Court Information

Ontario Court of Justice

Date: June 22, 2015

Court File No.: Central East 14-00182

Parties

Between:

Her Majesty the Queen

— AND —

Shanon Wendell

Before: Mr. Justice M. Felix

Trial Evidence: May 28, 2015

Counsel

F. Stephens — Counsel for the Crown

K. Mitchell-Gill — Counsel for the Defendant

Heard: In Writing

Decision

Introduction

1Shanon Wendell is charged with care or control of a motor vehicle while impaired by alcohol or a drug contrary to section 253(1)(a) and operating a motor vehicle while "Over 80" contrary to section 253(1)(b) of the Criminal Code of Canada. The matter commenced by way of a blended Charter application and trial. The Charter application was dismissed (see R v Wendell, 2015 ONCJ 102). The evidence heard on the Charter application applied to the trial. The trial continued with additional evidence from Ms. Wendell.

2Although the defendant is charged with operating a motor vehicle while "Over 80", the litigation at trial focussed on one issue — whether the Crown had proven beyond a reasonable doubt that the defendant was in care or control of the motor vehicle.

Proof of Care or Control

3There are three ways for the Crown to prove care or control: (1) prove the defendant operated a motor vehicle while impaired; (2) where the defendant was in the driver's seat, rely on the rebuttable presumption in section 258(1)(a) of the Criminal Code of Canada; or (3) through evidence of actual (de facto) control including the element of risk of danger to the public (R v Boudreault, 2012 SCC 56).

4The Crown relied primarily on de facto control and arguments related to the application of the presumption. The Crown did not rely on the defendant's admission of operation at trial to prove care or control perhaps because of fair trial considerations (see R v Coultis; R v Pendleton, [1982] OJ No 132 (Ont CA)).

Proof of Care or Control: Rebuttable Presumption

5If the statutory presumption in s.258(1)(a) is not rebutted on a balance of probabilities, all of the elements of the offence are deemed proven.

6There is binding authority in Ontario interpreting Boudreault such that the Crown need not prove a realistic risk of danger when seeking to rely upon the presumption in 258(1)(a). The Crown must prove the realistic risk of danger when seeking to establish de facto or actual care or control, but not when the Crown is relying on the presumption (See R v Blair, [2014] OJ No 4296 (QL)(SCJ); R v Agyemang, 2014 ONSC 4232).

7In Blair, Mr. Justice Trotter explained the rationale for this approach at paragraphs 10 to 14:

10 In Boudreault, the Court addressed the question of what constitutes "care or control" within the meaning of s. 253(1). Writing for the majority, Fish J. held, at p. 228, that the concept contains the following elements: (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; and (3) in circumstances that create a realistic risk, as opposed to a mere possibility, of danger to persons or property. Framing the issue on appeal in that case, Fish J. said at p. 228:

Only the third element -- risk of danger -- is in issue on this appeal. The Crown submits that risk of danger is not an element of "care or control" under s. 253(1) of the Code. The trial judge found that it is. With respect, I agree with the trial judge.

11 Boudreault was squarely focused on s. 253(1) of the Criminal Code. While s. 258(1)(a) was referred to in Fish J.'s reasons, the operation of the presumption was not in issue in that case because it had been rebutted by the accused. [Footnote omitted]

12 Boudreault establishes that, when the Crown seeks to establish actual or de facto "care or control", it is required to prove a realistic risk of danger. 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:

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 ... 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 ...."

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.

13 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.

14 There are no provincial appellate court decisions that directly confirm this interpretation. However, the same conclusion was reached in the thoughtful decisions of Fragomeni J. in R. v. Brzozowski, [2013] O.J. No. 2483 (S.C.J.) and Oleskiw J. in R. v. Tharumakulasingam, 2014 ONCJ 362. See also the thorough analysis in R. v. MacKenzie (2013), 2013 ABQB 446, 50 M.V.R. (6th) 119 (Alta. Q.B.), a post-Boudreault case, in which Browne J. held that the presumption in s. 258(1)(a) was left unchanged. As she said 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 the 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 in original]

8The defendant was in the driver's seat of her motor vehicle when she was investigated by the police. The Crown may rely on the rebuttable presumption in section 258(1)(a) to prove care or control based on the facts in this case.

