R. v. Vale, 2012 ONCJ 721

Court File No.: 11-10707 at London, ON Date: November 15, 2012 Citation: R. v. Vale , 2012 ONCJ 721 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN and BRIAN VALE REASONS FOR DECISION P. Rollings for Crown G. Christakos for accused B. Vale GEORGE, J .: OVERVIEW [ 1 ] Brian Vale is charged that on August 26 th , 2011 he did, while his ability to operate a motor vehicle was impaired by alcohol, have the care and control of a motor vehicle, contrary to section 253(1) (

a) of the Criminal Code of Canada (count 1). He is also charged that he had the care and control of a motor vehicle while the concentration of alcohol exceeded 80 milligrams in 100 millilitres of his blood, contrary to section 253(1) (b) (count 2). [ 2 ] The matter proceeded to trial and evidence was heard on Friday October 19 th , 2012. Submissions were made that same day, and it was adjourned for decision. FACTS [ 3 ] At about 10:53pm on August 26 th , 2011 Officers Bailey and Racher of the London Police Service (“LPS”) attended at 501 Wilkins St. in London.

They were dispatched to this area as two people were reportedly passed out in a vehicle located in the parking garage. The information received included the fact the two parties had earlier consumed alcohol and that the keys were in the ignition.

[ 4 ] The source of this information was Crown witness Sommer Landry-Miller, who is the daughter of one of the individuals in the vehicle. [ 5 ] Upon the officers’ arrival, they approached the vehicle, a mini-van, and noticed the two occupants inside sleeping. Mr. Vale was in the driver’s seat, and his common-law partner was in the front passenger seat. Officer Bailey, who approached the driver’s side, noticed that there were two cups in the front console.

All of the windows were up, the engine was not running, and there were no lights on inside the vehicle. [ 6 ] After making these initial observations, Officer Bailey knocked on the driver’s side window. Mr. Vale eventually awakens and by all accounts was startled. Mr. Vale then opens the door to the vehicle, exits, and identifies himself both verbally and with a piece of photo identification. Further investigation revealed that there was liquid (believed to be beer) inside the two cups in the console. The keys were in Mr. Vale’s pocket and there was no discussion as between Mr.

Vale and the officer as to where the keys were prior to being placed in his pocket. [ 7 ] Officer Bailey described Mr. Vale, upon him exiting, as being “a little unsteady on his feet....” and testified that he appeared to be “weak on his knees”. He testified to there being a strong odour of alcohol emanating from Mr. Vale’s mouth, and that this combined with the unsteadiness, led him to place Mr. Vale under arrest. [ 8 ] Mr. Vale was read his rights to counsel, cautioned and was escorted from the parking garage at 11:09pm, arriving at the LPS station at or around 11:19pm. Mr.

Vale was booked in almost immediately upon arrival, and was paraded before Sergeant Hadley. He was turned over to the breath technician at 11:28pm and provided two adequate samples of his breath. [ 9 ] On cross-examination Officer Bailey conceded that one would typically be unsteady were they startled after being awakened, and that he did in fact have to wake Mr. Vale by knocking on the window. It was established as well that this unsteadiness occurred only after exiting the vehicle, and did not continue as he walked away from the door, or after their arrival at the station later on. He described Mr.

Vale “as coming to as we were speaking”. He does not note any speech problems, or glassy/blood shot eyes. His testimony was – “Mr. Vale was groggy but once he realized he was speaking with me he was fine”, and “....he was not having a hard time communicating with me....he responded to questions appropriately”. He also confirmed that Mr. Vale did not have difficulty locating his documents or keys and did not have difficulty identifying himself. [ 10 ] The court received into evidence (Exhibit “1”), the video which captures the booking process and the administering of the breath tests.

As well, filed and marked as Exhibit “2” were the ‘breath test certificate’ and related documents which reported two readings: 116/100 and 113/100. [ 11 ] The video was played in court and showed someone who exhibited no signs of impairment. Mr. Vale displayed no unsteadiness; he answered and responded to all questions appropriately without any slowed speech pattern or difficulty. He was able to follow all directions and although the video quality wasn’t perfect, there were no noticeable physical manifestations of impairment. [ 12 ] LPS constable Brenda Racher testified.

