R. v. Iacovetta, 2014 ONCJ 332

ONTARIO COURT OF JUSTICE CITATION: R. v. Iacovetta, 2014 ONCJ 332 DATE: 2014·07·09 COURT FILE No.: Regional Municipality of Durham 998 13 15228 BETWEEN: HER MAJESTY THE QUEEN — AND — Michael Iacovetta Before Justice J. De Filippis Heard on 3 April & 26 May, 2014 Reasons for Judgment released on 9 July 2014 Ms. Thompson.......................................................................................... counsel for the Crown Mr.

Dotsikas ...................................................................................... counsel for the Defendant De Filippis J.: [1] The defendant was tried on an Information alleging he was in care and control of a motor vehicle while impaired and at a time that hisblood alcohol level was over 80mgs of alcohol per 100 millilitres of blood. There is no doubt that the defendant was both impaired andhad a blood alcohol level over the legal limit on the date and place in question. The sole issue is whether he was in care or control of avehicle at the time.

As may be apparent from the foregoing, much of the prosecution evidence is not in dispute. [2] The governing legal principles are set out in the decision of the Supreme Court of Canada in R v Boudreault 2012 SCC 56[2012] 3 S.C.R. 157: 33 …I think it helpful to set out once again the essential elements of "care or control" under s. 253(1) of the Criminal Code in thisway: (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. 34 The risk of danger must be realistic and not just theoretically possible: Smits, at para. 60.

But nor need the risk be probable, or evenserious or substantial. 35 To require that the risk be "realistic" is to establish a low threshold consistent with Parliament's intention to prevent a danger topublic safety. To require only that the risk be "theoretically possible" is to adopt too low a threshold since it would criminalizeunnecessarily a broad range of benign and inconsequential conduct. 36 It is settled law that an intention to set the vehicle in motion is not an essential element of the offence: Ford v. The Queen, 1982

16 (SCC), [1982] 1 S.C.R. 231. This may appear anomalous in view of the presumption set out at s. 258(1)(

a) of the CriminalCode, which provides that an accused who was found in the driver's seat of a motor vehicle shall be deemed to have had the care or control of the vehicle ... unless the accused establishes that the accused did not occupy that seator position for the purpose of setting the vehicle ... in motion ... . 37 Accordingly, an accused found in the driver's seat will be presumed, as a matter of law, to have care or control of the vehicle, unlessthe accused satisfies the court that he or she had no intention to drive - an intention that, pursuant to Ford, is not an essential element ofthe offence! 38 At a minimum, the wording of the presumption signifies that a person who was found drunk and behind the wheel cannot, for thatreason 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.Dickson C.J. made this plain in R. v.

Whyte, (SCC), [1988] 2 S.C.R. 3, at p. 19: "It cannot be said that proof ofoccupancy of the driver's seat leads inexorably to the conclusion that the essential element of care or control exists ... ." 39 Put differently, s. 258(1)(

a) indicates that proof of voluntary inebriation and voluntary occupancy of the driver's seat do not by theircoexistence alone conclusively establish "care or control" under s. 253(1) of the Criminal Code. Something more is required and, in myview, the "something more" is a realistic risk of danger to persons or property. 40 I agree with Justice Cromwell that Parliament's purpose in enacting the care or control provision was preventive, and directed at theinherent danger that normally arises from the mere "combination of alcohol and automobile": Saunders, at p. 290.

With respect,however, I believe this supports my view that Parliament's intention in enacting s. 253(1) of the Criminal Code was to criminalize onlyconduct that creates a realistic risk of danger. 41 A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an intention to setthe vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control.

On the other hand, anaccused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: Aninebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion - without intending at thatmoment to do so - may nevertheless present a realistic risk of danger. 42 In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways.

First, aninebriated 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, badjudgment or otherwise, a stationary or inoperable vehicle may endanger persons or property. [3] On 12 December 2013, the defendant attended a work related Christmas event at a restaurant in Toronto. He boarded an eastboundGO train at Union station and arrived at the Oshawa GO station shortly after 1 AM. While en route he vomited in the train.

