Court Information

Ontario Court of Justice

Date: October 10, 2019

Central East Region (Oshawa)

Between:

Her Majesty the Queen

— and —

Michael Espinola

Before: Justice F. Javed

Heard on: February 5, 6, 19, June 12, July 16, September 27, 2019

Reasons released on: October 10, 2019

Counsel

M. Hill — counsel for the Crown

P. Stiles — counsel for the Applicant/Defendant

A. Overview

1Michael Espinola (the Applicant/Defendant) was tried before me for the offences of operating a motor vehicle with a blood alcohol concentration ("BAC") that exceeded 80mgs of alcohol in 100mls of blood and having care or control of a motor vehicle while impaired by alcohol contrary to the Criminal Code ("Code"). The trial commenced on February 5, 2019 with Mr. Espinola launching an application under the Charter of Rights and Freedoms ("Charter") alleging that his rights under ss.8, 9 and 10(b) had been violated. As a remedy for these alleged violations, he sought to exclude his breath samples. After deliberating on that application, I rendered written reasons explaining that Mr. Espinola had succeeded in proving that his rights under s.10(b) had probably been violated and the appropriate remedy was to exclude the breath samples under s.24(2) of the Charter. The applications under ss.8 and 9 were dismissed.

2On September 27, 2019, the trial proceedings were set to continue. After receiving the Charter ruling but prior to resuming with the trial, Mr. Espinola launched another Charter application, this time alleging his right to be tried within a reasonable time as guaranteed by s.11(b) of the Charter had been violated. He sought a stay of proceedings under s.24(1) of the Charter. After some discussion, the parties agreed that I should consider the merits of the s.11(b) motion before proceeding with the trial. After hearing submissions, I gave a "bottom-line" ruling dismissing the s.11(b) motion. I indicated I would provide fulsome reasons later. I did so to allow the trial to continue and avoid any further delays.

3The Crown closed its case without calling any other evidence. The defence elected to call no evidence. Both parties made submissions on the merits of the case. The Crown submitted that the evidence proves beyond a reasonable doubt that Mr. Espinola was impaired by alcohol and occupied the front seat of a motor vehicle and therefore in law, is presumed to be in care or control of a motor vehicle. The Crown says there is no evidence rebutting the presumption and this is enough to find him guilty. Alternatively, his actions constituted a realistic risk of danger which is another route to find him guilty of the offence. The Crown invites the court to dismiss the exceed 80mgs offence in light of the Charter ruling.

4Mr. Stiles agrees the exceed 80mgs offence should be dismissed but disagrees that the Crown's evidence proves that Mr. Espinola was in care or control of a motor vehicle while impaired by alcohol. He argues the evidence on the blended voir dire rebuts the presumption of care or control and factually, there is insufficient proof that there was a realistic risk of putting the vehicle in motion. He says the risk of danger, if any, was theoretical and not enough for a conviction.

5These reasons will address both outstanding issues. I will explain why I dismissed the s.11(b) motion. However, as I will also explain, this Charter ruling was inconsequential, as I have concluded that the evidence does not prove beyond a reasonable doubt Mr. Espinola's guilt on the care or control count. In my view, the statutory presumption of care or control in s.258(1)(a) of the Code has been rebutted and does not apply. Further, I am not satisfied that the Crown has proven that there was a realistic risk of danger to ground a conviction based on proof of de facto care or control. I find that Mr. Espinola occupied the motor vehicle for the sole purpose of smoking a cigarette and there was no realistic risk of putting the vehicle in motion or creating a dangerous set of circumstances.

6Before I turn to the merits of the case, I will first address the s.11(b) issue as it was argued on a full record. Given the time and energy put into arguing the issue, it is only fair to respond to the argument in a meaningful way.

B. The Section 11(B) Motion

7On January 5, 2018, Mr. Espinola was charged with the offences. This date was well after the Supreme Court rewrote the law on unreasonable delay in the seminal case of R. v. Jordan, 2016 SCC 27. The central feature of the new Jordan framework is the creation of a presumptive ceiling of 18 months for a proceeding in the Ontario Court of Justice. In other words, if the proceeding exceeds 18 months, it is presumptively unreasonable subject to the Crown justifying the delay. The parties agree on the framework that applies in calculating net delay but disagree on how that framework applies to the facts of this case. There is agreement that that the anticipated completion date of the trial was September 27, 2019, which results in a total delay of 629 days or approximately 21 months. This is presumptively unreasonable as it exceeds 18 months.

