R. v. Toppin, 2017 ONCJ 63

CITATION: R. v. Toppin , 2017 ONCJ 63 DATE: January 24, 2017 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — KENNETH TOPPIN Before Justice M. Greene Reasons for Judgment released on January 24, 2017 C. Power................................................................................................................... for the Crown L. Izakelian ........................................................................................................... for Mr. Toppin Greene J.: Introduction [ 1 ] On November 15, 2015, Mr.

Toppin was found passed out in his vehicle by security officers at Exhibition Place. Concerned for his safety, the security officer, Mr. Radley, contacted the police. Fire, ambulance and the police all attended the scene and interacted with Mr. Toppin. Eventually, the decision was made by the officer on scene, P.C. Hopton, to arrest Mr. Toppin for being in care and control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol. At the station, a qualified breath technician took two samples of Mr. Toppin’s breath to determine the concentration of alcohol in his blood.

As a result of these tests, Mr. Toppin was charged with being in care and control of a motor vehicle while having a blood alcohol concentration of over 80mg of alcohol in 100ml of blood and while his ability to operate the motor vehicle was impaired by alcohol. [ 2 ] At trial, Mr. Toppin argued that the results of the breath test should be excluded as a remedy for a breach of Mr. Toppin’s

section 8 Charter rights. He further argued that even if the results are admitted at trial, he was not in care and control of his motor vehicle at the relevant time. Crown counsel argued that there was no breach of Mr. Toppin’s Charter rights and that on all the evidence the offence is made out.

Summary of the Evidence [ 3 ] On November 15, 2015, Mr. Radley was working at the Exhibition Place. At 1:20 am he was on patrol when he noticed a vehicle parked in a parking lot with its lights on. Mr. Radley approached the vehicle and discovered that a man was inside the vehicle. The man was asleep, the car was on but it was in park. Mr. Radley knocked on the window a few times but the male, later identified as Mr. Toppin, did not respond. The doors to the vehicle were unlocked. Concerned for the man’s safety, Mr. Radley contacted the police.

[ 4 ] At 1:38 a.m., firefighters arrived on scene. Mr. Radley testified that one of the firemen turned off the vehicle, removed the keys and started to interact with Mr. Toppin. According to Mr. Radley, the police arrived a short time later at 1:42 a.m.. [ 5 ] Mr. Radley testified that he had nominal contact with Mr. Toppin after the firemen arrived. He did, however, see Mr. Toppin exit the vehicle and noticed that he appeared to be groggy, as though he had just woken up. [ 6 ] Mr. Connell was the first fireman on scene. Mr.

Connell testified that upon his arrival he approached the vehicle, which was in a designated parking spot, and saw Mr. Toppin slumped over the driver’s seat. Mr. Connell opened the unlocked passenger door, turned off the vehicle and removed the keys. Mr. Connell placed the keys on the bumper of the motor vehicle. According to Mr. Connell, Mr. Toppin did not initially respond to Mr. Connell but did eventually wake up. When he first awoke Mr. Toppin appeared dazed. Mr. Connell observed papers, an empty liquor bottle and a business card inside the vehicle. [ 7 ] P.C. Hopton arrived on scene at 1:41 a.m.

By the time he arrived, Mr. Toppin was already outside of his vehicle and was being attended to by paramedics. P.C. Hopton spoke to Mr. Connell who advised him of what had transpired prior to the officer’s arrival. P.C. Hopton then looked inside Mr. Toppin’s vehicle and saw an empty bottle of Bacardi gold rum (200ml) in the side pocket of the driver’s door. [ 8 ] P.C. Hopton held off speaking to Mr. Toppin until the paramedics had finished treating him. The paramedics advised the officer that Mr. Toppin’s blood sugar was low. [ 9 ] PC Hopton then spoke to Mr.

Toppin who advised that he was the owner of the vehicle. The officer then asked for Mr. Toppin’s driver’s license and insurance. According to the officer, Mr. Toppin appeared disoriented and had some difficulty locating his documents. The officer could not recall what Mr. Toppin did to cause him to reach this conclusion. He could not even recall from where Mr. Toppin retrieved his documents. Mr. Toppin did, however, provide a valid driver’s license. The officer then asked where Mr. Toppin had been that night and Mr. Toppin advised that he had been at “MUZIK”.

