Court Information

Court File No.: Brampton Date: 2015-11-27 Ontario Court of Justice

Between: Her Majesty the Queen — and — Randy Pretli

Before: Justice J. M. Copeland

Heard: July 17 and September 21, 2015

Reasons for Judgment Released: November 27, 2015

Counsel:

• P. Maund, for the Crown
• P. Esco, for the defendant Randy Pretli

COPELAND J.:

[1] Charges and Overview

1Mr. Pretli is charged with having care or control of a motor vehicle while his ability to operate was impaired by alcohol, and having care or control of a motor vehicle with over 80 milligrams of alcohol per 100 millilitres of blood. The evidence relates to events in the parking lot of a mall on Clementine Drive in Brampton, on March 6, 2014. The mall contains, among other things, an LCBO, a No Frills grocery store, a Daisy Mart convenience store, and a gas station. The only live issue is whether the Crown has proven that Mr. Pretli was in care or control of the motor vehicle at the relevant time, and some contested factual issues related to the care or control issue. Counsel for Mr. Pretli conceded voluntariness of statements made by Mr. Pretli to persons in authority during the investigation.

THE EVIDENCE

(i) The Crown's Case

2Much of the evidence was tendered by way of an agreed statement of facts. The agreed statement of facts included an admission that at the relevant time Mr. Pretli's ability to operate a motor vehicle was impaired by alcohol. It also included an admission that the breath readings later taken at the police station were 327 and 337 milligrams of alcohol per 100 millilitres of blood.

3In addition to the agreed statement of facts, the Crown called two loss prevention officers employed by the LCBO, Mr. Harmondeep Dhaliwal and Mr. Sukhvinder Singh.

4On March 6, 2014, Mr. Singh and Mr. Dhaliwal were both working plainclothes loss prevention at LCBO store at Clementine Drive in Brampton. They testified that Mr. Pretli entered the store at 5:18 p.m. Both loss prevention officers observed signs of intoxication on the part of Mr. Pretli, including stumbling, the smell of alcohol, and an unsteady walk. Mr. Pretli went right to the "vodka wall" in the store. He picked out a bottle of Smirnoff vodka. He went to a cash register to pay for the vodka.

5Mr. Singh signalled to the cashier that he believed Mr. Pretli had been drinking. The LCBO has a policy not to serve people who have been drinking. The cashier engaged in a conversation with Mr. Pretli which was overheard by the loss prevention officers. The cashier asked Mr. Pretli if he had been drinking, to which he responded, "yeah". The cashier refused to serve Mr. Pretli because he had been drinking. The cashier asked Mr. Pretli if he would be driving, to which Mr. Pretli responded, "no". The cashier then offered to call a taxi. Mr. Pretli left the store, and did not respond to the last question. Mr. Singh conceded in cross-examination that it was possible that Mr. Pretli did not hear the offer to call a taxi.

6Mr. Singh and Mr. Dhaliwal both followed Mr. Pretli out into the parking lot. They observed him walk to the Daisy Mart convenience store across the parking lot. Mr. Pretli came out of the Daisy Mart after a minute or two. He then walked to his truck. His truck was parked some distance from both the LCBO and the Daisy Mart, in a fairly isolated area of the parking lot, near the gas station in the mall. Mr. Dhaliwal said he saw Mr. Pretli take what he believed to be keys from his pocket. He was not entirely consistent about which pocket he saw the keys taken from. Neither man saw a remote or heard a beep to open the truck. Neither man saw Mr. Pretli use the keys to open or unlock the truck. They just saw him use the handle on the driver side door to open it.

7Both men saw Mr. Pretli walk to his truck, and get into the driver's seat, and shut the door. Mr. Pretli did not start the truck. Mr. Singh, who was closer to the truck, said that he saw Mr. Pretli sitting in the driver's seat with the keys in his right hand, with his hand by his leg. Mr. Pretli did not put the keys in the ignition. Mr. Pretli sat there for one to two minutes. Mr. Singh was standing by the truck and knocked on the driver side window, which was closed, and said, "buddy don't drive". During this time, Mr. Dhaliwal called 911. The time of Mr. Dhaliwal's call to 911 was 5:27 p.m.

