R. v. Sciortino, 2011 ONCJ 606

COURT FILE No.: Brampton 10-17626 DATE: November 15, 2011 Citation: R. v. Sciortino , 2011 ONCJ 606 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — ANTHONY SCIORTINO Before Justice Richard H.K. Schwarzl Heard on September 22 and November 15, 2011 Reasons for Judgment given on November 15, 2011 Ms. Shanna Ferrone................................................................................................. for the Crown Mr.

Edmund Chan for the Accused SCHWARZL, J.: 1.0: INTRODUCTION [ 1 .] On December 11, 2010 the Accused and his friend Eddie Selkic left a bar in Mississauga after an evening of heavy drinking. Intoxicated and with car keys in hand, the Accused approached the Honda Civic in which he had driven himself and his friend to the bar. He later provided two breath samples that were analyzed by a Qualified Technician using an approved instrument. The results of those analyses showed that Mr. Sciortino had three times the legal limit of alcohol in his blood. Mr.

Sciortino was charged with impaired care or control or a motor vehicle (count 1) and care or control of a motor vehicle with excess blood alcohol (count 2). He has pled not guilty to each count. [ 2 .] Mr. Sciortino does not dispute that his ability to operate a motor vehicle was impaired by the consumption of alcohol. Nor does he dispute the results of the breath tests taken at the station which were truncated at 250 and 240 milligrams of alcohol in one hundred millilitres of blood.

The core issue on each count is whether or not the Crown has proven beyond a reasonable doubt that the Accused was in care or control of his motor vehicle. 2.0: POSITIONS OF THE PARTIES 2.1: Position of the Crown [ 3 .] The Crown submits that it has proven beyond a reasonable doubt that Mr. Sciortino was in care or control of his car. They submit that the statutory presumption of care or control applies but that if it does not, the Accused was nevertheless in de facto care or control of his car. 2.2: Position of the Defence [ 4 .] Mr.

Sciortino submits that he was not in care or control of his vehicle in this case. He submits that he only occupied the driver’s seat in order to retrieve some personal property before walking to a friend’s house. He submits that whether or not the statutory presumption applies, there is a reasonable doubt that he occupied the driver’s seat with an intention to drive.

3.0: APPLICABLE LEGAL PRINCIPLES [5.] Section 258(1)(

a) of the Criminal Code states that where a person is found to be in the driver’s seat of a motor vehicle whileintoxicated by alcohol and/or drugs, he is presumed to have occupied the seat with the intention to drive. Where the person did notoccupy the driver’s seat in order to drive, guilt may still be proven by evidence of actual, as opposed to presumed, care or control. [6.] Obviously, if the person is driving, then care or control is easily proven.

However, in cases such as this where the vehicle isstationary, care or control may be proven by acts which involve some use of the motor vehicle or its fittings and equipment, or somecourse of conduct associated with the vehicle that would involve a risk of putting it in motion so that it could become dangerous: R. v.Toews (1985), (SCC), 21 C.C.C. (3d) 24 (S.C.C.). [7.] Where the statutory presumption applies, the accused must establish on a balance of probabilities that that his occupancy ofthe driver’s seat began without the purpose of setting the vehicle in motion: R. v.

Hatfield (1997), (ON CA), 115C.C.C. (3d) 47 (Ont.C.A.); R. v. Miller, [2004] O.J. No.1464 (C.A.) aff’g [2002] O.J. No. 4896 (S.C.J.); R. v. Saulteaux, [2000] S.J. No.633 (Q.B.) [8.] Where the statutory presumption has been rebutted, criminal liability may attach where the Crown proves that the acts orconduct of the accused in relation to the motor vehicle could cause the vehicle to become a danger whether by setting the motor vehiclein motion or in some other way: R. v. Wren (2000), (ON CA), 144 C.C.C. (3d) 374 (Ont.C.A.). [9.] In R. v. Ferguson, (ON SC), [2005] O.J.

No. 182 (S.C.J.) it was held that there are three risks of dangerwhen an intoxicated person uses a motor vehicle for a non-driving purpose, namely: (

i) The vehicle will unintentionally be set in motion; (ii) Through negligence, a stationary or inoperable vehicle may endanger the individual or others (i.e. any intentional act by the accusedthat creates risk); and (iii) The person will change his or her mind and drive. [10.] An intention to drive the vehicle is not an essential element of the offence of "care or control": Ford v. The Queen, (SCC), [1982] 1 S.C.R. 231, at pp. 248-49. It is, however, part of the conduct of the accused that is relevant to thedetermination of whether that conduct in relation to the motor vehicle had created a risk of danger: R v.

