R. v. Martin, 2011 ONCJ 238

Information No.10-0776 Citation: R. v. Martin , 2011 ONCJ 238 ONTARIO COURT OF JUSTICE EAST REGION HER MAJESTY THE QUEEN V. KEVIN MARTIN ************************************ Before the Honourable Mr. Justice Grant Radley-Walters On May 5 th , 2011 at Pembroke *********************************** Charge : s. 253(1) (

b) Criminal Code – Having care or control of a motor vehicle while his blood alcohol exceeded 80 mg. of alcohol in 100 ml. of blood. ******************** APPEARANCES : Teresa James Counsel for the Crown Mr. James McGillivary Counsel for the Defence

Reasons for Judgment R. v. Kevin Martin Radley-Walters, G. REASONS FOR JUDGMENT Overview 1 . The accused, Kevin Martin, has been charged with having care or control of his motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. This charge arises out of allegations on June 26, 2010 in the Township of North Algona and in the County of Renfrew. 2 . The Crown elected to proceed by way of

summary conviction, and Mr. Martin pleaded not guilty to the charge. 3 . The trial took place on April 18, 2011 in the City of Pembroke. After hearing the evidence produced by the parties and submissions of counsel, judgment was reserved. THE EVIDENCE : 4 . The facts in this case are straight forward. The accused is a thirty-one year-old single male currently working as a carpenter’s apprentice. He resides in the City of Kanata. 5 . The accused drove from his residence to a cottage on the Bonnechere River near the Village of Killaloe on June 25 th , 2010 for the purposes of attending a party that evening. 6 .

The accused testified in this trial and acknowledged that he had consumed approximately eight beer as well as two to three shooters at the party that evening. The shooters in question were alcoholic mixed drinks prepared by another guest at the party. The accused has no idea as to the strength of those particular drinks. 7 . At the cottage, the accused was sitting around the campfire drinking as well as playing cards in the cottage. The accused acknowledged that he slept at his friend’s cottage that evening and he could not remember where he had slept.

He was unsure as to whether or not he slept on the couch or on a bed. The accused acknowledged that when he went to bed he was drunk.

8 . The accused got up the next morning, June 26 th , 2010 at approximately 7:30 a.m. and decided to drive home after breakfast. The accused testified that another guest was arriving on June 26 th , 2010 and the accused did not want to be there when this other guest arrived. 9 . The accused thought that he was fit to drive and so he had a limited breakfast of an apple and a bottle of water, and then collected his personal belongings and started to drive home.

After driving for about 15 to 20 minutes, the accused recognized that he was “crazy tired”, to use his words, and needed to stop his motor vehicle in order to rest. 10 . The accused pulled off onto a side road and parked his car to the right shoulder of the road in a reasonably safe position. The accused got out of his car and had a cigarette, relieved himself and re-entered his car with the intention of sleeping for a period of time until he was able to resume his journey. 11 . The accused put the key in the ignition and turned it to the accessory position so that he could listen to his radio as he fell asleep.

The accused did not recognize that he left his headlights on so that at some point his battery went dead, such that by the time that the Ontario Provincial Police officers arrived at his destination, the accused’s car would not start and had to be towed from the scene. 12 . The accused testified that when he re-entered his car after he parked it, he intended on sleeping and then continuing his journey when he awoke.

On cross-examination, the accused testified that given the hypothetical situation that if he had awoken and found that his battery was dead, then he would use his cell phone to call his friends at the cottage to come and help him get his car started as the accused had booster cables in the trunk of his car. 13 . I accept the evidence of a civilian witness, Stacey Felske, who testified that he went to the local dump on the morning of June 26 th , 2010 and noticed a car on the shoulder of a side road with an individual in the driver’s seat asleep. Mr.

