R. v. Singh, 2012 ONCJ 554

COURT FILE No.: Halton Region 10-4072 DATE: 2012-08-14 Citation: R. v. Singh , 2012 ONCJ 554 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Anand SINGH Before Justice F.L. Forsyth Heard on February 3, 2012, and April 12, 2012 Judgment released on August 14, 2012 Written Judgment released September 6, 2012 A. Tasson ................................................................................................................... for the Crown B. Starkman ........................................................................................ for the accused Anand Singh Forsyth J.:

SUMMARY OF THE EVIDENCE [ 1 ] Mr. Singh was charged with one count contrary to Section 253(1) (

a) of the Criminal Code and a second count contrary to Section 253(1)(

b) of the Code . Both counts arose out of an incident on December 23 rd , 2010. Both counts allege that he was operating his motor vehicle while in contravention of those sections of the Criminal Code . Mr. Singh entered a plea of not guilty and the Crown proceeded summarily. Mr. Starkman informed the Court at the outset of the trial that it was his opinion that the Crown would eventually have to rely upon the element of care or control in order to establish both of these charges as opposed to operation of a motor vehicle.

However he conceded that the two elements were virtually interchangeable at this point in the evolution of the common law. [ 2 ] The trial commenced on February 3, 2012, and the first witness called by the Crown was Paula Gaeten. She testified in chief that she was a 38 year old worker for the Town of Milton in the Parks and Recreation department. She had been on the midnight shift on duty doing road patrol on December 23 rd , 2010.

She was driving her Dodge Town of Milton pick-up truck with certain identifying insignia on the doors and on the back of the tailgate which said “Town of Milton” with an accompanying number. She said that she had driven west on Britannia Road to the intersection of Britannia and Tremaine Road at approximately 1:30 to 2 o’clock in the morning, although she wasn’t 100 percent certain of the time. She said that there is a stop sign for westbound traffic on Britannia at Tremaine but Tremaine which runs north and south does not have a stop sign for either north or southbound traffic at that intersection. [ 3 ] Ms.

Gaeten testified that as she approached the stop sign at Britannia and Tremaine she noticed a motor vehicle in the field across the road and the accused person came running out from the driver’s side of that vehicle onto Tremaine Road waving his hands towards her and asking for her help. At the outset of the trial Mr. Starkman had conceded the identification of the accused as the person who was associated with this particular motor vehicle and that he was the same person who had been arrested by the police on these charges in connection with the vehicle.

She described the position of the vehicle as facing northeast on an angle in a ditch on the southwest side of this particular intersection. She said that the vehicle was resting approximately 20 linear feet from the actual road surface. The accused was at the side of the driver’s door of the vehicle standing outside when she first noticed him. [ 4 ] She told the Court that the accused came right up to her driver’s door because she had already stopped her vehicle and she rolled down her driver’s window but only just two or three inches because she was by herself and she was a little concerned about security.

However she stated that she had no difficulty hearing the accused say “Can you help me? I’m in a lot of trouble. Can you get a buddy? I’ll pay you $50.00 to get me out.” [ 5 ] Ms. Gaeten said that she responded to that request of the accused by telling him that she would turn around at the end of the road and call for help. She said that she did not see any other person in the field or in the vicinity of the vehicle in the ditch. Nor was there any other vehicle in the vicinity. [ 6 ] She then said that she drove west on Britannia and turned around at Bell School Line and returned to where the accused

was standing on the road. He again approached her vehicle and they had a further conversation and she asked him to sit in what she referred to as “his car ” and wait until help came. During this exchange between the two of them she said that she had rolled her window farther down in order to be able to speak more easily to him. [ 7 ] The Crown asked her how close the accused was to her driver’s window when she was speaking to him and she said that he was right up at the open window talking to her and she smelled alcohol on his breath immediately after he approached her window and spoke to her.

She said she detected that odour on the first occasion and that’s why she dispatched to her boss asking him to call the police. Asked if she had made any other observations of him, she said that he just seemed a little excited and a little uneasy. [ 8 ] She said that she asked the accused how he ended up in the ditch because the way his vehicle was positioned made her curious. He said that he had been at a Swiss Chalet for a birthday party with his buddies and he was coming from Brampton to go to Mississauga which she thought was a little odd considering he was west of Milton and nowhere close to Mississauga.

The Crown asked her if there was anything else that the accused had said to her and she said “Just that he was in trouble, was going to pay us to pull him out, Swiss Chalet and then I heard enough and said “Can you go sit in your vehicle?” She explained that she asked him to sit in his vehicle for two reasons. The first reason was that it was cold outside and also she didn’t feel comfortable being out there on the road by herself with him until help arrived.

She said that the police arrived in approximately five to ten minutes after she had asked her dispatcher to call them. [ 9 ] During the interval while waiting for the police to arrive she said that she saw the accused standing outside of the vehicle standing behind it and he seemed to be taking things out of his pants pockets and throwing them on the ground behind the vehicle. The Crown asked her to describe the field at this point where she had seen the vehicle and she said that it was just a field with dirt and mud and maybe some cut down corn stalks.

She did explain that it was not perfectly level with the road surface as she had said earlier because there was a ditch into which the vehicle had apparently driven. She said that she didn’t know what the accused was thinking of, trying to get the vehicle out of that location , because it was quite a drop.

She explained that that was why she’d asked him how he’d even ended up with the vehicle in that position. [ 10 ] She testified that she had assumed that the accused had been travelling southbound on Tremaine because the next day she had driven out to the same scene and she saw some tracks that to her suggested that the vehicle had looped into the ditch from the southbound direction on Tremaine and then tried to loop back out.

Asked for details, she said that in the daylight you could see where the vehicle had gone off the side of the road at Tremaine and then looped around back to where it ended up facing northeast in the ditch at the corner of Britannia and Tremaine on the southwest corner. She said that the tracks that she could see were in the mud in the field. [ 11 ] In cross examination by Mr. Starkman, Ms. Gaeten agreed that other than the odour of alcohol on the breath of the accused she hadn’t noticed any other indicia of alcohol impairment. [ 12 ] When pressed by Mr.

Starkman to be more detailed about her estimate of the time in the day when she had returned to the scene and had apparently seen these tracks that she had described in-chief, she actually back-tracked on her evidence in chief and said that she couldn’t really remember if it was the next day as she had said in chief or whether it was on another similar shift a few days later.

She said that all she knew was that she did see these tracks on whatever day it was when she returned to the scene. [ 13 ] She agreed with the suggestion that she wears a uniform when she’s on duty which identifies her as a Town of Milton worker with an orange shirt and work boots. She agreed that anyone who would be looking at her would be able to quickly realize that she worked for the Town of Milton. [ 14 ] Mr. Starkman then questioned her about her police statement which she said that she provided at approximately 2:40 a.m. on the same day as the incident.

She agreed that since the incident had occurred more than a year before her day of testimony on this trial she might forget some things but she said she had told the story enough that she remembers the “whole gist of it”. Of course, when she was asked the usual question by cross-examining defence counsel that when she gave her statement to the police the events would have been fresher in her mind and indeed very fresh in her mind because it was just after the incident she agreed. [ 15 ] Mr.

