R. v. Thompson, 2011 ONCJ 300

Citation: R. v. Thompson , 2011 ONCJ 300 Ontario Court of Justice Cornwall, Ontario Re: Regina v. Joseph Thompson BEFORE: Peter Adams, J. Counsel: Ms. Burke for the crown Mr. McGillivary for the defence TRIAL HELD: November 25 th , 2010; March 28 th , 2011; April 5 th , 2011 Decision: June 7 th , 2011 Decision 1 . Introduction : 2 . Joseph Thompson was charged on March 1 st , 2010 with having care or control of his motor vehicle first, while his ability was impaired by alcohol and second, having consumed alcohol in such a quantity that the amount therein exceeded 80 mg. of alcohol in 100 ml. of blood. 3 .

The application under ss.7, 8 and 9 of the Charter was considered as a blended charter application as requested by both counsel. 4 . The Facts : 5 . At 2:00am on March 1 st , 2010, Officer Casselman parked his police car in a parking lot about 75 metres from the front door of a local bar. 6 . For the next fifteen minutes, he watched people coming out of the bar. Many got into vehicles which were parked in the parking lot next door to the bar. Officer Casselman and Officer Kelly were both parked in different police cars in the same parking lot. 7 . At 2:15am , Officer Casselman saw Mr.

Thompson and another male walk from the front door of the bar to Mr. Thompson’s vehicle. The Thompson vehicle was about 25 to 30 feet away from Officer Casselman’s police vehicle.

8 . Officer Casselman saw Mr. Thompson get into the drivers’ seat. And he saw the other male person get into the passenger seat. 9 . Officer Casselman got out of the police car and went over to Mr. Thompson’s vehicle. He was there within 15 seconds. 10 . He said the drivers' door was still slightly open. Mr. Thompson said it wasn't open. I accept the evidence of Officer Casselman. He got there quickly. He didn't want to waste anytime to speak with Mr. Thompson. And I accepted his version of the event of the door still being slightly open. 11 . When he got there, Mr. Thompson had already turned the motor on. 12 .

Officer Casselman said Mr. Thompson told him immediately that “I’m not driving…” and said something about smoking. I allowed this statement in my ruling based on the decision in R.v. Edgar OCA, 2010, when Justice Sharpe said that a trial judge may admit an accused’s spontaneous out of court statement as an exception to the general rule excluding prior consistent statements. In this case, Mr. Thompson took the stand and was examined and cross-examined thoroughly. 13 . In his evidence at trial, Mr. Thompson said that he told Officer Casselman he was just there so his friend Elsten could have a cigarette.

He said that he didn’t smoke. He said he was getting warm. And Mr. Thompson said that his friend, Marci, who went to the bar with he and Elsten, was driving them home because she wasn't drinking. 14 . Officer Casselman said that Mr. Thompson may be correct about being told he didn’t smoke. He wasn’t sure about what exactly was said about smoking. 15 . Based on his observations of a strong smell of alcohol emanating from the motor vehicle; the slurred speech from Mr. Thompson; and his blood shot and glossy eyes, Officer Casselman asked that he get out of the car.

When he got out, he stumbled and was unsteady on his feet. He was swaying from side to side. And there was a strong smell of alcohol on Mr. Thompson’s breath. 16 . Officer Kelly was at the same location in a different police car. He watched Officer Casselman go over to the Thompson vehicle and he observed there was a conversation between Mr. Thompson and Officer Casselman. He also saw Mr. Thompson get out of the truck and walk back to the police car. He said that Mr. Thompson was unsteady on his feet.

He walked with “a swagger type thing” which he believed was “consistent with someone being impaired by alcohol”. 17 . At 2:20am, Officer Casselman arrested Mr. Thompson for care and control of a motor vehicle while his ability to operate same was impaired by the consumption of alcohol. He was read his rights to counsel. 18 . The total time between Mr. Thompson getting out of the truck at 2:15am and the arrest at 2:20am was five minutes. Officer Casselman said he spoke with Mr. Thompson inside the truck for 15 seconds.

And when he got out of the truck, he said he formed his grounds for arrest after 15 to 20 seconds outside the truck. The total time for this investigation was about 30 to 40 seconds. 19 . At 2:23am , he was read the breath demand. 20 . At 2:27am, he arrived at the police station. 21 . At 3:07am , Officer Fortin, a qualified breathalyzer operating an approved instrument, administered the breath tests. At 03:11am, the first reading was 250 milligrams of alcohol in 100 millilitres of blood. At 3:31am, the second sample resulted in 240 milligrams of alcohol in 100 millilitres of blood. 22 .

At all times, Officer Casselman said Mr. Thompson was polite and cooperative.

