R. v. Olinyk, 2018 ONCJ 767

ONTARIO COURT OF JUSTICE CITATION: R. v. Olinyk, 2018 ONCJ 767 DATE: 2018-04-25 Hearst, Ont. BETWEEN: HER MAJESTY THE QUEEN — AND — MICHEAL OLINYK Before Justice M.R. Labelle Heard on March 22nd, 2018 Reasons for Judgment released on April 25th, 2018 Mr. B. Renaud ............................................................................................... counsel for the Crown Mr. E.

Juurakko …………………….………………….… on behalf of the defendant, Micheal Olinyk LABELLE J.: (orally) Overview [ 1 ] On December 2 nd , 2016 at approximately 1:45am, Micheal Olinyk, a long haul driver was seated in the driver’s seat of his idling tractor trailer, eating chicken wings after an evening of pool playing and drinking. He was observed and arrested by police for having the care and control of his motor vehicle while impaired and for having more than 80mg of alcohol in 100 ml of blood. [ 2 ] Mr.

Olinyk testified that he had arrived in Hearst earlier in the evening, had parked his tractor trailer behind a local motel, kept it idling for the evening as it was cold and attended a local establishment for some food and drinks with a colleague. He indicated that it was part his route to overnight in Hearst and to pick up a load at Columbia Forest Product the next morning. [ 3 ] There is no doubt that Mr. Olinyk was impaired by alcohol given the observations of the police officers and his own admission that he had consumed approximately 12 beers that evening. [ 4 ] Since Mr.

Olinyk was occupying the driver’s seat of a motor vehicle, the rebuttable presumption that he had the care and control of a motor vehicle found at section 258(1) (

a) of the Criminal Code is triggered. [ 5 ] The issues for this Court to decide are as follows: a. Has the defendant, Micheal Olinyk rebutted the presumption that he had the care and control of a motor vehicle; and b. If this Court does find that Mr. Olinyk has rebutted the presumption, did he nevertheless have care and control of his motor vehicle. [ 6 ] The defendant also argued that the breathalyzer readings were not taken “as soon as practicable”. In order for the Crown to rely on the presumption created at section 258(1)(

c) of the Code, the breathalyzer readings have to be taken at least within two hours of the time driving or care and control and also “as soon as practicable”. In this particular case, the Crown is not relying on the presumption as the readings were taken outside of the statutorily permissible period of 2 hours and accordingly has filed a toxicologist’s report which extrapolates Mr. Olinyk’s readings to the time of the incident. [ 7 ] Although the defence had brought a charter application seeking to exclude the breathalyzer readings, this was withdrawn at the conclusion of the blended voir-dire. Absent any charter application, whether or not the breath samples were taken “as soon as

practicable”, is of no moment. However, I will nevertheless address briefly the defendant’s argument that Mr. Olinyk’s breath samples were not taken “as soon as practicable” later on in my decision. THE EVIDENCE [ 8 ] At approximately 1:35am on December 2 nd , 2016, P.C. Picard and Guilbault were relieving other officers for a short health break. These other officers had been conducting surveillance near the Companion and Queens Hotels in Hearst. At that time, both officers observed a person, who appeared to have problems with his balance while walking to the back of the buildings. [ 9 ] When P.C.

Picard and Guilbault were relieved from their post, they drove to the location of the footsteps in the snow and followed them. The footsteps had left marks in the snow going from side to side and continued to the back of Queen’s motel directly to the driver side door of a tractor trailer. The commercial vehicle was idling and the interior lights were lit.

Both officers observed a male, who appeared to be eating something, seated in the drivers’ seat with his hands behind his head. [ 10 ] The officers knocked on the driver side door and when they did not receive an immediate response, they proceeded to open the door. They asked the occupant to exit his commercial motor vehicle and noticed that he appeared to have trouble with his balance and was holding on to the side of his commercial vehicle to get down. The officers noted a smell of alcohol emanating from his breath together with other clear indicia of impairment. [ 11 ] Mr.

Olinyk, who was identified with his driver’s licence, was arrested at 1:50am and provided with his rights to counsel, caution and a demand for his breath, all of which were read from the force issued card. Mr. Olinyk indicated to police that he was not driving. It was explained to him that he was occupying the driver’s seat of a motor vehicle and therefore was presumed to have the care and control of his motor vehicle. [ 12 ] Mr. Olinyk and the officers left the scene at 2:02am and returned to the police station which was a short distance away.