Starkman then produced for her a document that she identified as her own police statement given at 2:40 a.m., on December 23 rd . Mr. Starkman asked her to examine it and to agree with him that nowhere in her statement to the police had she said that the accused had ever asked her for help in pulling the vehicle out of the ditch. After examining her statement, Ms. Gaeten agreed that that particular reference was not in the statement. [ 16 ] After obtaining that admission, Mr.

Starkman, of course, suggested to her that her police statement version would be much more reliable than what she had told the Court on February 3 rd because it was only 40 minutes after the incident that she gave that statement. Ms. Gaeten responded to that suggestion by saying that she wasn’t sure why those words about the accused offering to pay her $50.00 if she or a buddy would help to pull him out were not in the police statement but she maintained that “that’s the way it went.” But when Mr.

Starkman asked her to confirm that she seemed to be testifying that her testimony in court on February 3 rd , was more reliable than what she said to the police on December 23 rd , 2010, she gave a somewhat enigmatic response in my view. She said, “No, I’m – this is, this is pretty accurate. This is accurate.

This is the way it went...Maybe my, the words aren’t exact the way it should be, but yes.” She then explained that when she told the police that the accused had asked for help what she meant by telling them that was that he had asked to be pulled out and to pay her and her buddy $50.00 although maybe the words weren’t perfectly exact. [ 17 ] After this exchange between Mr. Starkman and Ms. Gaeten, the Court attempted to clarify her evidence. I asked her if she was standing by her evidence in chief that the accused had said to her “Can you help me? I’m in a lot of trouble. Can you get me out?

Can you get one of your buddies to tow me out? I’ll pay you $50.00.” Ms. Gaeten responded by saying “absolutely.” I then asked her if she was standing by her evidence even though she was admitting that in her police statement she had not included a reference to the accused asking to be pulled out of the ditch and she said that that was correct, she was maintaining that that was what happened. [ 18 ] Mr. Starkman then put the exact words to her that she had included in her statement on this subject which were “I’ll pay you $50.00, $100.00 to help me. I’m in a lot of trouble.” Ms.

Gaeten agreed that that’s exactly what she had said to the police.

[ 19 ] With respect to the prevalent weather conditions at the time, Mr. Starkman asked how she would have determined that it had been a clear night and not snowing or raining. She said that she could do that because she would be in the habit of writing such things down on her road patrol sheet. She confirmed that that’s what she had written on her sheet for this occasion. However when Mr. Starkman asked her if there could be any doubt about it, she said that there could be a doubt because she didn’t have a road sheet in front of her.

However, she was prepared to say that she knew for a fact that it wasn’t snowing because if it had been she would have been in a snowplow truck and not just a pick-up truck at the time. To clarify that, Mr. Starkman asked her if she would have been in a snowplow truck even if it had just been lightly snowing and she said, “100 percent.” [ 20 ] Mr. Starkman then suggested to Ms.

Gaeten that it had been clear to her that the vehicle, given its position in the field, was not driveable from that position and she immediately agreed by saying “that’s correct.” However, just a few minutes later in cross- examination when asked for clarification by the Court of what she meant by the term ‘driveable’ she said “Why I say it wasn’t driveable because he wasn’t getting it out of that field. I don’t know what condition the actual vehicle was.” Mr. Starkman asked her if in her opinion the vehicle had been immobile because of its position and she agreed with that suggestion.

She described the vehicle as a blazer- type or a jimmy vehicle. [ 21 ] The Crown had no re-examination for Ms. Gaeten. The next witness called by the Crown was P.C. David Price. He testified in chief that he was on duty working the night-shift December 22 nd into December 23 rd , 2010, 7:00 p.m. until 7:00 a.m. He was dispatched to the intersection involved at 2:35 a.m. Upon his arrival he observed P.C. Newham placing the accused under arrest for a

Section 253(

a) charge. He also spoke briefly to Ms. Gaeten and took a handwritten statement from her at the scene. [ 22 ] He was asked about the weather conditions upon his arrival at the scene and he said that the roads were wet and that there were light snow flurries in the air that did not affect visibility at that time.

He said that there was no accumulation of the snow on the road because it was melting as it hit the road making the road surface wet. [ 23 ] He said that he found the vehicle in question in a farmer’s field when he arrived on the southwest corner of the intersection facing north approximately 15 to 20 feet south of Britannia Road. He said it was a green Ford SUV full-size and he noticed that the front passenger wheel had come off the rim. He was asked by the Crown if it was completely off the rim and he said that it was not and that it had just separated.

The way he explained it was “the bead on the tire had separated from the rim and had lost all of its air but I believe it was still sort of loosely floating around on the rim.” He noticed no other damage to the vehicle. [ 24 ] He also stated that when he arrived the engine was running on the vehicle and from his observation of the vehicle he believed it to be operable because it was not sunk into the mud up to its axles and the ground was hard.

He said the vehicle was simply stopped in that position with the engine running. [ 25 ] He described the ditch on the south side of Britannia Road on the west side of Tremaine Road where the vehicle was located as being fairly shallow and perhaps a foot to a foot and a half deep. He said that the ditch that was on the west side or adjacent to the west side of Tremaine Road was deeper, maybe two to two and a half feet and two to three feet wide. However, he said the vehicle was actually in a resting position closer to the shallower ditch which was adjacent to Britannia Road west. He confirmed the evidence of Ms.

Gaeten that the vehicle was in a field which was relatively level to the roadway except for the ditches and that there were no corn stalks sticking out of the ground. [ 26 ] The Crown asked him if he made any observations of the field in the proximity of the vehicle. He said that he had noticed tracks leading southbound from the vehicle’s resting place. He noticed depressions in the dirt surface of the field and there was a very small dusting of snow on the fields that hadn’t melted, maybe a centimetre or a quarter of an inch. These tracks led south from the location of the vehicle.

He then walked over to the Tremaine roadside of that northeast corner of the ditch and found tracks that would correspond to a vehicle heading westbound on Britannia and going directly into the corn field. [ 27 ] Eventually Ms. Tasson asked the officer to draw a diagram which would depict most of this evidence that he had given orally and on consent he did so and it was entered as Exhibit number 1 on this trial.

Referring to the diagram he told the Court that his conclusion was that the vehicle had been travelling westbound on Britannia. [ 28 ] The Crown asked him if he was familiar with a Swiss Chalet outlet in Milton and he said that he was and that there was only one as far as he knew in the Town of Milton and it was about 20 to 30 kilometres away from the location of Britannia and Tremaine Road. He also said that he arranged for a tow truck to come to the scene in order to pull this vehicle out of the ditch. [ 29 ] In cross-examination by Mr.

Starkman, the officer said that he was present at the scene when the tow truck arrived and he agreed that the vehicle was winched out of the ditch by the tow truck. He also agreed that he had not himself entered the vehicle at any point before the tow truck arrived or afterwards. Therefore, he had not attempted to drive or operate the motor vehicle. Therefore, he agreed with the suggestion by Mr. Starkman that he did not know if the vehicle was “mobile or not”.

