Her Majesty the Queen ) T. Rambow, for the Crown ) - v. -, 2012 MBPC 56

2012 MBPC 56 THE PROVINCIAL COURT OF MANITOBA FLIN FLON CENTRE BETWEEN: Her Majesty the Queen ) T. Rambow, for the Crown ) - and - ) ) NATHAN STEUART ) G. Bauman, for the Accused ) ) Judgment delivered: August 1, 2012 McDONALD, P.J. INTRODUCTION [ 1 ] In the frigid early morning hours of January 8 th , 2011 the accused was found by Police passed out in the driver’s seat of his Ford 150 truck.

The motor was running, the accused’s foot was on the gas pedal, the park brake was engaged, the truck’s standard transmission was set in neutral. [ 2 ] The accused says this was his last refuge after drinking too much and being unable to get into his friend’s locked apartment building where he had planned to stay. He had walked approximately a kilometre from the local hotel beverage room, fallen twice in the snow, had no gloves, and inadequate footwear and outerwear for the -26 Celsius weather. [ 3 ] This Court is now left to determine the following issues: a.

Has the accused rebutted the presumption of care and control arising from his being in the vehicle’s driver’s seat? b. If the presumption has been rebutted, has the Crown proven that the accused was in actual care and control? THE CHARGES [ 4 ] The accused is charged as follows: COUNT 1: That Nathan Steuart on or about the 8 th day of January A.D. 2011 at or near the City of Flin Flon in the Province of Manitoba, while his ability to operate a motor vehicle was impaired by alcohol, did unlawfully have care and control of a motor vehicle, contrary to 253(1)(

a) of the Criminal Code of Canada ; COUNT 2: That Nathan Steuart on or about the 8 th day of January A.D. 2011 at or near the City of Flin Flon in the Province of Manitoba, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did unlawfully have care and control of a motor vehicle contrary to section 253(1) (

b) of the Criminal Code of Canada . THE FACTS [ 5 ] The accused gave evidence about what he did in the hours preceding his being discovered by the Police passed out behind the steering wheel of his vehicle. [ 6 ] He told the court that he lives in Denare Beach, Saskatchewan a small community about a 30 minute drive west of Flin Flon, Manitoba. He left his work as a mine surveyor sometime after 3:30PM on Friday January 7 th , 2011 with plans to meet his friend and co- worker, Jason Letange, in Flin Flon later and have some drinks.

The accused had recently separated from his wife; his two daughters were to stay with their mother that weekend so he was on his own. He shopped for groceries before heading to Mr. Letange’s apartment. He brought his groceries into the apartment so they would not freeze in his truck. He planned to stay the night at Mr. Letange’s apartment.

[7] The accused and Mr. Letange then started the evening drinking beer and playing video games. Another friend, Bryan Duffcame to the apartment. The three of them played “Beer Pong”. At approximately 10:30PM the group walked to the beverage room at theVictoria Inn Hotel. This establishment is called the “Unwinder”. When the accused arrived at the Unwinder he was under the influenceof alcohol. He then became progressively more intoxicated. Around 1:00 AM Mr. Letange approached the accused and told him that hewas going home. The accused chose to stay at the bar a little longer. Mr.

Letange told the accused to phone him so he could buzz himinto the apartment. The accused had a Blackberry cell phone with him which he had only recently acquired. The accused continued todrink until the bar closed. [8] The accused then began to walk back to Mr. Letange’s apartment building on Green Street. Although he had no recollection ofit, the court heard evidence that the accused had been stopped briefly by police manning a nearby check stop. Despite his intoxicationlevel he was allowed to go on his way on foot. As he walked to the apartment he fell in the snow twice. When he arrived atMr.

Letange’s apartment he was unable to use his recently acquired Blackberry to phone Mr. Letange as he was unable to remember thepassword. The apartment building was locked and he was unable to get in. He got into his truck and turned on the engine and later turnedup the heat. The next thing he remembers is being awoken by a police officer. [9] Cst. O’Brien of the Flin Flon RCMP gave evidence that he was on patrol shortly before 3:28 AM near the Adams Streetapartment when he heard an engine revving loudly.

