Her Majesty the Queen - v. -, 2011 SKPC 187

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 187 Date: December 1, 2011 Information: 45562471 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Keith Bartlett Appearing: Christopher White, Esquire For the Crown Aaron A. Fox, QC For the Accused JUDGMENT B.D.

HENNING, J [ 1 ] Keith ‘Chett’ Bartlett is charged with offences under sections 253 and 258 of the Criminal Code (having care and control of a motor vehicle while impaired by alcohol and having care and control of a motor vehicle having consumed alcohol in such a quantity to be over the permitted blood alcohol limit). He was found asleep in his truck situated in a parking lot of the University of Regina at approximately 2:30 a.m. on March 26, 2011. The truck was running and the lights were on. It was never determined at trial for how long he had been in that position.

He was seated in the driver’s seat, slumped over with his head resting against the steering wheel of the vehicle. The police, who had attended in response to a call, found him very hard to awaken, but pleasant and cooperative after being awakened. Mr. Bartlett was described as having bloodshot eyes, and with a strong odour of alcoholic beverage. His responses were described as disoriented and he required assistance to move to the nearby police vehicle.

[2] A demand for a breath sample was made. It was agreed by the Defence at the outset of the trial that identity was not an issue,that impairment was admitted, and the breath test demands and testing were properly made and taken. The Certificate of Analyses wasadmitted by consent for proof of its contents. The primary trial issue was stated at the outset of the trial by the Defence as being thequestion of care and control, and intent, of the Accused with respect to the vehicle. [3] Mr.

Bartlett gave evidence, stating that he had been attending an event (“Keg-O-Rama”) at the university since the afternoon atwhich alcohol consumption was a central feature. Mr. Bartlett stated he had been to the student pub at the university before, and plannedto leave his vehicle parked in the lot overnight and obtain other transportation home. Mr. Bartlett indicated he knew the vehicle wouldbe safe there, as indeed it was when he picked it up two days later.

He had attended with friends, and drank alcohol with them for manyhours, but became separated from them over the evening. [4] At the end of the evening he found that he was alone and the event was over. He found himself outside the building (in a highstate of intoxication, I would conclude), without his friends, the building was locked, his cell phone was dead and he was unable to call ataxi. In this situation, he decided to sleep in the truck.

The temperature was -16 to -20 degrees Celsius, and he stated that he requiredheat and turned the vehicle on for that purpose, without other intention to operate it or to drive, or do anything further with respect to thevehicle. He was not with any outerwear, and it was not made clear whether he had ever brought a jacket that day, or if he had one and ithad been lost. The running lights, which come on automatically, were the only vehicle lights on. It is apparent that Mr. Bartlett wasguilty of poor planning. The more difficult issue is whether he is guilty of criminal conduct. [5] The Defence position is that Mr.

Bartlett did not have an intention to place the vehicle in motion, and that as a result thepresumption contained in section 258(1)(

a) of the Criminal Code is rebutted. The

section provides as follows: (

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] I find Mr.

Bartlett’s evidence to be credible, and I find that I have no basis on which to reject it. If he had intended to place thevehicle in motion, he had opportunity to do so, and did not, and instead proceeded to sleep with the engine running. I therefore concludethat he has rebutted the above presumption under section 258(1)(

a) of the Criminal Code. However, the Crown argues that thepresumption is not required in these circumstances to establish care and control beyond a reasonable doubt, as noted in R. v. Ford, (SCC), [1982] 1 S.C.R. 231, as he was implicitly exercising care and control of the vehicle by entering it and turning theengine on for warmth. The Crown position was that this was a situation of risk to the public, as has been found in the cases cited by theCrown.

The question to be determined is whether on these facts and circumstances, either or both of the two offences charged areproven, which require full proof of the legal concept of care and control. [7] The Accused submits that he was not in care and control based on the following facts: a. He had no intention to drive the vehicle and had not moved the vehicle from where he had parked it earlier the previousday; b.

The vehicle was parked in a parking lot, nose first into a parking stall, with the intention that it would not be driven by theAccused because he was drinking and that he would leave his truck in the parking lot as he had done on other occasions when he wasdrinking; c. He had attempted to find a cab or another ride home and waited for some time before retreating to his vehicle for shelterfrom the cold; d. The Accused was aware of the risks of drinking and driving and did not drink and drive; e. He had not at any point in time that evening driven the vehicle while impaired;

f. In order for the vehicle to be put in motion he would have had to depress the brake pedal, pull the gear shift lever towardhim, and then pull it down into gear. As such there was no danger of it being inadvertently put into motion; g. The Accused at no point in time had an intention to drive the vehicle and had been parked for some time, sleeping, beforethe police arrived. [8] The Crown relies principally on the case of R. v.

