ONTARIO COURT OF JUSTICE DATE: 2022·01·10 COURT FILE No.: Peterborough 21-0217
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
WILLIAM LEAHY
Before: Justice S. W. Konyer
Heard on: January 5 and 7, 2022 Reasons for Judgment released on: January 10, 2022
Counsel: Mr. K. Doyle, counsel for the Crown Mr. D. Lemaire, counsel for the defendant William Leahy
KONYER J.:
1William Leahy is charged with operating a motor vehicle while his ability to operate that vehicle was impaired by a drug on January 16, 2021. There is no evidence that Mr. Leahy ever drove his vehicle while he was impaired. However, the term “operate” includes having the care or control of a motor vehicle: Criminal Code, s.320.11. There is no dispute that Mr. Leahy was impaired when he was discovered by police passed out in the driver’s seat of his vehicle. What I must decide in this case is whether the Crown has proven that he had the care or control of the vehicle at that time.
2Care or control can be proven in one of two ways. Where a person occupies the driver’s seat of a motor vehicle, s. 320.35 creates a rebuttable presumption that they are in care or control of the vehicle. The Crown relies on this presumption in Mr. Leahy’s case, meaning that he must be found in care or control unless he proves, on a balance of probabilities, that he did not occupy the driver’s seat for the purpose of setting his vehicle in motion. If Mr. Leahy does not rebut the presumption, that is the end of the matter and he must be found guilty since the defence concedes that all other elements of the offence have been proven.
3If Mr. Leahy does rebut the presumption of care or control, then the Crown relies on the second method of proof, which is de facto care or control. The Crown must prove de facto care or control beyond a reasonable doubt. This means proving that Mr. Leahy engaged in an intentional course of conduct involving the vehicle while impaired in circumstances that created a risk of danger to persons or property: R. v. Boudreault, 2012 SCC 56, at para. 9. The risk must be realistic and not a remote or speculative possibility. In Mr. Leahy’s case, the Crown says the risk arises from the possibility that he would change his mind and drive while impaired, or the risk that he would unintentionally set the vehicle in motion while impaired.
4This was a short trial and the facts are largely undisputed. I will first summarize the relevant evidence, make findings of fact, and then consider the relevant law. This will allow me to determine the following issues:
- Did Mr. Leahy rebut the presumption of care or control?
- If so, has the Crown proven there was a realistic risk that Mr. Leahy would drive while he was impaired or that he would unintentionally set his vehicle in motion?
Summary of the evidence
5Mr. Leahy was seen passed out in the driver’s seat of his vehicle, which was parked in the visitor lot at Royal Gardens, a retirement home in Peterborough. An employee of the home noticed him slumped over the wheel of his car during her afternoon break. When she finished her shift about an hour later, he was still in the same position, so she called police. Both times the engine appeared be running as she could see exhaust coming from the tailpipe.
6PC Plumbe responded and observed Mr. Leahy slumped over in the driver’s seat of his vehicle. The engine was running. The officer knocked on the driver’s window and received no response. He opened the driver’s door and shook Mr. Leahy awake. He detected an odour of marijuana emanating from the vehicle. Mr. Leahy exited the vehicle and displayed obvious signs of impairment. PC Plumbe took photos of the interior of the vehicle prior to and after waking Mr. Leahy. These showed that Mr. Leahy had passed out with the driver’s seat reclined and his phone in his lap. A bong and marijuana paraphernalia were all present on the front passenger seat.
7Mr. Leahy provided PC Plumbe with a driver’s licence showing an address on Third Avenue, which was just around the corner from the location where his vehicle was parked. He told PC Plumbe that his parents did not allow him to smoke marijuana in their home, that he had been using marijuana daily since age 17, and that he gets sick without it. These statements were admitted on consent as prior consistent statements. He was arrested for impaired operation and transported to the police detachment where a sample of his urine was seized and sent to the Centre of Forensic Science (CFS) in Toronto for analysis.