9The relevant timeframe for consideration of the defendant's intention is the time when the defendant first entered and occupied the driver's seat (See R v Miller, [2002], OJ No 4896,(QL)(SCJ) at paras 21 to 29 aff'g [2004], OJ No 1464 (QL)(Ont CA); R v Hatfield; R v Maslek, [2004] OJ No 2770 (SCJ)).

Evidence of the Defendant

10Ms. Wendell testified that she consumed a large glass of wine at home and a couple of beers at a local bar before setting out to drive approximately 40 minutes to Scarborough to visit her boyfriend. She drove for approximately 11 or 12 minutes from the bar to the on-ramp for the 401. Seconds before negotiating the on-ramp at Westney Road to proceed westbound on the 401 to Toronto, she made a conscious decision to stop her vehicle on the left side of the on-ramp and not proceed any further to Scarborough. She testified that there were two reasons for this: (1) she knew that she had consumed a couple of drinks; and (2) the weather was worsening.

11Ms. Wendell testified that she intended to stop her vehicle at the apex of the curve on the left side of the on-ramp to the 401. Instead, because of the ice, and the fact that her vehicle had poor quality tires, her vehicle lost control and came in contact with the snowy embankment on the side of the curved on-ramp. She did not attribute alcohol consumption as a contributing cause to the accident. This was an on-ramp that she was extremely familiar with and she testified that she deliberately wished to pull over on the left side of the roadway rather than the more common right side of the roadway. There was other traffic on the on-ramp at the time and subsequent to the vehicle's collision with the embankment. The vehicle came to rest partly adjacent to the embankment and partly on the shoulder of the on-ramp. Ms. Wendell testified that her vehicle did not come to rest in a live lane of travel.

12After the collision she turned off the car engine, got out of the car and walked once around the car assessing the damage. The surface of the roadway and the lane markings on the roadway were not visible due to snow cover. She testified that the front driver's side wheel and the area around the wheel was damaged, fluid was leaking and the bumper was damaged.

13Ms. Wendell then re-entered her car. She turned the car engine back on after re-entering the vehicle.

14She proceeded to contact a friend by cellphone seeking advice. The friend counselled her to find her CAA card and contact a tow truck. She noticed a tow truck at the scene. The driver came to check on her well-being but she did not engage him as it would cost her money (when with her CAA card there would be no cost). She was looking through her purse for several minutes searching for her CAA card when she was approached by the investigating police officer in this case.

15Ms. Wendell testified that once she made the decision to pull over her car on the on-ramp and cease driving, she had no intention of continuing to drive that night. She was prepared to call a friend to pick her up, or call a cab.

Conclusion: Rebuttable Presumption

16The presumption in s. 258(1)(a) of the Criminal Code is available based on the facts in this case. The defendant must rebut the presumption on a balance of probabilities. Based on the record before me, I am satisfied that the first sample of the defendant's breath was acquired within two hours of the investigation by the officer at the roadside and as such the presumption in section 258(1)(c) of the Criminal Code is also available.

17Evidence supportive of the application of the presumption includes the fact that Ms. Wendell:

1. Occupied the front driver's seat;
2. Sought to stop her vehicle in part because she was cognizant of her consumption of alcohol;
3. Turned off the vehicle after the accident, walked around the vehicle examining the damage, and then re-entered the vehicle and turned the engine back on to keep warm; and,
4. Remained in her vehicle at the scene for several minutes after the collision.