Ruest, [2009] O.J. No. 5108(C.A.). [11.] Where, as in this case, conflicting evidence on core issues is given, the court must assess the credibility and reliability of thatevidence. If the court believes the evidence of the Accused, obviously he must be acquitted. If the court does not believe the testimonyof the Accused but is left in reasonable doubt by it, the Accused must be acquitted. Even if the court is not left in doubt by the evidenceof the Accused, he can only be found guilty if that guilt has been proven beyond a reasonable doubt by the evidence that the court hasaccepted: W.(D.) v.

The Queen (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.); R. v. Graves, [1997] O.J. No. 1592 (O.C.J.) [12.] The court may believe none, some, or all of a witness' evidence: R. v. R.E.M. (2008), 2008 SCC 51 , 235 C.C.C. (3d)290 (S.C.C.) at ¶ 65. The court is entitled to accept parts of a witness's evidence and reject other parts. Similarly, different weight maybe accorded to different parts of the evidence that it has accepted: R. v. J.H. (2005), (ON CA), 192 C.C.C. (3d) 480(Ont.

C.A.) at ¶ 44. [13.] It must be emphasized that mere disbelief of the Accused's evidence does not satisfy the burden of proof upon the Crown: W.(D.) v. The Queen, supra, at 409. In other words, to use disbelief of the Accused's evidence as positive proof of guilt by moving directlyfrom disbelief to a finding of guilt constitutes a legal error: R. v. Dore, (2004), (ON CA), 189 C.C.C. (3d) 526 (Ont.C.A.) at 527. [14.] W.(D.) v. The Queen, supra, explains that the court must not reach its verdict based on choosing between the defence andprosecution evidence.

Instead, it is whether on the basis of the evidence as a whole, the trier of fact is left with a reasonable doubt as to

the guilt of the accused: R. v. C.L.Y. (2008), 2008 SCC 2 , 227 C.C.C. (3d) 129 (S.C.C.); R. v. Dinardo (2008), 2008 SCC 24, 231 C.C.C. (3d) 177 (S.C.C.) at ¶ 23. In order to convict, the court must be satisfied on the totality of all the evidence thatthere is no reasonable doubt as to the guilt of the Accused on each count. 4.0: ANALYSIS 4.1: Does the statutory presumption apply? [15.] In order for the statutory presumption in section 258(1)(

a) of the Criminal Code to apply, the Crown must prove beyond areasonable doubt that the Accused occupied the driver’s seat of the motor vehicle. In this case, there is ample evidence that Mr.Sciortino occupied the driver’s seat of his automobile. [16.] The manager of Earle’s Bar, David Coulas, watched the intoxicated Accused exit the bar with car keys in hand and, after tryingthe handles of two other cars, unlock the driver’s door of a Honda Civic, sit down behind the driver’s wheel, turn on the headlights andclose the door.

Coulas had offered the Accused and his friend a cab ride home, but they declined the offer. Coulas saw the Accused’sfriend get into the front passenger seat. Seconds later when the police arrived, Coulas saw the Accused turn off the lights and quicklyexit the car. Mr. Sciortino’s car was parked in such a way that he could drive away by simply moving forward. [17.] P.C. Kozuska was the officer who came into to the bar parking lot. On entering the lot, Kozuska saw the Accused and hisfriend by the Civic. He watched the Accused open the driver’s side door and get in completely.

The officer also noticed that Accused’sfriend opened the passenger door but after looking up at the officer shut it before getting in. The officer also observed that while theAccused was closing his door, the Accused turned on the headlights of the car. The Accused then looked at the officer and stoppedshutting the door, which was nearly closed but still open about ¼ of the way. The Accused then turned off the headlights, jumped out ofhis car and nearly fell backward. [18.] In his evidence the Accused said that he sat in the driver’s seat, but kept one foot on the ground.

