Court File and Parties

Date: September 19, 2018

Court File No.: Toronto 17 – 45000202

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Mathavan Sivaraman

Before: Justice Paul H. Reinhardt

Heard on: 6, 7 March & 5 September 2018

Reasons for Judgment released on: 19 September 2018

Counsel:

• Joshua Tupper, for the Crown
• Yaroslav Obouhov, for the accused

REINHARDT J.:

Charges

1Mathavan Sivaraman is charged that he did, on 14 January 2017, at the City of Toronto, in the Toronto Region:

(1) Having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, operate a motor vehicle and thereby commit an offence under Section 253, subsection (1), clause (b) of the Criminal Code of Canada.

(2) While his ability to operate a motor vehicle was impaired by alcohol, have the care or control of a motor vehicle and thereby commit an offence contrary to Section 253, subsection (1), clause (a) of the Criminal Code of Canada.

Charter Breach – s. 10(b) "Right to Counsel"

2By Notice of Application, Mr. Sivaraman is seeking a remedy pursuant to the Canadian Charter of Rights and Freedoms:

(a) The exclusion of evidence pursuant to subsection 24(2) of the Charter, based upon the infringement of the applicant's rights under ss. 8, 9 & 10(b) of the Charter due to an unreasonable warrantless search at the roadside in circumstances that required the investigating officer to permit him to speak to counsel before requiring him to give a sample of his breath at the roadside into an approved screening device.

3Counsel for Mr. Sivaraman asserts that because his client's first language is Tamil, informing him of his right to counsel in English only infringed Section 10(b) of the Charter.

4Counsel for Mr. Sivaraman submits that the arresting officer should have taken more steps to establish that Mr. Sivaraman's understanding of English was sufficient to allow him to understand his right to speak to a lawyer.

Proof of "Care or Control"

5Counsel for Mr. Sivaraman is also challenging the sufficiency of the Crown's case.

6Counsel is submitting, on the evidence called at trial, that the Crown has not proven that his client was in "care or control" of his vehicle at the time the police investigated him on Frith Road near his building, where his car was parked.

7Counsel is submitting that the Crown cannot rely upon the presumption of "care or control" set out in s. 258(1)(a) and, further, by the authority of R. v. Boudreault, 2012 SCC 56, has not established "care or control" by proving there was a realistic "risk of danger" in the circumstances revealed in the evidence at trial.

8The Crown resists the Application to exclude the readings, and the defence argument regarding "care or control".

9I have reviewed the evidence and concluded that the second defence argument must succeed.

10I find as a fact that the Crown has not proven an essential element of the offences, to wit, that Mr. Sivaraman had care or control of the vehicle.

11I therefore find that both counts before the court are dismissed.

12These are my reasons.

Summary of Proceedings

13In this proceeding the Crown received in evidence five exhibits:

(1) The Will State of Police Constable Adam Graziosi, Badge No. 4048, 21 Division;

(2) The 911 Call;

(3) The Certificate of Analysis, signed by the Breath Technician, Iulian Andrici, dated 14 January 2017;

(4) Details of the CCTV Record Booking Video, Taking of Samples & Release;

(5) Criminal Record of the Accused;

14As part of the Crown's case, the Crown also called:

(1) Constable Aaron Broad, Badge No. 65817, 31 Division;

(2) Constable Iulian Andrici, Badge No. 8406, Traffic Services;

(3) Constable Jeromy Kraus, Badge No. 10891, 31 Division;

15The defence called the accused, Mr. Mathavan Sivaraman.

SUMMARY OF THE EVIDENCE

Constable Adam Graziosi, Badge No. 4048

16Constable Adam Graziosi's evidence, as stated in his Will State, Exhibit 1, was that on 14 January 2017 he was driving westbound on Frith Road, just east of Jane Street, and observed a vehicle parked on the north side of Frith Road. The driver's door was open and a male appeared to be asleep in the driver's seat. He did not approach the vehicle but called 911 in regards to a possible impaired driver or a possible medical emergency. He waited until the arrival of the police, and then left the scene. He did not investigate because he was off-duty.

