R. v. Minhas, 2013 ONCJ 557

COURT FILE No.: Brampton 12-2688 DATE: October 16, 2013 Citation: R. v. Minhas , 2013 ONCJ 557 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — qaisar minhas Before Justice Richard H.K. Schwarzl Heard on July 23 and October 3, 2013 Reasons released on October 16, 2013 Mr. Sean Doyle........................................................................................................ for the Crown Mr.

Thomas Wylie................................................................................................. for the Accused SCHWARZL, J.: 1.0: INTRODUCTION [ 1 .] On February 23, 2012 Mr. Qaisar Minhas was found in an intoxicated condition in the driver’s seat of a damaged motor vehicle which was stopped and idling in the parking area of a gas station in Mississauga. He was charged with care or control of a motor vehicle while impaired and with excess blood alcohol. [ 2 .] The main issue is whether or not the prosecution has proven care or control to the requisite standard of proof. 2.0: EVIDENCE 2.1: P.C.

Gordon Middleton [ 3 .] On February 23, 2012 P.C. Gordon Middleton of the Peel Regional Police was on general patrol in Mississauga. The officer described the roads as clear and dry with a temperature of 3 degrees Celsius. At around 6:30 p.m. he responded to a complaint of a car driving on a flat tire and began looking for it. At 6:39 p.m. he went to a gas station and saw the Accused’s motor vehicle. The engine was running and its daylight running lights were on. There was a significant mark on the pavement leading to the car’s front passenger wheel from the pump area of the station. On inspecting the wheel, P.C.

Middleton noticed that there was no tire on the rim and saw no tire material anywhere. The officer also observed damage to the right front fender. [ 4 .] P.C. Middleton then went to the left side of the car and saw vomit on the ground outside the driver’s door. Peering inside the car, P.C. Middleton saw the dash lights illuminated and the automatic transmission in second gear, at the bottom of the shift assembly. P.C. Middleton did not enter the car nor did he touch the gear shifter. The officer was not sure if the parking brake was on or not but did see a red parking warning light on the dash. Mr.

Minhas was sitting in the driver’s seat. His eyes were closed, but the officer could not tell whether or not Mr. Minhas was asleep, although his head was resting against the door pillar. Mr. Minhas was holding his cell phone in one hand and there were earbuds in his ears. The cell phone screen was illuminated and appeared to have been recently used. P.C. Middleton did not recall whether or not Mr. Minhas was wearing his seatbelt.

[ 5 .] The officer tapped on the window a couple of times without response, following which he opened the door to be greeted by a strong odour of alcohol coming from within the car. P.C. Middleton asked Mr. Minhas, who seemed aware of the officer’s presence, to get out which he did with difficulty as he needed to rock himself to lift his leg. Once outside, Mr. Minhas was still carrying his cell phone but took out his earbuds. His breath smelled of alcohol. Mr. Minhas was unsteady on his feet and leaned on his car for support. [ 6 .] At 6:40 p.m. P.C. Middleton arrested Mr. Minhas for impaired care or control.

When the officer told Mr. Minhas to put his phone on the car roof, the Accused became uncooperative for no apparent reason and resisted by clenching his hand and refusing to release the phone. When told to put his hands behind his back, Mr. Minhas turned away from the officer, who grabbed a wrist and tried to wrest Mr. Minhas’s hands behind him. When trying to escort Mr. Minhas to the police car, Mr. Minhas was unsteady on his feet and was trying to pull away from the officer. P.C. Middleton had to put the Accused to the ground to gain control, but Mr. Minhas continued to struggle until P.C. Carnegie and P.C.

Trainor arrived to help cuff the Accused and put him in a police car. [ 7 .] At 6:42 p.m. P.C. Middleton provided Mr. Minhas with his rights to counsel which, after some brief confusion as to his understanding for his reasons for arrest, Mr. Minhas indicated that he wished to exercise those rights. [ 8 .] P.C. Middelton turned Mr. Minhas over to P.C. Carnegie to continue with the investigation. P.C. Middleton then returned to the car and took photos of its exterior and interior. P.C. Trainor searched the car and showed P.C. Middleton a cola bottle the officer had seized. P.C.