Arrangements were made to have a qualified breath technician attend from Kapuskasing, some 100 km away, as none were on duty in Hearst that evening. [ 13 ] The Breathalyzer Technician, Cst. Brian Roy was on duty on the evening of December 1 st , 2016 and was working out of the Kapuskasing Detachment. He testified that he was notified at 1:50am on December 2 nd , 2016 that he would be required to attend in Hearst for the purpose of taking breath tests from an individual who had just been arrested.

He was able to depart from the Kapuskasing detachment at approximately 2:10am, some 20 minutes after being notified that he was required to attend in Hearst. [ 14 ] Because of the snow and road conditions, Cst. Roy took slightly longer than the usual time required to travel to Hearst from Kapuskasing. Instead of taking him one hour, it took him 1 hour and 11 minutes, arriving at the detachment in Hearst at 3:21am. He immediately attended at the breath test room to check on the intoxilyzer 8000C. It was determined that the standard solution needed replacing.

Once replaced, the standard solution needed to warm up, taking approximately 15 minutes. Cst. Roy explained that it usually took approximately 25 minutes to get the intoxilyzer ready, 15 minutes to warm up the standard solution and 10 minutes to go through the self-diagnostic testing. [ 15 ] Cst. Roy first began the intoxilyzer process at 3:43am, which process was aborted at 3:49am because the breath machine was inactive for too long and went on standby. At 3:50am and 3:51am, he provided Mr. Olinyk with the caution and breath demand. Prior to providing his first sample, Mr.

Olinyk requested to use the facilities to urinate and was returned to his cell for that purpose. At 4:04am, the first suitable breath sample registered a reading of 188 mg of alcohol in 100 ml of blood. The second sample was obtained 21 minutes later at 4:25am and registered 176 mg of alcohol in 100 ml of blood. [ 16 ] Since the readings were obtained beyond the statutorily permissible period of 2 hours, the Crown obtained a retrograde report from a toxicologist. [ 17 ] The toxicologist report dated February 8 th , 2017 and prepared by Mr. James Rajotte of the Centre of Forensic Science was filed on consent.

The report indicated that given Mr. Olinyk’s readings obtained at 4:04am and 4:25am, the read back of his readings at the time of the incident, 1:45am would be anywhere between 175 to 225 milligrams of alcohol in 100 millilitres of blood. [ 18 ] There is no question that Mr. Olinyk was well above the legal limit when he was occupying the driver’s seat of his commercial vehicle at 1:45am on December 2 nd , 2016 and that he was impaired by alcohol. THE EVIDENCE OF MICHEAL OLINYK [ 19 ] Micheal Olinyk testified that he is a 58 year old, long haul truck driver who resides in Thunder Bay.

He indicated that he travels to Hearst once a week with his commercial International Tractor Trailer. His route starts in Thunder Bay, where he travels to Sault Ste Marie, then Sudbury and then Hearst.

He described his tractor trailer as having a full sleeper with a double bed, fridge and stove and that he normally sleeps in his truck, as his employer does not compensate him if he were to rent a motel room. [ 20 ] He testified that he arrived in Hearst at approximately 7pm on December 1 st , 2016 and proceeded to park his tractor trailer behind the Queens Motel for the night, as he had a pick up scheduled for the next morning at Columbia Forest Product in Hearst.

He advised that he probably took a short nap upon his arrival and met up with another driver later in the evening and went to Le Companion, which is a restaurant/bar next to the Queens Motel. [ 21 ] He played in a pool tournament with his friend and consumed approximately 12 beers during the evening. He ordered some chicken wings and when his friend decided he would call it a night, Mr. Olinyk returned to his tractor trailer and was eating his chicken wings when police arrived and observed him in the driver’s seat at 1:45am. [ 22 ] Mr.

Olinyk testified that he had no intention of driving his commercial vehicle anywhere that evening; that he had parked it

behind Queens motel after arriving in Hearst at 7:00pm, leaving it idling throughout the evening as it was cold. He acknowledged thatthe vehicle was idling and that the interior lights were on when police arrived and arrested him. [23] He further indicated that his commercial vehicle has two separate air brake mechanism, one for the cab and one for the trailerand that both of them were engaged. He explained that the commercial vehicle is a standard vehicle equipped with a stick on the floor. In order to change gears to be able to drive the vehicle, Mr.

Olinyk testified that he would need to press on the clutch with his left foot,engage the stick shift with his right hand and then press on the gas pedal with his right foot. According to him, since it would take anumber of conscious and concerted efforts, such as disengaging both brake mechanism, pressing on the clutch with his left foot, using hisright hand grab the stick shift and place it in gear and pressing on the gas pedal with his right foot, it was impossible to set the vehicle inmotion accidently. [24] Mr.

