Her Majesty the Queen - v. -, 2015 SKPC 108

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 108 Date: August 12, 2015 Information: 43843487 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lyndon Janzen Appearing: Sheryl Fillo For the Crown Chris Lavier For the Accused JUDGMENT M.L. GRAY , J Introduction [ 1 ] On December 13, 2014 at approximately 7:55 a.m., Constable Marek of the Saskatoon Police Service was dispatched to investigate a noise complaint related to a white truck that was idling very loudly on a city street.

The officer attended at 8:04 a.m. and discovered the accused slumped behind the steering wheel of this truck with his seat belt fastened. After noting visible signs of

impairment the officer arrested the accused, made a breath test demand and detained him for breath samples. Those samples wereobtained at 9:33 and 9:57 a.m. and resulted in readings of 160 and 150 milligrams of alcohol in 100 millilitres of blood respectively. As aresult, Mr. Janzen was charged with having the care or control of a motor vehicle while his ability to do so was impaired by alcohol; andalso with having the care or control of a motor vehicle while his blood alcohol concentration exceeded the legal limit contrary to ss.253(1)(

a) and (

b) of the Criminal Code. [2] There is no dispute that Mr. Janzen was impaired by alcohol when found in his vehicle nor is there any dispute with respectto the admissibility of the breath test results. The accused simply argues that he did not enter the vehicle with the intention of setting itin motion but was just using it as a warm resting place. Issues [3] The issues can be stated in this way: 1. Is the Crown entitled to rely upon the presumption of care or control as stated in s. 258(1)(

a) of the Criminal Code; and 2. If the presumption does not apply has the Crown established actual care or control? Analysis 1. Is the Crown entitled to rely upon the presumption of care or control as stated in s. 258(1)(

a) of the Criminal Code? [4] Section 258(1)(

a) of the Criminal Code deems that a person who is in the seat normally occupied by the driver of a motorvehicle has the care or control of that vehicle. This presumption can be rebutted by evidence, which if accepted, establishes on a balanceof probabilities that the accused did not assume that position with the intention of setting the vehicle in motion: R v Whyte, (SCC), [1988] 2 SCR 3.

The evidence is uncontradicted that Constable Marek found the accused seated behind the driver’s wheel ofa motor vehicle with his feet in the wheel well and his seat belt on; accordingly, pursuant to s. 258(1)(a), the accused is deemed to havecare or control of that motor vehicle. The question is whether that presumption has been rebutted. [5] The accused testified that on December 12, 2014, he made arrangements to visit his friend Darren and about 10:00 p.m., hearrived at Darren’s home with a 40 ounce bottle of whisky. He parked his vehicle where Constable Marek later found it.

During theevening and early morning, he, Darren and Darren’s girlfriend were in the heated garage visiting and consuming alcohol. Between 10:00p.m. and about1:30 a.m., he consumed the entire bottle of whisky by himself. At some point, he fell asleep and when he awakenedaround 5:30 a.m., he discovered he was alone. He left the garage, and locked the door with the intention of going into the house as heoften spent the night at Darren’s home after overindulging. However, on this particular morning, he found the doors to the home werelocked.

He knocked and rang the doorbell but received no answer; it did not occur to him to telephone Darren. As a result, he walkedtoward his truck, thinking he would go for breakfast at a local restaurant. However, when he got to the truck, he felt that he was in nocondition to drive so decided to go to sleep instead. He got behind the wheel, started the vehicle, turned on the heater and fell asleep.

Hevolunteered that he previously had been convicted of care or control of a motor vehicle when he had pulled over and gone to sleep afterconsuming too much alcohol. [6] He denied that he considered driving home even though his residence was only ten blocks away. As he was not dressedwarmly enough, he could not walk that distance. His plan was to sleep in his truck until the morning and see how he felt. He believedthat he could have called his parents to come and collect him as his mother had done so in the past.