8Emily Medeiros is a toxicologist at the CFS who testified as an expert witness on consent. She analyzed Mr. Leahy’s urine and detected the presence of Carboxytetrahydrocannabinol, which indicates the prior use of cannabis. While she could not offer any opinion on the quantity or recency of the consumption of cannabis by Mr. Leahy, she did say that cannabis consumption can cause euphoria, relaxation, motor incoordination, and an inability to concentrate. It can affect one’s judgment and decision-making, and impairs one’s ability to safely operate a motor vehicle.
9Mr. Leahy testified. He shares a home with his brother and parents on Third Avenue. They all live in the basement of a bungalow owned by his parents. The ground floor is occupied by a tenant. The driveway is shared, with one lane for 5 vehicles owned by their family – a pickup truck and sports car owned by his father, and 3 cars owned respectively by his mother, brother and himself. Their tenant also owns a vehicle and has a lane of the driveway to herself. The portion of the driveway shared by the Leahy family can only accommodate 4 of their 5 vehicles, so one of the vehicles has to be parked elsewhere. In summer months Mr. Leahy or his brother park their vehicle on the street. In winter months when street parking is prohibited, they take turns parking in the visitor lot of the Royal Gardens retirement home, which is just around the corner. They have been doing this for years without issue, as the visitor lot is generally not well used. They switch places every few days during the winter months.
10Mr. Leahy suffers from depression and anxiety. He has been using marijuana chronically for about 10 years to relieve these issues. His parents do not approve of his marijuana use, and he does not consume marijuana inside the home. He normally consumes marijuana inside his vehicle, whether it is parked in his parent’s driveway or at the retirement home parking lot. At the time he was charged, he was working weekdays at an automotive dealership in Cobourg. On work days he would consume marijuana in his car after returning home from work, and again before bed. January 16, 2021 was a Saturday, which was a day off. He woke late in the morning. He and his mother argued, a common occurrence due to the cramped nature of the living quarters. The tension in the home was running high, and Mr. Leahy decided to leave the home to consume marijuana in his vehicle. His car was parked in the driveway, and he also needed to move it to the retirement home lot as it was his brother’s turn that day to use the driveway.
11Mr. Leahy drove to the retirement home lot and parked properly in a visitor’s space. He then shut off the vehicle and consumed marijuana, which he kept in a knapsack in the back seat. He reclined the driver’s seat and relaxed while watching youtube videos on his phone, which was his normal routine. After a while, due to the cold temperature, he started the engine in order to use the heater. He fell asleep in that position. Mr. Leahy said that he had no intention of driving the vehicle after it was parked. His plan was to simply walk home, which takes about two minutes, after he had consumed marijuana and relaxed. This is a routine he has followed many times previously.
Findings of fact
12There is no dispute that Mr. Leahy’s ability to operate a motor vehicle was impairment by his voluntary consumption of marijuana, and I make that finding. There is also no dispute that he occupied the driver’s seat of his vehicle while in an impaired state.
13I believe the testimony of Mr. Leahy entirely. He provided a coherent and understandable narrative that made sense. He did not embellish his testimony, and was unshaken in cross-examination. He had a good recollection of details and there was nothing about the manner in which he testified that caused me any concern.
14I find that he was sober when his occupancy of the driver’s seat began. I find that he drove his car from his parent’s driveway to the retirement residence and parked it there with the intention of leaving the vehicle in that spot after he finished smoking marijuana and relaxing. I find that he intended to walk home once he had finished, just as he had done on many prior occasions. In fact, it would have made no sense for him to drive his car home as there would have been nowhere for him to park. The whole point in moving the car to the retirement home lot was to avoid having to park on the street and risk getting towed or ticketed. I therefore find that he relinquished any intention of setting his vehicle in motion once he parked in the retirement home lot.
Has Mr. Leahy rebutted the presumption of care or control?
