R. v. Tharumakulasingam, 2014 ONCJ 362

Citation: R. v. Tharumakulasingam , 2014 ONCJ 362 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — SURENANTHAN THARUMAKULASINGAM Before Justice Diane Oleskiw Heard on November 13, 2013, January 27, 2014, April 8, 2014, May 1, 20 and 30, 2014, and June 26, 2014 Reasons for Judgment released on July 18, 2014 Ms. S. Marple ......................................................................................... Counsel for the Crown Mr. A. Balachandran …………………………………………………..

Counsel for the Defendant OLESKIW J.: Introduction [ 1 ] The accused is charged with over 80 and impaired operation of a motor vehicle on October 19, 2012. [ 2 ] After receiving a “hot-shot” call, the police found the accused, at 4:00 a.m., trapped in the driver’s seat of his running, but heavily damaged, car that straddled a curb in a plaza parking lot. The accused was severely injured in the crash. He was taken to hospital by ambulance. [ 3 ] Blood samples taken at 6:30 a.m. by medical staff in the trauma unit at the hospital for medical purposes were later obtained pursuant to a warrant.

Analysis of the blood showed that the accused’s blood alcohol concentration (“BAC”) at 6:30 a.m. was 167 mgs in 100 mls. of blood. Expert evidence established that between 3:50 - 4:00 a.m., the accused’s BAC would have been between 172 - 222 mgs in 100 mls of blood. The expert evidence was that the accused’s ability to drive would have been impaired at those levels.

The Crown did not call any evidence of the specific time of driving. [ 4 ] The issues in this case are: 1) Has the Crown proved continuity of the blood sample that was tested by the forensic toxicologist? 2) Has the Crown proved its case on the operation charges, notwithstanding the absence of evidence regarding the specific time of driving? 3) If the answer to #2 is no, has the Crown proved its case on the included offence of care or control of the motor vehicle?

Summary of the evidence PC Ellis

[ 5 ] PC Ellis testified that he and his partner PC Witt were dispatched by a radio call to a personal injury accident at Albion Road and Islington Avenue at 3:54 a.m. on October 19, 2012. They arrived at 3:57a.m.and saw a single motor vehicle accident with heavy damage. The accused’s motor vehicle was caught on a plaza sign, facing west, in the parking lot of the plaza at 1166 Albion Road, on the north side of Albion Road. The vehicle was off the roadway and appeared to have crossed a boulevard into the parking lot. There was heavy damage to grass and trees on the boulevard around the vehicle.

The motor was running and the daytime running lights were still functioning. [ 6 ] When they arrived on scene there were very few vehicles on the road. At the start of his shift at 11 p.m. on October 18, PC Ellis noted that the roads were wet and that it was cool and cloudy. Photos of the crash site show the roadway to be slightly wet in spots. [ 7 ] Upon arriving, PC Ellis immediately went to the driver’s side and spoke to the accused who was the lone occupant of the vehicle. He was very disoriented. The accused was in the driver’s seat and positioned as if he were driving the vehicle.

PC Ellis believed the accused was wearing a seatbelt because, based on the accident, he would have been thrown out of the vehicle if he wasn’t wearing it. The accused was trying to get out of the vehicle. PC Ellis told him to wait for medical help. The accused continued to try to get out. However, he was unable to do so because he could not open the door. PC Ellis stepped back from the vehicle when the fire department arrived. [ 8 ] PC Ellis opined that, when he arrived on scene, the accused’s car was “clearly undriveable”. [ 9 ] At 4:08 a.m.

PC Ellis formed the grounds that the accused was operating a motor vehicle while under the influence of alcohol, based on information provided to him. At 4:19 PC Ellis advised the accused, while he was in the ambulance, that he was under arrest for impaired driving.

He made the breath demand at 4:22 a.m. [ 10 ] The accused was first taken to Humberchurch Hospital and was unable to speak to duty counsel, who returned a call at 5:15 because the doctor advised that his medical condition would not allow it. [ 11 ] At approximately 5:53 a.m. the accused was transferred to Sunnybrook Hospital because of the severity of his internal injuries. The officers and the accused arrived at Sunnybrook hospital at approximately 6:12 a.m. and the accused was immediately taken to the trauma center. PC Ellis stayed behind the glass in the trauma unit where he could see the accused.