23 . The position of the parties : 24 . The Crown position : a. There is no charter breach. Officer Casselman had reasonable grounds to arrest. b. The presumption under s.258(1)(

a) applies. Mr. Thompson cannot be believed. In the event that he is credible, then he was in de facto control of the motor vehicle and he cannot be relied upon when he said he would have somebody else drive. He may have created a danger by putting the car in motion himself. 25 . The Defendant’s position : a. Officer Casselman had no reasonable grounds to arrest and his arrest under the Charter was a breach of ss.7 and 8. After considering the decision in Grant (2009), the evidence after arrest should be excluded. b. Mr. Thompson is credible.

His intention was to warm up the car only and not to drive because he was drunk. His girlfriend was driving. 26 . The two issues raised : a. First, did Officer Casselman have reasonable and probable grounds to arrest Mr. Thompson? b. Second, was Mr. Thompson in care or control of the vehicle? 27 . Decisions and Reasons for decision : 28 . First, the arrest : 29 . Officer Casselman watched Mr. Thompson come within a few feet of his truck with his keys in hand. 30 . He got out of his police car and Mr. Thompson was already in his truck. By the time he got there, seconds away, Mr. Thompson had started the vehicle.

He also saw the passenger in the passenger seat. 31 . Within seconds after speaking with him, Officer Casselman smelled a strong smell of alcohol in the truck. Mr. Thompson had slurred speech. He had bloodshot and glossy eyes. When alighting from the truck, Mr. Thompson was unsteady and unable to stand straight. He swayed from side to side. Officer Casselman observed Mr. Thompson when walking to the police car. He smelled the alcohol emanating from Mr. Thompson. And he formed his opinion on the way to the police car in 30-40 seconds. And he made the arrest. 32 .

In my view, the arrest was reasonable in this case. 33 . Subjectively, I found Officer Casselman to be credible. And there is no issue raised in that regard.

34 . Objectively, given the circumstances of this case before him at the time, I find they were objectively reasonable. His observations were the time of day; leaving the bar; a smell of alcohol in the truck; slurred speech; he stumbled and was unsteady on his feet; the smell on his breath; and the bloodshot eyes. 35 . Classical, clinical symptoms themselves are often sufficient for arrest on these offences. In this case, the stumbling and unsteadiness, was an additional factor. And I find the fact of observing the “swagger type thing” by Officer Kelly to corroborate the movement by Mr. Thompson. 36 .

As a result, I find there was no breach of Mr. Thompson’s rights under the charter for his arrest and detention. 37 . Second, was Mr. Thompson in care or control of the vehicle ? 38 . In this case, Mr. Thompson is said to be in care or control. He was found in the drivers' seat of the truck; he owned the truck; he was in the parking lot at the bar and was not in or near his home; and the motor was running. His intention was that Marcia would be driving he and Elston home because both of them were too drunk to drive. 39 . For the following reasons, I find that he was in care or control. 40 .

First, the intention to drive and the presumption under s.258(1)(a): 41 . In R.v.Ford , SCC, l982, the court considered the evidentiary effect on the trial's judges' decision for the presumption of care or control. When the presumption is lost, the majority of the court said that the crown is nevertheless entitled to attempt to prove the elements of driving beyond reasonable doubt.

Ritchie,J., speaking for the majority, said the following: “In practical terms the only result of the accused having established that he did not mount the vehicle for the purpose of setting it in motion, is that the crown is seized with the burden of proof without the aid of the presumption.” 42 . Dickson, j., adopted the approach taken by the Supreme Court of PEI in prosecuting this offence and the ultimate facts to be proved by the prosecution: “(

g) a conviction may then be obtained on a care or control charge if the evidence establishes an intention to drive (apart from the statutory presumption) or alternatively if the evidence establishes an intention to assume some measure of active control over or with respect to the vehicle, notwithstanding the absence of any intention to drive.” 43 . When I consider the availability of the presumption in this case, I find Mr. Thompson to be credible. When he mounted the vehicle, his intention was to have Marcia drive the truck. And he let his friend keep warm when he turned on the motor .

Although the plan that he had may have been supported by the evidence of others, like Marcia or Elsen, I am satisfied that his evidence alone, in this case, is sufficient to be credible. 44 . Because I found him credible, I find that Mr. Casselmand did not enter the vehicle for the purpose of setting it in motion. 45 . The evidentiary burden, then, deprived the crown of the presumption under the now s.258(1)(a). 46 . The result, therefore, is to shift the burden to the crown to determine if there can be proof beyond reasonable doubt that the accused was in care or control of his truck.

47 . Second, the elements of the offence & reasonable doubt: 48 . The offence itself has both the elements of mens rea and actus reus. 49 . The mens rea, is the consumption of alcohol. There is no reasonable doubt that Mr. Casselman consumed alcohol in these facts. 50 . The actus reus is the second element. As outlined recently in Ruest , when I consider the actus reus I must consider both the intention of the accused and also the risk assesment in the circumstances of the case.