She was the second officer in attendance at the parking garage. She had less contact with Mr. Vale than did Officer Bailey, and interacted primarily with the female passenger. She arrived at the Wilkins St. address in a separate vehicle but entered the parking garage, on foot, together with Officer Bailey. [ 13 ] Officer Racher speaks with the passenger’s daughter, Ms. Landry-Miller who had called the police there. This conversation lasted for approximately five minutes. Although she didn’t interact directly with Mr. Vale she did make some observations of his condition.

She described a strong odour of an alcoholic beverage coming from Mr. Vale. She testified that it took some time for Mr. Vale to retrieve his keys, indicating her belief that this difficulty stemmed from him not knowing where they keys were. She indicated that he had slurred speech and was unbalanced. [ 14 ] Inside the vehicle, behind the driver’s seat, she found five empty bottles of Budweiser beer and in the corner of the parking space several boxes of empty bottles.

In the back area of the vehicle there was a cooler full of ice and beer. [ 15 ] She gave detailed testimony about the location of the vehicle inside the garage. She described it as an enclosed, single-vehicle space that was surrounded by concrete on three sides.

[ 16 ] In cross-examination, Officer Racher acknowledged that, although her will-say notes contain a reference, her duty book is silent on the smell of alcohol, and that none of her notes detail concerns about slurred speech. [ 17 ] Sommer Landry-Miller testified. On August 26, 2011 she was living with her mother and her mother’s common law partner Brian Vale at the apartment complex described earlier. She says it was a stressed out household due, in large part, to her mother and Mr. Vale’s consumption of alcohol. As a result of this, and in light of the fact her mother did not drink before meeting Mr. Vale, Ms.

Miller- Landry had serious issues with the relationship. She indicated that she had spoken to her mother about this, but not Mr. Vale. [ 18 ] On the date in question, she confirmed she was the one who called the police. She testified that she and her brother were walking through the parking garage at one point during the evening, at which time they didn’t notice the van. Upon their return some two hours later, the van was in its designated spot. [ 19 ] She testified that they approached the van, which was running. She says her mother and Mr. Vale were sleeping and they could hear music playing inside.

She described her mother as appearing a little dishevelled (“in a state of undress”) and as such went to retrieve a blanket for her. When they returned with the blanket, their mother was awakened and was not happy. They then pleaded with her to go upstairs with them which she refused. Her observations were that both had been drinking but that her mother appeared more intoxicated than Mr. Vale. She testified that she told her mother if she didn’t come upstairs she was going to “call the cops”, to which she responded “go ahead and call the cops”. [ 20 ] Ms.

Landry-Miller contacted the police and was there upon their arrival. She described Mr. Vale during his interaction with the police, as being belligerent and yelling at her and her brother. [ 21 ] Mr. Vale testified on his own behalf. He described his day, when he went to work, and told us how at the end of the day he picked up his partner from her place of employment. He says the two of them had dinner at a restaurant and afterwards purchased a fifteen pack of Budweiser beer. According to Mr.

Vale they then travelled home and parked in their designated parking spot. [ 22 ] They had decided to stay in their vehicle and not attend at the apartment unit. Mr. Vale indicates this was his partner’s idea as she wanted to avoid confrontation with her adult children. They don’t immediately begin consuming alcohol as they leave at some point, on foot, to purchase cigarettes and ice from a nearby convenience store. They return, put the ice and beer in their cooler, and begin drinking. [ 23 ] Initially the key was in the ignition, turned to enable the battery powered accessories only.

He indicated the ignition was never turned on and that there was no intention to drive. At some point, prior to the encounter with the children, both Mr. Vale and his partner fell asleep. He says, all told, he drank about six or seven beers. [ 24 ] Mr. Vale further testified that at all times while the accessories were on, his seat was fully reclined back. [ 25 ] He recalls Ms. Landry-Miller and her brother attending, and describes them as being “annoyed” at the fact their mother wouldn’t accompany them upstairs.

He describes the son getting aggressive with his mother and having to at one point intervene and urge them to “back-off as they were upsetting her”. This altercation, if I can call it that, ended with the children leaving after which Mr. Vale removes the key from the ignition. They both fall back to sleep and don’t wake up again until Officer Bailey knocks on the window. [ 26 ] Mr. Vale concedes that he may have been unsteady on his feet, but was adamant it could only have been on account of him being startled, and that any unsteadiness would have disappeared quickly.