15Section 320.35 of the Criminal Code provides that “if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the vehicle in motion.” Section 320.11 defines operate to include care or control. The Crown says that Mr. Leahy has not rebutted the presumption since he commenced occupation of the driver’s seat with the intention of setting the vehicle in motion by driving it to the parking lot while sober. Since he never stopped occupying the driver’s seat, it does not matter what his intention was at the time the police found him in the vehicle. As a matter of law, according to the Crown, he simply cannot rebut the presumption on the facts of this case since he continuously occupied the driver’s seat after forming the intention to set the vehicle in motion.
16The Crown makes this argument based on the decision of the Ontario Court of Appeal in R. v. Hatfield, [1997] O.J. No. 1327. In that case, the accused had been drinking in a restaurant and entered his vehicle while impaired and drove a short distance before pulling over to sleep. He was found in the driver’s seat, with the seat reclined and the keys in the ignition. On appeal, he argued that the presumption of care or control should not apply because at the time he was discovered his intention was no longer to drive, but to sleep. The Court of Appeal disagreed, ruling at para. 19 that “where an intoxicated person is discovered occupying the driver’s seat of a vehicle, the presumption will apply unless the person can demonstrate that his or her occupancy began without the purpose of setting the vehicle in motion.” This is because Parliament’s intent in enacting the presumption was to discourage intoxicated people from getting behind the wheel of a vehicle. That intent would be defeated if an intoxicated person who drove and subsequently pulled over to sleep it off could rebut the presumption on the basis that their purpose in occupying the driver’s seat had changed.
17The Court of Appeal affirmed the Hatfield rule in the subsequent case of R. v. Miller, 2004 CarswellOnt 1418, affirming [2002] O.J. No. 4896 (S.C.J.). In that case, the accused also got behind the wheel of his vehicle in an intoxicated state after drinking at a bar for several hours. He started to drive home, then pulled over to sleep it off. He was found sleeping behind the wheel with the engine running and the heater on. The trial judge found that the presumption did not apply because at the time he was discovered he no longer had the intention to set the vehicle in motion. The conviction was overturned on summary conviction appeal and affirmed by the Court of Appeal for the reasons set out above from Hatfield.
18Since Mr. Leahy concedes that his occupancy of his driver’s seat began with the intention to set the vehicle in motion, the Crown says he cannot rebut the presumption based on Hatfield and he must therefore be found guilty. I do not agree. In both Hatfield and Miller, the court was dealing with persons who commenced occupancy of a driver’s seat while impaired and with the intent to drive. In Mr. Leahy’s case, he possessed the intent to set his vehicle in motion only when he occupied the driver’s seat while sober. In my view, what Hatfield and Miller mean is that the presumption applies unless an accused can prove that their impaired occupancy of the driver’s seat did not begin with an intention to set the vehicle in motion.
19I reach this conclusion for reasons of simple fairness. In Hatfield and Miller, the relevant time considered by the court for the commencement of their occupancy of the driver’s seat after each exited a bar and entered their vehicle while intoxicated. Each of them had the intention of driving while intoxicated and in fact did. When each was later tried for alcohol driving offences, the Court of Appeal held that the presumption of care or control should apply unless they can prove that their occupancy of the vehicle when they were impaired did not commence with an intention to set the vehicle in motion. Such an application of the presumption discourages intoxicated people from occupying the driver’s seat when their intent is to set the vehicle in motion. However, if the presumption always applies when the occupancy of the driver’s seat begins with the intent of setting the vehicle in motion, there will of necessity be some case where it applies unfairly – namely where the accused begins occupation of the vehicle in a sober condition with the intent of moving it and then relinquishes that intent before becoming intoxicated without ever leaving the driver’s seat. Such cases will be rare, but not unheard of – the present case is an example, as are Baird and Jones, which I will discuss in more detail later.