8The parties also agree that any delay which resulted from the court rendering reasons on the s.11(b) motion should not be considered as part of the total delay. Here, this would mean the time period from September 27, 2019 to October 10, 2019, the date set for rendering reasons on the merits of the trial. This represents a period of 13 days: R. v. J.M., 2017 ONCJ 4, [2017] O.J. No. 256 at paras. 97-108 per Paciocco J. (sitting as a trial judge). The delay occasioned by a mid-trial 11(b) motion was not squarely addressed by the Court of Appeal in R. v. R.M., 2019 ONCA 419. I did not have to resolve it in this case given the agreement that J.M. is correct. I have assumed it is. In any event, I was alive to this issue with my "bottom line" ruling, which permitted time for the parties to complete the trial. In my view, the additional 13 days does not add much to my reasons for dismissing the s.11(b) motion. This will become evident in my reasons.

9A review of the trial record reveals the following chronology. I have attempted to calculate delay in days. I have used short-forms for certain events, which should be self-explanatory.

Date	Event	Delay in Days
January 5, 2018	Applicant is charged
January 25, 2018	Information sworn	20
January 30, 2018	First appearance, disclosure received	5
February 20, 2018	Defence adjournment for crown pre-trial (CPT)	21
March 6, 2018	2nd CPT. JPT date could not be set	14
March 13, 2018	Judicial pre-trial (JPT) set for May 17, 2018	6
May 17, 2018	JPT not held because defence not prepared for JPT. Court estimated 1 day trial, all parties agree. Section 11(b) waived until June 12, 2018	65
June 12, 2018	JPT endorsed as held but record does not reflect a comprehensive JPT was conducted. Defence could not advise on specific Charter issues nor number of defence witnesses. Trial dates set for February 5, 6, 2019. Unclear how 2 days estimated but all parties agreed to 2 days. Earlier date of January 21 offered, but defence not available.	26
February 5, 2019	Trial started with defence Charter motion.	238
February 6, 2019	Charter motion continued. Defence granted leave to amend Charter motion mid cross-examination of Crown witness. Crown opposed but didn't seek adjournment. Court permitted amendment. Adjourned to February 19, 2019 for continuation.	1 day. [Anticipated end date as projected by the parties: 397 days or 13.2 months]
February 19, 2019	Charter motion continued with more evidence. Adjourned to June 12, 2019 for continuation. (Two sentencings on that date). On this date, Crown called QBT and Defence called 3 witnesses on Charter motion.	13
June 12, 2019	Charter motion continued with defence evidence of 4th witness and submissions on Charter issues. Adjourned to July 16, 2019 for judgment. Court offers earlier date (as little as one week) for reasons, defence not available.	112
July 16, 2019	Judgement on Charter rendered. Crown counsel not available due to holidays until August 6, 2019. Date of September 27, 2019 offered.	34
August 28, 2019	Section 11(b) Charter motion filed by Defence
September 27, 2019	Trial continuation. Section 11(b) motion argued and dismissed. Submissions on trial heard. Court reserves until October 10, 2019 for reasons on s.11(b) motion and judgment on trial.	73
	Total delay (as agreed) = 629 days or approximately 21 months

10According to the above calculation, the total delay is 629 days or approximately 21 months. There is disagreement about what constitutes defence delay, which is to be subtracted from the total delay to determine the net delay. The Crown argued the following blocks of time represented defence delay:

• 25 days (May 17-June 12, 2018) where the defence waived delay;
• 7 days (March 6-13, 2018) when the defence wasn't ready;
• 60 days when the defence couldn't conduct a JPT as they had no instructions;
• 14 days (January 21-February 5, 2019) when the defence was not available on an earlier date offered by the court.

The Crown says when this is taken into account and deducted, the net delay is around 17 months, which is therefore under the presumptive ceiling and otherwise reasonable because of exceptional circumstances, namely an honest miscalculation of trial estimates by both parties. The Crown says this was not defence misconduct but rather a discrete event based on the conduct of the case.

11The defence disagrees and argued the net delay was 18 months and 11 days, which was amended from the first calculation of 19 months and 11 days because the court offered an earlier date to render judgment on the Charter issues, which the defence did not accept due to unavailability. Mr. Stiles submitted this still exceeds 18 months and is presumptively unreasonable and should result in a Charter violation and a stay of proceedings under s.24(1).

