Toronto (City) v. McIntosh, 2019 ONCJ 787

ONTARIO COURT OF JUSTICE CITATION: Toronto (City) v. McIntosh , 2019 ONCJ 787 DATE: October 22, 2019 COURT FILE No: 4548 BETWEEN: City of Toronto — AND — Michael McIntosh Before Justice of the Peace HW C. Cushnie Heard on July 18, 2019 Reasons for Judgment released on October 22, 2019 Colquhoun, A........................................................................... Counsel for the Prosecution Crisp, T............................................................................................... Agent for the Defendant JUSTICE OF THE PEACE CUSHNIE: [ 1 ] Mr.

Michael McIntosh was charged on March 4, 2019 at 3801 Lawrence Avenue East at approximately 9:19 pm in the City of Toronto for having care or control of a motor vehicle with liquor readily available contrary to s. 32(1) of the Liquor Licence Act . This is a matter of strict liability. The only defence available is one of due diligence. The onus is on the prosecution to prove the elements of the charge beyond a reasonable doubt.

If the prosecution has met its onus, then it has to be determined whether the defendant has established on a balance of probabilities, either the common law defence of due diligence or one of the statutory exceptions to liability contained in subsection 32(2) of the Liquor Licence Act , based on the totality of the evidence.

If the defendant has met his onus of proof in respect of any of the common law or statutory defences available to him, he is entitled to be acquitted of the charge to which that defence applies. [ 2 ] In this matter, I heard testimony from Police Constable Michael Lamb of 43 Division of the Toronto Police Service and the defendant, Michael McIntosh. Testimony of Police Constable Lamb [ 3 ] On March 4, 2019 Police Constable Lamb was on general patrol in a marked police vehicle wearing full police uniform.

He testified that he was conducting patrol at 3801 Lawrence Avenue East, in the City of Toronto when he pulled in the rear of the building and observed a motor vehicle that was parked with its lights on and the engine running. The officer testified that he observed exhaust coming from the tail pipe and that at the time it was dark and cold and there was artificial lighting in the parking lot. [ 4 ] The officer testified that he observed two occupants in the vehicle, a driver and passenger. That as he pulled into the area, he

observed the passenger lower a can that appeared to him to be a can of beer below the window. [ 5 ] The officer testified that he got out of his vehicle and approached the motor vehicle where he observed a male passenger with an open tall can of blue-ribbon beer 473 ml resting between his legs on the car seat. [ 6 ] As a result of the observations made, the officer testified that he conducted a search under the Liquor Licence Act and located an open can of Heineken behind the passenger seat on the floor.

Officer Lamb testified that the can was ¾ full and it was a 355ml can of Heineken with 5% alcohol. [ 7 ] As a result of the investigation that occurred, a Provincial Offence Ticket was issued to Michael McIntosh, who the officer identified as the driver of the motor vehicle. Police Constable Lamb testified that he was able to identify the driver based on the Ontario Driver’s Licence that was provided by the defendant with the name of Michael McIntosh with a date of birth of October 4, 1987.

Police Constable Lamb was satisfied that the picture on the Ontario Driver’s Licence matched that of the driver. [ 8 ] He further testified that the vehicle involved was a 2014 Mercedes Benz vehicle with licence plate 83J A87. He further testified that he never lost sight of the vehicle from the time that he made his observation. [ 9 ] In cross examination, Police Constable Lamb testified that they patrol the neighbourhood to ensure that there are no unwanted activities and that they had not received any specific calls that brought them to the building.

Police Constable Lamb further testified during cross examination that he had been to the building several times in the past for various incidents and radio calls. He also testified that he had a partner, Police Constable Moghtader, Badge No. 10424 who was involved in the investigation. [ 10 ] He further testified that he searched the vehicle and was not sure whether PC Moghtader was involved in the search. He further testified that he was the officer that located the can of Heineken that was in the back. Further that he only located the can when he conducted the search.

That his first observation was of the passenger lowering a can and only upon closer investigation that he discovered the brand. [ 11 ] He testified that it was when he conducted the search of the vehicle that he located the can of Heineken behind the passenger seat floor. When asked whether it was tucked behind the chair or was it in the open.