His answer actually was not “not positively, no.” [ 30 ] The officer said that he had not noticed any tracks that he attributed to this motor vehicle on the roadway surface itself and he added that there was nothing on the roadway that would have left tracks.

By that I assume that he meant snow or water or mud. [ 31 ] Referring to his diagram, he pointed out there was a ditch that borders the entire field and the dimensions of the ditch he had already provided in evidence in chief. [ 32 ] After the officer stated that in his opinion the tracks that he had seen leading southbound from the vehicle in the field were fresh Mr. Starkman suggested to him that he would not have expected to have seen any snow accumulating in the tire tracks any more than he would have expected to see snow accumulating on the roadway because it would melt once it hit the ground.

However, the officer disagreed with that suggestion and said that the fact that the snow was melting on the roadway may have been due to the road surface being salted and that would facilitate the melting of the snow, or the road surface might have been warmer than the ground temperature in the field. Of course, Mr. Starkman suggested to him that it was impossible for him to be able to figure out how long the

motor vehicle had been in the position in the field simply by observing the lack of any snow on the tire tracks and the officer agreed with that suggestion. And he also agreed his conclusion might have been different on that point had there been a heavy snowfall. [ 33 ] The next witness for the Crown was P.C. Dwain Newham who testified in chief that he was on duty on December 22 nd , 2010 on a twelve-hour shift from 6:00 p.m. until 6:00 a.m. December 23 rd . He was dispatched at 2:28 a.m., December 23 rd , to the intersection of Tremaine and Britannia and he arrived at that location at 2:33 a.m.

Upon his arrival he stated that he had observed the vehicle in the field on the west side of Tremaine in the southwest corner of the intersection facing north. The vehicle was approximately 10 metres from the stop sign that was at the intersection with Tremaine and so it was almost in the corner of the field. The engine was running and there was one male seated in the driver’s seat. He recalled that the driver’s door was closed when he arrived. [ 34 ] He initially spoke to Ms. Gaeten and then approached the vehicle. He found the accused before the Court in the driver’s seat smoking a cigarette.

He did not notice any damage to the vehicle that was visible. He asked the accused to extinguish his cigarette with which instruction the accused complied. [ 35 ] Upon speaking with Mr. Singh he noticed that he had slurred speech and when he asked him if he had consumed any alcohol Mr. Singh denied having consumed any alcoholic beverages. The officer observed Mr. Singh to have glossy eyes. Mr. Singh told him that he had been at a Swiss Chalet near Steeles Avenue in Milton and he was trying to get to Mississauga.

Throughout this conversation, the officer noted that he detected the odour of an alcoholic beverage on the accused’s breath. When asked by the Crown if he could provide to the Court any particular words that he thought the accused had been slurring, the officer said “it’s just in general conversation of talking.” The accused was the only occupant of the vehicle and there was no one else in the vicinity. [ 36 ] P.C. Newham then gave evidence of various symptoms of impairment by alcohol that he had observed on the part of the accused.

He also provided the usual evidence of requesting identification, driver’s licence, and insurance documents with all of which requests the accused complied. [ 37 ] He also testified that he checked around the vicinity of the vehicle to see if there was any other evidence and he happened to find a bunch of candy wrappers in the snow behind the vehicle. He did not observe any other tracks leading away from the vehicle.

He did say that he noted that the tracks in the field with the tread on them which he attributed to the tires of the vehicle with snow falling were still sharp in appearance which indicated to him that the vehicle had been driven into the ditch recently.

Part of what allowed him to come to this conclusion, he said,was the fact that although it was snowing lightly the tracks of the tires in the field were not being covered by the snow that was falling so it made him think that the vehicle had recently been driven into the field. [ 38 ] At 2:37 a.m., he said that he formed his grounds to believe that the accused was impaired by alcohol and had been operating his motor vehicle. He did not happen to say that he believed that the accused had been operating his motor vehicle in the previous three hours.

However, he placed the accused under arrest and asked him if he understood to which the accused indicated that he did understand. [ 39 ] Eventually in this trial, Mr. Starkman conceded the impairment by alcohol of his client at the time of his arrest by P.C. Newham. Therefore, I do not intend to summarize in detail the evidence surrounding the officer’s observations of the accused as much as I would if that was still an issue. [ 40 ] Additionally, during portions of this trial, as my

summary will indicate shortly, an ad hoc

Section 10(

b) Charter issue was raised by Mr. Starkman and also a potential voir dire with respect to utterances made by the accused while en route to the station in P.C. Newham’s cruiser. These issues eventually evaporated and I will indicate the exact point at which they did later in this judgment. [ 41 ] P.C. Newham made his Section 254(3) demand for samples of breath from Mr. Singh at 2:43 a.m., and then escorted the accused to his vehicle. He conducted the usual search incidental to arrest.

He did say that while he and the accused were walking to the cruiser, the accused became very emotional and began to cry and make certain utterances to him. Then the officer said that the accused was cooperative but was very emotional and so he carefully explained the arrest procedure to the accused and told him that he’d have a chance to call a lawyer when they got to the police station if he so desired. Just before he left the scene with the accused to drive to the station, he said that Mr. Singh blurted out “I’m guilty.

How long is this going to be on my record?” [ 42 ] The officer said that he arrived at number 12 division police station in Milton at 3:00 a.m., with the accused and after the booking procedure was complete he turned over custody of Mr. Singh to the qualified intoxilyzer technician at 3:22 a.m. The name of that officer is Constable Kent. [ 43 ] The Crown introduced as Exhibit number 2 on this trial through this officer the certificate of a qualified intoxilyzer technician which contains the results of the breath samples of Mr. Singh. Mr.

Starkman took no issue with the form of notice pursuant to Section 258(7) of the Code and the copy that was given to his client at the station by the officer. Although the certificate of analysis also contains a Section 258(7) notice at the bottom of it, the Crown chose also to introduce a separate free-standing notice of intention to produce the certificate of analysis against Mr. Singh at this trial as Exhibit number 3 on this trial. [ 44 ] The Crown referred the PC Newham again to the conversation that he had testified about having with the accused as he approached him in the driver’s seat of his vehicle.

The officer said that after he asked the accused to extinguish his cigarette, he asked him if he was injured and at that time Mr. Singh said to him that he needed a tow to get out of the ditch. The Crown asked the officer if he had said anything to the accused before the accused made that statement about needing a tow and P.C. Newham said “I don’t believe so. I have nothing noted that I can or that I recall specifically.” [ 45 ] As soon as that evidence came out a discussion occurred amongst Ms. Tasson, the Court and Mr.

Starkman about whether or not that utterance should be included as part of a voir dire to determine the admissibility for the truth of its contents or whether or not it should be confined to a pre-arrest statement and only be admissible insofar as it contributed to the officer’s reasonable and probable grounds for his arrest in accordance with what Mr. Starkman submitted is the prevailing common law on the point.

[ 46 ] Ms. Tasson took the position that the statement was properly admissible as res gestae . Her position was that the officer did not elicit the statement. It was simply a response given by the accused when he was asked if he was injured as a gratuitous comment and therefore would be properly admissible as a res gestae statement for the truth of its contents. At this point, Mr. Starkman suggested that the Court simply leave the determination of that issue until the end of the case and as Mr.

