Court File and Parties

Ontario Court of Justice

Date: 2014-03-05

Court File No.: Halton 1684/11

Between:

Her Majesty the Queen

— and —

Elvis Dojcinovic

Before: Justice F.L. Forsyth

Heard on: August 30, 2013 and November 27, 2013

Reasons for Judgment released on: March 5, 2014

Counsel

Ms. E. Roda and Ms. M. Mackenzie — counsel for the Provincial Crown

Ms. C. Hoffman — counsel for the Federal Crown

Mr. M. Puskas — counsel for the accused, Elvis Dojcinovic

FORSYTH J.

SUMMARY OF THE EVIDENCE

[1] Mr. Dojcinovic was originally charged with one count contrary to s. 253(1)(a) and one count contrary to s. 254(5) of the Criminal Code, as well as with one count contrary to s. 5(2) of the Controlled Drugs and Substances Act ("CDSA"). The Crown elected to proceed summarily on the 253(1)(a) and 254(5) counts, as well as did the Crown on the 5(2) CDSA count. Mr. Dojcinovic entered pleas of not guilty to all three counts and his trial began on August 30th, 2013.

[2] The matter was not concluded on August 30, 2013 and the trial was remanded for continuation to November 27, 2013. On that date Mr. Puskas informed the Court that the accused was changing his plea, with consent of the Crown, from not guilty on the s. 5(2) CDSA count to a plea of guilty to a reduced charge contrary to s. 4(1) of the CDSA. Because evidence had been taken on the s. 5(2) trial, I was invited to dismiss that charge and I did so. He was sentenced on the spot to a $500 fine and $75 victim fine surcharge and given three months to pay. Therefore, the trial continued from that point on solely the 253(1)(a) and 254(5) Criminal Code charges.

[3] Therefore, when I summarize the evidence in this case I will give short shrift to the evidence that pertains exclusively to the CDSA count. Of course, also, after the plea of guilty to the drug count, Ms. Hoffman was excused from the conduct of this case and the matter was prosecuted from that point by Ms. Monica Mackenzie who had assumed carriage of the case from Ms. Roda on November 27, 2013.

Crown's Case

[4] The first witness called by the Crown on August 30, 2013 was P.C. Dunlop who testified in Chief that he is a member of the OPP and was the officer in charge on this case. After his notes were qualified he was given permission to refresh his memory when required to do so from them.

[5] He testified that on May 28, 2011 at 3:01 a.m. he was on patrol and came upon two cars on the right shoulder of the Waterdown Road exit ramp from Highway 403. He described one of the vehicles as a Chevrolet Silverado truck and he said that it appeared to be damaged on the passenger side and was up against the guardrail.

[6] He said a bystander by the name of Trevor Conway approached him and expressed concern for the safety of a person who appeared to be passed out in the Silverado. Mr. Puskas indicated at this time that there is no issue that this vehicle belonged to the accused, and so I will refer to it as the accused's vehicle. The officer then observed the accused to be lying down on the front seat with his head lying on the passenger seat facing east towards the passenger door in what he described as a fetal position with his knees drawn up sideways on the driver's side and his upper torso slumped over the console.

[7] Next he said that he found the ignition key in the open console under the radio after the point of his arrest of the accused. He then inserted it into the ignition and started the engine. He noted minor damage to the passenger door side of the truck, but, in his opinion, the Silverado was operable although he had not tried to operate it.

[8] He said that the accused was snoring as he was sleeping on the seat and an odour of alcohol was emanating from his breath. At this point, Mr. Puskas provided an admission to the Court of impairment by alcohol on the part of the accused. The officer said that he then pulled the accused up and out of the truck and, when he did so, he found him to be very unsteady on his feet. As a matter of fact, he fell and had to be propped up by the officer. His speech was heavily slurred; he was drooling and his eyes were glassy. The accused told him that he had consumed one beer earlier that day.

[9] At 3:09 a.m. P.C. Dunlop said that he formed an opinion that the accused's ability to be in the care or control of his motor vehicle was impaired by alcohol. He arrested him for that charge. Shortly thereafter, P.C. Chamberlain arrived. The two of them placed the accused in the rear of P.C. Dunlop's cruiser. The accused was the only occupant of the Silverado truck.

[10] The officer said that since the driver's door of the truck was open, he went back to it to close the door because it would be a potential obstruction to traffic in that condition. In addition he wanted to look for ID papers inside the truck so that he could properly identify the accused, who was only able to mumble somewhat incoherently. When he did that he said that he detected a strong odour of marihuana emanating from the interior of the truck.

[11] He testified that he provided the accused with his rights to counsel and cautioned him and he was permitted to make a duty counsel call at the station. Once again, Mr. Puskas indicated that there was no issue on these elements of the charge.

[12] Down at the station he said that P.C. Chamberlain told him that he had seized some baggies from the truck which he suspected to be marihuana and, therefore, the accused was arrested on the s. 5(2) CDSA offence and was again provided with his rights to counsel, caution and a duty counsel call.

[13] In cross-examination P.C. Dunlop said that he thought that he remembered an earlier Hamilton Police broadcast with respect to a possible impaired driver of a Silverado truck in the Hamilton area somewhere around midnight. He agreed however with Mr. Puskas that he had no idea how long the Silverado had been in the position against the guardrail as he had found it.

[14] He agreed that some of the things that he said to the accused had to be repeated at the scene, but he did seem to understand eventually. Once down at the OPP detachment he said the accused was more awake and alert and oriented, and that is when he said that he wanted to speak to a lawyer.

[15] He said that the accused slept on the bench between duty counsel calls, and after each of these naps he was more alert.

[16] The next witness for the Crown was P.C. Erik Chamberlain who testified in Chief that he is a member of the OPP. After his notes were qualified for refreshment of his memory, he testified that he was on patrol at 3:00 a.m. on this day in question in the middle lane of Highway 403. He passed the Waterdown Road exit and saw the Silverado pick-up truck seemingly adjacent to the guardrail on the ramp. He noticed an SUV vehicle parked at the side of the highway ahead with its lights flashing and a male party walking near it. This person turned out to be Trevor Conway who is the fellow who stopped to check on the condition of the driver in the Silverado.

[17] The officer approached the accused, who by this time was sitting on the road in P.C. Dunlop's presence. He said that he and Dunlop picked the accused up and carried him off the roadway and pulled him into Dunlop's cruiser.

[18] P.C. Chamberlain said that he inspected the condition of the Silverado truck and noticed some damage to the passenger side, but the wheels were intact. In his opinion, the vehicle was operable and he arranged for a tow of the vehicle to the nearby GO station lot. During his testimony he actually referred to the vehicle as a Sierra as opposed to a Silverado, but nothing turns on that.

[19] He said he also located, at 3:28 a.m., a case of 24 Busch beers in the open truck bed box. The beer carton contained a mixture of empty and full bottles.

[20] He also said that he had observed P.C. Dunlop insert the ignition key into the ignition and successfully start the engine.

[21] Ms. Hoffman then examined the officer in Chief on behalf of the Federal Crown, and since all of her examination concerns the location of various quantities of marihuana found in the vehicle and pertains entirely to the eventual guilty plea to the s. 4(1) charge, I will not summarize that evidence here.

[22] In cross-examination he agreed that the passenger door of the truck could not be opened because it was completely up against the guardrail.

[23] On consent, the Crown then entered as Exhibit Number 2 a curriculum vitae of Detective Mark Sanders' and as Exhibit Number 3 Detective Sanders' expert report. Mr. Puskas indicated that he would not require Detective Sanders for cross-examination with respect to his report. These exhibits related to the s. 5(2) CDSA count and, since it was resolved on a guilty plea to a reduced charge of 4(1), I will not summarize them here.

