HER MAJESTY THE QUEEN — v. —, 2020 ONCJ 585

CITATION : R. v. Lall , 2020 ONCJ 585 DATE : 2020·11·04 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — RYAN LALL Before Justice Leslie Pringle Heard on: September 4, 5, 6 and 12, 2019; October 4, 2019; September 2, 2020 and September 9, 2020 Reasons for Judgment released on November 4, 2020 K. Nedelkopoulos....................................................................................................... for the Crown J. Parkin/A. Combei................................................................................................ for the Accused Pringle, J.: 1.

INTRODUCTION AND OVERVIEW [ 1 ] Ryan Lall is charged with having care or control of his motor vehicle on August 26, 2018 while impaired by alcohol, and while having excess alcohol in his system. It is not disputed that he was discovered in the driver seat of his car about 2:00 a.m., intoxicated, with the vehicle stopped in the middle lane of eastbound traffic on Sheppard Avenue East at Don Mills Road. At the time, he was alone. Paramedics and police attended, and later at the hospital, he provided breath samples.

A toxicologist indicated that his blood alcohol content at the time of the incident would have been 170 to 215 mg of alcohol in 100 ml of his blood. [ 2 ] At this point, the only issue in this trial is whether Mr. Lall was in “care or control” of his motor vehicle, as defined by law. [ 3 ] The Crown called 7 witnesses: a civilian who found Mr. Lall at the scene, Mr. Afshar; 2 paramedics, Mr. Chan and Mr. Yuen; and 3 police officers who attended at the scene, Arcand, Methe and Warwar. [ 4 ] The Defence called 3 witnesses: Ryan Lall himself, his father John Lall, and Ryan’s girlfriend, Abby Joseph. 2.

THE EVIDENCE 2.1 The Crown’s Case [ 5 ] Mr. Afshar was driving east on Sheppard Ave. East when he came upon Mr. Lall’s car at the intersection at Don Mills around 2:00 a.m. Mr. Afshar stopped to investigate since Mr. Lall’s car was in the middle lane of traffic, stopped at the signal light, but not moving when the light turned green. Another car was also stopped, with the driver trying to determine what was going on with Mr. Lall’s car. [ 6 ] Mr. Afshar said Sheppard Ave. East had 3 lanes running east there plus a turn lane, and Don Mills was 6 lanes at this intersection.

The area was lit by street lights, and after coming up the hill on Sheppard, Mr. Afshar said the road was straight at the intersection. There was not much traffic, but Mr. Lall’s hazard lights were not on. Mr. Afshar did not see the car move at all, and he did not notice if there was any exhaust. [ 7 ] Mr. Afshar saw that Mr. Lall’s window was open and he was passed out, slumped over the wheel. The airbag had been deployed but was deflated, and the car was damaged. Mr. Afshar had to shake and slap Mr. Lall to get him to come to, and when he did, he asked Mr. Lall if he had been drinking. Mr.

Lall told him that he had, then went back to sleep and began snoring. [ 8 ] EMS paramedic Chan arrived at 2:10 a.m. He testified that the lights in the car were on and he said he did see fumes from the tail pipe. He said he could hear the engine and the car was running. When he and Mr. Yuen tried to wake Mr. Lall, Mr. Lall gave them the finger and said profanities to them. [ 9 ] EMS paramedic Yuen went into the passenger side of the vehicle and noticed the ignition was a push start, so he pushed the button to turn it off. He did not note whether it did turn off, but Mr. Chan testified that it was off after that.

The driver was not wearing a seatbelt. Mr. Yuen explained that Mr. Lall was unsteady and somewhat confused, and did not want to get on the stretcher. Mr. Yuen noted a minor odour on Mr. Lall’s breath, consistent with alcohol, but said Mr. Lall was alert to himself, to place and to time. [ 10 ] Detective Constable Arcand arrived on the scene at 2:20 a.m. He confirmed that Sheppard Avenue East is straight at this

intersection, and relatively well-lit. The traffic was very low at the time. Mr. Lall was arrested by Constable Methe at 2:22 a.m. Later at the hospital, D.C. Arcand noticed that Mr. Lall was wearing a key fob around his neck on a lanyard with a Mazda key on it. He believed it was for Mr. Lall’s vehicle at the scene, which was a Mazda. D.C. Arcand testified that Mr. Lall vomited at the hospital numerous times. [ 11 ] Constable Methe described the intersection at Sheppard and Don Mills as a large one, with multiple lanes on each road.