Constable Aaron Broad

17Constable Aaron Broad, Badge No. 65817, testified that at 9:16 PM on 14 January 2017 he was in uniform patrol, driving a marked City of Toronto Police vehicle, when he received a radio dispatch advising him of Constable Graziosi's observations of a possible impaired driver in the vicinity of Frith and Jane Street in the City of Toronto.

18Constable Broad testified that at 9:22 he arrived at the scene at 5 Frith Road he observed a 2005 Toyota vehicle with licence plate CAXA 265 properly parked on the north side of Frith Road with the driver's side door open and a male slumped back in the driver's seat, sleeping, his eyes closed with the car keys on his chest.

19Constable Broad testified that he woke up the driver and asked him what he was doing.

20Constable Broad testified that the driver's eyes were red and bloodshot and he detected a very faint odour of alcohol in the vehicle.

21Constable Broad testified that he asked the driver if he was OK and then asked him to step out of the vehicle.

22Constable Broad testified that when the driver attempted to get out of the vehicle he was unsteady on his feet, and as he placed his right foot down on the pavement he almost tripped over his left foot.

23Constable Broad testified that he had to hold the driver upright in order to prevent him from falling down.

24Constable Broad testified that he was satisfied the accused was aware of his surroundings, knew he was parked at the roadside near his building that he was being investigated for a possible impaired driving charge.

25Constable Broad testified that as he began to question the driver he noted an odour of alcohol emanating from the driver's breath.

26Constable Broad testified that, at 9:26 PM, based on his observations he made a demand that the driver provide a sample of his breath into an approved road-side screening device ("ASD"), and requested that an ASD be brought to the scene by Constable Shin, from 31 Division.

27Constable Broad testified that he next requested that the driver identify himself, and the driver provided him with his documents which revealed that the driver was the accused, Mathavan Sivaraman, date of birth 30 January 1961, and residing at Suite 710, 5 Frith Road, Toronto.

28Constable Broad testified that he advised the accused of his right to consult counsel of his choice.

29Constable Broad testified that when the ASD arrived he checked the machine, and demonstrated to the accused the use of the machine.

30Constable Broad testified that, in the presence of the accused he blew into the machine, which registered a "pass", and was satisfied that it was in working order.

31Constable Broad testified that the accused made multiple attempts to blow into the ASD, but the initial blows into the machine were not sufficient to provide a suitable sample to permit the machine to produce a reading.

32Constable Broad testified that on his fourth attempt, at approximately 9:38, Mr. Sivaraman produced a suitable sample and a reading of "fail".

33Constable Broad testified that, as a result, he arrested Mr. Sivaraman on a single count of "over 80" and read him his "right to counsel" from the back of his memo book.

34Constable Broad testified that, following the ASD fail and arrest he removed the accused from his vehicle and placed him in the rear of his police vehicle.

35Constable Broad testified that, once in the police vehicle, there was a strong odour of alcohol coming from the area occupied by the accused.

36Constable Broad testified that he next drove Mr. Sivaraman directly to 32 Division, the nearest police division with a breathalyser technician on standby to administer a test.

37Constable Broad testified that at approximately 10:00 he arrived with Mr. Sivaraman at 32 Division and at approximately 10:12 Mr. Sivaraman was paraded before the Officer-in-Charge.

38Constable Broad testified that Mr. Sivaraman spoke to duty counsel in the secure phone room at the station, and then, shortly after 10:38 PM he was taken into the Breath Room, where he was interviewed by the Breath Technician, Police Constable Andrici.

39Constable Broad testified that Mr. Sivaraman provided suitable samples to Constable Andrici as recorded in Exhibit 3, disclosing truncated readings of 150 milligrams of alcohol in 100 millilitres of blood, at 10:48:02, and a further reading of 140 milligrams of alcohol in 100 millilitres of blood at 11:25:52.

Constable Jeromy Kraus

40Constable Jeromy Kraus, Badge No. 10891, testified that when he and Constable Broad arrived at 9:22 PM on 14 January 2017, he observed the accused, Mr. Sivaraman lying curled up "sideways" in the driver's seat of his vehicle.

41Constable Jeromy Kraus testified that he approached the car from the passenger side.

42Constable Kraus was able to confirm that Mr. Sivaraman needed the assistance of Constable Broad to be able to exit the driver's seat and make his way to the rear of the police vehicle.

