Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— AND —
Ronald James Weston
Before: Justice D.A. Harris
Heard on: May 30 & 31 and June 6, 2017
Reasons for Judgment released on: July 6, 2017
Counsel
David King — counsel for the Crown
Paul Stunt — counsel for the defendant Ronald Weston
Judgment
Introduction
1Ronald James Weston is charged with operating a motor vehicle in the City of Burlington on June 24, 2016, (1) when his ability to operate a motor vehicle was impaired by alcohol, and (2) when his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of his blood. He is further charged with assaulting a peace officer with intent to resist arrest.
2Crown counsel elected to proceed summarily.
3Mr. Weston pled not guilty and a trial was held.
4Mr. Weston had applied for an order that all evidence of the results of any Intoxilyzer tests should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.
5Counsel agreed that we should proceed with a "blended" hearing in which all of the evidence would be applicable to both the Charter application and to the trial.
6Police Constables Jared MacMillan, Jeff Sawatzky, and Thang Van Trinh and Staff Sergeant Gerard Kelly and Ms. Karen Woodall from the Centre of Forensic Sciences testified as Crown witnesses.
7Mr. Weston testified on his own behalf.
8At the conclusion of the evidence, I determined the following from counsel:
(1) Counsel for Mr. Weston conceded that the Crown had proven beyond a reasonable doubt that Mr. Weston's ability to operate a motor vehicle was impaired by alcohol at the relevant time;
(2) The issue with respect to the impaired offence was operation or care or control;
(3) If I found that Mr. Weston operated or was in care or control of his motor vehicle and that his ability to operate a motor vehicle was impaired by alcohol, and that his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of his blood, Crown counsel would request that I enter a conviction for impaired and enter a conditional stay with respect to the over 80 charge.
9So, if I found that Mr. Weston operated or had care or control of his vehicle, I would be asked to stay the over 80 charge.
10If I found that he did not operate or have care or control of his vehicle, I would dismiss the over 80 charge.
11Either way, Mr. Weston would not be convicted of the over 80 offence.
12Accordingly, I was satisfied that the Charter application, which could impact the over 80 offence only, was moot. I declined to hear argument with regard to it and I declined to make any decision. We had already spent considerable time hearing the evidence of three witnesses relating to the over 80 offence only and I was not prepared to spend any more.
13The issues remaining to be decided by me are:
(1) Was Mr. Weston in care or control of his motor vehicle, and
(2) Did he assault a peace officer with intent to resist arrest?
14I will address the issues in the order set out.
Did He Operate / Have Care or Control of a Motor Vehicle?
15Constables MacMillan and Sawatzky testified that they saw Mr. Weston move his car from one parking spot to another. Mr. Weston testified that he did not do this. He neither operated his motor vehicle, nor had the care or control of it.
16Accordingly, the principles in R. v. W(D) are applicable.
17If I believe the testimony of Mr. Weston I must find him not guilty.
18Even if I do not believe his testimony, if it leaves me with a reasonable doubt, I must find him not guilty.
19Even if his testimony does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.
20In determining this, I must keep in mind that Mr. Weston, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities".
21This is a tough standard and it is so tough for very good reason. As Cory J said in R. v. Lifchus: "The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted".
22I did not believe Mr. Weston. His evidence did not leave me with a reasonable doubt as to whether he moved his car in the parking lot. I found his evidence to be unreliable for the following reasons.
23Mr. Weston had been drinking alcohol. He had been drinking alcohol to the point where his ability to operate his motor vehicle was impaired. His ability to perceive events and to recall them was similarly impaired. During cross-examination, Mr. Weston conceded that there were blank spots in his recollection of the events that night. In-chief he noted that he probably woke up slowly when the police dealt with him and that he was confused when he woke up.
24Mr. Weston testified that Constable MacMillan did not have reasonable grounds to arrest him. This was patently incorrect.
25The bar was closed. Mr. Weston's vehicle remained in the parking lot with him in it. It was the only vehicle which was still there. Constable MacMillan had clear reason, if not a duty to check to see if Mr. Weston was impaired by alcohol or suffering some form of medical distress. Constable MacMillan testified that this is what he was doing.
