R. v. Vrban, 2018 BCPC 159

Citation: R. v. Vrban 2018 BCPC 159 Date: 20180410 File No: 170541-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANITA MATHILDA VRBAN ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: K. Dutton Counsel for the Accused: K. Tourangeau Place of Hearing: Victoria , B.C. Date of Hearing: April 4, 2018 Date of Judgment: April 10, 2018 [ 1 ] THE COURT: At approximately 12:30 a.m. on September 18th, 2016, the police attended a single motor vehicle incident on Gorge Road just south of the intersection of Douglas and Hillside and Government Street. Upon arrival, it was obvious to police that the

vehicle had driven over a curb and struck and bent a speed sign before hitting a hydro pole causing a large gash in the pole. Wood splinters from the crash were strewn on the sidewalk behind the vehicle. The truck's passenger side mirror lay on the sidewalk between the pole and the truck. [ 2 ] Police watched as the defendant, Ms. Vrban, exited the vehicle from the driver's seat. Ms. Vrban was seen to be unsteady on her feet. Constable Greffard, the investigating officer, recalled observing Ms. Vrban take a step forward and a double step back to catch herself. She appeared to police to look disheveled.

At roadside, and a short while later on the sidewalk, Ms. Vrban fumbled through the contents of a purse when asked to produce her licence. [ 3 ] Upon closer inspection, Constable Greffard noticed that Ms. Vrban's face was red and her eyes red and droopy. Constable Greffard detected a faint odour of alcohol on Ms. Vrban's breath. Her speech was said to be slurred. She seemed confused. Still, Ms. Vrban told police she had been wearing her seatbelt and was uninjured. She declined medical attention. [ 4 ] Constable Greffard formed the suspicion that Ms. Vrban's ability to drive was impaired by alcohol.

She made an ASD demand, which registered a fail once Ms. Vrban had blown into the device. Based on all of these indicia, Constable Greffard determined she had reasonable and probable grounds to believe Ms. Vrban's ability to drive a motor vehicle was impaired by alcohol and therefore made a breath demand. Ms. Vrban was subsequently taken to the Victoria City Police detachment office where she provided two breath samples. [ 5 ] No one saw Ms. Vrban's vehicle strike either the speed sign or the pole, yet I have no doubt that it did.

The vehicle, which was clearly damaged, rested only metres from the clearly damaged pole. The Crown charges that Ms. Vrban not only drove the vehicle as it struck the pole, but that Ms. Vrban had the care and control of her motor vehicle while impaired by alcohol. [ 6 ] The Crown's case is circumstantial. It has no direct evidence that Ms. Vrban was driving when the accident occurred. It submits the evidence in this trial can lead to no other reasonable inference. The Crown submits also that the only logical inference that can be drawn from the evidence is that Ms.

Vrban was operating her vehicle while impaired by alcohol. [ 7 ] The question in this case is whether the Crown has discharged its onus to satisfy this court beyond a reasonable doubt of the charge. [ 8 ] Ms. Vrban, who elected to call no evidence, submits there is a wide margin of doubt in the case. The Crown has not proven the exact time of the accident. As much as 30 minutes may have passed before the first witness stopped at the scene and observed and spoke with Ms. Vrban. The defendant submits that anything could have happened during that time period. The driver could have fled the scene. Ms.

Vrban could have consumed alcohol perhaps to calm herself, though police saw no alcohol containers. The defendant submits the Crown has not proven none were present. All of these possibilities, it is submitted, should leave this court with reasonable doubt as to Ms. Vrban's guilt on Count 1. [ 9 ] In considering the evidence in the charge in this case, I bear in mind that, in a circumstantial case before entering a conviction the court must be satisfied beyond a reasonable doubt that the only reasonable inference that can be drawn from the evidence is one that points to the guilt of the accused.

