Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Choquette, 2021 NUCJ 10

Date: 20210216
Docket: 08-18-662
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Gabriel Choquette

________________________________________________________________________

Before: The Honourable Mr. Justice Paul Bychok

Counsel (Crown): R. Szioba

Counsel (Accused): S. Siebert

Location Heard: Iqaluit, Nunavut

Date Heard: November 10, 2020
Matters: Trial decision on charges under Criminal Code of Canada,
RSC 1985, c C-46, ss. 253(1)(a), 253(1)(b), and 145(5.1)

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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I. INTRODUCTION

[1] The police charged the accused, Gabriel Choquette, with care and
control of a motor vehicle while he was impaired by alcohol, care and
control while his blood alcohol level exceeded the legal limit, and a
breach of his bail condition not to consume alcohol.1 The incident
happened outside the Royal Canadian Legion (“the Legion”) in Iqaluit
in the early morning on September 9, 2018. Mr. Choquette pleaded
not guilty. I held the trial on November 10, 2020, and I received the
transcript of the proceeding on December 18, 2020. These are my
reasons for decision.

II. BACKGROUND

[2] At the start of the trial, Mr. Choquette admitted all aspects of the
Crown’s case against him except for the care and control issue.
Among other things, Mr. Choquette admitted that he was the subject
of the complaint, that he was in the driver’s seat of a borrowed vehicle
at the time of his arrest, that he was impaired at the time, and that his
blood alcohol level was 190 mg of alcohol in 100 ml of blood, which
exceeded the legal limit. He denied, however, that he had care and
control of the motor vehicle in which he was found.

[3] Mr. Choquette also denied that he was aware of the bail condition
which forbade him from drinking alcohol.

[4] Before the trial started, Defence Counsel applied to the Court to have
certain oral statements made by Mr. Choquette to the police admitted
as evidence. Generally, self-serving out-of-court statements made by
an accused are not admissible as evidence. However, it is accepted
today that spontaneous statements made by a person when
confronted by allegations of wrongdoing may be admissible.2 The
Crown supported the Defence application, so I have considered Mr.
Choquette’s evidence in that regard.

1 Pursuant to Criminal Code of Canada, RSC 1985, c C-46, ss. 253(1)(a), 253(1)(b), and 145(5.1)
2 R v Edgar, 2010 ONCA 529, leave to appeal refused: Edgar v R, 2011 CanLII 19612 (SCC).
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[5] The Crown called two witnesses: Cst. Cagri Yilmaz, who was the lead
investigator, and Cst. David Hubert. Cst. Yilmaz displayed a limited
independent memory of the events in question, and he continually
had to refer to his notes. Cst. Hubert, on the other hand, was an
impressive and well-prepared witness. In the following discussion of
the facts, I have accepted Cst. Hubert’s version wherever it differs
from Cst. Yilmaz’s memory.

[6] Mr. Choquette exercised his right to testify, and I will discuss his
evidence in a moment.

III. THE FACTS

[7] I will focus on those facts which I have found proven beyond a
reasonable doubt, and which relate to the issues of care and control
and Mr. Choquette’s credibility. Wherever I say that a witness
described or testified to a point, I have accepted that description or
testimony as proven beyond a reasonable doubt.

[8] A person who self-identified as an employee of the Legion called the

RCMP around 1:24 am on September 9, 2018. The caller reported
that Mr. Choquette was intoxicated, inside a motor vehicle outside the
Legion, “revving the engine” and “honking the horn”.3 While I accept
as fact that this report was made, its contents are hearsay and I
cannot use it as proof of what the caller described. Cst. Yilmaz and
Cst. Hubert (with his partner Cst. Vary) patrolled independently to the
scene in marked police vehicles.

[9] Cst. Hubert noted that the air temperature at the start of his shift was
6 degrees Celsius.