Middleton did not smell it nor did he recall how much liquid, if any, was in the bottle. 2.2: P.C. Victoria Trainor [ 9 .] P.C. Victoria Trainor is a Peel Regional Police officer who arrived at the gas station at 6:40 p.m. to provide assistance to P.C. Middleton. When she got there, P.C. Carnegie was already on scene. [ 10 .] At 6:44 p.m. P.C. Trainor searched Mr. Minhas’ car and found an uncapped and empty cola bottle on the front passenger seat.

The bottle smelled of alcohol, most closely resembling rum. [ 11 .] In searching the car, she did not recall touching any of its fittings including the gear shift, which was in park at the time of her search. She did not know who put the car in park. She did not need to turn the car off because Mr. Minhas was already in custody. 2.3: Mr. Kareem Alfreji [ 12 .] Mr. Kareem Alfreji was working at the gas station when he saw the car driven by Mr. Minhas slowly drive through the lot on a flat, sparking wheel and come to a stop. He noticed the car had front end damage, too. Mr.

Alfreji did not approach the car as he was very busy. However, he did not see anyone get in or out of it until the police arrived some twenty to sixty minutes later. 2.4: P.C. Christopher Carnegie [ 13 .] P.C. Christopher Carnegie is a Peel Regional Police officer who arrived at 6:40 p.m. to assist P.C. Middleton. When he got there, he saw his colleague and Mr. Minhas struggling. P.C. Carnegie helped with the arrest and within two or three minutes of arriving, he placed Mr. Minhas in the rear of his cruiser. While P.C. Middleton spoke to Mr. Minhas, P.C. Middleton went to the Accused’s car where P.C.

Trainor was searching. He and P.C. Trainor saw an empty bottle in the front passenger seat and they seized it. [ 14 .] On first attending the car, P.C. Carnegie noticed that the engine was running and the car was in gear, although he could not recall which one. P.C. Middleton came over to the car and put the gear shift into park at which point P.C. Carnegie returned to his cruiser and attended to the Accused. P.C. Carnegie did not know which officer removed the keys from the car. [ 15 .] Between 6:49 and 6:55 p.m. P.C. Carnegie provided Mr. Minhas with rights to counsel and a breath demand, both of which Mr.

Minhas appeared to understand. He did not, however, appear to understand the caution. [ 16 .] At 6:57 p.m. Mr. Minhas left the scene with P.C. Carnegie for the police station, arriving there at 7:10 p.m. After completing

his call duty counsel at 7:32 p.m. Mr. Minhas was turned over to the qualified technician, P.C. Brandon Strain, at 7:38 p.m. 2.5: P.C. Brandon Strain [ 17 .] Brandon Strain is a Peel Regional Police officer and a qualified technician. Using a properly operating and operated approved instrument, he received two suitable samples of breath from Mr. Minhas and analyzed those samples for their blood alcohol concentration, if any. [ 18 .] The first breath sample was taken and analyzed at 7:49 p.m. the result of which was a blood alcohol concentration of 179 milligrams of alcohol per one hundred millilitres of blood.

The second breath sample was taken and analyzed at 8:11 p.m. which resulted in a blood alcohol concentration of 176 milligrams of alcohol per one hundred millilitres of blood. 2.6: Mr. Qaisar Minhas [ 19 .] At the time of this incident, Mr. Qaisar Minhas was a married man with a young daughter. Mr. Minhas was an experienced professional truck driver. In February, 2012 Mr. Minhas was also having an affair. On February 23, his wife was out with the family car. Mr. Minhas borrowed his father-in-law’s vehicle so that he could meet his girlfriend, who had been pressuring Mr. Minhas to leave his wife.

He told his family that he was going out and would not be home until 10:30 or 11:00 o'clock. [ 20 .] He picked up his girlfriend from her work at 3:00 p.m. and drove with her to a fast-food restaurant where they argued about her demand that he leave his wife. At around 3:15 p.m. he called his friend Kareem Ullah to tell him that he would see him that night. Mr. Ullah runs an auto body shop and he had agreed to help Mr. Minhas put plates on a truck he had recently purchased. [ 21 .] After a couple of hours of arguing, Mr. Minhas dropped his girlfriend off at her house close to 5:30 p.m.