12In my view, the defence delay in this case is based on the combination of the unavailability of defence counsel (16 and 25 days) plus the period waived by the defence, which was 25 days for a total of 66 days. The defence also agrees that it is responsible for 12 additional days when it wasn't ready, for a total of 78 days. Without deciding whether this concession was correct in law, I will accept it when calculating the net delay. The Crown submits all other delay in the intake phase falls at the feet of the defence. Respectfully, I disagree. While it is true that the defence (not Mr. Stiles) wasn't ready to conduct a JPT and when it was done, it would appear, not fully ready to conduct a meaningful one, there is nothing on the record that suggests the Crown (not Mr. Hill) was anxious to move the case forward. I would therefore apportion the delay at the intake stage as institutional. Accordingly, 78 days must be deducted from the overall delay. In this way, I agree with the defence that the net delay is 18 months and 11 days. This is still beyond the presumptive ceiling established in Jordan and requires a response from the Crown.

13Mr. Hill submitted that the delay occasioned after the trial started should also fall at the feet of the defence. Mr. Hill was careful in not labeling this as defence misconduct but rather defence delay because of decisions made as the trial unfolded which could (and should) have been contemplated earlier. It was argued this would have avoided an artificial 2 day trial estimate when a more accurate trial estimate was closer to 3 days, if not more. While there is appeal to this argument, in the circumstances of this case, I am not prepared to attribute all of the mid-trial delay as being caused by the defence. I say this for two reasons. First, the record is clear that the court had a busy docket on both days set for trial. While this was unfortunate, it is a symptom of a busy courthouse and cannot be avoided. The court took steps to mitigate this problem by rendering written reasons without reading them into the record and offering earlier dates.

14The second reason is more compelling. The record reveals that Mr. Stiles was not counsel who stickhandled the case in the intake phase, nor counsel involved in the JPT stage. Without casting any aspersions on counsel, Mr. Stiles launched a Charter application which had merit and fell on his sword by confessing he inadvertently missed pleading a s.10(b) issue in his materials, which was evident in the disclosure. He sought leave to argue the issue, which was granted. It turned out that this privacy issue along with other right to counsel issues, had merit. The defence could not be criticized for discharging their professional duties. The conduct of both Mr. Stiles and Mr. Hill, for that matter, was above reproach and professional. Both should be commended. In the case of Mr. Hill, he did not seek an adjournment after leave was granted to the amend the Charter materials. This was a reasonable position to take and consistent with his Jordan obligations. In R. v. Faulkner, 2018 ONCA 174, Watt J.A. held at para. 144: "defence delay includes not only acts, but also omissions; substance as well as procedure": R. v. Cody, 2017 SCC 31, 349 C.C.C. (3d) 488, at paras. 32-33. While there is appeal to the submission that omissions (even if inadvertent) should count as defence delay, I do not view these as unreasonable omissions. They were not done with a view to manufacture delay.

15That said, there is a stronger case for the Crown's alternative submission that there were exceptional circumstances that would justify reducing the net delay below 18 months. Mr. Hill says an honest miscalculation of the trial estimate and an expanded Charter application mid-trial was an event nobody anticipated and was an exceptional circumstance. I agree.

16In Faulkner at para. 139, Watt J.A. explained that "exceptional circumstances" are those that lie outside the Crown's control in the sense that:

i. the circumstances are reasonably unforeseen or reasonably unavoidable; and

ii. the Crown cannot reasonably remedy the delays emerging from the circumstances once they arise.

Further, Watt J.A. continued:

[138] The Crown does not establish exceptional circumstances simply by pointing to a past difficulty. More is required. And that "more" is a showing that the Crown took reasonable and available steps to avoid and address the problem before the delay exceeded the ceiling. This includes but is not limited to resort to available procedural devices to move the case forward: Jordan, at para. 70.

[139] By their very nature"exceptional circumstances" are not conducive to a closed list. That said, at least as a general rule, exceptional circumstances fall into two categories:

i. discrete events; and

ii. particularly complex cases.

Jordan, at para. 71.