Fairview Mall is on the northeast corner and there is a gas station on the northwest corner. To the south, the area is residential. He described Mr. Lall’s vehicle as being two lanes from the south side of the road, in toward the crosswalk, although he did not know how far into the crosswalk. [ 12 ] Constable Warwar said the vehicle appeared to be sitting in the middle of the walkway, and noted it was partially blocking the pedestrian crosswalk so pedestrians would have to walk around it. 2.2 The Defence Case [ 13 ] Mr. Lall was 31 at the time of this incident.

He had his own business, doing office installations, including moving, delivering and service of office furniture. [ 14 ] He explained that on Saturday August 25, 2018 he had been working, but they finished early and he decided to meet up with some friends for drinks. Since he works with his father, he called his dad to tell him that he would be taking an Uber home from the bar, and they could pick up the car the next morning. They would need the car and the tools inside the car for work the next day. [ 15 ] Later in the evening, Mr.

Lall spoke to his girlfriend Abby Joseph, and she said she would come to pick him up. They made a plan that she would meet him at the bar and drive Mr. Lall home in his car, which meant that Mr. Lall and his dad could drive straight to work the next day. Abby would stay the night with Mr. Lall at his place, and pick up her car later. Mr. Lall called his dad about 7:30 p.m. to tell him the plan. [ 16 ] Mr. Lall admitted that he had quite a few drinks and some shots with his friends. As he put it, “the drinks were flowing”. Ms. Joseph showed up just after 1:00 a.m.

She left her car at the bar, and drove his car home, with Mr. Lall passed out in the back seat. Part way home, she woke him up and said she missed the turn off, and he gave her some directions and went back to sleep. [ 17 ] Soon after that, Mr. Lall said that Ms. Joseph woke him up and said that she had hit a curb or a pothole, and the car had stalled. She said they needed to call his father for a ride. [ 18 ] Ms. Joseph filled in some of the details about this when she testified later.

For his part, Ryan Lall said that from what he remembered and according to Abby, he threw up in the back seat of the car and she pulled him out and put him in the driver’s seat so that she could clean up the vomit. He remembered being seated in the front seat, and knew he was in the front of the car. [ 19 ] Mr. Lall said he called his dad about 1:30 a.m. and told him there was something wrong with the car, and they needed a ride. He described being in and out of sleep during this time, and there were a few calls when his father called back, and he missed some of the calls too.

He said that he understood his father was coming to get them. When people stopped to check if they were ok, he said he was semi-awake, and Ms. Joseph told the people that they were ok, that his father was coming. Mr. Lall said that he remembered telling Ms. Joseph at one point to find his dad. After that, he did not see her again, or his father, before he got arrested. [ 20 ] Mr. Lall testified that he remembered being woken by someone who was telling him that he had been in an accident. He vaguely recalled giving them the finger, believing that it was Ms. Joseph trying to prank him. Mr.

Lall eventually realized it was a paramedic, and told them that his car was damaged from a prior accident at work, a few weeks earlier. Exhibit 16 was an estimate for this damage, which he said he had not yet fixed. [ 21 ] When asked about the car and what gear it was in at the roadside after Ms. Joseph said it stalled, Mr. Lall testified, “it had to be parked”. He also said the ignition, “had to be off”. He surmised that since the airbag went off on the same side as the gas tank, it was a safety feature that the car would not re-start.

He said that when he later picked the car up at the pound, it would not start and had to be towed. As a result, he believed the car was not operable after it stalled. [ 22 ] John Lall testified that his son initially told him he was going to take an Uber home from the bar, and they could pick up the car with the tools there the next morning. Later, Ryan called him to let him know that he would be getting a ride home from the bar with his girlfriend Abby. John Lall didn’t hear from his son again till about 1:30 a.m.

