R. v. West, 2010 ONCJ 650

COURT FILE No.: Brampton Info.# DATE: 2010·12·07 Citation: R. v. West , 2010 ONCJ 650 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — GORDON WEST Before Justice J.A. Maresca Heard on October 29, 2009; February 26, 2010 Ruling on Motion for Directed Verdict released on December 7, 2010 Jeremy Schaeffer ...................................................................................................... for the Crown Michael Caroline ................................................................................ for the accused Gordon West MARESCA, J.: [ 1 ] Mr.

West is charged with operating a motor vehicle while his ability to do so was impaired by alcohol, and with operating a motor vehicle while the concentration of alcohol in his system was greater than 80 mg in 100 ml of blood. The Crown presented its case on these charges on October 29, 2009 and February 26, 2010. At the conclusion of the Crown’s evidence, Mr. Caroline, on behalf of Mr.

West, brought a motion for a directed verdict on the over 80 count alone. [ 2 ] The test which the Court must apply in determining the motion is whether there is some evidence upon which a jury, properly instructed and acting reasonably, could make a finding of guilt. By definition, the only evidence before the Court on a motion for directed verdict is that led by the Crown. The quality of that evidence is not to be determined at this stage, and findings of credibility are not relevant. [ 3 ] In considering this motion, a brief

summary of the facts is required. [ 4 ] On January 18, 2009, Mr. West went to Jake’s Boathouse, a restaurant in Brampton. Mr. West was seated at the bar, and was consuming alcohol. He came to the attention of Mr. Brown, the operations manager at the restaurant, and Mr. Douglas, an employee, at about 11 pm, when they saw Mr. West leave the bar area, stumble, and fall to the ground. His nose was bleeding, and the two gentlemen assisted him. After exchanging some words with Mr. West, Mr. Brown offered to call him a cab to drive him home. When asked why he made that offer, Mr. Brown explained that he thought Mr.

West had had too much to drink. Mr. West initially resisted the suggestion, but was ultimately persuaded not to drive. A taxi was called, and Mr. West was driven away. About 30 minutes later, Mr. Douglas, who was at the entrance to the restaurant, saw a cab pull up to the defendant’s vehicle in the parking lot. He observed Mr. West get out of the cab, and go to his car. He called Mr. Brown to come out and advised him that the defendant was going to his car. Mr. Brown ran out and offered to drive Mr. West to a hotel across the street for the night. He took Mr. West’s keys from him. Mr. West agreed. [ 5 ] Mr.

Brown gave Mr. Douglas the car keys, and went to get his car to drive the defendant to the hotel. Mr. Douglas went over to Mr. West, who was standing by his car, waiting for Mr. Brown to return. The defendant grabbed the car keys from Mr. Douglas, pushed him away, and got into his car. [ 6 ] Mr. Douglas opened the car door, and asked Mr. West to wait until Mr. Brown could drive him. Mr. West responded that he didn’t want to wait. He closed the door and put the car in reverse, almost hitting Mr. Douglas. He drove over the cement stops at the edge of the parking lot and into a field in front of the lot.

The area was covered with snow, and Mr. West got stuck, unable to drive forward. He reversed the car, backing up along his own tire tracks, back into the parking lot, and drove towards the exit. [ 7 ] Mr. Brown, in the interim, had brought his truck around into the parking lot, and blocked the exit, preventing Mr. West from leaving. Mr. West remained in his car for some three minutes, and finally reversed his car and re-parked in the spot he had originally occupied. Mr.

Douglas went into the restaurant to call the police. [ 8 ] At 12:59 am, the police received a call to investigate a possible drunk driver at Jake’s Boathouse. Officer Hails was the first on the scene, arriving at 1:09 am. He spoke initially with Mr. Brown, who had remained in his truck, blocking the exit. Officer

Lovell arrived about that time, and the two officers approached the defendant’s car. They saw Mr. West in the driver’s seat, with the car keys in his hand. P.C. Hails spoke with Mr. West, who was wearing his seat belt, and smelled alcohol on his breath. He noticed that Mr. West’s face was flushed, and that he was slurring his words. He was agitated, belligerent, and aggressive. He exited the car, and leaned against it. At that point, Officer Lovell arrested Mr. West for being impaired by alcohol while being in care and control of his vehicle. The time was 1:15 am. [ 9 ] Officer Hails testified that Mr.

