HER MAJESTY THE QUEEN v. BYRON LAWSON MURRAY, 2015 NBPC 10

CANADA 2015NBPC10 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN -and- BYRON LAWSON MURRAY JUDGE: The Honourable Marco R. Cloutier TRIAL HELD: Saint John, New Brunswick DATE OF DECISION: September 24, 2015 APPEARANCES: Lucie Mathurin, on behalf of Her Majesty the Queen John King, Q.C., on behalf of Mr. Murray I. Introduction [ 1 ] M.R. CLOUTIER PROV. CRT J.: - The accused, Byron Lawson Murray, (“Mr.

Murray”) is charged that on November 4, 2013, he had care or control of a motor vehicle while impaired by alcohol, and that on the same date, he had care or control of a motor vehicle while his blood alcohol level exceeded .08 percent. [ 2 ] Courts struggle with the practical application of the law of care or control of a motor vehicle on a regular and perhaps even daily basis. No mathematical formula has been developed to determine what constitutes care or control of a motor vehicle especially where, like here, the accused claims he was simply going to drive when sober.

As will be seen, it is never a case of judicial calculus. II. Evidence Cst. MacDonald [ 3 ] Cst. MacDonald testified that on November 4, 2013, at about 02h21, he was patrolling with a marked vehicle on Union Street in Saint John, New Brunswick. He observes a vehicle parked near the Iceburg Pub and notes an older male with gray hair slouching in the driver’s seat. Concerned over medical issues, Cst. MacDonald activates the emergency lights, pulls behind the vehicle and checks on the male. [ 4 ] As Cst. MacDonald approaches the vehicle, he notes that the individual in the driver’s seat, later identified as Mr.

Murray, is the lone occupant. He appears passed out or sleeping and the vehicle is running. Cst. MacDonald knocks on the door and Mr. Murray appears confused but he finally rolls down the window. Cst. MacDonald detects an odor of alcohol from his breath. He also notes Mr. Murray’s watery eyes. [ 5 ] Mr. Murray is able to produce his registration to Cst. MacDonald. However, after repeated requests for his driver’s license, he pulls out his bank card. The officer advises that this is not acceptable. Mr. Murray fumbles some more through his wallet and produces another bank card.

During this time, the officer notes an extreme lack of coordination along with a “slow speech deliberate”. [ 6 ] At this point, Cst. MacDonald forms the belief that Mr. Murray was operating a motor vehicle while impaired by alcohol. Therefore, he asks him to turn off the ignition and hand the keys over to him. As he exits the vehicle, Cst. MacDonald notes that Mr. Murray is off balance in a way which, according to his experience with individuals under the influence, is more consistent with alcohol than losing footing. As he exits the vehicle, Cst. MacDonald places Mr.

Murray under arrest for impaired driving of a motor vehicle. [ 7 ] Upon arresting Mr. Murray, Cst. MacDonald orders him to place his hands behind his back. However, Mr. Murray tenses up and pulls his right arm in from of himself up against his vehicle. The officer instructs Mr. Murray to relax but to no avail. Csts. MacDonald and Prentice have to place him on the ground in a controlled manner to place handcuffs on him. Cst. MacDonald is adamant that this controlled manoeuver caused no injuries to Mr. Murray. [ 8 ] At 02h27, Cst. MacDonald reads the breath demand to Mr. Murray in the back of the police vehicle.

He indicates he understood. At 02h28, Cst. MacDonald reads Mr. Murray’s Charter rights and he is cautioned. Despite repeated explanations, he declines to speak with counsel.

[ 9 ] At 02h32, Cst. MacDonald arrives at the police station with Mr. Murray who is introduced to the Qualified Technician, Cst. Tremblay. During booking procedures, Mr. Murray indicates to Cst. MacDonald that he planned on driving to St. Stephen at 04h00 to deliver mail. He also admits to consuming six pints of beer from 20h45 to 01h15. [ 10 ] After providing two samples of his breath in an approved instrument, Cst. MacDonald places Mr. Murray under arrest for impaired care or control and care or control with blood alcohol over the legal limit. It is now 03h27. The officer again reads Mr.