After observing medical personnel conducted numerous tests, PC Ellis’s next interaction with the accused was at 8:25 a.m. when he re-advised him of the reasons for arrest and his right to counsel.

The accused replied that he understood. [ 12 ] PC Ellis received information at Sunnybrook Hospital that the accused had a broken pelvis and severe internal injuries and that he required emergency surgery. [ 13 ] PC Ellis was next involved in the matter when he attended at Sunnybrook Hospital at 2:15 a.m. on October 20, 2012 and spoke to the lab technician who provided him with five label numbers for the accused’s blood vials. Those numbers included: F36841, F36842, and F36843.

PC Witt [ 14 ] PC Witt testified that she and PC Ellis received a “hotshot” radio call at approximately 4:00 a.m. and arrived on scene approximately 3 to 4 minutes later. She testified that the dispatcher was still on the line with the 911 caller while the officers were receiving the information on the call. [ 15 ] She described the accused’s vehicle as being extremely damaged and appearing as though it had rolled over.

There was lots of “wipe-out” damage and debris from the road to the area in the plaza where the car came to a stop. (This description is supported by the photographs from the scene which show soil and foliage lodged in the crushed passenger side front door and which show trees and a sign on the ground and the car stopped over a double curb beside a large metal sign in the parking-lot plaza.) [ 16 ] The accused was the only person inside the vehicle and he was in the driver’s seat. His body was normally positioned as a driver. The first thing PC Witt did was to go to the accused to see if he was okay.

She found him sitting calmly with his eyes open and conscious. He seemed disoriented and in a bit of a daze. She asked him if he was okay to which she received no reply. She could see that he was bleeding from the face.

She asked him if he had any alcohol to drink that night and he said yes and nodded his head up and down. [ 17 ] At approximately 4:08 she told her partner, PC Ellis, that the male had told her that he had been drinking that night. [ 18 ] PC Witt left the accused’s vehicle when the paramedic worker was attending to the accused and started taking a statement from a witness named Patrick Simmons at 4:06 a.m. She understood Patrick Simmons to be the 911 caller.

She said that there were no other witnesses, people or vehicles in the area. [ 19 ] PC Witt testified that at the scene of the collision there were no pedestrians, businesses were closed and no other vehicles had stopped. She considered that it was obvious that the driver had been driving at a high rate of speed, and that this was a single vehicle collision. [ 20 ] PC Witt opined that when she got on scene, the accused’s vehicle appeared to be completely inoperable. However, she did not try to drive the car.

She did not see the accused drive the car. [ 21 ] The accused was taken by ambulance to the Humberchurch Hospital and was placed in a room at 4:56 a.m. The attending doctor advised that the accused must be transferred to Sunnybrook Hospital. Based on her own observations of the accused having trouble speaking and being injured she did not consider it appropriate or possible to take a breath sample. She said that this was based on what the doctor said as well as her own observations.

Accordingly, she called traffic services and spoke to a sergeant who advised her that the accused can’t give a breath sample so they must get blood sample. PC Witt testified that she did not make a demand for a blood sample

because she knew that blood had already been taken by medical personnel. [ 22 ] The accused was transferred to Sunnybrook Hospital at 5:54 a.m. by ambulance and PC Witt escorted him in the ambulance. They arrived at Sunnybrook at 6:15 a.m. and the accused was taken to the trauma unit in the emergency department where multiple doctors and nurses attended to him. PC Witt stood a few metres away so that she could observe, but was not in the way of medical treatment. She could see medical personnel doing different tests, including nurses taking blood samples from the accused. At approximately 8:00 a.m.

PC Witt received information that the accused had a broken pelvis and later learned that he required surgery. PC Witt left the hospital at approximately 8:50a.m. [ 23 ] The following night PC Witt and PC Ellis attended at both hospitals to advise them not to destroy the blood samples. When they attended at Sunnybrook Hospital at approximately 2:00 a.m. on October 20, 2012, PC Witt received the vial numbers for the accused’s blood, but did not touch the vials at any time. The five vial numbers provided included F36841(CBC), F36842(Chemist) and F36843(ethanol), which she understood to be the extraction numbers.