West was very unsteady on his feet, and in fact stumbled and fell as he made his way to the cruiser. His pants fell around his knees, and he did not react to that at all. The officers had to place him in the back of the cruiser. [ 10 ] Mr. West was taken to 22 Division, arriving at 1:32 am. There is no issue with the fact that he was given his rights and cautioned appropriately. He was turned over to the breath technician at 2:07 am. Mr.

West provided two suitable samples of his breath, and his BAC readings were 186 at 2:58 am and 168 at 3:19 am. [ 11 ] It appears from the evidence led by the Crown that at the time the officer received the call to investigate the incident, being 12:59 am, Mr. West had already stopped driving. I am satisfied on the evidence I have heard thus far that he did not operate his vehicle after 12:57 am. [ 12 ] When Mr. West was arrested, he was charged with the offence of being in care and control of a vehicle when his blood alcohol content (“BAC”) was greater than 80. It was only while Mr.

West was speaking with the breathalyser technician in the breath room that the officer learned that witnesses had seen Mr. West driving. It was at that point that Mr. West was advised that the charge would be changed to operation of a motor vehicle with a BAC reading of more than 80. It was clear from the evidence and conceded by the Crown that the officer changed his mind about the wording of the charges after he received the information of the eye witness accounts of Mr. West’s driving. [ 13 ] In order to rely on the presumption of identity under s. 258(1) (

c) of the Criminal Code , the first breath sample must be taken within two hours of the alleged commission of the offence. If the first sample is taken outside of that time, expert evidence must be called to establish the BAC readings of the defendant at the time at which the offence is alleged to have occurred. Here, the evidence provided by the Crown establishes that Mr. West stopped operating his motor vehicle prior to 12:57 am. The breath samples were taken at 2:58 and 3:19 am.

The Crown cannot rely upon the presumption of identity, and there was no toxicologist called to establish the accused’s BAC at the time of driving. Analysis [ 14 ] It is common ground that the charge of operating a motor vehicle with a BAC over 80 includes the offence of having care and control of a motor vehicle with a BAC over 80. [ 15 ] A driver is presumed to be in care and control of a motor vehicle if he occupies the driver’s seat of the vehicle. There is, at this point, no evidence to rebut that presumption. There is evidence before the Court that Mr.

West was in care and control of his vehicle when the police arrived on scene at 1:09 am, and that the first breath sample was taken within two hours of that time. [ 16 ] The argument of the defence is that Mr. West should not be in jeopardy of being convicted of care and control over 80. The submission has two parts, as I understand it. First, Mr. West submits that the police initially charged him with care and control over 80, and later changed the charge to operation over 80.

The fact that the wording of the charge was changed, he argues, shows that the intention of the police was to base the prosecution on his driving, not his occupation of the driver’s seat. [ 17 ] The second submission is that Mr. West’s driving and his care and control of the care are two separate delicts.

He argues that they are two distinct occurrences and that where there are two transactions – in this case, driving with a BAC of over 80 and care and control with a BAC over 80 – the Crown should be bound by the four corners of the charge as laid, and cannot ground a conviction for an included offence. [ 18 ] In support of this proposition, the defence cites several cases, including R. v. Ovcaric 1973 CanLII 1425 (ON CA) , 1973, 11 C.C.C. (2d) 565 (Ont.C.A) .); R. v. Motto 2005 CanLII 2051 (Ont. S.C.J.); and R. v. Wynnychuk 1962 CanLII 548 (AB CA) , 1962, 132 C.C.C. 227 (Alta. C.A.).

In my view, these cases stand for the proposition that where a series of events do not form one transaction, but rather consist of two separate occurrences, a conviction on one cannot stand on the basis that the evidence regarding the other makes out an offence included in the first. [ 19 ] In Ovcaric , the court put the issue this way: “An included offence within the meaning of s. 589 [now s. 662] is a part of the offence charged in the indictment and in order to permit a jury or Court to convict of an included offence, two conditions must be present.