Felske passed the car and looked at his rear view mirror and noticed that the car had its headlights on but they were very dim. Mr. Felske testified that the dump was a minute’s drive from the location of the parked vehicle. Mr. Felske went directly to the dump and was at the dump for approximately 20 to 25 minutes. Mr. Felske retraced his route going pass the parked vehicle noting that the headlights were now out. Having heard the evidence of Kevin Martin, I am satisfied that Mr. Felske saw Mr. Martin’s car and Mr. Martin was the sole occupant. Mr.

Felske decided to advise the police of the parked car in case there were medical issues with the driver. Mr. Felske drove to Golden Lake and spoke to some police officers at 9:19 a.m. that day. Three police officers and two cruisers left immediately for the scene and they arrived at the accused’s car, one minute later at 9:20 a.m. 14 . Constable Chris Throop of the OPP approached the driver’s door of the motor vehicle in question. The driver’s door window was opened a crack and the Constable had to yell at the driver in order to awaken him.

The accused was in the driver’s seat with his feet on the floor and his head back towards the window. Constable Throop noted a strong odour of alcohol on the accused’s breath. Constable Throop made a demand of the accused that he accompany the constable to the cruiser to provide a sample of his breath into the approved screening device. The accused complied with the demand which resulted in a “fail” reading. Based on the result of the approved screening device, Constable Throop made a demand that the accused provide a sample of his breath into the approved instrument, which again, the accused complied with.

The readings at 10:33 a.m. and 10:56 a.m. established that the accused’s blood alcohol was 140 milligrams of alcohol in 100 millilitres of blood. These were truncate readings. 15 . Sergeant Brian Schutt, of the Ontario Provincial Police, testified that he attended with Constable Throop and Constable Solman at the location where the accused had parked his motor vehicle. I accept Sergeant Schutt’s testimony that the accused had parked his motor vehicle on the side of the road which was slightly on the grassy area but mostly on the gravel shoulder nudged up to the travel portion of the road.

He confirmed that a portion the accused’s tires were on the pavement. Sergeant Schutt searched the accused’s vehicle and noticed that there was an open beer in the console. Sergeant Schutt seized this beer. In the course of his investigation, Sergeant Schutt tried to start the motor vehicle on more than one occasion and the motor vehicle would not start. 16 . I accept the testimony of Sergeant Schutt that the accused parked his vehicle on a shoulder of the side road in a reasonably safe position. 17 . Constable Stacey Solman was the qualified breathalyser technician.

She attended at the scene with Sergeant Schutt and Constable Throop. She conducted the approved screening device test as well as the breath test into the approved instrument which was an Intoxilyzer 8000C. Constable Solman confirmed that the side road in question was not a busy road for motor vehicle traffic. THE LAW AND ANALYSIS

18. This is a case in which the accused has elected to testify in his own defence. The Supreme Court of Canada in the case of Reginaand W.D., (1991) (SCC), 1 S.C.R. 742 has provided guidance to trial judges in cases such as the present one before thecourt on the issue of credibility. That case stands for the proposition that if an accused person testifies and that testimony raises adefence and the trial judge accepts that testimony, then the trial judge must acquit the accused. The second stage of the analysis relatesto the scenario where the trial judge rejects the testimony of the accused.

In those cases, the Crown still has a positive obligation toprove beyond a reasonable doubt all of the essential elements of the charge against the accused. If the Crown fails in this test, then thetrial judge must again acquit the accused. It is only in the case where the Crown has proven beyond a reasonable doubt all of theessential elements of the charge against the accused that the trial judge may convict the accused. 19. In the case before the court, I find that the accused was a credible witness and I accept his testimony as to what he did on June 25th and June 26th, 2010.

I specifically accept the testimony of Mr. Martin that he drove his vehicle on the early morning of June 26th, 2010and realized that he was too tired to continue all the way to his home in Kanata. Mr. Martin had the presence of mind to pull off themain highway onto a side road and then pulled to the shoulder of that road in order to rest. I accept that Mr. Martin exited his motorvehicle to have a smoke and relieve himself before re-entering the vehicle for the purposes of sleeping. I also accept his testimony thathe intended to drive to Kanata after a sleep if he felt he was rested sufficiently to continue.