[24] The next witness for the Crown was P.C. Jamie Hart who testified in Chief that he is a qualified Intoxilyzer technician with the OPP. He received the accused into his custody at the station after he had been brought in by P.C. Dunlop. He again provided rights to counsel and a caution which he said that the accused seemed to understand. He said that he always provides detailed instructions with respect to providing a breath sample. I noted at this time in his evidence that he speaks like a machine gun, and when I brought this to his attention he said that he slows down when he is giving the instructions to subjects in his presence although it sometimes depends upon how many coffees he has consumed he said!

[25] He said that he checked the mouthpiece that he was going to provide to the accused and found there to be no obstruction. He said that he himself had 'self-tested' the mouthpiece earlier.

[26] He then said that he had instructed the accused to blow into the mouthpiece until he told him to stop. He said that there were three attempts by the accused to provide a sample and on each occasion he stopped, put his head down and said he felt sick. The officer said that he, therefore, gave him a garbage can in case he needed to vomit, but he did not vomit.

[27] This officer said that he has had successful tests in the past with subjects who were even more intoxicated than the accused.

[28] He said that the accused told him that he wanted to lie down, but the officer felt that he would not be able to get a good sample from him in a prone position. He said that it seemed to him that the accused did not want to try to give a sample any longer at this point, but he also candidly indicated that he had no note in his book of that particular opinion.

[29] P.C. Hart said that he felt that the accused could not provide a suitable sample because of his level of intoxication. He qualified the answer by saying that he felt that the accused was physically able to blow air into the mouthpiece forcefully enough but he just didn't seem able to sustain the blow long enough for the 8000 C to register a proper sample, or else he simply did not do so. He did warn him about the possible charge of refusing a sample and eventually he charged him with that offence.

[30] On consent, the breath room video was then played for the Court. However, there was no audio on it because of some technical malfunction at the time at the station. My own observations in watching the video were that the accused was slumped over in the chair beside the officer and the 8000C with his head hanging low while the officer was inputting information into the instrument. At times he seemed to be almost falling out of the chair and was leaning on the desk even when the officer was speaking to him.

[31] In cross-examination the officer said that he agreed that he believed that the accused just could not comply with his instructions because of his level of impairment and, therefore, he was not physically able to provide proper samples. He agreed that the accused never did provide an outright categorical refusal and, if he had done so, he would have made note of it. He said that he had asked the accused if there was anything in his opinion that was preventing him from providing a sample of his breath and the accused said that there was not.

[32] He said that he did not do an Alcohol Influence Report interview because there were no successful breath samples, and normally that interview is done during the 17-minute interval between breath tests. However, although the Crown had not attempted to introduce any questions and answers between the officer and the accused in the breath room, on consent, Mr. Puskas asked him to provide one such exchange to the Court. The officer said that he had asked the accused at 4:14 am if there was any reason why he was unable to provide a breath sample and the accused had answered 'no'.

[33] Ms. Roda had no re-examination for the Crown and she closed the case for the Crown at this point. Just before the matter was remanded for continuation, Mr. Puskas provided another admission to the effect that the accused owned the Silverado truck in question. The trial was then remanded for continuation to November 27, 2013. It was on that date that the reduced plea of guilty to s. 4(1) of the CDSA was accepted by Ms. Hoffman and I dismissed the s. 5(2) CDSA count.

[34] Also on consent, count number two, the 253(1)(a) charge, was amended to allege care or control as opposed to operating a motor vehicle.

Defence Case

[35] Mr. Puskas informed the Court that he would be calling a case for the defence and the first witness was Elvis Dojcinovic who testified in Chief that he agreed with the police evidence that he was found sleeping in his truck as described by them. He said that he had last driven it when he had left work about 4:00 p.m. the previous day when he had driven to his uncle's place where he had some homemade wine and ate dinner. He estimated that he spent his time doing that until about 6:00 p.m.

[36] After that he said that he had driven to a rental property that he was working on as a construction renovator. Two of his co-workers were present there and he said that the three of them talked for a while to his aunt and that he drank some more glasses of wine in an unknown quantity.

[37] He said that the next memory that he had was waking up in the police station in a cell. He had no idea, he said, how his truck had even got to the scene of its collision with the guardrail.

[38] In cross-examination he said that he was expecting to have one of the co-workers who was with him at the rental property testify on his behalf and his name is Patrick Delaney. He described Mr. Delaney as being a good friend.

[39] He said that there was a female friend there also by the name of Renée. He said that they had consumed some drinks together at that rental property.

[40] He agreed with the Crown's suggestion that he had asked the police where he was when he was awakened. In other words, he said that he recalled asking that question. Otherwise, he said the entire evening was a blur in his memory.

[41] He said that he knew that he was supposed to get over to Hamilton to a Serbian church to attend a wedding in which his two daughters were flower girls. He said that he and his wife had been in the process of separating in their marriage at the time, but they tended to live together on and off depending upon whether or not they were fighting. He said that he also realized that he was supposed to get from Hamilton back to the reception in Toronto at the CNE grounds and he had no memory whatsoever, he said, of when he arrived at that location, if ever.

[42] He was questioned about his criminal record by the Crown and, on consent, it was filed as Exhibit Number 5 in this trial. It reveals a history of mostly narcotic offences between the years of 1991 and 2001. He has had no convictions of any kind, whether CDSA or Criminal Code, since 2001.

[43] Mr. Puskas had no re-examination for the accused and he then called Patrick Delaney as his next and final witness.

[44] Mr. Delaney testified in Chief that he has been a good friend of Elvis, as he referred to him, for 25 years. He and Elvis were doing renovations at Mr. Delaney's aunt's house on the night in question, he said. Mr. Delaney thought that his brother had dropped him off about 8:00 p.m. to 9:00 p.m. at that house or maybe a little earlier. He said it was just a guess on his part.

[45] Once in the house he went to the kitchen area and drank some beer and he talked with Elvis who was drinking wine. The two of them discussed work, he said, and then he went down to the basement of the house to do some work in connection with the renovations. As far as he knew, the accused had remained up in the kitchen continuing to drink with his aunt. From time to time, Patrick said that he went up to the kitchen to talk for a few minutes with the accused and his aunt and, in his opinion, the accused was becoming intoxicated.

[46] By the end of the evening's renovations and drinking, he said it was approximately 1:00 a.m. to 2:00 a.m. and he began to prepare himself for leaving the residence. He said that he had to put the accused into the passenger seat of the accused's truck because the accused was intoxicated and then he, Patrick, drove the accused's truck towards the accused's home in Burlington, somewhere near Waterdown Road.

[47] Unfortunately, he said, at the Waterdown Road exit from the 403 Highway he miscalculated and struck a guardrail on the turn of the ramp. He said that he stopped the truck immediately after striking the guardrail and tried to awaken the accused. However, he was unsuccessful. Therefore, he said that he left the accused sleeping there on the passenger seat of the truck while he walked back in a general direction towards a store and called a cab. Although it was not mentioned in evidence, I can safely say from my knowledge of the Burlington/ Aldershot area near Waterdown Road and Plains Road that there is a convenience store in the general area up from Highway 403 on Waterdown Road.

[48] Mr. Delaney said that when he left the scene he left the keys to the truck in the console and he himself had planned originally to spend the night at the accused's house in Hamilton. Now, I note that I had earlier indicated that his evidence was that he was driving the accused towards his home in Burlington at Waterdown Road and his last sentence in Chief that I recorded was that he had planned to spend the night at the accused's house in Hamilton. It may be my own error, I am not certain, but counsel and I are operating in this case without the benefit of transcript.

[49] In cross-examination the Crown was quick to put his criminal record to Mr. Delaney and he admitted to all of the entries. Like the accused, Mr. Delaney had a brisk beginning to his criminal record starting in 1991 in youth court in Cayuga, but his last conviction was in adult court in Ottawa in October 2009 for an impaired driving conviction. His record consists of narcotic offences, dangerous driving and the impaired driving. There is one isolated offence in 1991, a public mischief, and when he was questioned about that he said that he was 18 years old at the time and he had lied to the police to avoid having a friend charged.

