R. v. Thorne, 2010 SKQB 378 – An Impaired Care and Control charge is dismissed when “real driver” takes the stand.

In R. v. Thorne, 2010 SKQB 378 the accused is charged with the following three counts:

 COUNT 1            THAT HE, the said EUGENE GEORGE THORNE on or about the 22nd day of November, A.D. 2007 at Fort Qu’Appelle, Saskatchewan did while his ability to operate a motor vehicle was impaired by alcohol, did have the care and control of a motor vehicle, contrary to Section 255(1) and Section 253(a) of the Criminal Code of Canada.

COUNT 2            THAT HE, the said EUGENE GEORGE THORNE on or about the 22nd day of November, A.D. 2007 at Fort Qu’Appelle, Saskatchewan did having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in 100 milliliters of blood did have the care or control of a motor vehicle, contrary to Section 253(b)and Section 255(1) of the Criminal Code of Canada.

COUNT 3            THAT HE, the said EUGENE GEORGE THORNE on or about the 22nd day of November, A.D. 2007 at Fort Qu’Appelle, Saskatchewan did being bound by a Probation Order made by a Judge of Provincial Court of Saskatchewan on December 11, 2006 wilfully fail to comply with a condition thereof, to wit, that he keep the peace and be of good behaviour, contrary to Section 733.1 of the Criminal Code of Canada.

The accused was arrested in the front seat of his vehicle. He was partially behind the steering wheel, and the vehicle was stuck, and the rear tire was damged. At trial, he testified that he was not the driver, and another had driven him there. That individual testified to the same effect. Totalling the failure to establish that the vehicle was at risk to be set in motion, and the accused’s explanation of why he was in the front seat, the trial judge acquitted. Justice Scheibel explained:

    20. While I am somewhat suspicious of the evidence given by the accused and that of Kahnapace their evidence might be true. Their evidence raises a reasonable doubt as to who drove the vehicle. In addition there is evidence which establishes on a balance of probabilities that the accused did not occupy the seat for purposes of putting the vehicle in motion. The vehicle could not be operated because the tires were off of the rim, the accused did not have possession of the car keys, the battery was dead and the car was out of gas. Therefore there was no risk the vehicle could be set in motion. The vehicle could not, at the time, become dangerous, therefore the actus reus was not present.21. Therefore the Crown has failed to prove its case against the accused to my satisfaction beyond a reasonable doubt. I find the accused not guilty on each of the three counts.