R c. Drouin, 2007 QCCQ 3263 (CanLII)
[73] R. c. Lacasse, décision de mon collègue Claude Provost, où les faits sont les suivants :
5 Le défendeur passe la journée à construire sa nouvelle résidence. Depuis l'heure du souper jusque vers 21 heures, il a consommé de la bière et du scotch.
6 Vers 21 heures, il quitte le chantier, prend son camion et se rend à la banque. Il dit qu'il se sent bien et qu'il n'a pas de problème à conduire.
7 Il gare son véhicule devant la banque.
8 Constatant qu'il y a une file d'attente au guichet, il décide d'attendre un peu. Il demeure à la place du conducteur, éteint le moteur, laisse la clé dans le démarreur et s'endort.
9 Un peu avant 22 heures, le claquement de la portière d'une autre voiture le réveille. Il constate que le guichet est libre.
10 Il sort de son camion, se dirige vers la banque et y effectue un virement de 20 000 $ d'un compte à un autre.
11 Mais il commence à ressentir fortement les effets de l'alcool au point où il conclut qu'il n'est ni en état pour retourner chez lui en camion, non plus qu'il n'est en état pour marcher et traverser le boulevard qui le sépare de sa résidence située tout près.
12 Il décide donc de dormir dans son camion. Il s'y installe à la place du conducteur et s'endort.
13 Lorsque les policiers le découvrent dans le stationnement, le défendeur dort profondément. Les incitations verbales du policier à se réveiller et les coups qu'il donne dans la fenêtre ne parviennent pas à le tirer de sa léthargie.
14 Finalement, le policier sonde la pognée de la portière. Il constate qu'elle est déverrouillée. Il l'ouvre et réussit finalement, en secouant l'épaule du défendeur, à le réveiller.
15 La preuve est à l'effet que le moteur du camion est éteint et qu'aucun accessoire du véhicule n'est en fonction. La fenêtre de la portière est montée, la porte est débarrée, la clé est dans le contact et le défendeur n'a pas bouclé sa ceinture de sécurité.
[74] Mon collègue considère les éléments suivants :
29 Reste à se demander si la preuve démontre hors de tout doute raisonnable que le défendeur, fortement intoxiqué par l'alcool et qui a pris place au siège habituellement réservé au conducteur dans l'intention de s'endormir, a posé des gestes qui comportent une utilisation effective du véhicule ou de ses accessoires ou a adopté une conduite quelconque à l'égard du véhicule, conduite qui comportait le risque que le véhicule devienne dangereux, soit en étant mis en marche soit de quelque autre façon.
30 Il importe de souligner que le défendeur avait immobilisé son véhicule dans le stationnement d'un centre d'achat. Il ne se trouvait pas dans un chemin ou sur une rue publique ou la circulation est forcément plus intense que celle qui règne dans un stationnement, le soir, lorsque les commerces sont fermés.
31 Deuxièmement, le défendeur, qui n'avait pas bouclé sa ceinture, dormait profondément au point ou il a fallu une intervention énergique des agents de la paix pour le sortir de sa torpeur.
32 Enfin, le véhicule était immobilisé. Aucun accessoire n'était en fonction. Les fenêtres étaient remontées et la portière côté conducteur était déverrouillée.
33 Le moteur ne fonctionnait pas et la clé de contact était dans le démarreur.
[75] Et il en arrive aux constats suivants qui le conduiront à prononcer un verdict d’acquittement :
34 La preuve, dans son ensemble, permet de conclure que le défendeur, malgré son état d'ébriété avancé, avait pris, avant de s'endormir, les mesures nécessaires pour s'assurer que son véhicule ne devienne pas un risque pour la sécurité publique. Il n'a pas fait preuve de nonchalance ou d'insouciance à l'égard du danger qu'il pouvait représenter. Après avoir estimé que sa conduite automobile pouvait créer un danger, il a choisi de ne pas conduire et plutôt de s'endormir.
35 La preuve dans son ensemble ne permet pas de conclure hors de tout doute raisonnable que le défendeur a posé des gestes comportant une utilisation effective du véhicule ou de ses accessoires ou qu'il s'est comporté à l'endroit de son véhicule de façon à ce que ce dernier risque de devenir dangereux en étant mis en marche ou autrement.
36 Le défendeur n'avait donc pas la garde ou le contrôle du véhicule qu'il occupait le soir du 23 mai 2004.
[76] R. c. Yakobchuk, décision du Juge Allen de la Cour Provinciale de l’Alberta où les faits sont ainsi résumés :
5 Cst. Gill was dispatched to an apartment building because of noisy party complaint. At 11:15 p.m. the officer drove into the parking lot behind the apartment building where he heard very loud music emanating from a motor vehicle which had its motor running and fumes coming from its exhaust. The officer was not certain where the vehicle was parked but conceded it could have been in an assigned parking spot. The accused was slumped in the driver's seat and appeared, at first, to the officer, to be asleep. The officer tapped on the driver's side window, the accused stirred for a few seconds, pointed to him, and went back to sleep. The officer tapped once more and the accused rolled down the driver's window. A strong smell of alcohol emanated from the accused's breath, his speech was slurred, and his eyes appeared bloodshot. When the accused tried to exit the vehicle the officer had to assist him to prevent him from falling. The officer noted one half empty cooler and full cooler in the front seat of the vehicle.