PC Witt advised the nurse not to destroy or dispose of the blood samples due to an ongoing police investigation. Robert Bagley [ 24 ] Robert Bagley testified that he is an advanced care paramedic for the City of Toronto. He arrived on scene at 4:03 a.m. at which time the fire department was setting up equipment. He talked to the accused who was in the driver’s seat with his lower legs pinned in the vehicle. The accused was removed from the vehicle when the driver’s door was removed. Once out of the vehicle, Mr. Bagley was able to do a head to toe assessment and then placed the accused on a backboard. Mr.

Bagley believed that the accused did not have trouble understanding anything he said. [ 25 ] Mr. Bagley asked the accused if he had any alcohol to which he responded that he didn’t drink any beer, but he did drink some liquor. When Mr. Bagley asked him how much, he was unable to give him an answer. Mr. Bagley believed that an officer was present at the time the accused made the statement but did not recall the name of the officer. They left the scene to go to the hospital at 4:20 a.m. and arrived there at 4:27a.m. Mr. Bagley did not recall the smell of alcohol in the ambulance.

Patricia Solbeck [ 26 ] Patricia Solbeck was qualified as an expert toxicologist. On November 8, 2012, she tested one vial of the accused blood sample (with seal #2N68870) that had its original stopper on it and that was a whole blood sample. She testified that testing blood is the most direct and accurate way to measure the concentration of alcohol in blood. In this case, the sample collected at 6:31 a.m. showed that the accused had a concentration of 167 mgs of alcohol in 100 mls of blood at 6:31 a.m. [ 27 ] Ms.

Solbeck testified that, assuming a collision between 3:50 – 4:00 a.m. and assuming the sample was collected at 6:31 a.m., the blood alcohol concentration at the time of the collision was between 172 to 222 mgs in 100 mls of blood. This calculation was done making an allowance for a 2-hour plateau and also assuming that no alcohol was consumed between the time of the collision and the collection of the sample. She opined that a person would be impaired in their operation of a motor vehicle at a BAC of 50 and that, as the BAC increases, so too does the degree of impairment.

In her opinion, a person with a BAC of 172 to 222 would be impaired to drive a motor vehicle. ANALYSIS: 1. Continuity [ 28 ] The opinion of Patricia Solbeck, forensic toxicologist, comes from a direct analysis of a blood sample of the accused that was taken at Sunnybrook Hospital. In order to rely on this opinion, the Crown must prove that what was analyzed is the same as what was taken from the accused. [ 29 ] The court heard one full day of evidence regarding continuity of the blood sample analyzed by Patricia Solbeck.

After considering all of that evidence carefully, I find that the blood sample analyzed by Patricia Solbeck is the same blood that was taken from the accused by Registered Nurse Shauna Robertson at approximately 6:30 a.m. on October 19, 2012 and that there is no reason to question the sample’s integrity. I make this finding based on the following evidence: [ 30 ] PC Witt observed Nurse Shawna Robertson draw blood from the accused at around 6:27 a.m. When PC Witt told Nurse Robertson that she would follow her, the nurse told her there was no need because the vials were labeled.

PC Witt followed Nurse Robertson anyway. She saw Nurse Robertson give the vials to Joe Mediros at approximately 6:32 a.m. When Mr. Mediros deposited the vials with Christina Demaniano, PC Witt returned to the trauma unit. She did not write down, and consequently, did not remember how many vials of blood were taken. [ 31 ] Nurse Shauna Robertson has been working as a Registered Nurse at Sunnybrook Hospital for 8 ½ years. She was the trauma nurse and knew from the accused’s chart that she drew his blood at 6:30 a.m. on the morning of October 19, 2012.

She usually takes 6 vials of blood and was sure that she would not have taken more than 6 vials. She testified that it is impossible for a blood sample to leave the trauma unit without being properly labelled, and that she does this herself. Further, no one in the hospital would accept blood without a label on it. The labels are applied as soon as the blood is drawn. The label is generated by a hospital computer and includes the patient’s name and date of birth, as well as their unique hospital file number. The labels have a 7 digit number on them.

Nurse Robertson confirms the patient ID number and name on the label with the patient’s arm band to ensure the samples are labelled correctly.