[50] He said that he did not hide the keys by putting them in the console because he really wanted someone to find them. He said he just was not thinking about anything except his own predicament, and by that I assume that he meant that he had been drinking quite a bit as well and now had been driving a motor vehicle which had collided with the guardrail, and he had the impaired driving conviction in 2009 to haunt him.

[51] He agreed with the Crown that he could have simply driven the accused's truck away from the guardrail over to the accused's house which he said was only about two minutes away from that location. However, he said he just was not thinking well at the time. He did not recall if he had locked the driver's door after he got out and left the scene.

[52] When the Crown had the temerity to suggest directly to him that he was lying in his testimony to help his friend, the accused, he categorically denied that possibility.

[53] There was no re-examination by Mr. Puskas and the Crown did not call any reply evidence. I received submissions from both counsel immediately thereafter on November 27, 2013.

POSITION OF THE PARTIES

Position of the Defence

The Section 254(5) Refusal Charge

[54] Mr. Puskas referred the Court to the evidence of the Intoxilyzer technician in addition to the officers at the scene who all, in his submission, testified that the accused could not even stand on his own and needed to be physically assisted at all times. They also testified that he could not speak coherently and could not even make himself understood to the officers.

[55] Mr. Puskas referred the Court to the portion of the breath room video which was introduced wherein he submits that the Court could see the accused provide a sample of breath for some seconds but clearly not long enough to register a reading on the 8000C.

[56] Mr. Puskas submits that the Court should find that the specific evidence of P.C. Hart was that he thought that Mr. Dojcinovic was too drunk to be able to provide a proper sample with the required volume of air for the required length of time necessary to register the sample on the 8000C instrument.

[57] Mr. Puskas submitted that under the circumstances the Court should find that the Intoxilyzer technician has given his professional opinion that Mr. Dojcinovic was simply not able to provide the proper sample required for the registration of said sample on the 8000C. Under those circumstances, Mr. Puskas asks the Court to acquit the accused because the Crown has not proven beyond a reasonable doubt that he wilfully failed or refused to provide a sample.

The Section 253(1)(a) Care or Control Charge

[58] Mr. Puskas took the position that the 258(1)(a) presumption does not apply to the accused in the position in which he was found in his motor vehicle by P.C. Dunlop and P.C. Chamberlain. At that point in his submissions, I invited the Crown to comment on whether or not she would agree because the Court expressed the point of view that it appeared as though that was a tenable submission. However, Ms. Mackenzie indicated that she would make submissions to ask the Court to find that the position in which Mr. Dojcinovic's body was found would permit the Crown to establish that the presumption would apply against him and he would have the burden of discharging it on a balance of probabilities. By "presumption", of course, I mean the statutory presumption in 258(1)(a) that provides that if the accused person is found in the seat ordinarily occupied by a person who operates a motor vehicle, then he/she is deemed to have had the care or control of the motor vehicle unless he/she establishes that he/she did not enter or mount the vehicle for the purpose of setting it in motion.

[59] Mr. Puskas referred the Court to the evidence of P.C. Dunlop wherein he said that he found Mr. Dojcinovic on his knees on his side with his upper torso slumped over the central console with his head resting on the passenger seat facing the passenger door. He argues that the Court should find that that is not the position that a person would normally occupy who would be operating a motor vehicle and, therefore, that the 258(1)(a) presumption should not apply to this case.

[60] Mr. Puskas then moved on to the subject of de facto care or control as opposed to the accused having to rebut the presumption. Mr. Puskas submitted that often the common law precedents on this issue deal with a person who has voluntarily consumed alcohol and become impaired by alcohol and then placed themselves into the motor vehicle on a voluntary basis. It may be for a reason to keep warm on a cold night or to sleep off the effects of alcohol, but for whatever reason that person has voluntarily entered the motor vehicle after having become impaired by alcohol.

[61] On the other hand, Mr. Puskas submits, the courts have consistently stated as a matter of policy that when a person who is impaired by alcohol gets a ride home, it is not the intention of the legislation to make this person criminally responsible or liable for something that the driver who drove him/her home does with the motor vehicle. The reason for that, of course, is that people would be discouraged from doing the right thing.

[62] Therefore, for the purpose of the particular analysis of the Court in this case, Mr. Puskas submits that Mr. Dojcinovic did not place himself voluntarily in a position of care or control in his vehicle. Indeed, he urges the Court to accept the evidence of Mr. Delaney to the effect that he put Mr. Dojcinovic, who was passed out, into the passenger seat while he, Mr. Delaney, drove the accused's vehicle towards his home and had the collision himself with the guardrail at the Waterdown Road exit.

[63] Mr. Puskas argues that there is no evidence to allow the Court to determine a finite quantity of time for Mr. Dojcinovic to have been left alone by Mr. Delaney in the motor vehicle after the collision. He argues that there is no evidence for the Court to determine how long the accused was awake in the vehicle to the extent that he must have moved himself from sitting in the passenger seat where he had been placed by Mr. Delaney to the position in which he was found by P.C. Dunlop.

[64] However, Mr. Puskas submits that the Court can conclude from the officer's evidence that the vehicle was right up against the guardrail and that a person could not exit from the passenger side door.

[65] Mr. Puskas also refers the Court to the evidence that seems to be undisputed that the keys for the vehicle were sitting in the console and were not in the ignition, and also the driver's door was wide open on the driver's side. Mr. Puskas submits that it is significant that there appears to be no effort by the accused to move the keys from where they were left on the console by Mr. Delaney where they were found by the officer to put them into the ignition to perhaps prepare to start the engine.

[66] He submits that the Court could infer that the accused was simply trying to climb over from the passenger side in order to get out the driver's door once he found he could not open the passenger door to get out of the vehicle. When I drew Mr. Puskas' attention to the fact that the accused was found with his knees on the driver's side and his head facing the passenger side and asked him to include that in his suggested inference that the accused was trying to crawl out the driver's side, Mr. Puskas said that he would have awakened and said, "What the heck? I'm going to try and get out" and he was so "disambulated" by the use of alcohol that he could not even crawl properly. Further to that suggestion, Mr. Puskas said that he could have passed out again while he was struggling to remove himself across the driver's seat to the driver's door. The Court and Mr. Puskas discussed the possibility that the console might have impeded the flow of Mr. Dojcinovic's movements in his attempt to crawl across the vehicle.

[67] Mr. Puskas submits that what should be clear to the Court is that the accused did not remove the keys from the console and, therefore, he was not making any effort to put the car into motion.

[68] Mr. Puskas then submitted that if the Court concludes that all the accused was doing was trying to get himself out of the truck, then that would be enough to rebut any inference of care or control, and I believe Mr. Puskas meant that that would be enough to raise a reasonable doubt on any inference of de facto care or control because he takes the position that the 258(1)(a) presumption does not apply. Mr. Puskas asks the Court to conclude that if the inference that the accused was simply trying to extricate himself from the truck is at least as plausible an inference as an inference that he was attempting to get himself into the driver's seat for some reason, then the benefit should accrue to the accused on that evidence and the Court should have a reasonable doubt that he was in de facto care or control of the vehicle.

[69] Dealing with the defence witnesses, Mr. Puskas conceded that he expected Ms. Mackenzie to present a considerable degree of argument with respect to the credibility of both the accused and Mr. Delaney. He conceded that Mr. Dojcinovic was argumentative in his cross-examination by the Crown, to put it mildly, but he submits that it should not matter too much to the Court because he did not really have a lot of evidence to provide given his lack of recollection at a rather early point in the evidence because of his intoxication. Mr. Puskas submits that there should be no doubt in the Court's mind that at 3:00 a.m. when he is found by the police the accused was "drunk out of his mind".