17Here, the record reveals that all parties proceeded on the basis that a 2 day trial would be sufficient. There is no indication that the defence would be calling 4 witnesses as part of its case on the Charter motion. While there is no reverse disclosure obligation, the cultural shift after Jordan means all parties have to work together to minimize delay. This means taking trial estimates seriously, which means being prepared to address the issue when called on. While I don't know when a 3 day trial would have been offered (and accepted) by the parties, I can reasonably conclude that it would have avoided staggering the trial dates as they were in this case. As a Judge sitting in the Durham region, I can draw upon my experience by concluding that there has historically been no issue with meeting the Jordan deadlines provided the trial estimates are reasonable. For the most part, justice moves swiftly in this courthouse. This was not a complicated case but became bogged down based on an inaccurate time estimate. I agree with the Crown that this is an exceptional circumstance.

18Moreover, Mr. Hill attempted to mitigate the delay by taking steps such as not requesting an adjournment when the court permitted the defence to expand the Charter application. It's unclear what else the Crown could have done to move the case along because the proverbial ball was in the hands of the defence on the Charter application.

The court was alive to delay issues and attempted to mitigate the issue. In June, 2019, the court raised the issue of delay and inquired how much more time would be needed to finish the case. Both parties agreed on 2 hours, which in the end, was accurate but resulted in a further delay of months, not days. The reason for this additional delay was exceptional because it was outside the Crown's control. Mr. Stiles advised he wasn't available in June, 2019 to receive judgment but also took the position that he preferred receiving judgment on the Charter issues before getting instructions on how to proceed. As a result of this position, Mr. Hill quite appropriately advised he couldn't estimate how much more time would be needed to finish the trial. The parties agreed to receive the Charter ruling in July, 2019 and then fix additional trial time. This could have been avoided. It resulted in an additional court appearance where Mr. Hill was not available due to summer holidays. A relevant factor in assessing the reasonableness of any delay is the absence of any interest on the part of an accused about moving the case along: R. v. Pyrek, 2017 ONCA 476, 349 C.C.C. (3d) 554, at para. 26; R. v. St. Amand, 2017 ONCA 913, at paras. 104-106. There is no evidence that the defence sought out earlier dates or complained before delay became a live issue. Respectfully, the slow pace of the litigation was orchestrated by the defence, not Crown counsel. Or at the very least, it was outside the purview of Crown counsel.

19In my view, the inaccurate time estimate, which resulted in a staggered and delayed trial, was an exceptional circumstance. See for example, R. v. Jurkus, 2018 ONCA 489, [2018] O.J. No. 2899 at para. 55. It would be unreasonable to lay this mid-trial delay solely at the Crown's feet. While it's hard to quantify how much of this mid-trial delay should be deducted from the overall delay, I have no hesitation in deducting at least 11 days, which brings the net delay below 18 months. I would even be inclined to deduct months, not just days from this amount. Accordingly, the net delay was presumptively reasonable. I'm not satisfied that the defence has established that this case took markedly longer than it reasonably should have. Respectfully, Mr. Espinola was the architect of his own delay, which in the end, inured to his benefit by a successful Charter application.

20Accordingly, the s.11(b) application had no merit and was dismissed.

21I now turn to the merits of the trial.

C. Has the Crown Proven That Mr. Espinola Committed the Offence of Having Care or Control of a Motor Vehicle While Impaired by Alcohol Beyond a Reasonable Doubt?

22The Crown can prove the offence of care or control by three means. The first is by proof of actual driving while impaired by alcohol. The second is to rely on the rebuttable presumption in section 258(1)(a) of the Code by proving that Mr. Espinola was in the driver's seat of his vehicle where it is presumed that he was in care or control. The third is to prove de facto care or control, without the presumption, by establishing there existed a realistic risk of danger in the circumstances. See R. v. Smits, 2012 ONCA 524, [2012] O.J. No. 3629 (C.A.) at paras. 48-51; R. v. Agyemang, 2014 ONSC 4232, [2014] O.J. No. 5047 (S.C.J.); R. v. Amyotte, [2009] OJ No. 5122 (SCJ) at para. 97.

23The parties agree that the record upon which the court must assess this issue is the blended evidence that was lead on the Charter issues. In particular, this included the evidence of the Crown's witnesses including, Mr. Guarini who called 911, the arresting officer, PC Gupta, the expert opinion from Dr. Daryl Mayers from the CFS, the Intoxilyzer Test Record (Exhibit 2), Google Maps (Exhibit 5); a DVD recording of the phone room (Exhibit 1), a DVD recording of the sally port in the police station (Exhibit 6) and the evidence of Mr. Espinola's uncle, Lou Espinola. It does not include the evidence of Mr. Espinola and his mother, Nellie Longlad who testified on the voir dire. Mr. Hill correctly reminds me that I must disabuse from my mind, the evidence of Mr. Espinola and his mother as the defence did not call any evidence on the trial issues.

