R. v. Grewal, 2017 ONCJ 883

ONTARIO COURT OF JUSTICE CITATION: R. v. Grewal , 2017 ONCJ 883 DATE: 2017 12 20 COURT FILE No.: 16-13164 BETWEEN: HER MAJESTY THE QUEEN — AND — Gurmukh Grewal Before Justice P.T. O’Marra Heard on November 8 and 9, 2017 Reasons for Judgment released on December 20, 2017 Christina Sibian.................................................................................. Counsel for the Crown David Locke……………………………………………………..Counsel for the Defendant P.T. O’Marra J.: Introduction: [ 1 ] On October 16, 2016, Mr. Grewal was charged in the City of Brampton with the following offences: (

i) That he was operating his motor vehicle while his ability was impaired by alcohol, contrary to

section 253 (

a) of the Criminal Code of Canada ; and (ii) That he was operating his motor vehicle with excess blood alcohol, contrary to

section 253 (

b) of the Criminal Code of Canada . [ 2 ] There was an application pursuant to section 24(2) of the Charter of Right and Freedoms to exclude at trial all evidence obtained subsequent to the violation of Mr. Grewal’s right under

section 10(

b) of the Charter . [ 3 ] Like in most cases, the matter proceeded as a blended voir dire, however, the testimony of Mr. Grewal’s daughter, Paramvir Grewal applied only to the trial proper. [ 4 ] Mr. Grewal bears the onus on the

section 10(

b) Charter argument on a balance of probabilities. The Crown has the onus to establish that the warrantless search and seizure in this case was lawful. See: R. v. Hass , [2005] O.J. No. 3106 (C.A.) paras. 24-26 . However, at the conclusion of the trial, Mr. Locke abandoned his assertion that the warrantless search and seizure of his client’s breath was not pursuant to a lawful demand. [ 5 ] I am left, therefore to determine the following issues: (

i) Upon his arrest did the police fail to inform Mr. Grewal that he had the right to retain and instruct counsel without delay, contrary to

section 10(

b) of the Charter ?

(ii) If, the answer to the first question is “yes”, should there be an order excluding all evidence obtained subsequent to the violation of Mr. Grewal’s right pursuant to section 24(2) of the Charter ? (iii) Has the Crown proved beyond a reasonable doubt that Mr. Grewal operated his motor vehicle while his ability was slightly impaired by alcohol? An overview: [ 6 ] On October 16, 2017, early in the evening, Avtar Singh Chauhan was driving to his friend’s home. He saw Mr. Grewal’s motor vehicle driving erratically along Bovaird Drive in Brampton.

He called 911 to report the motor vehicle and the licence plate. [ 7 ] At 7:11 p.m., P.C. Silelnikov and P.C. Best were dispatched to investigate. At 7:17 p.m., they arrived at Mr. Grewal’s residence. They both observed Mr. Grewal getting out of his motor vehicle from the driver’s side. The garage door was open. He appeared unsteady on his feet and almost falling over. He required his motor vehicle in order to steady himself. Both officers detected a strong odour of alcohol coming from his breath. [ 8 ] At 7:17 p.m., Mr. Grewal was placed under arrest for impaired operation. Mr.

Grewal called out in the direction of the open garage. His daughter, Paramvir Grewal came out and walked to her father. Mr. Grewal handed the keys to the motor vehicle to Ms. Grewal. [ 9 ] At this point, Ms. Grewal attempted to persuade the officers that she had driven the motor vehicle and not her father. [ 10 ] Mr. Grewal was handcuffed, given a pat down search and placed in the rear of P.C. Best’s cruiser. To some degree the right to counsel was given to Mr. Grewal by P.C. Best in the form of “soft rights” which was a very cursory explanation of the right to counsel. P.C. Best left Mr. Grewal to assist P.C.

Silelnikov who was speaking to Ms. Grewal. [ 11 ] At 7:41 p.m., P.C. Best returned to her cruiser and at 7:43 p.m. commenced reading the right to counsel to Mr. Grewal until 7:48 p.m. P.C. Best read the formal breath demand to Mr. Grewal at 7:50 p.m. [ 12 ] At 7:52 p.m., P.C. Silelnikov and P.C. Best left the scene and arrived at 11 Division at 8:06 p.m. [ 13 ] At 8:17 p.m., Mr. Grewal was lodged in a cell. [ 14 ] After finding the correct spelling of the name of his counsel of choice “Jerry Saltzman”, P.C.