The officer knew this to be a night club on the exhibition grounds. The officer could not recall if Mr. Toppin also advised that he was at the club to see a comedy event. According to P.C. Hopton, during this conversation he detected an odor of alcohol on Mr. Toppin’s breath and as a result asked Mr. Toppin if he had consumed alcohol that night. Mr. Toppin responded that he had one beer. During this time, Mr. Toppin appeared to be disoriented and unsteady on his feet. A couple of times he had to step back a little to catch his balance. [ 10 ] P.C. Hopton then asked Mr. Toppin about his car keys.

According to the officer, Mr. Toppin stated that his friend, Jordan, had his keys and that he was waiting for his friend. As he spoke the officer detected a little slur in his speech. As a result of all these observations, the officer formed reasonable and probable grounds to believe that Mr. Toppin’s ability to operate a motor vehicle was impaired by alcohol and arrested him for this offence. [ 11 ] P.C. Hopton testified that he took notes of his interaction with Mr. Toppin at the scene on scrap pieces of paper.

Later, he recorded the information from the scrap pieces of paper into his notebook and threw away the scrap pieces of paper. The officer could not specifically recall what he put on the scrap pieces of paper. And conceded that his notes did not reflect a verbatim account of what Mr. Toppin said to him. [ 12 ] The paramedics recommended that Mr. Toppin consume some food given his low blood sugar. Prior to taking him to the station, Mr. Toppin was provided with a snack loaf from Starbucks. While Mr. Toppin consumed the food, the officer advised him of his rights to counsel and read the breath demand. [ 13 ] P.C.

Nichiporik arrived on scene with P.C. Hopton and searched Mr. Toppin’s vehicle. He located three bottles of alcohol in the vehicle. A bottle of Appleton’s rum on the floor of the vehicle at the front passenger side, a bottle of rum in the center console of the vehicle and a bottle of alcohol in the side door of the driver’s side. The bottle in the center console was ½ full and the bottle on the front passenger’s side was empty. [ 14 ] By 2:30 a.m. Mr. Toppin arrived at the police station. Mr. Toppin’s interaction with the police was videotaped and played in Court. On my view of the recording, Mr.

Toppin’s speech was not slurred, he was responsive, coherent, and showed no signs of being disoriented.

[ 15 ] Mr. Toppin was afforded an opportunity to speak to counsel and then provided two samples of his breath. At 3:17 am, Mr. Toppin had 130mg of alcohol in 100ml of his blood and at 3:39 am, Mr. Toppin had 130mg of alcohol in 100ml of his blood. [ 16 ] Mr. Toppin testified at trial. According to Mr. Toppin, earlier that day he had made plans with his friend Jordan Taylor to meet at MUZIK, a club on the exhibition grounds, to see to a comedy event. He was then going to get a ride with Mr. Taylor to Mr. Taylor’s residence and spend the night there. Mr.

Toppin knew that he was going to consume alcohol that night and did not want to drive. Mr. Toppin consistently referred to the location of the comedy event as MUZIK, but in fact the event took place at a separate building on the exhibition grounds, a short distance from MUZIK. Mr. Toppin explained that he used the club name MUZIK because in his mind the club he attended and MUZIK are linked. [ 17 ] Mr. Toppin testified that he arrived at the exhibition place, parked his vehicle in a designated spot, and took two bottles of rum into the club.

He did not pay admission, instead he entered through the back door and stayed back stage all night. While at the club, Mr. Toppin consumed five drinks of Bacardi rum and coke. He also had one beer. Mr. Toppin testified that by the end of the night he was feeling the effects of alcohol and knew that he could not operate his motor vehicle. A decision was made that a number of people would attend at Mr. Taylor’s residence to continue the night’s festivities. As they could not all fit into Mr. Taylor’s vehicle it was decided that Mr.

Taylor would drive four people to his residence, drop them off and then return to the Exhibition Place to pick up Mr. Toppin. Mr. Toppin testified that he went to his vehicle to wait for Mr. Taylor and turned his vehicle on for the heat as it was cold outside. The vehicle remained in park with the emergency brake engaged. Mr. Toppin reclined the seat so he could rest while waiting for Mr. Taylor. Prior to Mr. Taylor’s arrival, Mr. Toppin fell asleep in his vehicle. [ 18 ] Mr. Toppin testified about his interactions with P.C. Hopton.

He admitted that he lied to the officer when he stated that he only consumed one beer that night. He lied and downplayed how much alcohol he consumed because he was nervous about what was going to happen. Mr. Toppin denied telling the officers that he was waiting for his friend to bring him his keys. It was his recollection that he told the officer he was waiting for his friend to come and pick him up. [ 19 ] Mr. Toppin testified that he had no intention of driving that night and was confident that Mr. Taylor was going to pick him up. Mr.