Starkman put it “Just wait until the end, we’ll sort out what’s admissible, what’s not.” The Crown agreed with that suggestion and the Court proceeded on that basis. [ 47 ] In cross examination by Mr. Starkman the officer agreed that there was no accumulation of snow on the road when he arrived. However, he said that he expected he would be able to see accumulation of snow in the tire treads in the field because it had just begun to snow and it was “really light.” He agreed that it had not been snowing at 6:00 p.m. when he started his shift and he also did not make a note of the exact time when it began to snow.

He therefore agreed with Mr. Starkman’s suggestion that it could have begun to snow perhaps just five minutes before his arrival at the scene. He also agreed that since he didn’t know exactly how long the snow in the field had been there it was possible that it could have been there for weeks. [ 48 ] Mr. Starkman then confirmed with the officer that he had never received any training as an accident reconstruction witness.

Therefore, when he was giving his opinion to the Court about how recently he believed the vehicle had been driven into the field, he was just relying on his personal life experience and not on any form of accident reconstruction training. [ 49 ] The officer then gave some evidence about seeing footprints at the back of the vehicle and comparing them to the shoes that the accused was wearing and he put two and two together and concluded that the accused had at some point walked to the back of the vehicle in the vicinity of the candy wrappers that he had learned were piled on the ground there.

However, he did confirm for Mr. Starkman that he had seen footprints coming from the driver’s side of the driver’s door of the vehicle. [ 50 ] Mr. Starkman then referred him to a question that had been asked by the Crown attorney which was “What is it that allows you to come to the conclusion that it was – that the driving had occurred recently?” Mr. Starkman referred the officer to his evidence in chief in response to that question which had been that he had not seen any accumulation of snow in the tire tracks but that he had gone on to say, “Plus there were no footprints leading away from the vehicle.” Mr.

Starkman attempted to clarify what appeared to be a bit of an anomaly in the officer’s evidence by putting it to the officer that he understood him to be testifying now in cross- examination that there was nothing about footprints that he had observed that led him to decide one way or another exactly when the vehicle had been driven into the ditch or field. The officer agreed absolutely with that suggestion. Mr. Starkman then suggested that the officer was relying exclusively on the fact that there wasn’t any snow covering the tire tracks that he could observe in the field and P.C.

Newham said that that was an important part of his grounds. [ 51 ] Mr. Starkman then referred him back to his evidence which he had given in chief that the accused was sitting in the driver’s seat of the vehicle when he first approached him and the officer confirmed that evidence. At this point Mr. Starkman addressed the Court with respect to the issue of whether or not the Crown was going to be seeking to rely upon the Section 258(1)(

a) presumption of care and control because the accused was found in the driver’s seat. Ms. Tasson informed the Court that the Crown was not relying on the fact that the accused was sitting in the driver’s seat of the vehicle when found by the officer for the purpose of the Section 258(1) (

a) presumption. The Crown would be simply seeking a finding by the Court that the accused was in fact seated in the driver’s seat of the vehicle with the engine running when approached by P.C. Newham. [ 52 ] Mr. Starkman then referred the officer to physical observations that he had made of the accused at the scene and he took him through the evidence of the accused being escorted to the cruiser. However, once again, I point out that ultimately Mr.

Starkman conceded the issue of physical impairment by alcohol on the part of the accused and I am therefore not going to summarize in detail any further evidence on that subject. I will simply say that P.C. Newham did testify that the accused’s speech remained the same throughout the evening in the sense of his being emotional, crying, and somewhat slurring his words and even down at the police station after he became a little bit more composed. [ 53 ] After Mr. Starkman completed his cross examination of the officer, Ms. Tasson re-examined him.

Her re-examination consisted largely of referring the officer to the contents of, and timing of, certain utterances made by the accused to him during the course of his dealings with the accused after approaching him in the driver’s seat of the vehicle. After these questions another lengthy discussion occurred amongst Ms. Tasson, Mr. Starkman and the Court about whether or not the Court would like to enter into an ad hoc voir dire to determine the admissibility of some of these utterances and basically enter upon an ad hoc

Section 10(

b) Charter voir dire . In an informal way that was actually done and the Crown was allowed to cross examine in the sense of questioning with latitude P.C. Newham on certain of these issues in accordance with the convention when conducting a blended trial and Charter voir dire . Ms.

Tasson then asked some additional questions of the officer concerning the circumstances surrounding the utterances and I’m not going to summarize them because of the ultimate resolution of these issues that both counsel informed me they had reached when the matter resumed on the next trial date after February 3 rd , which was April 12 th , 2012. [ 54 ] Also in keeping with the conventional approach to a blended Charter issue and trial on the merits, Mr. Starkman was then permitted by the Court to ask questions in cross examination of P.C. Newham on the circumstances surrounding these utterances.

Suffice it to say that the sum total of that cross examination produced the result that the officer conceded that he really couldn’t be certain as to whether or not some of these utterances may have been prompted by questions of his own because he really couldn’t conclude anything to the contrary from his own notes on this incident. [ 55 ] Mercifully, this concluded the evidence of P.C. Newham and the Crown indicated that the last witness she would be calling would be the qualified intoxilyzer technician, P.C. Paul Kent. [ 56 ] P.C.

Kent testified that he was a qualified intoxilyzer technician at the time although he has since relinquished that qualification. Mr. Starkman took no issue with his qualifications at the relevant time for this particular case. He testified that at 2:43 a.m. he had been investigating an unrelated incident when he was dispatched to attend the Milton police detachment to set up the intoxilyzer in anticipation of Mr. Singh being brought in for breath testing. [ 57 ] During his evidence in chief, on consent, the Crown played for the Court a video of the interaction between P.C. Kent

and Mr. Singh in the Milton detachment intoxilyzer room. The DVD video was then filed as Exhibit number 4 in the trial. [ 58 ] My own observations of the video led me to conclude that the accused’s speech sounded a little bit slurred at times although he was as garrulous as he was slurred and of course I have no idea of what his normal speech pattern would be. In any event, I repeat that Mr. Starkman is taking no issue with physical impairment by alcohol of the accused. On the video Mr.

Singh clearly denied that he was ever driving the motor vehicle that ended up in that field on that night and he denied being in the driver’s seat. He also denied drinking any alcoholic beverages at all. P.C. Kent asked what I would describe as countless additional questions about his alcohol consumption that evening even though Mr.

Singh continually stated that he had not been drinking at all and that he was not a person who drank alcohol ever. [ 59 ] At one point in the video he clearly stated that drinking alcoholic beverages “is for losers.” He said that it tends to bring society down when people drink alcohol. [ 60 ] As I said earlier, he was quite garrulous and almost acting in a beau vivant fashion and at one point was seen to be waiving at the video camera in the breath room for the benefit of all of us who would be watching later. [ 61 ] After the playing of the video the Crown asked the officer why he would have asked so many questions of the accused about his alcohol consumption when it was obvious that the accused was denying drinking any alcohol at all and, of course, the officer said he did so because he didn’t really believe that the accused hadn’t been drinking especially after he managed to obtain the first reading on the intoxilyzer which is always available to the technician before this interview takes place between the two tests. [ 62 ] The Crown also asked him why he asked the accused if he could explain why he had been unsteady on his feet.

