Her Majesty the Queen - v. -, 2012 SKPC 147

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 147 Date: August 30, 2012 Information: 39985121 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Florian Brychun Appearing: Ms. L. Dunning For the Crown Mr. C. Lavier For the Accused JUDGMENT D.C. SCOTT , J Introduction [ 1 ] Florian Brychun is charged with having the care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol contrary to s. 255(1) and 253(1) (

a) of the Criminal Code and while his blood alcohol content exceeded the legal limit contrary to s. 255(1) and s. 253(1)(

b) of the Criminal Code .

[ 2 ] The trial was heard July 25, 2012. Ms. Delia Bird and Constables Jamie Rice and Jim Campbell, both of the Saskatoon Police Service, testified for the Crown. Mrs. Paula Brychun, wife of the accused, and Mr. Brychun testified for the Defence. [ 3 ] At the outset of the trial, the accused’s Charter application was abandoned. Further, he admitted that at the time of his arrest his ability to operate a motor vehicle was impaired by alcohol, leaving to be decided only whether Mr. Brychun was in the care or control of a motor vehicle, while he was impaired.

Evidence Delia Bird [ 4 ] On July 25, 2011, at approximately 3:00 p.m., Ms. Bird, who resided on the 200 block of Avenue “L” South in Saskatoon, observed a green Ford F150 truck pull up in front of her house. She observed a male leave the truck, talk loudly to or argue with a man on a bike, return to his vehicle and drive away. The driver was the only occupant of the truck. [ 5 ] Ms. Bird called the police because the driver appeared to be impaired—he was staggering and his speech was slurred.

She provided a statement to the police, which included a description of the driver and the truck, along with its licence plate. At trial, she was confident the information provided to the officer was accurate. [ 6 ] She described the driver as an older, overweight Caucasian male, with white hair and a white moustache, wearing a green shirt and blue shorts. [ 7 ] At the trial, she identified an individual in the courtroom who matched the description provided to the police, as the person who had been driving, and was very certain about his identity. The individual identified was not the accused, Mr. Brychun.

Constable Jamie Rice [ 8 ] This was Constable Rice’s first impaired investigation as lead officer. She and Constable Campbell were dispatched to the 200 block of Avenue “L” South, at 19:25 hours, in response to Ms. Bird’s call, but did not see the Ford F150 truck. They ran the licence plate and determined the vehicle was owned by Florian Brychun, who resided on the 800 block of Avenue “L” South. The officers arrived at Mr. Brychun’s residence at 19:41 hours. [ 9 ] Constable Rice observed a vehicle matching the truck’s description and licence plate parked on the street.

She testified she was the first to approach the occupant, Mr. Brychun. [ 10 ] The driver’s door was open and remained open throughout. She found the occupant Mr. Brychun awake and upright, though she described his posture as “slumped” in the seat, with keys in his right hand on the ignition side. He was positioned with his torso in the vehicle’s driver’s seat and his left leg, from the knee to the toe, hanging outside with his toe touching the ground. His toe remained touching the ground throughout.

According to Constable Rice, the majority of his body was inside the vehicle and his right foot was by the gas pedal. He was not wearing a seat belt. [ 11 ] She initially testified his hands were on the steering wheel, but in cross-examination, she was not certain of this. The keys were in his hand close to the ignition and although it was her opinion that Mr.

Brychun was capable of placing the keys in the ignition, she did not see him attempt to do so, nor did she see him move the keys in that direction. [ 12 ] It appeared to her that he had just arrived home or was entering the vehicle to drive, but admitted she could not say whether this was so. She acknowledged that his position was consistent with being in the vehicle to grab something from it.

[ 13 ] According to the officer, Mr. Brychun matched the identity of the suspect from dispatch, even though he was wearing blue jeans and a blue or green shirt at the time. [ 14 ] She testified that from his demeanour she knew “instantly” that he was impaired by beverage alcohol. He was read his rights and warnings and was taken to the police station, but appeared confused about why he was being arrested.

Constable Rice acknowledged that according to the booking form, his watch, wallet, cell phone, cigarettes, lighter, inhaler and comb were taken from him and that he was wearing blue jeans and a blue shirt. [ 15 ] In response to her questions, he said he’d had several “schooners” of beer and his last drink was two hours prior. According to the officer, he had difficulty providing a breath sample, and explained he had a lung disorder. He ultimately provided breath samples at 20:53 hours and 21:14 hours and his readings were .220 and .210, respectively. [ 16 ] Cst.