At first he said he got in toget his scarf but later said it was in order to search for and retrieve his house key and his work ID, located in a console in the dash area. The Accused did not start the car, did not turn on the headlights, nor did he touch the gear shift or the emergency brake. He said the onlylight that came on was the interior light which is active while the door is open. He said his friend opened the passenger door to get hisgloves and scarf. Mr. Sciortino said that after he got his house key and work ID, he got out of the car.

He said he first realized that therewas a policeman there while seated in the car. [19.] Mr. Selkic, who was quite intoxicated at the time, testified that the Accused merely leaned into the car to retrieve hisbelongings as well as Selkic’s gloves and scarf. He did not recall seeing the headlights on. Mr. Selkic denied going to the car.

He saidhe stayed on the nearby sidewalk having a cigarette while the events unfolded. [20.] Based on all of the evidence, I find that the Accused did occupy the driver’s seat of his Honda Civic. 4.2: Has the Accused rebutted the statutory presumption? [21.] The Accused said that he only occupied the driver’s seat to retrieve his personal belongings and that he had no intention todrive. He and Selkic both testified that on arriving at the Earle’s bar, they agreed to get drunk and then walk to Selkic’s house whichwas a few minutes’ walk away. They both said that on leaving the bar, Mr.

Sciortino went to his car before heading to Selkic’s place. Mr. Sciortino said he was there to get his house key and work ID while Mr. Selkic said he went to get their gloves and scarves. [22.] In cross-examination, Mr. Sciortino was confronted by his statement to the Qualified Breath Technician, P.C. Scobie, given anhour or so after the events. Scobie asked him “What were you going to do at your car?” The Accused told the officer, “Decide if I wasgoing to take a cab or keep it there. I definitely wasn’t gonna drive. I personally went to my car for no reason at all.

I didn’t need to goget anything.” His trial evidence directly contradicts his utterance to the police. He explained that he was pretty intoxicated at the time,doesn’t remember saying that to P.C. Scobie and doesn’t know why he told the officer that he didn’t need to get anything from his car. [23.] The Accused does not recall a number of things that Coulas described. Mr. Sciortino does not recall being asked by Coulasearlier in the evening to stop bothering another patron at the bar. He does not recall Coulas offering the two men a cab ride home.

Hedoes not recall rejecting the offer, but did say it is likely he would since he wanted to walk in the brisk December air to help clear hishead. Mr. Sciortino does not recall trying to open the doors of two other cars.

[ 24 .] Mr. Sciortino said that he did not turn his headlights because the interior light was sufficient to find his house key. Coulas and Kozuska both say the headlights were on. Unlike the Accused and Selkic neither of these witnesses was drunk. [ 25 .] Both Coulas and P.C. Kozuska say that Selkic was at the passenger’s door and opened it. Coulas said that he also saw Selkic seated in the car, but I prefer the evidence of P.C. Kozuska that Selkic was about to get in but didn’t when he saw the officer. I reject Selkic’s evidence that he was never within several metres of the car.

I find as a fact that Selkic was at the car door. [ 26 .] In assessing the credibility of the various witnesses, I did not find the Accused to be a credible or reliable witness. In the first place, he admitted that he was highly intoxicated at the time after having consumed 5 beers and 5 whiskeys. Such intoxication can veil one’s perceptions and cloud one’s memories. Secondly, he denies turning on his headlights notwithstanding the credible and reliable evidence of both Coulas and P.C. Kozuska that he did. Thirdly, he does not recall (

a) being told by Coulas to stop bothering other guests, (

b) being offered a cab ride by Coulas, or (

c) trying to open the doors of two other cars. Lastly, his trial evidence that he went to the car for the sole purpose of retrieving his property is directly contradicted by his voluntary statement to the Qualified Breath Technician that he went to his car for no reason and that he didn’t need to get anything. [ 27 .] I also found Mr. Selkic to be unreliable witness. Almost everything he said contradicted either the Accused or the other witnesses.

One of the few things that he said that was consistent with another witness was that he and the Accused planned to walk to his place after leaving the bar. [ 28 .] I did, however, find both Mr. Coulas and P.C. Kozuska to be credible and reliable witnesses. Both were sober; both were on duty and alert; both had clear vantage points from which they made their observations; and both had excellent recall. Each was an internally consistent witness and, with one exception, both were consistent with each other.

