R. v. Gering, 2022 BCPC 179

Citation: R. v. Gering 2022 BCPC 179 Date: 20220728 File No: 95986 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JONAS GERING REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. TAM Counsel for the Crown: J. Schroeder Counsel for the Defendant: C. Johnson Place of Hearing: Kelowna , B.C. Date of Hearing: June 3, 2022 Date of Judgment: July 28, 2022

[ 1 ] THE COURT: I will read my decision into the record now. Mr. Gering has been charged with impaired driving and having a blood alcohol concentration that exceeded the legal limit within two hours after ceasing to operate a conveyance. On the day in question, he was found slumped over in his vehicle in an extremely intoxicated state. Investigating officers brought him back to the police detachment where Mr. Gering provided a breath sample that yielded a result of 200 milligrams of alcohol in 100 millilitres of blood. [ 2 ] Much of the Crown's case is not factually disputed. Mr.

Gering agrees that he was in an extreme state of intoxication. However, he said that he came to be in that state after he decided to pull over. On the day in question, he was on his way to work when he spontaneously decided, because of personal issues arising from the break-up with his ex-partner, to start drinking heavily. He parked his truck and started drinking. [ 3 ] The sole issue at this trial, therefore, is whether Mr. Gering was in care or control of his truck: (

a) at the time his ability to operate a conveyance was impaired by alcohol; and (

b) within two hours before having a blood alcohol concentration that exceeded the legal limit. [ 4 ] Since Mr. Gering was found in the driver's seat of his truck, there is a presumption that he was operating it unless he can establish that he did not occupy the driver's seat for the purpose of setting his truck in motion. In this case, he testified that the decision to pull over to drink was spontaneous and that he started drinking only after he pulled over. He also planned to simply sleep off the intoxication and that ultimately he would phone his brother, Elias, for a ride home.

Alternatively, he may phone for a taxi. [ 5 ] With respect to his initial intention, Mr. Gering's evidence was straight forward and it withstood the Crown's cross-examination. In my view, he has rebutted the presumption set out in s. 320.35. Specifically, I find that on a balance of probabilities that when his ability to operate his truck became impaired by alcohol he did not sit in the driver's seat for the purpose of setting it in motion. I accept that he sat there to drink. For that reason, the presumption has been rebutted and does not apply. [ 6 ] That, of course, does not end the matter.

The court still needs to decide whether the circumstances lead the court to conclude beyond a reasonable doubt that Mr. Gering was in care or control of his truck despite the inapplicability of the presumption found under s. 320.35. But before turning to the main issue of care or control, there is one important factual issue to be decided and that is whether the engine was running at the time the police officers came upon Mr. Gering. [ 7 ] Mr. Gering testified that he specifically recalls turning the engine off when he first pulled over. I accept that portion of his evidence. This came at a time when Mr.

Gering was sober. His intention was simply to pull over, drink, and listen to music. It was more likely than not that he did, in fact, turn his engine off. However, his evidence was that he consumed approximately half a bottle of Crown Royal Whiskey within about half an hour. From that point forward, Mr. Gering became quite intoxicated and, for that reason, I find his evidence to be completely unreliable. [ 8 ] His recollection of being roused by Constable Clark was vague. Even in his own words, parts of his dealings with the officers was a blur. He was not able to form coherent thoughts.

His words were incomprehensible. He was not able to stand without the officers supporting him. In other words, he was in an extreme state of intoxication by the time the officers arrived and very likely even before then. The court, therefore, places no weight whatsoever as to Mr. Gering's evidence when it comes to whether the engine was running or not when the officers arrived on scene. [ 9 ] In contrast, both Constable Hug and Constable Clark specifically recall the engine running. Their evidence was clear, credible, and reliable.

The officers were also alive to the incident developing into an impaired driving investigation and so whether the engine was running would have been a significant factor for both officers to consider. In the end, Constable Hug specifically remembers turning the engine off, at which point, the motor stopped running. He also recalls exhaust coming out of the exhaust pipe. [ 10 ] The court has no difficulty concluding the engine was, in fact, running when the officers came upon Mr. Gering. Having made both those findings, the court concludes that, at one point in the morning, after Mr.

Gering pulled over to start drinking, Mr. Gering started the engine again and does not recall doing so. [ 11 ] Turning now to the main issue of care or control, the test is properly set out in R. v. Boudreault , 2012 SCC 56 .

At paragraph 33 of Boudreault , the court said, and I quote: In this light, I think it helpful to set out once again the essential 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; [and] (3) in circumstances that create a realistic risk of danger to persons or property. [ 12 ] Further, the risk of danger must be realistic and not just theoretical or possible nor does it need to be probable, serious, or substantial.

Indeed, this risk was said by the Supreme Court of Canada as being a fairly low threshold. At paragraph 48 of Boudreault , the court said this: I need hardly reiterate that “realistic risk” is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case.

[13] Having considered the test, I conclude that there was a significant risk of Mr. Gering's truck being set in motion and therebyputting the public at risk. This is because, in his inebriated state, Mr. Gering actually started the vehicle, a very significant and importantstep towards setting the vehicle in motion. There was apparently no reason for him to have done this. Mr. Gering did not say that heneeded the engine to charge the batteries or to operate climate control functions. Mr.

Gering simply does not recall doing this and so thecourt is left with someone behind the wheel of his vehicle intoxicated and interacting with the functions of the vehicle in a way that hedoes not recall doing, that he had no ostensible reason for doing, and that, by his own evidence, had no intention of doing. [14] This interaction was a significant step towards the setting of the vehicle in motion and this was on a stretch of roadway that isfrequented by trucks as well as pedestrians. To use the words of Boudreault, the circumstances create a realistic risk of danger to personsor property. Mr.

Gering was, in fact, in care or control of his truck when the officers came upon him at 11:30 a.m., April 7, 2021. [15] I have reviewed the cases cited by Mr. Johnson on behalf of Mr. Gering. Both R. v. McLachlan, 2009 BCSC 431, and R. v.Vaesen, 2021 BCPC 266, contain a comprehensive review of the jurisprudence and so numerous cases with numerous fact patterns havebeen discussed. The lesson that emerges from this very wide canvas is that, as has been said time and again, each case will rest on itsown facts. The applicable test remains consistent since R. v.

Toews, (SCC), [1985] 2 S.C.R. 119, which was thenarticulated again in R. v. Boudreault, namely, whether the circumstances create a realistic risk to persons or property and, while thedifferences between the numerous cases may be very nuanced, it is on those very nuances that a particular decision will turn. [16] Returning to this case, Mr. Gering turned on the engine to his truck, he had no reason for doing so, he had no intention of doingso, and he does not remember doing so. Given his extreme state of intoxication, I find that the circumstances created a real risk of dangerto persons or property.

It matters not that the vehicle had an automatic transmission and that it was parked on relatively level ground onthe side of the road. The circumstances remained dangerous given his state of intoxication and his interactions with his vehicle. [17] Accordingly, I find him to be in care or control of a motor vehicle when the police officers came upon him. There were no otherissues before the court. Accordingly, I find that the Crown has established beyond a reasonable doubt Mr.

Gering's guilt on both Counts1 and 2 and he is hereby found guilty as charged. [18] I will now invite counsel to make submissions on which count the court ought to stay judicially on the principle of R. v.Kienapple, and that concludes my reasons. (REASONS CONCLUDED)