R. v. Weese, 2016 ONCJ 891

ONTARIO COURT OF JUSTICE CITATION: R. v. Weese, 2016 ONCJ 891 DATE: December 13, 2016 Cochrane, Ont. BETWEEN: HER MAJESTY THE QUEEN — AND — HELENA WEESE Before Justice M. Labelle Heard on November 10 th , 2016 Reasons for Judgment released on December 13 th , 2016 Mr. Justin Renaud ........................................................................................ counsel for the Crown Mr. Matthieu Perron…………………………………………. counsel for the defendant, Helena Weese LABELLE J.: (orally) [ 1 ] Helena Weese is charged (

a) that on or about the 21 st day of July, 2015, at the Township of Clute, while her ability to operate a motor vehicle was impaired by alcohol, did have the care or control of a motor vehicle; and (

b) that on or about the 21 st day of July 2015, in the Township of Clute, having consumed alcohol in a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 ml of blood did have the care and control of a motor vehicle. [ 2 ] Ms. Weese pled not guilty and the matter proceeded to trial before me on November 10 th , 2016. FACTS [ 3 ] At approximately 2:20am on July 21 st , 2015 OPP officers Deluca and Robidoux were dispatched to an area on Highway 668 where a truck was in the ditch.

The officers arrived on scene at approximately 2:26am and noticed a white pick up truck in the northbound ditch. The front of the truck was in the ditch and the back wheels of the truck were on the gravel shoulder of the road. Both officers observed a female, later identified as Helena Weese, to be occupying the driver’s seat of the truck with her hands on the steering wheel. The truck was running. Officer Robidoux further testified that Ms. Weese had her seat belt on. Both officers could smell alcohol and Ms. Weese was asked if she was alright and was asked to exit the vehicle.

She was not wearing any shoes, she was wobbling, her eyes were red and glossy. Ms. Weese was not coherent. She was arrested at 2:31am for having the care and control of motor vehicle while impaired. [ 4 ] Both counsel for the Crown and the Defence had discussed the issues before trial and advised that date, jurisdiction, identity, the fact that Ms. Weese was clearly impaired by alcohol and that she had provided a breath sample that was over the legal limit were not in issue.

ISSUE [ 5 ] The only issue for the Court is whether or not Ms. Weese had the care and control of the motor vehicle at 2:26am when the OPP officers arrived on scene. THE PRESUMPTION [ 6 ] The Crown relies on the rebuttable presumption that Ms. Weese had the care and control of the truck since she was occupying the driver’s seat. This rebuttable presumption is found at section 258 (1) (

a) of the Criminal Code of Canada and reads as follows: “where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of a railway equipment, the accused shall be deemed to have had the care and control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accuses establishes that the accused did not occupy that seat or position for the purpose of setting vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be”. [ 7 ] This presumption provides that where it is proved that an accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, the accused shall be deemed to have had the care or control of the motor vehicle, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle in motion.

The accused may rebut this presumption by calling evidence that shows, on a balance of probabilities, that the accused did not occupy the driver’s seat for the purpose of putting the vehicle in motion. If the presumption does not apply, or if the accused leads evidence which is capable of rebutting 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. The evidence of Helena Weese [ 8 ] Ms. Weese testified that she resides in a home that has no electricity and needs to use her truck to charge the battery on her cell phone.

She described her truck as a ¼ ton 1998 Dakota with an 8 foot box. She described having a lot of mechanical difficulties with her truck, from the loss of her drive shaft to a slow leak on the front tire. [ 9 ] She indicated that on July 20 th , 2015 she recalled going to Mr. Jones’ residence, which was very close to where she was found by police at 2:30am, on July 21st, to fix a slow leak on her tire. She advised that Mr. Jones would often fix her vehicle and that they were friends. She would assist Mr. Jones in driving him to town on occasion, since he did not have an operational vehicle.