Brahniuk, 2002 SKCA 104 , the entire text of which is as follows: GERWING J.A. (orally) [1] This is an appeal from a judgment of the Court of Queen’s Bench overturning the conviction of the respondent for having care andcontrol of a motor vehicle when his blood alcohol exceeded 80 milligrams in 100 millilitres of blood, contrary to s. 253(

b) and s. 255(1)of the Criminal Code. [2] The trial judge found that the accused, “too intoxicated to walk,” entered his truck and went to sleep across the bench seat. TheRCMP, on investigation, found the engine running with the respondent recumbent inside, his buttocks on the seat in front of the steeringwheel, his head on the seat toward the passenger’s side and his feet on the floor by the pedals. The doors were locked. It was beyonddoubt that the accused was highly intoxicated. [3] The judge accepted the respondent’s testimony that he did not have the intention to drive when he entered the vehicle.

He, however,went on to apply the Supreme Court of Canada decisions in R. v. Ford, (SCC), [1982] 1 S.C.R. 231 and R. v. Toews, (SCC), [1985] 2 S.C.R. 119, to find that he had care and control. He said: [34] . . . I am satisfied that he possessed the immediate ability to set the vehicle in motion had he woken up, since it was running and inno way disabled. Indeed, the drunken, uncoordinated movements he made in response to the police commands to unlock the truck doorssuggest strongly that he could easily have set the vehicle in motion through inadvertence.

This set of circumstances establishes the actusreus of care and control. The mens rea is made out on the usual presumption that a person intends the logical consequences of theiractions, demonstrated here by turning on the ignition and locking the doors; this shows an intent to exercise care and control of the truckand its fittings. [[2001] S.J. No. 816] [4] The appeal court judge concluded that the judgment was wrong largely because it did not apply the Queen’s Bench decision of R. v.Sherbrook (1998), (SK KB), 164 Sask. R. 183. We are of the view he was incorrect in so holding.

There has beensuggestion by Crown counsel in this case and in another case in this Court now under reserve, R. v. Shuparski (heard April 15, 2002, File379), that there is conflicting authority in the Court of Queen’s Bench over what constitutes de facto care and control short of driving. Whether or not that is the case is irrelevant in this decision. The facts in this case are distinguishable from Sherbrook where the enginewas off and the keys were deliberately placed beneath the driver’s seat.

Even on the obiter of Smith J. in Sherbrook, a conviction wouldhave been entered on the findings of fact by the trial judge here. Accordingly, the appeal court judge erred in his ratio. The decision ofNightingale P.C.J. is consistent with the Supreme Court and Saskatchewan jurisprudence and must be reinstated. [5] We note that the Shuparski case is under reserve, but it also is distinguishable from the factual situation in this case so we donot see a need to reserve our judgment in this matter pending release of that judgment.

We also note expressly that we make no commenton whether or not Sherbrook was correctly decided; we merely say that assuming, without deciding, that it is correct and that it isrelevant, it does not mandate that the judgment of Nightingale P.C.J. be set aside. [6] For these reasons, the judgment of the appeal court judge is set aside and the judgment of Nightingale P.C.J. is restored. [9] This case has much similarity to the present case, but there are many cases in this jurisdiction and in Canada that reachconclusions that appear, at least superficially, to be inconsistent on the issue of care and control.

These cases each have to be closelyanalyzed on their facts to identify the distinctions that lead to conclusions on the question of mixed fact and law concerning care andcontrol. Indeed, the decision in the Brahniuk case, supra, refers to the case of R. v. Shuparski, 2003 CarswellSask 165, 2003 SKCA 22,9 C.R. (6th) 270, 173 C.C.C. (3d) 97, 232 Sask. R. 1, 38 M.V.R. (4th) 17, 294 W.A.C. 1, [2003] 6 W.W.R. 428, 56 W.C.B. (2d) 755,which had been argued before a different panel of the Saskatchewan Court of Appeal, but had not then been decided at the time of theBrahniuk case.

Both the Brahniuk and Shuparski cases, supra, dealt with the issue of what constitutes de facto care and control in

situations short of driving. At paragraph 4 of Shuparski, Chief Justice Bayda observed: The relevant jurisprudential law is found primarily in the Supreme Court of Canada judgments in R. v. Ford, (SCC),[1982] 1 S.C.R. 231 (S.C.C.); R. v. Toews, (SCC), [1985] 2 S.C.R. 119 (S.C.C.); R. v. Whyte, (SCC),[1988] 2 S.C.R. 3 (S.C.C.); and R. v. Penno, (SCC), [1990] 2 S.C.R. 865 (S.C.C.). There are a large number of casesemanating from the various courts of the country deciding various aspects of the issues relating to care or control.

