ONTARIO COURT OF JUSTICE DATE: 2024 06 25 COURT FILE No.: Pembroke 23-37100086

BETWEEN:

HIS MAJESTY THE KING

— AND —

POLINA DUBROVINA

Before: Justice J.R. RICHARDSON

Heard on: June 6, 2024 Reasons for Judgment released on: June 25, 2024

Counsel: Lori Crewe........................................................................................... Counsel for the Crown Adrian Cleaver............................................................................. Counsel for the defendant

RICHARDSON J.:

Introduction

Introduction

1The accused is charged with one count of having care or control of a conveyance with a blood alcohol reading of 80 or more milligrams in 100 millilitres of blood contrary to section 320.14(1)(b) of the Criminal Code.

2The Crown’s case is admitted, but for the issue of “care or control”.

3The Crown relies on the statutory presumption of care or control in section 320.35 of the Criminal Code. Alternatively, the Crown argues that it has proven de facto care or control pursuant to R. v. Boudreault.

The Evidence

The Evidence

4Polina Dubrovina had a bad day on November 17, 2022.

5At the time, she was employed in shipping and receiving for the Dairy Department of the Walmart in Pembroke, Ontario. She worked there for about five years. She was working there at the time of the alleged offence. She left Walmart about seven months before her trial. She is now working for a fast food restaurant.

6Polina is originally from Russia. She came to Canada in 2007. She moved to the Valley in 2016 from Niagara. At the time of her trial, she was 44 years of age. She speaks English well, but she has an accent. At the outset of the trial, I asked her if she would be more comfortable testifying in Russian with an interpreter. She replied that she wanted to testify in English.

7She has been the subject of workplace harassment and discrimination because she is Russian. She claims that this harassment and discrimination has been condoned by all of her superiors at the Pembroke Walmart store. The harassment and discrimination included being mocked for having an accent and being abandoned in her department to unload trucks by herself without help. Her co-workers were all younger than she was. She stated that when the trucks came in, they “disappeared”. They took longer than normal smoke breaks and they would hide in the washrooms on their phones.

8She described the workplace as “toxic”; she also said that “they destroyed my life.” She said that despite the environment, she liked to work and she worked seven days a week. It would seem that other than her husband’s pension income, she is the main breadwinner for the household.

9As I noted, she continued working at Walmart even after these allegations arose. She stated that the harassment got even worse after the beginning of the Russia-Ukraine war; she found this especially difficult to deal with because she considered herself both Russian and Ukrainian.

10On the date in question, she unloaded three trucks by herself. She asked for help from co-workers and no one would help her. She said that when there was work to be done, her co-workers would be elsewhere. When she complained to management, they did nothing.

11Polina worked a 7:30 to 3:30 day shift. She drove herself to work in her husband’s truck. She had about half an hour for lunch.

12Unfortunately, Polina has a problem with alcohol. When she is under stress, she drinks. As the evidence unfolded, it became clear that Polina had previously been convicted of impaired driving and completed some residential treatment. Due to this experience, both Polina and her husband say that she does not drive when she has been drinking.

13On the day in question, at lunch time, Polina walked over to the LCBO, which is in the same plaza as the Walmart. She purchased two large cans of some “strong beer”. She told me that the beer was 7% alcohol. She drank some alcohol at lunch before she went back to work. She could not say exactly how large the cans were or what brand of beer she was drinking. Her husband described her drink of choice as tall boy cans of strong beer.

14She left some un-consumed alcohol in the truck. I did not hear evidence with respect to what, if any, alcohol or remnants of alcohol were located by police in her vehicle.

15At 3:30 pm, her shift ended. She was so upset about what was happening to her that she went to her vehicle to retrieve the un-consumed alcohol. She then returned to the store and went to the bathroom where she consumed it. Thereafter, she left and walked to her vehicle which was parked in the employee parking lot. The time was about 3:40 pm.

16As she approached her vehicle, she used the remote starter on the vehicle to start it and warm it up. She also called her husband to tell him about her horrible day. She entered the driver’s side of the vehicle, sat in the driver’s seat and sat and spoke to her husband on the phone.

17She says that she was calling him to come pick her up. She said she told him “Honey, I need some help” and she asked him to come pick her up.