26Upon approaching the vehicle, Constable MacMillan saw Mr. Weston seated in the driver's seat of the vehicle. He was therefore presumptively in care or control of the vehicle. Further investigation led Constable MacMillan to the subjective belief that Mr. Weston's ability to operate the vehicle was impaired by alcohol. That belief was objectively reasonable.
27At that point, Constable MacMillan had reasonable and probable grounds to arrest Mr. Weston.
28During cross-examination, Mr. Weston insisted that it was not possible that a police officer told him he was under arrest. This was much stronger than his evidence in-chief where he said that he did not hear a police officer tell him that. It was also inconsistent with the evidence of Constables MacMillan and Sawatzky, both of whom testified that Constable MacMillan did tell Mr. Weston that he was under arrest.
29Mr. Weston also testified that he had no recollection of being informed of his right to counsel at the time that he was handcuffed, suggesting that this did not happen. Constable MacMillan testified that he notified Mr. Weston that he was under arrest and informed him of his right to counsel twice but Mr. Weston kept interrupting him as he did so, and Mr. Weston refused to acknowledge these.
30I found that Constables MacMillan and Sawatzky showed no animus towards Mr. Weston either that night or in their evidence in court. This was just one more case in which they were involved. Arresting one more impaired motorist was a routine act for them. Informing the person that he was under arrest, reading him the cautions and his right to counsel were all parts of that process. There was nothing to gain by omitting them, and experience should have taught any police officer that failure to do these things could wreck any case that they had against Mr. Weston.
31Mr. Weston on the other hand conceded in cross-examination that his behaviour towards the police officers that night could be described as obnoxious or belligerent, both of which were out of character for him.
32Further, he was not a criminal lawyer, and he had no experience with being arrested. So he had no idea what should be said to him, and considering his state of impairment, he could have easily missed hearing what was said to him by the police officers.
33Further, Mr. Weston had ample motive to recall the events in the manner that he did.
34I found the two police officers to be credible and I believed them when they said that they saw the vehicle move from one parking spot to another in the lot.
35I recognize that there were some differences in their evidence. That was to be expected. Each one made his observations from his own vantage point. I did not find the differences to be of such a nature that there were significant inconsistencies between them. Conversely, they clearly had not collaborated in preparing their notes or their testimony.
36I am satisfied beyond a reasonable doubt that Mr. Weston operated his motor vehicle.
37In any event, I am also satisfied beyond a reasonable doubt that Mr. Weston had care or control of his vehicle at the time that the police officers spoke to him.
38Section 258(1)(a) of the Criminal Code is applicable here since Mr. Weston occupied the driver's seat of his vehicle and he was presumed to be in care or control of his motor vehicle unless he established that he did not occupy that seat for the purpose of setting the vehicle in motion.
39I have already found that Mr. Weston did in fact set his vehicle in motion after he entered it. Accordingly, the presumption has not been rebutted here.
40I do accept that, at some point, Mr. Weston did decide to not drive home and instead sleep in his car until his girlfriend returned and drove him to his apartment in her car. He turned his vehicle off, reclined the driver's seat and went to sleep. I note here that Constable MacMillan testified that he believed that the vehicle was running. His observations and those of Constable Sawatzky were such however that I was not satisfied that the vehicle was running then. Even in those circumstances, I am still satisfied that Mr. Weston was in care or control of the vehicle. My reasons for this are as follows.
41In R. v. Boudreault, the Supreme Court of Canada set out the essential elements of "care or control" as:
(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;
(3) in circumstances that create a realistic risk of danger to persons or property.
42The risk of danger must be realistic and not just theoretically possible. But on the other hand the risk need not be probable, or even serious or substantial.
43An intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control. On the other hand, an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion, without intending at that moment to do so, may nevertheless present a realistic risk of danger.
44In 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.
45Anyone found inebriated and behind the wheel with a present ability to drive should almost invariably be convicted but a conviction is only appropriate if a realistic risk of danger is present in the particular circumstances of the case.
46Anyone who is intoxicated and in a position to immediately set the vehicle in motion faces conviction on those facts alone.
47Fish J stated in R. v. Boudreault that:
I need hardly reiterate that "realistic risk" is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case.