24However, there is more evidence to consider. In examination in chief, the Crown lead the utterances of Mr. Espinola to PC Gupta when he was first investigated occupying the front seat of the motor vehicle. For context, PC Gupta asked him what he was doing generating a response: "He stated he was sitting the car just for a smoke with his cousin who was the passenger because it was cold outside". This evidence arose in the context of the blended Charter voir dire and is arguably a self-serving statement. Importantly, nobody objected to its admission nor argued about its use on the trial issues. This becomes important because Mr. Espinola did not testify on the trial raising the question of its admissibility and use. In my view, the utterance was admissible and can be used substantively in the trial for the following reasons. First, the parties were alive to the issue of what evidence was being lead on what issue. Mr. Stiles did not examine PC Gupta on the contents or circumstances of the utterance, suggesting he was not challenging him on it. In fairness, it was the Crown who adduced the statement, it had no bearing on the officer's grounds and it was relied on by counsel in submissions as supporting their position. While Mr. Hill took the position there was no defence evidence, Mr. Stiles clearly took a contrary view, that his client's explanation was in evidence. As such, the positions of the parties, suggests it should be used by the court for substantive reasons. In any event, it defeats fairness, which is the animating principle of a criminal trial.

25Second, and perhaps more importantly, I find that had the issue been argued, it would have been admissible as a res gestae exception to the hearsay rule. This exception permits introduction of spontaneous utterances made during a startling occurrence of excitement or provoking event. A res gestae statement is admissible where "the statement itself forms part of the incident giving rise to the charge": R. v. Edgar, [2010] ONCA 529 at para 35. Strict contemporaneity between the event and the statement is not required; reasonable contemporaneity will suffice. The question is whether the stress or pressure of the event is still operating at the time the words are spoken. Justice Pomerance explained the doctrine in R. v. Hillis, [2016] O.J. No. 817 (Ont. Sup. Ct.) at para. 33:

Where evidence meets the requirements for admission as res gestae, it is not necessary to conduct a separate analysis of necessity and reliability R. v. Starr, 2000 SCC 40, 2000 S.C.C. 40, [2000] 2 S.C.R. 144; R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358. Unlike the Edgar exception, a statement that qualifies as res gestae is admissible whether or not the declarant -- in this case, the accused -- testifies at trial.

26In this case, I'm satisfied the utterance of Mr. Espinola when confronted by PC Gupta about what he was doing, was a spontaneous utterance. There was no chance to invent, which makes it reliable. As an exculpatory utterance of the accused, it is subject to the same credibility evaluation as any other evidence: D.W. v. the Queen (1991), 63 C.C.C. (3d) 397.

(i) The Positions of the Parties

27Mr. Hill argued that liability for the offence flows three ways. First, the court should find that the circumstantial evidence proves Mr. Espinola drove a motor vehicle, while impaired by alcohol to his uncle's townhouse complex based on the evidence of Mr. Guarini. Second, the evidence also establishes Mr. Espinola was in the front seat of a motor vehicle while impaired by alcohol which creates a presumption of care or control in s.258(1)(a) of the Code which has not been rebutted on a balance of probabilities and third, there is proof of de facto care or control because there existed a very realistic risk of danger.

28Mr. Stiles responded to each submission by arguing there is no proof that Mr. Espinola was impaired by alcohol, which he says arose largely from the evidence of PC Gupta which should be discredited. Second, the evidence as a whole should leave the court with a reasonable inference that Mr. Espinola has rebutted the presumption of care or control because there is evidence he was only in the car to smoke a cigarette. He never had any intention to drive. Finally, the Crown hasn't proven de facto care or control because any risk of danger was at best theoretical.

29Section 253 of the Code creates an offence which requires proof of driving or being in care or control where the voluntary consumption of alcohol has impaired one's ability to drive. The mens rea requires proof of operation or assuming care of control after the voluntary consumption of alcohol: R. v. Toews (1985), 21 CCC (3d) 24 (SCC).