18Someone, probably another employee, called the police and reported that Polina was in the employee parking lot at Walmart and was impaired by alcohol. The responding police officer indicated that the call to police came in about 3:47 pm. The caller gave the police Polina’s name, the make of the truck and its location in the Walmart parking lot.

19The officer had no difficulty locating the vehicle. It was exactly where the caller said it was, in a small parking lot directly adjacent to the east side of the Walmart. He estimated that the lot had room for between 15 and 20 cars.

20When the police arrived, at around 4:00 pm, Polina was sitting in the running truck talking to her husband on her cell phone. She estimated she had been talking to him about six or seven minutes.

21The police officer tapped on the window and Polina lowered it by using the electric switch. The officer asked Polina to discontinue the call and shut off the vehicle. She complied without difficulty.

22Polina stated, not surprisingly, that she was shocked and nervous when the officer tapped on her window. She said she got mixed up.

23The officer could not remember if Polina was holding her cell phone to her ear or conversing with the other party by Bluetooth. Polina would later testify she was holding the phone to her ear. Her husband, who was the other party on the call, would later testify that he believed that she was using Bluetooth. The officer recalled Polina telling him that the other party to the call was her husband.

24Polina stepped out of the vehicle. The officer could not recall if she had her seat belt on before getting out of the vehicle. Polina said that she did not have her seat belt on.

25The officer detected an odour of alcohol emanating from Polina. Unfortunately, she lied and told him that she did not have any alcohol that day. The officer asked Polina for her driver’s licence. He said that she produced a Quebec Health Card. Later, she produced an Ontario Driver’s Licence.

26The officer may well be mistaken about whether her driver’s licence was an Ontario Licence. Polina’s evidence is that she lives in Quebec and has a Quebec Driver’s Licence.

27The officer was clear that Polina did not demonstrate any slurred speech or unsteadiness on her feet.

28At 4:04 pm, the officer administered the Approved Screening Device. Polina failed. After she gave her breath sample, Polina stated, “It’s going to be bad.”

29The officer arrested Polina and took her into custody. Prior to departing the scene, the officer located Polina’s keys and turned off her vehicle. He remembered that another officer, who was called to assist, located the keys in Polina’s purse. He did not know where the purse was located. He confirmed that the vehicle was started using a key fob and a push-button start.

30She ultimately provided two samples of her breath. The first had a reading of 150 milligrams of alcohol in 100 millilitres of blood. The second had a reading of 130. [1]

31The officer noted that Polina later admitted to drinking two beers.

32Polina is married to Bill Burnison. Bill is a former member of the military. While in the military he was a military police officer. He had 28 years in the military. She lives in Chapeau, Quebec, which is just across the Ottawa River from Pembroke. If one were driving from the Walmart to Chapeau, it would take about 25 minutes.

33Polina stated that she had no intention of driving on the day in question. She had called her husband to come get her. She was about two weeks away from being eligible for a pardon for her 2016 conviction. She stated that she had paid between $2000 and $3000 to obtain the pardon.

34She recalled that her husband said he would come. Even though they have one vehicle in their family, she surmised that her husband would have used his son’s van. His son lives close by – about a two minute walk – to their home in Chapeau.

35Polina stated she could have gone to other places in the plaza to wait for her husband. The Boston Pizza is not far across the parking lot. There is a Canadian Tire, a Reitman’s and some other retail outlets. Further afield, but still within walking distance, is the Pembroke Mall. She did not go to those places because she was so upset. She did not think about it.

36She essentially stated that it never dawned on her that she could be in care or control while waiting for her husband in the running truck.

37Polina was adamant that she does not drink to excess. She stated that she gets sick from alcohol.

38Polina weighs 155 pounds. She is 170 cm in height.

39William Burnison testified. He is Polina’s husband. He was 64 years of age at the time of the offence. He is now 66. He stated that his son lives in Chapeau Quebec about two minutes from where Polina and he live. Where necessary, when Polina has his truck, he can go to his son’s and get one of his son’s vehicles. He stated that was what he did when the police called him to come pick Polina up at the police station. He described the walk as “not easy” but noted that he can do it. He stated that he has found himself in the situation where he has borrowed his son’s van at least a dozen times.