Rice correctly identified the accused in the courtroom. Constable Jim Campbell [ 17 ] Constable Campbell accompanied Constable Rice on July 25, 2011 and guided her in the investigation. Contrary to Constable Rice’s testimony, Constable Campbell stated that he was the first of the two officers to reach the vehicle and to see the accused. [ 18 ] The officer testified he observed Mr. Brychun partially inside and partially outside of the vehicle on the driver’s side.

The officer described him as being half in the driver’s seat and half out—his right buttock was on the seat and the left buttock was hanging outside of the vehicle. His torso was leaning back slightly against the seat toward the interior of the vehicle, so that it looked like he was sliding out of the vehicle. The constable described the truck as having more ground clearance than other non-four-wheel drive trucks. [ 19 ] Mr. Brychun’s left foot was outside the vehicle, touching the ground. His left hand was by his left leg. His right hand was up by the ignition.

The officer did not see the accused’s right foot touch the control pedals and neither hand was on the steering wheel. He had not fastened his seat belt. [ 20 ] The officer testified Mr. Brychun had the key between his thumb and forefinger and was moving his arm in a circular stabbing motion toward the steering column, although this was not in his notes. Rather, his notes indicate that he appeared to be lifting his hand up to the ignition. [ 21 ] Although the officer testified Mr. Brychun looked like he was sliding out of the vehicle, he had concluded the accused was getting ready to operate the vehicle.

The officer acknowledged that the driver’s door remained open throughout. [ 22 ] Constable Campbell checked the key fob and determined that it locked and unlocked the doors. He also put the key in the ignition and determined it was fully operational. The officer acknowledged the accused was wearing jeans. [ 23 ] In the courtroom, the officer correctly identified the accused. Paula Brychun [ 24 ] Mrs. Brychun has been married to the accused for 39 years. As long as she has known the accused, he has never worn a moustache nor dyed his hair. His hair is brown with grey on the sides.

He does not wear shorts; the last time he did so was eight years ago at the beach.

[25] She had not been home at the time of the events leading up to her husband’s arrest. When she arrived home from work atapproximately 9:00 p.m., she discovered their small pet dog outside the house—this was unusual, as the dog is usually kept inside. Shecould not recollect the accused ever having left the dog outside. Florian Brychun [26] Mr. Brychun is 60 years old. On the morning of July 25, 2011, he learned his employer was placing him on long-termdisability, essentially ending his employment, because he suffers from chronic obstructive pulmonary disease, a lung disorder. He spokewith his co-worker, Mr.

Sachel, who would be taking over his work duties, and they decided to meet for a drink at Daisy’s bar. There,Mr. Brychun had two schooners, each one of which is the equivalent of just over two beers, over the course of approximately two hours. [27] He drove home in his vehicle, the Ford F150 described by all Crown witnesses, stopping on his way at the video store to buycigarettes and arriving home at approximately 4:00 p.m. He acknowledged that he would have driven past the 200 block of Avenue “L”South, where Ms. Bird lives.

At home he consumed seven or eight glasses of wine and does not deny that he was intoxicated. Mr.Brychun testified he ran out of cigarettes and went out to his truck to retrieve the package he had purchased, along with his inhaler. Theirdog, which he referred to as his “little baby”, went outside with him. He described her as a house dog—she was never left alone outside. [28] Mr. Brychun first noticed the police when they approached him. He testified he had unlocked the truck’s driver’s door andreached to the centre console, for his cigarettes and inhaler.

The console is located in the middle of a split bench seat by the gear shiftand is fairly high. He had one buttock on the seat as he was reaching toward the console. One foot was in the cab and one foot was onthe ground. He had not closed the door at any time and did nothing with respect to the seat belt or gears. [29] He believes the vehicle’s keys were in his left hand, while he reached for his cigarettes. He denies trying to put the keys inthe ignition. He testified he was not trying to start the vehicle or interact with it, given his condition.

He acknowledged using the key tounlock the vehicle and that was all. [30] He testified he was wearing jeans and a black or blue t-shirt and does not own or wear shorts. His hair is brown and he cannotgrow a moustache or a beard. Mr. Brychun stated he could not explain why his vehicle was seen earlier in the day on the 200 block ofAvenue “L” South. Issue [31] The only issue before this Court is whether the accused was in the care or control of his vehicle at the time when his ability tooperate a motor vehicle was impaired by alcohol. Analysis [32] Because Mr.

