R. v. Lusk (S.V.), (2001) 282 A.R. 221 (ProvCt)

• Judge: Cook-Stanhope, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: January 23, 2001
• Citations: (2001), 282 A.R. 221 (ProvCt);2001 ABPC 16

R. v. Lusk (S.V.) (2001), 282 A.R. 221 (ProvCt)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. JA.069

Her Majesty the Queen v. Stephen Victor Lusk (accused)

(91519504-P1-0101-0102; 2001 ABPC 16)

Indexed As: R. v. Lusk (S.V.)

Alberta Provincial Court

Cook-Stanhope, P.C.J.

January 23, 2001.

Summary:

The accused was charged with having care and control of a motor vehicle while having an excessive blood-alcohol content and care and control of a motor vehicle while impaired (Criminal Code, ss. 253(b) and (a)).

The Alberta Provincial Court convicted the accused.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - [See both Criminal Law - Topic 1367 ].

Criminal Law - Topic 1367

Offences against person and reputation - Motor vehicles - Impaired driving - Meaning of "care and control" - An accused was charged with care and control of a motor vehicle while having an excessive bloodalcohol content and care and control of a motor vehicle while impaired (Criminal Code, ss. 253(b) and (a)) - The Alberta Provincial Court, in finding the accused guilty, reviewed the case law dealing with care and control and concluded that "when an impaired person comes into control of a motor vehicle, the onus is on him to establish that he took all reasonable steps in the circumstances to distance himself from any risk inherent arising from that mere fact. And, while it may sound odd to expect an impaired person to meet a standard of reasonableness, in my view, having control of a motor vehicle while impaired is so inherently dangerous, public protection must demand no less" - See paragraph 86.

Criminal Law - Topic 1367

Offences against person and reputation - Motor vehicles - Impaired driving - Meaning of "care and control" - In discussing the meaning of care or control under s. 253(b) of the Criminal Code, the Alberta Provincial Court noted that pursuant to s. 258(1)(a), where a person occupied the driver's position, he would be deemed to have the care or control of that motor vehicle unless he established on a balance of probabilities that he did not occupy the driver's seat for the purposes of setting the vehicle in motion - The court further stated that the first stage of the analysis of the evidence in a "care or control" case was to determine whether or not the Crown could rely upon this presumption - If an accused was not able to rebut this presumption on a balance of probabilities, he would be convicted - If, however, he could rebut the presumption, that was still not determinative - Rather, "the analysis moves to a second stage, namely the consideration of whether there is other evidence of acts of care or control, absent proof of an intent to set the vehicle in motion, whereby the vehicle might unintentionally be set in motion, thereby creating a danger of the kind the section of the Code is designed to prevent" - See paragraphs 17 and 18.

Criminal Law - Topic 1368

Offences against person and reputation - Motor vehicles - Impaired driving - Care or control or operating - What constitutes -The police discovered the accused in the driver's seat of his motor vehicle with his head slumped on the steering wheel and his seat belt on - He appeared to be sleeping - The vehicle was parked with one of its rear passenger wheels onto the sidewalk - The vehicle was running, and the radio and headlights were on - The Alberta Provincial Court reviewed the case law regarding care or control of a motor vehicle while having an excessive bloodalcohol content, and convicted the accused (Code, s. 253(b) and s. 253(a)) - Particularly, given the accused's position in the vehicle etc., it would have only taken minor adjustments for him to put the vehicle in motion - Hence he failed to take all reasonable measures that were available to him to distance himself from the risks inherent in having control of his motor vehicle.

Criminal Law - Topic 1369

Offences against person and reputation - Motor vehicles - Impaired driving - Care or control - General - [See both Criminal Law - Topic 1367 ].

Cases Noticed:

R. v. Ford, [1982] 1 S.C.R. 231; 40 N.R. 451; 36 Nfld. & P.E.I.R. 254; 101 A.P.R. 254; 65 C.C.C.(2d) 392, refd to. [para. 16].

R. v. Toews, [1985] 2 S.C.R. 119; 61 N.R. 349; 21 C.C.C.(3d) 24, refd to. [para. 16].

R. v. Penno, [1990] 2 S.C.R. 865; 115 N.R. 249; 42 O.A.C. 271; 59 C.C.C.(3d) 344, refd to. [para. 16].

R. v. Whyte, [1988] 2 S.C.R. 3; 86 N.R. 328; 42 C.C.C.(3d) 97, refd to. [para. 16].

R. v. Thompson (1940), 75 C.C.C. 141 (N.S.C.A.), refd to. [para. 16].

R. v. Price (1978), 21 N.B.R.(2d) 532; 37 A.P.R. 532; 40 C.C.C.(2d) 378 (C.A.), refd to. [para. 16].

R. v. Gent (M.C.), [1997] A.R. Uned. 11; 30 M.V.R.(3d) 318 (C.A.), refd to. [para. 16].

R. v. Pilon (L.H.) (1998), 115 O.A.C. 324; 131 C.C.C.(3d) 236 (C.A.), refd to. [para. 16].

R. v. Wren (K.A.) (2000), 130 O.A.C. 302; 144 C.C.C.(3d) 374 (C.A.), leave to appeal refused (2000), 264 N.R. 198; 145 O.A.C. 199 (S.C.C.), refd to. [para. 16].

R. v. Vallee (P.A.) (1992), 136 A.R. 321 (Q.B.), refd to. [para. 16].

R. v. Martindale, [1995] B.C.J. No. 2249 (S.C.), refd to. [para. 16].

R. v. Grover (J.R.) (2000), 276 A.R. 77 (Q.B.), refd to. [para. 16].

R. v. Prior (J.M.) (2000), 276 A.R. 310 (Q.B.), refd to. [para. 16].

R. v. Pahlavan (R.) (1995), 177 A.R. 88 (Prov. Ct.), refd to. [para. 16].

R. v. Neilson (J.D.) (1996), 186 A.R. 18 (Prov. Ct.), refd to. [para. 16].

R. v. Ferrier (D.P.) (1996), 189 A.R. 136 (Prov. Ct.), refd to. [para. 16].

R. v. Senack, [1996] O.J. No. 3332 (C.J. Prov. Div.), refd to. [para. 16].

R. v. Gray (P.J.), [2000] A.R. Uned. 434 (Prov. Ct.), refd to. [para. 16].

R. v. Gerrard (D.S.) (2000), 275 A.R. 122 (Prov. Ct.), refd to. [para. 16].

R. v. Beaudry (M.J.) (2000), 271 A.R. 219; 234 W.A.C. 219 (C.A.), refd to. [para. 16].

R. v. Misiewich (1987), 81 A.R. 201 (Prov. Ct.), refd to. [para. 33].

R. v. Saunders, [1967] 3 C.C.C. 278 (S.C.C.), refd to. [para. 43].

R. v. Hatfield (D.) (1997), 98 O.A.C. 316; 115 C.C.C.(3d) 47 (C.A.), refd to. [para. 53].

Hutterian Bretheren Church of Starland v. Starland No. 47 (Municipal District) (1993), 135 A.R. 304; 33 W.A.C. 304; 9 Alta. L.R.(3d) 1 (C.A.), refd to. [para. 80].

Counsel:

S. Bola, for the Crown;

R. Batting, for the accused.

This action was heard by Cook-Stanhope, P.C.J., of the Alberta Provincial Court, who delivered the following decision at Calgary, Alberta, on January 23, 2001.