40William is disabled. He moved slowly when he came into Court and had difficulty getting comfortable in the witness box. He stated that he has problems with his leg and back. He also suffers from PTSD as a result of his military service. He denied, however, that his disability would have kept him from going and picking Polina up at the Walmart when she called him.

41He recalled that Polina called him because she was having a bad day at work and she asked him for a ride home “because she had a couple of drinks.” He told her that he would get his son’s van to come get her. He stated that she told him about what happened at work. He knew that she was sitting in his truck waiting for him to come get her. He said that she was having bad days because of the way that they treated her at work.

42William indicated that their conversation lasted about five minutes. He recalled that it was interrupted because it “went to Bluetooth” when Polina started the car. He stated that Polina did not tell him how many drinks she consumed. He did not remember if they discussed where she got the alcohol from.

43William indicated that they have discussed the issue many times and Polina knows that she is not to drive his truck when she has been drinking. He stated that when she was previously convicted, she was caught in his vehicle. With respect to the nature of these discussions and how they come up, he denied that they specifically discussed the matter on its own. He stated that these discussions come up during the course of other conversation. He indicated that this is the first time that she has called him to come pick her up because she had been drinking.

44William indicated that Polina’s consumption pattern since she completed treatment has been “intermittent”. He was concerned about it but noted that she did not drink very often. He stated that it did not take much to get her drunk. She has been drunk since then. He stated that she has never driven his truck when she has been drinking. He knows she has been drinking when he smells it on her breath, notices her pupils look abnormal, or she becomes more talkative. He stated that he has not observed her being unsteady on her feet or have glossy eyes. He has noticed that she has slurred speech.

45He clarified that after she completed treatment, she was completely sober for about two years. After that she drinks on occasion when she is subject to stress. He indicated that her triggers were the workplace and her mother. He stated that she is triggered every three or four months.

46He stated that the drink of choice is a “tall boy”. He stated that she conceals her drinking from him. He is not sure what kind of alcohol is in the “tall boy”. He indicated that he does not drink.

47He recalled that the police called him at about 5:00 pm and told him that Polina was in custody. They were going to do breath tests. They told him that they would call him back when they were finished and he could come pick her up to go home. He stated that by 7:00 or 7:30 pm they were finished and his daughter-in-law came to get him. Together they went to pick Polina up.

48He stated that he did not have any concerns about the fact that she was calling him from his vehicle in a parking lot. “Where else would she be?”, he asked in response to that question.

49He stated that he knew what the readings were. They did not cause him concern. “They were on their way back down” he stated. He stated that Polina later told him that she had consumed a can and a half and that she had not eaten all day.

The Law

The Law

50Pursuant to section 320.35 of the Criminal Code, if it is proved that the accused occupied the driver’s seat of a conveyance, she is presumed to be operating the conveyance unless she establishes that she did not occupy the driver’s seat for the purpose of setting the vehicle in motion. To rebut the presumption, the accused must show on the balance of probabilities that she did not occupy the driver’s seat for that purpose.

51Prior to the 2018 amendments to the Code, one could be found guilty of operating or being in care or control if one were impaired by alcohol or if one’s blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood. Care or control was included in operation, but operation was not included in care or control. With the 2018 amendments, in section 320.11, the definition of “operate” was amended to include care or control.

52In R. v. Boudreault 2012 SCC 56 at paragraph 9, the majority of the Court led by Justice Fish found that “care or control” signifies (1) “an intentional course of conduct” in relation to the conveyance, (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, as opposed to a remote possibility, of danger to persons or property”. The Supreme Court further found that the issue of “realistic risk” is a question of fact.

53At paragraph 12, Justice Fish stated that “….a conviction will normally ensue where the accused…. was found inebriated behind the wheel… with nothing to stop the accused from setting it in motion, either intentionally or accidentally”.

54At paragraph 13, Justice Fish noted that:

Impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol or drugs. Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger. In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case.

55At paragraphs 41 to 46 and 48-49, Justice Fish further explained:

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.

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.

… anyone found inebriated and behind the wheel with a present ability to drive will — and should — almost invariably be convicted. It hardly follows, however, that a conviction in these circumstances is, or should be, “automatic”. A conviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case.