Best called at 8:22 p.m. and 8:40 p.m. respectively, however there was no answer and no voicemail. [ 15 ] At 8:28 p.m., Mr. Grewal requested that P.C. Best contact duty counsel on his behalf. [ 16 ] From 8:31 p.m. until 8:51 p.m. Mr. Grewal spoke to duty counsel. [ 17 ] At 8:52 p.m., Mr. Grewal was escorted to the breath room. [ 18 ] At 9:05 p.m., Mr. Grewal provided his first sample of his breath that produced a reading of 224 milligrams of alcohol in 100 millilitres of blood and at 9:27 p.m. his second sample of breath resulted in a reading of 234 milligrams of alcohol.

Analysis: The Charter Application : [ 19 ] Mr. Grewal submits that after his arrest at 7:17 p.m., P.C. Best did not commence reading to him his right to counsel until 7:43 p.m. He argues that this is a violation of

section 10(

b) of the Charter . [ 20 ]

Section 10(

b) of the Charter provides that upon arrest or detention, individuals must be advised of their right to retain and instruct counsel "without delay". The meaning of the term "without delay" was explained by the Supreme Court of Canada over seven years ago in R. v. Suberu , 2009 SCC 33 at para. 42 : To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(

b) creates an ill-defined and unworkable test of the application of the s. 10(

b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10( b ).

Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter , the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [ 21 ] P.C. Best did not immediately provide to Mr. Grewal the informational nor the implementational components of the right to counsel upon his arrest or detention. The Crown argues that this was not an infringement of

section 10(

b) citing an overarching concern for officer safety given that Ms. Grewal was confrontational with the police over her father’s arrest. (

i) Officer Safety: [ 22 ] Mr. Grewal submits that the “officer safety” exception has been exaggerated by the officers, more so by P.C. Best than P.C.

Silelnikov and should be rejected. [23] The concept of officer safety in the context of detaining an individual includes the notion that the officer asserting the doctrinemust have a reasonable belief based on facts known at the time. However, courts must be careful to protect an officer’s safety. Butequally important is the courts’ obligation to ensure that officer safety concerns do not infringe upon the individual’s liberty. [24] As Justice Schreck stated in R. v. Singh, [2015] O.J.

No. 5922, at para. 24, Policing is an inherently dangerous profession and the courts must be sensitive to the need to ensure officer safety. That said, there mustnonetheless be limits on the extent to which the police can infringe on individual liberty in the name of safety. That limit depends onwhat is reasonably necessary in the circumstances. To determine reasonable necessity based on safety concerns in the detention context,it is helpful to consider how that standard is applied in the search context. When searches are reasonably necessary for safety reasons wasconsidered in R. v.

MacDonald, 2014 SCC 3 , [2014] 1 S.C.R. 37, where LeBel J., writing for the majority, stated (at para. 41) But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view,the principles laid down in Mann [2004 SCC 52 , [2004] 3 S.C.R. 59] and reaffirmed in Clayton require the existence ofcircumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to thesafety of the public or the police.

Given the high privacy interests at stake in such searches, the search will be authorized by law only ifthe police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search(Mann, at para. 40; see also para. 45). The legality of the search therefore turns on its reasonable, objectively verifiable necessity in thecircumstances of the matter (see R. v. Tse, 2012 SCC 16 , [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, asearch cannot be justified on the basis of a vague concern for safety.

Rather, for a safety search to be lawful, the officer must act on"reasonable and specific inferences drawn from the known facts of the situation" (Mann, at para. 41). [25] I must consider whether officers Silelnikov and Best’s safety concerns were at stake and reasonably based on the ascertainedfacts that justified breaching Mr. Grewal’s

section 10(

b) right. [26] P.C. Silelnikov testified that he remained with P.C. Best for “officer safety reasons”. He spent approximately ten minutestalking to Ms. Grewal. He testified that he dismissed her story almost immediately. [27] P.C. Silelnikov testified that Ms. Grewal’s story was inconsistent. She appeared nervous and unable to make eye contact withhim while telling her story. He felt that she was being untruthful and was just covering up for her father. She was “outraged and was nothappy with the motor vehicle seizure”. He testified that he was with her explaining the situation until 7:52 p.m. He felt that P.C.

Bestremained at his side for safety reasons as Ms. Grewal was in such an emotional state. In addition, Mr. Grewal’s wife and a young malewere present. The extent of their involvement was to yell “you can’t take the car”. There were no acts or threats of violence towards theofficers. P.C. Silelnikov indicated that he retrieved the keys from the daughter without any resistance from her. In fact, when P.C.Silelnikov directed Ms. Grewal to retrieve her father’s wallet she was compliant. [28] In cross-examination, P.C. Silelnikov conceded that he did not record in his notes that the daughter was yelling.

