Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Shrikka Arulrasan
Before: Justice Peter C. West
Evidence Heard: July 17, 2014
Oral Submissions Heard: December 17, 2014
Reasons for Judgment Delivered: February 24, 2015
Counsel:
Ms. J. Lee for the Crown
Mr. B. Daley for the Accused
WEST J.:
Introduction
1Ms. Arulrasan was charged on August 24, 2013 with impaired operation of a motor vehicle and operating a motor vehicle while her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. A trial was commenced on July 17, 2014 and two witnesses were called by the Crown, P.C. Devan Horner, the investigating officer and P.C. Venetia Flint, the qualified breath technician. The defence did not call any evidence.
2At the conclusion of the evidence and during oral argument the Crown invited me to register an acquittal on the impaired operation charge given the Crown had been unable to meet its burden of proof beyond a reasonable doubt. Mr. Daley abandoned his s. 8 Charter application respecting whether P.C. Horner had the requisite reasonable suspicion Ms. Arulrasan had alcohol in her body and that she had operated her car within the preceding three hours of P.C. Horner discovering the accident. Mr. Daley further abandoned the "as soon as practical" argument as a result of how the evidence unfolded. The only remaining issue was whether Ms. Arulrasan was in care or control of her motor vehicle at the time the officer came upon the single car accident. The matter was adjourned for counsel to provide written submissions. I heard oral argument on December 17, 2014 and reserved judgment.
Factual Background
3At 4:19 a.m., P.C. Horner was driving southbound on McCowan coming towards Highway 7 when he observed Ms. Arulrasan's vehicle which had collided with a traffic signal pole on McCowan.
4There was major front-end damage to her car and there was smoke or steam coming from under the hood. There were no other vehicles or pedestrians in the area of the accident. The roads were dry and clear. There were two female occupants in the vehicle in the front seats, both wearing their seat belts. The car was still running. When the driver's window was lowered the officer saw smoke and dust coming from the airbags that had deployed. He asked if the occupants were okay and Ms. Arulrasan responded, "Yes, I think so. I was trying to turn the corner. I don't know what happened." The officer asked if they required EMS, which they declined. There were no apparent injuries. It was the officer's evidence the vehicle was inoperable.
5Although the officer did not see the collision or hear anything as he was driving southbound, he believed the accident "just happened" given the smoke/steam from under the hood and the smoke and dust from the airbags, which was still in the air inside the car. In cross-examination, P.C. Horner agreed "he had no way of knowing one way or the other precisely when that accident happened." However, later in his evidence P.C. Horner clarified that he estimated the collision had occurred within the last minute as the dust from the airbags was still airborne, the vehicle was still smoking and there were no other vehicles in the area.
6As the officer spoke with the driver he detected the odour of an alcoholic beverage coming from her mouth. At 4:25 a.m., the officer formed a reasonable suspicion Ms. Arulrasan had alcohol in her body and demanded she provide a sample of her breath into an approved screening device (ASD). She registered a fail and was arrested for operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood. She was brought to 5 District York Regional Police station and provided two samples of her breath into an approved instrument of 130 mg and 120 mg of alcohol in 100 ml of blood.
Position of the Parties
7The Crown argues there is circumstantial evidence from which reasonable inferences can be drawn that Ms. Arulrasan was operating her car just prior to P.C. Horner arriving on scene at 4:19 a.m. The first breath sample was taken at 5:52 a.m., which means there is one hour and 33 minutes between the arrival of P.C. Horner and the taking of the first sample. Given the circumstantial evidence it is a reasonable inference the accident occurred less than 27 minutes prior to the arrival of P.C. Horner on scene.
8In the alternative, the Crown argues Ms. Arulrasan was in care or control of her car at the time of the arrival of P.C. Horner. She was in the driver's seat and she has not rebutted the presumption under s. 158(1)(a) and consequently, she is guilty of the offence of over 80, care or control.
9Mr. Daley argues P.C. Horner agreed "he had no way of knowing one way or the other precisely when that accident happened." Consequently, the defence submits the Crown has failed to prove the presumption of identity applies.
10The defence further argues Ms. Arulrasan was not in care or control of her vehicle when P.C. Horner came upon the accident as her car was "inoperable" and the Crown is not able to prove there was a realistic risk of danger to persons or property. It is his position, despite Ms. Arulrasan being in the driver's seat of her vehicle, the presumption under s. 258(1)(a) does not apply when the motor vehicle is inoperable.
