R. v. Groeneweggen Date:, 2013 BCPC 395

Citation: R. v. Groeneweggen Date: 20131017 2013 BCPC 0395 File No: AH72899142-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Benjamin Anthony GROENEWEGGEN REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H.W. GORDON

Appearing for Crown : Cst. N. S. Henning Appearing on his own behalf Benjamin A. Groeneweggen Place of Hearing: Nanaimo , B.C. Date of Hearing: April 3, 2013 Date of Judgment: October 17, 2013 [ 1 ] This is a ruling whether the Crown has led evidence of all essential elements of a charge under the Liquor Control and Licensing Act .

As a result of my ruling, it is also my Reasons for Judgment. [ 2 ] Benjamin Groeneweggen was charged on November 25, 2012 with exercising control over the operation of a motor vehicle while there was liquor in his possession or in the motor vehicle contrary to section 44(2) of the that Act. [ 3 ] At the conclusion of the Crown’s case, I raised the issue of whether the Crown had led evidence capable of establishing a necessary element: exercising control over the operation of a motor vehicle. Legislation [ 4 ]

Section 44 of the Liquor Control and Licensing Act provides: Liquor in motor vehicle 44

(2) Subject to subsection (3), a person must not drive or otherwise exercise control over the operation of a motor vehicle, whether or not it is in motion, while there is liquor in the person's possession or in the motor vehicle. [ 5 ] Subsection (3) provides for the places that liquor may be placed in a motor vehicle that will make subsection (2) inapplicable and is not at issue in this case. [ 6 ] As there is no evidence that Mr.

Groeneweggen was driving a vehicle, it is only the portion of the offence of “otherwise exercise control over the operation of a motor vehicle, whether or not it is in motion,” that is in issue. The Evidence [ 7 ] The only facts are those in evidence at the close of the Crown’s case. They are from the testimony of Cst. Henning of the Nanaimo RCMP, the officer who issued the ticket. [ 8 ] At just past midnight on November 25, 2012, Cst. Henning and another officer were on patrol on a bar watch program conducted by the police regularly on Friday and Saturday nights in the downtown core of Nanaimo.

On patrolling the Bastion Street Parkade, they observed a person urinating in the corner of the level they were on. The other officer attended on that person. Cst. Henning attended at a Ford pickup nearby. There he found two people seated in the front of the pickup, a male in the driver’s seat and a female in the passenger seat. On looking into the pickup, he noted two open beer cans. One was a can of Pilsner in the centre console and a can of Coors Light beer in the dash cup holder. On further inspection, the can of Pilsner smelled like beer and it was about one quarter full.

The can of Coors Light was about one-tenth full. There were also 8 unopened cans of beer in the vehicle, which he seized. [ 9 ] Cst. Henning identified the person in the driver’s seat by a BC Driver’s Licence as the Disputant, Mr. Groeneweggen. From the vehicle registration, the officer also learned he was the registered owner of the pickup. [ 10 ] He also gave evidence that both the passenger and the other person who was urinating in the corner appeared intoxicated. He said the person in the driver’s seat, Mr. Groeneweggen, had “clearly not been drinking”. [ 11 ] On the basis of this evidence, Cst.

Henning issued a Violation Ticket to Mr. Groeneweggen for exercising control over the operation of a motor vehicle while there was liquor in the vehicle (the two opened cans of beer). The 8 unopened cans of beer could not have constituted an element of the offence as they would be covered by the exclusion in section 44(3)(

a) of the Act. [ 12 ] That was the case for the Crown. [ 13 ] At the close of the Crown’s case, keeping in mind my duties to unrepresented Disputants, I considered whether it had made a prima facie case to prove every essential element of the offence. [ 14 ] I adjourned the hearing to consider this issue and make a ruling. This is that ruling. Analysis [ 15 ] I could not find any case law on this issue. I therefore approach it on first principles and with the application of principles of statutory

interpretation. I also take guidance from the principle stated by Driedger ( Driedger on the Construction of Statues , 3 rd ed) that the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature. [ 16 ] The phrase “must not drive or otherwise exercise control over the operation of a motor vehicle” brings to mind the application of the principle ejusdem generis , or its parent, nosciter a sociis . To put these Latin phrases into plain language, these principles mean that

associated words must take their meaning from each other and a general word or phrase following a specific word takes its meaning fromthe specific. [17] Applying these principles here, in my view what constitutes exercising control over the operation of a motor vehicle must beinformed by the meaning of “drive”. At the very least, that would require evidence that the driver had the means to put the vehicle inmotion. That is the plain meaning of “exercising control over the operation of a motor vehicle”. In this case, the Crown did not lead anyevidence that Mr.

Groeneweggen had a key in his immediate possession or other immediate ability to start the vehicle. I appreciate thaton a certain level, this might seem somewhat technical given that a registered owner sitting behind the wheel of his vehicle would likelyhave on him or in close proximity the ability to start the vehicle. [18] In answer, I have in mind several factors. Firstly, this is an offence under the Liquor Control and Licensing Act, not the MotorVehicle Act. The purpose and object of the former is different than the latter.

I see the purpose of the former as regulating the sale andconsumption of liquor or the nuisance associated with that. The purpose and object of the latter is the regulation of traffic and publicsafety on the roadways. [19] Secondly, I see the mischief the

section addresses as an attempt to sever the link between easily accessible alcoholic beveragesand those in control of a potentially dangerous object, a motor vehicle. The circumstances here do not fall within that mischief. Cst.Henning clearly believed Mr. Groeneweggen to be sober. The officer had no concerns about him driving away once the open liquor wasdisposed of. If the beer cans had been emptied (by consumption or disposal) before the vehicle started into motion, Mr. Groeneweggenwould not have been in conflict with section 44(2). There is no evidence of a course of conduct on the part of Mr.

Groeneweggen todraw even an inference that he intended to drive away with open liquor in the cab of the pickup. [20] Finally, I have looked to case law on the meaning of care or control of a motor vehicle under section 253(1) of the CriminalCode [impairment], particularly the law that does not take into account the presumption provided in section 258(1)(a) [deemed care orcontrol if in driver’s seat]. Without detailing the reasoning of the Supreme Court of Canada in R. V.

Toews (SCC),[1985] 2 S.C.R. 119, I draw from those reasons the principles a court must apply to make a finding of care or control of a vehicle, and thecaution that each case will depend on its own facts. Ruling and Determination [21] For all of these reasons, I rule that it is an essential element of the charge that Mr. Groeneweggen had the factual ability tooperate the vehicle, of which there was no evidence led by the Crown. [22] I therefore find Mr. Groeneweggen did not exercise control over the operation of a motor vehicle.

I find him not guilty of thecharge under section 44(2) of the Liquor Control and Licensing Act. __________________________________________ H.W. Gordon Judicial Justice