Murray’s Charter rights and caution. [ 11 ] At 03h37, Cst. MacDonald places Mr. Murray in cells for about 1h45 minutes to the point where he feels he can be released under his own care. The officer explains that Mr. Murray could not find a sober person to whom he could be released earlier. Cst. Prentice [ 12 ] Cst. Prentice testified that when he approaches Mr. Murray’s vehicle, the lights are on and the engine is running. He too notes that Mr. Murray fumbles upon attempting to produce his driver’s license and he produces his bank cards instead. When asked to turn off the ignition, Mr. Murray does not comply.

Rather, he attempts to open the driver’s door and get out. He is again advised to turn off the ignition and, with some hesitation, he finally complies. Cst. Prentice also describes that upon being placed under arrest, Mr. Murray tenses up and pulls away. As a result, both officers have to bring Mr. Murray to the ground in a controlled manner to place handcuffs on him. Byron Lawson Murray [ 13 ] Mr. Murray testifies that on November 3, 2013, he leaves his residence in the St. Stephen area and drives to Saint John where he arrives at about 20h10.

He drives around until he decides to park his Grand Caravan vehicle on Union Street. He notes that, by now, he has consumed less than half a cup of Tim Horton’s coffee. [ 14 ] At about 20h25, he says he walks in the Union Street Bar. He orders a “coke as there is no pepsi”. He goes to the washroom two or three times throughout the evening. At 21h15, the bartender asks him if he wants another coke beverage. He answers that he will take an “Alpine beer” instead. He knows he will “not be driving back at this point”, he says. He explains that he consumes exactly five and a half bottles of beer although he orders six.

He specifies that, when he leaves the bar to go directly to his vehicle, he leaves an unfinished half bottle of beer. The clock behind the bar counter now indicates 00h35. He adds that “time flies when you are having fun”. [ 15 ] Mr. Murray describes how he crawls in the back seat of his vehicle wearing only a jacket. He has no pillow and he places the keys under the seat. He says he wakes up shortly after 02h00. [ 16 ] At about 02h10, Mr. Murray climbs in front of the vehicle where he sits in the driver’s seat. He debates whether to start the vehicle and whether to drive to a nearby parking lot.

He is concerned he may get towed because of a no parking sign prohibiting parking this time of the night. [ 17 ] After much debate, Mr. Murray decides to take a chance and start the vehicle to turn on the heat as “it is really cold”. He says it is not true that he was “slouched over” the driver’s seat. However, he is adamant his seat was fully reclined so no one could see him. He also explains how he was “just going to get some heat and climb in the back seat again”. Further, he says he was going to drive back to St. Stephen at about 06h45, at the earliest.

He adds that he had to be at Canada Post for about 0800 to 08h30 to deliver mail. [ 18 ] Mr. Murray further testifies that when Cst. MacDonald knocks on the car window, he is “just getting some heat”. He says he is stumbling looking through his wallet at it is very cold. He also explains how he mistakenly takes his bank card for his driver licenses given the similarity in colors. [ 19 ] Mr. Murray is unclear as to what he remembers from the circumstances surrounding his arrest and, in particular, when he is placed on the ground.

He qualifies his evidence with markers such as “to the best of my knowledge” Officer MacDonald puts me on the ground alone and I did not tense up. He is adamant that he hits his head on the pavement during the process. He is silent, however, as to whether he sought medical treatment. Savita Singh [ 20 ] Savita Singh is Mr. Murray’s spouse. She testified that on November 4, 2013, she is with her family in Scarborough, Ontario. She does not allow Mr. Murray to drink at the house. If he drinks, which is very seldom, he has to make arrangement for her to drive him back home.

If she cannot be reached, “he is to sleep in the vehicle”. Documentary evidence [ 21 ] The Certificate of the Qualified Technician was marked as I-1 for the purpose of identification. It will be admissible into evidence depending on my ruling on the Charter issues raised by the Defence. [ 22 ] The video footage taken at the police station was also entered into evidence by consent. It was marked as C-1. III. Position of the parties [ 23 ] The Defence submits that Mr. Murray was not promptly advised of the reasons for his detention when Cst.