The officer testified that there was not a lot of room behind the seat but that it had not been tucked under. [ 12 ] Police Constable Lamb testified that he did not conduct a breathalyzer and that based upon his investigation there was little alcohol removed from the can that was behind the seat and that there was three other full cans of beer that had matched the set of four so that there was no indication to Police Constable Lamb that they had been drinking copious amount of beer. [ 13 ] He further testified in cross examination that there had been mentioned of the other three cans of beer in his notes, but he could not recall where exactly the beers were located in the vehicle. [ 14 ] When asked whether or not the defendant posed a danger, Police Constable Lamb testified that every time there is a vehicle stop there is an element of danger involved and that until he has investigated he does not have an idea of who is dealing with or how dangerous they are or whether they are going to cause injury so until he investigates there is a possibility of a potential dangerous situation for himself and anyone around but once he was able to identify the driver he was less concern than when he initially approached. [ 15 ] When asked about whether there any action taken that would give rise to concern that he would drive out on him, the officer testified that until he investigated, he would not know. [ 16 ] Police Constable Lamb further testified that when the search was conducted the passenger and the driver were asked to step out of the vehicle and that the search was conducted pursuant to the Liquor Licence Act .

[ 17 ] When asked whether he had any conversations with either the driver or the passenger, Police Constable Lamb testified that the general explanation that he received from the two of them was that they had met up after work and were having a beer. [ 18 ] A clip from the DVD was played for the Officer. The officer testified that the video and audio was made in relation to the offence. Police Constable Lamb identified the speakers as the passenger and the defendant, Mr. McIntosh. [ 19 ] Police Constable Lamb testified that he issued two tickets that night.

That the passenger was also charged with an offence along with the driver. That when he attempted to issue the tickets both men were argumentative and agitated and refused to take the ticket from him. He further testified that he tried to explain to them that they had options with respect to the tickets and suggested the options that would give them a chance to come to court to ask for some leniency. [ 20 ] In another clip that was played for Police Constable Lamb, he testified that he recalls that the passenger had said that he lived at the address. [ 21 ] When asked about his definition of care and control.

Police Constable Lamb testified that in this case, “he was sitting in the driver’s seat with it running but that is not necessarily the full definition of care and control and that without looking at the Criminal Code or whatever definition that the paralegal agent was referring to, he would not be able to verbatim give a definition”. [ 22 ] There was no re-examination. Testimony of Michael McIntosh [ 23 ] The defendant, Michael McIntosh also testified in this matter. It was his testimony that he was coming from work and he went to see his friend at 3801 Lawrence Ave.

That he told his friend that he would be there in 5 to 10 minutes. His friend told him that he would meet him downstairs in the back. His friend told him that he was walking from somewhere and he wanted the defendant to wait downstairs to that they can both go upstairs together. [ 24 ] He testified that he was parked behind the building at 3801 Lawrence in the parking lot and that he had waited for his friend to come to the car and that they were talking in the car when his friend opened a can of beer and said that they should go upstairs. [ 25 ] Mr.

McIntosh testified that is when the cops came, right when they were supposed to go upstairs. Mr. McIntosh testified that the opened can of Heineken that was found in the car was there from before. He said, “that there had been two people there before and that one guy had already gone upstairs, and the other guy went to the store and the other guy went upstairs.” [ 26 ] When asked how many people where in the car. He clarified that there were two people plus himself. Mr. McIntosh stated that the other guy had left 10 minutes earlier.

That he left the vehicle to go to the store and the other guy was already in the vehicle, but he said that “we had to go upstairs but by the time they were going upstairs the cop cruiser pulled into the parking lot.” [ 27 ] Mr. McIntosh testified that the gear was in park and that the car was off, the engine was off that it wasn’t on and that he didn’t recall the engine being on but that the lights were on. He testified that the car was off for sure and when asked how does he know this and whether he was just remembering, Mr. McIntosh testified that he was pretty sure it was off. [ 28 ] Mr.

