R. v. April, 2018 ONCJ 357

CITATION: R. v. April , 2018 ONCJ 357 DATE: 2018·05·28 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — KIERAN APRIL Before Justice Susan M. Chapman Heard on May 1 and 2, 2018 Judgment released on May 28, 2018 F. Schembri..................................................................... counsel for the Crown M. Elajami.................................................................... counsel for the accused CHAPMAN, J.: Overview [ 1 ] The accused stands charged with the Criminal Code offences commonly known as impaired care or control and “over 80”.

Prior to trial he filed an application alleging ss.7, 8, 9 and 12 Charter breaches and seeking the exclusion of evidence pursuant to s.24(2), and a stay of proceedings pursuant to s. 24(1), of the Charter . The trial took place on May 1 and 2, 2018 and, on consent, included a blended Charter voir dire . With respect to the merits, the Crown relies on the presumption in s. 258(1) (

a) of the Criminal Code and in the alternative argues that they have proven actual care or control beyond a reasonable doubt. The defence argue that the accused’s testimony rebuts the presumption of care or control and that the Crown has otherwise failed to prove de facto care or control beyond a reasonable doubt. The Crown’s Case [ 2 ] On July 19, 2016, Mr. Daemon Scott Fairless was buying groceries with his family at the Coppa’s grocery store at the corner of Supertest Road and Dufferin Street when he observed the accused walking around the store and talking loudly to himself. Mr.

Fairless and his family saw the accused again when they were standing behind him in the lineup at the cashier. Mr. Fairless heard the accused make what the witness believed to be an inappropriate joke to the cashier. The witness then had a conversation with his wife and the cashier, both of whom were under the impression that the accused was intoxicated. The witness also thought that the accused might be intoxicated and therefore followed him out to the parking lot to make sure that he was not getting into a car.

When the witness saw the accused enter a Jeep Wrangler parked in the lot, he called 911 to report a suspected impaired driver. The witness provided the 911 operator his observations during the nearly 20 minutes he was on the phone with her pending the arrival on scene of uniformed officers. [ 3 ] Police Constable Peters testified that he was dispatched to the parking lot of Coppa’s grocery store at approximately 8:21 p.m. on the evening of July 19 and arrived at approximately 8:35.

The information the officer received as part of the dispatch was that staff at the store thought a tall white male in his mid-40s was believed to be impaired by alcohol and was seen entering the driver’s seat of his car. Upon arrival P.C. Peters observed a Jeep Wrangler and parked his cruiser right behind it. He then approached the driver’s side of the car and observed the accused sitting in the driver’s seat of the Jeep. The car was not on.

The window of the Jeep was partially down and the accused appeared to be eating nuts and spitting the shells out the window. [ 4 ] The officer approached the driver’s side window of the Jeep and observed the keys to the car on the roof. The officer engaged the accused in conversation through the partially open driver’s side window. During this exchange, the officer could smell the strong odour of alcohol and cigarettes coming from the front seat of the Jeep. He also observed that the accused looked tired, his eyes were glassy and his face red.

The officer asked the accused if he had been drinking and the accused told him he had “had a couple”. He also told the officer that he was planning on driving home. At this point P.C. Peters radioed dispatch to arrange for an Approved Screening Device (“ASD”) to be brought to the scene. [ 5 ] Then P.C. Peters asked the accused to get out of the car. The accused was not inclined to do so on the first request. The officer then explained to him that he was being investigated for impaired driving. At that point, the accused got out of the car and was thereafter cooperative with police.

The officer immediately noticed that there was an open can of beer next to the driver’s seat. When the accused got out of the car, the officer testified that he observed him to be unsteady on his feet. However, he did not make a specific note of that fact. He also then concluded that the smell of alcohol was coming from the breath of the accused and not just from the front seat of the car, though again he did not made a specific note of this additional observation. Further, the accused appeared to have urinated on his shorts.

The officer described a wet spot on the crotch of the accused’s shorts with a line straight down the front of

the pants suggesting to the officer that he had urinated on his pants. The officer asked the accused about it and the accused said that he had been urinating into a beer can in the car and had accidentally got urine on his shorts in the process. These additional observations and interactions, in conjunction with the facts already known to him from dispatch, caused the officer to cancel the request for an ASD and to arrest the accused for impaired care or control at approximately 8:38 p.m. [ 6 ] Officer Peters made the approved instrument demand at 8:41 p.m.