He spent the last of his money on thewhisky he purchased and had no cash for cab fare nor did he have a credit card. [7] I do not accept that Mr. Janzen had abandoned his intention to drive before he fell asleep behind the wheel of his truck. By

virtue of his own evidence, his first thought as he walked to his vehicle was that he would drive to a restaurant for breakfast. Althoughhe says that he changed his mind, that is not consistent with the uncontradicted evidence that his seat belt was fastened and his foot wason the gas pedal. The accused says that he buckled his seat belt out of habit; however, this is a habit associated with operating a motorvehicle, not with going to sleep. Nor is it likely that he would place his foot on the gas pedal in preparation for sleep.

These are not theactions of someone simply seeking a warm refuge, particularly when it is considered in the context of Mr. Janzen’s previous experiencewith the consequences of sleeping behind the wheel of a vehicle. His evidence does not satisfy me, on a balance of probabilities, that heabandoned his initial intention in approaching the vehicle, which was to drive. Accordingly, he has not rebutted the presumption of s.258(1)(

c) and is deemed to have been in care or control of the vehicle when the officer arrived. 2. If the presumption does not apply has the Crown established actual care or control? [8] It is also open to the Crown to prove actual care or control by establishing both the actus reus and mens rea of the offencewithout reliance on the presumption.

In R v Toews, (SCC), [1985] 2 SCR 119 [Toews] at para 7, the Supreme Court ofCanada defined the elements of care or control as follows: ...the mens rea for having the care or control of a motor vehicle is the intent to assume care or control after the voluntary consumption ofalcohol or drug. The actus reus is the act of assumption of care or control when the voluntary consumption of alcohol or drug hasimpaired the ability to drive. [9] An intent to drive or set the vehicle in motion is not essential to the proof of the offence of care or control.

As stated in R vBoudreault, 2012 SCC 56 [Boudreault], the offence of care or control is comprised of an intentional course of conduct in relation to amotor vehicle by a person whose ability to operate that vehicle is impaired by alcohol or drug, or whose blood alcohol concentrationexceeds the lawful limit, in circumstances that create a realistic risk of danger to either people or property. [10] A few months prior to Boudreault, Richards C.J.A. wrote in R v Coleman, 2012 SKCA 65 , [2012] SJ No 397(SKCA) [Coleman] at para 24: The relevant risk does not relate solely to the possibility of an impaired driver acting inadvertently to put a vehicle in motion.

It alsoincludes the possibility of such a driver acting intentionally in this regard. The reason for this is self-evident. Impaired drivers have adiminished capacity to make safe judgments. They frequently act, deliberately, in ways which endanger themselves and the public. [11] Chief Justice Richards then referred to R v Buckingham, 2007 SKCA 32, which identified two aspects to the risk: (

i) that anintoxicated accused will awaken and be too intoxicated to remember or adhere to the previous decision not to drive, and (ii) that anintoxicated accused might inadvertently set the vehicle in motion: see also R v Anderson, 2012 SKCA 37 para 17. [12] A realistic risk of danger as articulated in Boudreault is one that is more than theoretically possible. However, it need not beprobable, serious or substantial. To require that a risk is realistic, is to establish a low threshold consistent with Parliament’s intention toprevent danger to public safety: Boudreault para 34-35.

A realistic risk is, in the absence of evidence to the contrary, the only reasonableinference where the evidence establishes impairment of the accused and a present ability to set a motor vehicle in motion: Boudreaultpara 48. [13] Nonetheless, a judicial determination of realistic risk is required and is dependent on the facts found in any particular case. Itcannot be a conclusion based on speculation or conjecture; it must be founded on evidence related to a risk: (

i) that the accused will setthe vehicle in motion unintentionally; (ii) that a stationary or inoperable vehicle, as a result of negligence, might endanger the accused orothers; and (iii) that the accused who decided not to drive might change his or her mind while still impaired. [14] In making this determination, the Court in R v Topfer, 2014 ONSC 5669 at para 16 set out a non-exhaustive list of factors thata court can consider in determining whether there is a realistic risk that an accused might set a vehicle in motion. Kalmakoff J. (as hethen was) summarized those factors in R v Derksen, 2015 SKPC 42 , 2015 SKPC 042 at para 20 as follows:

i. the level of impairment; ii. whether the keys were in the ignition; iii. the location of the vehicle; iv. whether or not he had reached his final destination; v. whether he drove the vehicle to the location where it was found; vi. whether he had started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving; vii. whether he had a plan to get home that did not include driving while impaired or over the legal limit; viii. whether he had a stated intention to resume driving; ix. whether he was seated in the driver’s seat regardless of the applicability of the presumption; x. whether he was wearing his seat belt; and xi. whether he failed to take advantage of an alternative means of leaving the scene; and whether he had a cell phone to make alternative arrangements and failed to do so. [ 15 ] The evidence is clear that Constable Marek responded to a noise complaint with respect to the sound of the accused’s idling truck.

He confirmed that the sound of the engine was loud and that in all his experience with automobiles, he had never heard an engine idle that loudly. The officer agreed that the gas pedal was not being depressed and released, but rather was running steadily and at a high r.p.m. The accused says that this vehicle has a diesel engine and a throttle that revs up automatically to keep the engine warm. He recorded the sound of the engine running and of the automatic throttle. This tape was filed as an exhibit.

The accused says that he never had any other noise complaint in relation to his idling truck in the eight or nine months that he had owned it prior to this incident. Given this evidence and having listened to the sound of the engine idling, but not under acceleration, I accept the evidence of the officer that the accused was depressing the gas pedal with his foot causing the engine to run at high revolutions.

Indeed, the accused ultimately admitted in cross-examination that his foot might have been “resting” on the gas pedal. [ 16 ] When Constable Marek first located the accused in his vehicle, he initially thought there was a child in the middle of the seat because he could see only the top of a head. He approached the vehicle and saw the accused seated behind the wheel and slumped to the right. As the door of the vehicle was unlocked, he opened the driver’s door and noted that the accused was buckled in with his seat belt. He first tried to awaken the accused by speaking to him.

He then turned the engine off and removed the keys for officer safety. He was certain that he did so before awakening the accused. He was unshaken in cross-examination on this point. He was equally certain that he placed those keys in the cargo pocket of his trousers but acknowledged that the truck later may have been started accidentally with the command start although he did not recall that occurring. [ 17 ] After ensuring his own safety, he focussed on rousing the accused. He shook the accused’s arm in an attempt to awaken him with no success.

He then twisted the accused’s left arm back in what he called a “twist lock.” This slowly brought the accused to consciousness. The officer began speaking to the accused and noticed a smell of alcohol from his breath as well as bloodshot, glassy eyes. The accused was asked to step out of the vehicle and needed to use the side of the truck for balance in order to do so. He seemed a little confused about where he was, saying that he was on 19 th Street when he was actually nowhere near there.

It took Constable Marek only a few minutes to conclude the accused’s ability to drive was impaired by alcohol. [ 18 ] The accused admitted that he buckled his seat belt but says he did so out of habit. He had no explanation for why he would sleep in the driver’s seat except to say that he has a bad back and was more comfortable sitting upright than lying down while he slept. It did not cross his mind to drink and drive although he initially considered driving to Avenue C and Circle Drive to have breakfast.

He changed his mind because he knew he could not drive; he anticipated that his parents would be home about 9:00 a.m. and could collect him. [ 19 ] He recalls being awakened by the police officer who knocked on the window. Although he was very intoxicated at the time, he denied that he was confused; rather, he was just startled. He unlocked the door as he had no idea why the officer was there. Although he knew he could be charged for sleeping in the vehicle, he did not know what else to do in the circumstances in which he found himself.

Once he unlocked the door to the truck, the officer told him to turn off the vehicle but he could not clearly recall the

conversation that he had with the officer. [20] He did not recall the officer using a pressure point to awaken him, but acknowledged that it was possible that the officer haddone so. He admitted that he could have slumped over once he fell asleep and that he could have gone to sleep elsewhere in the vehicle. When awakened at 8:00 a.m., he did not feel that he was able to drive. [21] The accused disagreed that the officer turned off the ignition; rather, he says the officer asked him to do so and he then put thekeys in his own pocket.