He said he got a call then from Ryan, saying there was something wrong with the car, it broke down and wouldn’t start. He understood that Abby had been driving. He said that Ryan and Abby were both on speaker phone, asking him to come and pick them up. John Lall had been sleeping but said he would come. He got dressed, and left. He understood they were by the subway, which he interpreted as the Subway Restaurant. [ 23 ] John Lall identified a number of voice mails that were played in court. He confirmed that these were left by him for Ryan that night, although he was not sure of the exact times: • “Ryan.

I’m driving on Don Mills, around, and I can’t see anything. I can’t see any subway or anything. Call me right away or ask Abby to call me. I don’t have the number. Try to call me back. I’m driving on Don Mills and I can’t see anybody, I can’t see you, I can’t see any subway whatsoever. Bye.” • “Ryan. It’s Dad. Tell Abby to park the car in a safe place. I’ll come and get you guys. Or take a taxi home. Call me right away to deal with the car tomorrow. Bye. Call me please. Bye.”

• “Ryan. Dad. Where are you? Give me a call. Thanks. Bye.” • “Ryan. Dad. Please call me right away. Call me. Just want to know if you took a taxi.” • “Hi. It’s Dad. Where are you? Don’t, don’t drive.” [ 24 ] As he was looking for a Subway restaurant, John Lall was driving slowly and spotted Abby at the Esso gas station at the northwest corner of Sheppard and Don Mills, so he pulled over. Abby was in tears and hysterical. She said she was trying to find a tow truck, and to find him (Ryan’s dad). She told him that the ambulance and police were there, and an ambulance took Ryan.

John Lall didn’t see an ambulance or a police cruiser. He thought it was after 2:00 a.m., but he could not say how long after. (We know from other evidence that the ambulance left around 2:23 a.m.) [ 25 ] John Lall tried to calm Ms. Joseph, but she wanted to go and get her car. Mr. Lall then took her to the bar, so she could drive her car home to her place. He then went home to his place. The next morning he saw Ryan and understood that he had been charged, but Ryan didn’t say much and never talked about it. [ 26 ] The last witness to testify was Abby Joseph. Ms.

Joseph explained that she offered to pick up Ryan at the bar and take him home, that way she could sleep at his house. She picked him up around 1:00 a.m. and left her car there. She drove his car so that he would have it for the next morning to go to work. [ 27 ] Ms. Joseph said that as she was driving, Mr. Lall was sleeping in the back seat. She had his keys. She missed an exit and woke him to ask him where to go. He understood and answered her coherently, giving her the directions and then he went back to sleep.

Then, as she continued driving and looked back at him, she hit a pot hole or curb and the airbag popped and the car stalled. She said she tried to pull right but the car stopped in the middle lane. When she tried to start it, it wouldn’t go. She did not recall what gear it was in, it had just stalled. At that point she woke Ryan again, and told him to call his dad, which he did. [ 28 ] She identified several photos that she took of Mr. Lall in the car in Exhibit 15, which she said were a prank: EX15A: time stamp 1:17 a.m.

August 26, 2018: selfie of her in the driver’s seat with him lying on the back seat with his eyes closed. She said she took this photo in the parking lot before they left the bar. It was his camera that he kept in the car for work, she thought it would be funny for him to see the photo at work. EX15B: time stamp 1:20 a.m.: selfie of her showing the finger, with him lying in the back seat. She said she took this photo after they left, after she had come to a stop while driving.

EX 15C: time stamp 1:32 a.m.: selfie of her, after she had hit something, she said they were at the intersection of Sheppard and Don Mills. EX 15D: time stamp 1:48 a.m.: close up of Ryan lying on his side, in act of vomiting onto the floor in the back seat. EX 15E: time stamp 1:53 a.m.: close up of Ryan as Abby sticks a pen up his nostril. She said that this photo was taken while Ryan was sitting in the front driver seat. [ 29 ] As they were waiting for his father, Ms. Joseph said Mr. Lall started to get sick in the back seat so she moved him to the front driver’s seat so she could clean up the mess.