The court reviewed the decision in Wren , which said “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”. 51 . First, the intention of Mr. Thompson. I accepted the evidence of Mr. Thompson when he said he did not get into his vehicle with the intention to drive. As I said, this does not raise a defence to the charge. It negates the evidentiary presumption by the prosecution. But it is an element of the actus reus that may be considered. 52 .

In Cadieux , the Court of Appeal considered the trial judge’s finding of stated intention. The question of the intention, however, was a question of weight. 53 . Second, the risk assessment of the actus reus includes the unintentional operation; the accidental operation or a change of mind. 54 . In Ford , the accused was parked in a field having a party with others. He had previously agreed with another to drive home. He was found by the police in the drivers' seat; the motor was running and he had not yet traded places with his friend Darla, the driver to be. 55 .

As indicated by Ritchie,J. speaking for the majority, factors of risk to establish care or control in that case were that Mr. Ford “turned the engine on and off ...in order to use the heater.” 56 . In Pelletier , the defendant had been drinking in a bar with a friend. Both came out and got into Pelletier's car. Pelletier sat in the driver's seat without starting the car. After about 10 minutes, a policeman who they had passed while walking to the car approached. Pelletier had his seat belt on but the keys were on the floor in front of the driver's seat.

Pelletier told the policeman he and his friend intended to sleep in the car for a while. The trial judge found that Pelletier did not intend to drive the car when he got into it after coming from the bar and acquitted him. The

summary conviction appeal judge accepted the trial judge's finding but said: “The point is, that in his intoxicated condition, he [the appellant] had, at that moment, the immediate capacity and the immediate means to operate the vehicle if he chose to do so. He could have changed his mind at any time. He had care and control” The Court of Appeal agreed with the

summary conviction appeal judge, stating that: “In our view, there was ample evidence to support a finding that the appellant was in care and control of the vehicle. The undisputed evidence established that the appellant had the means readily available to drive the car. He was sitting in the driver's seat. Although the keys were not in the ignition they were immediately accessible to him. The appellant had driven the car to the hotel. When he left he was impaired and did not take advantage of the hotel's shuttle bus service. He told the police that he intended to sleep for a while. As the

summary conviction appeal court judge pointed out there was a risk that the appellant would change his mind and drive the car. There was also the risk that, in his impaired condition, the appellant would misjudge his level of impairment and drive the car while his condition continued to pose a risk.” 57 . Recently in R.v.Murray , a defendant was found not guilty of impaired because the sufficiency of evidence in Stellato had not been met. He was, however, found guilty of over .08 because of the risk associated with a change of mind.

On appeal to the Ontario Superior Court, Pelletier, J. held that because the intention was credible and there was a presence of a firm plan to drive home, an acquittal on the over .08 allowed.

58. When I consider the unintentional or accidental operation in Mr. Thompson’s case and his plan for another to drive, I consider thefollowing: a. Mr. Thompson was the owner of the truck; b. He was aware of its’ use and fittings; c. He started and knew the motor was running; d. The driver's door was still open when Officer Casselman arrived. He was incorrect when he thought the door was closed; e. He was parked at the bar area. In other words, he was away from his home; f. He stumbled and was unsteady on his feet; swaying from side to side; and unsteady on his feet with significant high readings.

Thelowest was 240 milligrams of alcohol in 100 millilitres of blood. His motor skills were therefore seriously affected. g. Although his intention was good, there was no firm plan that someone else drive which raised a reasonable doubt in my mind. There was no evidence that Marcia would drive. And there was no evidence from the passenger, Elsen, that supported the same view. 59. Given these facts, although he thought he wouldn't drive the vehicle, the risk of unintentional or accidental operation was greatbased on the alcohol induced risk and the any reasonable doubt that a firm plan was in effect. 60.

As a result, I find that Mr. Thompson was in care or control of his vehicle. 61. Proof beyond reasonable doubt: 62. Because of these findings, there were reasonable grounds to make the demand by officer Casselman. 63. At 3:07am, Officer Fortin, a qualified breathalyzer operating who was operating a lawfully approved instrument, administered thebreath tests. At 03:11am, the first reading was 250 milligrams of alcohol in 100 millilitres of blood. At 3:31am, the second sampleresulted in 240 milligrams of alcohol in 100 millilitres of blood. 64.

There is no issue that the results were taken by a qualified technician operating an approved screening device. 65. As a result, I am satisfied the crown has met the onus of proof beyond reasonable doubt and I find mr. Thompson guilty of theoffence of over .08. 66. The charge of impaired will be judicially stayed. 67. I am grateful to both counsel for their interesting submissions. I will attach a copy of all cases considered for this decision. Cases considered: R. v Ahmadi 2010 ONCA 639 , [2010] O.J. No. 4134

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