Her Majesty the Queen - v. -, 2012 SKPC 88

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 088 Date: June 15, 2012 Information: 24405679 Location: North Battleford _____________________________________________________________________________ Between: Her Majesty the Queen - and - Christopher Dale Moccasin Appearing: Michel Piche For the Crown Donald MacKinnon For the Accused JUDGMENT D. O ’ HANLON , J CHARGES [ 1 ] Mr. Moccasin is charged with the following: Count #1 : That he did on or about September 10, 2011 at Cochin in the Province of Saskatchewan while his ability to operate a motor vehicle was impaired by alcohol did have the care or control of a motor vehicle contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code ;

Count #2 : That he did on or about September 10, 2011 at Cochin in the Province of Saskatchewan having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood did have care or control of a motor vehicle contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code . FACTS [ 2 ] Just after 4:00 p.m. on September 10, 2011, Corporal Alain Manibal, a 26 year veteran of the RCMP, was dispatched to the Bigway store in Cochin, Saskatchewan. Several people were reported to be passed out in a vehicle in the parking lot of the Bigway store. Upon his arrival he was directed to a vehicle parked in front of the store. The vehicle was a small grey two door Chevrolet vehicle with three occupants inside. All three were passed out in the vehicle. The accused, Christopher Moccasin, was seated in the driver’s seat behind the steering wheel.

He was slumped forward and leaning to his right. A female, later identified to be Amanda Wahobin, was seated upright in the passenger seat with her head slumping to her right shoulder. A male adult was sprawled across the entire back seat of the small vehicle. [ 3 ] The experienced officer noticed the windows on the vehicle were open as he approached. Corporal Manibal immediately smelled a strong odour of liquor emanating from the vehicle. Prior to attempting to wake the occupants, the officer called for back-up.

During the twelve minutes it took for the other officers to arrive on scene, Corporal Manibal wisely took photographs of the vehicle, vehicle location and the unconscious occupants. These photos were tendered as Exhibit P-1 on the trial and clearly depict the unconscious state of the two front seat passengers and the torso of the rear seat male. [ 4 ] The vehicle depicted in Exhibit P-1 was not running when the officer arrived on scene. The keys were in the ignition and in the “on” position. The dashboard lights were illuminated.

I accept the accused’s evidence that the parking brake was engaged and the vehicle was equipped with a manual five-speed transmission. I am further satisfied that in order to start the vehicle, the clutch and brake would have to be depressed, the key turned to ignite the engine and then in order to put the vehicle in motion, the park brake would have to be disengaged, the transmission put in gear and the clutch pedal released. [ 5 ] The vehicle was parked on the parking lot surface which was flat or very slightly sloping to the rear of the vehicle.

The front tires of the vehicle were within two feet of the raised sidewalk running along the front of the Bigway store. The photographs attest to the vehicle being in a properly parked position. [ 6 ] After the Crown closed its case, the accused testified on his own behalf. Defence counsel then requested an adjournment of the case as the female passenger in the vehicle had unexpectedly failed to attend Court as a defence witness on the trial. After a short adjournment, Crown counsel graciously agreed to tender a written statement from the female passenger for the truth of its contents.

Consequently, the statement of Amanda Wahobin was tendered as Exhibit D-2 on the trial. The statement reads as follows: This is regarding Christopher Moccasin’s trial. We were at a house party in Saulteux First Nation. We drank a couple of coolers, later we went picked up more and went to my sister-in- law’s and drank there. I started to get drunk and wanted to get more coolers so I drove to Bigway in Cochin with Christopher and his cousin. We got there and realized we had no more money. I asked Christopher to drive back so we switched seats.

After we switched seats Christopher said he was too drunk to drive and said let’s sleep. Then all of a sudden the cops were hauling us away. “Amanda Wahobin” [ 7 ] The evidence of Christopher Moccasin and Amanda Wahobin is consistent. There is no evidence to contradict their version of events. I therefore accept their evidence. [ 8 ] The evidence of both Christopher Moccasin and Amanda Wahobin is that Amanda Wahobin had driven the vehicle to the

[8] The evidence of both Christopher Moccasin and Amanda Wahobin is that Amanda Wahobin had driven the vehicle to thelocation where it was found by Corporal Manibal. Once arriving at the store, and parking the vehicle, Ms. Wahobin asked the accused todrive back to their residence at the Saulteux First Nation, approximately four to five kilometres away. The accused thereupon exited thefront passenger seat and took up occupancy in the seat ordinarily occupied by the operator of the vehicle. In other words, he got into thedriver’s seat.