48In this case, Mr. Weston was impaired and in a position to immediately set his vehicle in motion. He had the starter fob on his person. By his own admission, he engaged the parts of his vehicle necessary to close the convertible roof. He could have just as easily started the vehicle and set it in motion.
49Further, his "alternate plan" to ensure his safe transportation home was flawed.
50Fish J discussed such alternative plans in R. v. Boudreault:
52 The impact of an "alternate plan" of this sort on the court's assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused. A plan may seem watertight, but the accused's level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward.
53 For example, even where it is certain that the taxi will show up at some point, if the accused occupied the driver's seat without a valid excuse or reasonable explanation, this alone may persuade the judge that "his judgment [was] so impaired that he [could not] foresee the possible consequences of his actions": Toews, at p. 126, again citing Price at p. 384. 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's seat with a valid excuse or reasonable explanation, the trial judge may nonetheless be satisfied beyond a reasonable doubt that there remained a realistic risk of danger in the circumstances.
51In this case, Mr. Weston planned to remain in his vehicle until his girlfriend drove a co-worker to her home in Hamilton and then returned to the bar to pick him up and drive both of them to his apartment in Burlington.
52The main problem with this plan is that it does not appear that the girlfriend was fully committed to coming back and spending the night with Mr. Weston. In fact, he did not take a cab home and wait for his girlfriend there because he thought that it would be more likely that she would come back to spend the night with him if she knew that he was waiting for her in the parking lot of the bar.
53In other words, the primary purpose of his alternative plan was to increase the likelihood that his girlfriend would return. That did not speak well for the chances that she would do so.
54Mr. Weston acknowledged that it was possible that she would not come back, but he believed that she would.
55He believed that it would take about 40 minutes for her to drive her co-worker home in Hamilton and return, but he did not know when she left.
56He had no plan for what he would do if she did not return.
57That of course left open the very real possibility that should that happen, with his judgment clouded by alcohol, Mr. Weston would simply choose to drive himself home.
58I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Weston had the care or control of his motor vehicle.
59Given that I am also satisfied beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol, I find him guilty of the impaired driving offence and a conviction will be entered.
Did He Assault Constable MacMillan to Resist His Arrest?
60Mr. Weston testified that Constable MacMillan did not have reasonable grounds to arrest him, that he did not tell him he was under arrest, and that he did not assault the officer in any event.
61For the reasons set out above, I did not believe him in this regard either. His evidence did not leave me with a reasonable doubt.
62I have already set out why Constable MacMillan had reasonable and probable grounds to arrest Mr. Weston and I will not repeat those reasons here.
63I also believed Constables MacMillan and Sawatzky when they said that Constable MacMillan told Mr. Weston that he was under arrest and touched Mr. Weston on the arm. Mr. Weston closed the door on Constable MacMillan's arm, and physically resisted being removed from the vehicle and subdued.
64His complaint that they used excessive force in subduing him is belied by the minor injury to his face and the absence of any damage to his colostomy bag.
65I am satisfied beyond a reasonable doubt that Mr. Weston assaulted a peace officer with the intent to resist being arrested and I find him guilty of that offence.
Conclusion
66I find Mr. Weston guilty of impaired operation of a motor vehicle and enter a conviction.
67The over 80 offence is conditionally stayed.
68I find him guilty of assaulting a peace officer.
An Obiter Comment
69This case is just one of a number of cases that I have heard recently in which the accused person and the police officer(s) have given contradictory evidence as to what was said and done during the interaction of the accused person and the police.
70It would have been much simpler for me to determine the correct facts had the police officers been wearing body cameras which provided an audio/video record of exactly what had happened.
71Similarly, a computer record showing which vehicle licence plates were queried by Constable Sawatzky that night, and the times when he did so would also have been helpful.
72Common sense dictates that police officers cannot be expected to record every detail of their activities in their notes and I do not expect them to do so. I do question, however why, at a time when trial time is so valuable, police services are not using technology that is available. An audio-video record of the events could well either shorten trials or in fact eliminate them entirely as one side or the other recognizes the futility of proceeding in the face of such convincing evidence.
Released: July 6, 2017
Signed: Justice D.A. Harris