8Mr. Singh and Mr. Dhaliwal both testified that they called 911 because LCBO policy is that they are to call 911 if a person appears impaired and gets into a car. However, they did not physically stop Mr. Pretli from getting into the car because LCBO policy is only to call 911, and not to physically intervene with either the person or the vehicle.

9After about one minute, Mr. Pretli got out of the truck, and walked towards the Daisy Mart, and then towards the No Frills store. Officers from Peel Regional Police attended within minutes of Mr. Dhaliwal's call to 911. Mr. Pretli was arrested on the sidewalk by the No Frills store.

10Both Mr. Singh and Mr. Dhaliwal denied the suggestion put to them in cross-examination that Mr. Pretli never sat in the driver's seat of the truck, did not shut the door of the truck, and only went into the truck to get his phone. They also denied the suggestion that Mr. Dhaliwal called 911 before Mr. Pretli was in the truck. They also denied the suggestion that Mr. Pretli kept saying, "I'm not going to drive. I was just getting my phone"; although Mr. Dhaliwal conceded that because he was further away from Mr. Pretli, he could not rule out that that had been said and he did not hear it.

11When the police attended, they made observations of various signs of impairment on the part of Mr. Pretli. The first arriving officer asked Mr. Pretli if he intended to drive, and Mr. Pretli said, "no". The officer then asked Mr. Pretli if he had been in the LCBO, to which Mr. Pretli replied, "no". At the time Mr. Pretli was placed under arrest, the police obtained from him the keys to his truck, in order to seize the truck. When the tow arrived to seize the vehicle, one of the officers examined what was in plain view in the truck, but did not find any evidence relevant to impaired operation or care or control.

(ii) The Defence Evidence

12Mr. Pretli testified. Mr. Pretli said that he was visiting Brampton from his home in Windsor for a wrestling competition that his daughter was participating in, and also to visit his aunt. He had arrived two days prior to the date of the arrest, and had visited with his aunt and attended his daughter's competition. He was staying at a hotel.

13Mr. Pretli brokers deals for sales of boats for a living. He testified that on the morning of March 6, after having breakfast, he made some telephone calls in relation to a deal he was working on for the sale of some boats. This particular deal was very important for him financially, and was complex, involving four boats. He intended to attend the awards ceremony for his daughter's competition. He let his daughter know that he might be delayed as a result of the calls for his work.

14Mr. Pretli testified in examination in chief that he had a drink in the morning before he left the hotel. In cross-examination he said that drink was a bottle of Coors Light beer. In cross-examination he also said that he would have had another drink of vodka and cranberry juice between the early morning and when he left the hotel at 1:00 p.m. He estimated that that drink contained one shot of vodka, but he was not measuring when he poured. He got the vodka from a 750 ml bottle he had that he estimated was half-full in the morning. He testified that he was not intoxicated when he left the hotel.

15Mr. Pretli testified that he left the hotel around 1:00 p.m. by taxi. He initially went to pick up his truck, which he had left parked at a restaurant the night before, because he had been drinking and decided not to drive back to the hotel. He had intended to go to the awards ceremony for his daughter's competition after picking up his truck.

16After he picked up his truck, as he was driving to the competition, his daughter contacted him and said that the awards ceremony was mostly done, and that he did not need to attend. At this point it was about 2:00 p.m. He was driving on Steeles Avenue, and decided to find a restaurant to get something to eat.

17He then received a telephone call on his cell phone about the deal he was working on regarding the sale of the boats. He decided to pull over because the call was important and he had been waiting for it. He pulled into the mall parking lot to take the telephone call. He parked in an isolated area of the parking lot.

18As a result of that telephone call, Mr. Pretli learned that the deal to sell the boats was falling apart. Mr. Pretli testified that after he took the phone call, he drank alcohol in the back of his car, and then continued to drink as he walked around the mall. He said he had the alcohol in a bottle, so that it was not noticeable. He went to the Pizza Nova restaurant in the mall and got something to eat. He continued to drink alcohol in the Pizza Nova. He testified that he had quite a bit to drink that afternoon, in the back seat of his car, in the mall parking lot, and in the Pizza Nova. He testified that he kept the alcohol hidden in a compartment under the back seat of his truck.

19In cross-examination Mr. Pretli said that the initial phone call in the parking lot lasted at least half an hour. He started drinking in the truck shortly after that call ended.