After providing the accused with his right to counsel, he asked the accused where the keys to the car were. The accused started to go through his pockets looking for them and did not appear to appreciate that they were on the roof of the car. The accused told the officer that he was just about to drive home. He also told the officer that he had consumed 5 beers. [ 7 ] At 8:57 p.m. the officer learned that the closest breath technician would be at 32 Division, a ten minute drive away. The accused was transported to 32 Division and paraded before the Staff Sergeant.

During the playing of the booking tape, the accused can be heard to have the following exchange with P.C. Peters: P.C. Peters: How are you with the bathroom? You okay? The Applicant: Oh yeah. P.C. Peters: You good? The Applicant: Yeah, evidently. [ 8 ] During his testimony-in-chief, the officer was asked why he did not offer the accused a change of clothing. The officer explained that it did not occur to him to make such an offer. The accused made no complaint or request in this regard. Ordinarily the only spare clothing at the station would be the orange jumpsuits. It simply never occurred to P.C.

Peters to offer the accused an orange jumpsuit in the circumstances known to him and in the absence of a request. [ 9 ] After speaking with duty counsel, the breath tests were administered and the readings were 160 and 144 respectively. The breath technician testified that he did not observe urine or any other stain on the pants of the accused. If there had been a problem in this regard he would have placed something on the chair before asking the accused to sit down and might have, depending on the circumstances, offered one of the orange jumpsuits to him if one were available at the station.

The Defence Case [ 10 ] The accused testified in his own defence. He got off work, following an 8 hour shift, and arrived home at approximately at approximately 4:30 p.m. He took his dog out to do his business. He then returned to the home, freshened up and decided to go grocery shopping. He brought his dog along with him in his Jeep Wrangler. He went to Coppa’s grocery store, not far from his home.

On the way, he picked up beer from the beer store that is on Dufferin Street approximately 1 km south of Coppa’s grocery store. [ 11 ] According to the accused, when he arrived at the parking lot of Coppa’s, he made the decision to take the dog for a walk in the park and to bring with him the case of beer. He testified that it was at this point that he also made the decision that he would not be driving home that night but would walk home instead. He was in the park for 2 hours drinking beer before returning to Coppa’s and, presumably, putting his dog back into the car.

He then grocery shopped for a number of items including some charcuteries and cheeses. He returned to his car, cleared a spot in the backseat and then loaded it up with the groceries. [ 12 ] The accused testified that by the time he got to the grocery store he needed to use a washroom. It was not urgent, and he continued shopping, but he did not want to take a 20 minute walk home while uncomfortable. He asked someone in the store whether there was a washroom he could use and was told it was not for public use.

As he could not find facilities, he decided to instead sit in the driver’s seat of his car and urinate into two King size cans of beer until they were nearly full, accidentally getting some of the urine onto his pants in the process. Because he was embarrassed about the wet spot on his pants, Mr. April testified that he decided not to walk home immediately but instead to wait until the sun had gone down so that no one would see the stain. He sat in the car and ate pistachios until an officer came along and spoke with him.

He testified that he did tell the officer that he was planning on going home but did not tell him in what manner. [ 13 ] The accused admits that he was drunk, though not as drunk as suggested by the other witnesses. He testified that he was acting normally and not tipsy, though he agreed that he had drank six (6) tall boy cans of beer in the past two hours. In cross- examination he testified that he was not concerned about his ability to drive home but made the decision not to because “it’s the law”. He maintained that he was not acting any differently than normal.

In cross-examination, he testified that his need to use the washroom while in Coppa’s was not urgent. He could have waited until he got home, but it would have been an uncomfortable 20 minute walk. [ 14 ] The accused agreed in cross-examination that the police were polite and professional throughout their interactions with him. He also agreed that he was able to resist their questions concerning his medical condition. He was also able to ask to be taken out of the cell for a cigarette.

However, he agreed that he did not request a change of clothing because he did not realize that this was an option available to him. As for why there were between 75 and 100 loose, empty beer cans strewn around his car, the accused testified that had collected them at his cottage on an earlier date and had not yet emptied his car. Positions of the Parties [ 15 ] Prior to trial, the defence filed an application alleging various Charter violations and in particular that:

- While there may have been subjective grounds for the officer to make an arrest, there were no objective reasonable and probable grounds upon which he could do so, contrary to ss. 8 and 9 of the Charter , and the breath samples should therefore be excluded pursuant to section 24(2) of the Charter ; and/or - The failure of the police to offer a change of clothing to the accused amounts to a breach of the accused’s

section 7 and 12 Charter rights and warrants the exclusion of evidence (the breath samples) pursuant to section 24(2) of the Charter [1] . [ 16 ] With respect to the merits, the defence allege that the presumption in s. 258(1) (

a) is rebutted by the accused’s testimony and that the Crown has failed to prove beyond a reasonable doubt, a de facto case of care or control. [ 17 ] The Crown argues that there were no Charter breaches occasioned during the police interactions with the accused and, in the alternative, no basis upon which to exclude evidence pursuant to s.24(2) of the Charter . As for the merits, the crown argues that the presumption should apply, that the evidence of the accused should be rejected, and that in the alternative, all apart from the presumption, there is a de facto case of care and control. Analysis

