2003 SKQB 229 Q.B.C.A. A.D. 2003 No. J.C.H. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF HUMBOLDT BETWEEN: AUSTIN E. LAYBOURNE and HER MAJESTY THE QUEEN RESPONDENT John C. Will for the appellant Judy L. Halyk for the Crown JUDGMENT KLEBUC J. May 15, 2003 [1] On December 2, 2002, the Honourable D.M. Ebert, a judge of the Provincial Court of Saskatchewan, convicted the appellant (the accused) of the following offence:. . . [that] on or about the 26th day of May of the year 2002 at Watson in the Province of Saskatchewan, he did while his ability to operate a motor vehicle was impaired by alcohol or a drug, did have the care or control of a motor vehicle, contrary to Sections 255 and 253 of the Criminal Code. [2] The appellant appealed his conviction on following grounds:a) The learned trial Judge misdirected herself in finding, if she did so find, that the [sic] there was sufficient evidence beyond a reasonable doubt that the Appellant’s ability to operate a motor vehicle was impaired by alcohol or a drug;b) The learned trial Judge drew an incorrect inference from the facts at trial, in finding that the Appellant’s ability to operate a motor vehicle was impaired by alcohol or a drug;c) The learned trial Judge failed to give a correct legal effect to the facts that she found, including, inter alia, the lack of evidence or indicia of impairment of the Appellant, at the material time that the Appellant was found to have care or control of a motor vehicle. JUDGMENT AT TRIAL [3] The learned trial judge delivered comprehensive reasons for judgment wherein she reviewed the applicable law and applied it to the facts as she had found them. Of particular relevance are the following provisions of her reasons for judgment: This Court is of the view that although this may be the basis for an argument once the vehicle was indeed turned off and the keys removed, clearly am satisfied, as have indicated, on the evidence, that the accused’s condition did not change for the period that he was in the driver’s seat and if impairment is indeed proven, which is the next issue will deal with, then it applies equally to when he was first observed in the vehicle as to later observed in the vehicle. Clearly impairment of ability to drive is an issue of fact to be found on all the evidence before the Court and must satisfy the Court beyond reasonable doubt. Having carefully reviewed all of the evidence before the Court relating to each of the factors enumerated in the Landis [sic] case, and although any one of them in isolation may not be sufficient to meet the onus, when consider the evidence in its totality and all of the factors, can only conclude that the ability of Mr. Laybourne to operate motor vehicle was impaired by alcohol, that impairment in my view was to the point where he had stopped inexplicably his vehicle in the middle of an intersection in the way of traffic, in drive and running, with his foot on the brake while sleeping soundly. His ability to make appropriate decisions with respect to driving was clearly impaired. There is no other explanation offered for this inappropriate behaviour. have concluded then that the Crown has proven beyond reasonable doubt that the degree of impairment here was sufficient to meet the Stellato test and have found that Mr. Laybourne was in care or control of the motor vehicle at the time in question, therefore, find him guilty as charged. MATERIAL FINDINGS OF FACT [4] On May 26, 2002, between 7:10 a.m. and 7:15 a.m., Carol Sommer was operating motor vehicle in westerly direction along Fourth Avenue Northwest in Watson, Saskatchewan. At the intersection of Fourth Avenue and Main Street she came upon stationary vehicle (“the appellant’s vehicle”) situated in the southbound lane of Main Street with the front portion thereof protruding into the intersection of the aforementioned roadways and interfering with westbound traffic along Fourth Avenue. Ms. Sommer “pulled around” the appellant’s vehicle, and while doing so, noted that its engine was running, its lights were on, and that someone occupied its driver’s seat. Out of concern for the occupant, she stopped her vehicle, opened the driver’s door of the appellant’s vehicle and found the appellant sleeping in its driver’s seat with his head propped up on his right hand. She further observed that the appellant’s right foot was on his vehicle’s brake, the vehicle was in gear, the vehicle’s keys were in its ignition, and the appellant had no shirt on. She responded by shutting off the vehicle’s engine and placing its transmission in park. She made no assessment of whether the appellant’s ability to operate motor vehicle was impaired by alcohol. Immediately thereafter, Ms. Sommer returned to her work place, contacted member of the RCMP, and then phoned Murray Brothers and asked that he remove the ignition keys from the appellant’s vehicle. [5] Mr. Brothers resides near the intersection of the aforementioned streets and the appellant’s vehicle was visible from his home. At Ms. Sommer’s request he removed the keys from the appellant’s vehicle at approximately 7:55 a.m. While removing the keys, he observed the appellant asleep in the position described by Ms. Sommer with an open bottle of beer between his legs. Thereafter, he returned to his home and awaited the arrival of police officer. While waiting for police officer to arrive, Mr. Brothers observed on several occasions that the appellant remained asleep in his vehicle. [6] Constable Zwarych, member of the RCMP, arrived at the appellant’s vehicle at 8:15 a.m. and found the appellant asleep in the position observed by Ms. Sommer and Mr. Brothers and with bottle of beer between his legs. After awakening the appellant, he observed that the appellant exhibited multiple signs of impairment by alcohol and arrested him for the offence for which he was convicted. [7] The appellant’s submissions may be distilled to the following. First, while he may have had care and control of his motor vehicle at the time he was observed by Ms. Sommer, there is no evidence of any impairment of his ability to operate motor vehicle during such period (“time frame No. 1”). Second, at the time Constable Zwarych observed signs of impairment of the appellant’s ability to operate motor vehicle (“time