This wasreported to GO Transit Special Constable Arbuckle, who was at the Oshawa station. When the train arrived, the officer saw thedefendant stumble as he walked from the station, through the lot and into a parked car. S/Cst. Arbuckle drove his vehicle to that car. Hesaw a wet spot in front of the parked car. The officer saw the defendant seated in the driver’s seat. On speaking with him, he detected astrong odour of alcohol on his breath, glassy and bloodshot eyes, and slurred speech. The defendant immediately said he was “getting aride” and that his “girlfriend [was] coming”.

The police, who had been alerted to a possible impaired driver, arrived within minutes. S/Cst. Arbuckle left the scene about 20 to 30 minutes later. He testified that as of the time of his departure, nobody had come to pick upthe defendant. [4] Cst. Liaird is an officer with the Durham Regional Police Service. She responded to S/Cst. Arbuckle’s report. Upon arrival, she sawthe defendant seated in the driver’s seat of a car with his pants undone. The engine was running and the heater was on. She detected a“very strong” odour of alcohol. The defendant told her he “would not be driving”.

The officer told the defendant to exit the vehicle. Hedid so with difficulty; he was unsteady on his feet and had to hold the door to get out and maintain his balance. As it was obvious thedefendant was intoxicated, the officer arrested him for the impaired charge. This happened at 1:25 AM and was followed by the right tocounsel, caution, and breath demand. Cst. Liaird testified the defendant appeared to understand and that he was polite. She did not see acell phone in the possession of the defendant or in plain view in the vehicle.

However, the officer could not say if such a phone waselsewhere in the car as she did not conduct a search. [5] Cst. Bastien is the qualified intoxilyzer technician who obtained two samples of the defendant’s breath, at 2:15 AM and 2:38 AM,with (truncated) readings of 150 and 160. This is well over the legal limit. The officer recorded these observations with respect to thedefendant; strong odour of alcohol combined with that of vomit, slurred speech, slow movements, watery eyes, confused about what timeit was, compliant, and responsive to questions. During the breath test process, the defendant told Cst.

Batien he “was texting [his]girlfriend when the police arrived” at the GO station. [6] The defendant is 31 years old and lives with his common-law partner and their four year old child. He is employed at a financialinstitution. He admits that on the night in question, his ability to operate a motor vehicle was impaired by alcohol and added that, forthis reason, he had no intention to drive.

He testified that before attending the party in Toronto he and his partner had agreed that hewould drive to the Oshawa GO station, take the train to Toronto, and, “if need be”, she would pick him up at the Oshawa station on hisreturn later in the evening. [7] The defendant caught the last eastbound GO train from Toronto, around midnight. Before doing so, he had exchanged text messageswith his partner. He also tried, unsuccessfully, to contact her once he had boarded the train. These messages are preserved in his smartphone and were produced at trial.

They reveal the following: 11:25 PM – Partner to defendant: Are you planning on coming home?

11:26 PM –Defendant to partner: Yes, next train. 11:27 PM – Partner to defendant: So, you finally get back to me. 12:02 AM – Defendant to partner: On my way. [8] The defendant did not receive a response the last text message. He testified that, at 12:07 AM, he telephoned his partner but that thecall was not answered. After this, he fell asleep on the train and vomited. The defendant arrived at the Oshawa GO station shortly after 1AM. He needed to urinate, was cold, and wanted to contact his partner. He walked out of the station, across the parking lot to the lastrow.

He urinated in front of his car and entered it. He started the engine and activated the heater. The defendant testified he did all thisbecause he believed the station was closed and “didn’t think it would be an issue to wait in the car” for his partner. He added that“almost immediately, GO security arrived”. [9] The defendant denied that his partner’s text at 11:26 PM (“Are you planning on coming home”) was “sarcastic” and that she left him“high and dry”, notwithstanding the earlier agreement to pick him up.

The defendant testified that when, hours later, he finally arrivedhome, he found his partner asleep, with the television on. [10] Sarah Hawkins is the defendant’s partner. She confirmed their agreement that she would pick up the defendant if he hadconsumed too much alcohol. She testified that she would have awakened her then three year old son for this purpose because thedefendant “does not get out much”. She agreed that her 11:27 PM text (“So, you finally get back to me”) implies prior unsuccessfulattempts to contact the defendant but denied she was angry with him.