He was in and out of consciousness, and she felt the driver’s seat was easiest. She also did not want him to lay back down, and thought he would be better in the front. She said his father had told her to go and find a tow truck, so she left Ryan there, leaving the door of the car open. Ryan told her to leave him the keys, she assumed that was in case his father or CAA arrived. Ms. Joseph said that she left the keys on the windshield outside the car, and did not actually give them to Ryan. She explained that she wanted his dad to see the keys, but also did not want Ryan to have access to them. [ 30 ] Ms.

Joseph said that she went to see if she could find a tow truck. When she was unsuccessful, she said she returned to the car, and a few people came by to see if they were fine, and she said yes, we have help on the way. Ryan then told her that his dad was on Don Mills, unable to find them. Ms. Joseph said Ryan told her to go and find him. While looking for his father, she said she found a tow truck but said that the driver gave her such a ridiculous price that she declined. She decided they would just wait for his dad, since she knew he had CAA. [ 31 ] As she was returning to the car, Ms.

Joseph said she saw an ambulance driving away and cop cars at the scene, and she started freaking out and panicking. She said she didn’t know what to do - if she should go there, or if Ryan was in trouble. She said she was scared. She didn’t go over, but then she saw his dad and flagged him down. She said she explained to his father what was going on, and she was crying. He told her not to panic and said he would take her back to her car so she could go home. He told her he would let her know what happened. She told the court that, “because of all that happened, I just decided to go home”. 3.

FINDINGS OF FACT AND CREDIBILITY

[ 32 ] The Crown and Defence took different positions on a number of the inferences and findings to be drawn from the evidence. Having heard their submissions and looking at the totality of the evidence, I am prepared to make the following findings of fact: • I accept that Ms. Joseph drove Mr. Lall’s car from the bar. The evidence of the Defence witnesses support such a finding, as do the photographs taken by Ms. Joseph; • This part of the plan was a good one, and I accept that Ms. Joseph planned to drive Mr. Lall home because he had been drinking. I accept that Mr.

Lall did not intend to drive home from the bar that night; • I further accept that Mr. Lall’s car had been previously damaged but not repaired. Mr. Lall’s testimony about this was supported by his father’s testimony, and also by the estimate in Exhibit 16. There was no evidence of a collision or accident at the scene, and Mr. Afshar said there was no debris there; • Accordingly, I am prepared to accept Ms. Joseph’s testimony that while she was driving Mr.

Lall’s car, she hit a curb or a pothole that caused the car to stall, and she couldn’t re-start it; • I am not prepared to find that the car was completely inoperable or immoveable after that. It appears from the evidence of the paramedics that the car was running when they arrived: Mr. Chan gave detailed evidence about the fumes, the lights and the sound of the engine, and Mr. Yuen said he pushed the button to turn the car off. While Mr. Afshar did not notice any exhaust fumes, there would be no reason for him to do so. I accept Mr.

Chan’s evidence that the car was running when the paramedics arrived; • I further find the evidence of Mr. Lall and Ms. Joseph was unreliable about the condition of the car at that point. Mr. Lall’s suggestions that it “had to be in park” and the ignition “had to be off” were mere speculation, and his theory that deployment of the airbag meant the car could not start had no actual foundation in the evidence before the court. Similarly, Ms. Joseph’s evidence did not support a finding that the car was inoperable or immoveable: her testimony was simply that the car had stalled, and they needed a ride.

She didn’t know what gear the car was in; • I find the location of the car was in the middle lane of Sheppard Ave. E. in a live lane of traffic. Although there was unclear evidence from various Crown witnesses about how far the car protruded into the crosswalk, I find no reason to doubt Constable Warwar’s recollection, (based on his notes), that the vehicle was partially blocking the crosswalk.