He stated thathe required P.C. Best to assist him when he was speaking to the daughter as she has “people skills”. P.C. Silelnikov agreed that he couldhave gone to the cruiser to provide the right to counsel to Mr. Grewal, but he testified that he was uncertain if P.C. Best had alreadyspoken to Mr. Grewal. He also acknowledged that he never bothered to inquire if P.C. Best had informed Mr. Grewal of his right tocounsel. P.C. Silelnikov agreed with the suggestion that Ms. Grewal did retrieve Mr.

Grewal’s wallet from the motor vehicle. [29] If there was a bona fides officer safety concern the officers could have easily called for backup from other officers to assist inmanaging Mr. Grewal’s family. When that suggestion was put to P.C. Best in cross-examination, she testified that she did not feel that itwas necessary to “pull other officers from other calls”. [30] P.C. Best recorded in her notes that any reason for the delay for the tow truck or other units arrival was not due to officer safetyissues or difficult circumstances, but rather it was due to the “investigation”.

Neither officers cited in their notes that there was a concernfor officer safety that led to the delay in the implementation of the right to counsel or the delay in the arrest and processing of Mr.Grewal. [31] In my view, the 33 minute delay had less to do with officer safety concerns and more to do with calming down Mr. Grewal’sfamily, explaining the reason for the tow and to investigate Ms. Grewal’s story. (ii) The duty to investigate Ms.

Grewal’s story: [32] The Crown advanced a further argument in the Response to the Notice of Application that the police delayed informing Mr.Grewal about the right to counsel as they were obligated to investigate Mr. Grewal’s daughter’s claim that she was the driver of herfather’s motor vehicle and not him. [33] Mr. Grewal argues that the officers were engaged in a further investigation and that should not have undermined Mr.

Grewal’sright to immediacy to be informed of his right to counsel as stated in Suberu. [34] I agree with the Crown that the police had a duty to investigate her claim and that may have affected their grounds to arrest Mr.Grewal. However, I am not persuaded that the officers spent a great deal of time investigating Ms. Grewal’s story. As P.C. Silelnikovtestified he had rejected her story almost immediately based on their reasonably held belief that they had arrested the correct driver.

(iii) The soft rights: [35] The Crown argues that when P.C. Best placed Mr. Grewal in the rear of the police cruiser she provided him with “soft rights”or “quick rights”, and as such she fulfilled the

section 10(

b) requirement. [36] I respectfully disagree with the Crown that this was in compliance with the informational requirement of

section 10(b). As amatter of routine the Supreme Court has mandated that a detainee must be informed of the existence and availability of duty counsel andlegal aid in order to give the detainee a comprehensive understanding of the right to retain and instruct counsel. See: R. v. Brydges, (SCC), [1990] 1 S.C.R. 190 and R. v. Pozniak, [1990] 3 S.C.R.310. [37] As the Supreme Court stated in Suberu, the right to counsel must be given without delay and that means immediately.

Theofficers embarked upon other actions, some are acceptable such as fulfilling administrative duties, but the majority of their time wasspent conversing with Ms. Grewal and other family members. This delay could have been circumvented if they simply called forassistance and regained their focus on providing Mr. Grewal’s Charter-protected rights. [38] Based on the foregoing, the delay in providing Mr. Grewal’s right to retain and instruct counsel was violated. Section 24(2): Should there be an order excluding all the evidence obtained subsequent to the violation of Mr.

Grewal’s right to counselpursuant to section 24(2) of the Charter? [39] The Supreme Court of Canada, in R. v. Grant, 2009 SCC 32 , held that three factors are relevant to an assessment ofwhether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute: (1) an evaluation of the seriousness of Charter-infringing state conduct; (2) the seriousness of the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in an adjudication of the case on its merits.

After considering these factors, a court must balance the assessmentsunder each line of inquiry in deciding the ultimate issue. [40] Mr. Grewal did not receive the fully informed right to counsel until 7:43 p.m. from P.C. Best. Notwithstanding that Mr.Grewal was given his right to counsel and indicated that he wanted to speak to counsel of choice and did speak to duty counsel, does notameliorate or give Mr. Grewal a “fresh start”. See: R. v. Manchulenko (2013), 2013 ONCA 543 , 301 C.C.C. (3d) 182 (Ont.C.A.), R. v. Singh [2015] O.J.