18Evidence supportive of rebutting the presumption includes the following:

1. She did not attempt to drive the vehicle away after the collision;
2. She did not attempt to contact the tow truck driver at the scene and enlist assistance in removing the vehicle;
3. She had never been in an accident before;
4. She contacted a friend to discuss the best course of action going forward;
5. She remained in her vehicle at the scene for several minutes after the collision;
6. She was looking for her CAA card;
7. She testified that she decided to stop the car on the on-ramp and cease driving due to the weather and the consumption of alcohol; and,
8. She testified that she could have called a friend to pick her up or a cab and she did not intend to drive further.

19I find that the defendant has not rebutted the presumption in s. 258(1)(a) of the Criminal Code. She was occupying the driver's seat of the motor vehicle. She entered the vehicle for the purpose of driving from the bar to her boyfriend's residence in Scarborough. After the accident, she turned off the vehicle when she got out to look at the damage. She turned the vehicle back on when she re-entered the vehicle after having examined the damage. This was because it was very cold outside and she wished to keep warm. This was despite the car having warmed up on the 11 or 12 minute drive from the bar to the on-ramp. The brief moment where she got out of the vehicle to consider the damage does not interrupt the sequence of events such that the presumption in favour of care or control no longer applies. (R v. Chernywech, [2010] OJ No 1638 (QL)(SCJ)).

20There is also the absence of evidence to consider on this issue:

1. There was no evidence at trial from the friend who the defendant spoke to that night;
2. There was no evidence corroborating the fact of the call to the friend or the duration of the call to this friend (e.g. cellphone records);
3. There was no evidence that Ms. Wendell made concrete efforts to contact a taxi or did in fact contact a taxi;
4. There is no evidence that Ms. Wendell made concrete efforts to contact a friend to pick her up or did in fact contact a friend for the purpose of picking her up;
5. There is no evidence the hazard warning lights were on;
6. There is no evidence establishing whether the lights for the vehicle were on or off (separate and apart from daytime running lights); and,
7. With respect to the operability of the motor vehicle, once I remove consideration of inadmissible hearsay evidence concerning the extrication of the vehicle and the examination of it at the repair facility, there is no (admissible) evidence establishing that the vehicle was inoperable. The vehicle was operable in that it appears from the evidence that the engine was working. I do not know if the vehicle could be moved one centimeter, a meter, or a kilometer. I am not entitled to speculate. If I am to draw an inference it must be based in factual circumstances. That one wheel was damaged in a significant fashion does not thereby establish that the vehicle could not be moved.

21I find that the presumption applies and the Crown has established the defendant's guilty beyond a reasonable doubt on the care or control while "Over 80" count.

22Even if I have fallen into error with respect to the applicability of the presumption, I would find the defendant guilty because the Crown has also established de facto or actual care or control.

De Facto or Actual Care or Control

23The Supreme Court of Canada in Boudreault outlined examples of how a realistic risk of danger may arise at paragraph 42:

42 In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

24The risk of danger must be realistic and not simply theoretically possible. But it need not be probable, serious, or substantial (Boudreault, paras 34-35). The determination of a realistic risk of danger is a finding of fact (Boudreault, para 11). The approach suggested by the Ontario Court of Appeal in R v Smits, 2012 ONCA 524 at paragraph 63 is applicable (wherein the analysis in R v Szymanski was approved):

63 In Szymanski, at para. 93, Durno J. provides an excellent, although non-exhaustive, list of factors a court might look at when engaging in a risk of danger analysis on the basis of circumstantial evidence:

a) The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive;

b) Whether the keys were in the ignition or readily available to be placed in the ignition;

c) Whether the vehicle was running;

d) The location of the vehicle;

e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination;

f) The accused's disposition and attitude;

g) Whether the accused drove the vehicle to the location where it was found;

h) Whether the accused started driving after drinking and pulled over to "sleep it off" or started using the vehicle for purposes other than driving;

i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit;

j) Whether the accused had a stated intention to resume driving;

k) Whether the accused was seated in the driver's seat regardless of the applicability of the presumption;

l) Whether the accused was wearing his or her seatbelt;

m) Whether the accused failed to take advantage of alternate means of leaving the scene;

n) Whether the accused had a cell phone with which to make other arrangements and failed to do so.