He determined the noise was coming from a truck parked with its front end pointedto the street and in line with the Green Street apartment building which was directly across the street. As Cst. O’Brien approached thevehicle he experienced a strong burning smell and the vehicle seemed hot. Cst. O’Brien opened the vehicle door and saw the accusedslumped behind the wheel with his foot on the gas pedal. He turned off the engine of the vehicle and then took pictures of the accusedpassed out behind the wheel of the vehicle. He then tried to awaken the accused by shaking and yelling at him for about 10 to 15seconds.

When the accused finally awoke he was drowsy and his speech was hard to understand and he smelled strongly of alcohol. Notsurprisingly the accused was placed under arrest for impaired care and control of the vehicle and taken to the RCMP Detachment inCreighton Saskatchewan for a Breath test to be conducted. The readings obtained during the tests were two readings of 200 milligrams. [10] Cst. O’Brien confirmed that he had seen the accused earlier that morning while he was operating the “chase car” at a check stopnear the Victoria Inn. He said he had seen the accused who was walking.

He appeared intoxicated and walked into a fence beforecontinuing on his way. Cst. O’Brien recalled speaking with other members at the check stop who told him the individual, who turned outto be Mr. Steuart, had told them he was going home. ANALYSIS [11] The first issue to be determined is whether or not the accused has rebutted the presumption of care and control arising from hisoccupation of his truck’s driver’s seat on the date in question. Section 258(1)(

a) creates the presumption and reads as follows: 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), where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel oraircraft 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 inmotion or assisting in the operation of the aircraft or railway equipment, as the case may be; (emphasis is mine) [12] The onus is on the accused to establish, on the balance of probabilities, that he did not occupy the driver's seat for the purposeof setting the vehicle in motion. [13] In this case I accept the accused’s evidence that he planned to stay at his friend Jason Letange’s overnight.

He stored hisgroceries at Mr. Letange’s with the intention of taking them home with him the following day. This evidence of planning to stay in FlinFlon is further supported by the evidence of Cst. O’Brien regarding the conversation he had with another officer at the check stop afterthe accused was allowed to go on his way “home” earlier that same morning. Obviously, the officer was satisfied he was making hisway to a residence nearby and not operating a vehicle.

In addition, the standard transmission vehicle, although running, had the parkingbrake engaged, had its gear shift set in neutral and there was no indication the accused had attempted to engage the clutch. Thiscircumstantial evidence supports the accused’s testimony that he entered the vehicle to warm himself on a very cold night when he couldnot use his cell phone to contact his friend to gain entry to the locked apartment building.

As a result I am satisfied the accused hasrebutted the presumption that he occupied the vehicle’s seat for the purpose of setting it in motion. [14] However, that does not conclude the matter. I must review all the evidence to determine if the Crown has proven, beyond a reasonable doubt, that the accused did in fact have care and control of the vehicle in the early morning hours of January 7th, 2011. [15] The Court of Appeal in R v.

Burbella, 2002 MBCA 106 , 166 Man.R.(2d) 198 at paragraph 22 has set out the test forthis court to apply in this circumstance: “However even where the accused establishes that he did not have the intention to set the vehicle in motion, evidence of acts involvingsome use of the vehicle which could accidentally cause it to become dangerous, whether by setting the vehicle in motion accidentally orcausing some other form of danger, will establish care and control.” [16] The Crown has argued that the fact that the gas pedal was depressed and the vehicle’s engine was revving at a high level is initself dangerous.