3Transcript of Proceedings, November 10, 2020 [“Transcript of Proceedings”] at 43, per Cst.
David Hubert.
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[10] Cst. Hubert and Cst. Vary arrived first. Cst. Hubert saw the parked
vehicle in question near a guardrail in the Legion parking lot, but
initially he could not tell if anyone was inside. There was “some
smoke or some haze” behind the vehicle.4 Cst. Hubert assumed it
was exhaust. Cst. Hubert approached the vehicle while Cst. Vary
spoke to Mr. Choquette, who had reclined the driver’s seat of the
vehicle. Cst. Hubert watched Mr. Choquette bring his seat up as Cst.
Hubert continued to approach the vehicle. Cst. Hubert noticed heat
coming from the wheel well, and he “instinctively” put his hand on the
vehicle’s hood. Cst. Hubert observed that the hood of the vehicle “was
warm to the touch”.5

[11] Cst. Hubert described Mr. Choquette as being “very unhappy” and
said that Mr. Choquette became “more defensive” upon being
arrested. Cst. Hubert overheard Mr. Choquette tell Cst. Yilmaz “that
he wasn’t driving the vehicle, that he didn’t have any keys, and he
was waiting for a friend. Actually, he mentioned several times that he
was waiting for a friend to bring him back”.6

[12] Cst. Hubert testified that Mr. Choquette was “highly intoxicated”.
Among other things, Cst. Hubert noted that Mr. Choquette gave off a
“very, very strong odour of liquor”, and that he had to stabilise Mr.
Choquette on arrest because Mr. Choquette was “wobbling [as he]
struggled to stand straight”.7 Cst. Hubert then had to assist Mr.
Choquette to the police vehicle as Mr. Choquette was “swaying”.8

[13] Cst. Hubert was aware that one of his colleagues found a set of keys
in Mr. Choquette’s vehicle, but he stated that he did not have any
firsthand knowledge.

4 Ibid at 60-62.
5 Ibid at 47.
6 Ibid at 49.
7 Ibid at 49.
8 Ibid at 50.
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[14] Cst. Yilmaz, upon arrival at the scene could not tell whether there was
anyone in the subject vehicle. There were “quite a few people” milling
around outside the door to the Legion.9 It was only when he was “next
to it”, meaning the vehicle, that he saw Mr. Choquette sitting in the
driver’s seat. At this point, he saw Mr. Choquette “reaching down on
the – on the floor of his vehicle”.10 Cst. Yilmaz blocked Mr.
Choquette’s vehicle with his patrol car and approached the driver’s
side of Mr. Choquette’s vehicle on foot.

[15] Cst. Yilmaz quickly determined that Mr. Choquette was intoxicated.
He told Mr. Choquette that he was arresting him for “impaired care
and control”. Mr. Choquette began arguing with him saying that he
was not driving, and that he was only waiting for a female friend to
leave the Legion and drive him home.11 Mr. Choquette continued to
argue, saying that Cst. Yilmaz could not arrest him because he had
had only one drink. At one point he asked Cst. Yilmaz for the officers’
police badge numbers.12

[16] Mr. Choquette continued this “argumentative and arrogant behaviour”

at the police detachment.13

[17] Cst. Yilmaz arrested Mr. Choquette and had him exit his vehicle. At
this point, Cst. Yilmaz looked at the floor and observed a set of keys
on the driver’s side next to the pedals. He watched as his
(unidentified) colleague put the keys into the ignition of Mr.
Choquette’s vehicle and successfully turned on the engine.

[18] Initially, Mr. Choquette refused Cst. Yilmaz’ request that he provide a
sample of his breath for analysis, but he later relented. Cst. Kevin
Mortimer obtained and analysed two breath samples from Mr.
Choquette at the detachment at 2:57 am and 3:19 am. The result of
each analysis was 190 milligrams of alcohol in 100 millilitres of Mr.
Choquette’s blood.14 This was more than twice the legal limit of 80
milligrams of alcohol per 100 millilitres of blood.

9 Ibid at 13.
10 Ibid at 15.
11 Ibid at 18.
12 Ibid at 22.
13 Ibid.
14 Exhibit 3.
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[19] Cst. Yilmaz did not attempt to speak to any of the many potential
witnesses who were present both inside and outside the Legion. In
cross examination, Defence Counsel asked Cst. Yilmaz if he had
asked any of his colleagues to find Mr. Choquette’s friend and alleged
ride home. Cst. Yilmaz replied:

I don’t know if you’ve ever been inside the Legion, but there’s quite a
few people during those nights, so it is not reasonable for one of us to
go and look for a – Carla when there’s dozens and dozens of
customers inside. So I did not request any of my co-workers to go
inside and look for a Carla.15

[20] The reference to Carla means Kyla Gordon, a friend of Mr. Choquette
who Mr. Choquette said he asked to drive him home.