MacDonald asked him to turn off the ignition, hand the keys over and exit the vehicle. It also argues that Cst. MacDonald arrested Mr. Murray upon a hasty investigation and in the absence of reasonable and probable grounds. Further, the Defence says that Cst. MacDonald did not advise Mr. Murray of his right to counsel immediately upon his arrest for impaired driving. Likewise, it is argued that Cst. MacDonald only advised

Mr. Murray of his right to counsel until after he read him the breath demand and he had agreed to provide a breath sample at the policestation. The Defence further contends that Mr. Murray was unnecessarily subjected to rough treatment upon being arrested. [24] Most importantly, the Defence argues that Mr. Murray was neither in presumptive nor in de facto care or control of the vehicle. [25] The Crown, on the other hand, submits that Mr. Murray has not rebutted the statutory presumption set out in s. 258(1)(

a) of theCriminal Code. It also submits that the other Defence’s arguments are without merit. I agree. IV. Law and Analysis Burdens of proof in a blended voir dire/trial proper [26] I pause to make important comments on burden of proof in a blended voir dire/trial proper. [27] In a Charter application, the burden of proof is on the Defence to establish a breach on a balance of probabilities.

In a criminaltrial, the burden of proof is on the Crown to establish the guilt of the accused beyond a reasonable doubt. [28] As I see it, in a trial with a blended voir dire, the trial judge is still required to separate the burdens and apply the appropriate onusin disposing of both the Charter application and the trial proper.

It also bears underscoring that, even though all the evidence is heard atonce, it is essential to keep the different decisions separate and decide them according to the relevant legal principles. [29] To determine whether the accused’s guilt has been established, the trial judge is still required to consider whether, on all of theevidence, the elements of the offences have been proven beyond a reasonable doubt. As it is often the case, the W.(D.) analysis isrequired. [30] While I recognized that the onus falls on Mr.

Murray to establish on a balance of probabilities that his Charter rights werebreached, I find that he failed to do so.

Section 10(

a) of the Charter [31] I would reject the argument that Cst. MacDonald did not advise Mr. Murray promptly of the reasons for his detention when askedto turn off the ignition, hand the keys over and exit the vehicle. In my opinion, promptly does not mean instantaneously. So too here.Recall that Cst. MacDonald insisted that Mr. Murray first turn off the ignition. It is undeniable that the officer’s safety was paramount atthe time. Mr. Murray was confused, had an odor of alcohol on his breath and he was occupying the driver’s seat of a motor vehicle whilethe engine was running. At any rate, the evidence is clear that Cst. MacDonald complied with s. 10(

a) of the Charter as soon as Mr.Murray was out of the vehicle.

Section 10(

b) of the Charter [32] I will now address the Defence’s contention that Cst. MacDonald did not advise Mr. Murray of his right to counsel immediatelyupon arrest for impaired driving. In my view, the meaning of “immediately” must be analysed contextually. Where, like here, the officerplaces Mr. Murray under arrest for impaired driving, immediately places the handcuffs on and escorts him right away to the back of thepolice vehicle and reads him his Charter rights, I am satisfied that there was no breach of s. 10(

b) of the Charter. In the alternative, I findthat placing the handcuffs on Mr. Murray was part of the arrest process altogether. Recall also that Cst. MacDonald first observed Mr.Murray’s vehicle parked on Union Street at 02h21. What’s more, he was already reading him his Charter rights in the back of the policevehicle at 02h28. Under the circumstances, I fail to see how the officer delayed informing Mr. Murray of his Charter rights, includingthose at 10(b).

Section 8 of the Charter [33] I would also reject the Defence’s argument that Cst. MacDonald arrested Mr. Murray upon a hasty investigation and in theabsence of reasonable and probable grounds. I repeat relevant facts. Cst. MacDonald observes Mr. Murray, a man with gray hair whoappears to be “slouched” in the driver’s seat of his vehicle. It is about 02h00. The temperature is cool and the officer has medicalconcerns. He approaches the vehicle and makes the following observations: Mr. Murray appears confused, he has watery eyes, a slowspeech, extreme lack of coordination and an odor of alcohol from his breath. Mr.

Murray confuses his bank card for his driver’s licenseon two occasions and he stumbles into his wallet. Mr. Murray’s vehicle is parked in the drinking establishments’ district. The engine hisrunning and the lights are on. [34] As I wrote in R v Blizzard, 2013 NBPC 27 , thisclearly achieves the “critical mass” required in terms ofreasonable and probable grounds to justify a s. 254(3) breathdemand. Therefore, on the totality of the evidence before me, Ifind that the Crown has proven to the extent required that Cst.MacDonald’s subjective believe was grounded on anappropriate measure of objectively verifiable facts.