43Generally, except for the description of Mr. Sivaraman's precise position in the driver's seat he corroborated Constable Broad's observations.

44Constable Kraus also described Mr. Sivaraman's demeanour as being "cooperative" throughout the time he was able to observe him interacting with him and other officer's at the scene and at the station.

Mathavan Sivaraman

45Mr. Sivaraman testified that he was born in Sri Lanka, and was fifty-seven-years-old, at the time he testified.

46Mr. Sivaraman testified that he has lived in Canada for thirty years.

47Mr. Sivaraman testified that he works in a factory in which the language spoken is Tamil.

48Mr. Sivaraman testified that on the night in question, during the police investigation, in which he was asked questions and gave answers, during which he understood some, but not all of what was said to him.

49Mr. Sivaraman testified that he did speak to duty counsel, but the conversation was very brief.

Mr. Sivaraman's Interaction with his car

50Mr. Sivaraman testified that on the day in question he had parked his car on Frith Avenue and walked the short distance to his apartment where he watched a Raptor game and drank beer in the afternoon.

51He testified that he returned to his car later in the evening, after drinking in his apartment, to retrieve his wallet, which he had left in his car.

52He testified that he did at no time, after he parked his car, and consumed alcohol, intend to drive his vehicle.

53He testified that he went to the car just for time to himself.

54In cross-examination he testified that in the afternoon he had consumed four bottles of Heineken beer and a two-ounce shot of vodka.

55He testified that he did not explain much about his situation to the officers because of his limited English, and the fact they spoke very quickly.

LEGAL FRAMEWORK

Operation while impaired

Section 253(1) of the Criminal Code provides:

Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

Proceedings under section 255

Section 258(1) of the Criminal Code provides:

In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 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, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be; (Emphasis added)

CASE LAW

The Legal Framework

56In the leading case of R. v. Boudreault, 2012 SCC 56, Justice Morris Fish, speaking for the majority in the Supreme Court of Canada, provided a clear statement of the law with respect to the meaning of "care or control" in s. 253(1) of the Criminal Code.

57The facts were that, the accused, Mr. Boudreault was inebriated and unfit to drive when it was time for him to return home after a night of drinking. At his request, a taxi was called for him, for which he had to wait outside. It was a cold and windy February morning. And he got into his truck, started the engine, turned on the heat and fell asleep. When the taxi arrived, the driver called the police. Mr. Boudreault was arrested and charged with having care or control of a motor vehicle (1) while his ability was impaired by alcohol and (2) with more than 80 mg of alcohol in 100 mL of his blood, contrary to ss. 253(1)(a) and (b) of the Criminal Code. He was acquitted on both counts at trial because the trial judge found as a fact that there was no realistic risk of danger.

58The Crown appealed the trial judge's ruling on the basis that the trial judge erred in two ways:

(1) In concluding that "risk of danger" was an element of the offence; and,

(2) In his finding that there was no such risk on the facts of the case;

59The Quebec Court of Appeal allowed the Crown's appeal and entered convictions. The Court considered that an intention to drive is not an essential element of the offence. The Court of Appeal further concluded that the trial judge had erred in considering a lack of intention to drive as an appropriate element in considering whether there was a risk of setting the vehicle in motion.

60The Quebec Court of Appeal concluded that the trial judge had, in effect, conflated the legal test for "care or control" into the sole issue of the driver's intention or lack of intention to drive as dispositive of whether there was a "realistic risk of danger". In its view:

[TRANSLATION] "there was such a risk given the respondent's advanced state of intoxication, since his blood alcohol level was more than three times the legal limit and this might have greatly affected his judgment had he woken up" (para. 6).

61At the Supreme Court, Justice Fish did not disagree with the Quebec Court of Appeal's conclusion that "risk of danger" was a factor to be weighed in evaluating whether an accused was in "care or control" of the vehicle.

62However, he concluded that the trial judge's reasons and findings of fact clearly demonstrated his recognition that "risk of danger" was a live issue, and, in fact, concluded that the Crown had not proven that here was a "risk of danger" in Boudreault.