[ 32 ] Nurse Robertson testified that she generally uses chlorahexadine as an antiseptic, and likely used it on that occasion. This is not alcohol based. [ 33 ] Nurse Robertson handed the samples to Joe Medeiros directly, as observed by PC Witt. [ 34 ] Joe Medeiros has been working as a Patient Service Partner at Sunnybrook Hospital for 16 years. He worked the 11:30 to 7:30 a.m. shift on Oct 19, 2012. He testified that he received either 5 or 6 vials that night from Nurse Robertson. He, too, testified that the vials never leave the trauma room without being labeled properly.

He checks the labels before leaving the area, and will not leave if the samples are not labelled or not labelled correctly. He signed a log book when he received the accused’s blood samples. He identified his signature on Log Book #1 showing that, at 6:40 a.m., he left the trauma unit for the lab with the blood vials labeled with the accused’s name and other identifying information. He took the blood samples to the C-Wing Specimens Lab, and Blood Bank B and handed the respective samples for each lab to Jacquelyn Beaumont and Christina Damiano.

They all signed the log books for those labs upon delivery of the accused’s blood samples: (Exhibit 3). [ 35 ] Mr. Medeiros testified that he never leaves blood samples unattended. They are handed directly to a technician. He insisted that every sample is treated the same way, as it is a life or death situation. [ 36 ] Jacquelyn Beaumont was working as a medical laboratory technician on Oct 19, 2012 and confirmed that by virtue of her signature on Ex. 3, she received blood samples with labels bearing the accused’s name and identifying information from “Joe” at 6:42 a.m.

She immediately scanned the bar code into the computer and then prepared the blood for testing. Once prepared, she provides the samples to the technologist. She never opens the vials or deals with the blood directly and there are no variations of the procedure she follows. [ 37 ] She testified that she checks to ensure that the name on the label matches the name in the trauma book.

It is the emergency department that prints up and affixes the labels that have been assigned by the computer system. [ 38 ] Jacquelyn Beaumont testified that when the samples are received in the specimens lab they are in her hand, a technologist’s hand, in a stand for the technologist or on the table directly in front of her. Trauma samples are dealt with immediately, and she does not open the samples. She (and other witnesses) testified that trauma samples are always delivered separately. Samples from multiple trauma patients are never delivered together. [ 39 ] After testing in the specimens’ lab, Ms.

Beaumont testified that samples designated for police pick up are stored in a locked fridge. Only lab staff have access to that fridge. Similarly, Valerie Chow testified that ethanol samples of blood are kept in a locked fridge and are logged so that if a warrant is brought forward, the hospital meets the chain of custody. Christina Damiano testified that blood bank samples are stored in a fridge with no lock, accessible only by lab staff. [ 40 ] PC Witt and PC Ellis testified that they attended Sunnybrook Hospital at around 2:00 a.m. on October 20, 2012 and advised the nurse to keep the samples for the warrant.

At that time they received 5 vial numbers for reference, including vial numbers F36843, F36842, and F36841 which PC Witt recorded as F36841 (CBC), F36842 (Chemist) and F36843 (Ethanol). [ 41 ] On October 29, 2012, pursuant to a warrant, Detective Stewart physically received three samples from Manuel Salinas , and both signed the record sheet for the release of those samples (Exhibit 4). Mr. Salinas confirmed the hospital file number, and matched the name and date of birth on the warrant with what was indicated on the sample labels before releasing them.

The form is only completed after the samples are screened for release. [ 42 ] Mr. Salinas testified that the samples are locked in a fridge in a secured room with an electronic lock, accessible only by lab staff. [ 43 ] When Detective Stewart received vials F36843, F36842, and F36841 he affixed the following Centre of Forensic Science seals to the vials: Seal# 2N68870 on vial F36841 ; Seal# 2N68869 on vial F36842; Seal# 2N68868 on vial F36843. The seals were affixed over the vials and on the side. The vials could only be opened by breaking the seal.

Detective Stewart handed the vials directly to Tarkin Baber at the receiving desk of the Centre of Forensic Sciences, and at no point opened the vials. [ 44 ] Patricia Solbeck visually inspected the samples and noted that Item #1 with a seal number of 2N68870 had markings from the hospital showing a partial surname of “THARUMAKULASIN”, as well as “23YM” which she understood to refer to a 23 year old male. Ms. Solbeck chose Item #1 for analysis as it had the original stopper from the hospital that maintains a vacuum seal.