That exception, alluded to earlier, was that Coulas was certain that Selkic opened the car door and sat inside whereas Kozuska said that Selkic opened the door but never got in. I think Coulas is wrong on this point, but that one error did not detract from the strength of his other evidence for the reasons given, above. [ 29 .] Where the presumption under section 258(1) (

a) of the Criminal Code applies, the burden is on the Accused to rebut that presumption on a balance of probabilities. In other words, he must demonstrate that it is more likely than not that he occupied the driver’s seat for a purpose other than setting it in motion. [ 30 .] After carefully assessing all of the evidence, I am not satisfied that Mr. Sciortino probably got into his car for a reason other than driving. Neither his evidence, nor that of the drunken Mr. Selkic, had any persuasive force. Nor did that evidence leave me in a state of reasonable doubt.

When looking at the totality of the evidence I believe that it is equally, if not more, likely that Mr. Sciortino was going to drive away but for the very sudden appearance of the police just as he turned the headlights on while closing his door. [ 31 .] Accordingly, I find that Mr. Sciortino has failed to rebut the statutory presumption. 4.3: Assuming the Accused has rebutted the statutory presumption, has the Crown proven actual care or control? [ 32 .] If I am wrong and the Accused has rebutted the statutory presumption, I would nevertheless find that the Crown has proven beyond a reasonable doubt that Mr.

Sciortino was in actual care or control of his motor vehicle. [ 33 .] No two cases have the same facts. However, in R. v. Pelletier , [2000] O.J. No. 848 (C.A.) , a case with many similarities, the Ontario Court of Appeal stated: ¶ 6 In our view, there was ample evidence to support a finding that the appellant was in care and control of the vehicle. The undisputed evidence established that the appellant had the means readily available to drive the car. He was sitting in the driver's seat. Although the keys were not in the ignition they were immediately accessible to him.

The appellant had driven the car to the hotel. When he left he was impaired and did not take advantage of the hotel's shuttle bus service. He told the police that he intended to sleep for a while. As the

summary conviction appeal court judge pointed out there was a risk that the appellant would change his mind and drive the car. There was also the risk that, in his impaired condition, the appellant would misjudge his level of impairment and drive the car while his condition continued to pose a risk. ¶ 7 The appellant's conduct created a risk of danger. We see no basis to interfere with the conclusion of the

summary conviction

appeal judge. We would therefore dismiss the appeal. [34.] The risk of danger described in Pelletier is real risk and not one that is merely speculative having regard to all of thecircumstances specific in each case: R. v. Szymanski, (ON SC), [2009] O.J. No. 3623 (S.C.J.) at ¶ 90 to 94. [35.] In this case, Mr. Sciortino drove his car to the bar. He got very drunk there and was highly intoxicated when he left. He couldnot recall much of his encounter with the bar manager. He had the keys in his hand and they were readily available to him at all times. He was sitting behind the wheel of his car.

He had mostly closed the door, and was not leaving it open despite the purportedly briefnature of his attendance. He turned on the headlights. Neither acts of closing the door and turning on the headlights were necessary oreven useful in retrieving his personal property, but were both steps when beginning to drive. [36.] If he had a plan to walk to Selkic’s place, Mr. Sciortino’s decision to close the door ¾ of the way and turn on the headlightsdemonstrates that at a minimum that his judgment, decision making, and memory with respect to this plan were adversely affected by thealcohol.

I find that his high level of intoxication greatly increased the risk that he might drive. Even if he didn’t enter the car with anintention to drive, Mr. Sciortino was in an easy position to change his mind and drive without delay or obstacle. The risk that he wouldchange his mind was a real risk of danger to the public given (

a) his significant intoxication, (

b) his immediate means and capacity todrive, and (

c) by turning on the headlights and trying to close the door, both of which are steps preparatory to driving. [37.] Therefore, assuming that the Accused has rebutted the statutory presumption, the Crown has nevertheless proven beyond areasonable doubt that the Accused was in actual care or control of his motor vehicle by engaging in acts that involved a real risk that hecould set the car in motion. 5.0: CONCLUSION [38.] For these reasons, I find that the Crown has proven beyond a reasonable doubt that Anthony Sciortino was in care or control ofa motor vehicle while impaired and while his blood alcohol concentration exceeded the proscribed limit.

Accordingly, I find him guiltyof count 1 and guilty of count 2. Released: November 15, 2011. _____________________________________ Richard H.K. Schwarzl, Justice of the Ontario Court of Justice