I accept his evidence that pedestrians would have to walk around the vehicle as they crossed. [ 33 ] The Crown challenged the credibility and reliability of both Ryan Lall and Abby Joseph. [ 34 ] With respect to Ryan Lall, I find that he was no condition to give reliable evidence about much of what was happening that night. He was in and out of consciousness, he gave paramedics the finger believing that they were his girlfriend, and it is clear that he was very intoxicated with a blood alcohol content of more than double the legal limit.

At the same time, it appears that he had some degree of consciousness and volition at the scene: he knew he was in the driver seat of the vehicle, he was able to speak to his father on the phone, and he was able to direct Ms. Joseph to go and look for his father, and to tell her to leave him the keys to the car. [ 35 ] In light of the conflict, (or holes), in the evidence about the location of the keys, I am uncertain of their location: Ms. Joseph said she left them on the windshield, but Mr.

Lall was unable to say how they came to be around his neck on the lanyard at the hospital. [ 36 ] I also regret to say that I am left with some real concerns about whether Ms. Joseph provided the court with the full story of what was happening at the intersection that night. In particular, two points stand out as making little sense: • Her insistence that she put Mr.

Lall in the driver’s seat, behind the wheel, because she thought it was the best way to clean up his vomit in the back seat – this seems extremely unlikely given that he was heavier than her, he was lying down and drunk, and she could have just sat him up in the back seat; and, • Her reaction of panic, hysterics and being scared when she saw the police and ambulance at the scene - this reaction appeared completely contrary to her testimony that they needed help and had done nothing wrong. [ 37 ] I find that John Lall was acting as a good father that night, and I accept that he was doing his best to help out his son and Abby.

I have no reason to doubt his evidence. However, his voice messages to Ryan indicate that the circumstances that night, and any plan to deal with the car, were not nearly as clear as Ryan and Abby attempted to suggest in their evidence. For example, at least from John Lall’s perspective, he appeared to believe the car was operable (“tell Abby to park the car”); he was unaware of any clear plan (“I’ll come and get you guys. Or take a taxi home”); and, in his last message, he expressed concern that Ryan might drive the car (“Don’t, don’t drive”). 4. LAW AND ANALYSIS [ 38 ] In R. v.

Agyemang, 2014 ONSC 4232 at para.40, Justice Durno explained that: The Crown has three routes for establishing care or control: evidence of driving, applying the rebuttable presumption in s.258(1)(

a) where the accused was in the seat normally occupied by the driver, or through evidence of de facto or actual control which involves therisk of danger as an essential element. [39] As indicated above, I am satisfied that Mr. Lall was not driving. The Crown cannot rely on this route to establish care orcontrol. [40] Moving on to the presumption, Mr. Lall was found in the driver’s seat of his motor vehicle, and the presumption of careor control set out in s.258(1)(

a) therefore applies. Accordingly, he is presumed to have had care or control of the vehicle unless heestablishes that he did not occupy the driver’s seat for the purpose of setting the motor vehicle in motion. [41] Given my findings about the reliability and credibility of the defence evidence above, I have some reservations aboutwhat Mr. Lall’s intentions were when he got into the driver’s seat. [42] However, even if I find that the presumption is rebutted because Mr.

Lall intended to wait for his father and did notinitially intend to set the vehicle in motion, it appears to me that the crux of the case is the third route to care or control set out by JusticeDurno in Agyemang. Can the Crown prove beyond a reasonable doubt that Mr.

Lall engaged in a course of conduct that involved arealistic risk of danger to persons or property? [43] The issue of whether the course of conduct associated with the motor vehicle by an intoxicated person presents a realisticrisk of danger is a matter of fact to be determined by the trial judge, applying the correct legal test and considering all the relevantfactors: see R. v. Boudreault, 2012 SCC 56 , 2012 S.C.C. 56 at paras.11-16 and R. v. Balogun-Jubril, 2016 ONCA 199 atparas.48-49.