Toppin further testified that while he was feeling the effects of alcohol that night, he was not so impaired that it affected his decision making. Moreover, there was no risk of accidentally setting his vehicle in motion as the vehicle was in park and the emergency brake was engaged. [ 20 ] Jordan Taylor also testified at trial. He testified that the plan that night was to attend a club located on the exhibition grounds called the Queen Elizabeth Theatre to watch a comedy show. It had been pre-arranged that after the show, Mr. Taylor would drive Mr.

Toppin to his residence where he would spend the night. [ 21 ] Mr. Taylor testified that the plans for the night changed slightly once the comedy show ended. Mr. Taylor decided to invite a group of people to his residence. He did not, however, have room in his vehicle for everyone, so he asked Mr. Toppin to stay back indicating that he would come back for him once all the other guests were safely at Mr. Taylor’s residence. It was agreed that Mr. Toppin would wait in his vehicle until Mr. Taylor returned. According to Mr.

Taylor, it takes approximately an hour to drive to his place, drop of his friends and return for Mr. Toppin. [ 22 ] On route back to the exhibition place, Mr. Taylor telephoned Mr. Toppin to advise he was on his way and to determine in which parking lot he was parked but Mr. Toppin did not answer his telephone. Mr. Taylor still drove to exhibition place to pick up Mr. Toppin. Upon his return to exhibition place, Mr. Taylor still could not reach Mr. Toppin by telephone. He drove to all the parking lots on the grounds, but was unable to locate Mr. Toppin or his vehicle.

After driving around for 20 minutes looking for Mr. Toppin, Mr. Taylor decided to return home. Issues Raised at Trial [ 23 ] As noted above two issues were raised at trial:

i) Were Mr. Toppin’s charter rights as guaranteed by

section 8 of the charter violated and if so, should the breath results be excluded? and,

ii) Was Mr. Toppin in care and control of his motor vehicle?

Section 8 of the Charter [24] An officer may arrest a person for impaired care and control and make a demand for the detainee to provide a sample of his breathinto an approved instrument where the officer subjectively believes that at the time the detainee was in care and control or operating amotor vehicle the detainee’s ability to operate a motor vehicle was impaired by alcohol. In order for the arrest to be lawful, thissubjective belief must be objectively reasonable (R. v. Bernshaw (SCC), [1994] S.C.J. No. 87). [25] The Crown need not prove that the defendant was significantly impaired.

The Crown need only prove that the officer hadreasonable and probably grounds to believe that the defendant’s ability to operate a motor vehicle was impaired by alcohol. Anyimpairment to one’s ability to operate a motor vehicle, no matter how slight, is sufficient to make out the offence of impaired driving (R.v. Stellato, (SCC), [1994] S.C.J. No. 51). [26] In the case at bar, counsel readily conceded that the officer had grounds to make a demand that Mr. Toppin provide a sample of hisbreath into an approved screening device. P.C. Hopton, however, did not make such a demand.

Instead he by-passed this step andarrested Mr. Toppin. P.C. Hopton testified that he did not make a demand for a sample to be provided into an approved screeningdevice because he had sufficient grounds to arrest. P.C. Hopton testified that the following observations provided him with the groundsto arrest:

i) Mr. Toppin was found passed out behind the wheel of his vehicle; ii) Mr. Toppin’s breath smelled of alcohol; iii) Mr. Toppin mentioned being at a club that night; iv) Mr. Toppin appeared confused and disoriented;

v) Mr. Toppin stumbled a few times; vi) Mr. Toppin had a slight slur to his speech; vii) Alcohol bottles were found in the car, some of which were empty; and, viii) Mr. Toppin made comments that seemed nonsensical to the officer. [27] Counsel for Mr. Toppin urged the court to reject many of P.C. Hopton’s observations including the slurred speech, the appearanceof being disoriented and the confusing utterances. Counsel argued that P.C. Hopton’s evidence on these particular points was notcredible and not reliable. [28] I agree with counsel that P.C. Hopton’s evidence was unreliable in many respects.

My first concern relates to the way the officertestified throughout his cross-examination. In examination in chief, P.C. Hopton answered every question posed directly. P.C. Hopton’sdemeanor and manner of answering questions changed dramatically during cross-examination. Once defence counsel started askingquestions, the officer rarely answered questions directly.

