HER MAJESTY THE QUEEN — v. —, 2019 ONCJ 69

ONTARIO COURT OF JUSTICE CITATION : R. v. Bent , 2019 ONCJ 69 DATE : February 7, 2019 BETWEEN: HER MAJESTY THE QUEEN — AND — COLIN BENT Before Justice John North Heard on December 19, 2018 Reasons for Judgment Released on February 7, 2019 Ms. K. Kirec................................................................................................. counsel for the Crown Mr. M. Pasquale ......................................................................................... counsel for Colin Bent NORTH J.: INTRODUCTION [ 1 ] Mr.

Bent is charged with having care or control over a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeds 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1) (

b) of the Criminal Code . [ 2 ] Mr. Bent was also charged with an offence under s. 253(1) (a), but at the outset of the trial Crown counsel advised the court that the Crown would not be proceeding with this charge. [ 3 ] This was a very focused trial. The Crown called one witness. The defence called no evidence. The defence made a number of admissions, including that Mr. Bent’s blood alcohol readings were 200 and 196 milligrams in one hundred millilitres of blood. [ 4 ] There was only one issue in this case. That issue was whether the Crown had proven, beyond a reasonable doubt, that Mr.

Bent was in care or control of a motor vehicle. THE EVIDENCE [ 5 ] Constable Taylor Konkle, an Ontario Provincial Police officer, was on duty in a marked police car in the early morning of February 10, 2018. [ 6 ] At approximately 3:25 AM, he received a radio call that a single motor vehicle was in the ditch next to the eastbound collector lanes of Highway 401 near Keele Street. Constable Konkle was told that a tow truck driver had contacted the police to report this matter.

Based on the radio call, Constable Konkle understood that the tow truck driver believed the driver of the car was impaired and was still at the scene. [ 7 ] Constable Konkle could not recall the street conditions that evening, however, he knew that he did not have any difficulty operating his vehicle. His notes indicate that when he started his shift at 6 PM it was snowing and the roads were wet and slushy. He testified that there had been some freezing rain earlier that evening, but it was not raining when he responded to this call.

[ 8 ] At 3:28 AM, Constable Konkle arrived at the scene. He saw a Honda automobile in the ditch. According to Constable Konkle, the car was about 10 yards away from the road. That estimate includes the shoulder, which contained a mound of snow left by snowplows. [ 9 ] The ditch was covered by snow. The Honda was facing northbound. The right side of the car was in contact with a highway sign. [ 10 ] Constable Konkle testified that the Honda had minor damage to the front right side of the vehicle. Constable Konkle estimated that there was less than $2000 damage to the car.

The highway sign was damaged, but was still standing. [ 11 ] Constable Konkle saw two people at the scene – a person later identified as Mr. Bent and a tow truck driver. [ 12 ] Constable Konkle testified that Mr. Bent was outside of the Honda. He was using a snow brush in an effort to remove snow around the front left wheel well of the car. Constable Konkle testified that the snow was “about mid-tire level”. [ 13 ] Constable Konkle testified it appeared that the Honda drove through the snowbank that had been created by snowplows on the side of the road.

After driving through the snowbank, it appeared that the car slid on the snow in the ditch until it hit the sign. As the car slid, more snow accumulated under the car. [ 14 ] Constable Konkle called out to Mr. Bent, who was leaning over as he was digging. Mr. Bent “shot up” from his digging position and fell into a snowbank. [ 15 ] Constable Konkle walked over to Mr. Bent’s location next to the Honda. Mr. Bent told the officer that he was okay. [ 16 ] Constable Konkle testified that Mr. Bent was slurring his words. Mr.

Bent told the officer that he was “just trying to get the car out of the ditch.” [ 17 ] Constable Konkle testified that he could smell a strong odour of alcohol coming from Mr. Bent’s mouth. Mr. Bent’s eyes were watery and red. According to Constable Konkle, Mr. Bent was not speaking in full sentences and he seemed confused. Mr. Bent fell over three times while speaking with Constable Konkle. [ 18 ] Constable Konkle testified that the Honda’s engine was running and he saw exhaust from the tailpipe.