He maintained throughout his cross-examination that he had no intention to drive, and kept highlighting the fact that, after arriving back home and when he needed to get cigarettes and ice, he chose not to drive and walked to the store. [ 27 ] The focus of the cross-examination otherwise was on two points. First, to the suggestion that although he initially had no intention of driving, after six or seven beers he couldn’t have been expected to think clearly and that it was possible he would have changed his mind, Mr.

Vale testified that he was sober, at all times thinking clearly, and that he consciously made the decision to stop drinking and go to sleep. Second, it was suggested that it made no sense that they didn’t go upstairs to the unit on account of the children being

present, because at no time did he attend upstairs to check to see if they were even there, nor did he call. Mr. Vale’s explanation was essentially they knew they were there and the plan was simply to attend at the unit late in the night (I believe he said sometime after 11p.m.) and go directly to bed. This, he believed, would allow them to avoid any interaction with them. ISSUES [ 28 ] The issues to be considered are as follows: [ 29 ] First, did Officer Bailey have reasonable and probable grounds to arrest Mr. Vale for impaired care and control and demand that he provide samples of his breath?

If so, should the breath test results be excluded? [ 30 ] Second, has the Crown proven, beyond a reasonable doubt, that Mr. Vale had the care or control of the motor vehicle? IMPAIRMENT [ 31 ] Before I answer these two questions, I can quickly address count 1 which alleges impairment. Impairment must be relative to one’s ability to operate a motor vehicle; however, the level of impairment need only be slight.

The evidence on this point raises concerns which do give rise to a reasonable doubt, and they include: • The video footage detailing the booking in process and breath test procedures – one employing common sense, and simply trusting the visual images before them, could only conclude based on this that Mr. Vale was showing no signs of impairment. He walked fine showing no unsteadiness. He spoke coherently and without any difficulty. He was able to stand still when instructed to do so and responded appropriately to every question and direction. This can be clearly and easily gathered from viewing the video.

I cannot conclude from this evidence that his ability to operate a vehicle was even slightly impaired. • Evidence of Officers Bailey and Racher – I found Officer Bailey’s evidence to be the preferred account on this issue, which is not surprising given he was the one directly engaged with Mr. Vale. Having said that Officer Racher was asked about, and gave evidence as to her observations respecting impairment. I cannot ignore her evidence and simply conclude Officer Bailey’s evidence, as being preferable, should definitively decide the issue of impairment.

There were significant discrepancies that give rise to a reasonable doubt. For instance, Officer Bailey, although noting the smell of alcohol and some unsteadiness, clearly indicates Mr. Vale was not slurring his speech; did not have glassy eyes; and did not have difficulty retrieving his documentation or keys. Officer Racher, on the other hand, testified that Mr. Vale had difficulty retrieving his keys, and that his speech was slurred. Her notes contained no reference to a smell of alcohol, and neither her notes nor will-say mention slurred speech. [ 32 ] Count one is, therefore, dismissed.

LAW/ANALYSIS Did Officer Bailey have reasonable and probable grounds to arrest Mr. Vale for impaired care and control and demand that he provide samples of his breath? [ 33 ] The defence argues that Officer Bailey did not have the requisite grounds to enable his arrest of Mr. Vale, and therefore all of the evidence obtained, including the breath results, should be excluded. [ 34 ] The existence of reasonable and probable grounds requires both an objective and subjective component. In this case, Officer Bailey must have subjectively held an honest belief that Mr.

Vale had committed the offence of impaired care and control, and this subjective belief must be objectively reasonable. The question then is, on the basis of all the evidence, could a reasonable person in the position of this officer conclude that there were reasonable and probable grounds?

[35] The Ontario Court of Appeal has provided direction in how trial courts should approach this question. It would be an error tofocus in on any one specific piece of evidence or to ‘search for some circumstance which might support the belief’. Rather, the courtmust look at everything and determine the impact of all the circumstances.

In this case, the combination of the information receivedfrom the daughter through dispatch, the information received from the daughter directly, the fact alcohol was consumed, the fact Mr.Vale was sleeping in the driver’s seat, the presence of open liquor, the cups in the console which contained beer, the initial unsteadinessafter exiting the vehicle, and the smell of alcohol, all gave rise to Officer Bailey’s belief which does, I conclude, amount to reasonableand probable grounds to effect the arrest and make the breath demand.

Recognizing that the court must look at all those facts whicheither support or undermine the officer’s belief, I come to this conclusion cognizant of the fact there were discrepancies as between theofficers’ evidence which were, in part, responsible for the Crown’s position on impairment failing. This, however, does not detract fromwhat Officer Bailey reasonably believed, keeping in mind my earlier conclusion that his evidence was to be preferred to Officer Racher. [36] I conclude that the grounds were properly formed and in accordance with section 254(3) of the Criminal Code.

