P.C.J. 1999 SKQB 167 Q.B.C.A. A.D. 1999 No. 11 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: TRACY GARDNER APPLICANT (APPELLANT) and HER MAJESTY THE QUEEN RESPONDENT D. M. Rask for the appellant (accused) T. B. MacNab for the Crown JUDGMENT NOBLE J. November 2, 1999 [1] The appellant appeals his conviction before His Honour Judge B. Goldstein on February 18, 1999 that:he did on or about the 20th day of April, A.D. 1998 at or near Saskatoon, Saskatchewan having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, have the care or control of a motor vehicle contrary to Section 253(b) and Section 255(1) of the Criminal Code. [2] In his judgment, the learned judge below outlined the relevant facts of the case in these terms: It was in the wee hours of the morning, on April 20, 1998, when two paramedics, having transported patient to the Saskatoon medical facilities were on their way home to Spiritwood in their ambulance when they espied vehicle that was parked on the 51st Street ramp on Idylwyld or highway the highway attached thereto or extending therefrom. This vehicle was parked in such manner with its lights on, one light on, and in such position, some four to ten feet away from the travelled portion of the road, that it attracted the paramedics’ attention. There is no dispute that the automobile found on the 51st Street ramp was parked as indicated, and there is no dispute that the accused was intoxicated.... (Transcript of proceedings of decision and sentencing, Volume II, at p. 148) To supplement the learned judge’s remarks, it is relevant to note that the appellant’s vehicle was discovered by two ambulance attendants (paramedics) on their way back to Spiritwood when they noted it parked in an unusual place on the 51st Street ramp leading to the provincial highway going north. [3] The learned judge first considered whether the appellant was caught by the presumption of care and control of his vehicle pursuant to s. 258(1) of the Criminal Code, R.S.C. 1985, c. C-46 which, briefly stated, holds that where it is proven an accused occupies the seat normally occupied by the operator of the vehicle, it is presumed he is in care and control unless he can establish that he did not occupy the seat for the purpose of setting the vehicle in motion. [4] That was the precise situation that the ambulance attendants (and the police officer they summoned to the scene) came across when they approached the appellant’s vehicle to investigate. [5] The learned trial judge first considered whether or not the appellant had rebutted the presumption on s. 258(1) and concluded that he had successfully done so. He put it this way: ... These decisions have been most helpful in leading me to the conclusion that on the evidence, the accused initially having entered his vehicle for the purpose of driving, did, in fact, abandon that purpose, [sic] was subsequently found behind the wheel of the car. And accordingly the accused, hold, has established, by the requisite preponderance of evidence, that he did not then occupy the seat for the purpose of setting the car in motion. (Transcript of proceedings of decision and sentencing, Volume II, at p. 150) [6] Having reached that conclusion, the learned trial judge quite properly dealt with the next question, namely–had the Crown on the evidence before him established by credible evidence beyond reasonable doubt that the appellant (notwithstanding that he had rebutted the presumption) was nevertheless in de facto control of the vehicle to the point that he performed some acts which involved the use of it or its fittings or some other cause of conduct which might put the vehicle in motion so that it could become dangerous to other users of the roadway where it was parked? [7] This issue which is dealt with in such well known cases as R. v. Ford (1982), 1982 CanLII 16 (SCC), 65 C.C.C. (2d) 392 (C.C.C.) and R. v. Toews (1985), 1985 CanLII 46 (SCC), 21 C.C.C. (3d) 24 (S.C.C.) was then explored by the learned trial judge in light of the evidence before him. set out below the relevant portions of his judgment in this regard: What is the evidence of de facto control of motor vehicle in this case? The medical emergency medical personnel, Lisa Opraman, testified at page 15 as follows: Did this individual, the driver, know that you’d called the police? No. We didn’t really say anything. We felt it was better not to, just because in our past experience if you say that they tend to want to leave or deny different things, so we just chose not to because of [sic] this individual did want to drive away. Tell us about that? Well, he did try and start his vehicle couple of times. don’t know why he didn’t. We convinced him not to, but he did grab for the wheel, and that’s when we did notice there was [sic] keys in the ignition. At first we couldn’t see, but then when we actually started talking to him and he then we could hear the jingle of the keys. We talked him into not starting his vehicle. Okay. You say “we”? Jason and myself. Okay. And you say he reached and tried to start? To try and start it. His vehicle, couple of times? Yes, he did. Then we have the evidence of the other medic, Jason Trask, at page 43. At the top of the page, in answer to question the witness said: He said he just wanted to keep going. think he reached for the keys once, which were still in the ignition. We didn’t let him turn on the vehicle, so he was making efforts to leave the scene by the looks of it, so of course we couldn’t let him do that. When you say, ‘reach for his keys’ specifically, in that regard, what did you observe him do? Well, the keys were still in the ignition. The car was shut off. He reached up for the keys, kind of as if into [sic] grab them, to turn them on, like. Okay. You’re making gesture with your hand. Maybe you can make that to the court so we could make some sort of reference to what you’re describing? Sure. He just kind of reached for the keys, and he was trying to turn it forward. You’re twisting your wrist as if [sic] one would do if they were turning keys on in the ignition? To start vehicle, yeah. Okay. Was he able to start the vehicle? We wouldn’t let him. He didn’t physically we didn’t physically restrain him, but we said, ‘No, don’t do that, just kind of wait. We can’t let you drive away.’ Was the vehicle, when the twisting motion occurred, was there did the ignition turn? Did the engine turn over or anything like that? He didn’t turn it far enough to get to get up the starter. It was just kind of one click, kind of, for the accessories to come on, like the radio-type thing, if remember correctly. The accused himself was very candid about what took place. Primarily he realized that he was so impaired, he stated that he couldn’t remember precisely, but as best he could remember this is his evidence question, on page 82: Okay. And one more time then, when these people arrived, what steps did you take then with the vehicle at that point? And that’s referring to the medical emergency people arriving. None at that time until they requested that turn the vehicle off, not go anywhere. Okay. And what steps again did you just And then when I’m shutting the vehicle off, if I’m taking it from idling, I’m always putting it in gear just before shut it off. Well that doesn’t really tell us anything. He was asked: Do you recall making any attempts to start your engine again? don’t recall doing that, no. And at page 91: And is it your testimony and this is in cross-examination that when the EMT’s which stands for emergency medical technicians or the ambulance personnel first arrived, and do you have recollection of them waking you up? What’s the first thing you remember? Just them at the window or at the door. Okay. And this is your testimony or your recollection that your vehicle, at that point, the engine is actually running? Yes. Is it possible that it wasn’t running at the time? think it was running. Further down on page 92: So you’re saying that actually they tell you to turn off the car? You stick the your foot on the clutch and put it into gear, first gear, would [sic] guess? Usually first gear is the one stick it in. That’s the natural to do; right? Yeah. Put it into first gear, and then what did you do? Well, usually I’d be shutting it off and then putting into gear would be what would have done. Now, in answer to “what would have done”, counsel for the Crown wanted to pin that down to actually not “what you might have done” or but what did you do, so she goes on at page 94: Okay. So, if I’ve got you correct, if could just summarize here your vehicle was parked at this location. It’s running. You used, manually used your foot to depress the clutch; is that right? And there was no audible response to that so she goes on: Maybe I’ll just get you to at each point your vehicle is parked and it’s running is your testimony? Yeah. You use your hands to turn off the ignition; is that correct? Yes. At some point you might have turned the ignition back on with your hands; is that correct? Correct. At some point you would have depressed the clutch with your foot, with your left foot; is that correct? Correct. At some point you may have put it into first gear and released the clutch; is that correct? Yes. At some point you engaged in the emergency brake, you think you might have? Yes. Well, he’s not too sure, but he says he might [sic] done this, but then we have the evidence of the police officer, Constable Faber, who testified that he found the key in the ignition at the “on” position, not in the accessories position of the vehicle, but on the “on” position. On the basis of the foregoing, cannot help but conclude that the accused did, in fact, exercise care and control of his motor vehicle subsequently to being discovered behind the wheel thereof. The accused is found guilty of count two of the Information. (Transcript of proceedings of decision and sentencing, Volume II, at pp. 151-56) [8] Counsel for the accused advanced spirited argument that the evidence outlined by the learned judge did not justify the conclusion that the Crown had established proof of “care and control” beyond reasonable doubt. For example, he attacked the evidence of the two ambulance attendants that the accused sought to start the vehicle after they woke him up. He submitted first that the ignition key was not on the steering column but next to it on the dash of the vehicle. As result, so he argued, the attendants were mistaken about his wanting to start the vehicle. He also contends that the vehicle had standard transmission and that the appellant, if he was attempting to start the vehicle as the attendants claimed, would have to depress the clutch with his left foot and there was no evidence that he had done so. [9] It is clear from the learned trial judge’s acceptance of the evidence of the ambulance attendants and that of the police officer who came along later, that he rejected the theory the appellant’s counsel advanced. He was perfectly entitled to do so. In my view, the location of the ignition key was not relevant, given the fact it was located somewhere on the right side of the steering wheel. The appellant had much different story. For example, he thought the vehicle was running when he woke up but the learned trial judge, even though he appreciated the candid evidence he gave, clearly understood that the appellant’s memory of the events was far from clear given the level of his intoxication. He clearly accepted the evidence of the ambulance attendants and the police officer over the accused’s version of what took place. [10] In my opinion, the learned trial judge was entitled to accept and rely on the evidence of the Crown witnesses to support the conviction. [11] Accordingly it must stand and this appeal is dismissed.
An appeal of a conviction for having the care or control of a motor vehicle after consuming in excess of 80 milligrams of alcohol in 100 millilitres of blood contrary to s.253(b) and s.255(1) of the Criminal Code. Although the trial judge concluded the appellant rebutted the presumption in s.258(1)(where it is proven that an accused occupies the seat normally occupied by the operator of the vehicle, it is presumed he is in care and control unless he can establish that he did not occupy the seat for the purpose of setting the vehicle in motion), the appellant was found to be in de facto control. HELD: The appeal was dismissed. It was clear from the trial judge's acceptance of the evidence of the two paramedics who had noted the car parked in an unusual place and police officer who came along later, that he rejected the theory advanced by the appellant's counsel. The location of the ignition key was not relevant. The appellant's memory of the events was far from clear given the level of his intoxication. The trial judge was entitled to accept and rely on the evidence of the Crown witnesses.