Analysis
(a) Has the Crown proven beyond a reasonable doubt the time of driving was within 2 hours of the first breath sample?
11The Crown submits the court can infer that Ms. Arulrasan was operating her car just prior to P.C. Horner coming upon the single car accident based on the following evidence:
P.C. Horner came upon Ms. Arulrasan's car, which was involved in a single car accident with a traffic light standard at 4:19 a.m.;
Two females were in the car; Ms. Arulrasan was in the driver's seat and the second female was in the front passenger seat;
Both females were wearing their seat belts;
The car was still running;
There was smoke or steam coming from under the front hood of the car, where there was extensive damage;
Smoke or dust from the deployment of the airbags was still airborne within the car's passenger compartment;
The officer could smell the airbag dust when he approached the vehicle;
There were no other vehicles or pedestrians in the area of the accident, which was McCowan Road and Highway 7; and
P.C. Horner was of the opinion the accident had happened within a minute of his arriving on scene because of the above observations.
12The demand made by P.C. Horner, pursuant to s. 254(2) of the Criminal Code, required P.C. Horner to reasonably suspect Ms. Arulrasan had alcohol in her body and that she had operated the car within the preceding three hours. The Charter application under s. 8 was abandoned. The result obtained on the ASD of fail provided the officer the reasonable grounds necessary under s. 254(3) to make a demand Ms. Arulrasan provide samples of her breath into an approved instrument to determine the concentration, if any, of alcohol in her blood, at the police station. Mr. Daley did not dispute the driving was within three hours of P.C. Horner making the breath demand under s. 254(3).
13Ms. Arulrasan was found in the driver's seat in circumstances that clearly indicate she drove the car to the point where it crashed into the traffic light standard. I am satisfied beyond a reasonable doubt that Ms. Arulrasan was operating her car just prior to P.C. Horner arriving at the scene of the collision. Given the engine was still running; the two occupants were wearing their seat belts; smoke or steam was coming from the engine under the front hood; the airbag dust was still airborne inside the car as was the smell of the airbag dust, which was observed by P.C. Horner; and there were no other vehicles or pedestrians stopped in the area of the crash having regard to this being a major intersection in Markham, just to the east of the Markville Mall, all of the evidence confirms the accident had just happened. It is my view, and I find, there is a reasonable inference the accident happened just a minute or two prior to P.C. Horner's arrival on scene. I accept his evidence the accident occurred in the minute prior to his arrival. Consequently, I find the time Ms. Arulrasan was operating her motor vehicle to be approximately 4:17 or 4:18 a.m. when the single car accident occurred. Therefore the first sample, taken at 5:52 a.m., was taken at a time not later than two hours after Ms. Arulrasan crashed into the traffic light standard. I find this sample was taken in compliance with s. 158(1)(c)(ii).
14Accordingly, Ms. Arulrasan is found guilty of operating her motor vehicle when her blood/alcohol level was greater than 80 mg of alcohol in 100 ml of blood.
15It is also my view, as I will discuss below, that Ms. Arulrasan is guilty of having care or control of her car when her blood/alcohol level was greater than 80 mg of alcohol in 100 ml of blood; the offence of care or control of a motor vehicle being an included offence of operating a motor vehicle: R. v. Plank (1985), 28 C.C.C.(3d) 386 (Ont. C.A.).
(b) Was Ms. Arulrasan in care or control of her car?
16The mens rea for care or control is the intent to assume care or control of a motor vehicle after the voluntary consumption of alcohol. The actus reus is the act of assumption of care or control when the voluntary consumption of alcohol exceeds 80 mg of alcohol in 100 ml of blood: R. v. Towes, [1985] 2 S.C.R. 119 at para. 7.
17The Crown can establish care or control of a motor vehicle in a variety of ways. In R. v. Smits, [2012] O.J. No. 3629 (Ont. C.A.) the court held the first way is by relying on the statutory presumption of "care or control" in s. 258(1)(a), which provides:
258(1) In any proceedings under 255(1) in respect of an offence committed under section 253 or 254(5) or in any proceedings under any of subsections 255(2) to (3.2), (a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle…, the accused shall be deemed to have had the care or control of the vehicle… unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle… in motion…
18Where an accused is found in the driver's seat, the accused must establish, on a balance of probabilities, that he or she did not occupy the driver's seat for the purpose of setting the vehicle in motion. Where the presumption is rebutted or does not apply, the Crown can rely on what is commonly referred to as de facto or actual "care or control" of a motor vehicle.