20To deprive a morally blameless accused of the opportunity to rebut the presumption could result in miscarriages of justice. An accused person who moves a vehicle while sober and then becomes intoxicated with no intention of moving the vehicle further would be deprived of the opportunity to rebut the presumption. They would not be entitled to prove, if they could, that they had no intention of setting the vehicle in motion while impaired since they had earlier driven while sober and never left the vehicle. For example, I could find that Mr. Leahy was using his vehicle effectively as a room, a private place to relax and consume marijuana outside of his parent’s home, that he never set the vehicle in motion once impaired, that he never had any intention of setting the vehicle in motion once he began consuming marijuana, that there was no realistic risk that he would set the vehicle in motion once impaired and still be required to convict him. I cannot accept that the Court of Appeal in Hatfield or Miller intended such a result.
21Further, such a reading of Hatfield and Miller would lead to potentially absurd results. Had Mr. Leahy kept his marijuana in the trunk of his vehicle rather than in the back seat, he would have had to exit the driver’s seat once he parked the car. He would then have been able to rebut the presumption as a result of momentarily setting foot outside his vehicle. I cannot agree that criminal liability should depend upon such an arbitrary distinction.
22These concerns can be avoided by focussing on the evil that Parliament sought to eradicate by enacting the presumption in the first place, and asking whether Mr. Leahy has proven that he did not have any intention of driving once his impaired occupancy of the driver’s seat began. If he can prove this on a balance of probabilities then there is no principled reason to prevent him from being given this opportunity.
23A similar conclusion was reached by Wein J sitting as a summary conviction appeal court in R. v. Baird, [2008] O.J. No. 5758. In that case, the accused, an alcoholic, drove to a store and purchased liquor and then returned home and parked in her building’s parking garage. In order to avoid conflict within her home, she consumed alcohol in her vehicle to the point where she became intoxicated and fell asleep. She never left the driver’s seat, and was impaired when she was later discovered by police. The Crown argued that she could not rebut the presumption due to the Hatfield and Miller line of reasoning.
24The court recognized, at para. 14, that the presumption was designed to discourage intoxicated people from getting behind the wheel, and noted the distinction for Ms. Baird, who was using her vehicle simply as a convenient location to consume alcohol without causing a conflict with her family. Wein J rejected the Crown’s argument, holding at para. 13 that “[a] better approach is to acknowledge that where there is neither drinking before stopping nor a risk nor intention to drive later, the broad approach to the presumption taken in Hatfield cannot apply in principle.” A Crown appeal to the Ontario Court of Appeal was dismissed: 2009 ONCA 287.
25A similar conclusion was also reached in R. v. Jones, [2013] O.J. No. 6056 (C.J.). In that case the accused drove sober to a location where his car stalled and could not be restarted. He made efforts to restart the engine while sober and seated in the driver’s seat. When these failed he began consuming alcohol and became impaired without any interruption in his occupancy of the driver’s seat. The Crown argued that Hatfield applied and the presumption could not be rebutted because Mr. Jones began his occupation of the driver’s seat with the intention of setting the vehicle in motion. The court distinguished Hatfield on the basis that Hatfield’s occupation while intoxicated began with the intent to drive. The presumption was thus available to Mr. Jones.
26I am aware that other courts have reached the opposite conclusion: see R. v. Ahunu-Kumi, [2006] O.J. No. 2285 (S.C.J.), at para. 8; R. v. Thomas, [2020] ONSC 5375 (S.C.J.); R. v. Szymanski, [2009] O.J. No. 3623 (S.C.J.), at paras. 35-65. I prefer and adopt the reasoning of in Baird, and Jones, supra. I find that Mr. Leahy had no intention of operating his vehicle once his impaired occupation of the driver’s seat began. He is entitled to an opportunity rebut the presumption.