The risk need not be probable, significant or substantial, however, it must be realistic and more than simply theoreticallypossible. [44] In order to conduct the risk inquiry in this case, I agree with Defence counsel, Mr. Parkin, that it is helpful to look at thefactors set out by Justice Durno in R. v. Szymanski, (ON SC), [2009] O.J. No.3623. These were cited by the Court ofAppeal in R. v. Smits, 2012 ONCA 524 as being an excellent, non-exhaustive, list of factors that a court might look at for the riskinquiry. 1. level of impairment: I cannot accept the Defence submission that Mr.

Lall’s level of impairment was only “medium”. Given hislapses in and out of consciousness and his mistake in giving paramedics the finger, it seems that his level of impairment was quite high. As Justice Campbell noted in Balogun-Jubril, a high level of alcohol impairment would render the conduct of the accused risky andunpredictable, and increase the likelihood he would exercise bad judgement; 2. whether the keys were in the ignition: the vehicle here had a push button start that did not require that the key be in the ignitionin order to turn the engine on. Even if Ms.

Joseph left the key on the windshield, it appears that the car could be started due to the closeproximity of the key to the vehicle; 3. whether the vehicle was running: Mr. Chan said the car was running when paramedics arrived. In his intoxicated condition,there was a real risk that once the vehicle started, Mr. Lall might try to move the car to the side of the road; 4. the location of the vehicle: the area was well-lit and the traffic was light, however, the hazards were not on, and other motoristssuch as Mr. Afshar had to stop to investigate why the car was not moving at the light and what was going on.

While this was not a caselike R. v. Vansickle, [1990] O.J. No 3235 (C.A.), where the weather posed an obvious additional risk, Mr. Lall’s car was in the middlelane of a large multi-lane intersection, and was at least partially obstructing both vehicular and pedestrian traffic; 5. whether the accused had reached his destination: Mr. Lall and Ms. Joseph had not reached their destination; 6. the accused’s disposition and attitude: as indicated above, Mr. Lall was quite impaired and showing poor judgement. He wasalso vomiting, first in the back seat when Ms.

Joseph was there, and later at the hospital numerous times; 7. whether he drove to the location the vehicle was found: I accept that Mr. Lall did not drive there; 8. whether he engaged in drinking and driving: that was not the case here; 9. whether he had a plan to get home: this is a significant factor that in some cases will substantially diminish or leave a reasonabledoubt that there was any realistic of danger. For example, in R. v. Lanno, 2014 ONCJ 655, Justice Shreck found that although Mr. Lanno

was impaired and his inoperable vehicle was in a live lane of traffic, the Crown had not proven that there was a realistic danger. Mr.Lanno had called his father to pick him up, the area was well lit, the road was not busy, and the car’s lights were on. A witness testifiedthat there was no difficulty seeing the vehicle or getting around it. Mr. Lanno was found not guilty. In this case, the initial plan for Ms. Joseph to drive Mr. Lall home from the bar was a good one. Once the car stalled, it was also areasonable plan to call his father for assistance.

However, once John Lall was unable to find them, things deteriorated quickly. At RyanLall’s direction, Ms. Joseph left him in the driver’s seat, drunk and alone in the car. Despite both having cell phones, they had noconcrete plan about how or where to get a tow truck. Ryan Lall played a

part in this: he knew where he was, he knew his father washaving trouble locating them, and he was the one who directed Ms. Joseph to go and find his father while leaving him in the driver’s seatwith the keys; 10. whether he had a stated intention to resume driving: that was not the case here, although the risk that he might try to move the carexisted (see factor 3 above); 11. whether he was in the driver’s seat: Mr. Parkin drew my attention to R. v. Peyachew, 2015 SKPC 2 , 2015 SKPC 002. In that case, an officer decided to pull over a vehicle, but observed some movement in the car after it stopped.

The officer was satisfiedthat the accused, who was now behind the wheel, had not been the driver. Instead, the driver had been a person who was not licensed,and had panicked on being pulled over, and put the accused in the driver’s seat. However, the officer charged the accused because hewas intoxicated and in the “hot seat” behind the wheel of the car. In that case, the trial judge accepted that the accused was essentially pushed into the driver’s seat and did not have time to make arational decision about it.