Section 7 [ 18 ] It is clear that when the accused was arrested and subsequently detained by the police, he had a wet spot on the front of his shorts and no one offered him a change of clothing. It is equally clear that the accused never asked the police about a change of clothing or otherwise complained about the state of his pants. The accused testified that he did not know that a change of clothing was an option available to him and for that reason he did not request one. On the other hand, the accused made other requests of the police that were respected. There was no statement taken from the accused.

There were breath samples taken. The accused testified that he was embarrassed and uncomfortable at the station for a couple of reasons, including the fact that he had urine on his shorts. [ 19 ] Though it might have been a better idea to at least offer the accused a change of clothes, the failure to do so in all of the circumstances of this case do not amount to a breach of the accused’s

section 7 or 12 Charter rights. The accused made no such request. Indeed, the accused made no complaint whatsoever. The police were polite with the accused and respected requests that were made by him. For example, when the accused asked to have a cigarette P.C. Peters took him out of his cell to accommodate the request. The police provided fair, humane and dignified treatment to the accused while he was in their custody. The Applicant has not demonstrated a deprivation of his right to life, liberty or security of the person. This case can be distinguished from R. v. Sathymoorthy , [2014] O.J. No. 3233 .

In that case the accused was not permitted to urinate while in police custody and then was held for nine hours in a soiled condition in a cold cell. In contrast, in the case at bar the accused testified that he spilled some urine on himself. He was not urine soaked. According to the accused he filled two empty tall boy cans of beer with urine at the time that he spilled some on his pants. The breath technician did not even notice the wet spot. Further, there was no mocking of the Applicant. In fact, he was treated very well by the police.

He was asked whether or not he needed to use a washroom and he declined. [ 20 ] If I am wrong, and there was some breach of s. 7 by virtue of the police failure to offer the accused an orange jumpsuit, I find the breach to be minor and not the kind that would render the breath samples inadmissible at trial pursuant to s. 24(2) of the Charter . The breach, if any, had no impact on the validity of the breath tests. The officers acted at all times in good faith. Considering all of the Grant factors, the breath sample readings should not be excluded.

Sections 8 and 9: Reasonable and Probable Grounds for the Arrest [ 21 ] On the totality of the circumstances, I find that there were reasonable and probable grounds for the arrest on both a subjective and objective basis. I accept the evidence of P.C. Peters.

At the time that he made the arrest, at 8:38 p.m., he had the following information: - a staff member at the Coppa’s grocery store had observed a suspected impaired driver getting into a car in the parking lot (the radio dispatch); - the accused was seated in the driver’s seat of the vehicle; - the window was partially down and a strong odor of alcohol was coming from the front of the car; - the accused was the only person in the car; - when asked, the accused confirmed he had had a couple of drinks; - the accused told the police officer he was planning on driving home; - there was an open beer can on the front seat of the car; - the accused stumbled when he got out of the car; - the accused’s face appeared flushed and his eyes red; - the accused had soiled his pants and admitted that he done so while attempting to urinate into a beer can in the driver’s side of the

car; - when the accused was standing next to the car it was clear that the strong odor of alcohol was emanating from his breath. [22] These facts taken together provide ample grounds for the arrest. [23] Defence counsel argues that the officer took a short cut in deciding to call off the ASD.

Further, they argue that noreliance can be placed on the officer’s additional observations of the accused when he got out of the car, and in particular the suggestionthat he stumbled and the smell of alcohol was coming from his breath, because these two points are not specifically noted in the officersnotebook. [24] Though the importance of a police officer taking detailed notes cannot be overstated, I find that the omissions in OfficerPeter’s notes do not undermine his testimony that he called off the request for the ASD because of his additional observations of theaccused when he got out of the Jeep.