20In cross-examination he said that he drank the vodka by pouring it into a bottle of cranberry juice to mix it with the juice. He indicated that the amount of vodka he poured into the cranberry juice bottle was about one third of the size of the cranberry juice bottle. He also testified that during the time he walked around the mall complex drinking he finished the bottle of vodka that had been half full in the morning.

21In cross-examination Mr. Pretli said that it was more than two or three hours that he was in the mall parking lot, for the phone calls and the drinking and walking around. He testified that he finished what was left of the bottle of vodka over about 45 minutes.

22Mr. Pretli was asked in cross-examination why he would choose to drink in the parking lot, when he could simply have driven back to the hotel, and drank there, and avoided the trouble of having to take a cab to the hotel, and then take a cab back the next day to get his truck. He replied that it would have made the most sense to drive back to the hotel and drink there, but that he was an alcoholic. I understood this to mean that his alcoholism was a reason that he made decisions that did not make the most sense. He agreed in cross-examination that alcohol impairs his ability to make good decisions. But he said that he knew not to drive and to call a taxi.

23After going to Pizza Nova, Mr. Pretli went into the LCBO. It was his intention to get another bottle of alcohol and go back to his hotel room. However, he testified that he did not intend to drive his truck, but planned to call a taxi to get back to his hotel. When he went into the LCBO, he was refused service. He confirmed the conversation outlined above at paragraph 5, except that he testified that he did not hear the cashier offer to call a taxi. He was embarrassed at the refusal of service and immediately left the store.

24Mr. Pretli testified that when he left the LCBO he did not intend to drive. He went to the Daisy Mart intending to call a taxi, and to get a drink. He realized that he did not have his cell phone with him. He asked the staff in the Daisy Mart to call a taxi for him. They said they did not offer that service. He bought a bottle of cranberry juice. He testified that someone had mentioned a phone at No Frills to call a taxi.

25Mr. Pretli testified that he went to his truck only to get his phone in order to call a taxi. He testified that he did not intend to drive, and that he only intended to get his phone to call a taxi. He testified that he took the keys out of his coat pocket to click the button to unlock the truck. He said he then put the keys back in his pocket, and did not remove them again. He testified that before he got into his truck, a man (one of the LCBO loss prevention officers) said to him, "you're not driving buddy". Mr. Pretli said he responded, no, and that all he wanted to do was to get his phone and call a cab. He said the man's tone was aggressive.

26Mr. Pretli testified that he did not get into his truck, but only reached across from the driver side to the centre console to get his phone. He may have put one leg and both arms into the vehicle to reach for the console where the phone was. Mr. Pretli said the man was closer to him at this point, and he was scared because the man was aggressive and grabbed his car door, so he ran away. Mr. Pretli denied that he got into the driver's seat of the car and shut the door. Mr. Pretli then walked over to Daisy Mart and then by the No Frills. Shortly after this the police arrived.

27Although Mr. Pretli testified that he recalled clearly how much he had to drink (see paragraphs 14 and 18-21 above), on the day of his arrest, he told the breath technician that he did not remember how much he had had to drink. When confronted with this in cross-examination, Mr. Pretli said that that statement may have been true at the time, but he did not know. He said that because he had quit drinking and become sober at some point after the evening he was charged his memory was now better of the incident than on the day of the arrest. He also said that the specific amounts he had testified to were to the best of his recollection.

ISSUES

28The following legal issues are raised in this trial, all of which relate to whether the Crown has proven that Mr. Pretli was in care or control of his truck at the relevant time:

(i) Is the presumption of care or control in s. 258(1)(a) of the Criminal Code engaged?

(ii) If so, has the defence rebutted the presumption by showing on a balance of probabilities that Mr. Pretli did not intend to drive?

(iii) If so, has the Crown proven care or control on the analysis in Boudreault?

29Section 258(1)(a) of the Criminal Code creates a presumption that a defendant who is found in the driver's seat of a motor vehicle is deemed to be in care or control of the vehicle. To rebut the presumption, the defendant must show on a balance of probabilities that he or she did not occupy that seat for the purpose of setting the vehicle in motion, i.e. that he or she had no intention to drive: R. v. Boudreault, 2012 SCC 56 (CanLII), [2012] 3 S.C.R. 157 at paras. 36-38; R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3 at pp. 12-13, 17-19.

