IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R v. Mullen, 2012 NSPC 66
Date: 2012/09/17
Docket: Docket Number 2372695, 2372696
Registry: Halifax
Her Majesty the Queen
v.
Kenneth Charles Mullen
Judge: The Honourable Judge Marc C. Chisholm
Heard: September 17, 2012 in Halifax, Nova Scotia
Charge: CC 253(1)(a) and 253(1)(b)
Counsel: Tim O’Leary, for the Crown
Kenneth Mullen, self represented
By the Court:
[1] The accused is charged that he on or about the 25th day of September, 2011 at, or near Halifax, Nova Scotia, did have the care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or drug, contrary to Section 253(1)(a) of the Criminal Code; AND FURTHER that he at the same time and place aforesaid, did unlawfully have the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to Section 253(1)(b) of the Criminal Code.
Background
[2] The accused entered pleas of not guilty. The accused was not represented by counsel. At trial the accused did not challenge any of the crown’s assertions other than that he was in care or control of his motor vehicle at the relevant time. The accused admitted that he was seated in the driver’s seat of his motor vehicle which was parked on Argyle Street in downtown Halifax at 3:50 am on September 25, 2011. The key to the vehicle was in the ignition. The key had been turned to activate the vehicle accessories. The radio was on. The engine was not running. The accused gave evidence that the vehicle had mechanical problems and he believed that he wasn’t able to drive it, at least until certain repairs were done, and he didn’t have the tools and supplies on hand to do those repairs. The accused testified that he didn’t intend to drive the vehicle and had made arrangements to travel home with a friend. The accused’s friend gave evidence that he had agreed to drive the accused home. The sole issue was whether the crown had proven beyond a reasonable doubt that the accused was in care or control of a motor vehicle at 3:50 am, September 25, 2011.
The Evidence
The Crown Evidence
[3] The accused did not dispute any of the evidence of police witnesses called by the crown. I accept the evidence of the police witnesses Sgt. Chediac, Cst. Marriott, Cst. Boone and Cst. Cook. I find that Kenneth Mullen was seated in the driver’s seat of his motor vehicle at 3:50 am on September 25, 2011. The vehicle was legally parked on Argyle Street near a number of bars, including “Cheers”. The accused’s vehicle was a white Ford Mustang convertible. The roof was down. The key was in the ignition. The key was turned to activate the vehicle’s accessories. The radio was on. The engine was not running. The police officer did not recall whether the accused was wearing his seat belt. The police did not observe fluid on the ground near the car. There was a Tim Horton’s cup in the centre console which contained a brown liquid. There was a two litre jug of water in the vehicle and a second jug which was empty or nearly empty.
[4] A citizen told Cst. Marriott that the accused was “pickled”. Cst. Marriott went to the vehicle and spoke with the accused.
[5] Upon request, the accused, without difficulty, produced a valid Nova Scotia driver’s licence and other papers for the vehicle. The accused was noted to have bloodshot eyes and large dilated pupils.
[6] The accused was given a lawful roadside screening demand. After three unsuccessful attempts, during which the accused did not blow continuously, at 4:08 am the accused provided a proper sample which resulted in a ‘fail’ reading.
[7] The accused was arrested, given a breath demand, advised of his rights, and transported to the police station arriving at 4:37 am. The police station is a short distance from Argyle Street.
[8] At the scene one of the officers used the key obtained from Mr. Mullen to start the engine of his motor vehicle. The officer put the roof of the vehicle up and secured the vehicle. In doing so he detected no mechanic problem. There was no steam observed coming from the engine. The engine was on for less than 60 seconds.
[9] At the police station, after speaking to counsel, the accused provided samples of his breath. The test results, according to Exhibit #2, a Certificate of a Qualified Technician were 210 mg% at 04:56 hours and 210 mg% at 05:26 hours. The accused was served a notice of the crown’s intention to introduce the certificate in evidence and an exact copy of the certificate.
The Defence Evidence
[10] The accused testified that on the late evening of September 24, 2011, he drove his vehicle from his home in Fairview to downtown Halifax to meet a friend, Brian Weston, for a drink or two. His friend was due at work at midnight. They were to meet at “Cheers” bar on Argyle Street around 10:30-11:00 pm. The accused said he was only planning to stay downtown for about an hour. He was planning to drive his car home.