[70] Mr. Puskas reminds the Court that just because the accused was not necessarily an agreeable witness, that should not mean that he is not credible. It just means that he has some problems giving evidence.

[71] As far as the anticipated argument by the Crown that the Court should find it to be unrealistic for a person to claim that he went from a glass or two of wine to a complete blur of no recollection until waking up later, Mr. Puskas invited the Court to consider that if Mr. Dojcinovic was desirous of being dishonest with the Court he could have testified that he remembered having about 40 drinks and then everything went blank, and that would have explained his state of gross intoxication much more logically. However, the accused simply testified that he only remembered having two or three and then everything began to become blurred. Mr. Puskas reminded the Court that alcohol affects different people differently and that the Intoxilyzer technician admitted as much from his common sense and professional experience.

[72] With respect to Mr. Delaney, Mr. Puskas acknowledged the troublesome criminal record which was exposed by the Crown and he stated that he certainly understands why the Crown would ask the Court to use that criminal record, or at least some portion of it in the assessment of the credibility of Mr. Delaney. Of course, Mr. Puskas was referring to the admission by Mr. Delaney that on one of his convictions he had lied to the police to make sure that one of his friends was not charged when he was a young man of 18.

[73] I then engaged Mr. Puskas in a discussion about the circumstances in which the accused had been found in his motor vehicle with the keys accessible with respect to the de facto care or control issue and the objective risk test that has been articulated by many of our common law decisions. Mr. Puskas responded by submitting that in terms of the traditional analysis and the traditional fact situations that would be applied to it, the accused certainly would fall prey to that analysis and, in all likelihood, could be found by a Court to have been in the de facto care or control of his vehicle.

[74] However, the qualification for that analysis, argues Mr. Puskas, is the fact that this is a case where the Court should find that the accused had not voluntarily placed himself into his motor vehicle and, although he said he had not been able to find a case directly on point, he asks the Court to consider that the policy of the law could not be intended to render a person who was placed into a motor vehicle involuntarily culpable in the care or control context because the driver who placed him in the car and subsequently drove the vehicle and had a collision and left the scene left him in that position. He argues that the entry into the vehicle by an accused person under those circumstances would have to be considered a legal entry and there would be no mens rea to commit the offence of care or control when one is passed out when placed in the vehicle.

[75] Specifically, Mr. Puskas submitted that the case law on de facto care or control requires that the secondary voluntary element for mens rea is that the individual voluntarily places himself into the vehicle and in the position of being liable to a finding of care or control without an adequate defence or plan in place to neutralize that suggestion. In support of that submission, Mr. Puskas referred the Court to the Supreme Court of Canada decision of R. v. Boudreault, 2012 SCC 56. He referred the Court to paras. 32 and 33 of the Boudreault decision:

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

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

(1) an intentional course of conduct associated with a motor vehicle;

(2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;

(3) in circumstances that create a realistic risk of danger to persons or property.

[76] Mr. Puskas submits that the rationale of Boudreault, supra, should allow the Court to find that the mens rea required for guilt on a care or control charge is that the accused has to have been found to have voluntarily decided to use the motor vehicle to do something with it. In other words, as is often commented upon in the cases, to do something with the fittings of the vehicle. Once again, he argued somewhat repetitively that if a person is placed in a motor vehicle involuntarily and is asleep in the passenger seat when the driver disappears from the vehicle, that person has not at that point possessed himself of the necessary mens rea to be in the care or control of the vehicle.

[77] In conclusion, Mr. Puskas summarized his position in the following manner. He said that if it is a reasonable inference to be drawn from the circumstantial evidence that the accused did not voluntarily place himself into the motor vehicle and that the only intention that he had formed from the circumstantial evidence was perhaps to try to extricate himself from the vehicle, then the Court should acquit him according to the principles of R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 S.C.C.

[78] Further to that proposition, Mr. Puskas proposed that if the Court accepts all of the defence evidence, the Court should find that Mr. Dojcinovic was in the car legally and that the car crashed while it was being driven by Mr. Delaney and that Mr. Delaney left the scene. The Court should also find from the police evidence that the accused could not be awakened by any yelling or motions. He asks the Court to find that it is a reasonable inference that when the accused did awake in his position in the passenger seat, he began to simply try to extricate himself from the vehicle and, therefore, the benefit of the doubt has to accrue to him with respect to the necessary mens rea element on this charge of care or control. He asks the Court to draw that inference from the position in which the accused is found in the vehicle and the fact that the keys are still on the console.

[79] Mr. Puskas made it abundantly clear that, of course, there is no issue whatsoever on the element of the impairment by alcohol of Mr. Dojcinovic's ability to operate or be in the control of his motor vehicle.

Position of the Crown

The Section 254(5) Refusal Charge

[80] Ms. Mackenzie referred the Court to a decision of the Nova Scotia Court of Appeal cited as R. v. Warnica, [1980] N.S.R. (2d) 108 as an authority for the argument that the fact that an accused may not understand the demand for a sample of breath because of self-induced voluntarily intoxication, there is no reasonable excuse or defence on a charge of failing to provide or refusing to provide a breath sample.

[81] Ms. Mackenzie submitted that the evidence in this case should not allow the Court to conclude that the accused was physically unable to provide a sample of breath because it was obvious from the breath room video and also from the evidence of P.C. Hart that he was able to initially supply a sufficiently forceful amount of air into the mouthpiece, but he was not sustaining it long enough.

[82] Ms. Mackenzie also submits that although P.C. Hart testified that the accused appeared to understand his instructions about how to blow, the most reasonable inference from the evidence should be that he may have understood, but he did not understand that he had to "keep the blow going for the however, eight seconds...or whatever it was".

[83] I commented to the Crown that I made a note in my margin when P.C. Hart was testifying that he had stated that he felt that the accused could not provide a suitable sample because of his level of impairment and Ms. Mackenzie submitted that she does not think, short of some medical evidence to suggest an inability or a physical impediment to being able to provide a proper sample, that it would be a reasonable conclusion that the accused was somehow physically unable to sustain his breath sample for the required period of time as opposed to intentionally cutting it short.

[84] The Crown relied upon the comments by the Nova Scotia Court of Appeal in Warnica, supra, to make the submission that it would make absolutely no sense to afford such a defence to an intoxicated accused person who would become voluntarily intoxicated to such a level that he or she could not provide a sample.

[85] In my view, the most relevant paragraphs of R. v. Warnica, supra, are as follows:

1 The question in this appeal is whether a person charged with failing to comply with a breathalyzer demand contrary to s. 235(2) of the Criminal Code is entitled in law to an acquittal on satisfying the trial judge that he was unable to comprehend the demand because of voluntary intoxication.

17 The presumption of guilty intent may be rebutted by evidence that, although the accused may have appeared to have intended to commit the offence – here the failure or refuse to comply – he did not in fact have that intent. Such evidence may readily make impossible the Crown's task of proving beyond reasonable doubt all elements of the offence, including the element of mens rea. The accused might for example, show that despite initial appearance to the contrary, e.g. by saying "no" to a demand, he could not understand English. Again, he might show that despite initial appearance to the contrary, he was unable to understand the demand, and thus not guilty of intentionally failing to comply, because of insanity or because of involuntary ingestion of alcohol or drugs.

18 The law does not, however, in my opinion permit a person charged under s. 235(2) to rebut the presumption of intent by saying he was too drunk to understand the demand even though he had appeared to understand it. The principle applicable to general intent offences, of which this is one, is summarized by Mewett and Manning on Criminal Law (1978), p. 255:

...where the accused's inability to have the requisite knowledge is brought about by his own consumption [*page 115] of liquor or his self-administration of a drug, the law is prepared to treat the behaviour as tantamount to irrebuttable proof of the requisite mens rea. In other words, the law will not allow anyone voluntarily and knowingly taking alcohol or drugs to claim that he did not have the mens rea to commit the crime. It also will not allow anyone voluntarily and knowingly taking alcohol or drugs to claim that he was in an automatic state and could not have the requisite actus reus.