A reasonable doubt is based on "reasonable and common sense." It is not "imaginary or frivolous." It does not involve proof to an absolute certainty and it is logically connected to the evidence or the absence of evidence: R. v. Villaroman , 2016 SCC 33 . [ 10 ] It is clear that reasonable doubt in a circumstantial case can be based on a lack of evidence or gaps in the evidence. When considering a circumstantial case, the court can and should look at other plausible explanations or reasonable possibilities that point away from the guilt of the accused.

Still, as the court writes at paragraph 37 of Villaroman : “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [ 11 ] So that what is plausible is a scenario or theory that simply cannot be pulled out of thin air. It should have some anchor in the evidence or on what can reasonably be inferred from a gap in the evidence. [ 12 ] In the case at bar, the Crown submits there are two paths to conviction, either of which is equally plausible on the evidence.

In the first, the Crown submits that this court can infer from the evidence, including the absence of certain evidence, that Ms. Vrban was driving her truck when it collided with the speed sign and hydro pole and that her ability to drive was impaired by alcohol at the time. [ 13 ] In determining, firstly, whether I can be satisfied beyond a reasonable doubt on the evidence that Ms. Vrban was driving her truck at the time of the collision, I have considered the photographic evidence entered as Exhibit 2 in this trial and the testimony of the transit driver, Mr.

Seeney, as well as that of Constable Greffard, the officer who primarily dealt with Ms. Vrban at the scene as well as the scene itself. [ 14 ] Mr. Seeney, a B.C. Transit driver, albeit with only a few years' experience, came upon Ms. Vrban's truck sitting in the right travel lane on Gorge Road amid the debris I have described. It struck him as notable, and I have no difficulty accepting his evidence, that is unlikely someone would have driven by the scene even at that time of night without stopping. In accepting this, I acknowledge a police car on its way to an emergency call did drive by as Mr.

Seeney was at the scene and on the phone to 911, but I accept that other officers had already been dispatched to the scene so this does not take away, in my view, from Mr. Seeney's observation. [ 15 ] I do not find that it follows from the fact Constable Greffard, having observed Ms. Vrban's vehicle with Mr. Seeney's bus behind it from a distance and from the north, did not attend the scene, that the sight was not remarkable. Constable Greffard would not have seen what Mr. Seeney saw as he pulled up behind Ms. Vrban's vehicle and that is the debris strewn on the sidewalk and road from the collision.

As soon as Constable Greffard did pull up behind Ms. Vrban's vehicle, it was immediately obvious to her that an accident had occurred.

[ 16 ] What flows from this is that I accept Mr. Seeney's evidence that he was likely the first person to pull up to the collision scene after it happened. Still, I cannot know how long it was between the time the collision occurred and Mr. Seeney's presence at the scene. [ 17 ] His observation was that Ms. Vrban looked dazed, that she was scratching her head, looking at the vehicle, and in Mr. Seeney's view, "kind of unsure what happened." I think it not unreasonable to infer that this is not uncommon behaviour of someone just involved in a motor vehicle accident. [ 18 ] Mr.

Seeney testified that he looked for and did not see anyone else nearby. He watched Ms. Vrban get into the driver's side of her vehicle and, once his Transit supervisor arrived, Mr. Seeney left his bus and went up to Ms. Vrban's driver's side door to check on her. He could not recall if the door was ajar, but he was certain it was mainly closed. He asked Ms. Vrban if she was okay and Ms. Vrban said she was. Mr. Seeney asked what happened and recalled Ms. Vrban saying, "I was just looking for a place to park." Mr. Seeney agreed on cross-examination that Ms.

Vrban could have meant she was looking for a place to park either before the collision or after. [ 19 ] Ms. Vrban was seen by Mr. Seeney in the driver's seat of her truck. He recalled her turn toward the passenger seat and, as he described it, "looking for stuff in the passenger seat." His evidence, corroborated by the photographs, was that the passenger seat was cluttered with papers, personal belongings, a food container, and other items. Mr. Seeney formed the opinion it was unlikely someone could have sat in the passenger seat.