30Where the defence has rebutted the presumption, the Crown may prove the elements of care or control beyond a reasonable doubt. The elements of care or control are as follows:

(i) An intentional course of conduct associated with a motor vehicle;

(ii) By a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;

(iii) In circumstances that create a realistic risk of danger to persons or property: Boudreault, supra at paras. 9, 33

31The risk under the third branch must be a "realistic risk". To be realistic, a risk need not be probable, or serious or substantial. But the risk must be more than just "theoretically possible". A realistic risk is a low threshold, consistent with the preventive nature of the offence of care or control. But a theoretical risk is too low a threshold, since it would criminalize too broad a range of inconsequential conduct: Boudreault, supra at paras. 34-35, 38-39, 41-42, 48.

32An intention to set a motor vehicle in motion is a realistic risk of danger. In the absence of a contemporaneous intention to drive (i.e., where the defence has rebutted the presumption), a realistic risk of 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 and proceed to do so;

(ii) An inebriated person behind the wheel may unintentionally set the vehicle in motion; and

(iii) Through negligence, bad judgment or otherwise, a stationary and inoperable vehicle may endanger persons or property: Boudreault, supra at paras. 41-42.

33An important factor in assessing whether there is a realistic risk is whether there is credible evidence that defendant made an alternate plan to ensure his or her safe transportation home, or, as in this case, to spend the night so that he or she would not drive while impaired: Boudreault, supra at paras. 51-53. The impact of evidence of such a plan will depend on whether the plan was "objectively concrete and reliable", and on whether the defendant, in fact, implemented the alternate plan. A trial judge must keep in mind that even where there is a plan, the evidence may lead to the conclusion that the defendant abandoned the plan due to his or her state of impairment, or there was a realistic risk the plan would be abandoned, leading to a realistic risk of danger in the circumstances.

34The defendant's intention with respect to operating the motor vehicle is relevant to the assessment of whether the presumption in s. 258(1)(a) has been rebutted; however, proof of an intention to operate the motor vehicle is not an essential element of care or control. Nor does a finding of fact that the defendant did not intend to operate the motor vehicle preclude a finding of care or control, if the requirements of Boudreault are otherwise met: Boudreault, supra at para. 36; R. v. Ford, 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231.

35Generally, a finding of fact that the defendant was impaired and in the driver's seat of a motor vehicle will be sufficient to conclude that there is a realistic risk of danger to persons or property, and as a result that he or she was in care or control of the motor vehicle; however, that finding is not automatic. The assessment of whether there is a realistic risk of danger is a factual one which must be made in all the circumstances. As a practical matter, evidence supporting a finding that the defendant was impaired and in the driver's seat will impose a tactical burden on the defence to adduce credible and reliable evidence, both to rebut the presumption, and to raise a reasonable doubt that there was not a realistic risk of danger in the particular circumstances of the case: Boudreault, supra at paras. 12-13, 45, 48.

FINDINGS OF FACT

36Mr. Pretli testified. As a result, in assessing the evidence and making my findings of fact, I must bear in mind that the Crown's burden of proof beyond a reasonable doubt applies to issues of credibility, as explained in the Supreme Court of Canada's decision of R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

37I note that there are some shifting burdens in relation to care or control that affect how the W.D. analysis applies. The Crown bears the burden of proof beyond a reasonable doubt to prove the facts necessary to engage the presumption in s. 258(1)(a), i.e., to prove that Mr. Pretli was in the driver's seat: Whyte, supra at p. 13. If I find that the Crown has proven the facts necessary to engage the presumption of care or control beyond a reasonable doubt, then the onus shifts to Mr. Pretli to prove that he did not intend to drive. That onus is on a balance of probabilities: Boudreault, supra at paras. 36-38; Whyte, supra at pp. 12-13, 17-19. If Mr. Pretli rebuts the presumption, then the Crown bears the onus to prove care or control according to the risk analysis in Boudreault on the reasonable doubt standard.

38Thus, the reasonable doubt standard applies to the first and third issues set out above at paragraph 28. But on the second issue, whether the presumption is rebutted (if I have first found that it is engaged), Mr. Pretli bears the burden of proof on a balance of probabilities.