Some of those caseswere decided before and others after those Supreme Court of Canada decisions. It would be in large measure frustratingly unproductiveand in the end, largely futile for our purposes to compare and contrast the diverse holdings in those many cases. As McIntyre J. said inToews (at p. 126): [10] . . . Each case will depend on its own facts and the circumstances in which acts of care or control may be found will vary widely. I will therefore refer to those other cases only sparingly. [10] The Defence relies on the case of Shuparski, supra.

That case involved a person who had been operating a motor vehicle, andwho then stopped the vehicle and went to sleep. There was no question that the driver had been in care and control at the earlier time ofdriving, but the question remained as to whether he was still in care and control after having halted the vehicle, removed the keys, andgone to sleep. The operator of the vehicle was found to be over the legal limit of blood alcohol, and was charged with having care andcontrol of a motor vehicle while in that state.

This factual situation is somewhat different from the present case, where the Accused hadparked the vehicle many hours earlier, and returned to the vehicle for the purpose of sleeping only, but had started the vehicle for thepurpose of obtaining heat on a cold night. [11] Chief Justice Bayda in Shuparski, supra, succinctly summarized the law from the Supreme Court on care and control inparagraphs 8 to 23 of the judgment. He outlined the requirements of the offence noting: a. That operation of the motor vehicle is a distinct concept from care and control, which is something other than driving; b.

That both offences require mens rea; c. That care and control has a distinct actus reus. See paragraph 13: "act of assumption of care or control" is constituted by [10] . . . [A]cts of care or control, short of driving, [that] are acts which involve some use of the car or its fittings and equipment, or somecourse of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could becomedangerous. [Toews at p. 126].” Bayda CJS, then proceeded to examine refinements in the concept of ‘assumption of care and control’. d.

That the Crown must prove the elements of the case, possibly aided by the presumption under section 258(1)(a), and byother evidence. [12] Following the above, Bayda CJS, proceeded to discuss the facts of Shuparski, supra, noting that proof of impairment must applyto the time of the actus reus and mens rea, which, in that case, was not necessarily the same time to which the proof of impairmentapplied. He noted that intention, and hence mens rea, may change over the course of time without a person exiting and then resuming aposition in a vehicle.

A question then followed, whether the state of care and control was proven for the time relevant to impairment. He then proceeded to an analysis of the situation of the sleeping impaired driver found in a motor vehicle, which part of that case, issimilar and relevant to the present case. [13] In the present case, I have indicated that I accept the evidence of Mr. Bartlett that he had gone to his truck and entered it forshelter, without moving it, and remained in it until wakened with much difficulty by the police, and that the presumption did not apply.

The Crown argues, however, that in approaching the vehicle, even without intention to set the vehicle in motion, and by starting thevehicle and remaining in the driver’s position, that he was in legal care and control of the vehicle.

[14] The Court of Appeal in Shuparski, supra, adopts the test for actus reus of Justice McIntyre, in R. v. Toews, (SCC), [1985] 2 S.C.R. 119 (S.C.C.) and applying it, Bayda CJS wrote: 44 The acts took place at about 12:10 before the defendant fell asleep. Earlier, I outlined them to be these: He stopped the vehicleoff the travelled portion of the road he was using, on an approach facing an open field; he turned off the engine; he put the vehicle in"park"; he took the keys out of the ignition and put them on the seat; he locked the doors; he reclined the driver's seat; he went to sleep inthe reclined seat.

Nothing in any one of these acts, taken individually or collectively, is consistent with "a risk of putting the vehicle inmotion." On the contrary, each act is consistent with eliminating that risk. It follows that if there is no such risk, there can be nodangerousness flowing from that risk.

In other words, these acts do not establish the actus reus as contemplated by McIntyre J.'sdefinition. 45 The trial judge, in obiter, found that the defendant's "course of conduct with the vehicle" spanning the time he left his friend'sgirlfriend's residence at 12 midnight until he was awakened by the police officer at 2:05 a.m. "created a danger to the public" andpresumably — she did not so state — would have constituted the actus reus of the offence had she not considered herself bound bySherbrook.

For the reasons disclosed by the foregoing analysis, that "course of conduct" which it must be said included not only therational and deliberate decision by the defendant to stop the vehicle, but all of those risk-eliminating acts mentioned above, does not passthe test contemplated by the definition of the actus reus. 46 The trial judge, again in obiter, laid considerable emphasis on the "danger" created by the defendant's being "in a position toresume driving at any time and his intention was to resume driving". She went on to say: [44] . . .