No. 5922 In this case, the Charter breach and the obtaining of the evidence were part of the same chain ofevents and temporally connected. On the facts of this case, I do not find that there was a "fresh start" that had the effect of severing thelink. As a result, the evidence at issue was "obtained in a manner that infringed or denied" Mr. Grewal’s Charter rights. Seriousness of the Charter-infringing state conduct: [41] In my opinion the breach of Mr. Grewal’s right was serious.

As already stated, I am sceptical that the officers needed 24minutes (time of the arrest to the time he was given the right to counsel) to investigate Ms. Grewal’s claims that she was the driver. As Iunderstand the evidence, the police spoke to Ms. Grewal for ten minutes, and her story was quickly rejected. The right to counsel has tobe administered without delay upon arrest or detention. The right is not suspended while the police further investigate. Even if I doaccept that the officers had only spent ten minutes investigating her story, an officer still had ample time to read the right to counsel toMr. Grewal.

Rather than doing so, the officers called for a tow truck, called dispatch to advise that they had Mr. Grewal in custody, andcalled for a breath technician. Even if I gave the officers the benefit of the doubt that they were absolutely satisfied that they had thecorrect driver in custody at 7:36 (when they called for the tow truck) that still left approximately seven minutes for the police tocommence reading the right to counsel and the breath demand. [42] Furthermore, the claim that the police officers needed to remain at each other’s side for “officer safety reasons”, in my view, hasbeen embellished.

They could have called for assistance and then focused on providing Mr. Grewal his right to counsel. Thecircumstances of Mr. Grewal’s arrest were hardly dynamic involving multiple detainees and the officers were not outnumbered facing avery real officer safety concern. See R v. Blazevic, [2012] O.J. No. 531 and R. v. Bollers, [2017] O.J. No 2740 (S.C.J.). For thosereasons the state-infringing conduct militates towards exclusion. The impact of the breach on the Charter-protected interests of Mr. Grewal: [43] I am next required to consider the impact of the violation on Mr.

Grewal’s constitutionally protected interests. “The moreserious the impact on the accused’s protected interests”, the majority in R v. Grant, 2009 SCC 32 , [2009] 245 C.C.C. (3d) 1,noted, “the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are oflittle actual avail to the citizen, breeding public cynicism and bringing the administration into dispute.” See supra, Grant para 76. [44] Mr. Grewal was handcuffed, patted down and placed in the rear of the cruiser after his arrest at 7:17 p.m.

The right to counselwas commenced at 7:43 p.m., which was 31 minutes after his arrest. He did not have the comfort of knowing that he could speak to alawyer or duty counsel during that period of time. He made it clear in the police cruiser that he did want to call a lawyer. He also statedthat he was “very uncomfortable” and asked for his hands to be “released”. It is a reasonable inference to draw that Mr. Grewal’s

handcuffs were too tight and needed to be loosened. [45] With regard to the breach of the right to counsel, I consider the impact upon the accused's Charter protected right to besignificant. In my view, admission of the evidence would send the message that the accused's right to counsel counts for little. [46] Justice G.A. Martin once described the right to counsel as one of "superordinate" importance. It is the means by whichindividuals can gain an understanding of all their rights, obligations, and vulnerabilities; and it is the means by which individuals maythen begin to assert their other rights. See R. v.

Sakharevych, [2017] O.J. No. 5209 paras.104 and 105. [47] The impact on Mr. Grewal’s Charter-protected rights was relatively serious. This favours exclusion. Society’s interest in the adjudication of the case on its merits: [48] Mr. Grewal’s breath samples and the breath room video are reliable and probative evidence which is essential to thedetermination of the case on its merits. I am mindful of the seriousness of the case, the reliability of the evidence and its importance. [49] Drinking and driving has potentially deadly and life altering consequences.

The carnage that it creates is a scourge to oursociety: See R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254. [50] I am aware of the fact that the seriousness of the offence should not take on a disproportionate significance. See R v. Harrison,2009 SCC 34 , [2009] 2 S.C.R. 494. [51] The exclusion of breath samples will be fatal to the Crown's case.

However, had the right to counsel not been ignored for sucha long period of time, perhaps this would not be necessary. [52] In this case and in these particular circumstances, taking into consideration the three factors that I have outlined, it is my viewthat in order to best serve the long-term repute of the administration of justice the evidence is excluded. As a result, the charge of excessblood alcohol, is dismissed. Has the Crown proved beyond a reasonable doubt Mr. Grewal was operating his motor vehicle while his ability was impaired byalcohol? [53] The Crown bears the onus of establishing that Mr.