[11] En route downtown he said his car overheated. This began when he was about half-way there. He continued driving without stopping to deal with the problem. He testified that he’d had trouble before with the car overheating. He had been advised to add water and an additive to the radiator when it over-heated, which he’d done and it solved the problem, at least temporarily. However, on this occasion, he said that when he parked on Argyle Street he could tell the problem was more severe. He said that all the fluid and coolant had run out the exhaust pipe and that had never happened before. He surmised it was a cracked block or head gasket problem or something equally serious.
[12] Mr. Mullen was not accepted by the court as an expert in the mechanical operation of a motor vehicle. His evidence regarding his belief about the condition of his vehicle was considered relevant to the issue of his intention, to drive or not to drive the car.
[13] Although he testified that he thought the car had a very serious problem he said that he hoped he could fix the problem himself to avoid having the car towed.
[14] The accused did not go home when his friend left for work shortly before midnight. He changed his mind and decided to stay downtown. He testified that his friend offered to come and get him, during his work break, and drive him home. He testified that they agreed to meet at the accused’s car around 4:00 am.
[15] The accused testified that he probably drank a total of 6 beers during the night, “roughly”. At the end of the night he testified that he had a buzz going. He knew he was under the influence. He agreed he wasn’t thinking as clearly as if he were sober.
[16] The accused testified that, before the police came to his car he’d been waiting there for 30-40 minutes. He testified that he got in his car and turned on the music to be comfortable while he waited for his friend.
[17] He admitted that he was seated in the driver’s seat when the police arrived but stated he did not intend to drive the car. It was his belief that he would’ve damaged the car if he tried to drive it home. He’d made other arrangements to get home.
[18] He testified that after his arrest and the provision of breath samples at the police station he called Brian Weston as Mr. Weston was getting off work at 7:30 am. They went downtown together in a taxi to his car. He testified that he brought restore - an additive recommended by staff at National Radiator.
[19] He testified that after making repairs Mr. Weston drove the car home and it was dry of fluids, again, when they got it home.
[20] He presented a video, taken by himself, showing his car running and fluid dripping from the exhaust pipe. He said that the video was made ‘probably within two days’ of his arrest.
[21] At the end of his evidence he added that in addition to the water and additive he needed a wrench to make the temporary repairs to his vehicle. The wrench was needed to loosen a bolt on the top of the engine to eliminate an airlock and ensure the water and additive went through the system. He said he’d done so in the past. He had water in his car when he drove downtown on September 24, 2011 but did not have a wrench.
[22] Brian Weston testified that on September 24, 2011, he met his friend, the accused, at Cheers for drinks. They met at around 11:00 pm. They didn’t stay long at Cheers. They went to another bar called Bubba Ray’s. Just before 12:00 he left for work. He hadn’t consumed any alcohol. He testified that the accused had a beer to drink at Cheers and ordered a beer at Bubba Ray’s.
[23] He understood from what the accused told him that the accused’s car was damaged and he wasn’t going to drive it home.
[24] He testified that he offered to come back downtown on his work break and pick up the accused and drive him home. They agreed to meet around 4:00 at the accused’s car. He testified that the accused told him that if he wasn’t there at 4:30 not to wait for him.
[25] He testified that he was late to pick up the accused, arriving at 4:25-4:30. He said that he saw the accused’s car. The car was locked. There was no sign of the accused so he left.
[26] Later that morning the accused called him. They went downtown to the accused’s car.
[27] He testified that they filled up the radiator with cold water that the accused had. He drove the accused’s car home. He did not mention an additive or a wrench.
[28] He testified that the car was really hot when they got to the accused’s home.
Assessment of Credibility and Findings of Fact
[29] The assessment of credibility is not a science. In making a determination of what evidence to accept, the court considers such factors as: the apparent logic of the evidence and its consistency with other evidence which the court accepts; the internal consistency of the evidence, i.e., whether the witness has changed their evidence; the demeanor of the witness, whether they were evasive or defensive; the witness’ ability to recall and the apparent reliability of their recollection; and whether the witness has any bias or reason to tell other then the complete truth.
[30] The court may accept some, all or none of a witness’ testimony.