He had already exercised poor judgment in leaving his friend's girlfriend's home to drive to his residence. There is no guaranteethat his judgment after sleeping for a time would be better, or that his condition would necessarily be unimpaired, despite the fact that Ihave not found the evidence presented to be sufficient to convict him of the offence of impaired care or control. In my respectful view, the defendant's "position to resume driving the vehicle at any time" is not an "act" let alone one capable ofconstituting the actus reus.

It is axiomatic that a person cannot be convicted for something he has not done. The fact he is in a"position" to do something wrong that he may or may not do, does not create some sort of inchoate form of culpability for which he mustanswer. Conjecture has no role to play in a criminal offence. I note that in Toews the defendant was in a "position" to drive the vehiclehe was sleeping in "at any time", but that "position" played no role in the Court's determination of finding no actus reus. 47 I conclude this issue of "position" by this observation.

As many cases have noted, including the cases cited earlier, the elementof dangerousness arising from the risk of putting a vehicle in motion while a person is under the influence of alcohol is at the centre ofthese care or control cases. The elimination of that element of dangerousness is what Parliament had in mind when it passed thelegislation in question.

Whether a potential for dangerousness should be a cause for concern where a person is in a "position" to set avehicle in motion depends not so much on the physical "position" the person happens to be in as it does on his attitude or dispositiontowards potential dangerous situations. If it is nonchalant, non-caring or reckless, that is one thing. If the attitude is to specificallyaddress the situation with a view to eliminating it, that is quite another thing.

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

In other words, when the facts of the case are viewed from an "overall" perspective thatelement 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 failedto prove this element of the offence beyond a reasonable doubt. 48 There is no need for me to conduct an analysis of the Sherbrook judgment. It is not under appeal.

Suffice it to say that the mainissues decided by Smith J. were decided in a manner consistent with the holdings in the present case. [15] The difficult question of what constitutes care and control was again considered by the Saskatchewan Court of Appeal in the caseof R. v. Buckingham, 2007 SKCA 32, wherein Smith J.A. reviewed the case law again, including cases decided since Shuparski, andundertook an analysis not different in principle from R. v. Shuparski.

She concluded that there was a risk in the case before her, andentered a conviction, stating: [21] Nonetheless, it is my respectful view that the trial judge paid too little attention to the fact that the respondent had started the engineand, indeed, was exerting pressure on the accelerator to rev it when he was discovered. This was a significant use of the vehicle’s fittingsand 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 those 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 ] Smith J.A. proceeded to state that turning on the engine is not conclusive alone of care and control, but in the circumstances of that case, there was a level of risk to the public as contemplated by the statute, and entered a conviction.

These, and the many cases in this area which are too numerous to cite, illustrate that factual differences in each situation may add or subtract from the risk to the public that the person sleeping in such a situation may accidently or inadvertently place a vehicle in motion, or adopt a change of intention to place the vehicle in motion, thereby endangering the public.

Further, it is apparent that these factual differences, though they may appear small, are still significant in weighing the risk described. [ 17 ] Notwithstanding the many cases in this area, the remarks of Bayda CJS in Shuparski , supra, at paragraphs 46 and 47 , set out above, are helpful in assessing this risk, as are the remarks of Smith, J.A. in paragraph 14, above.

To go further in this analysis becomes much, in my opinion, like attempting to further define or refine the concepts of reasonable doubt or due diligence, both of which must always be founded upon a consideration of the facts and law by the trier of the case, as is the case here on the issue of mixed fact and law of care and control. There are many case illustrations of this process, and a helpful example of this analysis is found in R. v. Ross , 2011 SKPC 130 , decided by M.L.

Gray, J. [ 18 ] In the instant case, I find that the driver had not entered the vehicle and started the engine to exercise care and control and thereby create the risk contemplated and defined by Parliament. His intent is evidenced by the fact that he did not move the vehicle in the considerable time in which it was available to him throughout the afternoon, evening and night, and particularly at night, when the area was largely deserted, and he was in need of transportation.

Further, his practice in not operating the vehicle while intoxicated was consistent with earlier instances where he left his vehicle for that reason, and retrieved it later. This reinforces the credibility of his assertion that his intent was not to exercise care and control of the vehicle in the manner defined in the relevant sections of the Criminal Code . Although he did turn on the engine of the vehicle, that has been specifically noted not to be, of itself, to constitute and be decisive on the issue of care and control.

In this case, in order to place the vehicle in motion, several coordinated steps would have had to be taken which preclude inadvertently placing it in motion, and do not constitute a risk. I conclude that he did not have the intent or mens rea required to adopt care and control over the vehicle. [ 19 ] I therefore dismiss the charges. ____________________________________ B.D. Henning