Firstly, the offence charged in the indictment must contain all the essential elements of the included offence and secondly, the offence charged in the indictment and the included offence must both refer to the same transaction”. [emphasis added] [ 20 ] In the Motto case, the accused was charged with assault in a domestic matter. The complainant in the case gave an account of a struggle which included a push to the chest. The defendant testified, and denied pushing the complainant, although in his evidence, recounted a tussle over a telephone he was attempting to take away from her.

That evidence was sufficient to found a conviction on a charge of assault. The trial judge rejected the evidence of the complainant, finding that there was no push to the chest. He convicted the accused, however, of assault on the basis of the evidence given by him. [ 21 ] The appellate Court applied the reasoning in Ovcaric , and reversed the conviction: the accused’s evidence could not be used to convict him of another offence other than the one charged.

The fact that both delicts – the push to the chest and the struggle over the telephone – constituted assault if proven does not detract from the fact that it was the push to the chest on which the Crown based its case.

[ 22 ] That case can be distinguished from the case at bar. Mr. West was in care and control of his vehicle from the moment he entered it in the parking lot until the police came and he exited the car. In my view, the fact that he stopped driving did not end the transaction, as he remained in the driver’s seat at all times. Whether the officer changed his mind and changed the charge from over 80 care and control to over 80 operation is irrelevant. As an over 80 care and control charge is included in an over 80 operation charge, there was no prejudice to Mr.

West as to what charge he had to meet. [ 23 ] While neither the Crown nor the defence referred directly to the case of R. v. Pendleton , 1982 CanLII 3875 (ON CA) , [1982] 1 C.C.C. (3d) 228 (Ont. C.A.) in my view it is important to distinguish it from the case at bar. In Pendleton , the defendant was found by the police to be sitting in the driver’s seat of his truck, with the keys in the ignition and the motor running. He was given a roadside screening test, which he failed, and subsequently gave breath samples which indicated his BAC was over 80.

He was charged with care and control over 80. [ 24 ] The defendant testified that he had been driving earlier, and that he had stopped the truck when he realized he had consumed too much alcohol. His evidence was that while he was in the truck with the engine running, he only occupied the driver’s seat in order to speak with a passenger, not with the intention of driving. He was convicted by the trial judge, whose decision was upheld by the

summary conviction appeal court, on the basis of his own evidence that he was driving before pulling over. Neither court considered the presumption of care and control or the defendant’s evidence tending to rebut it. [ 25 ] The Court of Appeal overturned the conviction. The court held: The judges below, in our opinion, did not err in determining that a person can be convicted of having care and control when that person is shown to have been the driver of the motor vehicle. R. v. Miller [1953] O.W.N. 334 ; R. v. Coultis (1982), 1982 CanLII 2113 (ON CA) , 14 M.V.R. 278.

The Court went on to say, however: The trial judge did not refer to the presumption or to the defence evidence tending to rebut it; he concentrated on the admission by the accused that he had driven the truck within the two hours prior to the breathalyzer test.

However, this was not the offence for which the appellant had been arrested and charged and it was not the offence established by the prosecution’s evidence……….We are all of the view that there was an error of law in the courts below in focusing solely upon the appellant’s admission of driving at a time before his arrest.” [ 26 ] I do not propose to deal with Justice Duncan’s analysis of the Pendelton decision in light of R. v. Farrant 1983 CanLII 118 (SCC) , [1983] 1 S.C.R. 124, 4 C.C.C. (3d) 354.

For the purposes of the case at bar, Pendleton can be distinguished on its facts. [ 27 ] The concern of the Court in Pendleton was the reliance of the trial judge on the evidence of the defendant in order to convict. Mr. West has not yet given evidence; the motion before me must be decided solely on the basis of the evidence led by the Crown. All of the evidence necessary to establish guilt on the included offence of care and control over 80 has been given by witnesses on behalf of the prosecution alone. That evidence was made known to Mr. West via the pretrial disclosure process.

He was in no way surprised by the evidence led, and took no

part in contributing to the evidence against him. In my view, the rationale in Pendelton does not apply to Mr. West’s situation. [ 28 ] On the motion for directed verdict, the only evidence I have before me is that of the Crown’s witnesses. On the basis of the testimony I have heard, I find that there is some evidence upon which a reasonable jury, properly instructed, could find Mr. West guilty. [ 29 ] Motion dismissed.

Released: December 7, 2010 __________________________ Justice J.A. Maresca