[35] I close the curtains on this argument with the following remark: I must not, as I have been invited to do by the Defence, speculateabout possible alternative explanations for each of the various indicia noted by Cst. MacDonald and then use that speculation, not rootedin any evidence, as a basis for questioning the sufficiency of the objective foundation for the officer's subjective opinion that Mr. Murrayhad committed an offence under s. 253(1). Rather, I must consider the convergence of the totality of the personal observations andinformation that Cst.

MacDonald had at his disposal all within the context of the evidence as a whole and evaluate the sufficiency of theobjective grounds from that perspective. See Blizzard, supra.

Section 25 of the Criminal Code [36] The Defence’s argument that Mr. Murray was unnecessarily subjected to rough treatment at the hands of the officers iscompletely unfounded. I wish to be clear that, in addition to my findings on credibility which I will explain later, I reject Mr. Murray’sevidence altogether but even more so on this issue. I find that his account of the events does not stand in harmony with the totality of theevidence. Overall, I find that his evidence was not reliable and it did not substantiate any of his alleged Charter breaches. [37] Obviously, Mr.

Murray seems to recall fewer details as the evening progressed and, in particular, when he was placed underarrest. Moreover, I am not impressed with his meticulous recollection of details earlier in the evening (ie. precise amount of coffee left inhis cup at a given time, consumes coke beverage as no pepsi product available, consumes an Alpine beer precisely at 20h45, consumesexactly five hand a half bottles of beer and he leaves the bar at exactly 00h35 as per clock on the wall). Regretfully, I find that this levelof detail amounts to fabrication.

Likewise, earlier in his evidence, he testified that he stayed at the bar until 12h35 and went to sleep inhis vehicle right after. He “woke up” shortly after 02h00. Later, he adds that he did not sleep. On cross-examination, he became a“moving target” and attempted to explain that it was not “really real sleep”. [38] Mr. Murray is also adamant that he suffered injuries when he was violently brought to the ground by the officers. In my view, thisis simply a bald assertion by an individual whose recollection of events was negatively altered by intoxication. I have watched the videofootage depicting Mr.

Murray at the police station and there are no physical signs of injuries neither blood nor bruise. Likewise, there areno indications of his clothes being damages by what Mr. Murray described as a “rough treatment”. Further, Mr. Murray is silent as towhether he sought medical treatment for his alleged injuries. What is clear, in my view, is that the officers had to bring Mr. Murray tothe ground in a controlled manner to place hand cuffs as he actively resisted arrest by pushing himself against his vehicle.

Be that as itmay, I find that both officers acted in compliance with s. 25 of the Criminal Code and used only as much force as necessary under thecircumstances. [39] There being no breach of Mr. Murray’s Charter rights, I will admit the Certificate of the Qualified Technician into evidence andit will be marked as C-2. Clearly, it indicates readings above the legal limit. Care or Control (

i) The presumption found in s. 258(1)(

a) of the Criminal Code [40] Section 253(1) of the Criminal Code prohibits not only driving or operating a vehicle while impaired, but also prohibits placingone's self in the position to drive while impaired by assuming "care or control" of a vehicle. The actus reus of the offence is theassumption of care or control when the ability to drive has been impaired by the consumption of alcohol. The mens rea is the intent toassume care or control after the voluntary consumption of alcohol: R v Toews, (SCC), [1985] 2 SCR 119 at par 7. [41] Section 258(1)(

a) of the Criminal Code provides that: 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in anyproceedings under any of subsections 255(2) to (3.2), (

a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, ...the accused shall be deemed to have had the care or control of the vehicle, ... unless the accused establishes that he did not occupy thatseat or position for the purpose of setting the vehicle in motion ...; [Emphasis added] [42] The presumption created by s. 258(1)(

a) is rebuttable and, if a court is satisfied on a balance of probabilities that an accused hadno intention of setting the vehicle in motion, the presumption will be rebutted. If the presumption does not apply, the Crown can stillprove that the accused was de facto in care or control. [43] I would make preliminary observations at this point. The Crown is not required to elect formally to rely on the presumption: R vJourneaux, [1992] O.J. No. 1400 (C.A.).