Her home was around 300 metres away from the gas station where he was found by the police about an hour later. Mr. Minhas’ continuing arguments with his girlfriend by phone changed his plan to visit with Mr. Ullah. [ 22 .] Shortly after leaving her house, Mr. Minhas hit a curb, tearing and deflating the front right tire. After getting out and inspecting the damage, he did not repair the tire on the spot because it was a very busy street. Mr. Minhas decided to continue driving on the damaged wheel to a safe place from which he would Mr. Ullah. Mr.

Minhas took two to three minutes to drive the distance to the gas station. When he arrived, he put the car in park, turned off the engine and disposed of the remaining rubber from the broken tire in a nearby dumpster. Mr. Minhas agreed that driving on a flat tire is bad and can damage the wheel rim. His plan was to park the car and call his friend for help, but on arriving he was interrupted by calls from his girlfriend who continued to pressure him, resulting in a fight over the phone. He decided not to call a tow truck because he intended to buy a new tire for himself. [ 23 .] Mr.

Minhas was so stressed by the situation that after being parked for nearly ten minutes he decided to walk to a nearby liquor store where he bought a mickey of rum and a bottle of Coca-Cola. Returning to his car, he drained the coke onto the ground, poured the rum into the pop bottle and drank the rum straight. While he was drinking, he continued arguing with his girlfriend over the phone. [ 24 .] After buying the rum, his plan was to stay in the parking lot talking to his girlfriend and take a taxi later so that he could be home on time. Given (

a) that the car could not be driven home on a flat, (

b) he knew that there was no shop open to come and fix his tire, and (

c) that he had decided to drink, he concluded that the wisest course of action was to take a taxi home and then return to the station the next morning to replace the tire. [ 25 .] When Mr. Minhas returned from the liquor store, he turned on the car and put it in park. He was confident, though not certain, that he also activated the parking brake while he drank and spoke to his girlfriend. He turned it on to stay warm due to the cold night air. [ 26 .] At some point, Mr. Minhas vomited the alcohol onto the pavement beside his driver’s door. [ 27 .] His last call with his girlfriend was at 6:38 p.m. Mr.

Minhas’s cell phone records from the day show that he received six calls between 5:55and 6:36 p.m. He testified that all these call were made by his girlfriend. The same records show that between 5:26 and 6:40 p.m. Mr. Minhas placed thirteen calls to 647-530-9828 which he said was his girlfriend’s number.

[28.] Mr. Minhas’ phone records and those of his friend, Kadeem Ullah, show that at 6:08 p.m. Mr. Ullah called Mr. Minhas on hiscell phone for as long as two minutes. Mr. Minhas told him that he was not coming but did not say why, but did say that he would callhim later. They also discussed an appointment to put on the plates the next day. Mr. Minhas agreed that as an auto body repairman, Mr.Ullah was likely able to have a tire, the time, and the means to help Mr. Minhas repair the flat forthwith. Mr.

Minhas testified that sincehe had no intention of repairing the tire until the next day and since he and his girlfriend continued to argue up until the time the policearrived, it did not occur to him to seek Mr. Ullah’s help at that time. [29.] He first noticed P.C. Middleton when the officer came to his door. Mr. Minhas opened his door in response to the officer’sknocking. Mr. Minhas then got out only to be immediately thrown to the ground for no reason by the officer. Mr. Minhas agreed that hewas very intoxicated and that his memory of events once the police arrived may not be accurate. Mr.

Minhas disagreed that but for theintervention of the police he would have driven home drunk. [30.] Some time after being charged, Mr. Minhas took two photos of the car’s stick shift. The first shows the stick in the parkedposition, which is nearly vertical. The second shows the stick in drive, with the stick back on an angle. 3.0: POSITIONS OF THE PARTIES 3.1: The Crown [31.] The Crown submits that it has proven beyond a reasonable doubt that Mr. Minhas was in care or control of his car at the timeof these alleged offences.