Grewal’s ability to operate a motor vehicle was impaired at the relevant time.Impairment is generally understood as meaning that an individual's judgment is altered and his or her physical abilities, such ascoordination or reaction time, are reduced. Evidence which establishes any degree of impairment from slight to great is sufficient toestablish this element of the offence: R. v. Stellato (1993), (ON CA), 12 O.R. (3d) 90 (C.A.), aff'd (SCC), [1994] 2 S.C.R. 478. [54] Ms. Grewal’s testimony was that she drove her father home from his friend’s house after he consumed too much alcohol.

Shedescribed him as “smashed” and “pretty drunk”. She claimed that he was “being bit of a distraction” to the extent that he caused themotor vehicle to swerve. I believe her driving evidence was to account for the erratic driving that Avatar Singh Chauhan observed thatcaused him to call 911 to report a possible impaired driver. [55] I find that based on Ms. Grewal’s testimony that I do accept, that evidence alone with regards to her father’s sobriety proves thathe was beyond slightly impaired by alcohol. Furthermore, the officers described the following signs of impairment by alcohol: • P.C.

Silelnikov observed Mr. Grewal having “trouble standing up and was almost falling over”. He required the motor vehicle tosteady himself. • P.C. Best observed that when Mr. Grewal stepped out of the driver’s seat he “tripped over his feet”. • Mr. Grewal needed P.C. Best’s support to walk to the rear of the motor vehicle. • They were concerned that Mr. Grewal was so intoxicated that he was going to fall over and possibly injure himself. • They both stated that Mr. Grewal had the strong smell of alcohol on his breath. • P.C. Best observed that Mr. Grewal’s speech was slurred. • After his daughter, Ms.

Grewal came out of the garage Mr. Grewal handed his car keys to her. • Upon Mr. Grewal’s arrest he was uncooperative and he refused to be handcuffed. [56] Ms. Grewal testified that she drove her father’s motor vehicle onto the driveway and opened the garage. She stated that herfather got out of the passenger side and she waited for him to proceed through the garage and into the house.

She claimed that she left thekey fob in the cup holder inside the motor vehicle. [57] After the police arrived and arrested her father she testified that her father denied driving and told the police that his daughterwas driving the motor vehicle. [58] The Crown submits that if I believe Ms. Grewal than I must acquit Mr. Grewal. Applying the principles of R. v. W.D. I do not

believe Ms. Grewal’s evidence on this point that she was the driver. Ms. Grewal was not an independent witness, and I cannot rule outthe possibility that she was not an interested party in the outcome of these proceedings. It would be easy to conclude that she does notwant her father to incur a criminal record and lose his driving privileges over this matter. However, I do not place any undue weight onthat possibility when I assess her credibility. See: R. v. Laboucan, 2010 SCC 12. Nevertheless, I am entitled to accept all, part, or noneof the evidence of a witness. R. v. Toy, 2009 ONCA 176. [59] Ms.

Grewal’s story about accompanying her father to a body shop to check the motor vehicle tire pressure is difficult to accept.She felt that he could have been drinking before they left but did not expand on what was the basis for her belief. Furthermore, sheclaimed he drank at his friend’s body shop and then at his friend Charnjit Singh’s home. She could not tell the court what he wasdrinking or how much he had to drink. Her description in this regard was devoid of details. Her account of the drive home was equallyunbelievable.

She stated in cross-examination that her dad was talking to her and there was a “possibility” that the motor vehicleswerved. Her evidence was tailored to fit into Mr. Chauhan’s account of the erratic driving that he observed. This evidence I describe asa convenient coincidence. [60] I accept the evidence of the officers that they saw Mr. Grewal exiting from the driver side of his motor vehicle with the keys inhis hand. I reject the notion that Ms. Grewal was the driver. I must be careful in assessing the remainder of her evidence in the face ofmy abject rejection that she was the driver of the motor vehicle.

If a witness deliberately lied, demonstrated a marked disregard for thetruth, or patently unreliable, a trier of fact must be alive to the impact that such a finding can have on the assessment of that witness’scredibility. See: R. v. MacIntosh, 2011 NSCA 111. That being the case I accept her evidence that her father was intoxicated as this washer raison d’etre to claim that she was driving. On the evidence that is before me, I am more than satisfied beyond a reasonable doubtthat Mr. Grewal was impaired by alcohol. [61] However, that does not end the matter.