Constable Konkle also testified he saw, while standing outside of the car, that the keys were in the ignition. [ 19 ] Constable Konkle asked Mr. Bent for his driver’s licence. Mr. Bent reached into his wallet and handed the officer his health card. Constable Konkle told Mr. Bent that he had to produce his driver’s licence. Mr. Bent apologized and handed Constable Konkle his wallet. [ 20 ] Constable Konkle returned the wallet to Mr. Bent and asked him to drop the snow brush. Constable Bent placed Mr.

Bent under arrest at 3:30 AM. [ 21 ] Constable Konkle testified that, while he was at the scene, the tow truck driver was out of his truck but the officer did not see the tow truck driver do anything in relation to Mr. Bent’s car. [ 22 ] After Mr. Bent was placed under arrest, Constable Konkle instructed the tow truck driver to “hook the vehicle up”. [ 23 ] Constable Konkle did not attempt to operate the Honda. The officer explained that he did not seize the key to the Honda because a tow truck driver will usually need a key to tow the car. [ 24 ] Constable Konkle left the scene with Mr.

Bent before the tow truck driver had removed the Honda from the ditch. The officer did not see the tow truck driver place the Honda on the hoist. [ 25 ] When asked by Crown counsel whether he had an opinion as to whether the Honda was operable, Constable Konkle testified that “it was able to drive.” [ 26 ] Constable Konkle described the ditch as a “flat grass area”. He stated that the snowbank created by the snowplows was about two feet high.

When asked by Crown counsel whether a car could have been driven out of the ditch, the officer answered “absolutely.” [ 27 ] Constable Konkle was asked whether it would have been possible to drive the Honda out of the ditch. Constable Konkle testified that he believed that the Honda could have been driven out of the ditch. [ 28 ] In cross-examination, the officer testified that while he was at the scene of the collision, he knew that the car in the ditch was an older model four-door Honda.

The following day he received additional information about the car after requesting certified MTO documents, which revealed that the car was a Honda Accord ULE. [ 29 ] Constable Konkle could not recall if the Honda had one or two exhaust pipes. He could not recall if the car’s hazard lights were on. He could not recall if any of the doors to the car were open. He could not recall anything about the gear selector. He did not hear any screeching noises coming from the car. He made no observations about the parking or emergency brakes.

POSITIONS OF THE PARTIES [ 30 ] Crown counsel took the position that the evidence establishes, beyond a reasonable doubt, that Mr. Bent had care or control of the Honda. [ 31 ] Counsel for Mr. Bent took the position that the court should be left with a reasonable doubt on the issue of care or control.

Defence counsel asserted that the Crown had not established the requisite mens rea or actus reus for this offence. [32] With respect to actus reus, defence counsel argued the evidence does not establish that the Honda was operable, that theengine was running or that it could have been driven out of the ditch. Defence counsel suggested that Constable Konkle’s testimony thatthe car’s engine was on was not reliable given what the officer did not observe or could not recall about the car. [33] Further, defence counsel argued there is insufficient evidence regarding Mr. Bent’s intent.

Counsel raised the possibility thatMr. Bent may have been digging out the car to have it towed. [34] In response, Crown counsel pointed out that care or control includes situations where there is a real risk of an accused personchanging his or her mind. It was argued that even if one were to accept that Mr. Bent was digging out the car for the purpose of havingthe car towed, there was a realistic risk that once the car was out of the ditch Mr. Bent would have changed his mind and driven it away.

LEGAL PRINCIPLES Presumption of Innocence and Proof Beyond a Reasonable Doubt [35] In a criminal trial, an accused person is presumed to be innocent, unless and until the Crown establishes his or her guiltbeyond a reasonable doubt. The burden of establishing beyond a reasonable doubt that an accused committed the offence charged “restswith the prosecution throughout the trial and never shifts to the accused”: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, atpara. 27. [36] A reasonable doubt is a doubt based on reason and common sense and one that logically arises from the evidence or absenceof evidence.

