R. v. W.(J.M.), 2010 ONCJ 782

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Walkerton 07Y126 DATE: 2010·12·20 Citation: R. v. W.(J.M.), 2010 ONCJ 782 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — J.M.W., a young person Before Justice Brophy Heard on 8 July and 22 September 2010 Reasons for Judgment released on 20 December 2010 Denise Scapinello ....................................................................................................... for the Crown Donald Bitter ............................................................................... counsel for the defendant J.M.W. Brophy J.:

INTRODUCTION [ 1 ] J.M.W., a young person within the meaning of the Youth Criminal Justice Act (YCJA), has been charged that on or about the 10 th day of June, 2007, in the Village of Paisley, he operated a motor vehicle while his blood alcohol concentration exceeded the legal limit contrary to

Section 253 (

b) of the Criminal Code of Canada . [ 2 ] J.M.W. had been operating an all terrain vehicle the afternoon of the 10 th of June, 2007, and had been involved in a motor vehicle accident. This caused significant damage to the ATV. He called his father in Clifford who after some minor delay set out to retrieve him and the ATV. [ 3 ] Police officers from the Ontario Provincial Police responded to a complaint about the motor vehicle accident and when they arrived J.M.W. was helping his father load the ATV onto his father’s truck.

The officers took the view that J.M.W. was operating the ATV and upon further enquiries determined that he had consumed some alcohol. They then conducted an approved screening device test and there was a fail registered. The officers arrested J.M.W. and he was taken to the Saugeen Shores Police Service detachment for breath tests which ultimately produced results of 149 mg of alcohol in 100 ml of blood and 131 mg alcohol in 100 ml of blood. ISSUES [ 4 ] It was agreed at the outset of this trial that there would be a blended hearing of the trial proper and the Charter application. [ 5 ] The issues are: (

a) A White issue with respect to compelled statements. (

b) A reading back of the breath test results by way of a report from the Centre for Forensic Science. (

c) Statements being taken in breach of

section 10(

b) of the Charter of Rights and sections 25 and 146 of the YCJA . (

d) Time variations between the Intoxilyzer print out cards and the Certificate of a Qualified Breath Technician. (

e) Bolus drinking. (

f) Whether the accused had care and control of the ATV at the relevant time. [ 6 ] The key issue to be determined in this case is whether or not young J.M.W. had care and control of the ATV at the time the police observed him assisting his father loading it onto the back of the truck. The other arguments have either been abandoned or are not of consequence. FACTS [ 7 ] On Sunday July 10 th , 2007, Officer Kenneth Roppell of the Ontario Provincial Police was dispatched at 6:15 PM to attend to a location in the Village of Paisley. This was a function of a motor vehicle collision report that had been received.

He arrived at the subject location at 6:36 PM. His evidence is that he saw a white truck parked in front of a residence at the address he had been referred to and saw two males trying to load an ATV onto the back of the truck. He states that the younger man, who it is agreed was J.M.W., was driving the ATV and was trying to move it up a ramp onto the back of the truck. He advises that the older man, who turns out to be the father of young J.M.W. was assisting. Officer Roppell reports that there was not a lot of success in loading the ATV because of damage to the front right tire.

He states that the ATV was moving but not properly. He had some brief conversation with the accused and identification was obtained. Identification in this case is not an issue. The accused was 17 years old at the time, having been born the […], 1990. He had a Class G2 licence. [ 8 ] Officer Roppell observed that the eyes of J.M.W. junior were glassy and the ATV saddle bags smelled like beer. He saw the cans of beer in the saddle bag and there was some wet clothing that also smelled like beer.

The smell of alcohol was not over powering however because the truck belonging to the father was in their immediate presence and it was a diesel truck with the engine running. [ 9 ] Officer Roppell decided that he had reasonable suspicion that J.M.W. had alcohol in his body and that he had been operating a motor vehicle. It was unclear at that time whether the operation related to the prior driving or the operation by way of attempting to load it onto the truck. Officer Roppell however believed there had been some operation and that the grounds existed to make an approved screening device demand.