[31] The assessment of credibility and finding of facts is inter-related with the burden on the crown to prove all the elements of the offence beyond a reasonable doubt (R.v. Lifchus, [1997] 3 SCR 320 and R v. W (D), [1991], 1 SCR 742).
[32] The evidence of Mr. Weston was unshaken on cross-examination, however, two aspects of his evidence raised some question in my mind: first, that the plan to pick up Mr. Mullen was so loose that Mr. Weston may have wasted his work breaks to drive downtown to get the accused only to find that he’d gone; and second, that Mr. Weston was just late enough that he missed arriving while the accused was present with the police - thereby missing the opportunity to confirm his presence to the police and the plan to drive Mr. Mullen home. Nevertheless, I found Mr. Weston’s evidence credible.
[33] The fact that Mr. Weston did not mention a wrench being used to fix the car was relevant to the courts’ assessment of Mr. Mullen’s evidence.
[34] Turning to Mr. Mullen’s evidence I accept the accused’s evidence that his car had a tendency to overheat. The presence of the jug of water in his car and the defence video supported this conclusion.
[35] I accept his evidence that, in the past when the car overheated the adding of water or water and an additive allowed the car to be driven.
[36] The accused, at the very end of his evidence, added that he needed a wrench to effect temporary repairs to his vehicle. Previously in his evidence he spoke of adding water or water and an additive. On September 25, 2011 he had extra water in his car. So he kept water in the car in case he needed it but not a wrench which was needed to ensure the water flowed into the cooling system. That seemed illogical. Mr. Weston did not mention anything about the accused bringing a wrench to the car, or using a wrench when they made repairs. Consequently, the court had significant doubts as to the veracity of the accused’s evidence regarding the wrench. I do not accept his evidence that it was necessary to use a wrench to effect temporary repairs to his motor vehicle nor that he believed that it was necessary to do so.
[37] The accused’s evidence that his car had a more severe mechanical problem for the first time on the night he got arrested for drinking and driving seemed very coincidental but it may have been so. Nevertheless, Mr. Mullen testified that he hoped to be able to fix the problem himself to get the car home without having it towed, which he did, with the assistance of Mr. Weston, after being released by the police.
[38] Mr. Mullen testified that Mr. Weston was to come to get him around 4:00 am. Mr. Weston’s evidence, which I accepted, was that the accused told him that he wasn’t to wait for him if he wasn’t there, when Mr. Weston arrived to pick him up. I find that the accused’s plans for getting home and getting his car home that morning were somewhat unsettled.
[39] Mr. Mullen testified that he did not intend to drive his vehicle and he sat in his vehicle to wait for his friend to arrive. This evidence was supported by the evidence that he didn’t turn on the engine; that he may have been seated in his vehicle for as long as 30 minutes before the police attended; that he was listening to the radio; that he made arrangements for his friend Mr. Weston to drive him home; and that he had water available to put into the radiator and apparently hadn’t done so. This evidence persuaded the court that it was more likely than not that Mr. Mullen did not occupy the driver’s seat for the purpose of setting the vehicle in motion.
The Applicable Law
[40] The burden of proof rests upon the crown. The crown must prove each of the elements of the offences beyond a reasonable doubt (R.v. Starr, [2000] 2 S.C.R. 144).
The Elements of the Offence
[41]
The actus reus of the offence of having care or control of a motor vehicle while one’s ability to drive is the act of assumption of care or control when the voluntary consumption of alcohol has impaired the ability to drive. The mens rea for the crime is the intent to assume care or control after the voluntary consumption of alcohol (The Queen v. Toews (1985), 21 CCC (3d) 24 SCC).
[42] “Proof of the mental element of the offence under s. 253(1) does not require showing that the accused intended to drive the vehicle” ( Ford v. The Queen (1982), 65 CCC (2d) 392 (S.C.C.)).
[43] In Toews, supra, the Supreme Court of Canada stated:
...acts of care or control, short of driving, are acts which involve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous
[44] Section 258(1)(a) provides that:
where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;
[45] The interpretation and application of this test has resulted in an extensive body of jurisprudence across the country and in this province. Under the fundamental principle of stare decisis, trial judges of Nova Scotia are bound by appellate decisions of the Nova Scotia Supreme Court, the Nova Scotia Court of Appeal and the Supreme Court of Canada.