30The Crown must prove impairment related to Mr. Espinola's ability to operate a motor vehicle, not just impairment in general. Any degree of impairment ranging from slight to great, may establish the offence: R. v. Stellato (1993), 78 CCC 380 (Ont. C.A.); aff'd (1994), , 90 CCC 160 SCC; R. v. Moreno-Baches, 2007 ONCA 258, [2007] O.J. No. 1314 (CA). Moreover, slight impairment to drive relates "to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment having regard for the rules of the road, and the like": R. v. Censoni, [2001] O.J. No. 5189 at para. 47 (Ont. Sup. Ct.).

(ii) Proof of Impairment

31Mr. Hill submitted the evidence of Mr. Guarini and the observations of impairment of PC Gupta prove Mr. Espinola was in fact "impaired" even to a slight degree. Mr. Stiles disagreed arguing that Mr. Guarini's evidence was equivocal on this issue and PC Gupta's evidence should be discredited.

32Respectfully, I disagree with the defence position. As I noted in my reasons on the Charter issues, I found Mr. Guarini to be credible in his account. I rely on my findings in my earlier ruling but in particular, he saw Mr. Espinola "down a beer" before he left the bar and based on his experience as a bartender, believed he was intoxicated. I accept he saw him stumble over a step and show other signs of impairment. I also accept that PC Gupta smelled alcohol on his breath and saw other signs consistent with impairment. For example, he saw brown and glassy eyes, detected a slurred response and saw some slow movements when retrieving his driving documentation. While I accept that Mr. Espinola had a recent jaw surgery, this does not cast doubt on the question of impairment. I find as a fact Mr. Espinola's ability to perform a complex motor function was impaired by the consumption of alcohol to a slight degree. However, the evidence does not establish he was inebriated or intoxicated. Far from it. As evidenced by the videotaped evidence, he had good control of his dexterity and physical movements.

(iii) Proof of Actual Care or Control

33The next issue is whether there is proof that Mr. Espinola drove a motor vehicle while impaired. I disagree with the Crown that the circumstantial evidence proves actual driving. I accepted that Mr. Guarini saw Mr. Espinola enter a vehicle with a passenger who fit the same description of Mr. Espinola. However, this is not a case where a witness saw one party and testified this person was the driver. Here, Mr. Guarini was clear that he saw two white men enter a car. He agreed that one of the two men was wearing a black jacket but he couldn't be sure who. Almost thirty minutes later, Mr. Espinola was wearing a dark green jacket when he occupied the front seat of the car. This casts some doubt on the theory that Mr. Guarini saw him drove the car from the bar to the townhouse. Given the gap in time (30 minutes), the fact that he was in the driver's seat later on, doesn't mean he must have been the driver. Had the gap been much shorter, this inference would have been stronger. I simply don't know if Mr. Espinola or his cousin drove home. Identification evidence is notoriously unreliable. Given the evidence on this issue, it would be unsafe to find that the only reasonable inference is that Mr. Espinola drove the vehicle while he was impaired by alcohol. This theory of liability does not succeed.

(iv) Proof of Care or Control by Presumption

34The Crown's next argument is the second route of liability. There is no doubt that Mr. Espinola was found by PC Gupta occupying the front seat of a motor vehicle. The law, as it then was, created a rebuttable presumption of care or control which means Mr. Espinola can rebut the presumption by proving on a balance of probabilities that his intention in occupying the front seat wasn't to drive: R. v. Appleby (1972), 3 C.C.C. (2d) 354 (S.C.C.); R. v. Whyte (1988), 42 C.C.C. (3d) 97 (S.C.C.). Under this route, the Crown doesn't have to prove a realistic risk of danger: R. v. Blair [2014] OJ No. 4296 (CA); Agyemang, supra.

35In R. v. Tharumakulasingam, [2016] O.J. No. 1575 (Ont. Sup. Ct.), Justice Code explained that the relevant time frame for any rebutting evidence concerning an accused's intention to drive is the point when the accused entered the driver's seat, that is, he must show that his occupancy began without the purpose of setting the vehicle in motion. See also R. v. Hatfield (1997), 115 C.C.C. (3d) 47 (Ont. C.A.).

