R. v. Van Der Heyden, 2015 ONCJ 354

Citation: R. v. Van Der Heyden , 2015 ONCJ 354 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — MICHAEL VAN DER HEYDEN ) ) ) ) ) ) ) ) ) ) ) ) ) ) E. McDermott For the Crown D. Lenzin For the Defendant Heard: June 15, 2015 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] The defendant, Michael Van Der Heyden, was found asleep behind the wheel of his car in the early hours of June 21, 2014. The keys were in the ignition. The defendant was admittedly intoxicated and his blood alcohol concentration (BAC) was above the legal limit.

He is charged with having care or control of a motor vehicle while impaired and while having an excessive BAC. His defence, simply, is that he was not in care or control of the vehicle at the time. [ 2 ] The security guard who first located the defendant testified for the Crown, as did the arresting officer. The defendant also testified. Counsel agree that the defendant was impaired and had an excessive BAC at the time he was found in his car. They also agree that there were blankets and a pillow in the rear of the car, a Volkswagen Jetta.

In view of the defendant’s evidence, the Crown fairly concedes that the presumption of “care or control” arising from the operation of s. 258(1)(

a) of the Code is rebutted. The sole issue, then, is whether the Crown has proven beyond reasonable doubt that the defendant did, in fact, have care or control of his vehicle. B. EVIDENCE [ 3 ] The evidence is straightforward. During a routine patrol of an underground garage in Toronto’s Rogers Centre, Ryan Cobham, a security guard, noticed an open driver’s door on a parked car. It was 3:26am. On investigation, Cobham discovered that there was vomit inside and on the door of the car. A man, identified as the defendant, was asleep or unconscious in the reclined driver’s

seat. The keys were in the ignition. The man was incoherent when first roused. At Cobham’s request, he removed the key from theignition. He then rolled over and went back to sleep. EMS was summoned and dealt with the then standing defendant until the policearrived at about 4:27am. An officer conducted a brief investigation, arrested the defendant, collected the car keys, and then escorted himto Traffic Services where the defendant generated the excessive BAC readings. [4] The defendant was 23 at the time of his arrest. He is, as he says, “a big guy”: 6 feet 2 inches and 250 pounds. He has nocriminal record.

He had completed an expensive one-year firefighter training program in 2011 and hoped to find fulltime employment inthat capacity. He is currently an elevator mechanic and had been working in that same job at a major project next door to the Rogers Centre for about 1½ years when he was arrested in June 2014. His day-shift on Friday June 20th began at 6:30am and ended at 2:30pm. He was scheduled to work overtime the next day, Saturday, June 21st, beginning at 8am.

The defendant lived on ten acres of land inUxbridge, a 1 to 1½-hour drive from the Rogers Centre. [5] The defendant knew he was to resume work on the Saturday morning when he left his home in Uxbridge very early on Friday the 20th. Rather than make the return drive after work on Friday, he planned to sleep in his Volkswagen and, to that end, put a blanketand pillow in the back seat.

He had slept in his parked car overnight between shifts in the past, reclining the front seat as he was toolarge to comfortably stretch out in the backseat of the VW. [6] As he would not be driving again until after work the next day, the defendant had arranged to visit a bar or two with some ofhis buddies after work on Friday. He planned to sleep off any drunkenness before he began his Saturday shift. He assumed that DUIoffences involved an element of driving and did not appreciate that there was any legal peril in sleeping in a parked car while inebriated.

Had he, he would have rented a hotel room or, at minimum, slept on the passenger side of the vehicle. He would certainly not havejeopardized the investment he had made in firefighting training and his prospect of related employment by risking a criminal conviction. [7] The defendant is ordinarily not a heavy or even regular drinker. He consumed more alcohol than he could tolerate on theevening of June 20-21. He was intoxicated and had to puke when he settled into the fully reclined seat of his car. At some point heopened the driver’s door to avoid vomiting on his clothes.

He had placed his keys in the ignition on first re-entering his car so as not tolose them. This is his practice at his country home in Uxbridge. He did not grab the blanket from the rear as it was a warm Juneevening. C. ANALYSIS [8] The defendant’s account is candid, coherent and logical. It is consistent with the evidence called by the Crown. Other thanadding confirmatory detail, its creditworthiness was untouched in cross-examination. I fully accept the defendant’s account.

The narrowquestion, then, is whether this account and the ambient circumstances amount to proof to the requisite standard that the defendant hadcare or control of his motor vehicle when he first came to the security guard’s notice. [9] Answering this question commands application of the analytical framework helpfully developed by other courts, in particularthe Supreme Court in R. v. Boudreault, 2012 SCC 56 , [2012] 3 SC.R. 157. Of course, attention need also be paid to thelanguage of the relevant statutory provisions.

As set out in s. 253(1) of the Code, Every one commits an offence who … has the care or control of a motor vehicle … whether it is in motion or not, (

a) while the person’s ability to operate the vehicle … is impaired by alcohol or a drug; or (

b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol inone hundred millilitres of blood. The Crown’s concession respecting the defendant’s rebuttal of the presumption contained in s. 258(1)(

a) establishes that he “did notoccupy the [driver’s] seat …for the purpose of setting the vehicle … in motion”. It does not settle the question of “care or control”. [10] The essential elements of “care or control”, as set out in Boudreault, supra, at para. 33, are: (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 level exceeds the legal limit; (3) in circumstances that create a realistic risk of danger to persons or property. As in Boudreault, only the third element – “a realistic risk of danger” – is here in issue.

