An Esterhazy man, who had a history of responsibly taking a cab home when drunk, learned a tough lesson in criminal justice last week.
Drinkers beware; sleeping in your parked car is not necessarily a defence for impaired operation of a motor vehicle according to Yorkton provincial court judge Ross Green and several precedents he cited when he found the man guilty.
Here's the story. Guy drives to the bar. Guy gets plastered. Guy asks bartender to call him a cab and goes outside to wait. Guy gets cold. Guy gets in his car and turns it on to warm up. Guy falls asleep.
Woman comes out of the bar. Woman sees guy sleeping in his car. Woman tries to rouse guy, but he won't wake up. Woman calls cops.
Cop arrives. Cop manages to rouse guy. Cop administers breath test. Guy blows 0.22 (man, that's going to hurt in the morning). Cop arrests guy under Section 253 of the Criminal Code of Canada.
Guy pleads not guilty. Defence argues guy had no intention of driving home. Defence argues guy's car requires at least two discreet actions in order to drive it. Defence presents evidence that guy usually takes a taxi, that guy had intended to take a cab on the night he was arrested, and that it was cool that evening.
Section 253 states: "Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not…."
The key phrases here are, "has the care or control of a motor vehicle," and "whether it is in motion or not…."
There are, of course, legal precedents on both sides of the argument. The relevant case for the defence is R. (Regina, a.k.a., the Queen) v. Toews, in which the Supreme Court of Canada struck down a B.C. provincial court conviction.
In this case, Brian Toews was found by police sleeping in a sleeping bag on the front seat of his truck parked on private property. The key was in the ignition, but the truck was not running.
The court wrote: "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. Respondent was unconscious and clearly not in de facto control, and his use of a sleeping bag supported the contention that the truck was merely a place to sleep."
Judge Green acknowledged Toews, and accepted all of the defence's premises, but cited three other cases including a June 2012 Saskatchewan Court of Appeals (COA) decision in R. v. Coleman. The COA wrote: "The relevant risk does not relate solely to the possibility of an impaired driver acting inadvertently to put a vehicle in motion. It also includes the possibility of such a driver acting intentionally in this regard. The reason for this is self-evident. Impaired drivers have a diminished capacity to make safe judgments."
If this seems a little Minority Report—the 2002 Tom Cruise movie in which police have eliminated crime by arresting and convicting people for crimes they are going to commit—it is useful to consider that a crime in Canada today requires two elements, the mens rea (intent) and the actus reus (act).
In the case of Section 253, courts since Toews have always interpreted the mens rea as the intent to assume care or control and the actus reus as the act of assuming care or control.
Judge Green correctly, found, beyond a reasonable doubt, that our Esterhazy man was voluntarily severely intoxicated and that by occupying the driver's seat and turning on the ignition there was a real and evident risk that he could inadvertently or intentionally put the vehicle in motion and thus had satisfied both elements of assuming care or control.
A note about journalism and the public interest:
Judge Green read his decision on this case in open court on Thursday October 18. As such, it is a matter of public record. Nevertheless, public record does not necessarily mean covering the story is in the public interest. And public interest is not the same thing as the public being interested in it, rather that it serves some purpose or greater good.
Although much progress has been made in recent years, impaired driving remains one of the most common causes of personal injury and death on Saskatchewan roads. For that reason, I believed this story was both interesting and in the public interest.
On the other hand, I did not see any purpose or greater good in publishing the defendant's name although many readers may be interested in knowing who he is. If I had any reason to believe this man is an imminent danger to the public, we would publish his name in a heartbeat, but I have no evidence that that is the case.