63Finally, Justice Fish, in his reasons, concluded that not only was "risk of danger" a factor to consider, it was an element of the offence, in the circumstances of the case at trial, where the presumption in 258(1)(a) has been rebutted.

Justice Fish's Reasoning in Restoring the Trial Judge's Verdict of Acquittal

64Justice Fish began is summary of the law with respect to "care or control" by elaborating on the way "risk of danger" fits into the evaluation of whether the Crown has proven "care or control":

25 I turn now to consider the issue of general application that concerns us here: Is risk of danger an essential element of the offence of care or control under s. 253(1) of the Criminal Code?

26 As mentioned earlier, I believe that it is.

27 In recent years, five provincial appellate courts have reached the same conclusion: R. v. Wren (2000), 47 O.R. (3d) 544, leave to appeal refused, [2000] 2 S.C.R. xii (and again, more recently, in R. v. Smits, 2012 ONCA 524, 294 O.A.C. 355); R. v. Decker, 2002 NFCA 9, 209 Nfld. & P.E.I.R. 44, leave to appeal refused, [2002] 4 S.C.R. vii; R. v. Burbella, 2002 MBCA 105, 166 Man. R. (2d) 198; R. v. Shuparski, 2003 SKCA 22, [2003] 6 W.W.R. 428, leave to appeal refused, [2003] 2 S.C.R. x; R. v. Mallery, 2008 NBCA 18, 327 N.B.R. (2d) 130.

28 With respect for those who have adopted an opposing view, I agree with Robertson J.A. in Mallery, that "[t]he concept of danger provides a unifying thread which promotes certainty in the law while balancing the rights of an accused with the objectives of the legislation" (para. 4).

29 The divergence of opinion on this question may find its roots nearly a half-century ago in Saunders v. The Queen, [1967] S.C.R. 284, where the accused, while impaired, was found in the driver's seat of an inoperable vehicle but was nonetheless convicted of "care or control" while impaired. To the extent that Saunders may be interpreted to exclude a risk of danger as an element of "care or control", it has since been overtaken by subsequent decisions of the Court, notably R. v. Toews, [1985] 2 S.C.R. 119, and R. v. Penno, [1990] 2 S.C.R. 865.

30 In Toews, McIntyre J. held that

acts of care or control, short of driving, are acts which involve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous. [Emphasis added; p. 126.]

31 And in Penno, citing Toews, Lamer C.J. reaffirmed the requirement of risk of danger in these terms:

The law ... is not deprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to drive is impaired in a motor vehicle. In fact, Toews stands for the proposition that when a person uses a vehicle in a way that involves no risk of putting it in motion so that it could become dangerous, the courts should find that the actus reus was not present. [Emphasis added; p. 877.]

The Evaluation of a "Realistic Risk of Danger"

65Justice Fish summarizes his conclusion on "Realistic Risk of Danger" beginning at paragraphs 32 to 35 of his judgment:

32 Parliament's objective in enacting s. 253 of the Code was to prevent a risk of danger to public safety: Toews, at p. 126, citing R. v. Price (1978), 40 C.C.C. (2d) 378 (N.B.S.C., App. Div.), at p. 384. Accordingly, conduct that presents no such risk falls outside the intended reach of the offence.

33 In this light, I think it helpful to set out once again the essential elements of "care or control" under s. 253(1) of the Criminal Code in this way:

(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.

34 The risk of danger must be realistic and not just theoretically possible: Smits, at para. 60. But nor need the risk be probable, or even serious or substantial.

35 To require that the risk be "realistic" is to establish a low threshold consistent with Parliament's intention to prevent a danger to public safety. To require only that the risk be "theoretically possible" is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct.

The s. 258(1)(a) "Presumption" and the Proof of a "Risk of Danger"

66Justice Fish next explains how the consideration of "risk of danger" interacts with the "presumption" found in the language of s. 258(1)(a), that a person found in the driver's seat of a motor vehicle shall be deemed to have "care or control" of the vehicle unless the accused establishes otherwise:

36 It is settled law that an intention to set the vehicle in motion is not an essential element of the offence: Ford v. The Queen, [1982] 1 S.C.R. 231. This may appear anomalous in view of the presumption set out at s. 258(1)(a) of the Criminal Code, which provides that an accused who was found in the driver's seat of a motor vehicle

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 ... .