27There is also authority for the proposition that an accused can rebut the presumption of care or control by proving a change in mind where the occupancy of the driver’s seat began for the purpose of setting the vehicle in motion. In R. v. Tharumakulasingam, 2016 ONSC 2008, Code J heard a summary conviction appeal from a conviction for impaired care or control. In that case, the accused had been involved in an accident and was pinned in the driver’s seat when police arrived. There was no dispute that his occupation of the driver’s seat had begun with the intention of driving and it was clear that he had never ceased occupying the driver’s seat. The accused argued that the trial judge had erred in finding that the presumption applied. Code J held as follows at para. 8:
Given that the Appellant had clearly been driving the car immediately before the accident and had therefore initially taken up his position in the driver’s seat for that purpose, the only way to rebut the presumption in this case was to prove that his intention to drive had changed after the accident and before the police arrived at the scene and found him still sitting in the driver’s seat with the engine running and the lights on. See: R. v. Wren (2000), 144 C.C.C. (3d) 374 (Ont. C.A.); R. v. Milne, 2012 ONSC 5779, at para. 23. [emphasis in original]
28The appellant argued that the trial Judge had erred by ending her analysis of the issue with a finding that the accused had begun his occupation of the driver’s seat with an intent to set the vehicle in motion without going on to consider whether he had rebutted the presumption by proving a change in mind. Code J disagreed, holding at para. 10 that “the trial judge accurately identified the Wren and Milne issue concerning a change in intention, and asked herself whether the Appellant ever “relinquished control” or whether there was “continuing care or control” after the accident.” Therefore, even if I am wrong in my reading of Hatfield and Miller that the relevant point in time is the beginning of the impaired occupancy of the driver’s seat, I must still go on to consider whether Mr. Leahy has rebutted the presumption by proving that he relinquished control of the vehicle after parking it.
29In the circumstances of this case, I am satisfied that Mr. Leahy had no intention to drive his vehicle once he became intoxicated. I find that he relinquished control of the vehicle once he parked it. From that point forward he was using his vehicle simply as a room in which to relax and consume marijuana. For all of these reasons, I find that he has rebutted the presumption of care or control.
30Of course, this is not the end of the matter. I must no go on to consider whether the Crown has proven that there was a realistic risk of harm to persons or property in the circumstances.
Has the Crown proven a realistic risk of harm?
31A realistic risk of harm can be proven in different ways. On the facts of this case, the Crown argues that there was a realistic risk that Mr. Leahy would change his mind and drive, or that he could have unintentionally set his vehicle in motion. To secure a conviction, the Crown must prove beyond reasonable doubt that either risk was real and not merely speculative.
32With respect to change of mind, the Crown points to the fact that Mr. Leahy conceded in cross-examination that he has friends in Peterborough who live beyond walking distance of his home. According to the Crown, it was therefore reasonably possible that he would change his mind and drive to a friend’s house rather than walking home, where he had previously been arguing with his mother. In my view the risk of this occurring is nothing more than speculation. I believe Mr. Leahy that he was acting in accordance with a well-established pattern of using his vehicle as a room to consume marijuana. I believe that he intended to return home by walking the short distance to his parent’s residence. There is nothing in the evidence to suggest he had any other intent. The Crown has failed to prove a realistic risk that Mr. Leahy would change his mind about driving.
33Nor was there any realistic risk that he would unintentionally set the vehicle in motion. The vehicle had an automatic transmission and was in “Park”. In order to be set in motion, three things would have to simultaneously occur: the brake pedal would need to be depressed, the button on the gearshift would need to be depressed, and the gearshift would have to be moved from “Park” into “Reverse” or “Drive”. It is simply inconceivable that this series of events could unintentionally occur all at the same time. The Crown has failed to prove that any realistic risk existed of the vehicle being unintentionally set in motion.
34In conclusion, Mr. Leahy has rebutted the statutory presumption of care or control. The Crown has not proven that he was in de facto care or control. Accordingly, he is found not guilty.
Released: January 10, 2022 Signed: “Justice S. W. Konyer”