Constable Greffard testified, in her view, that no one could have legally sat in the passenger seat in the sense that they could have used a seatbelt. [ 20 ] I find, based on the evidence, that it is entirely unlikely someone could have occupied the passenger seat at the time of the collision, but I could not discount the possibility entirely. Still, I am convinced beyond a reasonable doubt, on all of the evidence before me, that Ms. Vrban was the driver of her vehicle when it struck the sign and the pole. Ms. Vrban was the only person present at the scene when Mr. Seeney arrived.

No one else was present or visible from any distance, though Mr. Seeney looked. [ 21 ] It is, I find, unlikely anyone was in the passenger seat. The evidence does not suggest that was remotely likely. The vehicle belonged to Ms. Vrban. After appearing to survey the accident scene, Ms. Vrban placed herself into the driver's seat. I am left with no doubt she had possession of the keys to the vehicle either in her purse or on her person. [ 22 ] I accept that when Ms. Vrban told Mr. Seeney she was looking for a place to park, she could have meant she was looking for a place to park the vehicle after the collision.

So I do not draw from that statement the inference of an admission of driving at the time of the collision. [ 23 ] Still, based on all the evidence before me, I am satisfied beyond a reasonable doubt that the only reasonable inference I can draw, on the evidence, is that Ms. Vrban was driving her vehicle when it struck the pole. To find doubt based on the theory that someone else could have been driving the vehicle would constitute an exercise in pure speculation. Ms. Vrban's vehicle was in a collision. She was the only person at the scene. She had the keys to the vehicle in her possession.

The chance she was occupying the passenger seat at the time is remote. There is no evidence or even a suggestion that someone else was present at the time of the collision. There is no other inference that I can find that can be drawn from the evidence other than that Ms. Vrban was the driver. [ 24 ] The question, then, is whether the only inference I can draw from the evidence is that Ms. Vrban was impaired by alcohol at the time of the collision. There is no doubt, and I will return to this shortly, that Ms.

Vrban had alcohol in her system when she exited her vehicle immediately upon the arrival of Constable Greffard and her partner. So at some point before police arrived, Ms. Vrban must have consumed alcohol. [ 25 ] There is no evidence before me of any alcoholic beverage in the vehicle or any container that might have contained an alcoholic beverage. There was present in the vehicle a bottle a Listerine mouthwash which was partially empty. In argument, counsel submitted that this could account for the alcohol in Ms. Vrban's system - that Ms.

Vrban either drank from the bottle or at least rinsed with it. [ 26 ] I find that implausible for this reason. Later that evening at 3:30 a.m. and again at 3:59 a.m., Ms. Vrban gave breath samples, which registered 140 at the low end. Because the samples were not taken within the two-hour limit as required pursuant to s. 258(1)(

c) of the Code , the certificate of analysis cannot be relied on as evidence of Ms. Vrban's blood alcohol content at the time of driving. Pursuant to s. 258(1)(

d) of the Code and the reasons of the court in R. v. Smurthwaite , 2001 BCPC 287 , at paragraph 22 , and R. v. Tusiuk , [2000] O.J. No. 802 , at paragraph 4 , the certificate can only be used as evidence that Ms. Vrban had alcohol in her system when she exited the vehicle on arrival of police as it is clear she could not have consumed alcohol after that time and before giving her breath samples. [ 27 ] At the same time, the certificate is not rendered false. I can accept it as evidence that at 3:38 a.m. Ms. Vrban had in her system 140 milligrams of alcohol per 100 millilitres of blood.

I am prepared to take judicial notice that the consumption of a small amount of Listerine, or even the rinse of Listerine, could not account for that level of alcohol in Ms. Vrban's system in the circumstances. [ 28 ] The Crown submits that the circumstances of a single motor vehicle accident, coupled with the evidence of Ms. Vrban's alcohol consumption when she exited her vehicle, is enough evidence on which this court can infer Ms. Vrban was impaired by alcohol at the time of the collision. For the reasons I will set out shortly, I am left with no doubt that when Ms.