Nova Scotia Jurisprudence
[46] In R v. Hein (1990), 180 NSR (2d) 81 (NSCA), the facts were that the accused drove, with a friend, to a bar. They each testified that their intention was to take a taxi home. While waiting for a taxi to come they entered the motor vehicle to keep warm. The defendant was in the driver’s seat with the ignition switched on and the heater on.
[47] The trial judge found there was no risk of the defendant unintentionally setting the vehicle in motion and entered an acquittal. On appeal, the acquittal was set aside and a conviction entered. The court of appeal held that the trial judge erred in failing to consider the risk of the defendant, in her impaired state, changing her mind and deciding to drive, which the Court of Appeal concluded was a “real and substantial” danger.
[48] In R v. Miller, [1995] N.S.J. No. 28 (NSCA) Chipman, J.A. stated:
Although each case will depend on its own facts, the element of being in such control of the car as (sic) to be at risk of setting it in motion is the basis of the criminal liability. Here the respondent was in the driver’s seat behind the steering wheel. The keys were in the ignition. The engine was running. The respondent said that he “started to pull the emergency brake off” as the police arrived. In the face of this, the trial Judge’s finding of care and control was not unreasonable or unsupported by the evidence. It should not be disturbed. The legislation is aimed at the protection of the public. The respondent was, at the material time, at the controls of the vehicle and constituted an immediate danger to the public in the sense contemplated in the authorities
[49] In R. v. Lockerby, [1999] N.S.J. No. 349 (NSCA) Cromwell, J.A. stated:
The appellants own testimony at trial is, in my view, conclusive on this issue. He agreed in his testimony (set out above) that he was sitting in the driver’s seat, with the keys in the ignition and that he could have driven the car if he had wanted to. In my view when a person with more than the legal limit of alcohol in his or her blood has the present ability to make the car respond to his or her wishes, there is a risk that the car may be placed in motion, even where the person’s intentions are not to do so
[50] Cromwell, J.A. went on to state:
A person who has the present ability to operate the vehicle who has its superintendence or management, is in control of it
[51] And further:
Mr. Lockerby was at the controls of the vehicle and admitted using them. He had possession and superintendence of the vehicle; he was in charge of it. Although it was not his intention to set the vehicle in motion, he was in the position to make the vehicle do what he wanted and used the ignition key, the clutch and the gear shift to carry out his purpose. In both the everyday sense of the word and as the word is used in s. 253(b), Mr. Lockerby was in control of the vehicle
[52] In R. v. MacKay, [2003] N.S.J. No. 407 Williams, Prov. Ct. J. stated:
The leading authorities on “care or control” are R v. Toews (1985), 20 D.L.R. (4th) 758 (SCC), R v. Ford (1982), 65 CCC (2nd) 392 (SCC), R v. Hein, [1999] N.S.J. 421 (S.C.)., R v. Locherby, [1999] N.S.R. No. 349. Put succinctly, our courts have decided that when a person whose blood alcohol concentration exceeds the legal limit has the present ability to make a vehicle respond to that person’s wishes, there is always a risk that the vehicle may be placed in motion even though the person might not have entered it with the intention to do so
[53] In R v. Parks, [2003] NSJ No. 204 (Batiot, J.P.C.) the accused was found asleep in the driver’s seat of his truck with the keys in the ignition. He was parked in the lot of the nursing home waiting for his sister who worked there. An acquittal was entered. The trial judge found that the crown had failed to prove, beyond a reasonable doubt the element of risk of setting the vehicle in motion.
[54] In R v. Herrick, [2005] N.S.J. No. 524 A.E. (Crawford, Prov Ct. J.) the accused was found asleep, seated in the driver’s seat of a motor vehicle, the key to the vehicle was in the ignition, the engine was running. The vehicle was in a parking lot which was flat. The accused’s blood alcohol was 0.14. The accused testified that, after consuming alcohol, he tried unsuccessfully to call his son to come and get him. He went to the vehicle to wait to call his son again but fell asleep. He turned the vehicle on to keep warm. The trial judge found that the accused had rebutted the presumption of care or control in s. 258(1)(a) of the Criminal Code of Canada. The trial judge found that the risk of unintentionally setting the vehicle in motion was negligible. However, the trial judge found that the accused was in possession and superintendence of his vehicle and there was a real risk that when he awoke he might change his mind and decide to drive home himself. A conviction was entered.