I also accept his evidence that if the vehiclehad started he would have driven away. On the date in question, it was a clear summer’s day and that there were no issues with respectto visibility. 20. The acceptance of the accused’s testimony in this particular case does not immediately resolve the issue of his guilt or innocence. Imust further examine the issue of whether or not the accused’s testimony raises a defence to the charge before the court.

Specifically, Imust rule as to whether or not the fact that the accused’s battery went dead while he was sleeping in his motor vehicle and thereforewould have prevented him from starting his motor vehicle when he awoke provides a defence to the accused on the outstanding chargebefore the court. 21. In this regard, I must look at two decisions of the Ontario Court of Appeal. The first decision is the case of Regina v. Pilon (1998),131 CCC (3d), p. 236. The second case from the Ontario Court of Appeal is Regina v. Wren (2000), 144 CCC (3d), p.374. 22. In the Pilon case, Mr.

Pilon had been drinking at a licensed establishment and returned to his vehicle to sleep-off the effects of thealcohol. It was his intentions when he awoke to firstly go home and then go to work the next day. Mr. Pilon sat in the driver’s seat ofhis motor vehicle but put his feet on the passenger side and threw his keys on the floor of the passenger side of his car. When the policeapproached Mr. Pilon’s vehicle he was still clearly impaired and he was charged with having care or control of his motor vehicle whileimpaired. In that trial there was no real issue with respect to impairment.

The Ontario Court of Appeal reviewed the law on this issue asit was at that time. Specifically they made reference to the case of Regina v. Ford (1982) (SCC), 1 S.C.R. 231 andRegina v. Toews (1985), (SCC), 2 S.C.R. 119, 21 CCC (3d) 24. 23. The Ontario Court of Appeal quoted from the Regina v.

Ford case at page 399, “Care or control may be exercised without such intent [to set the vehicle in motion] where an accused performs some act or series of actsinvolving the use of the car, its fittings or equipment, such as occurred in this case, whereby the vehicle may unintentionally be set inmotion creating the danger the

section is designed to prevent.” and the Regina v. Toews decision at page 30, “The cases cited, however, illustrate the point and lead to the conclusion that acts of care or control, short of driving, are acts whichinvolve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve arisk of putting the vehicle in motion so that it could become dangerous. Each case will depend on its own facts and the circumstances inwhich acts of care or control may be found will vary widely.” 24. The Ontario Court of Appeal also quoted from the Regina v.

Toews case at page 29, “What will constitute having care or control, short of driving the vehicle? It is, I suggest, impossible to set down an exhaustive list ofacts which could qualify as acts of care or control, but courts have provided illustrations which are of assistance.”

25 . The Ontario Court of Appeal in the Pilon decision accepted the findings of the trial judge that it was a simple matter for Mr. Pilon to pick up the keys off the floor and put the key in the ignition and do something which could set the vehicle in motion. The trial judge in Mr. Pilon’s case accepted the evidence of Mr. Pilon that he entered the car without the immediate intention of driving. The trial judge also found that Mr. Pilon did intend to drive the car if in Mr. Pilon’s subjective and potentially impaired opinion, Mr. Pilon had “slept it off ”.

The Ontario Court of Appeal, in conclusion agreed with the trial judge that Mr. Pilon had shown some course of conduct associated with the motor vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous. In result, the Ontario Court of Appeal upheld the conviction of Mr. Pilon. 26 . The Ontario Court of Appeal in the decision of Regina v. Wren had to deal with the situation where Mr. Wren entered his motor vehicle for the last time before the police arrived at his destination for the purposes of simply staying warm because Mr. Wren’s motor vehicle was inoperable.

