IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. LeGrow, 2004 NSPC 5
Date: 20040123
Docket: 1295625
Registry: Annapolis Royal
HER MAJESTY THE QUEEN
-and-
WILLIAM J. LEGROW
_________________________________________
D E C I S I O N
____________________________________________________
Revised judgement: The text of the decision has been corrected according to the erratum released February 9, 2004.
Judge: The Honourable Judge Jean-Louis Batiot, J.P.C.
Date of Decision: January 23rd, 2004
Place Heard: Annapolis Royal, Nova Scotia
Charge: “ ... have the care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol, contrary to Section 253(a) of the Criminal Code.”
Counsel: R. Michie, for the Crown
J. Pink, Q.C., for the Defence
1. I am indebted to Counsel for their arguments. It is common ground that at 10:00 p.m. on April 4th, 2003 Constable Johnson found the accused, impaired, in the driver’s seat, behind the steering wheel. His truck, motor running, was parked on the shoulder of highway 101 at exit 29 in Digby County, Nova Scotia. The seat may have been partly reclined to the officer’s recollection, fully reclined, in the accused’s testimony.
2. The Criminal Code of Canada R.S.C. 1985, CHAP. C-46 provides a short cut for the prosecution, a presumption of care or control, when the accused is in the driver’s seat. The essential question remains, whether, while impaired by alcohol or drug, the accused was in care or control of the motor vehicle, as defined in the jurisprudence.
Presumption
3. The relevant part of s. 258. (1) (a) provides:
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 ... unless the accused establishes that the accused did not occupy that seat ... for the purpose of setting the vehicle ... in motion.
4. Whether the seat is reclined manually or electrically - there is no evidence of this fact - it can be argued, as the Defendant does, that, reclined past the position normally used when driving, the driver is not in the position ordinarily occupied by the driver, since a driver must, to operate the motor vehicle, be able to see outside the vehicle. Care or control, thus, has a physical as well as mental element.
5. In their ordinary meanings, the words care: [c]harge; oversight with a view to protection, preservation, or guidance (The Shorter Oxford English Dictionary, 3rd Ed., Clarendon Press, Oxford, p. 285, item 4), and control, [t]he fact of controlling, or of checking and directing action; domination, command, sway (idem, at p. 416), would describe simply having charge of, or domination over, a motor vehicle. But then the criminal law would be casting too wide a net: potentially, any vehicle owner, or any one in possession of a motor vehicle, their ability impaired by alcohol or a drug, could be charged, even if the vehicle was parked in a driveway, or a garage, if, for instance, that person reached in to retrieve an object. To more precisely define the prohibited act subjected to criminal sanctions, the jurisprudence introduced an additional concept: must be present is the risk of danger, by putting the vehicle in motion, or in some other way (R. v. Wren (2000), 144 C.C.C. (3rd) 374 (Ont. C.A.), leave to appeal refused (2000), 147 C.C.C. (3rd) vi (S.C.C.)), intentionally (R. v. Toews (1985), 21 C.C.C. (3d) 24 (S.C.C.), or unintentionally (R. v. Ford (1982), 65 C.C.C. (2d) 392 (S.C.C.).
6. S. 258 thus presumes that risk, that intention, once it is established the accused is in that position, since very few steps are required to put the vehicle in motion, with the attendant possible dangers. An intention to operate is not a prerequisite of the charge (Ford, supra, at p. 399).
7. Whether the back of the seat can be raised quickly or not, the driver, in a reclined position, would still be within easy reach of all operating controls of the vehicle, more particularly the brake and accelerator pedals, as well as the ignition and the gear shift, and the clutch pedal for those vehicles equipped with a manual transmission. Indeed the risk may be greater with an accused in the reclined position, through carelessness or inattention. The presumption of s. 258 of the Criminal Code applies.
8. The Defence must rebut such presumption by establishing, on the balance of probabilities, that it was not for the purpose of setting the vehicle ... in motion (R. v. Appleby, [1972] S.C.R. 303).