In this regard the evidence is that the Police officer experienced a burning smell and that the vehicle seemed hot. Itwould be speculation on the Court’s part to conclude that a dangerous situation would necessarily ensue because of that state of affairsalone. I am not satisfied that the condition in which the vehicle was found by the Police officer when he attended to investigate satisfies afinding of care and control by constituting real possibility of “some other form of danger”. [17] In the alternative, the Crown posits that the vehicle may have been unintentionally placed in motion. In his testimony the

accused described the process by which he places this standard transmission vehicle in motion. He would have had to wake up, releasethe emergency brake, depress the clutch, place the gear shift in first gear, and then let out the clutch. All of these steps must beperformed to set the vehicle in motion. Some suggestion was made in cross examination of the accused that the vehicle could be put ingear without depressing the clutch if the engine was revving at a high level. The accused expressed his opinion that that could not takeplace especially with an emergency brake applied.

No expert testimony was heard on this issue of “speed shifting” a standardtransmission vehicle from a dead stop when an emergency brake is applied. I am not prepared to conclude such a scenario is plausible, itappears to defy common sense. [18] The Crown cited the decision of R. v. Denys 2009 MBCA 39 as being on all fours with the case at bar. Defence counselsuggests that the decision should be distinguished. I agree with counsel for the Defendant that Denys should be distinguished from thefacts of this case.

In Denys the Court of Appeal upheld a decision of the Queen’s Bench Justice sitting on an appeal overturning anacquittal granted at trial in Provincial Court. The trial Judge found the accused had rebutted the presumption under 258(1)(

a) despite theaccused being found in the driver’s seat of the vehicle and having no recollection how he arrived at a convenience store after havingbeen driven earlier in the evening by a designated driver. The Court of Appeal upheld the finding in the Queen’s Bench that the trialJudge erred by holding that the accused’s intention to not drive earlier in the evening, when he enjoyed the services of a designateddriver, was continued to later in the day when the accused was found passed out in the driver’s seat of a motor vehicle with no notion ofhow he came to be there. I have already found as fact that Mr.

Steuart did not enter the driver’s seat with an intention to drive and indeedhad a plan to warm himself and attempt to gain entry to Mr. Letange’s apartment. Moreover, Mr. Steuart’s vehicle was located where hehad left it before drinking, across the road from Mr. Letange’s apartment, unlike the vehicle in Denys which was in a completelydifferent location with no explanation of how it ended up there. [19] The real scenario to be dealt with is the danger posed by the accused rousing himself while in the vehicle in a highly intoxicatedand confused state of mind and then setting the vehicle in motion.

This scenario was addressed by Scurfield J. on a

summary convictionappeal in R v. Yablonski, 2006 MBQB 159 , 2006 204 Man R (2d) 239. In Yablonski the accused was found by police in thedriver’s seat of her vehicle. The keys were in the ignition. The vehicle was not running but Ms. Yablonski had her seat belt partly on. Afriend confirmed that she had offered to be the designated driver that everning. The accused claimed she had gone to the vehicle to awaither friends as she was not feeling well.

When Police arrived the accused was found leaning out the driver’s side door vomiting with herseat belt partially on. [20] Scurfield J. concluded the trial Judge had found that the accused had care and control of the vehicle in circumstances wherethere was a real danger that she would set the vehicle in motion as a result of her confused state of mind. He went on to find that the useof the words “accidentally” and “unintentionally” did not foreclose convictions where the evidence shows real danger that the accusedwould set a vehicle in motion because of confused but deliberate acts.

He explained his reasoning as follows at paragraph 16: “From a legal perspective, an extremely intoxicated person may not have the capacity to form intent. Nevertheless, that person mayperform

an act or series of acts involving the use of a motor vehicle that generate(

s) the risk that they will set the vehicle in motion. Theoffence is one of general intent. Thus, the purposive approach in Burbella or Ford would logically include such conduct. If anything, thedeliberate act of an extremely intoxicated person is more culpable than a purely accidental act. The proper focus is on the dangergenerated by the actions of the accused person.” [21] Do the facts of this case establish, beyond a reasonable doubt, that such a danger existed?