6 The accused was dressed in light jacket, shirt, and a pair of jeans. The clothing was inappropriate for the minus fourteen degree celsius temperature that evening. The accused explained that he was in the vehicle listening to music.
7 Mr. Yakobchuk testified that he drove his girlfriend to work and returned to his apartment building at 10:10 p.m. He parked his motor vehicle in his assigned parking stall at his apartment. He placed the vehicle in park and put on his emergency brake. He went inside his apartment and drank two beers. Thereafter, he left to clean his motor vehicle and listen to music. That evening he played very loud rock music. His neighbours had complained about his loud music before when he played it in his apartment. He brought five alcohol coolers to the vehicle with him. He was dressed lightly in a jacket, and had no intention to drive his vehicle. Earlier, when he drove his girlfriend, he was wearing a winter jacket. Mr. Yakobchuk kept his vehicle running because of cold wintery conditions. While cleaning the car, he sat down in the driver's seat to relax. He drank two or three coolers before the police arrived. Mr. Yakobchuk admitted he was intoxicated when the police officer arrived.
8 Mr. Yakobchuk insisted he had no intention to drive at any time that evening nor did he intend to pick up his girlfriend at work when she finished her shift. The vehicle was in park and its emergency brake engaged; Mr. Yakobchuk described the procedure to start his truck thereafter in the following fashion:
* release the emergency brake;
* press the brake pedal;
* press a button on the gear shift;
* move the gear shift into position; and
* step on the accelerator.
9 The accused conceded that this procedure was more or less automatic and would take less than five seconds.
10 Ms. Bartel, the girlfriend of the accused, testified that the accused drove her to work and dropped her off at 10:00 p.m. At that time he was wearing a double insulated black jacket. The accused's vehicle was messy and the accused generally was fastidious about the cleanliness of his vehicle. When he drove her she did not smell any alcohol on his breath. Mr. Yakobchuk liked to listen to rock music.
[77] Le juge Allen analyse ensuite les faits de son dossier à la lueur de la jurisprudence qu’il a consultée et il prononce un verdict de non culpabilité pour les raisons suivantes :
72 Mr. Yakobchuk was in his own vehicle in his assigned parking stall. I have found that he had no intention to move his vehicle at the time the police arrived. He was in a situation where he was using the vehicle, fittings and equipment. However, the jurisprudence supports the position that a required element of care or control when the vehicle is not put in motion is that a risk of danger existed. Since the vehicle was safely parked the vehicle would only pose a risk if it was put in motion. The accused would have had to do a number of steps to put the vehicle in motion. These included: releasing the emergency brake, pressing the brake pedal, pressing a button on the gear shift, moving the gear shift into position. Although those actions were repetitive actions done almost automatically by the accused on numerous occasions they would have required intentional action on his behalf. In my view the vehicle could not have been unintentionally put in motion. The remaining consideration here is has the Crown proven that there was a risk that the vehicle would be intentionally put in motion. The Crown need not prove that he posed an immediate danger at the time of his apprehension. Rather, I must consider all of the circumstances to determine whether the vehicle could become dangerous. In my view because the danger would be created by intentional action the intention of the accused was one of the factors that I can consider along with other factors.
73 Here, there a number of factors which support a view that the accused did not pose a danger of intentionally putting the vehicle in motion:
* The accused had reached his destination. He was parked at his residence in his designated parking spot.
* He was not working the next day nor did he need to drive to any location.
* He was dressed in clothing unsuitable to drive in winter conditions.
* He just cleaned his vehicle and was listening to music. He anticipated that loud music within his apartment would lead to a complaint by his neighbours.
74 A finding that a person is in care or control is factual to be determined in circumstances of each case. My review of the jurisprudence causes me to comment on one case whose principles are binding on me: Ganpatt. Ganpatt closely resembles the facts in the case at bar, but it is not identical. The risk that the accused would put the vehicle in motion was more acute there. That vehicle could have easily been in motion unintentionally or intentionally. The manual transmission was in neutral and could easily have been unintentionally put in gear. The risk that Ganpatt would change his mind and intentionally put the car in gear was also more acute since the accused had already changed his mind from going to retrieve the tapes to listening to them in the vehicle.
75 The circumstances of this case are somewhat unique. I am not convinced that the Crown has established the element of risk necessary to support a finding of care or control beyond a reasonable doubt.
[78] R. c. Knaack, décision du juge Lilles de la Cour territoriale du Yukon où les faits sont les suivants :
3 Mr. Knaack worked for Midnight Sun Drilling at the time of the incident. Typically he spent three weeks at the work site and was back in town for three or four days. He lived with his mother in Marsh Lake, some distance outside of Whitehorse. He was in Whitehorse on the weekend of September 30 - October 2, 2005.