25Ms. Wendell had some level of alcohol in her system at the time of care or control. She had consumed two beers and a large glass of wine. She stopped her vehicle in part because of her alcohol consumption. The keys were in the ignition, the engine was on, and the vehicle running.

26She was enroute to Scarborough and had not yet reached her destination. She had driven the vehicle to the on-ramp. While the defendant testified that she did not intend to continue driving, there was no concrete alternative plan. The plan was to stop the vehicle on the left side of the on-ramp to the 401 highway and find an alternative way home. She collided with the embankment while operating her vehicle at a very low speed.

27Ms. Wendell was seated in the driver's seat. The vehicle was operable. She turned the engine back on after the accident to keep warm. It is unknown if the vehicle could be moved and if so what degree.

28She had a cellphone and did not take any steps or make any arrangements to put an alternative plan into action. She testified that she could have contacted a friend to pick her up or contacted a taxi to pick her up – she did neither and there is no evidence of even making an effort in this regard. She contacted a friend to get advice. While I appreciate that Ms. Wendell had not been in an accident before, surely the immediate concern should have been the location and position of her vehicle and how she would get home at that time of night.

29Ms. Wendell had declined the immediate assistance of a tow truck driver at the scene at that early hour of the morning in favour of calling CAA. There is some danger inherent in the consideration that she might have changed her mind and sought to at least attempt moving the motor vehicle. Were this the only evidence I might be inclined to find that there was no realistic danger from her directly attempting to operate.

30Upon reflection, and having listened to the court record of her evidence a second time, I have come to the conclusion that there is an even greater difficulty with the evidence of Ms. Wendell. I do not accept her evidence that seconds or moments after she realized she should cease driving, she decided to stop her vehicle precisely on the left side of the apex of the curve of the on-ramp and collided with the embankment. This was an odd place to make a conscious decision to stop a vehicle (as acknowledged by the defendant in cross-examination). The vehicle could have been stopped at any point during the 11 or 12 minute drive from the bar to the on-ramp to the 401. I do not accept her view that the decision to pull over and stop driving at the on-ramp coincided exactly with the fact of the collision, and that alcohol consumption was not a factor.

31Making a conscious decision to stop the vehicle on the left side of the on-ramp to the 401 in worsening snowy weather when the roads were slippery was a positive decision made by the defendant that fits within the third category of danger contemplated in Boudreault. The decision to stop her vehicle in that location constituted a realistic risk of danger because "… through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property" (Boudreault, para 42). This realistic danger was not dependent on whether the vehicle was on the shoulder, the roadway, or partly on the roadway and shoulder. This realistic danger was not dependant on whether one or several vehicles were able to pass without contacting the stopped vehicle. The realistic danger is evident based on the time of night, the conditions on the road, and the poor decision made by the defendant. I have had resort to a diagram of the ramp area filed as an exhibit in the accident report. I have considered the evidence at trial concerning the ramp area. Objectively speaking, the location selected to stop the vehicle was a product of bad judgment. The presence of the defendant's vehicle in this location presented a danger to the general public whether or not it was realized. The collision experienced by the defendant exemplified the attendant realistic risk. There were any number of other locations between the bar and the on-ramp that could have permitted a safe cessation of driving.

32I find that the Crown has proven de facto care or control beyond a reasonable doubt. With respect to the operate while "Over 80" count, while I might be inclined to draw an inference that the collision happened shortly before the officer encountered the defendant, there is no specific evidence as to the time of operation. I will acquit the defendant of this count.

Released: June 22, 2015

Signed: "Justice Felix"

1Note her subjective view that this decision was based on the worsening weather and the fact that she had consumed alcohol.