That demand was read and no issues were taken with the wording and an appropriate Alcotest 7410 GLC was available that had been properly calibrated. The machine was presented with explanations.

Officer Roppell believed the instrument was functioning properly and at 6:44 PM he gave the device to the accused who provided a sample and there was a fail displayed. [ 10 ] As a result of the fail, Officer Roppell was of the view that the accused had committed the offence of operating a motor vehicle while his blood alcohol concentration exceeded 80 mg of alcohol in 100 ml of blood and there was therefore an arrest at 6:54 PM.

Rights to Counsel were read and at 6:55 PM the YCJA Caution and Rights to Counsel were read. [ 11 ] Upon arrest the accused became upset and threw his cell phone and stated that this was going to “screw me up”. When he was searched, a Budweiser beer cap was found in his front left pocket and prior to leaving the scene Officer Roppell at 6:57 PM examined near some bushes a small blue cooler bag in which he found three more full bottles and two half full bottles of Budweiser beer beside the bag. There were other cans of Budweiser and two unopened cans that had apparently been drained.

He seized all of these items and put them in the trunk of his cruiser.

[ 12 ] At 7:00 PM they left the scene and headed to Port Elgin for an Intoxilyzer test. This was because a Saugeen Shores Police Service officer, Constable Lein, had briefly stopped at the location of the investigation and had indicated that he could do the breath tests in Port Elgin. That was a closer location and it would be more efficient and as a result Officer Roppell took J.M.W. to Port Elgin for the tests. [ 13 ] Officer Roppell arrived with J.M.W. at 7:16 PM and he was lodged in the cells at 7:19 PM.

Officer Roppell completed a data sheet for Officer Lein for the purposes of the Intoxilyzer tests and to provide grounds for those tests and at 7:34 PM the accused was turned over to Officer Lein and he was returned at 8:07 PM. After the test results were received and a certificate of analysis was provided by Officer Lein appropriate documents were served on the accused. Those documents included a true copy of the certificate of analysis, ADLS suspension documentation, release documents including a Promise to Appear and an Officer in Charge Undertaking.

There were other charges under Provincial legislation that were also served. [ 14 ] Officer Roppell’s evidence is that Rights to Counsel were read pursuant to the Charter and that the accused said he understood and that when asked if he wanted to contact a lawyer he said no. Officer Roppell testified that J.M.W. never at any point asked to speak to a lawyer. [ 15 ] In cross examination, Officer Roppell said that he saw the accused operating the ATV by sitting on the driver’s seat with one knee on the seat and using the throttle to give the engine gasoline and trying to go up the ramp, unsuccessfully.

There was nothing in Officer Roppell’s notes about the engine of the ATV running but it is his belief that it was running. Officer Roppell said he was not sure where J.M.W. senior was in relation to the machine. [ 16 ] Officer Roppell was not able to say on what side of the machine was the throttle although it was his understanding they are on the right hand side. He does agree that the truck was running and that it was a diesel engine and there were fumes from the diesel engine.

Officer Roppell did not see a winch attached to the ATV and does not think it was in fact being winched onto the truck. [ 17 ] Officer Roppell said that when the accused was handcuffed, he was getting excited and his father came over and told him to cooperate. This was Officer Roppell’s only contact with the father. [ 18 ] Officer Ryan Oldham testified. He accompanied Officer Roppell and was present at the time of the observations of the accused and his interaction with the ATV and also the arrest.

He confirms the time of dispatch and the attendance at the scene and his evidence is that he saw the pickup truck backed up onto a curb area with an ATV being loaded into the back. There was an effort to move the ATV up a ramp with the throttle engaged and he says this was by a single person. His evidence is that he could hear the engine of the ATV running and that it was self propelling up the ramp.

