Her Majesty the Queen - v. -, 2015 SKPC 002

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 002 Date: January 20, 2015 Information: 24481340 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Blair James Peyachew Appearing: Mr. Cam Scott For the Crown Ms. Pamela Cuelenaere Q.C. For the Accused DECISION M.M.

B ANIAK, J [ 1 ] The accused, Blair James Peyachew, is charged with the following: On or about the 6 th day of October, A.D. 2012 at Anglin Lake, in the Province of Saskatchewan did: 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 Section 255(1) and Section 253(1) (

a) of the Criminal Code of Canada ; and

Having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred milliliters of blood, have the care or control of a motor vehicle contrary to Section 253(1) (

b) and Section 255(1) of the Criminal Code of Canada . EVIDENCE: [ 2 ] The Crown’s sole witness was Srdjan Bunjevac, a member of the R.C.M.P. who, at the time of the alleged offence, had been employed by the force for approximately two and one half years, and stationed at Montreal Lake. [ 3 ] He testified that on the night in question he was proceeding north from Prince Albert when a vehicle coming in the opposite direction towards him crossed the centre line. He decided to stop the vehicle. [ 4 ] The accused, who was in the driver’s seat, appeared confused and incoherent.

The officer asked him for his driver’s licence three or four times before the accused stated that he didn’t have it. [ 5 ] Constable Bunjevac testified that he could smell strong odour of liquor emanating from the vehicle. [ 6 ] With respect to the accused, Constable Bunjevac described him as follows: ‘he was stunned and dazed’; ‘disoriented – out of his element’; ‘I smelled alcohol on his breath’. [ 7 ] He also testified that as soon as the vehicle coming towards him crossed the centre line he decided to stop it. He engaged the police vehicle lights; turned around followed the vehicle and stopped it.

The whole process took about “a minute, minute and a half,” and the distance travelled was about one kilometer. The vehicle was stopped at 11:26 p.m. [ 8 ] Constable Bunjevac testified that he observed some movement in the vehicle prior to him engaging the accused. [ 9 ] According to his testimony, the accused had slurred speech, glazed eyes. He smelled of liquor and was very drunk. He arrested the accused, read him his Charter rights and demand for breath sample from a card. The accused stated that he understood. [ 10 ] The accused also advised Constable Bunjevac that he was not the driver.

Another person in the vehicle, Sheena Ballantyne - with whom the constable spoke separately - admitted to being the driver. She advised him that the switch was made after the vehicle stopped. There were five people in the four door Pontiac G5. [ 11 ] The constable appeared to be satisfied that the accused was not the driver, but since the vehicle was running and the accused was in, as he put it, “the hot seat”, he proceeded to charge him.

He testified that the accused’s hands were on the steering wheel – “low down, in the five and seven o’clock position.” After reading the rights and warnings to the accused from a card, he transported him to the R.C.M.P. detachment for the purpose of providing breath samples. Both samples exceeded the legal limit. [ 12 ] During cross-examination, Constable Bunjevac acknowledged that when he passed the vehicle he could not see who was driving, and that the accused, when placed in the police vehicle, told him that he was not the driver. [ 13 ] The first witness called by defence was the accused, Blair Peyachew.

He is presently twenty years of age, and at the time of the incident he was eighteen. [ 14 ] He testified that on October 6, 2012, he and some friends were attending a powwow in Prince Albert. He and a friend were

drinking a lot. Another friend, Sheena Ballantyne, who was not drinking, was the driver. The accused - who did not have a driver’s licence, and who did not intend to drive - sat in the back seat and fell asleep. He was sitting between two other males. [ 15 ] At some point that night there was a lot of commotion in the car. He was awakened and told to get in the front seat.

In his words, “Sheena jumped in the back seat and they pushed me into the front seat… I had no idea where I was… I remember crawling into the front seat and they were yelling come on get up, wake up.” [ 16 ] During cross-examination the accused admitted that he was intoxicated. He did not know if the vehicle was running and he was not entirely clear as to what happened. The whole thing was a blur.