Olinyk was steadfast in his position that he did not plan on driving that evening, that he had parked his vehicle earlier forthe night and that he had entered his vehicle with the sole intention of turning in for the night. [25] In cross-examination, Mr. Olinyk acknowledged that it is expensive to leave the truck idling all evening and night, butindicated that this is required to stay warm. He confirmed that the keys were in the ignition and that he would have likely stepped on thegas pedal at some point or increased the rpm to rev up the truck’s motor to warm up the cab of the truck as indicated by the officers.

Hetestified that he has an extra set of keys and left the vehicle idling when he went to Le Companion for the evening. [26] He continued to maintain that it was never his intention to drive the tractor trailer after he had parked it earlier in the eveningand was planning on spending the night in his sleeper as he had to attend for a pick up at Columbia Forest Product the next day. [27] Mr. Olinyk acknowledged that his foot was in reach of the throttle although he added that the seat was slid back, which was notwhere it was normally situated when he was driving.

THE POSITION OF THE PARTIES [28] The Crown argues that even if Mr. Olinyk has rebutted the presumption, which they dispute, he nevertheless had care andcontrol of his motor vehicle. The Crown maintains that given Mr. Olinyk’s level of impairment, he could have changed his mind anddecide to drive his tractor trailer. In the alternative, it is possible that Mr. Olinyk could have accidentally set the tractor trailer in motion,thereby creating a realistic risk of danger to people or property. [29] The defence argues that Mr. Olinyk evidence has clearly rebutted the presumption of care and control.

As well, he argues thatMr. Olinyk did not have actual care and control as there was no realistic risk of danger to people or property. The defence has referred toa number of cases where the occupant was not found to be in care and control as there was no realistic risk of unintentionally setting thevehicle in motion despite the fact that the vehicle’s engine was running. These cases are R v Baxter,

(2011) ONCJ 500, a decision of theOntario Court of Justice, R v McManus,

(2012) BCPC 381, a decision of the British Columbia Provincial Court, and R v Bartlett, (2011)SKPC 187, a decision of the Saskatchewan Provincial Court. All of these cases pre-date the Supreme Court of Canada decision in R v.Boudreault,

(2012) S.C.C. 56. [30] With respect to the breathalyzer readings, the defence argues that there were not taken as soon as practicable. The defenceacknowledges that the delays in taking the breath samples are all reasonably explained by Cst. Roy, but argues that it would have beenquicker for the officers in Hearst to drive to Kapuskasing with Mr. Olinyk than to have the breath technician attend in Hearst. THE LAW – AS SOON AS PRACTICABLE [31] The Ontario Court of Appeal has clearly stated that “as soon as practicable” requires that the tests be taken within a reasonableprompt time in the circumstances.

There is no requirement that the tests be taken as soon as possible, or that the Crown provide adetailed explanation of what occurs during every minute that the accused is in custody before the breath tests are taken. See R vVanderbruggen, (2006) (ON CA), O.J. No 1138. (Ont. C.A.). [32] In this particular case, the defences acknowledges that all the delays are reasonably explained by the breath technician. Thedefence’s argument is simply that Mr. Olinyk should have been driven to Kapuskasing, while the breath technician was getting theinstrument ready.

This would have permitted the breath tests to be completed sooner than they were in this case. [33] I disagree with the defence’s position and am of the view that the breath tests were indeed taken “as soon as practicable” in thecircumstances. In my view, it certainly made more sense for the breath technician to travel to Hearst from Kapuskasing to administer thetests. To hold otherwise would have required the Hearst police officers to drive some distance with an intoxicated person in their vehicle,when the road conditions were clearly not the greatest.

This could have placed the accused and the police officers accompanying him atrisk. Also, it would have left the community of Hearst without these two officers who were the only ones assigned to general patrol thatevening. THE LAW OF CARE AND CONTROL [34] The Crown relies on the rebuttable presumption that Mr. Olinyk had the care and control of his commercial motor vehicle sincehe was occupying the driver’s seat when police arrived. This rebuttable presumption is found at section 258 (1) (

a) of the Criminal Codeof Canada. [35] This presumption provides that where it is proved that an accused occupied the seat or position ordinarily occupied by a personwho operates a motor vehicle, the accused shall be deemed to have had the care or control of the motor vehicle, unless the accusedestablishes that he did not occupy that seat or position for the purpose of setting the vehicle in motion. The accused may rebut thispresumption by calling evidence that shows, on a balance of probabilities, that the accused did not occupy the driver’s seat for thepurpose of putting the vehicle in motion.