19 The leading case is The Queen v. King, supra. The Supreme Court of Canada affirmed acquittal of a man charged with driving a motor vehicle while impaired under what is now s. 234. The accused had driven, while impaired by a drug given by a dentist for tooth extraction. His impairment was found to have been produced by using a drug on a doctor's order and that its effect was unknown to him. Ritchie, J., at p. 763 state:

The existence of mens rea as an essential ingredient of an offence and the method of proving the existence of that ingredient are two different things, and I am of opinion that when it has been proved that a driver was driving a motor vehicle while his ability to do so was impaired by alcohol or a drug, then a rebuttable presumption arises that his condition was voluntarily induced and that he is guilty of the offence created by s. 223 [s. 234] and must be convicted unless other evidence is adduced which raises a reasonable doubt as to whether he was, through no fault of his own, disabled when he undertook to drive and drove, from being able to appreciate and know that he was or might become impaired.

If the driver's lack of appreciation when he undertook to drive was induced by voluntary consumption of alcohol or of a drug which he knew or had any reasonable ground for believing might cause him to be impaired, then he cannot, of course, avoid the consequences of the impairment which results by saying that he did not intent to get into such a condition, but if the impairment has been brought about without any act of his own will, then, in my view, the offence created by s. 223 [s. 234] cannot be said to have been committed.

20 King was applied by our own court to a charge under s. 223(2) (now s. 235(2) ) identical with that against Mr. Warnica. In R. v. Nicholson (1970), 6. N.S.R. (2d) 69 (N.S.C.A.) the accused was convicted as trial, and was acquitted by Judge O Hearn in the County Court on the ground that the demand made was not sufficiently explicit. The Appeal Division disagreed and restored the conviction. Judge O Hearn's disposition of other issues (reported, 6 N.S.R. (2d) 75) was, however, approved, including the application of King.

21 The accused Nicholson had consented to take a breathalyzer test, but while waiting in the testing room became argumentative and difficult and finally said: "Lock me up"; which the police did. Judge O Hearn rejected the argument as to no mens rea, saying (p. 76):

The Supreme Court of Canada has dealt with the kind of mens rea required in the former Criminal Code ss. 222 and 223, in R. v. King, [1962] S.C.R. 746, and the principles annunciated in that case would appear to be applicable here. That is, where intoxication affects the defendant's willingness to comply with the demand, it is clearly not a defence. Where it impairs his understanding so that, although he has some idea of what is being asked of him and what the consequences of compliance and refusal are, that idea is only an imperfect and distorted one, this state of mind is a usual consequence of drinking and is not, on the principles of King, a defence ... There is no suggestion in the evidence that the consumption of alcohol was involuntary or that the defendant's condition was due to anything other than ordinary drunkenness ...

23 Chief Justice McKinnon (concurred in by Coffin and Cooper, JJ.A.) in agreeing with Judge O Hearn made the following succinct but definitive statement (p. 73):

The learned trial judge made a number of findings as follows:

(1) To the suggestion that because of the appellant's condition he may not have been able to understand the demand, and thus lacked the required intent, the trial judge on the authority of R. v. King, [1962] S.C.R. 746, found that where intoxication affects the defendant's willingness to comply with the demand, it is clearly not a defence. [*page 117] The court agrees with this finding.

27 More recently, in Regina v. MacCannell (1980), 6 M.V.R. 19 (Ont. C.A.), Mr. Justice Martin applied the same principles to a breathalyzer charge. The accused had had seven or eight rums prior to 12:00 p.m., and slept between 12:00 and 5 a.m. He then started driving to work, was stopped, and found to have been driving while "over 80" on the breathalyzer and was so charged (s. 236). He claimed he felt sober when he started driving. The County Court judge acquitted him for lack of mens rea, because he did not embark on this morning driving "reckless" as to his condition or as to his ability to drive. Mr. Justice Martin disagreed and set aside the acquittal. After discussing The Queen v. King, supra, at length he said (pp. 29-30):

Thus, it is clear that the court considered that the voluntary consumption of alcohol or drugs supplied the necessary mens rea required for the offence of impaired driving. Whether and accused's ability to operate a motor vehicle is impaired by alcohol or drugs must frequently be a matter of subjective opinion. Parliament in enacting s. 236 evidently intended to obviate this difficulty by providing a purely objective standard with respect to which compliance is required. It would not, in my view, be reasonable to conclude that in enacting s. 236 Parliament intended to impose a greater burden on the prosecution in relation to proof of mens rea than is required in a prosecution under s. 234.

I am of the view that the necessary fault or mens rea is supplied by proof of the respondent's voluntary consumption of the liquor, and it is not necessary to prove, in addition that when he drove the car he either knew that his blood-alcohol level exceeded what was permissible, or was reckless with respect to his blood-alcohol level being in excess of that permitted.

28 Mr. Justice Martin's remarks respecting the mens rea required for a breathalyzer offence (s. 236) in my opinion equally apply to the refusal charge before us. Normally, a person accused of an offence must be acquitted if the evidence casts doubt on the existence in him of the kind of guilty intend presumed from his words and acts. The policy of the law, however, prohibits acquittal on this ground if the lack of mens rea results from voluntary intoxication by alcohol or drugs. Accordingly, the respondent, to whom a [demand was made, and who appeared to understand it, cannot be heard to say that he did not in fact understand it because of self-induced drunkenness.

29 I also cannot agree that the respondent's lack of understanding in this case can in law be a "reasonable excuse" for his failure to comply with the demand. What can be an excuse arises only after an offence and all its elements, including any necessary mens rea, have been proved by presumption or otherwise. The excuse, be it reasonable or not, must be an excuse for having committed the offence of refusal.

30 If, for example, Mr. Warnica had shown that his failure to comprehend the demand was due to drugs given him by a dentist without warning that he should not drive, as in The Queen v. King, he, like Mr. King, could not have been convicted not because he had or needed to have any "reasonable excuse", but because the Crown had failed to establish mens rea and thus had failed to prove commission of the offence. It would indeed be paradoxical, and in my view contrary to the clear policy of the law, if self-induced drunkenness, discarded as evidence of absence of guilty intend, could "excuse" an offence otherwise proven with the help of the King presumption.

The Section 253(1)(a) Care or Control Charge

[86] Ms. Mackenzie firmly advocated that the Court should, after the appropriate evidentiary analysis, totally reject the evidence of the accused and Mr. Delaney. The Crown argued that it was a ridiculous position to take for Mr. Dojcinovic that he simply blanked out after having two alcoholic beverages until perhaps the following day. Ms. Mackenzie argues that this position of the accused does not meet with the test of common sense and common experience and, in the absence of medical evidence to support that position, the Court should simply reject it.

[87] Ms. Mackenzie also refers the Court to the part of the accused's evidence where he basically refused to try to remember the sequence of events on the following day or what things he did on the following day and was quite argumentative with the Crown when she tried to prod him into doing so. The Crown submitted that Mr. Dojcinovic was argumentative and evasive and that his evidence should be considered as being totally incredible.

[88] With respect to Mr. Delaney, the Crown argues that the Court could reject his evidence almost solely on the basis of the entry of his criminal record of public mischief which he admitted was a case involving his lying to the police in order to protect a friend. However, she relies on more than that disreputable conduct for her request to the Court to reject his evidence.

[89] Ms. Mackenzie submits that if the Court rejects the evidence of the accused and Mr. Delaney, a logical inference could be drawn by the Court beyond a reasonable doubt that the accused drove his own car to the point of collision with the guardrail and then fell asleep in the position in which he was found by P.C. Dunlop, partially in the driver's seat, so to speak.