It appeared to me that before answering the majority of the questions posedduring cross-examination the officer first considered the point that he thought defence counsel was trying to make and then instead ofanswering the question directly, answered the question in a manner that served to undermine the point that he perceived defence counselwas trying to make. As a result the officer frequently appeared evasive during his cross-examination. [29] I was also troubled by the officer’s evidence in relation to the scrap paper notes he made. Firstly, the officer was inconsistent aboutwhether not he made scrap notes.

Secondly, the officer could not recall what he wrote on the notes that he subsequently destroyed. Thisraises real concerns about whether or not the notes written by this officer hours later at the station, accurately reflect his observations andhis conversations with Mr. Toppin. This is particularly relevant to the Officer’s evidence that Mr. Toppin’s comments werenonsensical. [30] In light of these findings, I am unable to rely on portions of P.C. Hopton’s evidence. In particular, I have some real concerns about

the reliability of the officer’s recollection of Mr. Toppin’s comment about his friend returning with his car keys. Mr. Toppin denied making this utterance and it is unclear what, if any of this utterance was recorded at the time on a scrap piece of paper or at the station many hours after the utterance was made. [ 31 ] Much of P.C. Hopton’s evidence, however, was confirmed by other witnesses whose evidence I do accept. I found both the security officer and the fireman to be credible and reliable witnesses. Their evidence confirms that Mr.

Toppin had been passed out in his vehicle, was hard to rouse, and appeared disoriented. Moreover, Mr. Toppin and Mr. Taylor both testified that Mr. Toppin was affected by the alcohol he had consumed that night and that he was in no condition to drive. In light of all this additional evidence I accept that at the time of arrest, P.C. Hopton knew that Mr. Toppin had been found passed out in his vehicle, that his breath smelled of alcohol, that Mr. Toppin appeared disoriented, that partially empty bottles of alcohol were found in Mr. Toppin’s vehicle and that Mr. Toppin had slightly slurred speech.

I also accept that at the time of the arrest, P.C. Hopton subjectively believed that Mr. Toppin’s ability to operate a motor vehicle was impaired by alcohol. [ 32 ] Given the extensive observations made by P.C. Hopton, I am also satisfied that P.C. Hopton’s subjective belief was objectively reasonable. In my view the officer had the proper grounds to make the arrest and the demand for a breath sample to be taken into an approved device to determine the concentration of alcohol in Mr. Toppin’s blood. I therefore find that the officer did not violate any of Mr. Toppin’s Charter rights.

Care and Control Relevant Findings of Fact [ 33 ] In the case at bar, there is no dispute that Mr. Toppin was found in the front seat of his motor vehicle while the vehicle was turned on. Mr. Toppin testified that he had no intention of driving that night as he had a solid plan for Mr. Taylor to pick him up within the hour. He entered his vehicle and turned it on to keep warm while he waited for Mr. Taylor and ended up falling asleep. Crown counsel argued that I should reject Mr. Toppin’s evidence on this point as he was not a credible witness. Crown counsel identified a number of statements made by Mr.

Toppin that he argued were not credible:

i) Mr. Toppin told the officer and the Court that he had been at MUZIK that night then later testified that he was at the Queen Elizabeth Theatre’; ii) Mr. Toppin did not have an overnight bag with him; iii) It does not accord with common sense that Mr. Toppin would wait for an hour in his car for Mr. Taylor when he could have taken a taxi to Mr. Taylor’s residence; iv) Mr. Toppin admitted in his testimony that he lied to the police about how much alcohol he consumed that night; and,

v) Mr. Toppin’s explanation for the three bottles of alcohol in his vehicle did not accord with common sense. [ 34 ] None of the issues identified by the Crown cause me to doubt the veracity or reliability of Mr. Toppin’s evidence. In relation to which club Mr. Toppin was at that night, Mr. Toppin did consistently tell the police and the court that he had been at MUZIK that night. When it was explored in more detail, it became clear that the comedy event was not at MUZIK (which is located on the exhibition grounds) but at another club also located on the exhibition grounds. Mr.

Toppin testified that in his mind these clubs are linked as they are all on exhibition grounds and so he just refers to all the clubs as MUZIK even though they are distinct clubs. In my view this explanation is completely reasonable and plausible and I have no reason to reject it. Moreover, since both locations are bars where alcohol is served and they are both on the exhibition grounds where Mr. Toppin indicated he had been that night, it is difficult to discern why Mr. Toppin would lie about which club he had been at that night. I also note that Mr.