Moreover, as I wrote in R v Jonah [2015] NBPC 2 , a realistic risk of danger isembedded in the presumption. [44] The presumption is operable in this case because Mr. Murray was found in the driver's seat. He seeks to rebut that presumptionby his evidence that he had no intention to drive until the morning when he would be sober.

[45] Even if I were to accept Mr. Murray’s evidence, which is not the case, it would appear to be insufficient to rebut the presumption:R v Hatfield (1997) (ON CA), 115 C.C.C. (3d) 47 (Ont. C.A.). [46] Indeed, there is a strong line of authority in Canadian jurisprudence suggesting that an accused’s evidence that although he wasasleep in the driver’s seat he did not intend to drive until he felt ready to do so does not rebut the presumption of care or control.

Putdifferently, where an accused who occupied the driver’s seat testifies that he or she was only going to drive at some future time, thepresumption is not rebutted: R v Flemming, [2007] O.J. 4259 (C.A.) (QL) and R v Szymanski (2009) (ON SC), 88M.V.R. (5th) 182 (Ont. Sup. Crt). [47] In my opinion, intending to drive when sober involves many problematic aspects. First, it involves the subjective analysis of aperson who has been consuming alcohol. It must be remembered that slight impairment is all that is required for an impaired operationconviction.

Even slight impairment can impact on an individual’s ability to make rational decisions. Second, assuming for the sake ofargument that an accused may be able to self-identify when he is no longer impaired, whether he can self-identify that his blood alcohollevel would be under the legal limit raises significant concerns. [48] It follows that, in my view, Mr. Murray’s evidence that he would only drive at some future time when sober, if accepted, does notrebut the presumption found in s. 258(1)(

a) of the Criminal Code. (iii) de facto care or control [49] Even if I were in error in finding that the presumption applies, for reasons below, I would nonetheless find that the prosecutionhas proven beyond a reasonable doubt that Mr. Murray was de facto in care or control of his vehicle. [50] Mr. Murray has testified in this trial and his evidence differs from that of Cst. MacDonald. Therefore, I must consider hisevidence and the issue of credibility within the analytical framework prescribed by the Supreme Court of Canada in cases such as Rv W.D., (SCC), [1991] 1 SCR 742 and R v J.H.S., 2008 SCC 30.

That framework has recently been commented upon bythe Alberta Court of Appeal in the case of R v Gray, 2012 ABCA 51. I would paraphrase as follows the methodology recommended bythe Supreme Court for the purpose of this decision: (

i) The burden of proof is on the Crown to establish Mr. Murray’s guilt beyond a reasonable doubt, and that burden remains on the Crownso that Mr. Murray is never required to prove his innocence, or disprove any of the evidence led by the Crown. (ii) In that context, if Mr. Murray's evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, oreven if not believed still leaves me with a reasonable doubt that it may be true, then I am required to acquit. (iii) While I should attempt to resolve conflicting evidence bearing on the guilt or innocence of Mr.

Murray, a trial is not a credibility contestrequiring me to decide that one of the conflicting versions is true. Any inability to decide between exculpatory evidence and otherevidence that incriminates Mr. Murray will usually indicate that I have a reasonable doubt, which again must work to the benefit of Mr.Murray. (iv) In the event Mr. Murray's evidence (or where applicable, other exculpatory evidence) is entirely disbelieved such that it does not raise areasonable doubt, I may not convict unless I am satisfied that the Crown has proven Mr.

Murray’s guilt beyond a reasonable doubt byother evidence that I do accept. [51] I pause to make parenthetical remarks. In the event that I reject Mr. Murray’s evidence, that rejection does not add to or bolsterthe case for the prosecution. [52] The need to prove a risk of danger for de facto care or control has now been affirmed in Boudreault, with Fish J. ruling for thecourt (at paras.32-33): Parliament's objective in enacting s. 253 of the Code was to prevent a risk of danger to public safety: Toews at p. 126,citing R. v. Price (1978), (NB CA), 40 C.C.C. (2d) 378 (N.B.C.A.), at p. 384.

Accordingly, conduct thatpresents no such risk falls outside the intended reach of the offence. In this light, I think it helpful to set out once again theessential elements of care or control under s. 253(1) of the Criminal Code in this way: (1) an intentional course of conduct associated with a motor vehicle;

(2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk of danger to persons or property. [53] Fish J. described the notion of 'realistic risk' as a low threshold, "... consistent with Parliament's intention to prevent a danger to public safety" (at paras. 35, 48).