39I have considered Mr. Pretli's evidence in the context of the evidence as a whole. I find that I do not believe his evidence, and it does not leave me with a reasonable doubt. Nor does it persuade me on a balance of probabilities on the issue of rebutting the presumption in s. 258(1)(a). Simply put, Mr. Pretli's evidence does not make any logical sense, and is not believable for that reason. His evidence is that he was not impaired when he arrived at the mall parking lot, but that he then decided to drink in the mall parking lot, and then take a taxi back to the hotel, and take a further taxi back when he was sober to pick up his truck at the mall. This plan is difficult to believe, when compared to the much simpler alternative of driving back to his hotel first, and drinking there. Indeed, when this point was put to him in cross-examination, he essentially agreed that it did not make the most sense, but said he did it because he was an alcoholic.

40A further reason that I do not believe Mr. Pretli's evidence is that he made statements to the police at the time of his arrest and in the breath room that were untrue or were inconsistent with his trial evidence. For example, he told the first officer who arrived at the scene that he had not been inside the LCBO store. Further, he told the breath technician that he had not had anything to drink after arriving at the mall parking lot. He also told the breath technician that he did not know how much he had had to drink that day. When cross-examined about the fact that he made some statements to the police that were not true or were inconsistent with his trial evidence, Mr. Pretli was evasive about the reasons for this. He initially said that he was "tricked" by the police officer being friendly. Then he said that he did not understand. Then he said that he was uncomfortable with the situation, and that he wanted to get out of there.

41Further, I find that Mr. Pretli was inconsistent and evasive at times regarding the number of drinks he had that day, as outlined at paragraphs 14, 18-21 and 27 above.

42I also find that Mr. Pretli's memory is not reliable for several reasons. First, he was clearly significantly impaired. His breath readings were over four times the legal limit. Mr. Singh and Mr. Dhaliwal, as well as the police officers whose evidence is summarized in the agreed statement of facts observed significant signs of impairment. I find that his level of impairment makes his memory of the events unreliable. Second, he testified that he remembers clearly that he had a plan not to drive, yet he did not remember numerous other things from that day. To give two examples, although he testified that he had driven along Steeles Avenue to look for a restaurant, in cross-examination he said he did not remember if he saw any restaurants along Steeles. In cross-examination, he said he did not recall saying to the first officer on the scene that he did not intend to drive (he did not deny that he said that, but said he did not recall the conversation). Third, I do not accept Mr. Pretli's evidence that memory of the events relating to the charges before the court got better when he got sober in the months after he was charged. I accept that if a person stops drinking that going forward, their memory of events when they are not impaired or drinking regularly will be better. But I do not accept that Mr. Pretli getting sober improved his memory of events of a time when he was, on the evidence before me, significantly impaired.

43Crown counsel elicited in evidence Mr. Pretli's criminal record, which consisted of three prior convictions for offences relating to driving and alcohol, one from 1996, and two from 2006. I instruct myself as follows with respect to the criminal record. First, although it could possibly be relevant to credibility, in all of the circumstances of this case, I do not draw any inferences from the record relating to credibility, as the convictions are not for offences of dishonesty. Second, I do not draw any inferences with respect to Mr. Pretli's character from the prior convictions. In particular, I do not draw any inference that he is more likely to have committed the offences charged because of the prior convictions.

44Turning to the third branch of W.D., I accept the evidence of the LCBO loss prevention officers, Mr. Singh and Mr. Dhaliwal, as credible and as proving the elements of care or control beyond a reasonable doubt. In particular, I accept their evidence that Mr. Pretli got into the truck, sat in the driver's seat, and closed the door. I accept that he sat there for about one minute, with the keys in his right hand. I also accept their evidence with respect to their observations of Mr. Pretli, including their observations of signs of intoxication, and his movements around the parking lot both before and after he left his vehicle. Each of Mr. Dhaliwal and Mr. Singh were for the most part consistent in their evidence. I acknowledge there were some small inconsistencies in each of their evidence, such as Mr. Dhaliwal not being sure which pocket he saw Mr. Pretli take the keys from, and some difference between Mr. Singh and Mr. Dhaliwal in describing the exact path Mr. Pretli took inside the LCBO on his way to the cashier. I find that these inconsistencies are minor and do not detract from the overall credibility of Mr. Singh and Mr. Dhaliwal's evidence. I find that their version of events was logical and coherent. Their evidence was not shaken in cross-examination.