In answering this question it isnecessary to examine evidence that would prove or disprove the existence of the danger that the vehicle would be set in motion. In caseof R v. Szymanksi (2009) (ON SC), O.J. No. 3623, Durno J. set out useful examples of criteria, at paragraph 93 ofthe judgment, that should be considered in arriving at this determination: “

a) The level of impairment. R. v. Daines, [2005] O.J. No. 4026 (C.A.), R. v. Ferguson (2005), (ON SC), 15M.V.R. (5th) 74 (S.C.J.), R. v. Ross (2007), 2007 ONCJ 59 , 44 M.V.R. (5th) 275 (O.C.J.) In Ogrodnick, Wittman A.C.J.qualified his comments about speculation and conjecture by accepting that it was an appropriate basis to find care or control because thelevel of intoxication demonstrates unpredictability or a risky pattern of behaviour Para. 54.

In Ross, the trial judge found that thisconsideration might relate to the likelihood of the accused exercising bad judgment, the time it would take to become fit and thelikelihood that he or she would be presented with an opportunity to change their mind during that time.

b) Whether the keys were in the ignition or readily available to be placed in the ignition. Pelletier, supra.

c) Whether the vehicle was running. R. v. Cadieux, [2004] O.J. No. 197 (C.A.)

d) The location of the vehicle, whether it was on the side of a major highway or in a parking lot. Cadieux, R. v. Grover, [2000] A.J.No. 1272 (Q.B.)

e) Whether the accused had reached his or her destination or if they were still required to travel to their destination. Ross, supra.

f) The accused’s disposition and attitude R. v. Smeda (2007), 51 M.V.R. (5th) 226 (Ont. C.A.)

g) Whether the accused drove the vehicle to the location of drinking. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)

h) Whether the accused started driving after drinking and pulled over to “sleep it off” or started out using the vehicle for purposesother than driving. If the accused drove while impaired it might show both continuing care or control, bad judgment regarding fitness todrive and willingness to break the law. Ross, supra. Whether the accused had a plan to get home that did not involve driving while he or she was impaired or not over the legal limit. Cadieux, Ross, R. v. Friesen, [1991] A.J. No. 811 (C.A.), R. v. Gill (2002), 33 M.V.R. (4th) 297 (S.C.J.) para. 21, Ross, supra.

j) Whether the accused had a stated intention to resume driving. In Cadieux, supra, where the accused testified he was not drivingand was waiting to sober up. The Court of Appeal held that his evidence that he would not drive until he was sober only went to weight.

k) Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)

l) Whether the accused was wearing his or her seatbelt. Pelletier, supra.

m) Whether the accused failed to take advantage of alternate means of leaving the scene. Pelletier, supra.

n) Whether the accused had a cell phone with which to make other arrangements and failed to do so. Cadieux, supra.” [ 22 ] In this case the accused was highly intoxicated, his reading BAC Datamaster readings were 200 milligrams. He was seated in the driver’s seat with the keys in the ignition and the vehicle running. Likewise the vehicle was parked facing toward a residential street. [ 23 ] On the other hand the accused, according to his version of events, was at his destination. His attitude with police was cooperative and he repeatedly indicated to police that he was not going to drive the vehicle.

The accused did not drive the vehicle to the location of the drinking. He did not drive after drinking and then pull over to “sleep it off”. In addition there was a plan to get home that did not involve driving while he was impaired. He was not wearing a seatbelt which, if he had worn one, would have been indicative of preparing to drive.

He had a cell phone but because of the fact he recently obtained it, and forgot the password, he was unable to operate it and make alternate arrangements. [ 24 ] As to the issue of whether the accused had a stated intention to resume driving, the Crown argues that the accused left this option open for himself and points to his testimony in cross-examination on this point. The testimony on this issue is found at page 88, line 30 through page 91, line 20 of the transcript of proceedings: “Q. All right.

Now you had said, the plan that you formulated was to sleep in the truck, and, and wait, I think, until you were sober basically, and then you were going to try and Mr. Letange the next day. I, I was sleeping in the truck till I could get a hold of Jason, and then at that point I would reassess timing, whether I had to sleep for eight hours, or 12 hours, or whatever it was, go into the apartment, sleep some more, get my groceries, and then continue on home. Q. Okay. Let me put a couple of scenarios to you. Sir, All right? In the event you couldn’t reach Mr. Letange, for whatever reason --- Yeah.

