R. v. Anderson, 2013 ONCJ 612

COURT FILE: 11- 2783 Halton DATE: November 5, 2013 Citation: R. v.

Anderson , 2013 ONCJ 612 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ROBERT ANDERSON Before Justice Roselyn Zisman Heard on May 7 and September 4, 2013 Reasons for Judgment released on November 5, 2013 Mary Ward ............................................................................................................ for the Crown MargauxPeck .......................................................................... for the accused Robert Anderson ZISMAN, J.: INTRODUCTION [ 1 ] Robert Anderson is charged with having care or control of a motor vehicle while his ability was impaired by alcohol and with more than 80 mg of alcohol in 100 ml of his blood, contrary to sections 253 (1) (

a) and (

b) of the Criminal Code . [ 2 ] These charges arise out of the defendant being found sleeping in his motor vehicle in a parking lot. [ 3 ] The primary issue to be determined is whether or not the Crown has proven that the defendant was in care or control to the requisite standard of proof. APPLICABLE LEGAL PRINCIPLES [ 4 ] As in any criminal case, the defendant is presumed to be innocent, unless and until the Crown has proven each essential element of the offences beyond a reasonable doubt. [ 5 ] Reasonable doubt is based upon reason and common sense.

It is logically connected to the evidence or lack of evidence. [ 6 ] It is not enough for me to believe that the defendant is possibly or even probably guilty. Reasonable doubt requires more. As a standard it lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

THE EVIDENCE [ 7 ] At approximately 8:01 p.m. on September 11, 2011, Constable McCullagh obtained a dispatch call about a complaint from a beer store that a driver had been asleep in their parking lot for about an hour and that the driver had not left his car or entered the

beer store. [ 8 ] At approximately 8:02 p.m. Constables McCullagh, McNight and Denike arrive. Only Constable McCullagh and Denike testified at the trial. [ 9 ] Both constables testified that the defendant was found sleeping in the driver’s seat. The car was not running.

Neither constable could recall if the parking brake was on. [ 10 ] There were some discrepancies in the officers’ testimony which can be attributed to their different vantage points during the investigation and the natural frailties of the powers of observation and recollection. [ 11 ] Constable McCullagh testified that the car was parked somewhat crooked but still in the parking spot; whereas Constable Denike testified that there was nothing unusual about how the car was parked. [ 12 ] Constable McCullagh testified that Constable Denike had to knock loudly, several times and then almost pound on the car before the defendant woke up; whereas Constable Denike testified that he only knocked two times and it only took the defendant three to five seconds to wake up.

Both constables testified that the defendant was groggy but he immediately opened his eyes and opened the car door. [ 13 ] Constable McCullagh observed the driver’s seating to be reclined; whereas Constable Denike testified the seat was not reclined. [ 14 ] Constable McCullagh testified that she did not see any keys and saw a cell phone on the passenger seat. Constable Denike testified that the defendant had his keys in his right hand and his hands were on his lap.

Although Constable Denike did not see a cellphone he testified that the defendant told him that he was waiting for his girlfriend to text him as they had a fight. [ 15 ] Both constables testified that there was an odour of alcohol emanating from the defendant’s mouth, the defendant’s speech was slightly slurred and he told them he had consumed alcohol earlier at about 4:00 or 5:00 p.m.

Although both constables observed that the defendant was slightly unsteady on his feet when he exited his car and followed the officer to his cruiser, Constable McCullagh testified that she observed that the defendant stumbled and almost tripped. [ 16 ] Constable Denike also testified that the defendant’s eye were red and glossy but this observation was not noted by Constable McCullagh [ 17 ] Both constables agreed that the defendant was coherent and understood what was being said. [ 18 ] As none of the officers had an approved screening device (ASD) with them, Constable McCullagh left the scene at 8:14 p.m. to obtain an ASD as the police station was very close by.

She returned at 8:16 p.m. [ 19 ] Constable Denike testified that he spoke to the defendant a bit longer as he wanted to confirm his suspicions that the defendant was under the influence of alcohol were correct and not just as a result of him waking up from falling asleep in his car. [ 20 ] Based on the odour of alcohol, the defendant’s admission to drinking earlier and his observations, he formed the suspicion that the defendant had alcohol in his body and read the ASD demand at 8:24 p.m. and the defendant indicated that he understood. [ 21 ] The defendant made nine unsuccessful attempts to blow into the device and after being warned about the consequences of a failure or refusal to provide a proper sample he provided a proper sample at 8:29 p.m. that registered a “fail”. [ 22 ] At 8:31 p.m. the defendant was read his rights to counsel, cautioned and at 8:35 p.m. the demand for a breath sample was made. [ 23 ] The defendant was transported to the police station and arrived at 8:36 p.m.