19In the case at bar, the Crown relies on the rebuttable presumption of care or control in s. 258(1)(a) to prove Ms. Arulrasan was in care or control of her car. It is my view, this provision, which survived a constitutional challenge in R. v. Whyte, 42 C.C.C. (3d) 97 (S.C.C.), was clearly engaged in this case.
20At the time Ms. Arulrasan and her passenger were first observed by P.C. Horner, she was sitting in the driver's seat of her car which had been involved in a single car collision with a traffic light standard on McCowan Road at the intersection of Highway 7. She was wearing her seat belt. It is my view, in the circumstances of this case, the presumption in s. 258(1)(a) applies: that is, where the accused is proved to have occupied the driver's seat, she shall be deemed to have had care or control of her vehicle unless she establishes she did not occupy that position for the purpose of setting the vehicle in motion.
21The Ontario Court of Appeal held in R. v. Hatfield, [1997] O.J. No. 1327 at para. 19 and R. v. Miller, [2004] O.J. No. 1464 (C.A.), that in order to rebut the presumption of care or control, an accused person must show the occupancy of the driver's seat began without the purpose of setting the vehicle in motion.
22All of the evidence in this case indicates Ms. Arulrasan's occupancy of the driver's seat began for the purpose of driving. Clearly, she intended to drive from the point she entered the vehicle and drove it until she failed to properly make her turn from Highway 7 to McCowan Road, northbound, and came into collision with the traffic light standard. At no point did she relinquish control; the engine was still running, she was still wearing her seat belt and she had not exited the car. When asked if she and her passenger were okay, she responded, "Yes, I think so. I was trying to turn the corner. I don't know what happened." I find Ms. Arulrasan drove her vehicle just prior to 4:19 a.m. when she collided with the light standard and then continued to exercise care and control over her vehicle until P.C. Horner arrived to find her sitting in the driver's seat behind the wheel.
23I find the presumption of care or control pursuant to s. 258(1)(a) applies and the accused has not rebutted it.
24Mr. Daley raised an argument that the presumption of care or control in s. 258(1)(a) does not apply where the vehicle in question is "inoperable." It is clear, prior to the release of R. v. Boudreault, [2012] S.C.J. No. 56, the law in Ontario was that the Crown is not required to establish a risk of danger as an element of care or control where the Crown relies on the statutory presumption to prove care or control (see R. v. Amyotte, [2009] O.J. No. 5122 (S.C.J., Durno J.) at paras. 109-127). It is only when the presumption is rebutted or does not apply based on the factual circumstances of a case and where the Crown seeks to establish de facto or actual "care or control" that the Crown is required to establish a risk of danger (see R. v. Wren, [2000] O.J. No. 756 (C.A.) and R. v. Smits, supra).
25It is important to note, Boudreault was a case where the trial judge found the presumption pursuant to s. 258(1)(a) had been rebutted by the accused. Consequently, the operation of the presumption was not in issue. In para. 47, Fish J., for the majority said; "Parliament, in its wisdom, has until now seen fit to create only one reverse onus in the context of the care and control offence. It is found in s. 258 of the Code and it is not in issue in this appeal." This is confirmed in the dissenting reasons of Cromwell J. at para. 67.
26The Supreme Court in Boudreault therefore establishes that, when the Crown seeks to prove de facto or actual "care or control", it is required to prove a realistic risk of danger. In R. v. Blair, [2014] O.J. No. 4296 (S.C.J.), at paras. 12-13, Trotter J., in a summary conviction appeal, held:
It does not follow that, when the accused is unable to rebut the presumption, the Crown must still prove this element. Admittedly, there is language in Boudreault that suggests otherwise. As Fish J. held at p. 232 (paras. 38-39):
38 At a minimum, the wording of the presumption signifies that a person who was found drunk and behind the wheel cannot, for that reason alone, be convicted of care or control if that person satisfies the court that he or she had no intention to set the vehicle in motion. Dickson C.J. made this plain in R. v. Whyte, [1988] 2 S.C.R. 3, at p. 19: "It cannot be said that proof of occupancy of the driver's seat leads inexorably to the conclusion that the essential element of care or control exists ... ."
39 Put differently, s. 258(1)(a) indicates that proof of voluntary inebriation and voluntary occupancy of the driver's seat do not by their coexistence alone conclusively establish "care or control" under s. 253(1) of the Criminal Code. Something more is required and, in my view, the "something more" is a realistic risk of danger to persons or property.