Taylor, who also testified at trial and whose evidence I fully accept, testified that they had been at the Queen Elizabeth Theatre that night thereby confirming where Mr. Toppin had been that night. [ 35 ] I also found Mr. Toppin’s explanation for why he had alcohol in his vehicle plausible. Mr. Toppin testified that he took two full bottles of rum into the club to drink that night. He did not finish the rum and took the remaining contents with him back to his vehicle at the end of the night. In my view, given the cost of alcohol, it is not difficult to accept that Mr. Toppin wanted to keep the left over rum.

[36] Mr. Toppin’s evidence, which was confirmed by Mr. Taylor, about his plan to sleep at Mr. Taylor’s residence is also credible. Iaccept Mr. Toppin’s explanation for why he did not bring an overnight bag. In relation to Mr. Toppin’s decision to wait for a free ridefrom Mr. Taylor as opposed to paying for a taxi that night, while many may have chosen to call a taxi instead of waiting, there is nothinginherently unreasonable about Mr. Toppin’s decision to wait for his friend to pick him up. [37] The most compelling argument made by the Crown is that Mr. Toppin did lie to the police.

He admitted this during his testimony. Mr. Toppin testified that he lied about how much alcohol he consumed because he was nervous and worried. I agree with the Crownthat where a witness has recently lied to the police about the events that are before the court, the court should be cautious in acceptingthe evidence of that witness. [38] Mr. Toppin’s evidence, however, was completely confirmed by Mr. Taylor. Mr. Taylor has no prior record, is gainfully employedand testified in a forthright manner. He was consistent in his evidence and answered all questions directly. I found him to be a verycredible witness.

When I consider all the evidence, I accept Mr. Toppin’s testimony, which was confirmed by Mr. Taylor’s evidence,that Mr. Toppin had no intention of driving his motor vehicle on the night in question and that he and Mr. Taylor had made a clear planfor Mr. Taylor to pick up Mr. Toppin and drive him to Mr. Taylor’s residence that night. I further accept that Mr. Taylor returned to thearea to pick up Mr. Toppin but could not locate him or his vehicle. Given the timing, it is only reasonable to infer that by the time Mr.Taylor returned, Mr. Toppin had been arrested and his vehicle had been towed away.

General Legal Principles [39] Any person found in the driver’s seat of a motor vehicle is presumed, as a matter of law, to have care and control of that vehicle. This presumption can be rebutted if the defendant satisfies the court on a balance of probabilities that he or she had no intention to drivethe motor vehicle (R. v. Boudreault 2012 SCC 56 , [2012] S.C.J.

No. 56 at paragraph 37). [40] Where the defendant has successfully rebutted the presumption of an intention to drive, the defendant will still be found guilty of theoffence where the defendant’s intentional course of conduct in relation to the motor vehicle poses a realistic risk of danger to person orproperty. (R. v. Boudreault, supra at para 33) [41] In R. v. Boudreault, supra, Fish J. held that a realistic risk of danger may exist, even when a defendant does not have an intention tooperate the motor vehicle where:

a) An inebriated person who initially did not intend to operate the motor vehicle changes his or her mind about driving;

b) An inebriated person may unintentionally set the vehicle in motion; or

c) The stationary vehicle may endanger person or property (see paragraph 42). If any of these prongs are met, the defendant will be found to be in care and control of a motor vehicle. While the burden lies with theCrown to prove beyond a reasonable doubt that the defendant was in care and control of a motor vehicle, in most cases the inference of arealistic risk of danger to the public where an inebriated person is in the driver’s seat of a motor vehicle is readily available.

To avoid aconviction “the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that norealistic risk of danger existed in the particular circumstances of the case” (R. v. Boudreault, supra, at paragraph 48) Application to the Case at Bar

i) Presumption of an intention to drive [42] Mr. Toppin was found in the driver’s seat of his motor vehicle. He is therefore presumed to have the intention to drive and thereforebe in care and control of his motor vehicle. To rebut this presumption, Mr. Toppin must satisfy the court, on a balance of probabilitiesthat he had no intention to operate his motor vehicle.

[ 43 ] Mr. Toppin’s vehicle was found in a legal parking spot in a parking lot on the Exhibition grounds near the club that Mr. Toppin had attended that night. There is no evidence that Mr. Toppin drove his vehicle at any point after having consumed alcohol. Mr. Toppin testified that he had no intention to drive and that his friend, Mr. Taylor was going to pick him up. Mr. Taylor testified and confirmed that such a plan was made and that he did return to pick up Mr. Toppin. I am satisfied that Mr.