They submit that the statutory presumption of care or control applies and has not been rebutted. They furthersubmit that if the statutory presumption does not apply, the Accused was nevertheless in actual care or control of his car at the relevanttime. 3.2: The Defence [32.] Mr. Minhas submits that he was not in care or control of his vehicle in this case. He submits that he only occupied the driver'sseat for the manifestly innocent purpose of using the car as a waiting room until he could arrange to take a taxi home.

He submits thatwhether or not the statutory presumption applies, there is a reasonable doubt that he occupied the driver's seat with an intention to drive. 4.0: APPLICABLE LEGAL PRINCIPLES [33.] 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. [34.] Obviously, if the person is driving, then care or control is easily proven.

However, in cases such as this where the vehicle isstationary, the prosecution may attempt to prove care or control by acts which involve some use of the motor vehicle or its fittings andequipment, or some course of conduct associated with the vehicle that would involve a risk of putting it in motion so that it couldbecome dangerous: R. v. Toews (1985), (SCC), 21 C.C.C. (3d) 24 (S.C.C.). [35.] 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.). [36.] 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.). [37.] 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.).

[38.] The phrase “care or control” signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a personwhose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk, asopposed to a remote possibility, of danger to persons or property. The risk of danger (as opposed to the intention to drive) is an essentialelement of the care or control offence: R. v. Boudreault, [2012] S.C.J. No. 182 (S.C.C.). [39.] In Boudreault, supra, at paragraph 42, it was held that in the absence of a contemporaneous intention to drive, a realistic riskof danger may arise in at least three ways: (

i) an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind andproceed to do so; (ii) an inebriated person behind the wheel may unintentionally set the vehicle in motion; or (iii) through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property. [40.] The risk of danger must be a realistic risk and is a matter of fact for the trial judge to determine: Boudreault, supra, para 50. The trial judge must examine all of the relevant evidence to this end and may consider a number of factors: R. v.

Smits, 2012 ONCA 524, [2012] O.J. No. 3629 (C.A.) at para. 60 – 65; R. v. Szymanski (2009), (ON SC), 88 M.V.R. (5th) 182 (Ont.S.C.J.), at para. 93. A realistic risk of danger will normally be the only reasonable inference where the Crown establishes impairmentand a present ability to set the vehicle in motion.

To avoid conviction, the Accused will in practice face a tactical necessity of adducingevidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case. [41.] An “alternate plan” to ensure safe passage home may eliminate any realistic risk of danger provided that the plan wasobjectively concrete and reliable and was in fact implemented by the Accused.

Even where, for example, it is certain that a taxi willshow up at some point, if the accused occupied the driver's seat without a valid excuse or reasonable explanation, this alone maypersuade the judge that his judgment was so impaired that he could not foresee the possible consequences of his actions. The converse,however, is not necessarily true.

Even where it is probable that the taxi will appear at some point and the accused occupied the driver'sseat with a valid excuse or reasonable explanation, the trial judge may nonetheless be satisfied beyond a reasonable doubt that thereremained a realistic risk of danger in the circumstances: Boudreault, supra, at paras. 51 - 53. [42.] 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, he must be acquitted.

If the court does not believe the testimony of theAccused but is left in reasonable doubt by it, the Accused must be acquitted. Even if the court is not left in doubt by the evidence of theAccused, he can only be found guilty if that guilt has been proven beyond a reasonable doubt by the evidence that the court has accepted:W.(D.) v. The Queen (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.). [43.] 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 para 65.

The court is entitled to accept parts of a witness's evidence and reject other parts. Similarly, different weightmay be 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 para 44. [44.] 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. [45.] 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 tothe 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.).