The officer said he just wanted to see if he could give an explanation other than alcohol just to give him every possible opportunity. [ 63 ] P.C. Kent concluded his examination in chief by saying that the accused had been unusually happy in his presence which the officer said in his experience is often indicative of somebody who has consumed alcohol and a large amount of alcohol. Ms. Tasson then confirmed with Mr. Starkman that there is no issue whatsoever being taken with the certificate of analysis or the notice to produce it at trial. [ 64 ] In cross- examination by Mr. Starkman P.C.

Kent said that he actually did not believe that the accused speech was slurred when he was dealing with him and he was certainly not unsteady when he was walking in and out of the breath room. [ 65 ] Following that breath cross- examination Ms. Tasson closed the case for the Crown and Mr.

Starkman informed the Court that he would not be calling a case for the Defence on either the merits or whatever ad hoc Charter motion might be on the record outstanding at that time in the trial. [ 66 ] After consulting with the trial co-ordinator, a continuation date was fixed of April 12, 2012, for counsel to make final submissions on both the ad hoc Charter application and the merits of this trial. [ 67 ] At the outset of proceedings on April 12 th , Ms. Tasson for the Crown abandoned her attempt to introduce the utterances of the accused to P.C.

Newham while en route to the station in his cruiser for the truth of their contents. By this decision she obviated the necessity of a Court ruling on a voluntariness voir dire or on a

Section 10(

b) Charter application with respect to those utterances. [ 68 ] Mr. Starkman then informed the Court that he was conceding the admissibility of the utterance made by the accused immediately after he was arrested and just before he was placed into the officer’s cruiser at the scene. This was when he said to P.C. Newham that he was guilty and he asked how long it would be on his record. [ 69 ] As I understood both counsel at the time, I believe that I am still required to rule on the Crown’s argument that the accused’s utterance to P.C.

Newham that he needed a tow to get out of the ditch after he was asked if he was injured by the officer is admissible as being part of the res gestae . POSITION OF THE CROWN [ 70 ] Given that the accused did not testify, Ms. Tasson argued first. She submits that the Court can and should infer from the accused’s utterance immediately after his arrest of “I’m guilty. How long will this be on my record?” was an admission by him of having driven his SUV vehicle into the ditch.

She therefore argues that that evidence should permit the Court to find that the Crown has established that the accused was in the care or control of his motor vehicle at the time when he was operating it and drove it into the ditch. However, that particular admission is acknowledged by the Crown not to include an admission of the time of his last driving the vehicle which would be when he put it in the ditch. [ 71 ] With respect to the evidence of Ms.

Gaeten wherein she stated that the accused had told her he was in a lot of trouble and asked her for help from a friend and her to tow him out the Crown obviously argues that this evidence is capable of a conclusive inference by the Court that the accused had made an admission to her that he had driven his vehicle into the field.

In addition, he had used the words, “I’m in a lot of trouble.” The Crown submits that although not each and every word of what she said to the Court about the accused offering to pay $50.00 to her if she could help him to get the vehicle out had been included in her police statement, nevertheless the gist of what she said to the Court was included in the police statement. She asked the Court to carefully review the evidence Ms. Gaeten gave on cross- examination on that point to Mr. Starkman and arrive at that conclusion. [ 72 ] The Crown then referred the Court to the evidence of P.C.

Kent, the intoxilyzer technician, and she asked the Court to review Exhibit number 4, the video of the interaction between P.C. Kent and the accused in the intoxilyzer room at the station. The Crown submits that the Court should conclude from reviewing the video that the accused said to P.C. Kent that ten minutes after the accident with his vehicle the police arrived. Shortly thereafter he said on the video, “I don’t know...I should have said no comment...can I change my answer?”

[73] The Crown also referred the Court to the evidence of Ms. Gaeten where she estimated that it had been five to ten minutesfor the police to arrive after she had arrived on the scene. The Crown therefore argues that there is sufficient evidence before the Courtfor the Court to find that the Crown has established beyond a reasonable doubt that the accused actually drove his vehicle into the ditchat approximately 1:45 to 2:00 a.m. The Crown therefore submits that that since the first breath sample was taken at 3:50 am it was wellwithin the two hour time period requirement for the Crown to benefit from the Section 258(1)(

c) presumption on the Section 253(1)(b)count. THE CARE OR CONTROL ISSUE [74] Ms. Tasson confirmed that she was not seeking a ruling by the Court that the Section 258(1)(

a) presumption appliesagainst the accused in this case. She referred the Court to the evidence of Ms. Gaeten who had first observed the accused outside of hisdriver’s vehicle when he ran up to her to ask for help and he only re-entered the vehicle in the driver’s seat when she told him to do sowhile she actually was just asking her dispatch to call the police. The Crown referred the Court to the decision of R. v. Larocque 2010ONCA 43 , 2010 ON CA 43 a judgment issued on January 21, 2010, on an appeal from a conviction that had been entered byJustice W.O.

Whalen of the Ontario Superior Court of Justice on December 12, 2008. [75] The Crown most certainly submitted that the accused’s utterance to P.C. Newham at the scene immediately after theofficer asked him if he had been injured when he told the officer he needed a tow to get out of the ditch should be ruled by the Court tobe part of the res gestae and therefore admissible for the truth of its contents as opposed to being confined to use by the officer for theformation of his reasonable and probable grounds for arrest.

The Crown urges the Court to find that this utterance was totally gratuitouson the part of the accused and had nothing to do with the question that was asked by the officer about any injuries that he may haveincurred. [76] Again with respect to Ms.

Gaeten’s evidence about the accused having asked her for help and offering to pay $50.00 ifshe could help him get out of the ditch even if all of those words were not in her police statement, the Crown urges the Court to findupon a careful assessment of her status as a witness that she was an unbiased witness and that she was not the least bit uncertain aboutthat evidence regardless of whether or not she had given all of those words to the police shortly after the incident. She was not shaken oncross examination argues the Crown. IMPAIRMENT BY ALCOHOL OF THE ACCUSED [77] Given Mr. Starkman’s concession that Mr.

Singh’s ability to operate his motor vehicle was impaired by alcohol and or hisability to be in care or control of his vehicle was impaired by alcohol at the time of his arrest and at all times thereafter while beingprocessed by the police on these charges the Crown only offers the supplementary submission that there is no evidence from which theCourt could infer that the accused had consumed any alcohol after the driving of his vehicle into the ditch. I agree and Mr.

Starkman didnot raise such an issue. [78] For all of these reasons the Crown submits that the Court should conclude that the Crown has established beyond areasonable doubt either that the accused, while operating his motor vehicle, drove it into the ditch at the Britannia and Tremaineintersection within two hours of the first breath sample, or in the alternative, that he was in the care or control of his motor vehicle at thetime of his arrest by P.C. Newham from an analysis of the totality of the evidence.