The person operating the ATV in the evidence of Officer Oldham was the accused. [ 19 ] In his interaction with the accused he noted that the speech of the accused was slightly slurred and he noted the approved screening device demand being given at 6:41 PM. He confirms the use of the approved screening device in the ordinary fashion and as testified to by Officer Roppell and that he saw the fail result at approximately 6:44 PM. At 6:54 PM J.M.W. junior was arrested for the over 80 offence. At approximately 6:44 PM Officer Lein from Saugeen Shores Police Service offered to do the breath test in Port Elgin.

Officer Oldham confirmed that they left the scene at approximately 7:00 PM travelling to Saugeen Shores Police Station, arriving there at approximately 7:16 PM. He noted that Officer Roppell spoke to the breath technician about the incident and at 7:34 PM J.M.W. junior was turned over to Officer Lein. He was returned at 8:07 PM. They were advised of the test results. Ultimately J.M.W. junior was released to his father at 9:10 PM. [ 20 ] In cross examination, Officer Oldham gave some further evidence with reference to the operation of the ATV by the accused.

He said that he cannot remember the ATV being attached to anything. He did see damage to the right front wheel but did not do any other inspection. He did receive some information from the accused about the damages. Officer Oldham’s evidence is that the wheel might have been out of alignment by about 45 degrees. [ 21 ] He says that the father of the accused was standing off to the side of the tail gate but Officer Oldham does not know what he was doing. Officer Oldham did not check to see if a winch was attached.

He did note that the truck was loud and had a heavy odour. [ 22 ] Officer Oldham has nothing in his notes about hearing the motor of the ATV running or about it reving up. Officer Oldham says that he remembers those things but did not consider them important at the time and therefore did not put them in his notes. [ 23 ] He says that the accused was on the seat and the ATV was on the ramps. He says the accused was in a seated or semi- seated position. [ 24 ] Officer Oldham does recall the cautions being provided under the YCJA . [ 25 ] In

summary, Officer Oldham says that the father was around the tail gate area, that people were moving around and it was a fluid situation and the white truck was loud. [ 26 ] In redirect, Officer Oldham indicated that he never prevented the father from speaking to the son nor did Officer Roppell prevent that from happening and that the accused never asked to speak to his father at any point. [ 27 ] Officer Douglas Lein testified. He is a police officer at the Saugeen Shores Police Service and was the Intoxilyzer technician involved in this case.

He indicated that he is properly qualified and no challenge was made to that fact. He says that he was on routine patrol and had come into Paisley and met up with the two OPP officers who were investigating the subject incident. He stopped, had some brief conversation, indicated he could do the Intoxilyzer test and the officers agreed to take J.M.W. to Port Elgin for that purpose. He spoke to the officers in and around 6:55 PM and then went to the Saugeen Shores Police station in Port Elgin and noted that the OPP officers arrived at approximately 7:18 PM.

Officer Lein prepared the Intoxilyzer and completed his diagnostic check at 7:22 PM. He received J.M.W. into his care shortly thereafter.

[ 28 ] At 7:39 PM a suitable sample was received that produced a reading of 149 mg of alcohol in 100 ml of blood. Later at 8:00 PM a second suitable sample was received that produced a reading of 131 mg of alcohol in 100 ml of blood. Shortly after that J.M.W. was returned to the OPP officers. [ 29 ] Officer Lein’s evidence taken as a whole, confirms that the suitable samples were taken directly into the machine.

Officer Lein also testified, and I accept this evidence, that the certificate times were the times from his watch and are accurate. [ 30 ] Officer Lein testified that the Intoxilyzer 5000C was functioning properly. He says that there was a problem with the printer and that the time on the cards was not accurate. He asserts, and I accept his evidence, that the times that show on the certificate of analysis are in fact the times the tests were taken and the results are as determined by the Intoxilyzer 5000C. [ 31 ] The defence called two witnesses. The first was Stephen Boyd. Mr.

Boyd is the operator of Boyd’s Farm Supply Limited. He testified that in 2005 he had sold to the accused a Suzuki ATV. [ 32 ] Mr. Boyd testified as to two significant facts. The first is that the ATV has a winch built into the machine which allows one to hook a cable attached to the ATV to an external object and using an electric motor, pull the machine towards the object where the hook is attached or alternatively, draw something towards the machine. The sound from the winch is a whining type of noise, not overly loud. [ 33 ] After June 10, 2007, he was involved in repairs to the subject ATV.