McIntosh further testified that he went to 3801 Lawrence Avenue to talk to his friend’s older brother about a part because he had a Mercedes vehicle too. He testified that it was too expensive to go to Mercedes to get the parts, so they talked about taking their cars to the same mechanic so that they didn’t have to take it to Mercedes. So, he went to talk to him about a part and that they were about to go upstairs and couldn’t because the cruiser pulled in. [ 29 ] Mr. McIntosh testified that the passenger in the vehicle was his friend Carl whom he has known since high school. When asked

whether he planned on staying at the address, Mr. McIntosh testified that he was basically in his work uniform, so he just wanted to talk to the brother about the vehicle for a half hour then leave because he didn’t want to be late for work the next morning. That he didn’t want to stay out too late. [ 30 ] In cross examination, Mr.

McIntosh acknowledged that he was in the parking lot at 3801 Lawrence Avenue on March 4 th and that he was seated in the driver’s seat of the motor vehicle. [ 31 ] It was his evidence that he was pretty sure that the key was out of the ignition because he was getting ready to go upstairs when the cruiser pulled in. He testified that he was not 100% sure but he was pretty sure it was off. [ 32 ] When asked about the open liquor, Mr. McIntosh testified that the only can that he knew about was the passenger. He didn’t know that the other guy in the back had beer.

That he didn’t know until the officer searched and found the beer in the back. [ 33 ] He agreed that he saw that his passenger had beer and testified that he had his own beer but that it had been in the trunk and that it wasn’t the same brand of beer. [ 34 ] He testified that he was not driving but was seated in the car and that he had the keys in his hand and that he was going to lock the door and that is when the officers came. He testified that he didn’t know about the other can in the back.

He testified that the other guy had come down with Carl but didn’t stay too long that he was in the back seat for 2 seconds then left. He testified that when he was talking to Carl, Carl said let’s go upstairs because his brother was upstairs, and he could talk to him about the part. [ 35 ] Mr. McIntosh testified that he saw the Heineken 10 minutes into the whole thing when the police stopped them. He stated that “When the officer opened the back seat and he opened up the passenger side back door that is when I seen the can.

That is when I knew that the other guy had been drinking but I didn’t see him drinking.” [ 36 ] When asked whether it was open, Mr. McIntosh acknowledged that it was. When asked about whether the other guy went upstairs or to the store? Mr. McIntosh testified that the other guy went to the store but the other guy he was with, the passenger stayed in the vehicle. Mr. McIntosh stated that Carl said let’s go upstairs because they were supposed to meet up with the other guy later on or something like that. [ 37 ] Mr. McIntosh testified that he had his keys with him at all time. [ 38 ] There was no re-examination.

Analysis [ 39 ] Section 32(1) of the Liquor Licence Act states: No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit. [ 40 ] As noted under 32(2) there are exceptions where subsection (1) does not apply.

It does not apply if the liquor in the vehicle is in a container that is unopened, and the seal is unbroken; or is packed in baggage that is fastened and closed or is not otherwise readily available to any person in the vehicle. [ 41 ] The burden rests on the prosecution to prove beyond a reasonable doubt that on the date in question and at the place described in the Certificate of Offence, the defendant was driving or had care or control of a motor vehicle, whether in motion or not while there was

liquor contained in the vehicle. [42] I accept that the vehicle was on and the headlight was visible at the time that Police Constable Lamb first observed the vehicle inthe parking lot at 3801 Lawrence Avenue East. I accept that Mr. McIntosh was the driver of the vehicle, as he was in the driver’s seat ofthe vehicle at the time of the approach made by PC Lamb, the fact that he identified himself as being the driver and as indicated in hisown testimony, he had his keys with him at all times. I did not find Mr. McIntosh’s version of the events credible.

There wereinconsistencies throughout his evidence that was troubling such as the third individual who happened to have left the open beer in theback-passenger seat. [43] I find that there was open liquor in the vehicle. The passenger had an opened can of beer and there was a beer located in the backof the passenger seat that was opened and had been consumed. [44] The prosecution submits that the essential elements of the offence have been proven beyond a reasonable doubt and that aconviction should be registered against the defendant. The prosecution further argues that the argument made by Mr.