[90] However, eventually the Crown informed the Court that she was relying primarily on the de facto control argument and Ms. Mackenzie submitted that the Court should find that the accused could have changed his mind once he awoke in the vehicle and decided to avail himself of the keys which were right there on the console to start up the vehicle and attempt to drive home, which was quite nearby.

[91] As a tertiary argument, the Crown argued that the position of the accused's vehicle, being partially in the travelled lane of the highway in particular with the driver's door open as it was found by the police, would have created a potential danger to other traffic, and even that can be considered as care or control of the motor vehicle while his ability to be so was impaired by alcohol.

[92] The Crown argues that the only logical conclusion from the totality of the evidence of Mr. Delaney and Mr. Dojcinovic is that Mr. Delaney, according to him, left the car with the driver's door closed because his evidence was that he could not recall having locked the door, which would imply that he had closed it, and he was never specifically asked whether or not he had left the door in an open position. The Crown submits that the vehicle sitting in that position on a busy highway like Highway 403 onramp at Waterdown Road without any lights on at 3:00 a.m. with the door open would be creating a danger to other traffic.

[93] Ms. Mackenzie referred to the argument of Mr. Puskas as having asked the Court to engage in speculation that the accused may have been trying to extricate himself from the vehicle by way of trying to explain the position in which he was found by comparison with the evidence of Mr. Delaney that he had placed the accused in a passed out condition into the passenger seat of the vehicle. The only logical inference that the Crown argued would be available to the Court on the evidence of the position of the accused as he was found by the police in the vehicle would be that he had intentionally put himself in the care or control of the vehicle by clambering into the driver's seat, especially with the keys to the vehicle right beside him in or on the console.

[94] Ms. Mackenzie then briefly discussed with the Court two common law precedents on the issue of the s. 258(1)(a) presumption. One of those decisions was R. v. Fleming, [2007] O.J. No. 4259, a decision of the Ontario Court of Appeal in 2007 on the issue of whether or not the accused had been successful in rebutting the s. 258(1)(a) presumption. However, after carefully considering the facts as found by the trial court, Ms. Mackenzie did not urge that decision upon this Court on the facts of this case. I refer specifically to the fact that the trial judge found that the police had found Mr. Fleming "seated squarely in the driver's seat in a driving position, although slumped over towards the passenger side". Most certainly, from the evidence that I have in this case from P.C. Dunlop and P.C. Chamberlain, I could not conclude that Mr. Dojcinovic was "seated squarely in the driver's seat behind the wheel".

[95] Ms. Mackenzie clarified that she was simply arguing that even if the Court were to accept the defence evidence at its highest to the effect that Mr. Delaney had placed the intoxicated accused into the passenger seat and then driven the vehicle himself and collided with the guardrail and left his friend passed out in the passenger seat when he fled the scene, when the Court considers the position in which the accused was found by the police, the only conclusion open to the Court is that the accused must have awakened sufficiently to have placed himself intentionally into the position in which he was found which, at the very least, would indicate that he was in the de facto care or control of the motor vehicle even if the Court finds that the s. 258(1)(a) presumption does not apply. In other words, the Crown argues that the defence evidence at its highest supports the inference that the accused did engage in a voluntary act after he was initially involuntarily placed into the motor vehicle that amounts to an assumption of de facto care or control of the vehicle.

[96] In conclusion, the Crown asks the Court, for all of these reasons and, for that matter, by reason of all of those arguments, to find beyond a reasonable doubt that the accused was in the de facto care or control of his motor vehicle when found by P.C. Dunlop and obviously he was in an extremely impaired condition by alcohol. Therefore, the Court should find him guilty beyond a reasonable doubt on the s. 253(1)(a) charge.

Defence Reply

[97] Mr. Puskas was given leave to reply to the Crown. He urged upon the Court the fact that there were two distinct reasonable inferences that were possible from the totality of the evidence. The first one would be that the accused had decided to climb into the driver's seat for the purpose of driving the vehicle away from the scene of the collision. The second, however, is that he was simply trying to get out of the vehicle by opening the driver's door and then apparently he simply passed out again. Mr. Puskas urges the Court to find that there are two equally compatible and competing inferences on the totality of the evidence and that the accused should be given the benefit of the doubt of the latter inference and, therefore, the Court should acquit.

[98] Mr. Puskas then undertook to supply two or three additional cases which he thought he could locate if he was given a little bit of time on the issue of the inability of an intoxicated person to provide samples of breath pursuant to a valid 254(3) demand. It was agreed by both counsel and also by the Court that these cases could be submitted between the submissions date of November 27, 2013 and my reserved judgment date which was yet to be selected. Ms. Mackenzie said that she did not feel she would need any opportunity to make supplementary submissions because of those cases, and both counsel agreed that the Court could simply consider them in its judgment.

[99] I ordered a transcript of the submissions of both counsel and reserved my judgment to February 4, 2014. However, on that date my judgment was not fully prepared and I further reserved until March 5, 2014. These are my written reasons for my decisions on both counts.

ANALYSIS

The Section 254(5) Refusal Charge

[100] I find that the evidence of P.C. Hart is unequivocal and categorical with respect to his conclusion that he expressed to the Court that the accused was unable to provide proper samples of his breath into the Intoxilyzer 8000C because of his level of intoxication. By that, I find that he meant that although the accused was capable of understanding his instructions on how to provide a sample into the mouthpiece and also to continue to blow until he was told to stop and also that when he was blowing the force of his exhalation into the mouthpiece was sufficient, nevertheless, on the three separate occasions when he attempted to provide the sample he was apparently unable to continue to provide that sufficiently forceful exhalation for the length of time required for a proper breath sample to be registered on the 8000C.

[101] Contrary to the argument of the Crown, with great respect to Ms. Mackenzie, I do not find that there is any basis upon which this Court should or could conclude that Mr. Dojcinovic was not able to fully understand the instructions from P.C. Hart which, of course, was the issue in R. v. Warnica, supra. I was aided in arriving at this opinion by my viewing of the exhibit breath room video portions which depicted the physical actions of the accused on the three attempts by the officer to have him provide a proper sample of his breath into the 8000 C.

[102] For further clarity, I will set out once again the comments of the Chief Justice of the Nova Scotia Court of Appeal in Warnica at para. 29:

29 I also cannot agree that the respondent's lack of understanding in this case can in law be a "reasonable excuse" for his failure to comply with the demand. What can be an excuse arises only after an offence and all its elements, including any necessary mens rea, have been proved by presumption or otherwise. The excuse, be it reasonable or not, must be an excuse for having committed the offence of refusal.

[103] I agree, of course, with the Chief Justice of Nova Scotia, but I distinguish the facts in Warnica from the facts in this case at bar on the basis that the totality of the evidence, and in particular the evidence of P.C. Hart, satisfies me that the accused's level of intoxication amounted to "an excuse" for having prima facie committed the offence of wilfully failing or refusing to comply with the demand made to him by the Intoxilyzer technician. A rose by any other name, I simply find that the Crown has not satisfied me beyond a reasonable doubt that Mr. Dojcinovic did, without reasonable excuse, fail or refuse to comply with that demand. Rather, I find that I have at least a reasonable doubt that he was able to comply with the full requirements of the sustained type of breath sample that is needed to register a proper sample on an 8000C.

[104] I, therefore, find Mr. Dojcinovic not guilty of count number one, the s. 254(5) charge.

[105] Although, quite frankly, I am of the opinion that my decision on this charge can be rendered without the assistance of any other precedents, I find that one case in particular that was supplied by Mr. Puskas after the final submission date was certainly of interest. That is the decision of R. v. Abdool, [2003] O.J. No. 4107, a decision of Madam Justice Weinper of the Ontario Court of Justice. In that particular decision, at para. 25, Madam Justice Weinper referred to the evidence of the Intoxilyzer technician: "...Constable Coleman testified that the defendant, 'was right out of it; unable to provide a breath sample due to his intoxication.'"