Given the defence admission of his impairment byalcohol to operate his motor vehicle or be in the care or control of it at the time of his arrest and thereafter the Crown submits that both ofthese charges have been proven beyond a reasonable doubt and the accused should be found guilty as charged. POSITION OF THE DEFENCE The last moment of driving issue: [79] Mr. Starkman submits that the only evidence of the last time of driving by Mr. Singh was his own evidence to the officerthat the first person had arrived at the scene about 10 minutes his driving into the field. However, Mr.

Starkman submits that the courtshould consider that Mr. Singh was admittedly intoxicated when he made that utterance and also that within moments he said to thesame officer, “I don’t know…I should have said no comment.” “Can I change my answer?” Mr. Starkman submits that the court shouldnot be able to rely upon that type of an utterance given and taken away in almost the same instance by a drunken individual as beingsufficiently reliable to satisfy the Crown’s onus of proving beyond a reasonable doubt the last time of driving by the accused if indeedthe Crown wishes to avail itself of the Section 258(1)(

c) presumption on the Section 253(1)(

b) count. He argues that without that lasttime of driving being clearly established the Crown looses the s. 258(1)(

c) presumption and therefore in the absence of experttoxicological evidence, which the Crown did not call in this case, the court has no evidence that the accused’s blood alcoholconcentration was greater than the legal limit of 80 milligrams in 100 milliliters of blood at the time of his last driving his motor vehicle,whenever that may have been. [80] Mr. Starkman also submits that this missing element in the Crown’s case is fatal on the s. 253(1)(

a) count of operating amotor vehicle while his ability to do so was impaired by alcohol. [81] Mr. Starkman specifically submits to the court that the statement made by Mr. Singh to the qualified Intoxilyzertechnician, P.C. Kent, that he had been at the Swiss Chalet in Milton earlier in the evening consuming some alcoholic beverage addsabsolutely nothing to the Crown’s difficulty with respect to this particular element of the alleged offence. [82] Furthermore, Mr. Starkman submits that the words spoken by the accused to P.C.

Newham, “I’m guilty”, must beconsidered in the context of the information that he had been given by the officer to him when he arrested him for impaired drivingsimpliciter. In other words, Mr. Starkman refers to the evidence of P.C. Newham wherein it is clear that he did not provide anyinformation to Mr. Singh at that point about whether or not he was being arrested for impaired operation of his motor vehicle byalcohol. In the confused and drunken state of Mr. Singh at the time Mr.

Starkman submits that those words should not amount to somekind of evidentiary proof to benefit the Crown in its burden to establish the elements of these offences beyond a reasonable doubt.

The care or control issue: [83] This is the more interesting issue in this trial submits Mr. Starkman and he argues that the precedents relied upon by theCrown must be carefully examined in the context of the evidence in this particular case. For example, in R. v. Amyotte[2009]O.J.No.5122, Mr. Starkman points out that the accused in that case was found in the driver’s seat and the Crown relied upon theSection 258(1)(

a) presumption of care and control by virtue of that fact. In this case as we know, Ms. Tasson specifically did not relyupon the Section 258(1)(

a) presumption simply because Mr. Singh was found in the driver’s seat of his motor vehicle after Ms. Gaetenhad ordered him to occupy it after she had spoken with him on the road and while she was waiting for response to her request for policeassistance. In Amyotte supra the learned trial judge had found that the accused had assumed the care or control of the vehicle when heoccupied the driver’s seat and his statements to the police had established that he did so intending to get the truck unstuck. The trialjudge therefore found that it was reasonable to find that the accused had not rebutted the Section 258(1)(

a) presumption of care or controlby virtue of his occupation of the driver’s seat of the motor vehicle when he was found by the police. Clearly, argues Mr. Starkman, thatis not the case here. [84] Mr. Starkman relies heavily upon the seminal case of R. v. Wren (ON CA), 144 C.C.C. (3d) 374, adecision of the Ontario Court of Appeal upholding the acquittal imposed by Ontario Court of Justice B. E. MacPhee after that acquittalhad been reversed on a

summary conviction appeal. Mr. Starkman asks the court to find that in the context of the facts in this particularcase at bar it a binding authority on the issue of whether or not care or control can be proven by the Crown when the vehicle is deemedto be inoperable, and the accused as neither the intention or has engaged in any acts which could comprise the actus reus of the elementof care or control or the risk of setting the vehicle in motion. [85] In support of his reliance upon Wren’s well established principles, Mr.

Starkman refers the court to the evidence of P.C.Price wherein he testified that the right tire was flat and loose on the rim in chief and in cross-examination he agreed that the vehicleappeared to be inoperable to him in that condition. In addition there is the evidence of Ms. Gaeten who agreed with the suggestion thatthe vehicle appeared to be inoperable and not drivable at the time when she saw it. I will deal with certain passages from Wrenspecifically in my analysis. [86] Mr. Starkman argued that the accused’s words that he wanted a tow truck which Ms.

Gaeten testified he had said to hercould simply have meant that he just wanted to have his vehicle towed somewhere to be repaired. He also points out to the court thatthere is no evidence that the accused had actually called a tow truck before Ms. Gaeten’s arrival. For that reason, Mr. Starkman submitsthat Mr. Singh’s situation is totally distinguishable from R. v. Larocque supra and also from the Ontario Court of Appeal decision of R.v. McMillian (ON CA), [2005] O.J. No. 1905.

In the latter decision, the accused after driving his vehicle into asnow bank, rendering it inoperable at that point in time, had called a tow truck in order to extricate the vehicle. The Court of Appealfound that although he had testified that he did not intend to extricate the vehicle himself there was a shovel handy to him and that had heput his mind to it he could have shoveled his vehicle out.

The trial judge found under those circumstances that he was in the care orcontrol of the motor vehicle while awaiting the arrival of the tow truck and that decision was upheld by the Court of Appeal. [87] In addition, with respect to Ms. Gaeten’s evidence about the accused asking her if she could get a friend to help tow himout, Mr. Starkman reminds the court that he challenged Ms. Gaeten’s evidence in cross-examination on that point because she had madeno specific note of those words in her police statement. [88] Finally, Mr. Starkman submits that the evidence the court should accept is the fact that Mr.

Singh was not occupying thedriver’s seat when found by the police with any intention of setting his vehicle in motion because at that point he had simply beeninstructed to resume his position behind the wheel in the driver’s seat by Ms. Gaeten while she waited for help to come after she hadpretended to him that that was what she was doing. Mr. Starkman concludes by simply stating, as far as he is concerned, and he urgesthis upon the court, R. v. Wren supra is the prevailing common law on this subject and that in the fact situation of the case at barinvolving Mr.

Singh the court should find that there was no risk or danger to the public of Mr. Singh setting his vehicle in motion underall of the circumstances in the context of the totality of the evidence. [89] In reply Mr. Tasson simply argued that if the court accepts Ms. Gaeten’s evidence about the accused’s utterances to herrequesting help from her and one of her friends to tow his vehicle out of the ditch, then the court should obviously conclude that hepossessed at that point the necessary intention to set the vehicle in motion and therefore that is evidence of the required actus reus of theoffence.