Between 8:45 p.m. to 9:03 p.m. a call was made to duty counsel and the defendant spoke to duty counsel. [ 24 ] At 9:04 p.m. the defendant was transferred to the custody of Constable Broomer, the breath technician. Constable Broomer testified that he observed the defendant’s eyes were red rimmed, his walking was fair, his speech was not slurred and there was a slight odour of alcohol.

The defendant was polite, co-operative and had no problem providing a breath sample. [ 25 ] The results of the two breath tests taken at 9:14 p.m. and 9:36 p.m. were respectively 140 and 130 milligrams of alcohol in 100 millilitres of blood. [ 26 ] The defendant testified that he was 43 years old and had no criminal record. He worked with his parents as a small crop farmer and also as an insurance agent.

On the day in question, he did some odd farming and administrative jobs and starting at about 1:00 p.m. drank 3 or 4 beers and 1 rye and Coke spread over the afternoon. [ 27 ] The defendant testified that he had moved into his parents’ home a few days earlier due to a conflict with his girlfriend who remained living with her children in a townhouse owned by his parents in Georgetown.

He had only slept 4 or 5 hours over the prior two days. [ 28 ] Between 6:00 to 6:30 p.m. the defendant testified that he drove over to the home in Georgetown which was only about 10 minutes away as he wanted to speak to his girlfriend to resolve their conflict. He drove by the house and did not stop as he did not see her car. He felt that either no one was home or she had left her two children alone in the home but given their ages she would be home soon.

He agreed in cross-examination that he had a key and could have gone into the house and that he no real plan except that he wanted to talk to his girlfriend to resolve their conflict and planned to just wait until he got hold of her.

[29] The defendant testified that he suddenly felt his fatigue, stress and drinking hit him and he knew he had to get off theroad. He turned at the nearest intersection into a mall and the beer store was right there. He parked in front of the beer store. He deniedthat he was planning to go into the store to buy more beer. [30] The defendant testified that he turned off his car, put on his parking brake as he always did this out of habit and sent a textmessage to his girlfriend. He could not recall if he put his keys on the passenger seat or on the central console.

His intention was to waituntil his girlfriend called him back so she could pick him up and they could try to resolve their conflict. He realized he was too tired todrive any further and felt the effects of the lack of sleep and his drinking. He testified that he had not felt anything when he drove over totownhouse but it hit him “like a wave” when he was at the intersection just past the house. [31] When asked what he would have done if his girlfriend did not return his text or call him, the defendant testified that hecould have walked over to the house that was less than 10 minutes away and slept on the couch.

He would have just left his car in theparking lot as the police station was right across the road so he felt it would have been safe to leave it. The defendant also testified thathis girlfriend did call him back but that it was after the police had arrived. [32] The defendant testified that he was in a normal seating position, he put his head in his hands to think and the next thing herecalls was that there was a knocking on his car window and that he must have fallen asleep. The defendant was startled after beingwoken up from a fairly deep sleep.

He agreed that he was groggy and mumbled but did not recall having a problem with walking or hisco-ordination. [33] He explained his several failed attempts to blow into the ASD because he was very nervous, not use to the ASD and thatit seemed harder than he expected. CARE OR CONTROL [34] In establishing that the defendant was in “care or control ” pursuant to s. 253 (1) (

a) of the Criminal Code, the Crown inthis case relies on the presumption in s. 258 (1) (

a) of the Criminal Code namely, that an accused who is found in the driver’s seat of amotor vehicle shall be presumed to have care or control of the vehicle, unless the accused satisfies the court that he or she did not have anintention to drive. [35] In order to rebut the presumption, the accused must establish on a balance of probabilities that he or she did not occupythe driver’s seat for the purpose of driving. The presumption is an evidentiary short cut for the Crown. Rebutting the presumption is nota complete defence.

If the presumption is rebutted, then the burden of proof shifts back to the Crown to prove actual care or controlbeyond a reasonable doubt without reliance on the evidentiary aid. [36] In the case of R. v. Boudreault 2012 SCC 56 , [2012] 3 S.C.R.157 the Supreme Court of Canada has clarifiedthe law with respect to a charge of “care or control” pursuant to section 253 (1) of the Criminal Code.

As stated at para. 33 of thejudgment, the essential elements of the offence are as follows: (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol exceeds the legal limit; (3) in circumstances that create a realistic risk of danger to persons or property. [37] In this case, it is only the third element that is at issue, namely if there was a realistic risk of danger. [38] Justice Fish, speaking for the majority, further explained the risk of danger, at paras. 34 to 35 as follows: The risk of danger must be realistic and not just theoretically possible… But nor need the risk be probable, or even serious or substantial.

