Court Information

Ontario Court of Justice (East Region)

Her Majesty the Queen v. Brenden Conquer

Before: Justice David M. Paciocco – Ottawa, ON

Decision - Released: March 23, 2015

Counsel:

• Mr. John Semenoff for the Crown
• Mr. D. Anber for Mr. Conquer

Decision

Paciocco J.

I. Introduction

[1] Brenden Conquer is charged with two alcohol driving offences relating to his alleged care and control of a motor vehicle on May 19, 2013. The Crown contends that Mr. Conquer was impaired, committing an offence contrary to section 253(1)(a), and that he had more than the legal limit of alcohol in his blood contrary to section 253(1)(b). Mr. Conquer acknowledged in his own testimony that he was too impaired to drive. The keystone issue in this case is therefore whether Mr. Conquer was in care and control.

[2] Events that led to the charge against Mr. Conquer began with a party he hosted in his apartment to celebrate the May long weekend. There is no doubt that Mr. Conquer drank hard. He testified in his own defence, in evidence I believe, that when his last guest left around 3:00 a.m., Mr. Conquer took his young dog out before putting him down for the night. Mr. Conquer expected to be outside only a few minutes and left the apartment door ajar, with his girlfriend asleep in their room. He was wearing pyjamas. While outside, Mr. Conquer bumped into a casual acquaintance from the building. That young man had a bottle of wine with him. The two walked, talked, and ultimately shared some of the wine at the tailgate of Mr. Conquer's truck. At some point it started to rain. Mr. Conquer invited the young man into his truck, along with the dog. It was cold so Mr. Conquer turned on his car and put the radio and heater on.

[3] Sometime later one or more residents of the building called the police because of noise, probably from Mr. Conquer's radio. At 5:42 a.m. Cst. Marcuccio responded. She saw Mr. Conquer's truck and heard the music. She exited her police vehicle and walked up. Mr. Conquer was slumped over the wheel, in the driver's seat with the dog beside him. Cst. Marcuccio called out loudly to him through a window that was at least partially opened. He did not respond. She could see a wine bottle in the centre console and a can of Busch beer. Mr. Conquer had a rolled up twenty dollar bill in his hand and residue on his lap and lower face. After being unsuccessful in rousing Mr. Conquer, Cst. Marcuccio opened the door and turned the vehicle off. She could smell alcohol. As she backed away Mr. Conquer fell out of the vehicle. She helped him up and had to steady him. Ultimately she arrested him and the investigation that followed led to the charges now before me.

II. Was Mr. Conquer in Care and Control

[4] The Supreme Court of Canada described the legal test for "care or control" of a motor vehicle in R. v. Boudreault 2012 SCC 56:

"[C]are or control" within the meaning of s.253(1) of the Criminal Code signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk as opposed to a remote possibility, of danger to persons or property.

[5] Since Mr. Conquer was in the driver's seat of his own vehicle, impaired, and the motor was running and the radio and likely the heater were on, the first two components of the test are not in issue. The question is whether Mr. Conquer's conduct relative to the vehicle was "in circumstances that create a realistic risk as opposed to a remote possibility, of danger to persons or property." Whether that is so is a question of fact to be decided by the trial judge in the circumstances of the case, not a question of law.

[6] The majority of the Court in R. v. Boudreault, supra identified four discrete risks of danger to persons or property that a trial judge is to consider. The first risk of danger exists where it can be found that the accused person intended to drive the motor vehicle that he was in or with at the time of his arrest. Even if there is no proper basis for a finding that the accused person intended to drive at the time, the Boudreault Court at para 42, identified three other risks that require consideration.

"First, an 'inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise a stationary or inoperable vehicle may endanger persons or property."