Regardless of whether or not the right front tire was flat, the Crown argues that the vehicle could still have been set in motionon the highway once towed out and/or the flat could be repaired. The Crown argues that it is certainly not uncommon for people tochange tires on motor vehicles and the court should be able to take judicial notice of the fact that practically every vehicle on thehighway is equipped with a spare tire. ANALYSIS The Res Gestae issue [90] In The Law of Evidence in Canada 1995 edition, the learned authors John Sopinka, Sydney N.

Lederman and Allan W.Bryant stated at page 236 “There are two basic situations in which the courts have properly invoked the res gestae doctrine to admitutterances offered for their truth.

They may be categorized as: declarations accompanying and explaining relevant acts and, spontaneousexclamations.” The learned authors also point out that Canadian courts have had difficulty with respect to the degree of proximity andtime between the act and making of the statement so as meet the requirements of contemporaneity when considering the spontaneousexclamation as potentially admissible under the doctrine of res gestae.

See page 258 ibid. [91] At page 260 the learned authors, after considering a number of English cases on the subject state: These authorities show ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in

such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused. [ 92 ] At page 262 the learned authors quote with approval from a English House of Lords decision cited as R. v. Andrews 1987 AC 281 . The House of Lords has provided a set of guidelines to assist a trial judge in applying the res gestae exception to the hearsay rule in a criminal case. In R. v.

Andrews the House of Lords held that it was quite proper for the trial judge to have admitted the victim’s statement to the police in which he names his assailants shortly after being attacked. He had been attacked by two men who had entered his apartment and received knife wounds which ultimately proved to be fatal. After the attack he managed to obtain some assistance and the police arrived within minutes, at which time he informed them of the identity of his attackers. Two months later, the victim died as the result of his injuries.

At the trial of the two accused, the Crown sought to have the deceased’s statement admitted, not as a dying declaration but as evidence of the truth of the facts that he has asserted, namely, that he had been attacked by the two accused and that the statement was therefore admissible in the circumstances as evidence within the res gestae exception. The Court agreed and held that the circumstances here were such as to satisfy the trial judge that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim so as to exclude any possibility on his part of concoction or distortion.

The statement was made in conditions of approximate but not exact contemporaneity justifying its admissibility. In coming to this conclusion the House of Lords set out five fundamental guidelines that a trial judge should take into account in determining whether the res gestae doctrine is applicable to the circumstances in question. [ 93 ] In my view, the first three guidelines are most relevant to the issue in the case at bar. 1. The primary question which the judge must ask himself is – can the possiblity of concoction or distortion be disregarded? 2.

To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection.

In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity. 3. In order for the statement to be sufficiently ‘spontaneous’ it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event.

Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading. [ 94 ] I am satisfied that Mr. Singh’s response to the question by P.C. Newham of whether or not he was injured was in no way prompted by that particular question by the person in authority.

The contents of his answer were factually totally unresponsive to the question and in my view, smacked of spontaneity prompted by the excitement of the fact that he had driven his vehicle into the field a short time before speaking with P.C. Newham. Although the exact times are not, in my view, established beyond a reasonable doubt of exactly when he drove that vehicle into the field, I am perfectly satisfied from the totality of the evidence that I can conclude that it was a relatively short time before P.C. Newham asked him that question. I therefore find that the accused’s utterance to P.C.

Newham that he needed a tow to get out of the ditch after P.C. Newham asked him if he was injured is properly admissible evidence for the truth of its contents as an example of the category of admissible evidence known as res gestae . Time of Mr. Singh’s last driving or operation of his motor vehicle before driving it into the ditch: [ 95 ] After carefully considering the totality of the evidence in the case for the Crown I am persuaded to a level of a balance of probabilities by the Crown’s argument that Mr.

Singh did indeed drive his motor vehicle into that ditch at a point in time that would allow the Crown to avail itself of the Section 258(1)(

c) evidentiary presumption with respect to the subsequent breath tests establishing his B.A.C. at that particular time. However, I am not satisfied on a standard of proof beyond a reasonable doubt on that element. Therefore I cannot agree with the Crown that she has established all of the necessary elements of the Sections 253(1)(

a) and 253(1)(

b) counts based upon that evidentiary position. The care or control issue: [ 96 ] Therefore I will now deal with the Crown’s alternative argument that I should find beyond a reasonable doubt that the accused was in the care or control of his motor vehicle as that term has been defined by common law, not only at the point in time when Ms. Gaeten located him and his vehicle in the ditch, but also at the time when P.C. Newham arrived to investigate the incident. IMMOVEABLE VEHICLES [ 97 ] In R. v. Amyotte supra , Mr.

Justice Durno considered the scope of the meaning of the term immoveable vehicles at paragraphs 109 and 110: While the police officers and trial judge referred to the truck as “inoperable,” there was no evidence it was inoperable, in the sense that it could not be driven. The truck was immoveable or immobilized, being stuck on the tree and/or in the mud. It was incapable of being

moved without the assistance of a tow truck. There was no evidence that the truck could not have been driven had it become unstuck. The investigating officer’s first description of the truck’s condition was that it was inoperable in terms of getting it out of that spot. Thetruck had been driven up the hill. It became stuck against a tree. The hood remained warmer than the air. The only reasonable inferenceis that the vehicle was drivable, but temporarily immoveable without the assistance of a tow truck.

I am not persuaded that an immoveable vehicle in itself defeats the presumption or removes an essential element of care or control. Ireach this conclusion relying on several care or control cases from the Court of Appeal in which immoveable vehicles were involved andconvictions entered. [98] At paragraph 112, Mr. Justice Durno provided another example from the Ontario Court of Appeal: In R. v. MacMillan, (ON CA), [2005] O.J. No. 1905 (C.A.) the accused had driven his car into a ditch, leaving it halfon the road and half in the ditch.

He left the vehicle, called a tow truck and returned to the driver’s seat to await the tow truck. The trialjudge found he had rebutted the presumption. The Court of Appeal upheld the trial judge’s finding that MacMillan created a risk ofdanger with the possibility that he would have changed his mind and driven after the tow truck driver extricated the car or inadvertentlyset the vehicle in motion. [99] In Amyotte ]supra], Mr. Justice Durno determined that an immoveable motor vehicle in itself does not preclude aconviction for care or control. [100] At paragraph 95 of Amyotte, Mr.

Justice Durno stated the definition for the mens rea and the actus reus for care or controlof a motor vehicle as follows: The mens rea for care or control is the intent to assume care or control of a motor vehicle after the voluntary consumption of alcohol or adrug. The actus reus is the act of assumption of care or control when the voluntary consumption of alcohol or a drug has impaired theability to drive: R. v. Toews, (SCC), [1985] 2 S.C.R. 119, at p. 123-4. [101] R. v. Wren supra was a non-presumption case as is the case at bar.

At paragraph 16 of the Ontario Court of Appealdecision, Madame Justice Feldman, after reviewing and considering the provisions of R. v. Toews (SCC), 1985 2 S.C.R. 119 and R. v.