The facts in the Wren case were to the effect that Mr. Wren was impaired and was found in the driver’s seat of his car. Mr. Wren’s car was inoperable because of damage, and immovable because of its location in a ditch. Mr. Wren did not intend to drive when he entered the motor vehicle for the last time as he had called for a tow-truck and simply wanted to keep warm. Once again, the Ontario Court of Appeal reviewed the law on the issue of care or control as it was at that time. Mr.

Justice Feldman for the Ontario Court of Appeal stated at paragraph 16, “I am satisfied that the result of these cases and others that have followed them, is that in order to establish care or control of a motor vehicle, the act or conduct of the accused in relation to that motor vehicle must be such that there is created a risk of danger, whether from putting the car in motion or in some other way.” 27 .

Justice Feldman further stated at paragraph 20, “The requirement of some risk of danger in order to establish the actus reus of “care or control” is consistent with the basis for a finding of criminal liability under the impaired driving/care or control offences. As the Supreme Court stated in Saunders , supra , the object of the offence is to protect persons and property from danger.

When the presumption has been rebutted and it has been shown that there is no potential danger either to any person or any property from the combination of the impaired person and the motor vehicle, there is no need for the protection which is the object of the offence.” 28 .

Justice Feldman found in paragraph 28, “It was open for the trial court to find that when the police found the respondent, although he was impaired and had not relinquished custody of his vehicle, he did not meet the test for the actus reu s of care or control set out in Ford and Toews , modified in accordance with the explanation in Vansickle : ‘Performance of some act or series of acts which involve some use of the car or its fittings or equipment, or some course of conduct associated with the vehicle which would involve the risk of putting the vehicle in motion or in some other way to become dangerous, which is what the

section is designed to prevent.’ ” 29 . In conclusion, Justice Feldman stated in paragraph 29, “The issue to be determined on the facts of each case is whether any acts by the accused could cause the vehicle to become a danger whether by putting it in motion or in some other way.” 30 . Justice Feldman concluded that in the Wren case the only potential danger was putting the vehicle in motion and since that could not be effected, Mr. Wren had rebutted the presumption and was entitled to an acquittal. 31 . In applying this law to the facts of the case at bar, I find that the only risk of danger that Mr.

Martin presented in order to establish the actus reus of care or control of his motor vehicle related to the issue of him putting his motor vehicle in motion. I am mindful of the fact that Mr. Martin pulled his vehicle off to the side of the road in a reasonably safe manner on clear summer’s morning on June 26 th ,

2010. There were no issues with respect to the visibility of his motor vehicle which would cause concern to other motor vehicles. I am mindful that this side road had very limited traffic and was located in a rural area. 32 . The issue therefore turns to whether or not Mr. Martin created a risk of danger from putting his car in motion. In this particular case, Sergeant Schutt attempted to start the motor vehicle on several occasions and there simply was no energy in the battery at all so that the vehicle could not start. I accept the fact that Mr.

Martin could have telephoned his friends when he awoke to see if they would assist him. In order for this to be successful Mr. Martin’s friends would firstly have to agree to boosting his vehicle and secondly driving some 15 to 20 minutes from the cottage to his location. Those individuals that did respond to Mr. Martin’s request for help would then make their own determination as to Mr. Martin’s ability to drive his motor vehicle before they would assist him in using their vehicle to boost Mr. Martin’s vehicle. 33 .

In the circumstances of the case before the court, I am satisfied that the accused has rebutted the presumption set out in s. 258 (1) (

a) of the Criminal Code of Canada . I find that although the accused had consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood at the time that he occupied the driver’s seat of his motor vehicle and Mr. Martin had not relinquished custody of his vehicle, Mr. Martin did not meet the test for actus reus of care or control set out in the cases of Ford and Toews and then Vansickle . The only potential danger in this case, was the ability of Mr. Martin to put his motor vehicle in motion which could not be accomplished. 34 .

In all of the circumstances, I would acquit the accused on the charge before the court. ______________________________________ The Honourable Mr. Justice G. Radley-Walters