In order to reach a guilty verdict, the court must be satisfied on the totality of all the evidencethat there is no reasonable doubt as to the guilt of the Accused on each count. 5.0: ANALYSIS 5.1: Does the statutory presumption apply in this case? [46.] In order for the statutory presumption in section 258(1)(

a) of the Criminal Code to apply, the Crown must prove beyond a

reasonable doubt that the Accused occupied the driver's seat of the motor vehicle while impaired or his blood alcohol concentration was over the legal limit. In this case, there is overwhelming evidence that Mr. Minhas occupied the driver's seat of his automobile at the relevant time while intoxicated and over the legal limit. Indeed, the position of the defence was never otherwise. [ 47 .] I therefore find that the statutory presumption under section 258(1) of the Criminal Code applies in this case. 5.2: Has Mr. Minhas rebutted the statutory presumption? [ 48 .] The burden is on Mr.

Minhas to demonstrate on the evidence that I accept that it was more likely than not that he occupied the driver’s seat of his car for a purpose other than driving. I have taken the evidence as a whole to decide this question. Unlike the prosecution witnesses, I found Mr. Minhas to be unsatisfactory witness whose evidence less than credible. [ 49 .] He testified that for some unexplained reason, his front left wheel not only struck a curb and was deflated, but was shredded in the process. I find it hard to believe that a single impact can both deflate and destroy a tire while driving at municipal speeds.

It will be recalled that his evidence was not that the tire disintegrated on the way to the station, but at the point of impact. This sounds far- fetched. As an experienced professional driver Mr. Minhas knew that driving on a flat for any distance can damage not only the tire but the rim, but did so anyway. [ 50 .] He said that he decided to drive the car to a safe place, being the gas station some 300 meters up the road.

If, as he said, it took two to three minutes to drive this distance, he would have been driving on the road at no more than 10 kilometers per hour, thereby not only potentially obstructing other motorists, but increasing the potential wheel damage every second he drove further. Yet, as shown on the map he introduced, there was a shopping mall right next to the area where he said the damage first occurred. Malls, by design, have ample space to park safely.

He could have easily pulled into the mall in a matter of seconds, thereby achieving his goal of finding a safe place to park while at the same time reducing the risk to other motorists and minimizing the risk of further damage to the car, which was not even his. His decision to ignore the mall and drive the car with a flat tire and sparking wheel for two or three minutes bogles the mind and is not the course of action any reasonable, sober person would take. [ 51 .] Furthermore, Mr. Minhas testified that he bought rum and Coke, yet poured out the Coke in order to replace it with rum.

Why then, buy the Coke at all? Again, this evidence strains one’s credulity beyond the breaking point. His evidence made no sense. I could understand him buying the pop had he said he was intending to mix the rum with it or even if he had said he used the pop bottle to avoid arousing suspicion, but that was not his evidence. Also I found it strange that although a pop bottle was found that smelled of rum, there was no rum mickey located particularly since the only thing he said he threw away was the remnants of the tire. [ 52 .] Mr. Minhas testified that he had called Mr.

Ullah around 3:15 p.m. to make plans for later that evening. This was within minutes of picking up his girlfriend. A careful examination of all the phone records fails to show any such call being made between Mr. Minhas and his friend when he claimed that such a call took place. [ 53 .] Even giving credit to Mr. Minhas’ evidence that he was stressed when Mr. Ullah called him shortly after 6:00 o'clock, I find it unbelievable that he would not tell Mr. Ullah why he was cancelling their plans or that he would not tell Mr. Ullah, a man who runs an auto repair shop, that his tire was destroyed.

This is particularly concerning given his evidence in chief that but for his girlfriend calling his plan was to call Mr. Ullah for help. [ 54 .] The phone records disclose a large number of phone calls between 5:26 and 6:40. However, they do not provide any confirmation of Mr. Minhas’ evidence that they were all made after he parked his car. Some, or all, of the calls could just as easily have been made whilst driving. [ 55 .] I disbelieve Mr. Minhas opened his own car door and I believe that P.C. Middleton did that. Mr. Minhas was highly intoxicated at the scene. He vomited up his alcohol.

His eyes were closed and his head leaning against the door post while supposedly having a conversation. He became resistive without any reason. He was unsteady on his feet. I find that his memory of events was significantly impaired due to the consumption of alcohol. Likewise, I find that his judgment was adversely affected. This is demonstrated by his neglecting to tell his mechanic friend about the wheel damage and his decision to take no action other than to call for a cab home just before his curfew. [ 56 .] I do not believe that Mr. Minhas was parked for nearly an hour as he claimed. Mr.