While a 'theoretical possibility' was too low to constitute a 'realistic risk of danger', that risk need not be 'substantial', 'probable' or even 'serious' (at par.34). 'Benign and inconsequential' conduct were cited as examples of conduct that would raise only a theoretical possibility of danger (at par.35). [54] The court recognized that a realistic risk of danger arises in situations where the impaired driver intends to operate a motor vehicle as well as in those situations where the impaired driver, "... has a present ability to set the vehicle in motion without intending at that moment to do so " (at par.41, emphasis added).

A helpful

summary of those situations where an impaired driver said to be in care or control of a motor vehicle may create a realistic risk of danger was provided by the court in the following terms (at par. 42): In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways.

First , an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second , an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third , through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property. [Emphasis Added] [55] A part from the presumption, the court in Boudreault held that the concept of care or control captured a wide range of dangerous conduct.

More particularly, the Supreme Court was of the view that, even in situations where an impaired driver is simply in a position to immediately set a motor vehicle in motion, a conviction will likely follow. [56] As Fish J. observed (at par.46): "Anyone who is intoxicated and in a position to immediately set the vehicle in motion faces conviction on those facts alone." Conviction may not be automatic but, as the court concluded, "... anyone found inebriated and behind the wheel with a present ability to drive will and should almost invariably be convicted," [at par.45] [57] The court in Boudreault recognized that there would be situations where the accused would adduce evidence in order to assist the court in assessing whether a realistic risk of danger actually existed.

The low threshold set for finding a realistic risk would render doing so a "tactical necessity". Fish J. held that evidence of this sort must take the form of, "... credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case," [at par.48, emphasis added]. [58] A common form of evidence tendered to meet the accusation of de facto care or control is what has been styled 'alternate plan' evidence. The accused in Boudreault , for instance, had arranged an alternate means of transportation for himself.

In light of that fact, the Supreme Court elected to provide lower courts with guidance when attempting to determine whether a realistic risk of danger exists in the face of the alternate plan. Fish J. ruled (at par. 52): The impact of an " alternate plan " of this sort on the court's assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable ; second, whether it was in fact implemented by the accused.

A plan may seem watertight, but the accused's level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward. [Emphasis added] Whether Mr.

Murray may perform some acts or series of acts involving the use of the vehicle, its fittings or equipment that might unintentionally set the vehicle in motion? [59] Given the number of steps necessary to move his vehicle (ie. putting his foot on the brake pedal, shifting from park to drive, removing his foot from the brake pedal and then depressing the accelerator), I am left with a reasonable doubt that Mr. Murray may have accidently set the vehicle in motion. Whether Mr.

Murray, through negligence, bad judgment or otherwise, may cause a stationary vehicle or inoperable vehicle to endanger person or property? [60] I am satisfied that the positioning of Mr. Murray’s vehicle coupled with his control over it per se created a realistic risk of danger. I draw this inference from the undisputed evidence. Let me explain. [61] One simple gaffe by Mr. Murray could have proven fatal. Recall that he had parked his vehicle neither on a parking lot nor on a private driveway.

Rather, the evidence reveals that he parked his vehicle along the side of a somewhat narrow street in an urban district during the busiest hours for nearby local drinking establishments. It is also not in dispute that Mr. Murray was unsteady on his feet when he stepped out of the vehicle. I would echo the comments of the Supreme Court of Canada in Boudreault, supra , and state my concern that given “bad judgment, negligent or otherwise” (at par. 42) due to alcohol consumption, Mr.

Murray could have realistically and imprudently opened the driver’s door of the vehicle and interfered with traffic thereby endangering property or person. This, in my view, constitutes a realistic risk of danger associated with the use of a motor vehicle. Whether Mr. Murray who does not initially intend to drive may change his mind and do so? [62] I will now proceed in greater details with the W.(

D) analysis and, in particular, with respect to the first and second steps. Of course, I wish to repeat my previous comments on the credibility and reliability of Mr. Murray’s evidence.