frame No. 2”), the appellant was not in care and control of the motor vehicle because Mr. Brothers rendered it inoperable by removing its keys. In the result, the appellant argues that the conviction must be set aside in the absence of evidence proving the coexistence of impairment and care and control during either time frame No. or time frame No. 2. [8] In response, the Crown submitted that essential elements of the offence charged were proven to exist during time frame No. by means of Ms. Sommer’s observance of the appellant sleeping in the driver seat of his vehicle with its engine running and the observations of Mr. Brothers and Constable Zwarych regarding multiple signs of impairment by alcohol exhibited by the appellant during time frame No. 2. The Crown counsel further posited that the trial judge was entitled to and did correctly infer that the appellant was impaired during time frame No. based on the evidence gleaned during time frame No. 2. [9] Counsel’s submissions give rise to following questions: 1. Does the evidence support the trial judge’s findings regarding the element of care and control and the element of impairment? 2. Did the trial judge err by drawing an inference that the appellant’s ability to operate motor vehicle during frame No. was impaired by alcohol based on evidence gleaned during time frame No. 2? [10] With respect to the first question, I am satisfied that the trial judge’s findings of fact concerning the essential elements of care and control and impairment by alcohol are supported by the evidence. Direct evidence confirms that the appellant had care and control of the subject motor vehicle during time frame No. 1. In addition, to the extent the Crown relied on the presumption afforded by s. 258 of the Criminal Code, the rebuttal evidence led by the appellant failed to rebut the same. That evidence consisted of the testimony of his three friends whose evidence related to the appellant having abstained from consuming alcoholic beverages in their presence and not to whether he had care and control of his vehicle during time frame No. 1. [11] I am further satisfied that the trial judge properly applied the law outlined R. v. Shuparski, 2003 SKCA 22 (CanLII), [2003] S.J. No. 147 (C.A.) and the authorities cited therein when determining that the appellant had care and control of the vehicle. [12] With respect to the issue of impairment, the trial judge correctly applied R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), and the tests and observations outlined in R. v. Landes (1997), 1997 CanLII 11314 (SK QB), 161 Sask. R. 305 (Q.B.), and considered R. v. Hall (1994), 1994 CanLII 4630 (SK CA), 125 Sask. R. 62 (C.A.), when concluding that the appellant’s ability to operate motor vehicle was impaired by alcohol during time frame No. 2. The remaining question then is whether the trial judge erred by drawing the aforementioned inference regarding time frame No. 1. [13] The law pertaining to circumstantial evidence and inferences to be drawn therefrom is well established. In R. v. Burdett (1820), B. Ald. 95 at pp. 161-2, 106 E.R. 873, Abbott C.J. articulated the basis on which trier of fact may draw an inference: In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded, either of explanation or contradiction. [No person is to be required to explain or contradict, until enough has been proved to warrant reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction. .can human reason do otherwise than adopt the conclusion to which the proof tends?] The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected; and it is one of the peculiar advantages of our jurisprudence, that the conclusion is to be drawn by the unanimous judgment and conscience of twelve men, conversant with the affairs and business of life, and who know that, where reasonable doubt is entertained, it is their duty to acquit. [14] While the statement of Abbott C.J. reflects the current state of the law governing circumstantial evidence, it remains subject to the rule in Hodge’s Case (1838), 1838 CanLII (FOREP), 168 E.R. 1136. This rule does not apply in the instant case for there is some direct evidence concerning the appellant’s ability to operate motor vehicle during time frame No. 1. See R. v. Comba, 1938 CanLII (SCC), [1938] S.C.R. 396, D.L.R. 719. [15] In my opinion the inference made by the trial judge is one that a properly instructed jury could have arrived at on the facts in the instant case and therefore should not be interfered with. See United States of America v. Shephard, 1976 CanLII (SCC), [1977] S.C.R. 1067; and R. v. Mezzo, 1986 CanLII 16 (SCC), [1986] S.C.R. 802. [16] In summary, the trial judge made no palpable or overriding error in her assessment of the evidence, or her interpretation of the law or her application of the law to the evidence. The appeal therefore is dismissed.
An appeal of conviction for operating a motor vehicle while impaired by alcohol (Criminal Code s.255 and s.253) on the grounds of misdirection in finding there was sufficient evidence beyond a reasonable doubt as to impairment; an incorrect inference and failure to give correct legal effect to the facts as found including the lack of evidence of impairment at the material time while he was in care or control of the vehicle. HELD: The appeal was dismissed. 1)There was no palpable or overriding error in the assessment of the evidence or in the interpretation or application of the law to the evidence. Findings of fact concerning the essential elements of care and control and impairment were supported by the evidence. The law outlined Shuparski and authorities cited within were properly applied when determining the appellant had care and control.  2)Stellato was correctly applied along with the tests and observations outlined in Landes and Hall in concluding his ability to operate the vehicle was impaired by alcohol. 3)While Burdett reflects the current state of the law governing circumstantial evidence, it remains subject to the rule in Hodge's case (1838). However this rule does not apply here because there was some direct evidence concerning his ability to operate the vehicle during the first time frame (R.v.Comba). A properly instructed jury could have arrived at the same inference on the facts as found.