36In my view, the evidence as a whole proves that Mr. Espinola probably occupied the front seat of the motor vehicle without the purpose of setting the vehicle in motion. I say this based on the following evidence:

• Mr. Espinola was investigated at approximately 3:00 am, which is indicative of a time when one reasonably has arrived at their final destination as opposed to a time where it may be reasonable to infer they may be travelling again. This suggests he formed the intention to stay, as opposed to leave;

• Mr. Espinola was investigated in the car smoking a cigarette with his cousin Jonathan. There's no evidence that the vehicle was ready to move;

• When confronted with what he was doing in the car, he told PC Gupta he was sitting in the car for a smoke with his cousin who was the passenger because it was cold outside. I find this was both credible and reliable given the circumstances in which it was uttered; and

• The evidence of his uncle Lou Espinola which was largely unchallenged, proves that Mr. Espinola was in fact staying with him at his house during the time as opposed to visiting. In other words, it's not the case that he was simply dropping off his cousin at his house, then would be proceeding to his own house. Lou Espinola was clear his nephew was staying with him and would park his car in the visitor's lot, the location where he was investigated by PC Gupta. Moreover, his uncle testified that he didn't like his son or anybody else smoking cigarettes in his home, which makes the inference he went to his car to smoke a stronger one.

37In R. v. Zheng, 2012 ONCJ 687, Justice Nakatsuru (as he then was, now on the Superior Court of Justice) held at para. 10 that all the circumstances must be considered before applying the presumption. Those circumstances must be applied to the issue of the accused's intent to set the car in motion, not merely his intent to occupy the driver's seat. Here, like Zheng, the defendant didn't testify on this issue but didn't have to, as there was evidence lead by the Crown through PC Gupta relating to his intention. I'm satisfied Mr. Espinola occupied the front seat for the sole purpose of staying warm while having a cigarette on a cold night, after arriving home. As a result, I find that the presumption in s.258(1)(a) is not applicable.

(v) Proof of De Facto Care or Control

38Turning next to the third route of liability. The Crown can still prove de facto care or control by showing there existed a realistic risk of danger that Mr. Espinola would have performed some act(s) involving the vehicle or its fittings whereby the vehicle may have unintentionally been set in motion. The law is clear that the act or conduct of the accused in relation to the motor vehicle must be such that it created a risk of danger, whether from putting the car in motion or in some other way: R. v. Wren, [2000] O.J. No. 756 (C.A.), leave to appeal refused [2000] S.C.C.A. No. 235 (SCC). Danger is an essential element of care or control. The risk of danger must be realistic and not just theoretically possible. However, it need not be probable, significant or even substantial: R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 at paras. 34-35. The Supreme Court in Boudreault outlined examples of how a realistic risk of danger may arise:

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.

39Moreover, the determination of a realistic risk of danger is a finding of fact and the standard of proof that must be met by the Crown is to be assessed on a "low threshold": R. v. Balogun-Jubril, [2014] O.J. No. 4268 (S.C.J.) at para. 50.

40Mr. Stiles submits the risk in this case was a theoretical one because Mr. Espinola was not impaired where through poor judgment, or otherwise, the vehicle would be set in motion by accident. His intention was fixed on smoking a cigarette and nothing more. Alternatively, he says even if he was impaired, there was no realistic risk as proven by the Crown. He relied on the decision of R. v. Levy, [2015] O.J. No. 2669 (Ont. Prov. Ct.) as supporting his position.

41In R. v. Smits, 2012 ONCA 524, [2012] O.J. No. 3629, the Ontario Court of Appeal cited, with approval, the analysis of Durno J. in R. v. Szymanski, [2009] O.J. No 3623 (SCJ) on the analysis of risk of danger. At paragraph 63, the Court wrote: "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".

42In applying the Szymanski factors to this case, I find as follows:

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: As noted above, I found Mr. Espinola was factually impaired but his level of impairment was not extreme nor close to it. The likelihood of him exercising bad judgment was remote.

b) Whether the keys were in the ignition or readily available to be placed in the ignition: There's evidence that the car was on but I have considered this against the undisputed evidence that it was bitterly cold outside, thus it was on for heat.

c) Whether the vehicle was running: There is evidence that the vehicle was "running" at the time he first occupied the driver's seat: R. v. Cadieux, [2004] O.J. No. 197 (C.A.).

d) The location of vehicle: The vehicle was located in a parking lot of a townhome complex. Little other evidence was lead that might suggest if it was in a situation of danger.

e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination: I find that Mr. Espinola had arrived "home" for the night. It was after 3 am and he was outside for a smoke. With the 30 minute or so gap in time, it suggests his intention was fixed on staying home for the night.

f) The accused's disposition and attitude: Based on the evidence of PC Gupta, Mr. Espinola was not and did not act like a "drunk" person who had lost control of their senses. While argumentative after being arrested, that's to be expected. I saw the videotaped evidence and its clear Mr. Espinola was not belligerent but rather calm and cooperative.

g) Whether the accused drove the vehicle to the location of drinking: There is no evidence that Mr. Espinola drove to the bar. As noted above, I have a doubt that he was reliably identified as operating the vehicle by Mr. Guarini.