This makes sense. The evidence of not only intoxication but impairment was considerable. Clearly there were reasonable and probable grounds to make the arrest. Accordingly there has been no breach of

section 8 or 9 of theCharter. The Merits [25] As for the trial on the merits, has the Crown proven beyond a reasonable doubt that the accused was in impaired care andcontrol of his Jeep? I find that it has. The defence have not rebutted the presumption in s.258(1)(

a) of the Code and even if they had, theCrown has established a case of actual care or control beyond a reasonable doubt. The Law [26] “Care or control” within the meaning of s. 253(1) of the Criminal Code signifies (1) an intentional course of conductassociated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;(3) in circumstances that create a realistic risk of danger to persons or property. With respect to the third element, the risk of dangermust be realistic and not just theoretically possible.

As stated by the Supreme Court in R. v. Boudreault, 2012 SCC 56 , [2012]3 S.C.R. 157, Parliament’s objective in enacting s. 253 of the Criminal Code was to prevent the risk of danger to public safety thatnormally arises from the mere combination of alcohol and automobile. Conduct that presents no such risk falls outside the intendedreach of the offence. There must be proof of a realistic risk as opposed to proof of a remote possibility of danger to persons or property. To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention.

It is settled law that anintention to set the vehicle in motion is not an essential element of the offence. [27] The presumption in s. 258(1)(

a) provides that an accused who is found in the driver’s seat of the car is deemed to havecare or control of the car unless the accused establishes on a balance of probabilities, that he/she did not occupy that seat or assume thatposition for the purpose of setting the car in motion. This is so even though an intention to set the car in motion is not an essentialelement of the offence of care or control.

At a minimum, the wording of the presumption signifies that a person who was found drunkand behind the wheel cannot for that reason alone be convicted of care or control if that person satisfies the court that he or she had nointention to set the care in motion. [28] On the other hand, an accused who satisfies the court that he or she had no intention to set the car in motion will notnecessarily escape conviction: an inebriated individual who is found behind the wheel and has a present ability to set the car in motion,without intending at that moment to do so – may nevertheless present a realistic risk of danger.

In the absence of a contemporaneousintention to drive, a realistic risk of danger may arise in at least three ways.

First, an inebriated person who initially does not intent todrive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel mayunintentionally set the car in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable car mayendanger persons or property. [29] As stated by the highest court in Boudreault: “48 I need hardly reiterate that “realistic risk” is a low threshold and, in the absence of evidence to the contrary, will normally be theonly reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion.

To avoidconviction, 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. 49 The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account ofits location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger. Likewise, use of the vehicle fora manifestly innocent purpose should not attract the stigma of a conviction.

As Lamer C.J. observed in Penno, “The law … is notdeprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to drive is impaired I amotor vehicle” [citation omitted] [30] While it may not be an accused’s immediate intention to drive a car when they enter the driver’s seat, in some situationsthey may change their mind. In some cases, such as where it is the intention of the accused to drive after they have sobered up, thepresumption may not be rebutted despite the absence of a present intention to drive.

Further, a realistic risk that the accused may changetheir mind and drive may amount to actual care and control of a car, all apart from the operation of the presumption. In R. v. Szymanski, (ON SC), [2009] O.J. No. 3623, Justice Durno thoroughly addresses the legal analysis that applies to so called“change of mind” situations. In doing so, he provides significant guidance on what constitutes actual or de facto care or control:

Where the Crown does not rely on the statutory presumption, or the accused rebuts it, the prosecution can rely on de facto or actual careor control. Those acts of actual care or control include: (1) actions that create the risk that the vehicle will unintentionally be placed inmotion, (2) actions that create a risk of danger because of the location of the motor vehicle, even if it is immovable, and (3) other acts ofcare or control short of driving, as explained later. … Acts of care or control short of driving have been described by the Supreme Court of Canada. First, in R. v. Ford, (SCC), [1982] 1 S.C.

R. 231, Ritchie J. for the majority wrote: …Care or control may be exercised without such intent [to drive the motor] 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. (emphasis added) … Second, in R. v. Toews, (SCC), [1985] 2 S.C.R. 119, McIntyre J. wrote for the majority: Acts of care or control short of driving are acts which involve some use of the car or its fittings and equipment, or some course ofconduct associated with the vehicle which would involve the risk of putting the vehicle in motion so that it could become dangerous.

Each case will depend on its own facts and the circumstances in which acts of care or control may be found will vary widely. … The final basis upon which to find actual care or control is the second reason the trial judge convicted the appellant – that while he hadno intention to drive at the time he occupied the driver’s seat that there was a realistic risk that he would change his mind and drivewhile impaired.

As noted earlier, this criterion must be clarified to include that he would also not drive while his blood alcoholconcentration was over the legal limit. [31] There is a legitimate concern that intoxicated person in motor vehicles with the means available to drive would changetheir minds about staying and sleeping or sleeping for some period of time and deciding to drive, subjectively, but in accurately,believing that their impairment had subsided, no longer existed and that their blood alcohol level was below the legal limit.