Rebuttal
9. Mr. LeGrow, owner/operator of a marine towing service, was in his office in Dartmouth at about twelve noon on April 4th, 2003. He had sent a smaller tug, with a captain and Colin Campbell, his engineer, to Yarmouth earlier, in order to capture, if possible, a window of opportunity, later that week or the next week to cross the Bay of Fundy and tow a barge. He had assigned another gentleman to go and retrieve the crew in Yarmouth; at the last minute, the plan had to be changed; Mr. LeGrow decided to go. He left at about 12:30 P.M. – an early departure, as the tug was not expected in port till early evening – in his Ford truck (F350), filled up at the Ultramar station on Windmill Road and proceeded towards highway 101, to Yarmouth.
10. He encountered a detour by Annapolis Royal - work being done on the 101 highway - and thought this an opportunity to visit an old friend - name unknown - in Annapolis Royal. That friend being out of town, he decided to go and visit Paulette Brown, Manager, Annapolis Royal Inn who, through business, had become a fairly close friend (his company does the diving services for Annapolis Hydro, so his company uses that Inn). He arrived there at about three or three thirty, spoke with her, felt tired, asked for a room to rest, tried to sleep; he could not, having so much on his mind. Ten or fifteen minutes later, he went back to see Ms. Brown who invited him to her apartment, to socialize: she offered him one beer; about three quarters of an hour later, she offered him another; they talked.
11. He left between five forty five and six p.m.; telephoned, from his truck, Colin Campbell in the tug and advised him to keep in contact. He purchased at the Annapolis Royal liquor store two one and a half ounce shot bottles of Smirnoff Vodka, he says for Colin Campbell. He placed them in the glove compartment, and set off for Yarmouth. It was about six p.m.
12. By exit 29, on highway 101, near Comeauville, Digby County, N.S. he became tired, felt, again, he had to sleep. He stopped, parked his vehicle very close to a guardrail, the driver’s side wheels partly on the pavement. He stopped the engine. He says he abandoned care or control of the vehicle by throwing the keys under the seat, and did not regain it. He made arrangements, by telephone, to be picked up by Colin Campbell later that night.
13. His truck and him, in the driver’s seat, asleep, were found by the police officers, at about 10:00 P.M. that night.
Jurisprudence
14. Justice Hill, in R. v. Hannemann, [2001] O.J. 1686; 17 M.V.R. (4th) 151; 43 C.R. (5th) 168 (Ont. S.C.), at para 51, having reviewed several Appeal decisions, from 1986 to 2000, finding an accused guilty of care or control in such a situation, concludes:
[t]urning on the ignition amounts to a substantial act involving a vehicle’s fittings or equipment - conduct almost always characterized as an act of care or control.
Most people would agree with that proposition: by this one act, one demonstrably exercises exclusive control of the vehicle; the risk of putting it in motion deliberately or inadvertently is very high, since very little needs to be done to cause the vehicle to move. The rebuttal, therefore, rests solely on the intention, and volition, of the accused, whose faculties are impaired by alcohol, as well as his or her knowledge of the mechanical state of the vehicle, or of its position, such as to show, for instance the physical impossibility to set it in motion.
15. In Hannemann, supra, the accused was found at trial to have rebutted the presumption. His evidence clearly shows he was using his vehicle as a bedroom, an October night, in Toronto. He had been unable to obtain a hotel room. He planned to spend the night in his vehicle, and made arrangement for a colleague to pick him up the next morning for a business meeting. He removed his socks and unhitched his pants. He was found in the driver’s seat, seat belt secured, and parking brake on; the motor was running, to get heat.
16. Similarly, in R. v. Decker, [2002] NFCA 9; 24 M.V.R. (4TH) 26 (Nfld C.A.), the accused was found to have used his truck as a bedroom: he had been unable to awake anyone at the place he usually stayed, and needed shelter. He used a remote starter to start his vehicle, which shut down the engine after 15 minutes; he had engaged the emergency brake, and did not turn the ignition on, thereby probably limiting, or eliminating, an accidental movement of the vehicle (the evidence is not clear on that point).
17. In R v. Bishop, 2002 BCPC 6, the trial judge accepted the explanation of the accused’s evidence, thereby rebutting the presumption of care or control. He was found asleep in the driver’s seat, motor running, automatic transmission in “Park”, parking brake on, and the radio playing. He had drank excessively the previous night, after an argument with his wife; he did not wish to face her, nor did he have enough money for a motel room. He decided to sleep till next morning as he had nowhere to go (para 3). He turned the motor on later during the night, to get heat, but fell asleep again.