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: The undisputed evidence is that Mr. Espinola occupied the car to have a cigarette in the cold weather.

i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit: I find that Mr. Espinola was already home when investigated.

j) Whether the accused had a stated intention to resume driving: There's no evidence of any desire to remain driving. In fact, the opposite is more reasonable.

k) Whether the accused was seated in the driver's seat regardless of the applicability of the presumption: Mr. Espinola was seated in the front seat of the car.

l) Whether the accused was wearing his or her seatbelt: There's no evidence about this factor.

m) Whether the accused failed to take advantage of alternate means of leaving the scene: There's no evidence about this factor.

n) Whether the accused had a cell phone with which to make other arrangements and failed to do so: There's no evidence about this factor.

o) Could the immoveable vehicle create a risk of danger? There's no evidence the vehicle was immoveable.

43Having considered the evidence as a whole, I'm not satisfied that the Crown has proven de facto care or control beyond a reasonable doubt. Mr. Espinola occupied the driver's seat to smoke a cigarette because it was cold outside. I agree with Mr. Stiles that the finding that Mr. Espinola may have unintentionally put the car in motion and therefore create a risk of danger is theoretical, unrealistic and speculative. All the evidence points to the direction that he was home for the night, wasn't going to drive anywhere else and would have gone inside after finishing his cigarette if he wasn't intercepted by the police. I treat this as affirmative evidence suggesting the absence of a risk of the vehicle being accidentally or negligently set in motion: R. v. Hannemann, [2001] O.J. No. 1686 (S.C.J.). There's nothing to suggest he would have changed his mind and do something with the vehicle to create a realistic risk of danger. I have considered this issue with a view to the cases and found the case of R. v. Bulmer, [1999] O.J. No. 4406, affirmed [2000] O.J. No. 4416 (Ont. C.A.) where the Court of Appeal upheld a conviction based on the reasoning that an impaired person who inserts a key into the ignition creates a risk of putting the vehicle in motion which could be dangerous. However, Bulmer was decided before the Supreme Court's decision in Boudreault, which explains how the issue of risk is to be assessed. For example, in R. v. Leblanc, [2016] O.J. No. 6944, Justice Bishop acquitted an accused who entered his vehicle for a legal purpose and took no active steps to operate his vehicle.

44Mr. Stiles relied on the reasoning in Levy, which was penned by Justice Copeland, then of the Ontario Court of Justice, now of the Superior Court of Justice. I have reviewed the careful and persuasive analysis of the issue by Justice Copeland. I agree with Mr. Stiles it is "on all fours" with this case. In Levy, the same legal issues were argued on virtually the same factual record where the accused was smoking in a car while intoxicated. Copeland J. held at para. 42, that the evidence did not show that the accused abandoned the plan to spend the night at a friend's house or there was a realistic risk she might abandon her plan due to her level of intoxication. As explained above, I made the same findings in this case. Copeland J. also held at para. 44 that any risk of accidentally putting the car in motion was theoretical and not a realistic one that was proven beyond a reasonable doubt. The same applies to this case. Finally, Copeland J. remarked at para. 45: "However, Boudreault is also clear that conviction is not automatic based on a finding that the defendant was impaired and in the driver's seat of a motor vehicle: Boudreault, supra at paras. 33-35, 41-42, 45, 48". Levy is not inconsistent with binding authority because of the findings that were made. I adopt the reasoning on this record which was somewhat unique given the way the evidence unfolded. This is not to say that a person who has consumed alcohol should use their car to smoke. It makes good common sense they shouldn't. Whether it amounts to illegal conduct, is not always a matter of common sense.

45For the above reasons, I find that Mr. Espinola has rebutted the presumption in s. 258(1)(a) of the Code. Further, I am not satisfied beyond a reasonable doubt that he was in care or control of the motor vehicle at the relevant time.

46Since there is no other admissible evidence to prove Mr. Espinola's guilt, both charges will be dismissed.

47I would like to thank both counsel for their helpful written material and oral advocacy.

Released: October 10, 2019

Signed: Mr. Justice F. Javed