The care or control offence captures a wide ambit of dangerous conduct: Anyone who is intoxicated and in a position to immediately set the vehicle in motion faces conviction on those facts alone.

I need hardly reiterate that “realistic risk” is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case.

The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger. Likewise, use of the vehicle for a manifestly innocent purpose should not attract the stigma of a criminal conviction. As Lamer C.J. observed in Penno, “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” (p. 877).

56Justice Fish cited with approval the decisions of Justice Durno in R. v. Szymanski and Justice Duncan in R. v. Ross 2007 ONCJ 59 with respect to the factors that the Court should consider when assessing the realistic risk of danger.

57Justice Fish noted, however, that one of the issues that the Court should consider is whether there was an alternate plan (to driving impaired or driving “over 80”). He stated at paragraph 52:

The impact of an “alternate plan” of this sort on the court’s assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused. A plan may seem watertight, but the accused’s level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward.

58In Szymanski, supra, at paragraph 93, Justice Durno set out the following “non exhaustive list of areas to be relied upon in determining if the real risk arises”:

a) The level of impairment. b) Whether the keys were in the ignition or readily available to be placed in the ignition. c) Whether the vehicle was running. d) The location of the vehicle, whether it was on the side of a major highway or in a parking lot. e) Whether the accused had reached his or her destination or if they were still required to travel to their destination. f) The accused’s disposition and attitude. g) Whether the accused drove the vehicle to the location of the drinking. h) Whether the accused started driving after drinking and pulled over to “sleep it off” or started out using the vehicle for purposes other than driving. If the accused drove while impaired it might show both continuing care or control, bad judgment regarding fitness to drive and willingness to break the law. i) Whether the accused had a plan to get home that did not involve driving while he or she was impaired or not over the legal limit. j) Whether the accused had a stated intention to resume driving. k) Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption. l) Whether the accused was wearing his or her seatbelt. m) Whether the accused failed to take advantage of alternate means of leaving the scene. n) Whether the accused had a cell phone with which to make other arrangements and failed to do so.

59Ross deals with how to assess the possibility that the accused would change their mind and set the vehicle in motion when they are unfit to drive. Justice Duncan stated at paragraph 14:

In determining the likelihood of an accused changing his mind and deciding to drive while unfit, all of the circumstances must be considered. I would suggest that the following are particularly relevant:

• Whether the accused had been driving after becoming impaired or did he only use the vehicle as a place to sleep or wait? Earlier impaired driving might show both his continuing care and control over the vehicle, his bad judgment regarding his fitness and his willingness to break the law.
• Whether the accused had reached his ultimate destination or did he still have to get somewhere, somehow, sometime?
• Whether the accused was slightly, moderately or highly impaired? This might relate to the likelihood of his exercising bad judgment, the time it would take to become fit and the likelihood that he would be presented with an opportunity to change his mind in that period.
• Whether the accused had in place a plan that would enable him to get home without driving?

The Principles Applied

The Principles Applied

60I am satisfied on the balance of probabilities that Polina did not enter the vehicle for the purpose of setting it in motion. She entered it to seek physical shelter from the elements, emotional shelter from the stressful day at work and to call her husband. Accordingly, the presumption does not assist the Crown.

61With respect to whether there was a realistic risk that Polina would set the vehicle in motion, defence counsel submitted that on balance, the Szymanski factors favoured Polina:

a) Although the readings suggest moderate impairment, the police officer did not note any real indicia of impairment upon detention for the ASD. This, defence counsel argued, favoured Polina. I note that this case is unlike a number of cases where, when found by the police, the accused is sleeping and the risk of inadvertently setting the vehicle in motion is higher. Polina was wide awake and conversing with her husband. b) “Keys in the ignition” is now something of an anachronism in this day of remotely controlled car starters. Defence counsel allowed that the vehicle was running and the fob that controlled it was found in the back seat. He agreed that this was not in Polina’s favour. On the other hand, I note here that this offence happened in November. Polina testified that it was cold. I am, therefore, not surprised that the vehicle was running on the facts of this case. Nor am I surprised that she did not think to wait for her husband to arrive back in the store or at one of the other nearby outlets. Her evidence is essentially, that she did not think of it. It is clear that she was distraught after an awful day at work. It is not surprising that she did not want to wait in the store given her evidence of the harassment and discrimination she thought she was experiencing there. I accept her evidence. c) The vehicle was not on the side of the highway, but in a discrete employee parking lot at the local Walmart. This, defence counsel argued, favoured Polina. The Crown argued that the parking lot was off a busy parking lot to a major commercial establishment. This, argued the Crown, enhanced the nature of the risk if the vehicle were to be set in motion. I am inclined to agree with the Crown on this point. If Polina had set the vehicle in motion, she was entering one of the busiest parking lots in the area. Arguably, she would have encountered less traffic on the roadway between Walmart and her residence in Chapeau than she would have if she had tried to navigate through the parking lot [2]. d) Polina was not at her destination. Her destination was home, some 25 minutes away in Chapeau, Quebec. Defence admitted that this was not in Polina’s favour. I agree. e) Polina was polite and cooperative with the officer. This, he argued, favoured Polina. I agree. f) Polina did not drive after drinking and then stop driving. There was no evidence that she had driven her vehicle at all after drinking. This, he argued, favoured Polina. I agree. The evidence is clear that the last time Polina drove the vehicle before entering it was at lunch time when she drove over to the liquor store to get the beer. g) The evidence of Polina and William point to a credible, reliable and concrete plan for Polina to get home without driving. The phone call in which that plan was being made was underway when the police came to her window. I am inclined to agree with this. h) There is no evidence that she intended to drive. To the contrary, the evidence is that she intended to have her husband pick her up. The evidence is that she was using her vehicle as shelter – actual shelter from the weather and emotional shelter from the situation she was in at work – while she had a private conversation with her husband. In this regard, I rely on Justice Pratt’s decision in R. v. Lako, 2022 ONCJ 435 at paragraph 15. i) Upon detention, she was in the driver’s seat and she used the power window to speak to the officer. Defence counsel allowed that this worked against her. I agree. j) With respect to the time element, defence counsel argued, rather persuasively, that Polina was likely in the vehicle for fifteen minutes or more before she was interrupted by the police. During those fifteen minutes, she did not move the vehicle at all. I think that this is the most persuasive argument. If she intended to drive, she would have driven out of the parking lot and headed home from the moment she got behind the wheel. She did not do so. k) Polina stated that she was not wearing her seat belt. The officer could not remember. This favours Polina. l) Polina had a cell phone and she was using it when she was interrupted by the police. While this is probably another anachronism (cell phone ownership is probably higher in 2022 than it was when Szymanski was decided in 2009) the fact is that she used it to arrange her plan and was still talking to her husband when the police came upon her. This also favours Polina.

62With respect to the strength of the plan and what would happen in the event that William did not show to pick Polina up, it is clear that there was no back-up plan. That said, the uncontradicted evidence is that William intended to get one of his son’s vehicles to pick Polina up. This is, in fact, exactly what he did when he had to pick Polina up at the police station three to three and a half hours later.

63I find that there is no discernable, objective fact that permits me to infer that Polina would change her mind and drive the vehicle.

64I find that Polina has rebutted the statutory presumption of care or control and the Crown has not proven de facto care or control beyond a reasonable doubt. She is therefore found not guilty of the charge.

Released: June 25, 2024 Signed: Justice J.R. Richardson

1The validity of Polina’s detention, arrest, rights to counsel, cautions, demands, and breath readings were all conceded by defence counsel. The Certificate of Qualified Technician was filed as Exhibit 1 on consent. In the course of preparing my reasons for judgment, I noticed an error on the Certificate, which was completed by Constable Macleod. The second reading, which should have been truncated to 130 was noted as being truncated to 136. The agreement of the parties is that the actual reading from the approved instrument was 136 which truncated would have been 130. Nothing really turns on this oversight.

2Crown and defence agreed that I could apply my knowledge of the area in question. This Walmart is the only Walmart within a 50 kilometer radius of the City of Pembroke, which is a city of about 15,000 people. I daresay that anyone who has lived in the area has navigated the larger parking lot and can attest to the significant volume of cars it sees on a daily basis.