[7] This last form of risk is not material in this case. Mr. Conquer's vehicle was parked in the parking lot. There is no evidence before me that the vehicle presented an obstacle to traffic, or was sitting in a location that other drivers may not see. No-one was attempting to change a tire or push the vehicle. There was nothing of the kind. The three issues in this case relate to whether Mr. Conquer intended to drive, and if not, whether there was a realistic risk that Mr. Conquer would change his mind about that, or that the vehicle could pose a danger to persons or property by unintentionally being set in motion.

A. Did Mr. Conquer Intend to Drive?

[8] What, then, of the first risk, arising where the person connected to the vehicle intends to operate the motor vehicle? Because of the difficulty of establishing what is actually in the mind of an accused person who is not engaged in the relevant act – in this case the act of operation - section 258(1)(a) of the Criminal Code provides a shortcut for the Crown to assist in establishing this. If the Crown proves the basic fact that the accused occupied the seat ordinarily occupied by the person who operates the vehicle, a court is legally required to find that the accused had care or control "unless the accused establishes that the accused did not occupy the seat … for the purpose of setting the vehicle in motion…"

[9] The term "establishes" imposes a legal burden on the accused. This means that it is not enough for the accused to raise a reasonable doubt about whether they occupied the seat for the purpose of setting the vehicle in motion. As with all legal burdens imposed on accused persons, the standard required to meet that burden is on the balance of probabilities. Unless I am satisfied that Mr. Conquer more probably than not had no intention to drive the motor vehicle, I am to find that he did, and therefore conclude that he was in care or control.

[10] On the peculiar facts of this case this presumption has been rebutted by Mr. Conquer. I am persuaded entirely that Mr. Conquer had no intention to drive when occupying the motor vehicle. He was in his pyjamas, with his dog, in a car parked at his own building at 5:45 in the morning. His initial plan upon exiting his apartment was to give his dog a short walk and return and climb into bed with his girlfriend. The plan evolved into spending a short time in his vehicle sharing a drink with an acquaintance while staying dry before taking his dog back up to their apartment and going to sleep. Nothing changed other than that his return got delayed when he fell into a deep sleep, no doubt because of the liquor he had ingested. I am therefore finding that Mr. Conquer did not occupy the driver's seat for the purpose of setting the vehicle in motion.

B. Was there a Realistic Risk Mr. Conquer Would Change his Mind?

[11] This does not end the inquiry relating to risks that Mr. Conquer could end up driving the motor vehicle. As R. v. Boudreault, supra recognizes, even someone who does not have the present intention to drive could, over time, change their mind and do so. As a result, even where the presumption in section 258(1)(a) is rebutted, a judge must go on and consider whether there is a realistic risk that the accused may change their mind.

[12] A number of the factors identified in the leading case of R. v. Szymanski, [2009] O.J. No. 3623 at para 93 relate to the "change of mind" scenario. First, the degree of impairment is a factor, since the more inebriated a person is, the greater the risk their judgment will be affected and poor choices will be made. A central factor in making this risk a realistic one is that the accused person is en route to a destination when alleged to be in care or control. Most of the material factors in Szymanski contemplate this, including factors e, g, h, i, j, l, m and n. A person who has yet to reach their destination and who has decided not to drive could, over time, have a change of heart, particularly if the arrangements they have made are unreliable or could result in delay.

[13] For his part, Mr. Conquer had no destination that raised the risk of driving. He was home. He took temporary refuge in his vehicle, as a location or place; that vehicle was not at any point throughout events either used as a mode of transportation or required as a mode of transportation. There is no suggestion that Mr. Conquer was getting ready to drive. He did not have his seat belt on and he was clearly partying when he fell asleep. There is no suggestion available on the evidence that he had any desire to go anywhere other than back to bed. I am therefore confident that there was no realistic risk on the facts before me that Mr. Conquer was going to change his mind and operate the motor vehicle.