Vrban exited her vehicle upon the arrival of police, the indicia observed by Constable Greffard are indicia of impairment by alcohol. The question is whether I can be satisfied beyond a reasonable doubt that at the time of the collision Ms. Vrban was similarly impaired by alcohol. [ 29 ] While I am not prepared to speculate that Ms. Vrban may have consumed alcohol after the collision but before police arrived, the fact is I do not know when the collision occurred. I am prepared to accept, as noted, that it could have occurred much before Mr. Seeney arrived.

The area of the accident is, at least during the day, one of the busiest intersections in the City of Victoria. That much is apparent from the evidence of police officers who testified in this hearing. It is something that is well known in this city, in any event. At night, traffic in the area is lighter as police testified. [ 30 ] Even accepting that Mr. Seeney was the first driver on the scene, it is possible Ms. Vrban collided with the pole sometime

earlier, but not more than 30 minutes earlier and most likely much less. Still, can I be satisfied beyond a reasonable doubt that at the timeof the collision that Ms. Vrban's ability to drive was impaired by alcohol? I find I cannot. [31] In so finding, I am not speculating, as I say, that Ms. Vrban drank during this time.

Rather, without having evidence of herblood alcohol content at the time police arrived, it is hard to judge whether she was even slightly impaired by alcohol at the time, thoughin all likelihood she had alcohol in her system. [32] Moreover, the single motor vehicle accident alone, while it suggests in the circumstances impairment by alcohol, I find there isinsufficient evidence on which I can do any more than speculate as to the cause and circumstances of the collision. I find I cannot inferfrom the accident alone that Ms. Vrban was impaired by alcohol at the time that it occurred.

For those reasons, I do not accept theCrown's submission on what it submits is the first path to conviction. [33] In the second path to conviction, the Crown relies on s. 258(1)(

a) of the Code which provides that if someone is found in thedriver's seat of a motor vehicle, they are presumed to have care or control. The Crown submits Ms. Vrban was clearly in the driver's seatonce police arrived at the scene of the collision and that the evidence after her exit from the vehicle demonstrates beyond a reasonabledoubt she was impaired by alcohol. [34] As R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, provides, the Crown need only establish an accusedhaving care and control of a vehicle was minimally impaired in order to gain a conviction pursuant to s. 253(1)(

a) of the Code. I havealready noted I am satisfied beyond a reasonable doubt that Ms. Vrban was impaired by alcohol when she exited her vehicle upon thearrival of Constable Greffard. The indicia outlined above, Ms. Vrban's behaviour at the scene, and later at the police cells, whichConstable Greffard described as unusual for a woman of Ms. Vrban's age, all support, in my mind, beyond a reasonable doubt theinference that Ms. Vrban was impaired by alcohol when she exited her vehicle. [35] The more difficult question is whether I could be satisfied that Ms. Vrban had the care and control of her vehicle when sheexited. As the Crown submits, pursuant to s. 258(1)(

a) of the Code, once it is proven that an accused occupied the seat or positionordinarily occupied by a person who operates a motor vehicle, the accused shall be deemed to have had the care and control of thevehicle unless the accused established they did not occupy that seat or position for the purpose of setting the vehicle in motion. [36] Here, as it is clear on the evidence that Ms. Vrban was in the driver's seat of her vehicle just before she exited upon the arrivalof police, Ms. Vrban bears the onus of demonstrating on balance that her purpose was not to put the vehicle in motion. Ms. Vrban pointsto Mr.

Seeney's evidence that when he approached her vehicle to check on her, she was in the driver's seat, but turned toward thepassenger seat looking for something among the clutter. There is, in addition, evidence suggesting the driver's side door was at the veryleast ajar, albeit mainly closed. [37] On the other hand, there is no question in my mind that the keys were in Ms. Vrban's possession at this time either in thevehicle, in her purse, or on her person because they were found in her possession when police searched her after she exited her vehicle. Moreover, Ms.