Q. ---you couldn’t get into the phone (sic), or he’s left, it’s quite conceivable that you had your truck keys, you’d have just gone home to Denare Beach then, correct? Not without my groceries, no, it’s too much of a pain in the butt. I would have--- at that point in time; it would have been civil (sic) hours. I could have contacted another friend, got a ride. I could have done something to, to kill time until I could get a hold of Jason. It was a weekend so.... Q. But if you got a hold of somebody else, you might have driven to their place to, to kill some time. Depending on my condition at that time. Q. Okay.

So depending on how you felt at that point, whether you thought you were sober, you might in fact have driven your truck to a friend’s place. Yes, if it was, if I had slept long enough, I would, I mean my, my intent was to get my groceries-- Q. Um-hum. --- and go home. Q. But if you couldn’t get your groceries— I would have waited in town before going anywhere, yeah – Q.-- right. All right. I had friends in walking distance, I mean, if you are asking if I would have drove under the influence later, it would be no. Q. I am asking if you if whether you would have drove.

Yeah, probably not, given the circumstances, I was fairly intoxicated, I mean, I had enough common sense at that point in time, in that state, not to drive I probably would not have driven – Q. I’m not asking about that point in time – – the next day. Q. Sir, I’m asking about, you said that you’re plan would be to sleep it off, and I put a scenario to you that after you’ve slept for a period of time – Yeah.

Q. -- if you couldn’t get a hold of Mr. Letange that you’re saying you might have called some friends, and your first answer was that there’s a possibility after having slept long enough, and assessed whether you were sober, you may in fact have drove to a friend’s place; correct? Did I say drive? I don’t think I said drive, but if I did, then ... I thought I said going to a friend’s place – Q. Um-hum. --- I don’t know. Q. But there’s a possibility; would you agree that you’re there? You think you’re sober at that point. You’ve got you truck keys that in fact may have driven your truck over to a friend’s place.

If I was – yeah. If, if I’d had had the right amount of rest. Q. Right. If, if, if in your believe – Yeah. Q. --- at that point, you’d slept long enough, and you were sober by then, you would have drive. Possibly. Q. And would you agree that if you could get a hold of somebody else, there was an alternative plan, then the next logical plan would be to drive home to Denare Beach, and figure out where to go from there. No, I don’t agree with that. Q. So if there were no friends; what would you have done then?

Got a hold of Jason, if I couldn’t get through on the phone, I would have went and throw snowballs at his window. Q. If that didn’t work? Then I could have simply waited for somebody to let me in the building, and I could go up to his apartment. Q. Now your plans were to get to the Lake the next day; correct? To go home at some point, yes, I didn’t have a set

schedule cause the girls were with their mom so was kind of, just ... Q. Right. No deadlines.” [ 25 ] I have carefully reviewed this testimony. It is important to place this testimony in the context of the accused’s stated plan to not drive and not leave Flin Flon without getting his groceries and certainly not before he was sober. It is also important to view it in the context of the high likelihood that Mr. Steuart would have been able to contact Mr. Letange and gain entry to his apartment later in the morning and have his wits about him.

Nothing in this testimony suggests that the accused’s plans left open a realistic danger he would set the vehicle in motion while his ability to do so was impaired. [ 26 ] In reviewing the criteria for assessing risk referred to in Szymanksi , with special regard to the risk posed by the accused’s high level of intoxication, I am still not satisfied, beyond a reasonable doubt, that in the peculiar circumstances of this case a real risk existed of setting the vehicle in motion while his ability to do so was impaired by alcohol.

I find the accused had a well formed plan that involved not operating a vehicle while he was impaired and that he deviated from that plan only to warm himself until he regained his senses and could gain access to his friend’s apartment. As a result, I find the accused not guilty of having care and control of a motor vehicle while he was impaired and not guilty of having care and control of a motor vehicle with blood alcohol level greater than 80 milligrams in 100 millilitres of blood. “Original signed by:” ___________________________________ McDonald, P.J.