The other two samples provided had temporary stoppers which indicated they had been opened previously. Ms. Solbeck testified that the seals were intact on all samples received, and that she broke seal #2N68870 in order to open the vial and analyze the blood within. [ 45 ] Ms. Solbeck testified that isopropyl alcohol, which is used as an antiseptic, is chemically different from ethanol.

Her analysis differentiates between the two types of alcohol, and she found no presence of isopropyl alcohol in the blood sample she analyzed. [ 46 ] I find no merit to the defence arguments that the court should not rely on Nurse Robertson’s evidence or that of the witnesses who did not author their own Will Say statements with regard to continuity. In the result, I am prepared to accept that the sample analyzed by Ms. Solbeck was a sample of the accused’s blood taken at approximately 6:30 a.m. on October 19, 2012 by Nurse Robertson. 2.

Specific time of driving not established Motion for Directed Verdict and the Operation Charges [ 47 ] The defence moves for a directed verdict on the charge of operating a motor vehicle while over 80 because there is no direct evidence as to the time of driving [ 48 ] The Crown submits that the court can infer that the accused was driving between 3:50 – 4:00 a.m. based on the following

evidence: • PC Ellis reported receiving a call at 3:54 for a personal injury accident at Albion Road and Islington Avenue; PC Witt testified toreceiving the same call at around 4:00; • The call was a “hot shot”, the highest priority level. PC Witt testified that the dispatcher is on the phone with the caller, andrelaying information to officers on the road at the same time. It is an instantaneous transmission of information; • PC Ellis testified to arriving on scene at 3:57am. PC Witt testified to arriving at 4:03am.

Both officers report arriving 3 minutesafter receiving the call; • Paramedic Robert Bagley testified to arriving on scene at 4:03am.; • Both officers found the vehicle against a plaza sign, completely off road. There was extensive property damage surrounding thearea, and extensive damage done to the vehicle; • PC Ellis testified that the engine was running, and the daytime running lights were on when he arrived; • PC Witt testified that the complainant was on scene, and she spoke to him.

She took a statement from Patrick Simmons at starting4:06am, and concluding at 4:15am; and, • No other vehicles were involved in the collision, and the accused was trapped in the driver’s seat. No one else was in the vehicle. Findings [49] The accused was found in the driver’s seat in circumstances that clearly indicate that he drove the car to the point where itcrashed. I am satisfied beyond a reasonable doubt that the accused was driving the car prior to 4:00 a.m.

Given that the engine was stillrunning, the lights were on, and the site of the crash was just off the road at a relatively major intersection in the City of Toronto, theevidence also indicates that the crash was recent. However, the Crown, simply, has not proved any definitive time of driving. [50] In my view it is clear that when an accused is charged with impaired or over 80 operation, the Crown must prove that the accusedwas impaired or over 80 at the time of driving. The toxicologist’s evidence assumed driving between 3:50 to 4:00 a.m.

While it iscertainly possible that the accused was driving between 3:50 - 4:00 a.m., it is also possible, based on the admissible evidence before me,that the accused was driving the car as long as hours before 4:00 a.m. Accordingly, even if the Crown passed the directed verdict test,the Court cannot find beyond a reasonable doubt that the accused was either impaired or had a blood alcohol concentration over 80 mgsin 100 mls of blood at the time of driving.

I am not prepared to “read back” either specific readings or make findings of impairment thatextend beyond the expert testimony in this case. [51] However, this finding with respect to operation, does not end the matter in the accused’s favour. Both parties correctly acceptthat the offence of care or control is an included offence of operating: R. v. Plank (1988), (ON CA), 28 C.C.C.(3d)386 (Ont. C.A.). 3. Care or Control of the Motor Vehicle [52] The mens rea for care or control is the intent to assume care or control of a motor vehicle after the voluntary consumption ofalcohol or a drug.

The actus reus is the act of assumption of care or control when the voluntary consumption of alcohol or a drug hasimpaired the ability to drive: R. v. Towes, (SCC), [1985] 2 S.C.R. 119 at para. 7. [53] The Crown can seek to establish care or control by 1) relying on the rebuttable statutory presumption where it is presumed that aperson who occupies the seat ordinarily occupied by the driver had care or control of the motor vehicle; or 2) by establishing actual careor control without reliance on the presumption. [54] Here, the Crown relies on the rebuttable presumption of care or control in s. 258(1)(a).