Alfreji said that the police came twenty to sixty minutes after Mr. Minhas’ sparking car entered the lot. However, Mr. Alfreji was busy and not paying close attention to time and accordingly I find his evidence, standing alone, not to be helpful one way or the other. On the other hand, I find it significant that P.C. Middleton was alerted by radio at 6:30 p.m. for a possible drunk driver driving on a flat tire in the general vicinity. Common sense and experience tells us that someone concerned enough to report such potentially dangerous behaviour will not tarry in calling the police.

After carefully assessing all of the evidence in its totality, I am sure that Mr. Minhas drove into the station closer to the earlier time estimate of Mr. Alfreji. [ 57 .] With respect to the position of the gear shift, I accept the evidence of both P.C. Middleton and P.C. Carnegie that it was in a low forward gear when they each looked into the car. P.C. Middleton has no memory of entering the car, but Carnegie’s uncontradicted evidence is that he did. This makes sense because P.C. Middleton carefully inspected the car and took pictures of it after turning the investigation over to P.C. Carnegie.

He turned responsibility for transporting Mr. Minhas over to P.C. Carnegie so it stands to reason that P.C. Middleton and P.C. Trainor would take charge of the car and ready it for towing. [ 58 .] I find that the parking brake was probably on. This, coupled with the severe damage to the front tire, would explain why the car did not move while in low gear.

[ 59 .] For all these reasons, and on the totality of all the evidence, I find that Mr. Minhas has failed on a balance of probabilities to rebut the statutory presumption under section 258(1) of the Criminal Code . 5.3: Assuming Mr. Minhas has rebutted the statutory presumption, has the Crown proven beyond a reasonable doubt that he was in actual care or control? [ 60 .] After applying the legal principles referred to earlier I find a number of facts that could support the argument, had the statutory presumption been rebutted, that Mr. Minhas was not in actual care or control. They include:

a) The car was in a gas station parking lot, well off the travelled portion of the roadway and out of harm’s way of others using the station;

b) The parking brake was on;

c) The damage to the wheel was such that without be replaced, it would have been difficult to drive very far;

d) He had no immediate intention to drive at the time the police arrived; and

e) He had formulated a general plan to call for a cab home close to 10:30 or 11:00 p.m. [ 61 .] On the other hand, and applying these same legal principles, there are a number of facts that tend to prove actual care or control, including:

a) Despite the damage, the car was driveable in that condition;

b) He was highly intoxicated and obviously confused when the police arrived which increased the likelihood of Mr. Minhas making poor and dangerous choices and decisions;

c) In an intoxicated state he neglected to ask the one person who could easily and promptly have helped him out;

d) The keys were in the ignition;

e) the motor was running;

f) The transmission was in a forward gear;

g) Mr. Minhas had the present ability to set the car in motion;

h) Mr. Minhas was nowhere near his final destination;

i) Mr. Minhas was the driver and sole occupant; and

j) His “plan” was not concrete, as no arrangements had yet been made at all to get home by alternate means. [ 62 .] Balancing all of these cited factors, I find that even if the statutory presumption had been rebutted the Crown has proven actual care or control beyond a reasonable doubt because Mr.

Minhas presented a realistic risk of danger to the public. 6.0: CONCLUSIONS [ 63 .] The prosecution has proven beyond a reasonable doubt that on February 23, 2012 Qaisar Minhas was in care or control of a motor vehicle while his ability to do so was impaired by the consumption of alcohol and while his blood alcohol concentration exceeded the legal limit. Accordingly, verdicts of guilty will be entered on both counts. [ 64 .] Crown counsel will advise me upon which count they seek a conviction. Upon registering such conviction, a judicial stay will be entered on the other count. ORIGINAL SIGNED BY JUSTICE R.H.K.

SCHWARZL _____________________________________ Richard H.K. Schwarzl, Justice of the Ontario Court of Justice