I conclude as wellthat there were otherwise no breaches of Mr. Vale’s rights under the Charter of Rights and Freedoms. That is, there existed sufficientgrounds to conduct the search in question and to seize the evidence the police did (i.e. breath results). It then necessarily flows that Mr.Vale was not arbitrarily detained. [37] It is obviously unnecessary for me to engage in an analysis under section 24(2) of the Charter of Rights and Freedoms. Has the Crown proven, beyond a reasonable doubt, that Mr.

Vale had the care or control of the motor vehicle? [38] We know the established law is that the Crown can establish care or control of a motor vehicle in a variety of ways. There is thestatutory presumption created by section 258(1)(

a) of the Criminal Code where, if the accused is found in the seat ordinarily occupied bya driver, there is a presumption they did so for the purpose of setting the car in motion. This, of course, is a rebuttable presumption andthe accused can, on a balance of probabilities, establish otherwise. [39] The Crown need not rely on the presumption, and if it is not available, can establish de facto or actual care or control. The actusreus of this offence is the voluntary consumption of alcohol to the point of impairment (or being over .80) and the act of assuming careor control of a vehicle.

The mens rea is the intent to assume care or control of a vehicle. [40] In R. v. Wren (2000), (ON CA), 144 C.C.C. (3d) 374 the actus reus of the offence of care and control wasdescribed as follows: In order to establish care or control of a motor vehicle, the act or conduct of the accused in relation to that motor vehicle must be suchthat there is created a risk of danger, whether from putting the car in motion or in some other way. [41] Courts have since wrestled with what exactly this means – that is, what kind of risk of danger is sufficient for the Crown toestablish care or control. Counsel for Mr.

Vale referred the court to the case of R. v. Smits 2012 ONCA 524 , [2012] O.J. No.3629 an Ontario Court of Appeal decision which addresses this very issue. In Smits, the court details the various forms this ‘danger’ cantake and reviews other courts’ approaches.

It is clear that an intoxicated individual, or someone who is over the legal limit, can create arisk when using a vehicle for a non-driving purpose in three ways: -The risk that the vehicle will unintentionally be set in motion. -The risk that through negligence a stationary or inoperable vehicle may endanger the individual or others. -The risk that the individual who has decided not to drive will change his or her mind and drive while still impaired. [42] This case, in my view, not only deals with the statutorily created presumption, but also requires an analysis of each of the types ofrisk just mentioned. [43] I will first address the rebuttable presumption that was clearly created here.

Mr. Vale was found in the driver’s seat and the court

is to presume he did so with an intention to put the vehicle in motion. Was this presumption rebutted? Mr. Vale testified, and although Iam somewhat confused by the fact no attempts were made to confirm whether or not either of the children were in the residence, I cannotreject his explanation for remaining inside the vehicle and am prepared to conclude that on a balance of probabilities he has establishedthat he did not occupy the seat for the purpose of setting the vehicle in motion. Mr.

Vale maintained in direct examination and throughouta very effective cross-examination, that he had no intention of driving the vehicle. Not only am I not in a position to reject thisexplanation, it’s actually more sensible than the alternative theory that he did intend to drive. I say this for several reasons, but mainlybecause the plan to not attend the residence because of stress and conflict within the home was confirmed by the Crown’s lone civilianwitness, Ms. Landry-Miller.

Additionally, after his arrival home and once the car was parked, the stated intention to not drive wasreflected in his decision to walk to the store. If he had at that point driven the vehicle, I may have concluded otherwise. [44] I will now address whether there was de facto or actual care or control.

Given the location of the vehicle underground, and the factit was in an enclosed parking space, I can conclude that the Crown has not established the presence of a risk that through negligence Mr.Vale’s stationary vehicle could have endangered himself or others. [45] The above is clearly distinguishable from a situation, such as is described in the case of R. v. Vansickle [1990] O.J. No. 3235(C.A.) where a different conclusion was reached based on the fact the, in that case inoperable vehicle, was in the middle of the roadduring a snow storm with its lights on.