He did not believe that his hands were on the steering wheel. [ 17 ] In response to the prosecutor’s question of “could you have put this vehicle in motion?” he replied “I don’t know”. [ 18 ] The second defence witness was Sheena Ballantyne. She is the accused’s friend. She is presently 21 years old. She testified that on the day in question she, the accused and her friend Chelsea went to a powwow in Prince Albert. At some point two other males joined them. She did not know who they were and has not seen them since. [ 19 ] She testified that she did not drink at all that day and that is why she decided to drive.

The accused, who had been drinking, sat in the back seat and promptly fell asleep or “passed out.” The other two males also sat in the back seat. Chelsea sat in the front passenger seat. [ 20 ] The intention was to drive to North Battleford. “I took the wrong turn. Then Chelsea said we were going the wrong way, so I turned around to go to P.A.” [ 21 ] Once she saw the police light flashing she panicked. She testified as follows: “I put the vehicle in park and turned off the engine. I started freaking out because I didn’t have a licence. I jumped in the back. Blair was pushed into the front seat.

He was sleeping before.” [ 22 ] After the accused was placed in the police vehicle, Constable Bunjevac came to ask if she was the driver.

Not wanting to get her friend in trouble, she confessed that she was the driver and that the accused did not do any driving that night. [ 23 ] During cross-examination, she essentially repeated her earlier testimony that the accused “had nothing to do with driving.” She also testified that she was certain that she turned the engine off before jumping in the back seat. [ 24 ] She was unable to explain exactly how a big man like the accused, the two male passengers and herself could fit in the back seat of a subcompact automobile and then maneuver the accused into the front seat in a very short period of time.

She did, however, indicate that the accused was literally pushed or shoved into the driver’s seat with a lot of yelling and urging from her and the other passengers. [ 25 ] The issue to be determined is whether, based on all of the evidence, the accused was in care and control of a vehicle while impaired by alcohol or a drug. [ 26 ] The Crown can prove care and control by either relying on the presumption in s. 258(1) of the Criminal Code or by establishing that the accused had de facto care or control of the vehicle wherein he could either intentionally, or inadvertently set the vehicle in motion and create a danger to persons or property. [ 27 ] Section 258(1)(

a) reads as follows: Where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or railway equipment, the accused shall be deemed to have

the care or control of the vehicle, vessel, aircraft or railway equipment as the case may be, unless the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment as the case may be. [ 28 ] This presumption may be rebutted if the accused is able to establish, on a balance of probabilities that the purpose of occupying that seat was not for the purpose of setting the vehicle in motion. [ 29 ] In the present case, the accused testified that he did not drive the vehicle that night; that he was sleeping in the back seat as he had a lot to drink; and that he is not even quite sure as to how and why he was behind the steering wheel when the constable came up to the car. [ 30 ] What he did recall was being awakened by the other persons in the car and practically pushed into the driver’s seat.

Clearly there was no time for him to ask what was going on and make a rational decision as to whether he should comply with the urgings and direction of the other occupants of the car. [ 31 ] His lack of awareness is consistent with someone who is awakened from a deep, alcohol induced sleep. Constable Bunjevac testified that when he came to up to the window of the vehicle the accused looked “stunned” and “dazed”; “he was clearly out of his element”. [ 32 ] Sheena Ballantyne testified that she did not drink anything that night and that she was essentially the designated driver.

Her friend Chelsea was also sober and she sat in the front passenger seat. The accused who was, in her words, ‘passed out’ was sandwiched in the back seat. She did not know the two male passengers in the back seat. [ 33 ] When it became apparent that she was going to be pulled over by the police she panicked as she did not have a driver’s licence. She pulled over to the side of the highway, put the vehicle in park, shut off the engine and did her best to move the accused from the back seat to the front. [ 34 ] Constable Bunjevac testified that he saw some movement in the back of the car as he was pulling up.