C. Did Mr. Conquer Pose a Realistic Risk to Persons or Property by Unintentionally Putting the Vehicle in Motion?

[14] Even this does not end matters. As the list of risks identified by the Boudreault Court makes plain, an accused person can be convicted of an alcohol driving offence based on "care or control" even if there is no present intention to drive or no realistic risk that such an intention will develop. As was made clear in R. v. Ford, [1982] 1 S.C.R. 231, an intention to drive is not an element of the offence. The second enumerated risk in para 42, the one focused on by the Crown in submissions in this case, is that "an inebriated person behind the wheel may unintentionally set the vehicle in motion" (emphasis added).

[15] This risk was described in R. v. Toews, [1985] 2 S.C.R. 119 at 126 as arising from an act involving the car or its fittings or equipment… which would involve a risk of putting the vehicle in motion so that it could become dangerous.

[16] In R. v. Boudreault, supra at para 44, the Crown had invited the Supreme Court of Canada to find that "an inebriated accused found behind the wheel of a car, with the key in the ignition and the motor running, is subject to automatic conviction." The majority of the Court rejected this position as overstated. It is true, said the Court, that "persons found behind the wheel with a present ability to drive will – and should – almost invariably be convicted" but cautioned that "a conviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case." What is clear, therefore, is that a judge cannot assume that everyone who is impaired behind the wheel of a running motor vehicle poses a realistic risk of unintentionally causing damage to persons or property by accidentally engaging the motor vehicle. If it had been appropriate to make such a blanket assumption the Supreme Court of Canada would have agreed with the Crown's proposition. Each case is to be resolved on its own facts, and on the evidence. The trial judge is to assess whether that risk is realistic, or merely speculative on the evidence before them.

[17] It is important to appreciate that while accused persons may wish to present evidence bearing on this issue – the tactical burden referred to by the Boudreault Court – the burden of proof is not reversed on this issue as it is with the "intention to drive" inquiry where the accused is found in the driver's seat. The Boudreault Court made this clear, as well, at para 47. Hence, the burden of proving that there is a realistic rather than a speculative risk is on the Crown, and as with any other component of a criminal offence, this must be proved beyond a reasonable doubt.

[18] In this case, I am not satisfied beyond a reasonable doubt, on the evidence before me, that there was a realistic risk that Mr. Conquer could cause damage to other persons or property, even bearing in mind that a "realistic risk" is a low threshold.

[19] The evidence available in this case is that while Mr. Conquer was significantly intoxicated and in the driver's seat of a vehicle that had been turned on, that car was parked not on the road or on the side of the street, but at his apartment building's parking lot. There is also evidence that these events occurred between some period after 3:00 and before 5:45 in the morning, a time when traffic in the area would be sparse at best. There is no evidence of the proximity of the vehicle to other vehicles or property or persons that would permit an assessment of risk of damage in the event that the vehicle did lurch.

[20] Nor is there evidence about the kind of transmission in the vehicle so that I can assess the ease with which it could be put in motion, and no information as to whether the emergency brake was on or off. I have no evidence of the grade on which the vehicle was parked. Of course, the law does not require the Crown to furnish any of this information, but without it I have no basis for inferring that this vehicle could have been unintentionally set in motion without a fairly deliberate set of actions by Mr. Conquer.

[21] I also know that Mr. Conquer was highly motivated to get back to his apartment, and that it is almost certain that if he regained consciousness before sobering up he would have done no more than turn the vehicle off and take his dog up to bed. There is therefore little realistic prospect that Mr. Conquer would have had anything to do with the transmission, or attempted any further function with the fittings.

[22] On this evidentiary record I am not satisfied beyond a reasonable doubt that there was a realistic as opposed to merely speculative risk that Mr. Conquer had care or control of the motor vehicle.

III. Conclusion

[23] I am therefore finding Mr. Conquer not guilty of both offences before me, as they share the essential actus reus element of care or control, which has not been proved. There is therefore no point in addressing the many other issues that were raised in this case.

Released March 23, 2015

The Honourable Justice David M. Paciocco