The conclusion there being the situation could have become dangerous by someone simply, andnegligently, turning the lights off. [46] Could the vehicle have unintentionally been set in motion? Justice Ritchie, writing for the majority in R. v. Ford (SCC), [1982] 1 S.C.R. 231, writes that: ....care or control may be exercised without such intent [to drive the motor vehicle] where an accused performs some act or series of actsinvolving the use of the car, its fittings or equipment, such as occurred in this case, whereby the vehicle may unintentionally be set inmotion creating the danger the

section is designed to prevent. [47] The risk of unintentionally setting a vehicle in motion cannot be a speculative one. This is a point stressed by Justice Durno in R.v. Szymanski (ON SC), [2009] O.J. No. 3623 (Sup.C.J.) and as illustrated in the Baxter decision ( [2011] O.J. No.4326) found at tab 3 in the defence book of authorities. The facts in Baxter describe the accused who, after consuming alcohol and inaccordance with a pre-arranged plan, slept in his van, while running and with the heat on, with a view to waking in time to attend at hiswork-place which was only a half mile from his van’s location.

The case turned on several things, not the least of which was, theaccused testified to this fixed plan for the evening, and that while in his van “his feet were off the floor” and the van would not havemoved unless he put his foot on the brake, disengaged the gear and moved it into drive. [48] In Mr. Vale’s case, the best evidence is his vehicle was not running. The key, although in the ignition for a period of time, was notwhen the police arrived, and there is no evidence to suggest the gear shift was anywhere but in the parked position throughout therelevant time. I conclude there was no risk that Mr.

Vale could have unintentionally set his vehicle in motion given the decision makingprocess and effort it would have taken to fully incline the seat, put the foot on the brake, and move the gear shift, all keeping in mind thevehicle was in an enclosed space underground. [49] The final consideration is whether there was a risk that Mr. Vale, who had decided not to drive, would have changed his mind.

Onthe care and control issue, this is where counsel focused their argument. [50] The court in Smits describes the way in which courts should approach this question: Although the courts below have applied different modifiers, what all the authorities, including this court, seem to be saying is thatin order to establish that an accused has created a risk of danger in change of mind cases, the Crown must demonstrate a risk that anaccused, while impaired, would change his or her mind and put the vehicle in motion. That risk must be based on more than speculationor conjecture.

Saying that any person whose ability to operate a motor vehicle is impaired to any degree might change his or her mind isnot sufficient. The trier of fact must examine the facts and determine if there is an evidentiary foundation that such risk of danger exists. [51] Justice Durno, in Szymanski, sets out a list of factors that are most helpful. According to him when assessing whether there is arisk of danger based on circumstantial evidence, the court should consider the following:

• The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive; • Whether the keys were in the ignition or readily available to be placed in the ignition; • Whether the vehicle was running; • Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination; • The accused’ disposition and attitude; • Whether the accused drove the vehicle to the location where it was found; • Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving; • Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit; • Whether the accused had a stated intention to resume driving; • Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption; • Whether the accused was wearing his or her seatbelt; • Whether the accused failed to take advantage of alternate means of leaving the scene; • Whether the accused had a cell phone with which to make other arrangements and failed to do so. [ 52 ] In my view, the Crown’s position on this point amounts essentially to an assertion that the risk of danger here was theoretically possible, as opposed to being realistic. [ 53 ] In considering this, I am mindful of the fact the Supreme Court of Canada has just recently spoken on issues relevant to care and control.

In R. v. Boudreault 2012 SCC 56 , the majority, while pointing out that one who is found inebriated and behind the wheel of a car with the present ability to drive “will - and should – almost invariably” be convicted, emphatically rejects the idea that it should automatically follow. It also stands for the proposition that the realistic risk of danger should be determined on a case by case basis and in accordance with the particular circumstances of the case.

This is consistent with Justice Durno’s approach noted earlier. [ 54 ] Although some of the factors I am to consider favour a finding of guilt, several do not. Mr. Vale was at home and had reached his destination. Where else was he to go? This, alone, distinguishes Mr. Vale’s circumstances from many of the other cases which have attracted findings of guilt. In addition, after reaching his destination he did not again attempt to drive, and this is supported by his walk to a nearby variety store.

I am mindful as well of the fact he was showing only minimal signs of impairment (if any at all), and that there was no stated intention to at any point resume driving. In fact there was a plan to do otherwise, which was to wait it out in the parking garage and attend to the apartment unit only after his partner’s adult children went to bed. [ 55 ] Count two is dismissed. November 15, 2012 _____________________________ Date Justice Jonathon C. George