Ford (SCC), 1982 1 S.C.R. 231, stated “I am satisfied that the result of these cases and others that havefollowed them is that in order to establish care or control of a motor vehicle, the act or conduct of the accused in relation to that motorvehicle must be such that there is created a risk of danger, whether from putting the car in motion or in some other way.” [102] At paragraph 28 Madame Justice Feldman stated the conclusion of the Ontario Court of Appeal and upheld the trial judgein Wren.

It was open for the trial court to find that when the police found the respondent, although he was impaired and had not relinquished custody of his vehicle, he did not meet the test for the actus reus of care or control set out in Ford and Toews, modified in accordance with the explanation in Vansickle: performance of some act or series of acts which involve some use of the car or its fittings or equipment, or some course of conduct associated with the vehicle which would involve the risk of putting the vehicle in motion or in some other way to become dangerous, which is what the

section is designed to prevent. [Emphasized words added.] FINDINGS OF FACT ON THE CARE OR CONTROL ISSUE [103] Mr. Starkman argued that I should not accept the evidence of Paula Gaeten wherein she stated that the accused had askedfor her help by saying that he was in a lot of trouble and asking if she could get him out of the ditch and in particular asking if she couldget one of her buddies to tow him out and that he would pay $50.00 to her if she would comply with that request. He based that argumentupon the answer he received from Ms.

Gaeten in cross- examination when she agreed with him that there was nothing in her policestatement to say that she had told the police that the accused had asked her to pull his vehicle out of the ditch. It is a fact that Ms. Gaeten

conceded that those exact words were not in her police statement. [ 104 ] However, she refused to agree with Mr. Starkman that her evidence at trial to that effect would not be as accurate as her recollection of events at the time that she gave her statement in which that particular component was ommitted.

As she put it, she said “maybe my, the words aren’t exact the way it should be, but yes.” For clarification the Court asked her if she was stating in her evidence on February 3, 2012 that the accused in fact had asked to be towed out and offered to pay $50.00 for the privilege and she said “absolutely.” At that point in her evidence Mr. Starkman set the record completely straight by pointing out to Ms. Gaeten that what she had actually told the police on this subject was “I’ll pay you $50.00, $100.00 to help me, I’m in a lot of trouble.” [ 105 ] Based upon that evidentiary exchange between Mr. Starkman and Ms.

Gaeten and also after having considered her status as a completely independent witness in my view who had been approached by the accused as opposed to the other way around, I accept her evidence at trial that the accused approached her and asked if she could help him saying that he was in a lot of trouble and that he asked her to help get him out and that he would pay $50.00 if she could get one of her buddies to tow him out. I find that the words that she used to the police, albeit absent the reference to a request to tow him out of the ditch were tantamount to her evidence provided in court.

To be more specific I find that the mere omission of that phrase does not drastically alter in my view the essence of what she was trying to tell the police. From a common sense stand point it is rather difficult to imagine what other object the accused could have had in mind of assistance that he was seeking from Ms.

Gaeten when he asked her to help him for the sum of $50.00 or $100.00 because he was in a lot of trouble under the totality of the circumstances revealed by the evidence at that time. [ 106 ] In addition, having found in favour of the Crown’s res gestae argument I also of course now find as a fact that the accused told P.C. Newham that he needed a tow truck to help him get out of the ditch in response to the neutral question asked by the officer inquiring after the state of his injuries if any when he first approached him. [ 107 ] Although not having to meet the evidentiary burden of the Section 258(1)(

a) presumption because of the Crown’s position and also quite frankly because of Ms. Gaeten’s evidence that she actually instructed Mr. Singh to return to his motor vehicle and wait for the help which she had pretended to by trying to obtain for him, nevertheless the accused may still be found of course to have been in the care or control of his motor vehicle in accordance with the principles set out above from R. v. Amyotte supra and R. v. Wren supra . [ 108 ] In R. v.

Larocque supra the Ontario Court of Appeal found that there was more than adequate evidence to support the trial judge’s factual findings that led inextricably to his conclusion that the appellant created a risk that he would put the car in motion while he was impaired and thereby create a danger to the public or himself. At paragraph 2 the Court stated “that evidence included the appellant’s repeated request to the passerby for a rope with which to pull the car back on the road.

The trial judge also found as a fact that the appellant was the sole occupant of the vehicle which led to the conclusion that he had control of the keys.” The Operability of Mr. Singh’s Vehicle [ 109 ] Although I do accept Mr. Starkman’s argument that the combined evidence of the two police officers at the scene and also the evidence of Ms. Gaeten clearly establishes that Mr.

Singh’s motor vehicle was not drivable in the sense of being able to on its own be driven out of its resting position in the ditch with its right front tire flat and off the rim in conjunction with the gradient of the ditch embankment facing it, I nevertheless find that that vehicle could have been operated on the adjoining roadways of either Tremaine Road or Britannia Road at the intersection if it had been successfully pulled out of its resting position in that ditch.

I find that there is no evidence to suggest that the vehicle could not have been driven even on the right front flat tire albeit obviously somewhat awkwardly and inefficiently but nevertheless drivable. Furthermore it is well within the realm of plausibility that the accused could have changed the flat tire assuming that his vehicle, as most vehicles do, had a spare tire available to him. Therefore on that basis I am satisfied that the actus reus of care or control with respect to the accused’s vehicle was not in the least impossible.

With respect to the accused mens rea on the element of care or control I am satisfied from his statements which I have found that he made to both Ms. Gaeten and also to P.C. Newham ,in that order, at the scene, establish quite clearly that he possessed the intention of trying to get his vehicle out of the ditch in order to attempt to drive it somewhere. [ 110 ] Specifically I find that the argument made by Mr. Starkman on that point that the Court should consider that the accused’s words about wanting a tow truck when he spoke to P.C.

Newham could have meant that he just wanted to have his vehicle towed to some garage for repair to be totally speculative and without any evidentiary foundation in this trial. At the very least the alternative argument that he could have had his vehicle towed out and tried to drive it away is just as plausible in my view. CONCLUSION [ 111 ] For these reasons I find that the accused was in the care or control of his motor vehicle when he was investigated by P.C. Newham and arrested for this charge at 2:37 a.m.

Given that the first intoxilyzer breath sample was taken at 3:50 am according to Exhibit #2 I find that the Crown is entitled to the benefit of the Section 258(1)(

c) presumption. [ 112 ] Finally since Mr. Starkman has conceded that his client’s ability to operate his motor vehicle or to be in the care or control of that motor vehicle when arrested by P.C. Newham was impaired by alcohol, I find that the Crown has satisfied me beyond a reasonable doubt on all of the essential elements of each of the charges pursuant to Section 253(1) (

a) and 253(1)(

b) of the Criminal Code . Consequently, I find the accused guilty as charged on each count. I should state that in my view care or control is included within a charge alleging operation of a motor vehicle and I believe that Mr. Starkman also conceded that legal issue earlier in this case. [ 113 ] These are my written reasons in support of my orally rendered verdict of guilty on August 14, 2012. I wish to thank both counsel for a very thorough and enlightening presentation of this particular case. Released: September 6, 2012

_________________________________ Signed: “Justice F.L. Forsyth”