37 Accordingly, an accused found in the driver's seat will be presumed, as a matter of law, to have care or control of the vehicle, unless the accused satisfies the court that he or she had no intention to drive - an intention that, pursuant to Ford, is not an essential element of the offence!

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 ... .

67Justice Fish makes clear that s. 258(1)(a) will by necessity require trial judges to initially evaluate the trial evidence, including, potentially, the testimony of the accused, in assessing whether the presumption in the Code has been rebutted on the evidence.

68Thus, by Justice Fish's reasoning in Boudreault, it is only where the accused has successfully rebutted the presumption in the Code, that the trier-of-fact has must then go on to a consideration of "risk of danger".

69Authority for this reading of Boudreault may be found in Justice Gary Trotter's decision in R. v. Blair [2014] O.J. No. 4296.

70In R. v. Blair, the trial judge had no doubt that Mr. Blair's ability to drive was impaired by alcohol. There was no dispute that Mr. Blair was found in the driver's seat of the van and that he attempted to start the vehicle at least eight times. The trial judge then made the following findings:

In Mr. Blair's situation before me, I find that there was no direct evidence, nor any evidence from which I could reasonably infer that he could put the vehicle in motion, either accidentally or intentionally. I find he clearly had the intention to do so. The motor was not operable because the starter motor was not functioning, thereby, the gasoline motor, necessary to move the vehicle, was not functioning. There was at least eight occasions where he was making an attempt, with mens rea, but there was no possibility for the actus reus to happen.

71In Blair the trial judge then, relying on Justice Fish's decision in R. v. Boudreault concluded that, notwithstanding the operation of the presumption of "care or control" in s. 258(1)(a) of the Criminal Code, the Crown was still required to prove a realistic risk of danger to persons or property. He concluded that the Crown had failed to prove this element and dismissed the charge.

72Justice Trotter, as he then was, overturned the trial judge's acquittal, and entered a conviction. In his reasons he explained why he did so:

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.

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.

73In support of his reading of Boudreault, Justice Trotter relies on the reasoning found in the Queen's Bench of Alberta judgment by Justice Browne, again sitting as a Summary Appeal Court, in R. v. MacKenzie (2013), 2013 ABQB 446, 50 M.V.R. (6th) 119 (Alta. Q.B.):

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 added]

I agree.

74Justice Fish's judgment then moves to the question of how the Crown may prove "care or control", where the presumption has been rebutted:

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.

75Justice Fish reviews the trial judge's reasoning on the question of risk and concludes, contrary to the interpretation of the trial judge's decision by the Quebec Court of Appeal, that the trial judge clearly addressed the question of risk:

23 Daoust J. of the Court of Quebec held that where there is no risk of putting a motor vehicle in motion, the courts must conclude that there is no care or control within the meaning of s. 253(1) of the Code. In his view, no such risk existed in this case. Mr. Boudreault, though intoxicated, knew what he was doing and took all the necessary precautions. From his own prior experience, Mr. Boudreault was well aware of the gravity of driving while impaired. He had a concrete and reliable plan to get home. And finally, the evidence established that his plan would in fact have prevented him from driving - it was the driver of the taxi he had summoned who called the police.

76Justice Fish also, in his reasons, starting at paragraph 40, gives examples of how "risk" might arise, more generally, in such cases:

40 I agree with Justice Cromwell that Parliament's purpose in enacting the care or control provision was preventive, and directed at the inherent danger that normally arises from the mere "combination of alcohol and automobile": Saunders, at p. 290. With respect, however, I believe this supports my view that Parliament's intention in enacting s. 253(1) of the Criminal Code was to criminalize only conduct that creates a realistic risk of danger.

41 A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an 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.

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.

77Justice Fish's ruling clarifies that the trier-of-fact must first make findings with respect to the statutory presumption in s. 258(1)(a) and the accused's intention with respect to driving.

78Justice Fish's ruling thus requires the trier-of-fact to first decide, by a review of the evidence, whether the accused has rebutted the presumption in s. 258(1)(a). If the accused has not rebutted the presumption, the Crown burden to prove "care or control" has been met.