At the time the accused was firstobserved by the police, he was in the driver’s seat as the sole occupant of a vehicle that was in a single vehicle crash. The accused wastrying to get out of the car but could not do so because of damage to the door. Further, both officers testified that the accused’s body waspositioned as if he had been driving. PC Ellis believed that the accused was wearing his seat belt. PC Ellis also testified that the enginewas running and the daytime running lights were on when he approached the vehicle. [55] The presumption in s. 258(1)(

a) applies: That is, where the accused is proved to have occupied the driver’s seat, he shall bedeemed to have had care or control of vehicle unless s/he establishes that s/he did not occupy that position for the purpose of setting thevehicle in motion. [56] The Ontario Court of Appeal has held that in order to rebut the presumption of care or control, an accused person must show thatthe occupancy of the driver’s seat began without the purpose of setting the vehicle in motion: R. v. Hatfield , (ONCA), [1997] O.J. 1327 (C.A.) ; R. v. Miller, [2004] O.J.

No.1464 (C.A.). [57] All of the circumstances here indicate that the accused’s occupancy of the driver’s seat began for the purpose of driving. Clearly, the accused intended to drive at the point he entered the vehicle and drove it from wherever he had been to the point where hedrove off the road, hit a sign and trees and came to a halt near the sign at the plaza on the corner of Albion Road and Islington Avenue. Further, nothing in the evidence suggests that he relinquished control.

The engine was still running and there is no suggestion that hegot out of the car between the time of the crash and the arrival of the police at approximately 4:00 a.m. In fact, the accused was pinnedin the car, until emergency crews were able to extricate him by removing the driver’s side door. I find that the accused drove the vehicleprior to 4:00 a.m. and that was followed by continuing care or control which extended to the time the police arrived to find him behindthe wheel.

[58] I find that the presumption of care or control in s. 258(1)(

a) applies and the accused has not rebutted it. Analysis of Risk of Danger after Boudreault [59] Prior to the release of R. v. Boudreault, 2012 SCC 56 , [2012] S.C.J. No. 56, the majority of the law in Ontario was thatthe Crown is not required to establish risk of danger from the vehicle being put in motion when care or control is based on the statutorypresumption: R. v. Amyotte, [2009] O.J. No. 5122 (SCAC). Put another way, neither vehicle immobility nor the absence of risk ofdanger in relation to its use in some way, were capable in law of rebutting the presumption of care or control; R. v.

Danji, [2005] O.J.No. 917. [60] At least one Ontario Court has held that Boudreault stands for the proposition that even where the Crown can rely on thepresumption, there must still be a realistic risk of danger to persons or property before a defendant can be found guilty of care or control: R. v. Lu, [2013] O.J. No. 836 (CJ) at paras. 23-31; R. v. Caligiuri, [2013] O.J. No. 887 (C.J.) at paras. 30-31. This

interpretation ofBoudreault has some strength, especially in light of paragraph 39 of the decision where Fish J. stated: 39 Put differently, s.258(1)(

a) indicates that proof of voluntary inebriation and voluntary occupancy of the driver’s seat do not by theircoexistence alone conclusively establish ‘care or control’ under s. 253(1) of the Criminal Code. Something more is required and, in myview, the ‘something more’ is a realistic risk of danger to persons or property. [61] However, on balance, I find the decisions in R. v. MacKenzie, [2013] A.J. No. 899 (Q.B.) and R. v. Brzozowski, [2013] O.J. No.2483 to be more persuasive. In particular, in MacKenzie Justice Browne analyzes the history and purpose of the presumption, as well asthe language of s. 258(1)(

a) and the context of Boudreault and concludes that: 22 If the presumption did not apply unless the Crown established a ‘realistic risk of danger’, the presumption would serve nopurpose. The Crown would be required to prove that the accused was seated in the driver’s seat of a vehicle, and intentional course ofconduct associated with the vehicle, and that sitting in the driver’s seat created a realistic risk of danger to persons or property. This isthe same onus that the Crown would have to satisfy if the presumption did not exist.