On July 21 st , 2015 this would have been the third time that Mr. Jones would have fixed a flat for her vehicle. [ 10 ] Ms. Weese testified that she was at home earlier in the evening on July 20 th , 2015 having coffee with neighbors. She noticed that her front tire was becoming flat and decided to attend at Mr. Jones with her truck. She indicated that she had not consumed any alcohol at that point. She drove to Mr. Jones residence and as she was beginning to slowly turn in his driveway, the front passenger side of the tire went into the soft part of the road and the vehicle went into the ditch.

She attributes missing Mr. Jones driveway and entering into the ditch to the low front passenger tire and the fact that there was no wheel stabiliser on the front. She indicated that the front tires were in the ditch and that the rear wheels were on the gravel shoulder. She was not injured as she was slowly turning for Mr. Jones driveway at that point. [ 11 ] Ms. Weese testified that she did not try to extricate the vehicle from the ditch and exited the vehicle to go get Mr. Jones, who would assist her in extricating the vehicle from the ditch. According to Ms. Weese, Mr.

Jones’ home was approximately 50 feet away. She indicated that she went to the front door and that the door was locked from inside. She did not knock for fear of damaging the door. Instead she yelled. Mr. Jones did not respond. Ms. Weese said that there were no lights on in the home. She texted him to say “I’m here”. She assumed that he was watching movies and had fallen asleep. [ 12 ] Ms. Weese decided to wait on the porch and started drinking a mickey of Smirnoff Vodka that she had brought with her to spend time with Mr. Jones.

She also walked around the property and indicated that she sat there on the porch for a while. She is not sure how much she drank or where she left the bottle of alcohol. After trying to reach Mr. Jones and not hearing from him or seeing any sign of life from him for close to six (6) hours, she needed to recharge her cell phone as the battery was dying. She testified that she entered her truck in the ditch to simply charge her telephone. She started her vehicle as this was needed to charge her phone. She sat there for a while but does not recall putting her seat belt on.

In essence, her position is that she did not enter the vehicle at close to 2:30am in the morning of July 21 st , 2015 with the intention to set the vehicle in motion. Police arrived on scene and she was arrested and placed in the back of the cruiser. She recalls at that point seeing Mr. Jones for the first time that evening, trying to speak to the police. [ 13 ] In cross-examination, Ms. Weese agreed that the consumption of alcohol reduces one’s ability to remember things and confirmed that she was quite intoxicated that evening. She indicated that she had texted Mr.

Jones earlier that day as her tire was getting low, but that there was no specific arrangement made as to when she was to attend. She indicated that because the tire was getting low, she decided to drive to Mr. Jones and missed the driveway by a few feet and entered into the ditch. Ms. Weese would not agree with the Crown that she had been drinking before driving to Mr. Jones. She acknowledged that she is a good driver, was familiar with Mr. Jones’ driveway and had never missed a driveway before.

She confirmed that the rear tires were on the gravel and that she did not try to extricate the vehicle and that she would get Mr. Jones to assist her in this regard. She denies that she was upset and went to Mr. Jones’ home, which was close by. It was approximately 8:30pm according to Ms. Weese. She did not knock as the house is in really bad shape. She yelled “Willy” as Mr. Jones normally responds to that. Mr. Jones did not respond. It was suggested to her that she had a situation on her hands and needed help as soon as possible from Mr. Jones. Ms.

Weese did not agree with this assertion and maintained that she had nothing but time on her hands. [ 14 ] She indicated that she first started drinking the mickey of vodka when she was waiting for Mr. Jones. She could not say how long she was prepared to wait for Mr. Jones and kept texting him throughout the night. As an aside, the actual text messages would have

been great evidence for Ms. Weese to support her story, but none were filed with the Court. [15] Ms. Weese also indicated to the Crown that she has no idea what happened to the bottle of vodka and acknowledged that shemay have drank the entire bottle. Also, in passing I note that none of the OPP officers found an empty mickey in the vehicle or near thevehicle. She testified that she does not recall being in the vehicle when police arrived but remembers being arrested and in the policecruiser and seeing Mr. Jones for the first time that evening at approximately 2:30am. [16] In my view Ms.