45Defence counsel argued that their evidence that they did not physically stop Mr. Pretli from driving, but rather called 911, was not credible given their evidence about the risk they perceived if Mr. Pretli drove. However, I accept their evidence that they were acting following LCBO policy which directs that in their work they are to call 911 if they see a person who is intoxicated get into a vehicle, but that they are not to physically intervene either with the driver or with the vehicle.

46In addition to generally challenging the credibility of Singh and Mr. Dhaliwal, Counsel for Mr. Pretli raised two specific aspects of the evidence to challenge their credibility and reliability. First, defence counsel argued that a specific exchange in the evidence of Mr. Singh showed that Mr. Singh accepted the suggestion that Mr. Pretli told him he was just going into the truck to get his phone. Second, defence counsel argued that the fact that both Mr. Singh and Mr. Dhaliwal wrote in their notes that Mr. Pretli's truck was black, when in fact it was grey, was evidence that they had collaborated in making their notes about the incident. I will address each of these issues in turn.

47On the first issue, the exchange at issue during the cross-examination of Mr. Singh, which appears at p. 98 of the transcript of the first day of trial, is as follows:

Q. I'm going to suggest that he [Mr. Pretli] said to you, he didn't close the door, he walked, he went to go into the car to get his phone, he even told you he was going to get the phone.

A. Yes.

Q. And you stood there, you grabbed the door itself when it was, when he was in the car and you said don't drive it, and then you were like yelling at him at this point in time not to drive the car?

A. I don't remember having that conversation. I just remember Mr. Pretli entering the driver's position as I knocked on the window and said don't drive buddy.

48Defence counsel argues that the "yes" response midway through the extract above shows that Mr. Singh accepted the suggestion that Mr. Pretli told him that he was going into the truck to get his phone. I do not accept defence counsel's interpretation of this exchange. As I read the transcript of the passage above, and as I heard the evidence, Mr. Singh is not agreeing with the proposition put by defence counsel when he said "yes"; rather, he is acknowledging that he understands the first portion of the lengthy proposition being put to him by defence counsel. This is clear from his response at the end of the extract above. In addition, I have reviewed the DRD recording of that portion of Mr. Singh's cross-examination. It is very clear from the DRD recording that the "yes" response in the extract above is just an indication that Mr. Singh is acknowledging that he understands the first portion of the proposition put to him by defence counsel. It is not a statement that he accepts or agrees with the proposition. I note that Mr. Singh was consistent throughout his evidence that Mr. Pretli got into the truck and sat in the driver's seat and shut the door. Mr. Singh also consistently denied having a recollection of any conversation with Mr. Pretli, apart from saying to Mr. Pretli not to drive when he got into the driver's seat. Thus, I do not accept defence counsel's interpretation of the exchange at issue, and I do not accept that it shows any inconsistency in Mr. Singh's evidence. Mr. Singh was consistent throughout his evidence that Mr. Pretli got into the driver's seat of the truck and shut the door.

49I turn then to the issue of the evidence of Mr. Singh and Mr. Dhaliwal that the truck was black, when in fact it was grey. Both men described Mr. Pretli's truck as black in their evidence. And both recorded the colour of the truck as black in their notes. In fact, the truck is a medium to dark shade of metallic grey, as shown in a photo tendered in evidence. In cross-examination, both Mr. Singh and Mr. Dhaliwal were asked about this shared mistake, and asked whether they worked on their notes together. Mr. Dhaliwal denied working together with Mr. Singh on his notes. Mr. Singh said he did not recall if they prepared their notes together.

50The colour of the truck is, of course, not important in itself. But defence counsel argues that the shared mistake of Mr. Dhaliwal and Mr. Singh in relation to the colour shows two things: first, it is evidence of lack of reliability of their memories; and second, defence argues that it suggests that they prepared their notes together, since they made the same mistake, and this affects the credibility of their evidence.

51On the first issue, since the colour of the truck is not an important fact in the case, I find that the mistake in relation to the colour does not impact on the reliability of Mr. Dhaliwal and Mr. Singh's evidence.