[21] Nor did Cst. Yilmaz attempt to take a statement from the Legion
employee who reported seeing an intoxicated Mr. Choquette revving
his engine and honking his horn in the Legion parking lot.

IV. THE ISSUES

[22] There are two issues I must decide:

1. Did Mr. Choquette have care and control of the motor vehicle in
question on September 9, 2018?

2. Did Mr. Choquette have a lawful excuse to drink alcohol that

day despite the no alcohol condition of his bail?

V. THE LAW

A. The essential elements of the offence and proof beyond a

reasonable doubt

[23] In order to prove this offence, the prosecution must prove beyond a
reasonable doubt each one of the following elements:

1. That it was Mr. Choquette;

2. Who had care and control;
3. Of a motor vehicle;
4. On or about September 9, 2018;

15 Transcript of Proceedings, supra note 3 at 35.

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5. In Iqaluit, Nunavut;
6. While his ability to operate the motor vehicle was impaired;
7. By reason of his consumption of alcohol.

B. Care and control of a motor vehicle while impaired; Criminal Code

section 253(1)(a)

(i) Proof of care and control of a motor vehicle

[24] The prosecution can prove that Mr. Choquette had care and control of
the motor vehicle in one of two ways. First, the Crown may rely on a
presumption contained in the Criminal Code. At the time of the
incident, this presumption was found in section 258(1)(a).16 The
presumption says:

where it is proved that the accused occupied the seat or position

ordinarily occupied by a person who operates a motor vehicle … the
accused shall be deemed to have had the care and control of the
vehicle … unless the accused establishes that the accused did not
occupy the seat or position for the purpose of setting the vehicle … in
motion.

[25] To rebut the presumption, an accused must satisfy the court on a

balance of probabilities that he did not intend to operate the vehicle.
Mr. Choquette admitted that he was in the driver’s seat when he was
approached by the police, and the Defence called evidence to rebut
the presumption.

[26] Second, if the accused rebuts the presumption, the prosecution must
establish beyond a reasonable doubt either that the accused did
intend to operate the vehicle, or that he acted in a way that caused a
realistic danger that he might change his mind and set the vehicle in
motion.

(ii) R v Boudreault17

[27] In Boudreault, Fish J writing on behalf of the majority in the Supreme

Court of Canada defined care and control when the presumption has
been rebutted as follows:

16 The section was recently amended and is now section 320.35.

17 R v Boudreault, 2012 SCC 56.
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… care 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.18 (emphasis in original)

Whether or not Mr. Choquette’s actions constituted a realistic risk of

danger is a question of fact.

[28] Significantly, Fish J continued

I recognise, as the trial judge did, that a conviction will normally ensue
where the accused … was found inebriated behind the wheel of a
motor vehicle with nothing to stop the accused from setting it in
motion, either intentionally or accidentally.19

C. Failure to comply with a bail condition; lawful excuse; Criminal

Code section 145(5.1)

[29] At the time of the incident, the Criminal Code said that every person
who, without lawful excuse, the proof of which lies on the person, fails
to comply with any condition of an undertaking (bail) is guilty of either
an indictable or summary conviction offence.

[30] Mr. Choquette has admitted that he was subject to bail conditions on
September 9, 2018. He maintains that he had a lawful excuse,
however, for failing to comply with the no alcohol condition contained
in his undertaking to the Court. I note here that Mr. Choquette initialed
the individual special conditions and signed that undertaking in July
2018.

VI. MR CHOQUETTE’S EVIDENCE

[31] I now turn to Mr. Choquette’s defence. Mr. Choquette testified along
with Kyla Gordon. I will first focus on Mr. Choquette’s evidence on the
issue of care and control.

18 Ibid at para 9.
19 Ibid at para 12.
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[32] Mr. Choquette testified that he participated in a baseball tournament

the afternoon before he was arrested. He drank “a few beers” during
the tournament with his teammates. After the tournament, Kyla
Gordon acted as the designated driver and drove the team to the
Legion where they arrived “probably say 10 or 11” pm.20 He claimed
he never had the keys to the vehicle while he was at the Legion.