If the presumption does not apply, or if the accused leads evidence which is capable ofrebutting the presumption, then it is incumbent upon the Crown to prove beyond a reasonable doubt that the accused was in care or

control of the vehicle. [36] Even if an accused person rebuts the presumption set out at section 258(1) (a), he can nevertheless be found to be in care andcontrol if he exercised some degree of control over the fittings of a vehicle, which could have created a risk of danger to the public. [37] The Ontario Court of Appeal in R. v. Smits, 2012 ONCA 524, has stated the following with respect to the risk of danger whendealing with the issue of care and control at paragraphs 53 and 56 of their decision. 53. Courts have answered this question by recognizing that danger can come in many forms.

It would appear that three risks ofdanger have been identified in the cases where the intoxicated individual uses a motor vehicle for a non-driving purpose:

i) The risk that the vehicle will unintentionally be set in motion: see R. v. Ford (SCC), [1982] 1 S.C.R. 231; ii) The risk that through negligence that a stationary or inoperable vehicle may endanger the individual or others: see R. v.Vansickle [1990] O.J. No. 3235 (C.A.) iii) The risk that the individual who has decided not to drive will change his or her mind and drive while still impaired: see R.v. Pelletier (2000) 6 M.V.R. (4th) 152 (C.A.).

In order to find care or control based on the change of mind ground, the Crown must prove that there was a risk that the respondentwould have decided to drive while still impaired. The risk does not have to rise to the level of probability.” [38] These three risks were referred to by the Supreme Court of Canada in R. v. Boudreault, [2012] S.C.C. 56. Justice Fish alsoindicated the following at paragraph 13 of the decision: [13] Impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol ordrugs.

Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates aninherent risk of danger. In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tendingto prove that the inherent risk is not a realistic risk in the particular circumstances of case.” [39] In confirming that risk was an essential element of the offence of care and control, Justice Fish indicated at paragraphs 33 to35. [33] I think it helpful to set out once again the essential elements of “care and control” in this way: i.

An intentional course of conduct associated with a motor vehicle; ii. By a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legallimit; iii. In circumstances that create a realistic risk of danger to persons or property. (emphasisadded) [34] The risk of danger must be realistic and not just theoretically possible. See Smits at paragraph 60. But nor needthe risk be probable, or even serious or substantial. [35] To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention toprevent danger to public safety.

To require only that the risk be “theoretically possible” is to adopt too low a threshold since it wouldcriminalize unnecessarily a broad range of benign and inconsequential conduct. APPLICATION OF LAW TO PRESENT CASE [40] When I consider Mr. Olinyk’s evidence I have no difficulty in concluding that he has rebutted the presumption created atsection 258(1)(

a) of the Criminal Code. Despite the fact that he occupied the driver’s seat in his vehicle, I completely believe hisevidence that he had not entered the vehicle with the intention of setting it in motion. He had a well stated plan where he wouldovernight in Hearst, as he had done so in the past, in order to complete his pick up the following day at Columbia Forest Product. [41] Also, when I consider all of the evidence heard during this trial and in particular Mr. Olinyk’s evidence, which I found to becredible, I find that the Crown has not established that Mr.

Olinyk created a realistic risk of danger which is required to establish care andcontrol. [42] Indeed, given Mr. Olinyk’s evidence, in my view, there was no realistic risk that the tractor trailer could unintentionally be setin motion for the following reasons: a. Although idling to keep the inside of the vehicle warm, Mr. Olinyk would have been required to perform a number of concertedactions in order to set the vehicle in motion. i. Disengage both the truck and trailer brake mechanism; ii. Using his left foot, press on the clutch; iii. With the clutch engaged, Mr.

Olinyk would have been required to use his right hand to engageto standard stick shift on the floor of the truck; iv. Afterwards, Mr. Olinyk would have been required to press on the gas with his right foot while

releasing the clutch with his left foot. v. The need to have all of these actions occur before the vehicle is set in motion makes it practically impossible for Mr. Olinyk to accidentally or unintentionally set the vehicle in motion. b. Also Mr. Olinyk’s tractor trailer was parked behind a hotel and was not stationary within a travelled portion of a highway or very close to it, which could have created a realistic risk to persons or property. c. Furthermore, given Mr.

Olinyk’s concrete plan to overnight in Hearst in order to complete his pick up at Columbia Forest Product the next day, there was no realistic risk that Mr. Olinyk would change his mind because of his impaired state and decide to drive his vehicle. [ 43 ] Accordingly, since I have found that Mr. Olinyk has rebutted the presumption of care and control and that there was no realistic risk of danger created by Mr. Olinyk’s conduct, which is a requirement to establish care and control, Mr. Olinyk will be found NOT GUILTY of both charges. Released: April 25th, 2018 Signed: “Justice Michel R. Labelle”