[63] To be clear, under this heading, and for the purpose of determining whether Mr. Murray had de facto care or control, I do notbelieve his evidence nor am I left with a reasonable doubt by it. Nonetheless, I must consider whether a reasonable doubt arises fromevidence I do accept. [64] Mr. Murray testified that he planned on sleeping in his vehicle until he would be sober enough to drive; that is, he would bedriving back to St. Stephen at about 06h45 to report to work at Canada Post for 08h15. On the other hand, Cst. MacDonald says Mr.Murray advised him of his plan to sleep in the vehicle and drive back to St.

Stephen at about 04h00. [65] Mr. Murray also testified that he was not wearing his seat belt when Cst. MacDonald approached his vehicle. That I accept as afact. However, for reasons explain below, I otherwise reject his evidence and that of his wife. [66] In applying the first two steps of the W.(D.) analysis, there are a number of salient reasons why Mr. Murray’s evidence cannot bebelieved and does not raise a reasonable doubt as to when he really contemplated driving back to St. Stephen. Regretfully, I find that Mr.Murray was not a credible witness.

Likewise, I find that his recollection of the occasion in question is not reliable in part due to his levelof intoxication. [67] I would go further. Although I conclude that Mr. Murray indeed indicated to Cst. MacDonald that he would drive back to St.Stephen at about 04h00, I find that, in reality, he fully intended to travel back to St. Stephen at an as yet undetermined time. [68] In assessing Mr. Murray’s testimony against the totality of the evidence, it has not escaped my mind that Mr. Murray testifiedhimself that he was concerned over a no parking sign during those hours of the night.

In fact, he stated that prior to Cst. MacDonald’sarrival, he debated whether to drive to a nearby parking lot. [69] In further considering the totality of the evidence, I find it difficult, if not altogether inconceivable, that Mr. Murray would haverepeatedly crawled to and from the front seat of the vehicle to warm up. At this pace, I note that he would have repeated this caricaturalprocess on at least three occasions before driving back to St. Stephen at about 06h45. After all, was the purpose not to sleep? And, ofcourse, this is assuming the temperature would not have gotten cooler.

It is not in dispute that it was a cool night and the use of the heaterwas required in the vehicle. [70] What makes the least sense of all, and which fatally undermines Mr. Murray’s evidence, is if I were to accept that Mr. Murraywould have slept in his vehicle until 06h45 (despite his admitted concern over the no parking sign for those hours of the night),inevitably, I must also accept that his vehicle would have remained parked at this location. With respect, it would have been much morelogical to sleep at a hotel. He did not. Conversely, common sense would dictate that if Mr.

Murray did not contemplate staying too longin his vehicle before driving back to St. Stephen, there would be no point in walking to a hotel. [71] One more point. When Mr. Murray’s wife testified, she quite eloquently portrayed herself as a mature and responsible personcaring deeply for her husband which I do not doubt. That being said, however, I cannot accept the crux of her evidence because it woulddefy common sense in considering the evidence as a whole. For instance, she indicates that if her husband consumes alcohol and noarrangements are made to return home, he is “to sleep in his car”.

With respect, I cannot accept that she would allow her husband, a manof a certain age, to sleep in his vehicle overnight in a place not designated for persons under the influence of alcohol, especially in coolertemperatures and in an urban area outside drinking establishments. [72] I find that, even though Mr. Murray may not have initially intended to drive the vehicle at the exact moment Cst. MacDonaldapproached him, the prosecution has proven beyond a reasonable doubt that there was a realistic risk that he would change his mind andoperate the vehicle. [73] I will now further consider Mr.

Murray’s testimony in the context of the evidence as a whole while responding to applicable areasof inquiry which have featured in Canadian case law, namely in R v Szymansky (ON SC), [2009] O.J. No. 3623.Those are helpful in addressing the question of whether an accused had de facto care or control of a motor vehicle: Nature and status of the motor vehicle: Mr. Murray was familiar with the nature of the vehicle. He admits that he owned it and he droveit to the location in question. The evidence also indicates that the vehicle was operable at the time. Use of the motor vehicle equipment: Mr.

Murray had the vehicle in park mode. The engine was running and the lights were on. Otherthan stating he was previously sleeping in the back seat and seated behind the wheel with his seat reclined, Mr. Murray does not indicateif and how he made the vehicle more suitable for this purpose (ie. taking off shoes or using a blanket). Location of the vehicle: This is also an important factor. I would emphasis that Mr. Murray was, according to his evidence, planning tosleep for the night in a public place not intended for that purpose.