There were two tie rod ends, a radiator, a bumper, a set of front fenders, a cover grill and radiator cover that had to be repaired and replaced. Mr. Boyd testified that when the tie rod was broken, the machine becomes inoperable in that the wheel is not steerable. Further, he testified that the damage to the radiator would cause antifreeze to leak out and if it ran for more than a couple of minutes it would cause major engine damage. [ 34 ] He also testified that the throttle is on the right-hand side of the machine and the brake is on the left-hand side.

The kill- switch control and the winch control is also on the left-hand side. The gear shift is also built onto the left-hand side. [ 35 ] Mr. Boyd testified that you could use the winch to move the ATV up onto a truck. He also testified that you could move the ATV down a road if there was something to hook it onto which would draw it in the proper direction. [ 36 ] The defence then called M.W. senior. He is the father of the accused. He resides in Clifford and has his business there. He owns a contracting company that installs underground utilities.

He said that he received a telephone call at approximately 2:30 or 3:00 PM on Sunday afternoon, 10 June, 2007, from his son asking him if he would come and pick him up in Paisley where he was with his ATV. It was sometime before he could get to Paisley because, firstly, he was not in a hurry, not being particularly happy about having to attend to this task and, secondly, he had to go to his business yard and unload a truck to create room to load the ATV on. [ 37 ] When he arrived in Paisley he found his son and some other young men sitting in a grassy boulevard where the ATV was effectively parked.

The front wheel on the ATV was all kinked out, this being the right front wheel and he noted that the radiator had been damaged and the tie rods had been bent. There was fluid from the radiator on the grass. [ 38 ] The truck he had brought was a Ford F450. Brand new, it was a diesel truck with a particularly unusual system for burning off exhaust from the engine. In a supplementary process it burns fumes from the exhaust causing the motor of the Ford truck to rev up at a high volume. [ 39 ] He affirms that the motor on the ATV was never running. The truck however, was running.

The exhaust from the truck gives off a strong odour which can be obnoxious and is hard on the eyes. [ 40 ] J.M.W. indicated that the truck was left on and was running as they tried to deal with the ATV. He said that he had to back over the curb to get at the ATV and then he had to get his ramps out. There was very little conversation with his son because he was pretty disappointed. [ 41 ] To get the ATV up onto the truck had to be a group effort and the two of them, that is father and son, walked to the ATV with J.M.W. senior on the left-hand side and the accused on the right-hand side.

J.M.W. senior indicates that he took the easier job with reference to operating the winch. The only way to move the ATV was via the winch because it was too heavy to lift on. They attached the winch cable to the back rack of his truck which was secure enough to take the weight. They then tried to move the ATV onto the back of the truck using the winch. He said that the winch makes a whining noise as it goes in and out. [ 42 ] His evidence was that his son was on the right-hand side of the ATV where the wheel was bent, trying to keep that tire on the ramp, the ramp being approximately eight inches wide.

J.M.W. was coaching him from the left-hand side. They never did get the ATV onto the truck. [ 43 ] The gear shift was on the left-hand side of the ATV. J.M.W. senior put the ATV in neutral to allow it to move forward. He testifies that the motor on the ATV was not running. That was because the radiator was damaged and running the engine would cause significant harm to the ATV. He acknowledged that the key was in the ignition. The key had to be on to operate the winch off the battery on the ATV. [ 44 ] J.M.W. senior testified that from the time he arrived until the police arrived, the motor was off.

He also testified that his son never operated the winch. His evidence is that his son’s sole job was to do the bull work and make sure the wheel slid up the ramp. J.M.W. senior states that he was in control because he was on the left-hand side where the controls were. [ 45 ] J.M.W. senior says that after his son was arrested and taken to Port Elgin another man offered to help and between the two of them they managed to load the ATV by operation of the winch onto the back of his truck. As soon as he could, he went to Port Elgin to wait at the police station for his son.