[33] At the Legion, they were “celebrating, having a ball”. He said he did
not recall how many beers he drank there, “more than one for sure”.
At some point before closing, Legion staff told him to leave because
he was intoxicated. Mr. Choquette said Kyla was going to drive him
home, and that she was in the coat check area leaving behind him
when he left. Mr. Choquette went outside, ordered food from a food
truck, and went into the vehicle because “I didn’t want to stand
outside in the cold”.21 Mr. Choquette sat in the driver’s seat.

[34] Mr. Choquette said he did not have any intention of driving home. He
said the police were at the scene “pretty quick” once he had left the
Legion, ordered his food, and entered the vehicle. Mr. Choquette
acknowledged there were two sets of keys to the vehicle, but said that
he had not had possession of the car keys which the police found
near the pedal upon his arrest. Mr. Choquette denied having tried to
hide those keys.22 He admitted to having driven that vehicle in the
past.

[35] Concerning the bail breach allegation, Mr. Choquette said that he had
thought the associated charge “had gone away” and that he was free
to drink alcohol.23

[36] In cross examination, Mr. Choquette agreed he had read and initialed
the conditions of his undertaking which contained the no alcohol
condition, but he did not remember seeing it. He was, however, able
to recall other bail conditions contained in the same undertaking.

20 Transcript of Proceedings, supra note 3 at 68.

21 Ibid at 70.
22 Ibid at 72.
23 Ibid at 74.
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[37] Mr. Choquette explained his decision to get into the vehicle as
follows: “I just – I didn’t want to be outside, you know, standing with
my food”.24 He did not sit in the passenger’s seat, from which he had
earlier exited the vehicle when they arrived at the Legion – because
he thought the driver’s seat “was the best seat to sit in”.25 Mr.
Choquette denied turning on the vehicle to warm it up and that the
vehicle’s keys were beside the pedal.

[38] The Defence called Kyla Gordon to testify. She said that Mr.
Choquette had told her he was being kicked out of the Legion, and
that he needed her to drive him home. She said she followed him, and
he left the building as she lined up to get her jacket. She said it took
her between 10 to 15 minutes before she got her coat and left the
Legion. When she got outside, Mr. Choquette was no longer there,
although the vehicle was.

VII. ANALYSIS

[39] In my analysis, whenever I say I am satisfied, I mean that I am

satisfied beyond a reasonable doubt.

A. May the prosecution rely on the presumption of care and control?

[40] I will deal first with whether the prosecution may rely on the
presumption that Mr. Choquette had care and control of the vehicle.

[41] Ms. Gordon testified that she was Mr. Choquette’s designated driver
that day and that Mr. Choquette sought her out to drive him home as
he was being evicted from the Legion. At that time, she still had a set
of keys to the vehicle which Mr. Choquette had provided to her some
time earlier. She got in line to retrieve her belongings so she could
drive him home. I have no reason to disbelieve Ms. Gordon.
Consequently, I find that Mr. Choquette has rebutted the presumption
that he had care and control of the vehicle on a balance of
probabilities.

[42] This rebuttal places the burden squarely on the prosecution to prove
its case against Mr. Choquette beyond a reasonable doubt.

24 Ibid at 92.
25 Ibid at 94.
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B. Has the prosecution proven that Mr. Choquette had care and
control of the vehicle for the purposes of counts one and two?

[43] I found Mr. Choquette’s evidence to be self-serving and generally

unbelievable. Mr. Choquette presented himself as a confident witness
until he insisted on his innocence. I noted his demeanour change at
this point in his evidence when he became obviously uncomfortable.

[44] Mr. Choquette testified that he had no intention of driving or of taking

control of the vehicle. Yet he chose not to sit in the passenger’s seat
even though he expected Ms. Gordon to join him any moment. Mr.
Choquette sat in the driver’s seat. He said in direct examination that
he entered the vehicle because “I didn’t want to stand outside in the
cold”. But in cross examination, he stated that he entered the vehicle
because “I just – I didn’t want to be outside, you know, standing with
my food”. This inconsistency is a significant one as it speaks directly
to Mr. Choquette’s state of mind at that critical point in time.

[45] I do, however, accept Mr. Choquette’s evidence that it was cold
outside when he left the Legion.