However, this passage must be considered in context. The majority in Boudreault was merely describing the operation of the presumption in the light of its holding in Whyte. There is nothing in the language of Boudreault that suggests that the Court modified or altered the operation of the presumption by requiring the Crown to go further and prove a realistic risk of danger when the presumption stands unrebutted. When the presumption is not rebutted, all elements of "care or control" (both the mens rea and actus reus components, as described in Smits, paras. 49 to 51) are deemed to exist. [Emphasis added]
27I agree with Justice Trotter's interpretation of Boudreault. I find cases such as Amyotte, supra, which held that the risk of danger is not an element of the statutory presumption of care or control but is restricted to cases where the Crown seeks to prove de facto or actual "care or control", have not been overruled by Boudreault. As noted by Browne J. in R. v. MacKenzie, [2013] A.J. No. 899 (Q.B.), at para. 32:
Boudreault dealt with de facto care or control, as the accused had rebutted the presumption at trial, it is therefore reasonable to assume that the Supreme Court was aware of the comments made in R. v. Mallery, [2008] N.B.J. No. 72, and R. v. Burbella, [2002] M.J. No. 155, in regards to the risk of danger not being an element of the statutory presumption. The Court's silence on this issue suggests that the pre-existing authorities were correct in concluding that the presence or absence of danger will have no effect when the statutory presumption applies and is not rebutted.
28He further makes reference to the decisions of Fragomeni J. in R. v. Brozowski, [2013] O.J. No. 2483 (S.C.J.) and Oleskiw J. in R. v. Tharumakulasingam, [2014] O.J. No. 3729 (C.J.), which came to the same conclusion. Finally, Justice Trotter refers to R. v. MacKenzie, supra, where Browne J. held the presumption in s. 258(1)(a) was left unchanged and held at para. 22:
If the presumption did not apply unless the Crown established a "realistic risk of danger", the presumption would serve no purpose. The Crown would be required to prove that the accused was seated in the driver's seat of a vehicle, an intentional course of conduct associated with a vehicle, and that sitting in the driver's seat created a realistic risk of danger to persons or property. This is the same onus that the Crown would have to satisfy if the presumption did not exist. To interpret the presumption in this way would make it ineffective and essentially meaningless. [Emphasis added]
29Justice Trotter agreed with this observation, as do I.
30In this case, the presumption was not rebutted by Ms. Arulrasan. The evidence incontrovertibly established her entering her vehicle with the intention to drive. She drove her vehicle until she had a collision with a traffic light standard on McCowan Road. There is no evidence she left her vehicle after the collision and re-entered it with a different intention. Consequently, the presumption applies as it was not rebutted and on this basis Ms. Arulrasan is found guilty of being in care or control of her motor vehicle having more than 80 mg of alcohol in 100 ml of blood.
31I should also make the following observations concerning whether the evidence was capable of supporting the submission by Mr. Daley that Ms. Arulrasan's vehicle was, in fact, inoperable. While P.C. Horner agreed in cross-examination to the suggestion Ms. Arulrasan's vehicle was "inoperable", there was no evidence it was inoperable, in the sense it could not be driven. It certainly had come into contact with a traffic light standard and had sustained major front end damage but the car was still running. There was no evidence the car could not have been driven had it been removed from contact with the traffic light standard. Whether the car was inoperable or not was, in my view, pure speculation. Given my earlier findings as to how recent the accident was when P.C. Horner came upon it, it would also be speculation as to what steps Ms. Arulrasan might have taken to move her car had the officer not attended as quickly as he did after the collision occurred.
32What is clear, is that Ms. Arulrasan intended to drive her car from the location she started from, after she had consumed a quantity of alcohol, such that her blood alcohol level exceeded 80 mg of alcohol in 100 ml of blood, until she misjudged her turn and collided with a traffic light standard on McCowan Road in Markham. As I have found, there was sufficient circumstantial evidence from which to draw reasonable inferences as to the time the collision occurred in relation to the arrival of P.C. Horner at 4:19 a.m. and the fact that the first sample of breath was obtained within two hours from the last time of her operating her car just prior to the accident. Further, I found Ms. Arulrasan was in care or control of her vehicle, based on the statutory presumption, which was not rebutted, at the time P.C. Horner discovered the accident at 4:19 a.m. and Ms. Arulrasan was sitting in the driver's seat. Consequently, as I have set out above, Ms. Arulrasan is found guilty of over 80, either as a result of operating her motor vehicle or as a result of her being in care or control of her motor vehicle.
Released: February 24, 2015
Signed: Justice Peter C. West