I still have to be satisfied beyond a reasonable doubt that Mr. Grewal was ‘operating’ hismotor vehicle based on the evidence led by the Crown. The Crown relied on the observations of the civilian witness, Mr. SinghChauhan and both officers. The officers never saw Mr. Grewal drive the motor vehicle into the driveway. Mr.

Chauhan conceded incross-examination that due to the window tinting he could not see the driver and could not determine if the driver was a man or woman.As well, he could not tell if there was more than one person in the motor vehicle. [62] That being the case, based on the evidence that I have accepted, I am not satisfied beyond a reasonable doubt that the Crown hasproven that Mr. Grewal was in fact operating his motor vehicle moments before the arrival of police. [63] Having found that I am not satisfied beyond a reasonable doubt that Mr.

Grewal was operating his motor vehicle while hisability was impaired by alcohol does not end the matter. It has been long established that impaired care or control is an included offence.Recently the Ontario Court of Appeal reaffirmed the doctrine of included offences in R. v. Pawluk, 2017 ONCA 863 , [2017]O.J. No. 5817. On behalf of the panel Justice Paciocco stated at para. 19 the following; The parties before us are in agreement that care or control over 80 is an included offence in a charge of driving over 80.

By implication,this proposition has long been settled in this court, which has held that impaired care or control is an included offence in an impaireddriving allegation: see R. v. Plank (1986), (ON CA), 28 C.C.C. (3d) 386 (Ont. C.A.). This same proposition has alsoreceived the endorsement of the Supreme Court of Canada when the court upheld the decision in R. v. Drolet, (QCCA), [1989] R.J.Q. 295 (Que.

C.A.), for the reasons given by LeBel J.A., as he then was: (SCC), [1990] 2 S.C.R. 1107.If impaired care or control is an included offence in an impaired driving allegation, care or control over 80 is an included offence in acharge of driving over 80. [64] In my view the Crown is entitled to rely on the presumption of care or control under s. 258(1)(

a) of the Code, as Mr. Grewalwas observed at 7:17 p.m., in "the seat or position ordinarily occupied by a person who operates a motor vehicle" and he was inpossession of the keys of the motor vehicle. Since Mr. Grewal has done nothing to discharge his onus to rebut the presumption, theCrown has established that he was in care or control. [65] To rebut the presumption of care or control contained within section 258(1)(

a) of the Code, the accused must establishthat she or he lacked the intention to set the vehicle in motion. If this occurs, the Crown has the onus of proving that the accused had defacto care or control of the vehicle. This requires proof that a realistic risk of danger to persons or property existed in the circumstancesdespite the lack of an immediate intention to place the vehicle in motion. The Ontario Court of Appeal has suggested that the "questionthe court must determine is whether any realistic risk of danger was created" (see R. v. Balogun-Jubril, [2016] O.J. No. 1231 (C.A.), atparagraph12).

It has also been noted that "even if an accused satisfies the court that he did not occupy the driver's seat with an intentionto drive, this will not necessarily result in an acquittal. Nor will it automatically result in a conviction. In the absence of an intention todrive, what will be required to convict is that there be a realistic risk of danger given the particular facts of the case" (see R. v. Steuart,2014 MBCA 7 , [2014] M.J. No. 16 (C.A.), at paragraph 43). [66] Even if I am incorrect that Mr.

Grewal has not led any credible evidence that he lacked the intention to set the vehicle inmotion, I am still satisfied that the Crown has discharged its onus that Mr. Grewal had de facto care or control of his motor vehicle andpresented a realistic risk of danger to drive his motor vehicle regardless that he was parked on his driveway and he was intending to enterhis home. Whether he had the keys in his possession as the police observed or they were in a cup holder, given Mr.

Grewal’s level ofintoxication he could have changed his mind and decided to drive while heavily intoxicated. [67] The standard for a realistic risk is a low threshold. The Court noted in R. v. Boudreault, 2012 SCC 56 , [2012] 3S.C.R. 157 at para. 48 that the realistic risk test constitutes a "low threshold": I need hardly reiterate that "realistic risk" is a low threshold and, in the absence of evidence to the contrary, will normally be the onlyreasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion.

To avoid conviction, theaccused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk ofdanger existed in the particular circumstances of the case.

CONCLUSION [ 68 ] For the reasons already stated, the Crown has established that Mr. Grewal was in care or control of his motor vehicle while his ability was impaired by alcohol. He is found guilty of this included offence. Released: December 20, 2017 Signed: Justice P.T. O’Marra