52The second argument is of more concern. Because they both made the same mistake in relation to colour, it does suggest that Mr. Singh and Mr. Dhaliwal had at least some discussion prior to preparing their notes. Witnesses preparing notes together is not a practice to be encouraged, because it can interfere with the independence of the witnesses' recollections. That said, Mr. Dhaliwal and Mr. Singh gave evidence that differed in some respects on the details of how they witnessed the events, based on their different roles in the interaction – Mr. Singh being closer to Mr. Pretli and interacting with him directly, and Mr. Dhaliwal being further back and more of an observer, and making the call to 911. Thus, it does not appear that they prepared their notes together to come up with a lock-step version of events. Considering all of the evidence given by each of them, and the shared mistake about the colour of the truck, I am still satisfied beyond a reasonable doubt that their evidence is credible and reliable.

53Thus, in summary, I do not believe Mr. Pretli's evidence and it does not leave me with a reasonable doubt. I accept the evidence of Mr. Singh and Mr. Dhaliwal as credible, and find that it proves beyond a reasonable doubt that Mr. Pretli was in the driver's seat of the truck, with the keys in his hand, and that he was impaired based on their observations.

APPLICATION OF LAW IN RELATION TO CARE OR CONTROL

54Based on my findings of fact above, I find that Mr. Pretli was in the driver's seat of his truck at the relevant time. Thus, the presumption of care or control in s. 258(1)(a) is engaged.

55Further, in light of my findings outlined above that I do not believe Mr. Pretli's evidence, and I am not left in a reasonable doubt by it, I am not persuaded on a balance of probabilities that Mr. Pretli did not intend to drive.

56Having found that the presumption of care or control is engaged, and that Mr. Pretli has failed to show on a balance of probabilities that he did not intend to drive, I find that he was in care or control of the motor vehicle in the LCBO parking lot at the time he was observed by the LCBO loss prevention officers.

57As I have found that Mr. Pretli has not rebutted the presumption in s. 258(1)(a), it is not strictly necessary for me to consider whether the Crown has also proven care or control in terms of the risk analysis from Boudreault: see R. v. Blair, 2014 ONSC 5327.

58In any event, in all the circumstances, I also find that there was a realistic risk that Mr. Pretli, who was intoxicated, would change his mind and drive his truck while his ability to do so was impaired by alcohol: Boudreault, supra; R. v. Szymanski, 2009 CanLII 4528 at paras. 91-94 (ONSC). He was clearly impaired. The agreed statement of facts includes an admission that his ability to operate a motor vehicle was impaired by alcohol, and the ultimate breath readings were 327 and 337 milligrams of alcohol per 100 millilitres of blood. He was some distance from the hotel where he was staying. He was in possession of the keys to his truck, and got into the driver's seat and shut the door. Although he got out of the truck shortly afterward, and walked around the mall parking lot, he did not leave the parking lot, and could easily have returned to his truck. Although Mr. Pretli testified that he wanted to call a cab from the mall to return to his hotel, he had not managed to do so in the time from when he left the LCBO until the police arrived. This is not an "objectively concrete and reliable" plan, in the words of Boudreault. And as noted, Mr. Pretli had not, in fact, implemented the plan by actually calling a taxi. Thus, I also find based on the risk analysis from Boudreault that the Crown has proven care or control beyond a reasonable doubt.

59I turn then to proof of the other elements of the offences charged. The agreed statement of facts includes an admission that at the relevant time Mr. Pretli's ability to operate or have care or control of a motor vehicle was impaired by alcohol. The agreed statement of facts also includes admissions that breath sample readings of 327 and 337 milligrams of alcohol per 100 millilitres of blood were obtained from Mr. Pretli, both within two hours of the time he was observed in the driver's seat of the truck by the LCBO loss prevention officers. The agreed statement of facts also includes admissions that the samples were given to a properly designated and qualified breath technician, directly into a properly functioning approved instrument, and were taken as soon as practicable, and taken at least 15 minutes apart. Thus, the Crown has met the conditions precedent to rely on the presumption of identity and accuracy in s. 258(1)(c) of the Criminal Code.

60Based on these admissions in the agreed statement of facts, and my finding that Mr. Pretli was in care or control of the vehicle in the parking lot, I find that the Crown has proven both charges beyond a reasonable doubt. I find Mr. Pretli guilty of having care or control of a motor vehicle while impaired and having care or control of a motor vehicle with over 80 milligrams of alcohol per 100 millilitres of blood.

Released: November 27, 2015

Signed: "Justice J. M. Copeland"