He left the scene approximately 10 minutes after the police had departed.

[ 46 ] In cross examination, J.M.W. senior indicated that clearly his son was assisting him in loading the ATV. However the ATV was unable to be operated because of the damaged tie rod and in any event, the engine was not on and he had control of the vehicle because he was on the side where the key was and the important controls. ANALYSIS Compelled Statements and Reading Back [ 47 ] The Charter application alleged breaches with reference to questions being asked related to the prior motor vehicle accident.

This was a concern in terms of the admissibility of those road-side statements which are compelled pursuant to Provincial legislation. This is commonly referred to as the “White issue” and is set out in R. v. White 1999 CanLII 689 (SCC) , 174 DLR 4 th 111 and the R. v. Huff [2000] OJ No. 3487 . [ 48 ] This issue became moot in that the Crown announced as the evidence unfolded that it was relying only on the observations made by the officers with respect to the accused operating the ATV as it was being loaded onto the trailer.

In other words, the theory of the Crown’s case does not include the operation of the ATV by the accused prior to the direct observations of the officers.

As a result the questions and answers about the prior motor vehicle accident are not relevant to the case and hence the “White issue” goes away. [ 49 ] This concession by the Crown also deals with the question of the reading back of the Intoxilyzer results in that there is no need for the report from the Centre for Forensic Sciences to be filed with the court because the Intoxilyzer readings were taken within the appropriate timelines as those timelines were set by the observations of the officers and not by some prior event.

Statements [ 50 ] The defence also raised issues at the outset about statements and whether they were taken in breach of

section 10(

b) of the Charter of Rights and sections 25 and 146 of the YCJA . This argument was not pursued and effectively was abandoned by the defence for the same reason noted above, there is no statement by the accused that is being relied upon by the Crown, other than the initial communications with the police going to reasonable suspicion and reasonable probable grounds. Times [ 51 ] There is also an issue with reference to the times the tests were taken.

It would appear that the times on the printer that produced the Intoxilyzer test record cards was different than the times that the officer relied upon from his watch to create the Certificate of the Qualified Technician. The officer simply testified that the printer times were wrong and his watch time was correct. As a result he put the watch time on the certificate which represented the actual times of the tests. I see no difficulty in this, the officer did something and he wrote down when he did it and he reduced it to writing on a Certificate of Qualified Technician setting out what the times were.

Further, he testified viva voce as to what the times were and what the test results were. The problem with the printer not having been correct at times was simply a function of the machine not being reset to the proper time. There is nothing in this argument. Bolus Drinking [ 52 ] There is one further argument advanced by the defence, in a half hearted gesture, with respect to the spectre of bolus drinking. This argument was not pursued vigorously. On the facts of this case there is nothing before me that would suggest bolus drinking as a realistic possibility.

At best there is an implication that the young people J.M.W. was associating were involved in “shot gunning”, which apparently involves drinking beer from cans through holes in the bottom. There is no evidence in front of me about what that means. I have nothing upon which to shake my view that ordinarily people do not consume large amounts of alcohol shortly before engaging in driving activities. The Ontario Court of Appeal has reaffirmed this common sense inference in R. v. Paszczenko 2010 ONCA 615 .

Care and Control [ 53 ] As I have previously indicated, the significant issue is care and control. [ 54 ] In assessing the evidence, I find that the officers were credible and reliable but they misunderstood the circumstances related to care and control of the ATV. [ 55 ] I accept the evidence of M.W. Sr. He was a good witness and was not contradicted and he states that the ATV was not running, his truck was running and it was very loud with strong fumes associated with it. In my view, all of this suggests that the officers simply did not fully appreciate that the engine on the ATV was not running.