The judge accepted that the accused did not intend to drive, and found the presumption of care or control wasrebutted. In considering whether the accused had actual care or control of the vehicle and could put the vehicle in motion and create arisk of danger to person or property, the trial judge noted the accused was in the driver seat for about 20 seconds, and his behavior andposition were passive. The trial judge found that the risk of putting the vehicle in motion – either deliberately or accidentally – was atmost negligible. The accused was found not guilty. Mr.

Lall’s case is distinguishable: here, it appears that Mr. Lall was in the driver’s seat from at least 1:53 a.m. when Ms. Joseph took thephotograph in Exhibit 15E until Mr. Afshar arrived, 7 minutes later. Moreover, Mr. Lall was not passive, since he knew where he was,and directed Ms. Joseph to leave him the keys. It appears that he started the car, since it was on when paramedics arrived; 12. was he wearing his seatbelt: Mr. Lall was not wearing his seatbelt.

This factor does not shed light on the issue of risk of dangerin this case; 13. whether the accused failed to take advantage of alternate means to leave the scene: Mr. Lall and Ms. Joseph did call John Lall tocome and pick them up, however, as noted above, things fell apart quickly when John Lall was unable to find them; 14. whether he failed to make other arrangements by using his cell phone: while I agree that it was a good idea to call John Lall andget a ride, there were never any arrangements made to deal with the car, despite the fact that both Mr. Lall and Ms.

Joseph had cellphones. [45] Looking at the totality of the evidence, I find that Mr. Lall did engage in a course of conduct associated with his motorvehicle: he knew he was in the driver’s seat, he told Ms. Joseph to leave him there alone, and he directed her to leave him with the keys. I infer that he started the car after Ms. Joseph was unable to, since it was running when paramedics arrived. [46] Considering the Syzmanski factors, it appears to me that there was a realistic risk of danger posed by this course ofconduct in three separate ways: 1. While Mr.

Lall was drunk in the driver’s seat, there was a risk that he would change his mind about waiting for his father, and tryto move the vehicle. John Lall seemed to recognize this at the time, leaving his son messages saying, “tell Abby to park the car”, andcautioning Ryan, “don’t drive”. The car was running when paramedics arrived, so the risk was clearly a realistic one; 2. The location of the vehicle itself posed a risk to other motorists and pedestrians by blocking traffic and the crosswalk in a multi-lane intersection late at night. The hazard lights of the vehicle were not on, and Mr.

Afshar and various people were stopping to find outwhat was happening. While Mr. Lall himself did not drive the car to that location, he had no viable plan to diminish the risk of it beingleft in a live lane of traffic. A tow truck was never called, even when his father was unable to find them. Sending Ms. Joseph out to findhis father when Ryan could have called a tow truck on his phone made no sense at all. In this regard, I find that Ryan Lall’s negligenceand/or bad judgment in failing to use his cell phone prolonged the risk posed by the location of the car; and

3. Finally, the location of the vehicle posed a risk if Mr. Lall simply opened the driver’s door to vomit outside the vehicle, since he would be opening it into a live lane of traffic. According to Ms. Joseph, this was one of the reasons that she left the door open when she left Mr. Lall alone the first time – in case he threw up.

So the risk that he himself would open the door when she left the second time is not mere speculation, especially considering that he had already vomited once before, and did so again numerous times at the hospital. [ 47 ] Based on any one of these three realistic dangers, I am satisfied that the Crown has proven Mr. Lall had actual care or control of the motor vehicle beyond a reasonable doubt. Even if Mr.

Lall did not enter the driver’s seat intending to set the car in motion, there was a realistic risk that he would change his mind and try to move the car, or that through his negligence, bad judgment or otherwise, the location of the vehicle would endanger persons or property. [ 48 ] Notwithstanding Mr. Parkin’s able defence of Mr. Lall, the risk of danger posed by this situation was clear. [ 49 ] There will be a finding of guilt on both counts, although I will stay the charge of impaired care or control on count 1 to avoid double punishment.

Date: November 04, 2020 __________________________________ JUSTICE LESLIE PRINGLE