If after considering all of the evidence, I am sure that Mr. Bent committed the offence, then I will be satisfied of proofbeyond a reasonable doubt. If after considering all of the evidence or the absence of evidence, I am not sure that he committed theoffence, then I will not be satisfied beyond a reasonable doubt. Care or Control [37] In R. v. Boudreault, 2012 SCC 56 , [2012] S.C.J.

No. 56 at para. 33, Fish J. concluded that the essential elements of“care or control” under s. 253(1) of the Criminal Code are: • an intentional course of conduct associated with a motor vehicle; • by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; • in circumstances that create a realistic risk of danger to persons or property. [38] The mens rea of care or control is the intent to assume care or control of a motor vehicle after the voluntary consumption ofalcohol and/or a drug. The actus reus of care or control for an offence under s. 253(1)(

b) is the assumption of care or control after thevoluntary consumption of alcohol has resulted in a blood alcohol concentration of more than eighty milligrams of alcohol in one hundredmillilitres of blood: R. v. Toews, (SCC), [1985] 2 SCR 119, at para. 7. [39] For a risk to be realistic, it must be more than just theoretically possible. However, the risk need not be probable or evenserious or substantial.

In Boudreault, at para. 48, Fish J. emphasized that a “realistic risk” is a “low threshold” and “in the absence ofevidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability toset the vehicle in motion.” [40] The existence of a realistic risk of danger is a finding of fact by a trial judge. Whether a realistic risk arises on the facts isdetermined by applying circumstantial evidence. In approaching this task, it is critical that a court distinguish between appropriateinferences and inappropriate speculation: R. v.

Szymanski, (ON SC), at para. 92. [41] A realistic risk that a vehicle will be set in motion by a person whose ability to drive is impaired by alcohol constitutes arealistic risk of danger. [42] While an intention to set a vehicle in motion is not an essential element of the offence, an intention to set a vehicle in motionsuffices in itself to create the risk of danger contemplated by s. 253.

However, a reasonable doubt may arise where there is evidence thatthe motor vehicle was inoperable or, for other reasons, could under no reasonably conceivable circumstances pose a risk of danger: Boudreault, at para 48. [43] Having said that, an accused person may be convicted in circumstances involving a vehicle that is temporarily immobile, butwhere the accused person is engaged in a course of conduct that poses a risk of the vehicle being put into motion: R. v. Blair, 2015ONSC 5327; R. v.

Magagna, (ON CA). [44] Further, an accused person may still be convicted even where he or she had no intention to set a car in motion, incircumstances where he or she was inebriated and was in a position to immediately set the vehicle in motion. In most cases that willinvolve an accused person who was found behind the wheel of a car. Section 258(1)(

a) of the Criminal Code creates a presumption thatan accused person who is found in the driver’s seat of a vehicle is deemed to be in care or control of the vehicle. As Mr. Bent was notfound in the driver’s seat of the Honda, this presumption does not apply in this case. [45] In Boudreault, at para. 42, Fish J. provided three examples of situations where, in the absence of a contemporaneousintention to drive, a realistic risk of danger may arise.

One example is where there is a realistic risk that an inebriated person whoinitially did not intend to drive would later change his or her mind. [46] To find an accused person guilty on this basis, a court must conduct a case-specific analysis and be satisfied beyond a

reasonable doubt that there was a real risk that the accused would change his or her mind and intentionally set the vehicle in motion: Szymanski , at para. 91 . [ 47 ] In Szymanski , at para. 93 , Durno J. set out a non-exhaustive list of areas that have been relied upon in other cases in determining whether there was a real risk that an accused would change his or her mind and drive while impaired.