[106] At para. 27, while giving her decision, Madam Justice Weinper stated:

In the instant case, the defendant was not malingering or pretending to be so impaired so as to be unable to provide a sample. He was grossly intoxicated and this intoxication was the direct reason he failed to provide a sample of his breath. In these circumstances, the defendant's intoxication was a reasonable justification for failing to provide a breath sample.

[107] As I have already stated, I have made a similar finding in this case about the inability of Mr. Dojcinovic to provide a proper breath sample from the totality of the evidence, including the visual evidence of the breath room video of his demeanour and deportment while interacting with P.C. Hart and also from the evidence itself of P.C. Hart.

The Section 253(1)(a) Care or Control Count

The Section 258(1)(a) Presumption

[108] On balance, I am not prepared to find beyond a reasonable doubt that the position in which the police found the accused in his vehicle would satisfy the requirements of the s. 258(1)(a) presumption in favour of the Crown. I find that the position in which his body was found, and I will not repeat it here because I have obviously summarized it in detail earlier in this judgment from the evidence of the two police officers, would not be properly considered as the position normally occupied by the driver of a motor vehicle.

[109] It is of interest to note that the Crown began to refer the Court to two decisions where an accused person was found curled up in similar positions with a portion of the body or buttocks in the driver's seat, but also, quite candidly, Ms. Mackenzie conceded that in each of those two cases the person's feet were on the floor and the body of the person was, in effect, in the position normally occupied by the driver of a motor vehicle, even if slumped over. I am quite certain that my comments on this point amount to the splitting of judicial hairs, but in that exercise I find that I am seldom alone as a jurist in the criminal justice system. In any event, I am not prepared to find that the accused faces the burden of rebutting on a balance of probabilities the s. 258(1)(a) presumption.

The De Facto Care or Control Issue

[110] After a careful analysis in accordance with the principles enunciated by the Supreme Court of Canada in R. v. W.(D.), supra, I find that the combined evidence of the defence witnesses, the accused and Mr. Delaney, is deserving of a healthy dose of circumspection.

[111] Although I will not list all of them, I found a number of areas of the evidence of Mr. Delaney to be somewhat troubling. First of all, I accept, and there is no evidence to dispute it, that the accused's motor vehicle was operable and would have been easily driven away from the scene of the collision. Mr. Delaney was well aware of the proximity of the home of Mr. Dojcinovic to the point of collision. I find his explanation that he simply felt that he should distance himself as quickly as possible from the accident scene and leave his friend passed out in the vehicle and attempt to walk the considerable distance from the 403 ramp to the convenience store to which he referred in some attempt to make a telephone call to make no sense at all when he could have simply driven the vehicle away from the guardrail a very short distance to the accused's residence and the two of them would have been safely home, so to speak. He gave no evidence of any apprehended police presence at or near the guardrail.

[112] I am also troubled, as was the Crown, by the evidence of Mr. Delaney wherein he candidly admitted that on a previous occasion, albeit it at a much younger age, he had lied to a Court or to a police officer in order to prevent one of his friends from being charged. This is the type of criminal record which the courts have always indicated can be properly considered on a negative basis in any assessment of a witness' credibility in a subsequent case.

[113] Therefore, on the required W.D. analysis I find on the first arm that I do not accept the totality of the defence evidence that Mr. Delaney drove the accused's vehicle to the scene of the collision with the guardrail with the accused involuntarily in the passenger seat passed out. Indeed that defence tenet is hinged heavily upon the evidence of Delaney because the accused testified that he had no recollection of events after he consumed 2 or 3 glasses of wine.

[114] I also agree with the Crown, in the absence of medical evidence about the accused's specific ability to tolerate alcohol, that the accused's evidence that he must have blacked out to such an extent that he has no memory at all of being physically assisted by Delaney to his car and deposited in the passenger seat after such a relatively insignificant amount of alcoholic beverages to be lacking in an air of reality. Delaney did not testify that the accused was completely comatose to the extent that he had to actually carry him as a dead weight to the car.

[115] In the result I am not prepared to accept Delaney's evidence that he drove the car to the scene of the collision. Having said that I have considered whether it could, in the context of the totality of the evidence, still raise a reasonable doubt in my mind on the issue of whether the accused had voluntarily entered his motor vehicle in the first place and thus assumed the care or control of it ab initio.

[116] Here I ask myself, if Delaney was in the front passenger seat while the accused was driving, as the Crown would argue, then presumably the accused would have been able, despite his impairment, to get out of the driver's side and allow Delaney to crawl out of the driver's side too because he could not have opened the passenger's door which was pressed against the guardrail. I suppose, assuming that to have occurred, Delaney could have walked away from the vehicle leaving the accused to presumably re-enter the driver's seat, leaving the driver's door open and then curling up and falling asleep without even closing the driver's door, having succumbed at that point to the effects of his extreme intoxication.

[117] Of course, if the accused had been able to drive that far one would wonder why he could not simply have driven the last little bit to his house once he and Delaney had inspected the damage and seen no impediment to the vehicle being driven away from the guardrail.

[118] Finally, if the accused appeared to be unable to continue to drive, Delaney could have assisted him back into the vehicle from the driver's side and helped him to crawl to the passenger side while Delaney assumed control of the vehicle and drove it to the accused's home.

[119] I find that the third arm of W.D. really has no application to my analysis. There is no independent Crown evidence that the accused drove his vehicle for me to consider on that basis.

[120] For these reasons, after considering all of these potential factual inferences I am not prepared to find beyond a reasonable doubt that the accused voluntarily entered his motor vehicle in the driver's seat and drove it to the point of collision with the guardrail. I could be satisfied on a balance of probabilities but that of course is not the test in criminal cases.

[121] I also find that there is no evidence of a realistic risk that the accused could have awakened and accidentally set the vehicle in motion. He would have had to insert the keys into the ignition and engaged the transmission at the very least. Those would be purposeful and not accidental actions.

[122] Therefore, I must now consider the last potential element of care or control, otherwise known as 'de facto' care or control. When considering that issue I have reviewed the Summary Conviction Appeal decision of Mr. Justice Durno in R. v. Szymanski, [2009] O.J. No. 3623. At para. 85 he stated:

There is a legitimate concern that intoxicated persons in motor vehicles with the means available to drive would change their minds about staying and sleeping or sleeping for some period of time and deciding to drive, subjectively, but inaccurately, believing that their impairment had subsided, no longer existed and that their blood alcohol level was below the legal limit. As noted earlier, in Toews the Supreme Court of Canada quoted with approval the comments in Price, supra - "Even if he has no immediate intention of setting it in motion he can at any instant determine to do so, because his judgment may be so impaired that he cannot foresee the possible consequences of his actions." There is no binding authority since Toews that qualifies or diminishes those concerns.

[123] At para. 86, he stated:

What evidence must exist to establish actual care or control in this area has been the subject of much debate. One option was advanced by Cameron J. in R. v. Decker (2002), 2002 NFCA 9, 162 C.C.C. (3d) 503 (Nfld. Lab. C.A.) who found that the relevant time period was that during which the accused could reasonably be expected to be impaired:

... to speculate risk of danger on the basis that an impaired driver might change his mind and for no other reason is to find liability for being intoxicated in a vehicle, a conclusion which has been rejected by the Supreme Court of Canada. It must be left open to the trial judge to hold that the accused did not have any intention of driving at the time he was discovered in the vehicle or in any period of time when in the circumstances one could anticipate that he would be intoxicated. (emphasis added)

[124] With respect to the Ontario Court of Appeal test that the Court must decide whether or not there was a "real risk" that the accused would change his/her mind and drive while impaired, Mr. Justice Durno states at para. 90:

The Court of Appeal for Ontario has characterized the test as whether or not there was a "real risk" that the accused would change his or her mind and drive while impaired in R. v. MacMillan, [2005] O.J. No. 1905, as a "real and obvious risk" in R. v. Quidley, [2000] O.J. No. 3963 and as a "risk" in R. v. Pelletier, [2000] O.J. No. 848 as a risk. In two thorough analyses of the issue, Thomas J. has applied the real risk criteria concluding that speculative changes of mind were insufficient to establish care or control. R. v. Sandhu, [2008] O.J. No. 4584 (S.C.J.) and R. v. Kim (2003), M.V.R. (4th) 247 (S.C.J.).