As notedearlier, in Toews, the Supreme Court of Canada quoted with approval the comments in Price, supra – “Even if he has no immediateintention of setting it in motion he can at any instant determine to do so, because his judgment may be so impaired that he cannot foreseethe possible consequences of his actions.” There is no binding authority since Toews that qualifies or diminishes those concerns. [32] In Szymanksi, decided before Boudreault but consistent with it, Justice Durno reviews the case law and concludes: These authorities support the conclusion that what must be shown is a real risk that the particular accused would change his or her mindand intentionally set the vehicle in motion.

While phrased differently, I am also persuaded that in many ways there is not that great a gapbetween the various criteria set out above. Simply put, the trial judge has to conduct a case-specific analysis and determine if there is areal risk. Saying that any person whose ability to operate a motor vehicle is impaired to any degree might change their mind is notsufficient. The trier of fact must examine the facts and determine if the real risk exists.

Whether that real risk arises on the facts isdetermined applying circumstantial evidence. [33] Factors to consider include, but are not restricted to: • The level of impairment – which may show unpredictability or a risky pattern of behavior • Whether the keys were in the ignition or readily available • Whether the car was running • The location of the vehicle, whether it was on the side of a major highway or in a parking lot • Whether the accused had reached his or her destination or if they were still required to travel to their destination • The accused’s disposition and attitude • Whether accused drove the vehicle to the location of drinking • Whether the accused started driving after drinking and pulled over to sleep it off or started out using the car for purposes other thandrinking • Whether the accused had a plan to get home that did not involve driving while he or she was impaired or not over the legal limit • Whether the accused had a stated intention to resume driving • Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption • Whether the accused was wearing his or her seatbelt

• Whether the accused failed to take advantage of alternate means of leaving the scene • Whether the accused had a cell phone with which to make other arrangements and failed to do so. The Case at Bar [ 34 ] The accused testified. I do not accept his evidence, as I find it to be highly implausible. For example, if he had truly made the decision not to drive home, why did he then grocery shop and put perishables in the back seat of his car on a July night knowing that he had no plan in place to get them home? Mr.

Fairless testimony, that I accept, is that he followed the accused out to the parking lot because he was talking to himself, singing to the cashier, and acting drunk. In contrast, the accused testified that he was acting perfectly normally and was not even tipsy, after consuming six tall boy cans of beer in the past two hours. The accused maintained in cross-examination that his need to urinate was not urgent, yet he chose to sit in the driver’s seat of his car and empty his bladder into two beer cans – suggesting some urgency.

It is true that he did sit in the car for a full 20 minutes before the police arrived and had not during that time set the car in motion. However, this could be explained by the fact that he was taking a break to eat some nuts in the car before heading home. On the whole, I do not accept his evidence on a balance of probabilities and it does not rebut the presumption in s. 258(1)(

c) of the Code . [ 35 ] In the alternative, I find that even without the operation of the presumption, the Crown has proven the accused’s actual care or control of a car beyond a reasonable doubt.

Factors pointing to proof of care and control include the following: • he was sitting in the driver’s seat of the car; • his blood alcohol level was almost two times the legal limit; • he had six tall boy cans of beer in two hours but did not think that he was unable to drive home – he chose not to do so because “it was the law”; • his judgment was poor/impaired given his decision to urinate into two beer cans while sitting in the driver’s seat of the car (with a steering wheel in front of him) rather than make an “uncomfortable” 20 minute walk home; • he was in and out of the car, first placing his dog in the car and then returning to the car after grocery shopping, clearing a space for groceries and then loading in the groceries • a witness observed him to be acting strangely, including talking to himself while he shopped; • when the officer asked him where the keys to the car were he didn’t seem to know and thought they were in his pocket; and • according to the accused, he made a decision to place perishable goods in the back of his car without a plan in place to get them home – suggesting poor judgment and the associated risk of his changing his mind about driving. [ 36 ] On the other hand: • the car was not on; • indeed, the keys to the car were on its roof not in its ignition; and • the car was not parked in the middle of the road or someplace inherently unsafe.

Findings [ 37 ] On the totality of the evidence, I reject the accused’s testimony and find that it does not rebut the presumption in s. 258(1) (

a) of the Code . On this basis, I find him guilty of impaired care or control and over 80. Even without the operation of the presumption, the Crown has proven the case of impaired care or control and over 80 against the accused beyond a reasonable doubt. Date: May 28, 2018 Justice Susan M. Chapman