He also satisfied himself after his conversation with Sheena Ballantyne that the accused was not the operator of the vehicle prior to it being stopped. [ 35 ] I accept it as a fact that the accused was not the driver of the vehicle before it was stopped by Constable Bunjevac. I also accept the accused’s testimony that he had made up his mind earlier that night that he was not going to drive, and proceeded to sleep in the back seat. [ 36 ] Based on the above, I am satisfied that the accused did not occupy the driver’s seat for the purpose of setting the vehicle in motion. Accordingly, the s. 258(1) (

a) presumption is rebutted. [ 37 ] What remains to be decided, therefore, is whether the accused had actual care or control of the vehicle and as such could put the vehicle in motion and create a risk or danger to persons or property. [ 38 ] The issue was recently examined by the Supreme Court in R v Boudreault , 2012 SCC 56 ; 350 DLR (4th) 533; AZ-50905782; JE 2012-2028; [2012] SCJ No 56 (QL) [ Boudreault ]; and even recently by our Court of Appeal in R v Poncelet , 2014 SKCA 30 ; 112 WCB (2d) 472; 433 Sask R 237 [ Poncelet ]. [ 39 ] In Boudreault , the Supreme Court stated that the intention to drive the vehicle is not relevant or pertinent to the charge of care and control, but did describe the essential elements of “care and control” within the meaning of s. 253(1) as follows: (

a) an intentional course of conduct associated with a motor vehicle;

(

b) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; and (

c) in the circumstances that create realistic risk of danger to persons or property (para 33). [ 40 ] Although the risk need not be ‘probable’ or ‘substantial’, it must be ‘realistic’, not just theoretically possible. [ 41 ] In Boudreault , the accused was found intoxicated in his vehicle. He testified that he had no intention of driving. While waiting for a taxi he got cold so he went inside his truck, started the engine and fell asleep.

When the taxi arrived, the taxi driver called the police. [ 42 ] While the Supreme Court held that an intoxicated person found behind the wheel of a vehicle is very likely to be found guilty of the offence of care and control that is not always the case. A conviction will not result unless there is a realistic risk of danger.

Whether there is a realistic risk of danger is a question of fact. [ 43 ] In paragraph 45, the Court stated its position in the following manner: As I mentioned at the outset, anyone found inebriated and behind the wheel with a present ability to drive will – and should – almost invariably be convicted. It hardly follows, however, that a conviction in these circumstances is, or should be, “automatic”.

A conviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case. [ 44 ] It continued by stating that the degree of involvement of the accused with the vehicle needs to be more than trivial to constitute care and control.

In other words, the particular facts of the case will determine whether an accused is in care and control. [ 45 ] In Boudreault , the Supreme Court agreed with the trial Court that waiting in a vehicle for a taxi, with the vehicle running, did not constitute realistic risk of danger having regard to the particular circumstances of that case. Mr. Boudreault took steps after a night of drinking to avoid driving. A taxi was called (twice), and he patiently waited until the cold temperature forced him into his truck.

After starting his truck, and turning the heater on, he continued to wait for the taxi until he fell asleep. The trial judge was satisfied that Mr. Boudreault would not set his truck in motion. [ 46 ] A similar situation arose in the case of R v Poncelet , where the accused was found intoxicated in his truck by the police. He was slumped over the steering wheel with the engine running. [ 47 ] Mr. Poncelet testified that he had no intention to drive. Rather, his plan was to sleep in his truck until the next day. He started his truck to stay warm. [ 48 ] The trial judge found that Mr.

Poncelet did not intend to drive and, moreover, that the risk of putting his truck in motion inadvertently was negligible. [ 49 ] Our Court of Appeal (per Richards C.J.S.) held that, based on the facts, the trial judge’s decision should be upheld. The Court made it clear, however, that in a similar scenario – i.e., an intoxicated person sleeping behind the wheel of a running vehicle – may result in a different verdict, if the facts differ. ( R v Anderson, 2012 SKCA 37 ; [2012] SJ No 184 (QL); 30 MVR (6th) 36; 399 Sask R 1). [ 50 ] Having regard to these decisions, it is necessary to consider whether Mr.

Peyachew’s presence in the driver’s seat of his car presented a ‘realistic’ risk of danger to person or property. [ 51 ] As already stated, he took constructive steps to avoid driving that night – he gave the keys to a sober driver and went to sleep in the back seat.