[125] With respect to the task of the trial judge in conducting a "real risk" analysis, Mr. Justice Durno states at para. 91:

These authorities support the conclusion that what must be shown is a real risk that the particular accused would change his or her mind and intentionally set the vehicle in motion. While phrased differently, I am also persuaded that in many ways there is not that great a gap between the various criteria set out above. Simply put, the trial judge has to conduct a case-specific analysis and determine if there is a real risk. Saying that any person whose ability to operate a motor vehicle is impaired to any degree might change their mind is not sufficient. The trier of fact must examine the facts and determine if the real risk exists.

[126] At para. 93 Mr. Justice Durno set out a number of examples, which were not intended to be exhaustive, of fact situations that have led to a Court concluding that an accused person was in the de facto care or control of a motor vehicle:

While perhaps easily defined, what evidence will establish or refute that real risk is not as clear. However, as recommended in Toews, cases that have dealt with the issue provide valuable assistance in determining the criteria. The following non-exhaustive list illustrates areas that have been relied upon in determining if the real risk arises.

a) The level of impairment. R. v. Daines, [2005] O.J. No. 4026 (C.A.), R. v. Ferguson (2005), 15 M.V.R. (5th) 74 (S.C.J.), R. v. Ross (2007), 44 M.V.R. (5th) 275 (O.C.J.) In Ogrodnick, Wittman A.C.J. qualified his comments about speculation and conjecture by accepting that it was an appropriate basis to find care or control because the level of intoxication demonstrates unpredictability or a risky pattern of behaviour. Para. 54. In Ross, the trial judge found that this consideration might relate to the likelihood of the accused exercising bad judgment, the time it would take to become fit and the likelihood that he or she would be presented with an opportunity to change their mind during that time.

b) Whether the keys were in the ignition or readily available to be placed in the ignition. Pelletier, supra.

c) Whether the vehicle was running. R. v. Cadieux, [2004] O.J. No. 197 (C.A.)

d) The location of the vehicle, whether it was on the side of a major highway or in a parking lot. Cadieux, R. v. Grover, [2000] A.J. No. 1272 (Q.B.)

e) Whether the accused had reached his or her destination or if they were still required to travel to their destination. Ross, supra.

f) The accused's disposition and attitude R. v. Smeda (2007), 51 M.V.R. (5th) 226 (Ont. C.A.)

g) Whether the accused drove the vehicle to the location of drinking. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)

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. Ross, supra.

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. Cadieux, Ross, R. v. Friesen, [1991] A.J. No. 811 (C.A.), R. v. Gill (2002), 33 M.V.R. (4th) 297 (S.C.J.) para. 21, Ross, supra.

j) Whether the accused had a stated intention to resume driving. In Cadieux, supra, where the accused testified he was not driving and was waiting to sober up. The Court of Appeal held that his evidence that he would not drive until he was sober only went to weight.

k) Whether the accused was seated in the driver's seat regardless of the applicability of the presumption. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)

l) Whether the accused was wearing his or her seatbelt. Pelletier, supra.

m) Whether the accused failed to take advantage of alternate means of leaving the scene. Pelletier, supra.

n) Whether the accused had a cell phone with which to make other arrangements and failed to do so. Cadieux, supra.

[127] I have also referred to the decision of Mr. Justice Duncan in the Ontario Court of Justice cited as R. v. Bernatsky, [2007] O.J. No. 4787. Mr. Justice Duncan stated at para. 19:

I conclude that the law of Ontario at this point in time is that the risk of danger must be more than a speculative risk - it must be a "realistic risk". But having so identified the pivotal distinction, it must be acknowledged that the distinction in any given case between what is speculative and what is realistic is not always easy to draw. Risk is inherently prospective and speculative, involving as it does an assessment of "what may have occurred in the not too distant future having regard to the appellant's earlier course of conduct": R v Pike, [2004] OJ No 4269 (CA).

Conclusion

[128] Even if I were to be satisfied that the accused was initially placed involuntarily by Mr. Delaney into the passenger seat of his vehicle in an intoxicated condition, I find that the position in which he was found by P.C. Dunlop establishes on a circumstantial inference basis that he must have awakened at some point after the collision at least sufficiently to be able to move himself from the passenger seat into the position with his buttocks on the driver's seat curled up in a fetal position with his torso hanging over the console and his head facing the passenger door. In other words, I can only conclude that in that scenario his movement from the passenger seat to the portion of the driver's seat on which he was found would have been voluntary.

[129] That fact, coupled with the accessibility of the keys on the console and absolutely no plan whatsoever in evidence available to this Court by the accused for how he would get home from the location of the collision with the guardrail without operating his motor vehicle, in my view, results in the Crown having established beyond a reasonable doubt that the accused was in the de facto care or control of his motor vehicle when found by the officers. Specifically, I find that there would be a realistic risk to society that the accused would at some point awaken and consider driving his vehicle the very short distance from the point of the collision to his home while still in an intoxicated condition.

[130] On the other hand, if I were to find that the accused drove his own vehicle to the point of the collision with Mr. Delaney riding as a passenger in the front passenger seat, then it would seem that the only way Mr. Delaney could have exited the motor vehicle would have been to either crawl over the accused and out the driver's door while leaving the accused in the driver's seat of the motor vehicle, or that the accused, after the collision, exited his motor vehicle by the driver's door and allowed Mr. Delaney to crawl out the driver's door from the passenger side because, of course, there is no dispute that the passenger door could not be opened in its position of being up against the guardrail. In the former scenario, the accused would never have relinquished care or control of the motor vehicle having driven it to the scene, and even though he was found in a position partially on the driver's seat without his feet on the floor which did not engage the s. 258(1)(a) presumption, nevertheless I find that he would be in the de facto care or control of the motor vehicle at the time when the police found him for the same reasons that I have expressed above.

[131] In the latter scenario, Mr. Dojcinovic would have broken the chain of his care or control of the motor vehicle if he exited the vehicle by the driver's door to allow Mr. Delaney to also crawl across the vehicle and exited it. However, given the position in which he was found by the police when they arrived, I could only conclude that he voluntarily re-entered the motor vehicle, and even if he were to be given the benefit of the doubt that he did not re-enter it at that moment with the intention of setting it in motion and fell asleep, to be found in that condition by the police, nevertheless with the accessibility of the keys on the console and the lack of any plan for how he would get home if he did awaken from his intoxicated slumber, I find that he would still be in the care or control of his motor vehicle within the meaning of that term in the common law beyond a reasonable doubt. Specifically, I find that there would be a realistic danger that he would awaken and decide to operate his motor vehicle while still impaired.

[132] Therefore, I find that the Crown has satisfied me beyond a reasonable doubt that the position in which Mr. Dojcinovic was found, partially in the driver's seat of his motor vehicle, although not engaging the s. 258(1)(a) presumption, with the accessibility of the keys and the lack of evidence of any plan to get home without having to operate his motor vehicle allows me to conclude that the Crown has established beyond a reasonable doubt that he was in the de facto care or control of his motor vehicle on the date in question at the time when he was found by P.C. Dunlop. I, therefore, find him guilty of the charge contrary to s. 253(1)(a) of the Criminal Code.

Released: March 5, 2014

Signed: "Justice F.L. FORSYTH"