Ms Hawkins testified that given how late the defendant had stayedat the party, she knew she would have to pick up. This, she explained, is why she did not respond to the 12:02 AM text (“On my way”)and stated, “there was no need, but I fell asleep waiting for him to call on arrival at Oshawa GO”. [11] The burden on the Crown in a criminal trial is a high one; to support of finding of guilt, each element of the offence must be provenbeyond a reasonable doubt. In a case where the Defence adduces evidence, that standard is not met if the evidence (

i) is believed, or (ii)is not believed, but leaves the trier of fact in reasonable doubt, or (iii) does not leave a reasonable doubt, but the remaining evidence failsto convince, beyond a reasonable doubt, that the defendant is guilty: R v W.D. (1991) (SCC), 63 C.C.C. (3d) 397(S.C.C.). This does not mean the Defence evidence is to be viewed in isolation; on the contrary, it is to be assessed in context of theentire case: F v R.D. [2004] O.J. 2086 (O.C.A). [12] The Defence position is as follows: “Drunken people do sometimes end up in motor vehicles with no intent to drive”.

Thedefendant made several cotemporaneous statements that he did not intend to drive that undermine any suggestion of recent fabrication. Inthis regard, since he was “hammered”, it cannot be seriously claimed that he was planning his defence as events unfolded. Moreover,the defendant’s interaction with the officers shows he was not “so drunk he could have changed his mind” about his decision not todrive. [13] The Crown did not seriously push the theory that the defendant would accidentally put the car in motion.

Rather, it is argued that:If there was a plan for Ms Hawkins to pick up the defendant, “it went away because she was mad at him and left him high and dry”. Thus, the defendant decided to drive home. In the alternative, if he was still trying to contact his partner while seated in the car, therewas a realistic risk that he would change his mind about driving because “drunks make bad choices”. [14] I reject the Defence evidence. The defendant’s trial testimony, and that of Ms Hawkins, is inconsistent with their conduct on thenight in question.

The defendant asserted he wanted his partner to pick him up, but he did nothing to facilitate this. Ms Hawkins claimedthat by 12:02 AM, she knew she would have to drive the defendant home, but she took no steps to do so. Moreover, the text messagesexchanged between the parties do not reflect a prior agreement that Ms Hawkins might pick up the defendant or that he now wanted herto do so. In this regard, the two unanswered communications by the defendant, sent while he was on the GO train, are equivocal.

By thetime the defendant’s train journey had ended, Ms Hawkins may have already fallen asleep – as had, presumably, the young child. [15] Assuming the parties had previously agreed that Ms Hawkins would pick up the defendant, the defendant’s actions show heintended to travel home without the assistance of his partner. The defendant did not persist in trying to contact Ms Hawkins while he wason the train. When he awoke at Oshawa, he walked directly to his parked car and started the engine. I do not accept the defendant’stestimony that he did this to find a warm place from which to call his partner.

That could easily have been done from the station – aplace which also offered much needed washroom facilities. He had to know the station was open because he must pass through it, oraround it, on leaving the train. [16] I am confident the defendant possessed a cell phone while in the car because records show he had one on the GO train when hetried to contact Ms Hawkins. However, I accept Cst. Liaird’s testimony that he did not have it in hand, when she arrived, and it was notin plain view; that is, the defendant was not then trying to call his partner.

Moreover, on the defendant’s version of events, almost twohours had passed since he last heard from Ms Hawkins. His only real option was a cab. Assuming none were waiting for customerscoming from the last train out of Toronto (about which there is no evidence), the only reasonable course of action was to call one fromthe readily identifiable station, not a parked car at the end of the lot. [17] I have no doubt the defendant occupied the driver’s seat of his vehicle with a contemporaneous intention to drive.

In any event, ifhe occupied the driver’s seat of his motor vehicle for the purpose of trying to contact Ms Hawkins, it is reasonable to conclude he wouldnot succeed. Given the time, place, and circumstances, there was a realistic risk he would change his mind and drive home. [18] The defendant is guilty as charged. Released: July 9, 2014 Signed: “Justice De Filippis”