He immediately realized he was too intoxicated to drive and he therefore decided not to. Instead, he decided to sleep it offuntil he was sober enough to drive. Mr. Moccasin and the female, now occupying the front passenger seat, both promptly went to sleepin their respective positions. These are the positions Corporal Manibal found them in upon his arrival on the scene. [9] I am satisfied the accused did nothing with the fittings of the motor vehicle. He did not even attach his seat belt uponentering the driver’s compartment.

The key in the “on” position, with the dash lights illuminated were as the accused found them uponplacing himself in the driver’s seat. [10] Once Corporal Manibal’s back-up arrived, the corporal opened the driver’s door and attempted to converse with the accused. When this failed, the corporal rubbed his knuckles and applied pressure to the accused’s bared breastbone. Still receiving no responsefrom the accused, the police extricated him from the car and placed him on the ground where he awoke. Initially upon awakening, theaccused was confused and became irate.

However, as soon as he saw the officers’ uniforms, Corporal Manibal testified that the accusedcalmed right down. He was then handcuffed, taken to the police vehicle and read a breath demand. He was thereafter transported to theNorth Battleford RCMP Detachment where he provided two suitable samples of his breath for analysis within two hours of the time hewas found in the driver’s seat of the vehicle. A Certificate of Analyses was completed and was tendered as Exhibit P-2 on the trial ofthis matter. The accused’s readings were both 170 milligrams of alcohol in 100 millilitres of blood.

The accused was then lodged incells and released early the next morning. ISSUE [11] The only issue to be decided in this case is whether or not the accused was in de facto care or control of a motor vehicle. TheCrown has conceded that the accused has rebutted the presumption contained in s. 258(1)(

a) of the Criminal Code. ANALYSIS [12] Two decisions of our Court of Appeal are of great assistance in analysing de facto care and control. In the case of R. v.Buckingham, 2007 SKCA 32, the Court of Appeal states at para. 11: The question of what constitutes being in care and control for the purpose of these provisions of the Criminal Code has been the subjectof a number of decisions, both of the Supreme Court of Canada and of this court. As the Supreme Court pointed out in R. v.

Ford, (SCC), [1982] 1 S.C.R. 231, it is clear that acts short of driving can constitute care and control, for s. 253 specifically makes itan offence to be in care and control of a vehicle while one’s ability to operate the vehicle is impaired by alcohol “whether it is inmotion.” For the same reason, an intention to drive the vehicle is not an essential element of the offence. [13] In the more recent case of R. v. Anderson, 2012 SKCA 37 , [2012] S.J.

No. 184, 2012 SKCA 037, the SaskatchewanCourt of Appeal states at paragraph 5 as follows: “The central question in “care or control” cases is whether, short of driving, theaccused’s use of a motor vehicle or its “fittings and equipment” or the accused’s course of conduct associated with a motor vehicle wouldinvolve a risk of putting the motor vehicle in motion so that it could become dangerous. This is the actus reus of the “care or control”offence. (See: R. v. Ford, (SCC), [1982] 1 S.C.R. at 231; R. v. Toews, (SCC), [1985] 2 S.C.R. at 119,and R. v.

Buckingham, 2007 SKCA 32 , 2007 SKCA 032, [2007] 6 W.W.R. at 73; among others; see also: R. v. Wren (2000),144 C.C.C. (3d) at 374 (Ont. C.A.)).” [14] In the case of R. v. Ford, cited by our Court of Appeal, the accused had made arrangements for someone else to drive hisvehicle, however, he was found to be in care and control despite his lack of intention to drive. However, in R. v. Toews, a subsequentdecision of the Supreme Court, the Ford decision was distinguished. In Toews, the accused was in a sleeping bag, with his head near thepassenger door.

The key was in the ignition and the radio was playing, but the vehicle was not running. The Court stated “each case willdepend on its own facts and the circumstances in which the acts of care or control may be found will vary widely.”

[ 15 ] In the Buckingham case, the accused had started the engine, and was exerting pressure on the accelerator when he was discovered asleep at the wheel by the police. In overturning the acquittal, the Court of Appeal stated at para. 21: This was a significant use of the vehicle’s fittings and equipment by an individual in a highly intoxicated state, and one that necessarily enhanced both the risk that the vehicle could inadvertently be set in motion, and the risk that if he awoke, he might intentionally set the vehicle in motion, given his intoxicated state.

However small those risks were, they were not negligible, and the realization of these risks was considerably more likely as a result of the motor being activated than it would otherwise have been. It is just this creation of risk that s. 253 of the Code is intended to address. [ 16 ] The Saskatchewan Court of Appeal then goes on to state at para. 22: It is true that the Supreme Court said, in Toews , that each case turned on its own facts. Even in that case, however, the Court was troubled by the fact that, although the engine was not running, the key was in the ignition and the radio was operating.