Brychun testified on his own behalf, I am mindful that I must consider his testimony in light of all of theevidence in determining whether the Crown has established the offence beyond a reasonable doubt (R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.); R. v. McKenzie (1996), (SK CA), 141 Sask. R. 221 (C.A.)). Presumption of care or control [33] Section 258(1)(

a) of the Criminal Code provides in part:

...where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle...theaccused shall be deemed to have had the care or control of the vehicle...unless the accused establishes that the accused did not occupythat seat or position for the purpose of setting the vehicle...in motion... [34] The presumption of care or control can be rebutted by evidence which, if accepted, establishes on a balance of probabilitiesthat the accused did not occupy the driver’s seat for the purpose of setting the vehicle in motion (R. v.

Ford, (SCC),[1982] 1 S.C.R. 231 (S.C.C.); R. v. Shuparski, 2003 SKCA 22). [35] For the presumption to be engaged, the evidence must establish that the accused “occupied” the driver’s seat. Mr. Brychuntestified that he was partially inside and partially outside of his vehicle—one buttock was on the seat, the other was not; one foot wasinside the vehicle, one foot was touching the ground. The driver’s door was open and his left foot was on the ground at all times. Histestimony is corroborated by Constable Campbell, who testified Mr. Brychun was half in and half out of the vehicle. Constable Riceconfirmed Mr.

Brychun’s left foot was touching the ground throughout. In these circumstances, has the Crown established that theaccused occupied the driver’s seat? [36] In R. v. Toews, (SCC), [1985] 2 S.C.R. 119, the Court considered what it means to “occupy” the driver’s seatin this context. The Court held that even on a liberal

interpretation of the section, an accused did not occupy the driver’s seat, where hewas found asleep on the front seat of a truck with his head by the passenger door, his lower body encased in a sleeping bag extendingunder the steering wheel with his feet resting on or hanging toward the floor. The Court stated: 8. ...to occupy the seat ordinarily occupied by the driver within the meaning of s. 237(1), one need not be sitting up straight with handson the steering wheel and in all respects be ready to drive.

The fact that some movement or adjustment of position might be required toenable a person to take the steering wheel and drive the car will not necessarily be such a departure from the occupation of the driver’sseat that it will deprive the Crown of the right to rely on the presumption. [37] Although it is true that some movement or adjustment might have allowed Mr.

Brychun to take the steering wheel and drivethe truck, I find that by leaning across the driver’s seat toward the interior of the vehicle, with one buttock on the seat and one outside thevehicle, one foot in the truck and one foot on the ground, his position was of such a departure that it cannot be said he was occupying thedriver’s seat, even on a liberal

interpretation of the section. [38] However, if I am incorrect in this finding, I will consider whether Mr. Brychun has established that he did not take hisposition within the vehicle for the purpose of setting it in motion. Mr. Brychun testified his only purpose for entering the truck was to retrieve his cigarettes and inhaler from the console. Constable Riceconfirmed that Mr. Brychun’s position in the vehicle was consistent with being there for the purpose of “grabbing something”. According to Constable Campbell, it appeared Mr. Brychun was sliding out of the vehicle.

Although Constable Campbell testified Mr.Brychun’s right hand appeared to be reaching or stabbing with the key toward the ignition, his position would also be consistent withleaning toward and reaching for the console, which was between the driver’s and passenger’s seats. [39] The booking sheet, completed at detention confirms that a package of cigarettes and an inhaler were in Mr. Brychun’spossession when he was booked. [40] When Mrs. Brychun returned home, she found the family dog outside.

I accept the Brychuns’ testimony that it would havebeen highly unusual for the dog to be left outside alone, given its small size and the affectionate manner with which they referred to it. The dog’s presence outside supports Mr. Brychun’s testimony that he had been in the house prior to entering his truck and his intentionwas to return to the house, rather than to drive away. [41] Mr. Brychun presented as a credible witness.

His testimony was forthright (except perhaps with respect to his inability toexplain how his vehicle was driven by someone else at 3:00 p.m. on the 200 block of Avenue “L” South) and not shaken under cross-examination. It is internally consistent and consistent with the totality of the evidence. [42] I accept Mr. Brychun’s explanation and find it establishes on a balance of probabilities that if he did occupy the driver’s seat

[42] I accept Mr. Brychun’s explanation and find it establishes on a balance of probabilities that if he did occupy the driver’s seatit was not for the purpose of setting the vehicle in motion. Actual care or control [43] According to the Court in Toews, the mens rea required for this offence is the intent to assume care or control of a motorvehicle after voluntarily consuming alcohol and the actus reus is the act of assuming care or control. An intention to drive is not anessential element of the offence (Ford, pp. 248-49).