Toppin has proven that he had no intention to operate his motor vehicle that night and that this intention remained the entire time he was in his motor vehicle. Mr. Toppin and Mr. Taylor had made a plan that was objectively concrete and reliable. It included a set time frame to be picked up at a relatively specific location. Moreover, the plan was implemented and was only derailed by Mr. Toppin’s arrest. Mr. Toppin went to his vehicle to wait for Mr. Taylor and Mr. Taylor returned as planned. I therefore find that Mr.

Toppin has successfully rebutted the presumption. ii) Realistic risk of danger through a change of intention [ 44 ] Normally when an impaired person is found in the driver’s seat of a motor vehicle, it is reasonable to infer a realistic risk of danger because that person, whose judgment is impaired by alcohol may decide to operate the motor vehicle. As Fish J. stated at paragraphs 12 and 13 of R. v.

Boudreault , supra, 12 I recognize, as the trial judge did, that a conviction will normally ensue where the accused, as in this case, was found inebriated behind the wheel of a motor vehicle with nothing to stop the accused from setting it in motion, either intentionally or accidentally. 13 Impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol or drugs. Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger.

In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case. [ 45 ] In the case at bar, Mr. Toppin presented compelling evidence to rebut the reasonable inference that an impaired person who originally decided not to drive will change his or her mind and decide to drive home, especially upon awaking after falling asleep in the vehicle. I reach this conclusion for a number of reasons. Firstly, a concrete plan had been made with Mr. Taylor to pick up Mr.

Toppin and drive him home. While the plan did require Mr. Taylor to telephone Mr. Toppin to confirm the exact location of his vehicle, it was otherwise very solid. Mr. Taylor would drive some friends to his residence and then turn right back around and pick up Mr. Toppin. Secondly, Mr. Toppin was not going to be in his vehicle for some unknown time waiting for Mr. Taylor. It was expected that he would return in approximately one hour. Thirdly, this is not a case where Mr. Toppin’s plan was to remain in his vehicle for hours before getting picked or finding some other form of transportation, Mr.

Taylor was going to return within the hour. In my view, this shorter time span serves to reduce the risk that Mr. Toppin would change his mind about driving home. For all these reasons, I find that there was no realistic risk that Mr. Toppin would have changed his mind on the night in question and suddenly decide to driver his vehicle home. iii) Realistic Risk of danger through accidentally setting his vehicle in motion [ 46 ] In the case at bar, Mr. Toppin was found in his vehicle with the engine running. The car was in park and the emergency brake was engaged.

In order to accidentally set the vehicle in motion, the gear shift would have to be moved out of the park position and the emergency brake would have to be disengaged. While there is always a risk that an inebriated person will accidently dislodge the gear shirt or the emergency brake due to the normal uncontrolled and clumsy movements of an intoxicated person, in my view, such a risk did not exist in the case at bar. On all the evidence while Mr. Toppin was impaired he had retained relative control of his motor skills. In both the booking video and the breath room video Mr.

Toppin was able to walk and move without difficulty. Moreover, while Mr. Toppin did turn the engine on so that he could benefit from the car heater, he did not otherwise use any of the fittings in the vehicle. Instead, he reclined the seat back and closed his eyes. I further note that Mr. Toppin was in a vacant parking lot with no immediate access to a roadway. Even if the vehicle was accidentally set in motion there was no realistic risk that it would hit any person or thing other than the curb of the parking lot. Given all this evidence, I find there was no realistic risk of danger through Mr.

Toppin accidentally setting the car in motion. iv) Realistic risk of danger raised by the location of the stationary vehicle

[ 47 ] There are times where the location of the stationary vehicle or inoperable car raises a realistic risk of danger. In my view, there is no basis to find that Mr. Toppin’s stationary vehicle posed a realistic risk of danger. It was parked in a legitimate parking space in a parking lot.

Given its location and the additional findings of fact noted above, in my view, there was no realistic risk of danger under this prong. [ 48 ] When I consider all the evidence, mindful that ordinarily the most reasonable inference to be drawn when an intoxicated person intentionally occupies the driver’s seat of his motor vehicle is that there is a realistic risk of danger, given the evidence presented in the case at bar, I am satisfied that there was no realistic risk of danger and as a result the Crown has not proven beyond a reasonable doubt that Mr. Toppin was in care and control of his motor vehicle. Mr.

Toppin is found not guilty of the offences before the court. Released on January 24, 2017 ______________________________ Justice Mara Greene