4 He contacted his friend, Mr. Gardiner, about going out together. Mr. Gardiner advised that he was moving, meaning changing his residence, on the Friday, but would meet Mr. Knaack for drinks at Lizard's Lounge on Saturday evening. They also agreed that Mr. Knaack could stay at Mr. Gardiner's residence after drinks, as he often did when they were out together.
5 Prior to meeting up with Mr. Gardiner at Lizard's Lounge, Mr. Knaack went to see a movie with another friend, Mr. Dunbar. After the movie, Mr. Knaack drove himself and Mr. Dunbar to Lizard's in his blue Toyota, 2-door pickup truck with a standard gear shift. He parked the vehicle legally on 4th Avenue, in front of the Royal Bank.
6 At the lounge, Mr. Knaack socialized with Mr. Gardiner, Mr. Dunbar and others. They were not always together. Around 12:30 a.m., Mr. Dunbar phoned some friends at their homes to ask them to come to Lizard's and give him, Mr. Knaack and Mr. Gardiner rides home. This was a common practise when they were out drinking together. If they were unable to persuade someone to give them a ride, they would take a cab. They would not drive. Unfortunately, Mr. Dunbar was not successful in his efforts to solicit a ride. He called his girlfriend last. I understood that she was not pleased with the call, and that Mr. Dunbar was out drinking with his friends. Mr. Dunbar said he "got into trouble with his girlfriend", and decided that he should leave and go to her apartment right away.
7 At closing, around 2:00 a.m., Mr. Gardiner looked for Mr. Knaack, both inside and outside the lounge. He could not find him, so he and his girlfriend took a taxi home. He said that he had seen Mr. Knaack earlier in the evening with a female friend and thought that he went home with her. Mr. Gardiner also confirmed Mr. Knaack's evidence that Mr. Gardiner had not communicated his new address to Mr. Knaack, having moved a day earlier.
8 Mr. Knaack confirmed Mr. Dunbar's evidence that the plan had been for Mr. Dunbar to call around for a ride for the three of them. He knew Mr. Dunbar had left early. He also said that at closing he started looking for Mr. Gardiner, as the plan was for him to go home with and sleep at Mr. Gardiner's place. He did not find Mr. Gardiner. He also did not know Mr. Gardiner's new address. He did not have enough money for a hotel room, and his mother's home in Marsh Lake was too far away to take a taxi.
9 As a result, Mr. Knaack decided to sleep in his truck until the morning. If he was sober in the morning, he would drive. But if not, he would find a ride home with someone else. He got into his truck which was still parked on the street. He got in the driver's side and sat behind the wheel. He may have had the seat reclined a "little bit". He was only wearing a light jacket, and as it was October, it was cold outside. He decided to put the vehicle's heater on. He put the key in the ignition and started the motor. The vehicle's lights came on automatically when he started the motor. He then fell asleep.
10 The evidence also established that the vehicle's emergency/parking brake was on and that in order to put the vehicle in gear, the clutch must be depressed all the way to the floor.
11 When Constable Buxton-Carr attended the scene some two hours later, Mr. Knaack was sound asleep. It took some effort to wake him up and get him to roll down the window so the officer could get the door open. Mr. Knaack displayed some symptoms of intoxication. He was arrested, taken to the police detachment and provided breath samples for analysis. The readings were 180 mg %. Mr. Knaack was reported by the officer as being cooperative. The detailed circumstances of the arrest are set out in an earlier decision of this court at 2006 YKTC 81 (CanLII), (2006) Y.J. No. 104, 2006 YKTC 81.
[79] Le juge Lilles analyse ensuite les faits de son dossier à la lueur de la jurisprudence qu’il a consultée et il prononce un verdict de non culpabilité pour les raisons suivantes :
25 The evidence established that the motor was running, the parking brake was engaged and that in order for the vehicle to be put in gear, the clutch must first be pushed to the floor. In the circumstances, the Crown has not established, beyond a reasonable doubt, that there was a tangible risk of setting the vehicle in motion unintentionally.
26 There was clear and uncontradicted evidence that Mr. Knaack did not intend to drive after drinking with his friends. There was a plan in place to leave his truck, meet up with Mr. Gardiner and go to his residence for the night using a taxi. Unfortunately, due to unforeseen circumstances, that plan fell through. Mr. Knaack's other alternatives, take a hotel room or get a ride to his mother's house in Marsh Lake were not practical in the circumstances.
27 I am satisfied that Mr. Knaack took deliberate steps throughout the evening to avoid driving after drinking. Given that state of mind or attitude, I find it highly unlikely that he would create a dangerous situation after he awoke by driving if he was unfit to drive.
28 Any risk that he might wake up and drive the vehicle while impaired, in my view, and on those facts, is mere speculation or conjecture. Such risk in the circumstances of his case falls short of the tangible risk defined in Ogrodnick (supra) which is of concern to this Court, namely that Mr. Knaack would change his mind and put the vehicle in motion while still impaired.
29 In conclusion, the Crown has not satisfied me that there existed, on these facts, the required element of dangerousness arising from the risk of setting the vehicle in motion.
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