The Court in Toews describes the requisite acts as follows: 10....acts of actual care or control, short of driving, 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. [44] In commenting on the risk which the law seeks to address, Justice Richards in R. v.

Coleman, 2012 SKCA 65 states: [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. [45] According to Justice Caldwell in R. v. Andersen, 2012 SKCA 37: [16] ...Practically speaking, the risk of danger will be established where the evidence indicates the accused might have intentionally orinadvertently put the vehicle in motion, or both. [46] The question, then, is whether Mr.

Brychun engaged in some course of conduct associated with the truck or some use of itsfittings and equipment which involved a risk of putting the vehicle in motion, either intentionally or inadvertently, thereby creating adangerous situation. [47] Here, Mr. Brychun’s only conduct associated with the fittings and equipment was to unlock the vehicle and to retrieve itemsfrom the console. The key, though in his hand, was not in the ignition. There was no evidence from the officers that the engine wasrunning at any time. At no time was Mr. Brychun fully in the vehicle.

These are not acts which would involve a risk of putting thevehicle in motion, either inadvertently or intentionally, thereby creating a danger. Some further action by Mr. Brychun would have beenrequired in this case. [48] To conclude that Mr. Brychun had the care or control of his truck by his mere presence in the proximity of the ignition, withthe key in his hand, even though only partially within the vehicle, would be to interpret the offence as one for which there is absoluteliability. I do not think the law goes that far. [49] I accept Mr.

Brychun held no intention to assume the care or control of the vehicle, his purpose being to retrieve items fromthe console. Further, he took no action to assume the care or control of it—there was no act involving the use of the truck or its fittingsand equipment, other than the unlocking of the driver’s door. Mr. Brychun’s conduct in relation to the vehicle involved negligible riskof his putting the vehicle in motion, either intentionally or inadvertently, or of creating a dangerous situation. [50] I find that Mr. Brychun did not have the actual care or control of the vehicle.

Care or control by driving [51] The Crown argued that the principles in R. v. Pincemin, 2004 SKCA 33 , [2004] S.J. No. 134 (C.A.) apply here. Inthat case, our Court of Appeal held that the offence of having the care or control of a vehicle while impaired includes the act of drivingwhile impaired (para. 24). The Crown seeks to rely on Ms. Bird’s testimony and Mr. Brychun’s admission that he drove home fromDaisy’s bar.

[ 52 ] According to Ms. Bird, it was at approximately 3:00 p.m. when she saw Mr. Brychun’s vehicle being driven by someone who appeared to her to be impaired but her description of the driver, of which she was very certain, did not match that of Mr. Brychun. I am satisfied that it was someone other than Mr. Brychun who Ms. Bird observed operating his motor vehicle on July 25, 2011. It should be noted that, while not evidence and therefore not taken into account in reaching my decision, counsel for the Defence informed the Court in his closing submissions that the individual in the courtroom identified by Ms.

Bird was in fact, Mr. Brychun’s co-worker, Mr. Sachel. [ 53 ] In any event, Ms. Bird’s testimony regarding the driver’s staggering and slurring of words, alone, would be insufficient upon which to conclude beyond a reasonable doubt that the driver’s ability to operate a motor vehicle was impaired by alcohol. [ 54 ] There is no evidence Mr. Brychun was driving his truck at the time when his ability to do so was impaired. Mr. Brychun admitted he drove home at approximately 4:00 p.m. While there is evidence he had consumed alcohol before driving, there is no evidence of impairment at that time.

After arriving home, he admits consuming a lot of alcohol and becoming intoxicated. The officers’ observations of Mr. Brychun’s impairment occurred shortly after 19:42 hours or 7:42 p.m., more than three hours after Mr. Brychun had driven. And, the breath samples were taken approximately five hours after he said he had driven. [ 55 ] In these circumstances, there is no evidence of Mr. Brychun driving the truck, to establish care or control, at the time when his ability to do so was impaired or while his blood alcohol content exceeded the legal limit. Conclusion [ 56 ] I have found that Mr.

Brychun did not occupy the driver’s seat, but in any event, he rebutted any presumption that may have been raised by his position in the car. Further, I have concluded that Mr. Brychun did not have the actual care or control of the truck. Finally, I find there is no evidence that Mr. Brychun was in the care or control of the truck, by driving, at the time when his ability to do so was impaired by alcohol. [ 57 ] I therefore conclude that the Crown has not established beyond a reasonable doubt that Mr.

Brychun had the care or control of a motor vehicle, while his ability to operate a motor vehicle was impaired by alcohol. I therefore find him not guilty on both counts. ________________________ D.C. Scott, J