McIntosh’srepresentative goes against the purpose of the legislation which is to encourage individuals not to have access to liquor in the motorvehicle. [45] As this is an offence of strict liability, I must turn my attention to any defence that has been established on a balance ofprobabilities, including any statutory exceptions. The paralegal representative for Mr. McIntosh submits that the prosecution has not proven that Mr. McIntosh had care or control of themotor vehicle.

It is his argument that since no definition exists within the Liquor Licence Act, the Highway Traffic Act or the ProvincialOffences Act, that the only

interpretation of care or control that can be found and adopted is the definition found in the common law casesinvolving impaired driving. [46] Specifically, he relies on the definition as stated in R. v.

Toews, (SCC), [1985] 2 SCR 119 at para. 10, which setsout that 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 a risk of putting the vehicle in motion so that it could become dangerous. [47] The defence submits that this Court should adopt that definition as there is no definition of care or control that can be found inthe Liquor Licence Act, the Highway Traffic Act, or the Provincial Offences Act. [48] It is the paralegal’s submission, that he has made the case on a balance of probabilities that rebutted the presumption of care orcontrol under the Liquor Licence Act that the defendant was not intending to drive, that he was getting out of the vehicle to go upstairswith his passenger; that there was no evidence that the defendant presented an element of danger deriving either from the risk of settingthe vehicle in motion, intentionally or unintentionally. [49] His analysis to rebut the presumption of care or control is taken from the case of R. v.

Kroeger, 2007 ONCJ 290 . Thedefendant in this case, Mr. Kroeger was charged with having care or control of a motor vehicle while impaired by alcohol, and care orcontrol over 80. In this case, the Court found that the presumption of care or control in the Criminal Code was rebutted as a result of thedefence being able to argue that the Crown had failed to demonstrate that the accused had actual care or control of the motor vehicle.The Court noted that the Crown to establish actual care or control beyond a reasonable doubt would have had to show that

i) The accused engaged in acts involving the use of a vehicle, or its fittings and equipment, or a course of conduct associated withthe vehicle; ii) The accused presented an element of dangerousness deriving either from the risk of setting the vehicle in motion, intentionallyor unintentionally or in some other way. [50] Since the defendant had established that he had not presented an element of dangerousness deriving from the risk of setting thevehicle in motion, intentionally or unintentionally or some other way the Crown could not establish the elements of the offence beyond areasonable doubt and the charges were dismissed.

[ 51 ] Upon the review of the Liquor Licence Act , the Highway Traffic Act and the Provincial Offences Act there is nothing that indicates that it was the intention of the legislators to import the Criminal Code meaning of care or control into the regulatory context and specifically the Liquor Licence Act . In the absence of any definition within the legislation mentioned above, the appropriate statutory approach is to apply the plain and ordinary meaning to the words: care or control. [ 52 ] As noted in R. v. Toews citing R. v. Price

(1978) CanLII 2288 (NB CA), the plain and ordinary meaning of care or control was stated as The word “care” is defined in the Oxford English Dictionary as “having in charge or protection”. “Control” on the other hand is defined as “the fact of controlling or of checking and directing action” also as the “function or power of directing and regulating, domination, command, sway” … [ 53 ] Further, in the case of R. v. Toews , the Court’s purpose was to describe parliament’s objective in enacting what was then s. 237(1) of the Criminal Code . It noted that “The mischief sought to be prohibited by the

section as expressed by the wording is that an intoxicated person (emphasis mine) who is in the immediate presence of a motor vehicle with the means of controlling it or setting it in motion is or may be a danger to the public. Even if he has no immediate intention of setting it in motion, he can at any instant determine to do so, because his judgement may be so impaired that he cannot foresee the possible consequences of his actions” [ 54 ] There is no such legislative intent expressed under the Liquor Licence Act .