As further explained by Fish J. for the majority,at paras. 34-35 (citations omitted; italics in original): 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. [11] The jeopardy contemplated in Boudreault is that “of danger to persons or property” (para. 39). Adding “realistic” to theequation eliminates risks that are merely frivolous or speculative: see, for example, R. v. Smits (2012), 2012 ONCA 524 , 36 M.V.R. (6th) 217 (Ont. C.A.), at para. 58. It does not otherwise significantly elevate the standard.

Boudreault address this at para. 48: "[R]ealistic risk" is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where

the Crown establishes impairment and a present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. It is not enough, to be clear, for an accused, as in the instant case, to satisfy a court that he did not intend to set his car in motion.

As said in Boudreault , at paras. 41-42 : An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion - without intending at that moment to do so - may nevertheless present a realistic risk of danger. In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways.

First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property. [ 12 ] Determination of whether there is a realistic risk of danger requires trial judges, as directed at para. 50 of Boudreault , to “examine all of the relevant evidence to this end and may consider a number of factors”.

One inventory of relevant factors is that catalogued in R. v. Szymanski (2009), 88 M.V.R. (5 th ) 305 (Ont. S.C.) , a case commended by the Boudreault Court. In R. v. Smits , supra , at para. 63 , the Court of Appeal, some months before the release of Boudreault , independently relied on the same inventory (set out immediately below) as “an excellent, although non-exhaustive, list of factors a court might look at when engaging in a risk of danger analysis” premised on circumstantial evidence: (

a) The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive; (

b) Whether the keys were in the ignition or readily available to be placed in the ignition; (

c) Whether the vehicle was running; (

d) The location of the vehicle; (

e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination; (

f) The accused’s disposition and attitude; (

g) Whether the accused drove the vehicle to the location where it was found; (

h) Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving; (

i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit; (

j) Whether the accused had a stated intention to resume driving; (

k) Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption; (

l) Whether the accused was wearing his or her seatbelt; (

m) Whether the accused failed to take advantage of alternate means of leaving the scene; (

n) Whether the accused had a cell phone with which to make other arrangements and failed to do so. [ 13 ] Unsurprisingly, the weight or applicability of each factor may vary from one fact situation to the next, as likely would the distribution of the factors on each side of the equation, some preferencing a finding of care or control while others favour a more exculpatory construction. [ 14 ] As to the former: the defendant’s level of intoxication may have impacted his judgement, as he forthrightly conceded; the car keys were in the ignition; the defendant drove the vehicle to its location; and he was found in the driver’s seat, although there is no evidence as to whether he was wearing a seat belt.

These assertions, while accurately summarizing the evidence bearing on these criteria, warrant a more nuanced appreciation. The keys were indeed in the vehicle’s ignition, but I accept the defendant’s evidence that he placed them there out of habit. The defendant drove his car to the parking garage early Friday, but he had no obligation requiring him to use the vehicle that night or the next morning. He had no intention of moving the vehicle until after he had completed a second work shift sometime the following afternoon.

Similarly, although he was behind the wheel, the seat was fully reclined so as to allow him to sleep, the condition in which he was found. [ 15 ] There are also a number of factors more properly assigned to the other side of the ledger. The vehicle was not running. It was parked in an underground garage, and no evidence was led as to whether any person or other vehicle may have been endangered had it been accidentally placed in motion. The parking spot was the defendant’s “destination”: it was where he planned to and was spending the night and where the vehicle was to remain until Saturday afternoon.

Other than protesting the propriety of his arrest for care or control, the defendant was cooperative with the police; indeed, he thanked the arresting officer for the way he was treated. The defendant did not “start driving after drinking and pulled over to ‘sleep it off’”; the car was parked early Friday morning, many hours before he began drinking, and he had no intention, as I have found, of driving again until after he completed his Saturday shift. His “plan to get home” was to wait until he was in a sober state many hours and a day of work after he had finished drinking.

He had no “stated intention to resume driving” until then and, indeed, no other reason to do so as his morning employment obligations were immediately

next door to the parking garage. There were no “alternate means of leaving the scene” of which the defendant “failed to take advantage”. Due to cost consideration the defendant had, he concedes, declined to rent a hotel room, but he had outfitted his car to serve as his bedroom well before he began drinking, and, again, had no reason to go anywhere that required driving until long after he had sobered up.

Whether or not the defendant “had a cell phone” was never canvassed, nor is that consideration material to the presenting fact-pattern. [ 16 ] The image of the key in the ignition while the impaired defendant slept behind the wheel would give any trier pause.

Nonetheless, I am of the view that the defendant has acquitted his tactical burden and, bearing in mind the ultimate burden on the Crown, I am not satisfied beyond reasonable doubt that the complete constellation of circumstances created a realistic risk that the car would be set in motion (the only “realistic risk of danger”) and, accordingly, I conclude that the defendant was not in care or control of the vehicle. The car was being used throughout for its intended purpose: as a temporary bedroom. It was a warm night. There was no incentive or other reason to start the ignition or move the car.

The suggestion that the defendant might change his mind and begin to put the vehicle in motion is founded entirely on conjecture; it is inconsistent with the defendant’s plans, his pattern of conduct, his fully reclined position, his employment obligations and his temperament. For similar reasons, I find the risk of accidental or negligent activation of the vehicle never rises above the “theoretically possible”. D. CONCLUSION [ 17 ] For the reasons set out, I find the defendant not guilty of the two charges on which he was arraigned. Released on June 19, 2015 __________________________ Justice Melvyn Green