Some of the areas mentioned in this list include: • The level of impairment. • Whether the keys were in the ignition or readily available to be placed in the ignition. • Whether the vehicle 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. • If the accused drove while impaired it might show both continuing care or control, bad judgment regarding fitness to drive and willingness to break the law. • Whether the accused had a plan to get home that did not involve drinking while he or she was impaired or not over the legal limit. • Whether the accused failed to take advantage of alternate means of leaving the scene.

FACTUAL FINDINGS [ 48 ] I find that Constable Konkle was a credible witness. He gave his evidence in a straightforward and forthright manner. His evidence was not seriously challenged in cross-examination. There were no significant inconsistencies in his evidence. His account of what occurred that evening made sense. He reasonably admitted when he could not recall something. I find that he did not attempt to embellish his evidence. [ 49 ] I also find that Constable Konkle’s evidence was reliable on the issue of care or control. Once again, his account made sense.

I conclude that he was able to accurately observe, recall and recount the important events in issue. [ 50 ] My assessment of the reliability of Constable Konkle’s evidence was not negatively impacted by the cross-examination. While it is true that Constable Konkle could not recall certain things about the Honda, his inability to recall those particular details did not cause me to have any doubt about the reliability of what he did remember.

Given the nature of the investigation, it is reasonable to conclude that Constable Konkle’s attention would have been focused on the specific areas that he was able to recall. [ 51 ] I accept Constable Konkle’s testimony, and I find as follows: • That the Honda’s engine was on. • That exhaust was coming from the tailpipe. • That the key was in the ignition. • That Constable Konkle observed minor damage to the car. • There was no real evidence that the car was inoperable. • That the ditch was a flat grass area. • That Mr.

Bent, using a snowbrush, was attempting to dig his car out of the snow. • That a car could have been driven out of the ditch that evening. • More specifically, the Honda could have been driven out of the ditch that evening. CONCLUSION [ 52 ] I am satisfied, beyond a reasonable doubt, that Mr. Bent could have driven the Honda out of the ditch and that the car was operable. [ 53 ] The evidence establishes beyond a reasonable doubt that Mr. Bent’s blood alcohol exceeded the legal limit. [ 54 ] I am satisfied that the evidence demonstrates, beyond a reasonable doubt, that Mr.

Bent intended to dig out his car for the purpose of driving it away. In my view, there is no other reasonable inference available on this evidence. [ 55 ] I reject the suggestion that Mr. Bent may have been using a snowbrush to dig out his car so that the tow truck – which was parked at the scene - could tow his car away. The presence of the tow truck and its driver does not give rise to a reasonable doubt regarding Mr. Bent’s intention. There is no evidence that Mr. Bent sought or even wanted the assistance of the tow truck driver. There

is no evidence that the tow truck driver provided any assistance to Mr. Bent. There is no evidence that the tow truck driver was going to assist Mr. Bent in removing the Honda from the scene. [ 56 ] Even if I had not been satisfied beyond a reasonable doubt that it was Mr. Bent’s intention to drive the Honda out of the ditch, given all of the evidence (including Mr. Bent’s intoxicated state), there was a realistic risk that when the car was removed from the ditch Mr. Bent would have changed his mind and driven the car. [ 57 ] Given Mr.

Bent’s level of intoxication, the presence of the tow truck driver did not constitute a “concrete and reliable” plan by Mr. Bent to offset the inference that there was a realistic risk of danger: Boudreault , at para. 23 ; R. v. Pukas , 2018 ONSC 6507 , at paras. 54 and 57 ; R. v. Teasdale , 2015 ONSC 7781 , at para. 60 ; R. v. Pretli , 2015 ONCJ 689 , at para. 58 . [ 58 ] I am satisfied beyond a reasonable doubt that there was an obvious and significant risk that Mr. Bent would put the car into motion and endanger the public or property. [ 59 ] I am satisfied beyond a reasonable doubt that Mr.

Bent had care or control of the Honda. [ 60 ] I am satisfied that all of the essential elements of the offence have been established beyond a reasonable doubt. [ 61 ] I find Mr. Bent guilty. ____________________________ NORTH J.