To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention to prevent a danger to publicsafety. To require only that the risk be “theoretically possible” is to adopt too low a threshold since it would criminalize unnecessarily abroad range of benign and inconsequential conduct.

[ 39 ] In reconciling the meaning of the presumption in s. 258(1) (

a) and the elements of the offence of “care or control” in s. 253(1) of the Criminal Code , the court further explained at paras. 38 to 39 as follows: At a minimum, the wording of the presumption signifies that a person who was found drunk and behind the wheel cannot, for that reason alone, be convicted of care or control if that person satisfies the court that he or she had no intention to set the vehicle in motion. …… Put differently, s. 258 (1) (

a) indicates that proof of voluntary inebriation and voluntary occupancy of the driver’s seat do not by their coexistence alone conclusively establish “care or control” under s.253 (1) of the Criminal Code .

Something more is required and, in my view, the “something more” is a realist risk of danger to persons or property. [ 40 ] In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways: (1) an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to drive; (2) an inebriated person behind the wheel may unintentionally set the vehicle in motion; and (3) through negligence, bad judgement or otherwise, a stationary or inoperable vehicle may endanger persons or property. ( R. v.

Boudreault , supra at para.42) [ 41 ] A finding that there is a realistic risk of danger is a finding of fact and a trial judge must examine all of the relevant evidence and circumstances. [ 42 ] In this case, the Crown alleged that the risk of danger was that the defendant would, at some point, change his mind and intentionally put his vehicle in motion.

In view of the low threshold for finding a “realistic” risk, the Crown submits that the only reasonable inference is that the defendant would wake up and drive as he had no firm plan about how he would return home and he has already exercised bad judgement in driving initially. [ 43 ] On behalf of the defendant, it is submitted that the defendant has rebutted the presumption and the court should find that his evidence was credible that he had no intention to drive and if his girlfriend had not called him and agreed to pick him up he had several other reasonable options as to how he would get home. [ 44 ] I find that the defendant was a credible witness and consistent in his testimony that did not differ significantly from the testimony of Constable Denike.

He did not try to elaborate or fill in gaps in his testimony. He admitted to drinking during the afternoon but was not sure of the exact amount or the exact times. He candidly admitted that he did not have an exact plan as to what he was going to do if his girlfriend did not call him as he had not yet directed his mind to that possibility. At the time he was concentrating on how he was going to resolve his conflict with his girlfriend and just waiting for her to call.

But he was extremely clear that he had determined that he was not going to drive. [ 45 ] I accept the defendant’s evidence that after he drove by his girlfriend’s residence, he realized that due to the combination of fatigue, stress and drinking that he should not be driving and turned at the first intersection and into the parking lot and parked, coincidentally in front of the beer store.

I reject the Crown’s submission that the defendant parked in front of the beer store so he could buy more beer as pure speculation. [ 46 ] The only real issue is whether or not the defendant may have changed his mind due to his intoxicated state. [ 47 ] I find that the defendant although impaired at the time of his arrest, the physical indicia of impairment were slight. He was able to exercise good judgment by determining that he should not drive. The defendant had several options regarding how he would either return to the farm or he had the ability to simply walk to the townhouse and sleep there.

He was able to understand and follow the instructions of the police officers. I accept his evidence regarding his difficulties regarding the blowing into the ASD.

On the totality of the evidence, I find that he has rebutted the presumption that he did not intend to set his vehicle in motion. [ 48 ] As the defendant has rebutted the resumption, the onus is the Crown to prove the defendant’s intention was to set the vehicle in motion without the ability to rely on the presumption. [ 49 ] Although the bar is low where an inebriated driver is found seated in the driver’s seat of his car, there still needs to be some evidence there is a realistic danger that the defendant would change his mind and drive.

The Crown submits that the defendant did not have a concrete plan and upon waking up, in his impaired state, he could have changed his mind and driven. [ 50 ] I find that the risk that the defendant would change his mind in this case to be speculative and no more than a theoretical possibility and not enough to support a conviction. I find that there are no objective facts on the evidence that would allow for an inference to be drawn that the defendant would change his mind and drive away. A plan does not have to be failsafe.

In this case, I accept that the defendant had a practical and plausible plan that he intended to follow. The most important element of that plan being that he did not intend to drive.

[ 51 ] I find there is a reasonable doubt that the defendant was in care or control. As a result of that finding, I find the defendant not guilty of both charges. Released: November 5, 2013 Signed: “Justice Roselyn Zisman