Weese’s account does not have a ring of truth to it. It does not make sense to me that she would have waited6 hours for Mr. Jones, from 8:30pm to 2:30am, without seeing any signs of him. One would think, that even if Mr. Jones’ home was inbad shape, Ms. Weese would have been tired of waiting and would have banged on the door to get Mr. Jones’ attention. I also find it oddthat Ms. Weese would decide to drink a mickey of vodka while waiting for Mr. Jones to answer the door. Her evidence was that sheknew he was inside as the door was locked from the inside. Also, I find it extremely hard to believe that Ms.

Weese kept yelling for Mr.Jones and texted him repeatedly during those six (6) hours and there was no sign of life from him and that he would suddenly appearonce Ms. Weese was arrested and in the back of the police cruiser at approximately 2:30am. In my view, this is more consistent withMs. Weese driving into the ditch while she was impaired close to 2:30am and Mr. Jones coming outside from his home after hearing thecommotion. [17] Since the Crown is relying on the presumption and that the onus would shift to Ms.

Weese to prove on a balance ofprobabilities that she had not occupied the vehicle in question with the intention of setting it in motion, I am left to wonder why the Courtdid not hear from Mr. Jones. In fact, Mr. Jones could have explained what he was doing during those six (6) hours and why he didn’trespond to Ms. Weese and why he only came out of his home when the police were on scene and had arrested Ms. Weese. [18] I find that Ms.

Weese has not met her onus on a balance of probabilities and accordingly has not rebutted the presumption that she had the care and control of her motor vehicle while impaired on July 21st, 2015. Accordingly she will be found guilty of Count #1and Count #2 will be stayed. ACTUAL CARE AND CONTROL [19] Even if Ms. Weese had rebutted the presumption with her evidence, there is no evidence before me that this vehicle wasinoperable or immovable as nobody attempted to extricate the vehicle by driving it out of the ditch. Ms.

Weese testified that she nevertried to extricate it and all of the officers, including the tow truck driver who attended to extricate the vehicle, testified that only the frontof the vehicle was in the ditch. The tow truck driver indicated that it was a relatively easy extraction and all of the officers were of theopinion that it would have been possible to drive the vehicle out of the ditch by rocking the vehicle and putting it in reverse. [20] In my view on the evidence that I have heard, the Crown has still proven beyond a reasonable doubt actual care and control. Even if Ms.

Weese had entered the vehicle to charge her phone and had no intentions of driving, Ms. Weese was in the driver’s seat, hervehicle was running and her hands were on the steering wheel of a vehicle where it hasn’t been established, was inoperable orimmovable. [21] As indicated by the Ontario Court of Appeal in R. v. Smits, 2012 ONCA 524, at paragraphs 53 and 56: Courts have answered this question by recognizing that danger can come in many forms. It would appear that three risks of danger havebeen identified in the cases where the intoxicated individual uses a motor vehicle for a non-driving purpose:

i) 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 a stationary or inoperable vehicle may endanger of 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.” [22] Also, in R. v.

Boudreau, [2012] 3 S.C.R., the Supreme Court of Canada indicated the following at paragraph 9 of thedecision: For the reasons that follow, I have concluded that “care or control”, within the meaning of s. 253(1) of the Criminal Code, signifies (1)an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose bloodalcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger topersons or property. [23] The court went on to say at paragraph 13: Impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol or drugs.

Absent evidenceto the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger. Inpractice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherentrisk is not a realistic risk in the particular circumstances of case. [24] Accordingly, even if I were to accept Ms. Weese’s account and find that she had rebutted the presumption, on the evidence that Ihave heard, I am of the view that there was a realistic risk that Ms.

Weese could have set the vehicle in motion and accordingly, I alsofind that the Crown has established actual care and control, beyond a reasonable doubt.

Released: December 13 th , 2016 Signed: “Justice Michel R. Labelle”