use of the car or its fittings and equipment, or some course ofconduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous. [20] This is quoted with approval in R v Coleman, 2012 SKCA 65, where the Court goes on to say at paragraph 23: The case law since Toews has emphasized that the central consideration in relation to “care and control” is the risk that the accusedperson will create a dangerous situation, whether by putting the vehicle in motion or some other way. [21] In R v Boudreault, 2012 SCC 56 [Boudreault], the Supreme Court provided further guidance on this matter.

At paragraphs33, 34 and 35, the Court stated: [33] In this light, I think it helpful to set out once again the essential elements of “care or control” under s. 253(1) of the Criminal Codein this way: (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk of danger to persons or property. [ 34] The risk of danger must be realistic and not just theoretically possible: Smits, at para. 60.

But nor need the risk be probable, oreven serious or substantial. [35] To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention to prevent a danger topublic safety. To require only that the risk be “theoretically possible” is to adopt too low a threshold since it would criminalizeunnecessarily a broad range of benign and inconsequential conduct. [22] Some of the significant cases in this area which can provide guidance as to the proper

interpretation of care or control areFord v The Queen, (SCC), [1982] 1 SCR 231, R v Brahniuk, 2002 SKCA 104, R v Shuparski, 2003 SKCA 22, R vBuckingham, 2007 SKCA 32, R v Poncelet, 2014 SKCA 30 and R v Anderson, 2012 SKCA 37. [23] In R v Lacasse, 2013 SKPC 157, Kovatch J. provides a useful overview of these cases. At paragraphs 21, 22 and 23, he hasthis to say: In virtually all of these cases, it is proved that the accused does have an intended course of conduct associated with the motor vehicle andthat the person’s ability to drive is impaired.

The cases turn on whether the circumstances create a realistic risk of danger to persons orproperty. In my view, the above mentioned cases demonstrate that there are a number of common facts that the Court will examine inmaking this determination. For example, in the cases of Ford, Shuparski, Brahniuk and Buckingham, the Courts pay particular attentionto whether the engine was running or not running. In the Shuparski case, the Court noted in addition to the car not running, that the keyshad been removed from the ignition and placed on the passenger seat.

In the Ford and Boudreault cases, there was evidence that the accused had made another plan or arrangement for a ride home, and thatthe accused did not plan or intend to drive. In Boudreault, the Court placed particular importance on the finding of fact by the trial judgethat the accused had made another arrangement so that there was no realistic risk of danger. In other cases, such as Brahniuk and Shuparski, the Court noted whether the car was disabled or not drivable.

[ 24 ] In addition in Boudreault , Fish J. speaking for the majority noted at paragraph 13: ... In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case. [ 25 ] I am satisfied that Mr. Odhiang has provided sufficient information that I accept that establishes that the inherent risk of putting his vehicle in motion was not a realistic risk in this case. My reasons can be summarised as follows:

(1) Mr. Odhiang testified, and I accept, he did not intend to drive his vehicle.

(2) Mr. Odhiang had made, along with his girlfriend, alternate arrangements for transportation. She phoned the friend John to come and get them. Mr. Odhiang had left his phone in the car. He testified the phone was dead.

(3) I am satisfied as to how and why he ended up in the driver’s seat of his vehicle.

(4) I am not satisfied that he was intoxicated to such an extent that he would forget his previous intention and plan and drive. The signs of impairment were minimal at this stage.

(5) Mr. Odhiang’s use of the vehicle’s fittings and equipment was minimal. [ 26 ] My decision is not based on the suggestion that the car battery was “dead” as described by Mr. Thompson. I accept that the radio was operating. It is possible that the battery would be sufficiently charged to operate the radio for a period of time, especially since he had just driven the vehicle from Saskatoon and then upon being parked for a couple of hours on a cold March night, the vehicle, and I gather it was an old vehicle, would not start. [ 27 ] The Crown suggested that because Mr.

Odhiang inquired as to whether there was an alternative other than the police seizing the vehicle, and a mention of his sister using the vehicle, that the Court should conclude that he knew the vehicle was operable. As I have said, my decision does not turn on this point and I am unable to conclude one way or the other whether the battery was dead or whether the vehicle could be driven that night. There is no dispute as to the fact that there is no evidence that the vehicle was running at the relevant time.

Therefore, considering all of the circumstances and the fact that I have a reasonable doubt as to whether Mr. Odhiang was in care and control of the vehicle, I find him not guilty on both counts. [ 28 ] I have to mention that Cst. Cunningham provided a very detailed account of the chain of events that evening. He clearly noted all the pertinent times that are necessary in an impaired driving prosecution. I further note that the officer was very patient and cooperative with Mr. Odhiang. The officer noted Mr. Odhiang was of African descent and therefore the officer was very careful to explain the procedure to him.

I certainly find that Cst. Cunningham proceeded properly and there is no question that the Certificate of Analyses is admissible and has been marked as Exhibit P-1 in these proceedings. I also have to comment on Mr. Odhiang’s conduct of this case. For a self-represented individual he was prepared and organized. He knew what avenue he wanted to pursue and had the necessary witnesses present. Also, when he testified he was straightforward and candid with the Court and the Crown on cross- examination. He readily explained that he wanted to cooperate with the police and did what he was told to do.

He readily agreed with the Crown’s suggestions and characterization of some of the events that took place. [ 29 ] In conclusion, I find the Crown has not proven beyond a reasonable doubt that Mr. Odhiang was in care and control of this motor vehicle. Therefore he is found not guilty on both counts. M. Gordon, J