[55] In R v. Smith, [2005] N.S.J. No. 307, 2005 NSSC 191, G.W. Warner, J., hearing a Summary Conviction Appeal stated:
[T]he assumption of care or control involves proof of three elements: (a) acts involving the use of the vehicle, its fittings or equipment, or a course of conduct associated with the vehicle; (b) an element of risk of setting the vehicle in motion whether intentionally or unintentionally; and (c) an element of dangerousness arising from the risk of setting the vehicle in motion
[56] And further at para 26:
Risk assessment should not involve conjecture (Shuparski) or speculation (Decker). It may be speculation or conjecture to conclude that every driver whose BAC exceeds 80, might change his or her mind; however, it would be wrong to preclude a trial court from assessing the risk of a change of intention, on the facts of the individual case, especially where it is accepted that one effect of the consumption of alcohol is the impairment of judgment
[57] Justice Warner’s decision did not refer to the decision in R v. MacKay.
[58] In R v. Legrow, [2007] NSJ No. 11 (NSSC) D.L. MacLellan, J. upheld a conviction entered by the Honourable Judge John Embree.
[59] The facts in Legrow were that Mr. Legrow was found behind the steering wheel of his truck with the engine running. The parking brake was on. Mr. Legrow’s blood alcohol was over .08. Mr. Legrow claimed that he had no intention to drive and was sleeping off the effects of drinking alcohol. He testified that the engine was on to allow his cell phone to re-charge while he slept.
[60] The trial judge found that the defence had rebutted the presumption in s. 258(1)(e), but, following the decision in Lockerby, found that there was a risk the accused, upon awakening would change his mind and decide to drive the vehicle and, therefore, the accused was in care or control of a motor vehicle.
[61] Justice MacLellan cited with approval the decision in R v. MacKay, supra.
[62] Justice MacLellan’s decision did not refer to the decision of Justice Warner in R v. Smith, supra.
[63] The Nova Scotia Court of Appeal upheld the decision of D. L. MacLellan, J., (2007), N.S.J. No. 258 (NSCA). In a brief judgement the Court of Appeal stated:
The appellant alleged that the trial judge misapprehended and misapplied the common law principles relating to care and control as set out in s. 253(b). Having reviewed the record and the decision under appeal and considered the argument of the appellant, we are unable to find that Justice MacLellan erred in law
[64] In R v. Kidson, [2007] N.S.J. No. 546 A.E. Crawford, Prov. Ct. J., considered the NSCA decision in Lockerby and Legrow and concluded that the risk of a change of intention to drive was a “relevant consideration in deciding whether or not an accused who had rebutted the presumption was nevertheless in care or control of his motor vehicle...”
[65] Following the decision in R. Smith she proceeded on the basis that she must make an assessment of risk of a change of intention to drive based upon the totality of the facts of the case.
[66] In R v. Ellis, [2008] N.S.J. No. 254 (NSSC) G. M. Warner, J. again dealt with the issue of care or control in “change of mind” situations.
[67] Justice Warner re-iterated his comments in R v. Smith and stated at para 16:
The other post-Lockerby appellate decisions state that mere presence of an impaired driver in the driver’s seat, with the present ability to change his or her mind and set the vehicle in motion, is not enough. A review of all the background circumstances to give context to the assessment of risk is a prerequisite; to speculate or conjecture that all impaired drivers could change their mind is not enough. The case-specific background must provide the reasons for a finding of care or control
[68] The list of appellate decisions referred to by Justice Warner did not include the decision of the Nova Scotia Court of Appeal in Legrow in 2007. Therefore, regrettably, I do not have the views of Justice Warner on that decision.
[69] In my view, the Nova Scotia jurisprudence on care or control is consistent in the interpretation of the elements of the test of care or control as stated in R v. Towes but arguably inconsistent on how the test is to be applied to the facts of a case.