[ 52 ] On the issue of whether his presence behind the steering wheel presented a ‘realistic risk of danger to person or property’, I find there was no realistic risk of danger. [ 53 ] The accused did not make a conscious decision to sit behind the wheel. According to him, he had no idea how he got there. The evidence from Sheena Ballantyne was that he was literally shoved behind the wheel after being awakened from a deep sleep.

It is possible that he responded to yells and shouts from others in the vehicle to get I the front seat without realizing the implications of doing so. [ 54 ] One could be skeptical of the testimony of the accused and Sheena Ballantyne if it were not for the testimony of Constable Bunjevac, who testified that when he came up to the vehicle the accused appeared to be ‘confused’, ‘incoherent’, ‘stunned’, ‘dazed’, ‘disoriented’, and ‘out of his element’. [ 55 ] All of this would be consistent with a person being urgently and unceremoniously awakened from a deep sleep induced by intoxication.

The accused himself testified that he had no clear recollection as to how he got behind the wheel. He does have some recollection of being shaken awake and directed to get into the front seat. [ 56 ] There is no conclusive evidence that the vehicle’s engine was running. Constable Bunjevac and Sheena Ballantyne were both sober. Their testimony on this point differs. Neither’s testimony was shaken or discredited during cross-examination.

I am unable to conclude that I prefer one version over the other – and, where there is doubt it should be resolved in favour of the accused. [ 57 ] Constable Bunjevac testified that once he turned his vehicle around he caught up to the accused’s vehicle within twenty seconds. There is absolutely no evidence that the accused did anything during that time to put the vehicle in motion. [ 58 ] There was no evidence from Constable Bunjevac that the accused attempted to do anything that could accidentally or inadvertently put the vehicle in motion.

His testimony was that the accused had his hands on the bottom of the steering wheel, “at the five and seven o’clock position’. [ 59 ] The accused testified that his hands were probably resting or slumping on his knees below the steering wheel. Either way, I don’t believe much hinges on this. The accused’s behaviour and position can only be described as being passive. [ 60 ] Finally, during cross-examination the accused was asked “could you have put this vehicle in motion?”; he replied “I don’t know”. [ 61 ] This, in my view, was probably the only answer he could have truthfully given.

Considering his state of intoxication, his mental condition as described by Constable Bunjevac, combined with the fact that he would have been behind the steering wheel for a matter of seconds, it is unlikely that he would have directed his mind to that point. [ 62 ] The more relevant question to ask is whether there was a realistic risk or danger created during the interval that he was behind the wheel.

The evidence does not support such a conclusion. [ 63 ] What we have here is an intoxicated person being shoved behind the steering wheel by the other occupants of the vehicle as the police cruiser was closing in. [ 64 ] It cannot be surmised that his mere presence behind the wheel, when taken in context with all the evidence in this case was likely to result in an accidental or unintentional putting of the vehicle in motion and thereby constituting a realistic risk of danger to persons or property. [ 65 ] The manner in which he conducted himself in the motor vehicle at the material time does not support the conclusion that there was a reasonable or realistic risk of him putting the vehicle in motion.

[ 66 ] Further, there is no evidence that the accused embarked on an ‘intentional course of conduct associated with the motor vehicle’ which could have put the vehicle in motion. The only evidence is that the accused occupied the driver’s seat of a stationary vehicle which was not running. There is no evidence that the accused performed any act or act which could put the vehicle in motion. [ 67 ] The risk of the accused putting the vehicle in motion – either deliberately or accidentally – was at most negligible. I find that there was no realistic risk of danger in the particular circumstances of this case.

The evidence is not sufficient to establish that the accused was in de facto control of the motor vehicle. [ 68 ] Accordingly, I find that the accused was not in care and control of a motor vehicle while impaired, and therefore, not guilty of the charges contained in the above referenced Information. [ 69 ] Dated this 20 th day of January, A.D. 2015, at the City of Prince Albert in the Province of Saskatchewan. _________________________ M.M. Baniak, J