He candidly admits that he was concerned over the no parking sign forthose hours of the night. He could have been asked at any time to leave the area, an issue which he raised himself during his evidence inchief. And I am satisfied that he would have done so, notwithstanding his condition, had this occurred. Recall that he testified that priorto Cst. MacDonald’s arrival, he in fact debated whether to move the vehicle to a nearby parking lot. Vehicle keys: It is trite law that possession of those keys may be seen as a significant step in taking control of the vehicle.

Placing keys ina vehicle's ignition increases the likelihood of starting the vehicle. And actually starting the vehicle with the keys may be the penultimatestep in putting that vehicle in motion. The risk of danger increases as one progresses along that continuum. Accused's condition – I have watched the video footage depicting Mr. Murray while at the police station. I find that he was at least

moderately intoxicated on the occasion in question. Regretfully, Mr. Murray’s level of intoxication depicted on the video is such that he is continuously interrupting the officers and he cannot focus on any conversation. By way of example, in answer to most questions posed by the officers, he repeatedly stated “I have respect for man in uniforms” regardless of the context. I also note that the DVD footage shows Mr. Murray speaking with an increasing slurred speech which I could not detect during his evidence in chief. Moreover, Mr.

Murray’s level of intoxication was such that, on two occasions, he confused his bank cards for his driver’s license. Equally troubling, he attempted to resist the officers upon being placed under arrest. The Alternate Plan : I find that any plan Mr. Murray had for use of the vehicle that evening and early morning was ad hoc, malleable and last minute. Up until the time he started consuming alcohol, Mr. Murray made no arrangements to sleep in his vehicle. Of course, he had made no plans for alternate transportation that day and he definitely would be driving the vehicle at some point in time. Was Mr.

Murray’s alternate plan “objectively concrete and reliable”? The short answer to this question is no. Mr. Murray admits that prior to Cst. MacDonald arriving on scene, he actually debated whether to drive to a nearby parking lot. I find that he really had no idea when he would wake up and/or be sober enough to drive. I also fail to see how a plan entirely based on one’s self-identity when he or she would be sober enough to drive amounts to an “objectively concrete and reliable”' plan. In the circumstances, I find that Mr.

Murray was prepared to drive from that location at a time when his ability to operate the motor vehicle was impaired by alcohol. As noted by the court in Boudreault , "Impaired judgment is no stranger to impaired driving," (at par.13). The accused when sober may know when to drive and when not to drive; that accused when intoxicated may not. [74] I will be brief with my remarks on the third step of the W.(D.) analysis considering that Mr. Murray admits he was over the legal limit and the Certificate of the Qualified Technician is already admitted into evidence.

I would simply make a statement of the obvious and add that I accept the evidence of the officers as both reliable and credible. In particular, I find that neither attempted to embellish their respective evidence. [75] Essentially, I find that, through the evidence of the officers and the Certificate of the Qualified Technician, the Crown has proven beyond a reasonable doubt all essential elements of the offence for both presumptive and de facto care or control under s. 253(1) (

b) of the Criminal Code :

a) the date, being November 4th, 2013;

b) the jurisdiction, being Saint John, New Brunswick;

c) Mr. Murray’s identity as the individual with whom the officers dealt with that evening;

d) Mr. Murray’s care or control of the Grand Caravan;

e) that the Grand Caravan was a motor vehicle; and

f) that Mr. Murray’s blood/alcohol concentration at the time he is said to have been in care or control of the Grand Caravan vehicle was in excess of 80 milligrams of alcohol in every 100 milliliters ('mg.%') of his blood. V. Conclusion [76] I find that Mr. Murray has not established on a balance of probabilities that the officers breached his Charter rights. The Certificate of the Qualified Technician is admitted into evidence and will be marked as C-2. [77] On the totality of the evidence, I find that the Crown has proven beyond a reasonable doubt that Mr.

Murray was in care or control of a motor vehicle while his blood alcohol level was over the legal limit. Therefore, I find him guilty of the offence under s. 253(1) (

b) of the Criminal Code . [78] Due to the rule against the entry of multiple convictions applicable in these circumstances, I enter a conditional stay on the s. 253(1) (

a) charge. Dated at Saint John, New Brunswick, this 24 th day of September 2015.

____________________________________ Marco R. Cloutier Judge of the New Brunswick Provincial Court