[70] One line of authority (R v. Lockerby, R v. MacKay, R v. Herrick and R v. Legrow) appears to stand for the proposition stated by Williams, JPC in MacKay that proof of certain facts as stated therein will always lead to a finding of care or control. The other line of authority (R v. Smith, R v. Parks, R v. Ellis, R v. Kidson) stands for the proposition that no fact or facts are conclusive proof of care or control. The trial court must assess the totality of the facts, as found, including whether there has been proven to be a risk the accused would change his/her mind and decide to drive the car - which finding must be based on the facts of the case and not speculation.
[71] In my respectful view trial judges ought to interpret appellant decisions such that they are complementary whenever such an interpretation is reasonable. In my view the Smith/Ellis jurisprudence may be seen as complementary of the Lockerby line of cases, if they are interpreted not as creating a presumption of care or control upon proof of certain facts or directing trial courts to reach a conclusion on proof of certain facts, but rather, that proof of such facts as in Lockerby or MacKay or Legrow would justify the court drawing a reasonable common sense inference that there was a risk of the vehicle be set in motion, but, such a decision must be based on the totality of the facts.
[72] This was the approach taken in R v. MacKinnon, [2010] NSJ No. 198, T.K. Tax, PCJ.
[73] Although I am not bound by decisions of the Ontario Court of Appeal, that court recently considered this issue in R v. Smits, [2012] ONCA 524. At paragraph 60 the court stated:
the Crown must demonstrate a risk that an accused, while impaired, would change his or her mind and put the vehicle in motion. That risk must be based on more than speculation or conjecture. Saying that any person whose ability to operate a motor vehicle is impaired to any degree might change his or her mind is not sufficient. The trier of fact must examine the facts and determine if there is an evidentiary foundation that such risk of danger exists
[74] Watt’s Manual of Criminal Evidence (Toronto: Carswell, 2011), at p. 43 states:
Where evidence is circumstantial, it is critical to distinguish between inference and speculation. Inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found to otherwise established in the proceedings. There can be no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture
[75] The law is clear that the crown must prove the element of risk of setting the vehicle in motion beyond a reasonable doubt (R v. Smith, supra).
[76] In Ford and Toews the Supreme Court of Canada spoke of “a risk”.
[77] The courts in Nova Scotia have referred to the risk in various ways including “a real risk”, “not negligible”, and “possibility of risk”.
[78] In R v. Hein, in dismissing the appeal, the Nova Scotia Court of Appeal stated that, on the facts of that case, there was a “real and substantial” danger of the accused changing her mind and putting the vehicle in motion. Read in context, I conclude that this was as an assessment of the evidence in that case and not a statement by the Court of Appeal that the crown must prove that the risk is substantial in each case.
[79] The Ontario Court of Appeal dealt with this issue in R. V. Smits, supra at para 60 finding that the different modifiers used by trial judges did not change the test.
[80] Based upon the jurisprudence, I conclude that the crown must prove beyond a reasonable doubt a risk of the accused setting the vehicle in motion.
[81] An accused need not have started the engine to have assumed care of control (see: Saunders v. The Queen, [1967] 3 C.C.C. 278 (SCC); R v. Alatypo (1983), 4 CCC (3d) 514 (Ont. C.A.); R v. Hatfield (1997), 115 CCC (3d) 47 (Ont. CA); R v. George (1994), 90 CCC (3d) 502 (Nfld CA); R v. Diotte (1991), 28 M.V.R. (2d) 177 (N.B.C.A.); R v. Sinclair, [1990] B.C.J. No. 2744 (BCCA), R v. Smits, supra). The court must assess the totality of the facts in determining whether the crown has proven the element of care or control beyond a reasonable doubt.
Analysis and Conclusions
[82] Each of the elements of the offence under section 253(1)(b) other than care or control of a motor vehicle has been proven beyond a reasonable doubt.
[83] Care or control may be proven by the presumption in s. 258(1)(a) or without reliance on the presumption.
[84] The presumption in s. 258(1)(a) provides that:
“where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle...the accused shall be deemed to have had the care or control of the vehicle...”
[85] There was no dispute on the evidence and I find that the crown proved beyond a reasonable doubt that, at the relevant time of 3:50 am on September 25, 2011, the accused occupied the seat of a motor vehicle ordinarily occupied by the driver.