The mischief the legislation sought to prohibit is having ready access to alcohol while driving or having care or control of a motor vehicle. The legislative intent was not to prevent an intoxicated person from controlling or setting the vehicle in motion or interacting with the motor vehicle in a way that causes a danger to the public. Intoxication and danger are not the subject or focus of section 32(1) of the Liquor Licence Act unlike section 237(1) of the Criminal Code . [ 55 ] In addition, the definition of care or control as outlined in R. v.

Toews has two components: the first involving some use of the car or its fitting and equipment; the second component involves some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion. The second component does not apply as this involves some element of risk of harm or negligence as a result of a person voluntarily consuming alcohol. This second element was not contemplated in the Liquor Licence Act . In addition, the

section already contemplated the action of putting the vehicle in motion by stating in the offence “whether the vehicle is in motion or not” and there is no requirement in the

section that the individual must be impaired. [ 56 ] Therefore, a limited definition for the purpose of defining care or control should be applied restricting the definition of care or control as stated in R. v. Toews to the first branch: the involvement of some use of the car or its fittings and equipment as this would conform to the ordinary and plain

interpretation of care or control. [ 57 ] Since the purpose of the Liquor Licence Act is to prohibit individuals from having open liquor in their vehicle whether they are driving or not, I find that that evidence that points to Mr. McIntosh having care or control of the vehicle as follows: i. He was occupying the front seat of the vehicle at the time of the investigation; ii. He admitted that he was the driver iii. The defendant also acknowledged that his passenger opened a beer in his presence and was drinking iv.

He has admitted that he had control of his keys [ 58 ] While I find that the passenger had open liquor in the vehicle and had consumed some of the alcohol, I do not accept the explanation provided, that it was the passenger after opening the beer and having a drink made the comment that they should go upstairs. Nor do I find that the defendant made any efforts to prevent his passenger from con​suming liquor in his vehicle.

From Police Constable Lamb’s testimony, it was clear that the passenger had alcohol which led to their being removed from the vehicle for the purpose of the Liquor Licence Act search and when the search was completed both the passenger and driver went back into the vehicle.

[ 59 ] Turning to the statutory exceptions under Section 32(2) of the Liquor Licence Act .

This subsection creates an exemption from liability with respect to the offence outlined in section 32(1), if the defendant is able to show on a balance of probabilities that the liquor in the vehicle was in a container that is unopened and the seal unbroken; or that the liquor was packed in baggage that is fastened and closed or not otherwise readily available to any person in the vehicle. [ 60 ] This Court has heard no evidence that would contradict the police constable’s testimony that the liquor that was in the hands of the passenger or the beer found in the back of the passenger seat was sealed or packed in baggage that was fastened or closed or not readily available.

The evidence is to the contrary. There was beer accessible to the passenger and to the defendant. Decision [ 61 ] In the case of R. v. Trela , 2009 ONCJ 167 at para. 65 , the Court noted that: “once the actus reus of the offence have been proven by the prosecution to the standard of proof beyond a reasonable doubt, then the mental element of negligence is automatically imported into the offence. The presumption of negligence may be rebutted by the defendant, if he is able to show on a balance of probabilities that in committing the prohibited act, he exercised reasonable care.

This defence is commonly known as the defence of due diligence.

The defence of due diligence comprises of two parts: (1) that of a defendant’s honest and reasonable mistake of fact and (2) the reason​ableness of a defendant’s efforts in attempting to avoid the commission of the act. [ 62 ] In review of the entirety of the evidence that is before the Court, I am unable to find that the defendant has established, on a balance of probabilities that there was mistake of fact or that the defendant made any effort to avoid the commission of the act. [ 63 ] As such, I cannot find that on the balance of probabilities that the defendant has met its onus for the defence of due diligence.

Nor can I find that on a balance of probabilities that the statutory exceptions can be applied to the defendant. [ 64 ] The prosecution has proven its onus beyond a reasonable doubt. [ 65 ] I find the defendant guilty of the offence of having care or control of a motor vehicle, whether it is in motion or not, while there is contained in the motor vehicle any liquor, except under the authority of a licence or permit contrary to section 32(1) of the Liquor Licence Act . Released: ORALLY October, 22, 2019 Signed: Justice of the Peace CA Cushnie