The officer then asked him to get out of his truck and, as he was walking away, he accidentally hit the commandstart thus engaging the engine of the truck. That is when he gave his keys to the officer and instructed him to touch the brake to stop theengine. He also disagreed with the officer that the doors to the vehicle were unlocked and said that he unlocked them when the officerknocked on the window and awakened him. [22] The evidence of the accused is fraught with inconsistencies and at times is quite illogical.

For example, his initial thought wasto drive to a restaurant for breakfast, yet in the next breath, he said that he would never consider drinking and driving. Further, he had nomoney or credit card so could not call a taxi or presumably buy breakfast. Further, he walked from the garage to the patio, then to theside door and was at his truck before it finally occurred to him that he should not drive. Although he claims that he is more comfortablesitting up while he sleeps, the position in which he was found does not speak of comfort.

If he truly was more comfortable sitting, it begsthe question of why he would not sit in the passenger side where he would not be encumbered by the steering wheel and foot pedals. Onthe whole, his recollection seems befuddled by the alcohol that he consumed that night and therefore, is unreliable. Where his evidencediffers from that of Constable Marek, I prefer and accept the evidence of the officer. [23] By his own admission Mr. Janzen’s initial plan had been to drive to a restaurant.

He then got behind the wheel of his vehicle,put the keys in the ignition, started the engine, buckled his seat belt and at some point placed his foot on the accelerator. He did all thiswhile, in his own words, he was in a very intoxicated state. Although he believed that his parents would be returning to the city about9:00 a.m. and would be able to collect him, he made no plan with them to do so and indeed, merely speculated that they would beavailable. Even though he had a cell phone, he did not use it to make any arrangement to get home.

His only real plan was to “sleep theretill morning and see how I felt.” In short, he was very intoxicated, had thought about driving, did not have any realistic alternate plan toget home and was just going to see how he felt when he woke up. He was in the driver’s seat, his vehicle was not disabled in any way,and was parked on a public, residential street. The engine was running and the vehicle could easily have been put into motion byapplying the brake and pulling the gear shift into drive; actions, I dare say, which are as reflexive or automatic as putting on a seat belt.

These circumstances, in their totality, lead the Court to the conclusion that this is precisely the danger contemplated by the offence ofcare or control and present a very realistic risk that the accused, on awakening, would underestimate the degree of his impairment andwould decide to drive. Accordingly, the Court is satisfied that the evidence establishes actual care or control. Conclusion [24] The Court is satisfied not only that the accused can be presumed to have been in care or control of his motor vehicle pursuantto s. 258(1)(

a) of the Criminal Code, but also that he has been proven to have been in actual care or control. Further, there is proof that avalid breath demand was made pursuant to s. 254(3) and that the accused provided samples suitable for analysis. The prerequisites of s.258(1)(

c) have similarly been established. Accordingly, the presumption of that

section applies and the Court is satisfied that at the timethe accused was in care or control of a motor vehicle, his blood alcohol concentration was 150 milligrams of alcohol in 100 millilitres ofblood. [25] The Court is similarly satisfied that at the time that the accused had care or control of his vehicle, his ability to do so wasimpaired by alcohol in accordance with the test set out in R v Stellato (1993), (ON CA), 78 CCC (3d) 380 (Ont CA)affd (SCC), [1994] 2 SCR 478 [Stellato]. The evidence establishes that the accused was found unconscious behind thewheel of his vehicle and was very difficult to awaken.

There was a smell of alcohol on his breath, he had bloodshot, glassy eyes andseemed confused. He used his truck for balance when he stepped out of it. His balance, in the opinion of the officer, was poor. Hisspeech was slightly slurred upon awakening, but the accused was able to understand and respond appropriately to questions put to him. The accused does not take great issue with the testimony of the officer and concedes that he was not capable of driving at the time hewas found by the officer as a result of the alcohol he had consumed.

[ 26 ] Accordingly, the accused is found guilty on both counts. Count one, the charge of impaired driving, will be conditionally stayed pending any appeal. _______________________ M. L. Gray, J