[86] Section 258(1)(a) provides that the accused may rebut the presumption of care or control if “[T]he accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle...in motion...”
[87] The defence must establish on the balance of probabilities that he did not occupy the driver’s seat for the purpose of setting the vehicle in motion (R. v. Whyte, [1988] 2 S.C.R. 3).
[88] The evidence relevant to the accused’s intention which the court accepted was: the accused’s evidence that he’d been waiting for some 30 minutes for his friend to come to drive him home; the accused’s evidence that he’d bought a coffee to drink while he waited; the police evidence that there was a Tim Horton’s cup with a brown liquid in the console; the evidence that the engine hadn’t been turned on; the evidence that the radio was on; the evidence that there was a two litre jug of water in the car which hadn’t been put in the radiator; the accused’s evidence that he sat in the car to be comfortable while he waited for his friend; and the evidence of Mr. Weston that he had agreed to drive the accused home. On the totality of the evidence I am persuaded that it was more likely than not that the accused did not intend to drive his motor vehicle when, at 3:50 am he occupied the driver’s seat thereof.
[89] I find that the defence has rebutted the presumption of care or control in s. 258(1)(a) of the Criminal Code.
[90] Has the crown proven defacto care or control of a motor vehicle at 3:50 am on September 25, 2011?
[91] If the defence position was, in part, that the court ought be left with a reasonable doubt as to whether the accused’s motor vehicle was operable, that is, capable of being put in motion so as to become dangerous, I find that no such doubt has been raised. Taking the defence evidence at it’s highest in terms of the mechanical difficulties of the motor vehicle, the evidence did not raise any doubt that the vehicle could be put in motion and become dangerous. That the vehicle’s motor may be damaged in the process is relevant to the accused’s intention and the issue of a risk of him changing his mind but does not raise any reasonable doubt regarding the vehicle being “operable”.
[92] The evidence does not establish any risk of the accused unintentionally setting the vehicle in motion. The vehicle was parked. The engine was not running.
[93] In assessing whether the crown has proven beyond a reasonable doubt a risk of the accused changing his mind and intentionally setting the vehicle in motion so as to become dangerous I have considered all of the evidence, which includes: The accused initially planned to drive his vehicle from his home to downtown Halifax and back again the night of September 24, 2011; The vehicle was owned by the accused; Because of prior problems with the vehicle overheating he brought with him a two litre jug of water; Half way to the downtown his car began to overheat yet he continued driving the car to his destination; After consuming 1-2 beer he changed his plan to return home around midnight. He stayed downtown and continued drinking; During the next 3-4 hours he consumed alcohol in such an amount that at 04:56 and 05:26 his blood alcohol was 210 mg %; He gave evidence that at 3:50 am he had a buzz going and was not thinking as clearly as if he’d been sober; On his evidence the accused intended to try to fix his vehicle so that he could get it to his home without needing to have it towed; The court did not accept the accused’s evidence that he did not have the supplies and tool necessary at the scene to get the vehicle temporarily repaired to enable him to get it to his home; The defence’s evidence of a plan for the accused to get a drive home with his friend was not a settled plan; The accused had the key to the car; The car was parked on a public street; The accused sat in the driver’s seat; The accused inserted the key to the car into the ignition; The accused turned the key to engage the vehicles’ accessories; The accused was playing the vehicle’s radio.
[94] On the totality of the evidence I am persuaded beyond a reasonable double that the accused performed such acts involving the use of the car, its fittings or equipment whereby he re-assumed management or superintendence of it and although the accused may have not intended to do so there was a risk that the accused may change his mind and decide to drive, if his friend didn’t arrive, or, if his friend did arrive and the accused, with his friend’s help, decided to try to temporarily fix the car and get it to his home.
[95] I find that the crown has proven beyond a reasonable doubt that the accused had care or control of his motor vehicle at 3:50 am on September 25, 2011.
[96] Having found that all other elements of the charge under s. 253(1)(b) have been proven beyond a reasonable doubt, I find the accused to have been proven guilty of the offence under s. 253(1)(b).
[97] A conviction is entered on the second count.
Judge Marc C. Chisholm
Judge of the Provincial Court of Nova Scotia