Vrban told police she thought her vehicle was still driveable, although no one else having viewed the scene thought that itwas. [38] Ms. Vrban submits I can be satisfied she has rebutted the presumption in s. 258(1)(

a) on two grounds. First, that it is open to thecourt to find on the evidence of Mr. Seeney that she was occupying the driver's seat with the purposes of finding something in thepassenger seat. Alternatively, Ms. Vrban submits that it is open to me to find, as a practical matter, that irrespective of any intention orpurpose she may have had, the vehicle was rendered incapable of moving by the collision and, therefore, there was no realistic danger topersons or property arising out of her occupation of the driver's seat. [39] With regard to Ms.

Vrban's first submission, I cannot be satisfied on balance that her purpose in occupying the driver's seat wasfor some reason other than putting it in motion. Certainly, some of the evidence suggests she was looking for something in thepassenger seat, but that alone does not discount that Ms. Vrban also may have intended to move the vehicle. This, I find, is equallypossible on the evidence as she had the keys to the vehicle and she told police she thought it was driveable. The onus is on Ms.

Vrban todemonstrate on balance her purpose was something other than to put the vehicle in motion and I find she has not met that onus. [40] Ms. Vrban's alternative submission would hold that this is of no moment since it is open to this court to find the vehicle couldnot have moved in any event. This argument raises two questions: first, whether s. 258(1)(

a) of the Code requires proof by the Crownof a realistic risk of danger before the presumption operates and, if so, whether I can find on the evidence on balance that the vehiclecould not have moved had Ms. Vrban tried to do so. [41] For the reasons that follow, I find I need not decide this second issue except to note that while the vehicle was clearly not roadworthy, I cannot be satisfied it was entirely immobile. Certainly, there is evidence that the engine turned over when the key was placedin the ignition at the tow yard. The possibility that Ms.

Vrban might have moved her truck even for a short distance exists on theevidence. [42] As the court notes at paragraph 34 of R. v. Boudreault, 2012 SCC 56 Boudreault, the risk of danger must be realistic, but therisk itself need not be serious. In any event, I find for the following reasons that the Crown can rely on the presumption set out in s.258(1)(

a) of the Code. [43] Ms. Vrban relies on the reasons of Mr. Justice Fish in Boudreault as authority for the proposition that "care and control"pursuant to s. 258(1)(

a) signifies not only an intentional course of conduct associated with the motor vehicle by a person whose ability todrive is impaired, but also in circumstances that create a realistic risk of danger to persons or property. That is the ruling of Fish J.A. atparagraph 9 of Boudreault in respect of the meaning of "care and control" pursuant to s. 253(1)(

a) of the Code. The

section of the Codeas Justice Trotter notes in R. v. Blair, [2014] O.J. No. 4296, is the

section at issue in Boudreault. This fact is noted, as well, by JusticeFish at paragraph 47 of his reasons in Boudreault where he writes that Parliament so far created only one reverse onus in the context of"care and control" found in s. 258 which is not in issue on the appeal.

[ 44 ] I agree with the observations of Mr. Justice Trotter at paragraph 13 of Blair and it is obvious by the comments of Justice Fish at paragraph 39 of Boudreault , in any event, that Boudreault does not stand for the proposition that the Crown must prove a realistic danger to persons or property before the presumption under s. 258(1)(

a) applies. On the face of it, the question for the court in s. 258(1)(

a) of the Code is the intention of the accused. Has the accused met their onus to rebut the presumption of "care and control" on balance? [ 45 ] Here, I am satisfied for the reasons given that Ms. Vrban has not discharged her onus. She is assumed in law in the circumstances of this case to have had the care and control of her truck when she exited the vehicle. There is clear evidence which satisfies me beyond a reasonable doubt that immediately before exiting her truck, Ms. Vrban's ability to operate the vehicle was impaired by alcohol and, as such, Ms. Vrban must be convicted on Count 1 of the Information. (REASONS FOR JUDGMENT CONCLUDED)