79If the trier-of-fact is satisfied that the accused has rebutted the presumption, then and only then, the trier-of-fact must separately consider whether the Crown has proven the essential elements of the offence, without the benefit of the presumption.

80To say this another way, it is only in circumstances where the accused has rebutted the presumption in s. 258(1)(a), and "care or control" remains a live issue, that the Crown must establish a "realistic risk of danger" in order to prove "care or control".

81In my view, in drawing the distinction between proving that an accused was in the driver's seat and proving a "risk of danger", Justice Fish provides trial judge's with an important clarification regarding the reasoning by which they must weigh the evidence on these two distinct factors at trial in order to decide whether or not the Crown has proven "care and control".

ANALYSIS

82In light of Justice Morris Fish's reasons in Boudreault, supra, and the interpretation by Justice Trotter, in Blair, I will now look at the facts in the case at bar.

The Presumption in s. 258(1)(a)

83Mr. Sivaraman has testified that he had no intention to drive.

84In this case there is no evidence of a time of driving.

85Unlike many of the cases and examples discussed in the case law, there is also no evidence in this trial of Mr. Sivaraman attempting to put the car in motion or drive, proximate to the time he was investigated.

86Moreover, because the car was parked properly on a residential side street, immediately adjacent to his apartment building, in my view, there can be no inference drawn that Mr. Sivaraman would have a reason to drive his vehicle that evening.

87Thus, on the evidence, I am satisfied that Mr. Sivaraman has rebutted the presumption in s. 258(1)(a), and the Crown cannot rely upon the presumption to prove "care or control" in this trial.

The Realistic Risk of Danger

88The Crown submits that the "risk of danger" has been made out on the proven facts at trial, including the testimony of the accused.

89With respect, I must disagree.

90In Boudreault, at paragraph 35, Justice Fish states:

35 To require that the risk be "realistic" is to establish a low threshold consistent with Parliament's intention to prevent a danger to public safety. To require only that the risk be "theoretically possible" is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct.

91In my view, on the facts proven at trial, the Court would have to speculate to conclude that there was a realistic risk of a danger to public safety that evening.

92The case law suggests two distinct circumstances in which a realistic risk of danger might arise:

(1) The realistic risk that the vehicle will be put in motion;

(2) The position of a stationary vehicle, by its location on a public highway, railway, or transportation corridor could realistically cause another vehicle to collide with the accused's vehicle, thus endangering persons or property;

93I accept the Crown evidence that Mr. Sivaraman had alcohol in his system at the time of the police investigation of him that evening.

94I also accept the Crown evidence that the driver's side door was open at the time the police observed Mr. Sivaraman sleeping in the driver's seat.

95I also accept that Constable Broad had to assist Mr. Sivaraman to exit the vehicle, because of his condition at the time the police arrived on the scene.

96I also accept Mr. Sivaraman's testimony that his vehicle was parked on a side street, next to the apartment building in which he resided.

97I find that the car's close proximity to Mr. Sivaraman's residence, makes it unlikely that he would have any reason to drive the vehicle that evening.

98Thus, it seems to me extremely unlikely that Mr. Sivaraman would change his mind or unintentionally set the vehicle in motion.

99I find that the car was safely parked, was not blocking the road or interfering with access to driveways or vehicular and pedestrian traffic on Frith Road.

100Thus, despite the driver's door being left open, I find that the location of the parked vehicle, and Mr. Sivaraman's presence in the vehicle that evening, posed no foreseeable danger to the light volume of traffic on Frith Road, a quiet side street serving mostly residential single family houses.

101In my view, the location of the vehicle, and the fact that the driver's door was open, could not give rise to a realistic likelihood of danger to persons or property that evening and thus endanger the safety of others.

102I therefore am not convinced that the evidence before this court provides the basis for a finding to the criminal standard of proof that Mr. Sivaraman had "care or control" of the vehicle by virtue of proof of a realistic danger to persons or property.

103I therefore find that the Crown has not proven "care or control" beyond a reasonable doubt.

104In the result, I will find Mr. Sivaraman not guilty of the offences as charged.

Released: 19 September 2018

Signed: "Justice Paul H. Reinhardt"