To interpret the presumption in this way wouldmake it ineffective and essentially meaningless.[emphasis added] [62] I find that cases such as Amyotte, which hold that the risk of danger is not an element of the statutory presumption of care orcontrol, but is restricted to cases where the prosecution is based on actual care or control, have not been overruled by Boudreault.

As theBrowne, J. noted in MacKenzie at para. 32: 32 Boudreault dealt with de facto care or control, as the accused had rebutted the presumption at trial, it is therefore reasonable toassume that the Supreme Court was aware of the comments made in R. v. Mallery and R. v. Burbella in regards to the risk of danger notbeing an element of the statutory presumption.

The Court’s silence on this issue suggests that the pre-existing authorities were correct inconcluding that the presence or absence of danger will have no effect when the statutory presumption applies and is not rebutted. [63] Further, it is important that in Boudreault the Supreme Court specifically noted that the reverse onus in s. 258(1)(

a) was not inissue on the appeal: para. 47. The entire decision is concerned with the test in situations where the presumption did not apply: i.e. seeparas. 41 – 47. [64] Accordingly, I adopt Browne, J.’s articulation of how the Court must determine care or control after Boudreault. Specifically, 40 If the Crown establishes that an accused was found in the driver’s seat of a motor vehicle, then the presumption in s. 258(1)(

a) isengaged. Once the presumption is engaged, an accused must establish on a balance of probabilities that he did not occupy the driver’sseat for the purpose of putting the vehicle in motion. If an accused fails to rebut the presumption, the court must find that the accusedwas in care or control of the motor vehicle.

A court does not need to determine whether or not there was a realistic risk of danger. 41 Only when and if the court finds that the presumption is rebutted, must the court also assess the evidence to determine whether defacto care of control has been proven by determining whether a realistic risk of danger to persons or property may arise because of theaccused’s position in the driver’s seat of the vehicle. [65] Having found that the presumption applies and has not been rebutted, I find that the accused was in care or control of the motorvehicle at 4:00 a.m. when he was impaired and over 80.

However, in the event that I am wrong in adopting the rationale and conclusionsin R. v. MacKenzie, [2013] A.J. No. 899, I will address the evidence regarding whether there was a realistic risk of danger in this case. Evidence of Risk [66] PC Ellis testified that he believed the car was “undriveable”. PC Witt thought that it appeared to be “inoperable”. However,neither officer attempted to drive the vehicle. PC Ellis described the vehicle as “being stuck on a sign” although the photographs of thevehicle show it to be beside the sign straddling a low curb.

Photographs entered as exhibits show a badly damaged car with bothpassenger and driver side doors smashed in. The passenger-side front wheel is over the curb and bent at a 45 degree angle and thedriver’s side back wheel also appears to be out of line. However, that was the extent of the evidence relevant to immobility orinoperability. (I put no weight on Detective Stewart’s evidence since he opined based on photographs only). [67] Overall, I find that it is not clear that the motor vehicle was immovable.

Further, I do not find that it was inoperable in light ofthe fact that the engine was running and the running lights were on when the police arrived. The Court was presented with no evidenceof a mechanical or technical nature indicating that the car was either immoveable or inoperable. Although one wheel was certainlyextremely bent, I am not prepared to find that that would stop the vehicle from moving from its position over the curb if the gas pedalwere applied.

Although there is evidence that the accused was trying to get out of the vehicle, there is no evidence as to failed efforts (orotherwise) at moving the vehicle. Further, although the vehicle was off the main road, it was in a parking lot where other cars orpedestrians would be expected to be at some point.

[ 68 ] In these circumstances, I find that there was a realistic risk of danger to persons or property. Conclusion [ 69 ] The evidence is clear that the accused’s ability to operate a motor vehicle was impaired by alcohol at 4:00 a.m. and I accept the expert evidence that his BAC levels at that time would have been 172-222. In addition to the expert evidence that the accused would be impaired at those levels, I also take into account that the accused admitted to drinking alcohol that night to the paramedic and that he caused this single vehicle crash with no apparent external cause.

Accordingly, there will be findings of guilt on impaired care and control and over 80. However, the over 80 charge will be conditionally stayed pursuant to Keinapple . Released: July 18, 2014 Signed: “Justice D. Oleskiw”