The fact that there was no evidence that it had been the accused who put the key in the ignition was considered significant in upholding his acquittal. [ 17 ] The Court then went on to conclude in para. 24: In the circumstances of this case, starting the engine running was sufficient to establish care and control of the vehicle for the purpose of these provisions of the Criminal Code . [ 18 ] In allowing the Crown’s appeal in the Buckingham decision, the Saskatchewan Court of Appeal would not say absolutely, as Crown counsel had urged, that turning on the vehicle engine ipso facto amounted to care and control.

Nor do I think it can be stated that the Saskatchewan Court of Appeal in Buckingham concluded that care or control cannot be made out unless the engine is running. But as we see from the Toews decision, the Supreme Court of Canada placed a great deal of emphasis on the fact the vehicle was not running especially since there was no evidence the accused had placed the key in the ignition. [ 19 ] In the decision of R. v. Anderson , the Saskatchewan Court of Appeal upheld the accused’s conviction. In that case, Mr. Anderson had parked his vehicle with its headlights on and its engine running.

He was seated in the driver’s seat, sleeping, when the police arrived. The police noted that he had earlier vomited on the driver’s side door and on the ground below it. Upon being awoken, Mr. Anderson gestured at the police with his middle finger. He then opened the passenger side window, but closed the window when an officer attempted to unlock the passenger door. When he refused to unlock the vehicle’s doors, the officers attempted to break the passenger side window by striking it four times. Mr.

Anderson then “shot straight up,” unlocked the driver’s door and jumped out of the vehicle and approached one of the officers. He was immediately subdued and arrested. He provided two samples of his breath: the first sample registered 110 milligrams percent and the second sample registered 100 milligrams percent. [ 20 ] In testifying in his own defence, Mr. Anderson stated he had no intention to drive his vehicle. He said that he had consumed a great amount of beer prior to entering his vehicle. He sat in the driver’s seat, started the engine, turned the heater on and went to sleep almost immediately.

He testified it was his intention to sleep off his intoxication before driving home which was approximately twenty miles. He later awoke, rolled down and vomited out the driver’s window then went back to sleep. This was how he was found by the police. In setting aside the acquittal ordered by the

summary conviction appeal court judge, and confirming the conviction of the trial judge, Mr. Justice Caldwell of the Saskatchewan Court of Appeal states at para. 17: In my respectful opinion, the risk of danger in this case was real and evident. Mr. Anderson was intoxicated. Mr. Anderson occupied the driver’s seat of his vehicle. Mr. Anderson’s vehicle was not disabled in any way, was running and was parked in a public area and, therefore, could have been easily put into motion by simply depressing the brake and engaging the gear shift (regardless of how many discreet steps one might characterize this as taking).

I find no fault with the trial judge’s conclusion that, given Mr. Anderson’s intoxicated state, these circumstances necessarily involved a risk that Mr. Anderson could have inadvertently set his vehicle in motion, or that Mr. Anderson could have, if he awoke, intentionally set his vehicle in motion. [ 21 ] In the case at hand, Mr. Moccasin, had done nothing with the fittings of the motor vehicle. He had merely entered into and occupied the driver’s seat of the vehicle. He had not started the vehicle, as the vehicle was not running, nor had he turned the key to the

on position. Consequently, the facts of this case bear a closer similarity to the Supreme Court decision in Toews than they do to the facts in Anderson . [ 22 ] Mr. Moccasin was seated upright in the driver’s seat of a small vehicle. All other seats in the vehicle were occupied by other individuals who were also passed out or asleep. When Mr. Moccasin made his determination not to drive the vehicle back to the Saulteux Reserve, he effectively had no other place in the vehicle to go to sleep or “sleep it off” as he testified. [ 23 ] The fact that Mr.

Moccasin had, immediately upon entering the driver’s seat, determined that he was too intoxicated to drive, is laudable. He, like Mr. Anderson, had decided to put off driving until they were sober. However, unlike Anderson, Mr. Moccasin had done nothing with the fittings of the vehicle including, not having started the vehicle. I find this to be a very important factor. Had the police not come along, it is indeed possible that Mr. Moccasin could have awoken, started the vehicle, and taken numerous discreet steps to put the vehicle in motion.

On the facts of this case, however, I am satisfied, as was the Supreme Court in Toews , that Mr. Moccasin had not performed acts which involved some use of the motor vehicle or its fittings and equipment, or some course of conduct associated with the motor vehicle which would involve a risk of putting that vehicle in motion so that it could become dangerous. CONCLUSION [ 24 ] Considering all of the above factors, I find that Mr. Moccasin was not in de facto care or control of the motor vehicle. I therefore find him not guilty of both counts on the Information. _______________________ D. O’Hanlon, J