18. In both R. v. Ducai, 2002 CarswellOnt 1224, and R. v. Parks 2003 NSPC 021, also cited, the motor was not running; in the former, the vehicle was mechanically inoperable; in the latter, the truck had been parked for sometime in a parking lot.
Findings
19. According to Mr. LeGrow, Mr. Campbell, the engineer, called him at about 7 p.m. when Mr. LeGrow was pulling or stopping at exit 29, highway 101, Digby County, N.S.. Mr. LeGrow advised Mr. Campbell then that he could go no further, he had pulled over, and Colin Campbell was to call at nine thirty, ten o’clock, once everything was secured on the tug, and, with the captain, to come by taxi, to pick him up. He should call him again on the hands-free phone in his truck so that he could give them his exact location.
20. According to Mr. Campbell there were three calls between Mr. LeGrow and Mr. Campbell that day: the first one in the morning, to arrange the pick up; the second with Mr. LeGrow – this is acknowledged – when the latter told him that he would pick them up, since the original arrangements had to be changed; the third, at about 6 p.m., when Mr. LeGrow called advising that he would pull over and that Mr. LeGrow would call him back. He had time to secure the tug, have a shower, go for dinner and then came back to the tug waiting for the telephone call. It never came.
21. There are thus discrepancies in the two versions, the times the calls were made, and by whom. Mistakes do happen of course; recollections are faulty, particularly with the passage of time. But these discussions were central for the defence. The lack of precision affects adversely the credibility of the witnesses, as to whether such agreement was in place on the night of April 4th, 2003.
22. An interesting bit of evidence from Mr. LeGrow: when he first stopped at exit 29 he was tired. He says the two beers that he had imbibed earlier had no effect whatsoever on him. He decided to park, put the parking brake on, recline and go to sleep, or attempt to do so. At that time he says he threw the keys under the seat and abandoned care or control of the truck; yet, at this stage, from his own evidence, there was no impairment whatsoever. It is only some half hour later, not able to sleep, he says he took sleeping pills, prescribed to him given his difficulties to sleep as a result of the death of his father in law at his home last Christmas (it is not clear whether it was Christmas 2002 or 2003), and the two shots of vodka intended for Colin Campbell.
23. Later that night – perhaps shortly after 09:30 P.M. – the accused awoke, was cold, retrieved the keys and started the engine for warmth. No calls were either made nor received. He had operated some of the equipment on his truck, which greatly increase the risk of putting it in motion.
24. The facts in the case at bar are quite unlike those in Toews, supra, where the vehicle in which the accused, wrapped in a sleeping bag, laying across the front seats, his head on the passenger side, was found on private property.
25. I do not accept this evidence. At best it is an afterthought; at worst, an element added at trial, knowing the importance of this fact. It is not credible. The Defendant has not rebutted the presumption that, on that night, he was in care or control of his truck and was still on the original trip, to retrieve the tug crew in Yarmouth
Impaired care or control
26. According to the officers Mr. LeGrow was, when arrested, talkative, argumentative, unsettled. He did tell them he had no intention to drive, but there was no explanation as to other arrangements. He dominated the conversation. Observed by Constable Brooks at one point, after several refusals or acceptances to take the breathalyser test, one of his expressions was: to take the test was “going to fry me”, thus indicating quite clearly his understanding of the predicament in which he found himself, and explaining his numerous arguments to avoid the charge, as his license is very important to him. At the same time, in fairness, it may be he simply believed that to be found in the vehicle while impaired would automatically result in a conviction should he be over the legal limit, forgetting or putting aside the intricacies of legal test of care or control.
27. Clearly, the accused’s state of impairment was pronounced, and well within the range, described in R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont.C.A.), affd [1994] 2 S.C.R. 478n, justifying a finding of culpability.
28. The information charges him with illegal impairment by alcohol. It is substantiated by the evidence of the officers, who detected a strong smell of alcohol from his breath. There is also evidence that he had taken sleeping pills, which, when taken, were very effective to put him to sleep, but there is no evidence these pills, or drugs, were the cause, in any way, of his impairment.
29. The Crown has proven its case charged beyond a reasonable doubt, and I find the accused guilty as charged.
Dated this 27th day of January, 2004 at Annapolis Royal, Nova Scotia.
___________________________________
Jean-Louis Batiot, J.P.C.