[46] Mr. Choquette acknowledged that there were two sets of keys to the
vehicle, and that he had provided one of the sets to Ms. Gordon. I do
not believe him when he claims that he did not know where the other
set of keys was that night. Immediately after Mr. Choquette’s arrest,
the police found the second set of keys next to the vehicle’s pedals.
The keys were next to where Mr. Choquette had placed his feet just
seconds before. I do not believe Mr. Choquette when he says that he
did not know that the second set of keys were at his feet. There is
absolutely no air of reality to his assertion on that point.
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[47] I am satisfied that on this chilly autumnal-like evening and early

morning, the ambient air temperature was cold. I am also satisfied
that Mr. Choquette and his mates were in the Legion for somewhere
between two and a half to three and a half hours by Mr. Choquette’s
own estimate.26 Yet, Cst. Hubert was struck by the heat which was
emanating from the wheel well which caused him “instinctively” to put
his hand on the vehicle’s bonnet. The bonnet was warm. The only
rational inference I can draw from this credible and reliable evidence
is that the car’s engine had been engaged and running after Mr.
Choquette had left the Legion. There is no evidence which suggests
that anyone else but Mr. Choquette entered the vehicle before the
police arrived. I simply do not believe Mr. Choquette that he did not
start the vehicle’s engine.

[48] I have also considered the relevance and probative value of Mr.
Choquette’s oral statements to the police. Mr. Choquette got hot
under the collar and was verbally aggressive to the police, at one
point demanding they give him their police badge numbers, all the
while insisting that he had only drank one beer. I accept Cst. Hubert’s
evidence that Mr. Choquette was “highly intoxicated”. Cst. Hubert’s
conclusion is borne out by the breath test readings which were well
above twice the legal limit. The only rational inference I may draw is
that Mr. Choquette was less than honest with the police, and I must
assess his credibility with great caution.

[49] I accept Ms. Gordon’s evidence that she did not exit the Legion for 10
to 15 minutes after Mr. Choquette left. I accept the evidence of the
police that there were many Legion patrons milling around outside
and leaving the Legion at this time. Mr. Choquette was behind the
wheel with a set of keys. He had turned on the vehicle’s engine. He
was highly intoxicated. I am satisfied beyond a reasonable doubt that
Mr. Choquette’s actions in the circumstances of this case posed a
realistic risk that he might have placed the vehicle in motion,
endangering the Legion patrons who were in the immediate area.

[50] The facts of this case are similar to those in R v Pilon, including
having the keys to the vehicle at his feet, except for the fact that Mr.
Pilon was found asleep behind the driver’s wheel. In Pilon, the Ontario
Court of Appeal affirmed the decision of the summary court appeal
judge that the trial judge had properly convicted the accused.27

26 Ibid at 68.
27 R v Pilon, 1999 CCC (3d), 236 (ONCA).
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[51] I am satisfied beyond a reasonable doubt that the prosecution has

met the three-part Boudreault test and proven that Mr. Choquette
assumed care and control of the vehicle outside the Legion on
September 9, 2018.

[52] The Kienapple principle applies here.28 The Crown is seeking a

conviction on count two, so I find Mr. Choquette guilty of care and
control of a motor vehicle while his blood alcohol content exceeded 80
milligrams of alcohol per 100 millilitres of blood.

[53] Consequently, I stay count one.

C. Did Mr. Choquette have a lawful excuse to drink alcohol on

September 9, 2018?

[54] As I noted earlier, Mr. Choquette testified that he believed he was free
to drink alcohol because the charge pertaining to his bail conditions
“had gone away”. In cross examination, Mr. Choquette agreed he had
read and initialed the conditions of his undertaking which contained
the no alcohol condition, but he did not remember seeing it. He was,
however, able to recall other bail conditions contained in the same
undertaking. I do not believe Mr. Choquette and his evidence did not
raise a reasonable doubt. Indeed, I reject his explanation again
because there is no air of reality to it.

[55] I am satisfied beyond a reasonable doubt that Mr. Choquette was

bound by the conditions of his bail release not to drink alcohol, that he
knew that he was subject to that no-alcohol bail condition, and that he
drank alcohol anyway on September 9, 2018. I find him guilty of count
three.

Dated at the City of Iqaluit this 16th day of February, 2021

___________________
Justice P. Bychok
Nunavut Court of Justice

28
R v Kienapple. [1974] SCJ No 76, [1975] 1 SCR 729 (SCC). The Kienapple principle prevents
multiple convictions for offence which have the same or substantially the same elements.