I further accept the evidence of the father that his son was there to do the bull work in moving the ATV onto the back of the truck and that his job was to try and keep the bent right wheel in the ramp. [ 56 ] This however does not end the inquiry. [ 57 ] Firstly, a question has to be asked about whether the presumption set out in s.258(1) (

a) of the Criminal Code applies with respect to the accused occupying the seat or position ordinarily occupied by a person who operates a motor vehicle. The evidence of the officers is that the accused was positioned in such a way that at least one knee was on the seat ordinarily occupied by the operator. Does this constitute occupying the seat? Given the manner in which ATV’s can be used, I think it does. [ 58 ] However, the second question dealing with the presumption is whether or not that presumption has been rebutted.

Has the accused established on the balance of probabilities that his occupation of the driver’s seat was not to set the vehicle in motion? See R. v. Whyte (1988) 1988 CanLII 47 (SCC) , 42 C.C.C. (3d) 97 (S.C.C.). Given the factual findings I have made with reference to the use of the winch, the loading of the vehicle onto the back of a truck and the presence of the father, who was the directing force in this operation, I

am satisfied that the presumption is rebutted in that young J.M.W. had no intention of setting the vehicle in motion. In fact, he was attempting to send it on its way home for repairs in the distant future by placing it on the back of a truck. He was not intending to set it in motion. [ 59 ] The presumption not applying, the question then becomes whether or not the accused had de facto care and control of the ATV. [ 60 ] The question is whether or not the Crown has established beyond a reasonable doubt that there is a realistic probability of a risk of danger.

An essential element of de facto care and control is risk of danger. See R. v. Szymanski 2009 CanLII 45328 (ON SC) , [2009] O.J. No. 3623 (Ont. S.C.). [ 61 ] The case law has set out three categories of risk of danger. The first one is the unintentional setting of the vehicle in motion, the second is the stationary or inoperable vehicle that may nevertheless endanger the individual or others, and thirdly where an individual has decided not to drive but may change his mind if the opportunity presents itself. See R. v. Sandhu [2008] O.J. No. 4584 (Ont S.C.) , R. v.

Hannemann (2001) 2001 CanLII 28423 (ON SC) , 43 C.R. (5 th ) 168 (Ont S.C.), R. v. Wren (2000) 144 C.C.C. (3d) 344 (Ont. C.A.), and R. v. Ferguson 2005 CanLII 1060 (ON SC) , [2005] O.J. No. 182 (Ont. S.C.). Where there is no risk of the vehicle put in motion, or no potential danger from the combination of an impaired person and a motor vehicle the actus reus of the offence is not satisfied. See R. v. Hannemann , R. v. Wren , and R. v.

Penno (1990) 1990 CanLII 88 (SCC) , 59 C.C.C. (3d) 344 (S.C.C.). [ 62 ] In this fact situation, it seems to me that there was no risk that this vehicle was going to be put in motion. The engine was not on. The radiator was damaged and the engine would be seriously harmed if it was turned on. The right wheel and tie rods were damaged to the point where the ATV simply could not be steered. The vehicle was being loaded onto the back of a truck by means of a winch, which confirmed the fact that the engine was not operable and was not on. [ 63 ] Next, the father, M.W. Sr. was in command of the situation.

He was in the proper position to control the vehicle, being on the left-hand side where the key controls were. [ 64 ] Lastly, the only involvement of the son was to provide muscle on the right-hand side of the vehicle to attempt to keep the damaged right wheel in an eight inch ramp so that it could ascend onto the back of the truck. [ 65 ] In all of these circumstances, I fail to see how the Crown has established that the actus reus of the offence has been satisfied.

There was no realistic probability of a risk of danger by way of the vehicle being put in motion and there is no potential danger from the combination of the impaired person and the motor vehicle. [ 66 ] Simply put, the accused was no longer in charge, directly or indirectly, in any way, shape or form. His father was in complete command.

CONCLUSION [ 67 ] In my view therefore the Crown has failed to prove one of the essential elements of the offence, that is to say, the actual care and control of the motor vehicle at the relevant time. [ 68 ] I accept that the officers acted in good faith throughout and that the breath test results were accurate. However, I am not satisfied that young J.M.W. was in care and control of the subject vehicle. The charge against J.M.W. is therefore dismissed. Released: 20 December 2010 Signed: “Justice Brophy”