Court Information

Court: Ontario Court of Justice

Date: May 15, 2015

Court File No.: Brampton 14-1542

Parties

Between:

Her Majesty the Queen

— AND —

Michelle Levy

Before: Justice J. Copeland

Heard on: January 9, 2015 and April 16, 2015

Reasons for Judgment released on: May 15, 2015

Counsel

For the Crown: Mr. P. Quilty

For the Defendant Michelle Levy: Mr. E. Boeve

COPELAND J.:

[1] Charges and Primary Issue

[1] Michelle Levy is charged with having care or control of a motor vehicle while her ability to operate it was impaired by alcohol, and having care or control of a motor vehicle with a blood alcohol level in excess of 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(a) and (b) of the Criminal Code of Canada. The primary issue in dispute is whether she was in care or control of a motor vehicle at the relevant time.

FACTUAL BACKGROUND

[2] By the end of the trial, the surrounding circumstances were not significantly in dispute. On the night of February 1/2, 2014, Ms Levy was at home in the early evening. Her boyfriend Roger Quirk contacted her from the home of some friends, Shannon and Jimmy Papageorgiou. Mr. Quirk was there and wanted Ms Levy to come over. Mr. Quirk and the Papageorgious repeatedly texted and called Ms Levy to convince her to come over. Eventually she did so. Around midnight, she drove over to the Papageorgious' home in a townhouse complex. She parked her car. At some point soon after Ms Levy arrived, Mr. Papageorgiou moved her car because she was not in the right spot for their unit. Ms Levy and Ms Papageorgiou were drinking tequila shots. Over the next few hours Ms Levy estimates she had 8-10 tequila shots. Ms Levy testified that she was very intoxicated. During the course of the evening, Ms. Levy went out to her vehicle with Ms Papageorgiou to smoke a cigarette several times, because the Papageorgious did not allow smoking in their home. It was very cold that night, so each time they went out to the car to smoke, Ms Levy started the car for warmth. She never drove or moved the car.

[3] There was a plan made at some point for Ms Levy and her boyfriend to sleep over on the fold-out couch in the basement. There is some dispute as to when the couch was made up, but the Crown did not contest that this plan existed. However, the Crown questioned the continued implementation of the plan by Ms Levy, which I will address in the legal analysis.

[4] At some point in the evening, as a result of something Ms Papageorgiou had told her, Ms Levy got into a fight with her boyfriend, Mr. Quirk. She also had some type of argument with Mr. Papageorgiou. As a result, Ms Levy left the home and went out to her vehicle to have a cigarette. Mr. Quirk followed right after her. They continued their discussion in the car while Ms Levy had a cigarette. Ms. Levy never put the car in gear or tried to do so.

[5] Ms Papageorgiou testified that when Ms Levy left the house, she became concerned that she might drive; although she conceded that Ms Levy never said anything indicating that she intended to drive. As a result, she called 911.

[6] The police attended. When they arrived, they found Ms Levy in the driver seat of the vehicle. The vehicle was normally parked in a spot. Mr. Quirk was in the vehicle in the passenger seat. The vehicle was running, but not in gear. Ms Levy's feet were in the driver's seat foot well, but not on either the gas or brake pedal. The police made observations that Ms Levy was significantly impaired. The three officers who attended at the scene and testified gave evidence that Ms Levy had her seat belt on. The evidence about the seat belt evidence was disputed by Mr. Quirk. Ms Levy could not recall if she had her seat belt on or not (Ms Levy was quite candid about difficulties with her recollection as a result of her intoxication). I will return to the issue of the seat belt in the analysis below. One of the officer's testified that Ms Levy's keys were at some point located in her purse in the car. Ms Levy agreed this was possible, and that she usually keeps her keys in her purse, or in the centre cupholder when she is in the car.

[7] Mr. Quirk estimated they had been in the vehicle for the time it takes to smoke a cigarette, which he said was 5-10 minutes, at the time the police arrived.

[8] Mr. Quirk was not intoxicated that evening. He does not drink frequently, and when he does, he only has one or two drinks. He could not recall if he had anything to drink that night, but at most it would have been one drink. The police evidence confirmed that he showed no signed of intoxication and was not impaired when the police arrived.

[9] Ms Levy was taken to 21 Division for a breathalyzer. She was cooperative, although she needed assistance due to her level of impairment. The breath readings were .250 and .240 milligrams of alcohol in 100 millilitres of blood.

[10] The evidence showed, and counsel agreed, that Ms Levy's vehicle had a "keyless" starting mechanism. To start it, the key must be inside the vehicle, and then one must depress the brake pedal, and push the start button. It was also not in dispute that once the car is started, to drive it what is required is to depress the brake pedal, shift the car into a gear (it is an automatic transmission), and then press the gas pedal.

[11] To the extent that there is some dispute about a small number of factual issues, I will address them in the course of the legal analysis.

[12] With respect to the issue of Ms Levy's intention, in addition to giving evidence on most of the issues above, Ms Levy gave evidence that when she went out to the car she did not intend to drive. She just intended to have a cigarette and continue her discussion with Mr. Quirk. She had started the car only for heat, since it was "freezing" that night. She agreed she was very intoxicated. She also testified about the plan to sleep over at the Papageorgious' home mentioned above. She testified that she works as a bartender. Because she has seen issues with drinking and driving in her work, it is her practice never to drink and drive, and always to have a plan for the night if she is drinking, such as either a taxi or a plan to stay at someone's home. I will not summarize all of this evidence here, but will reference it in the legal analysis. Ms Levy's evidence on these issues, and on the facts outlined above, were supported by the evidence of her boyfriend, Mr. Quirk, and by the Crown witness Ms Papageorgiou.

[13] The Crown did not challenge the honesty of the defence evidence, but took issue with issues created by Ms Levy's lack of memory as it relates to rebutting the presumption created by s. 258(1)(a), and with the assessment of whether a realistic risk was created in all the circumstances. Nor did the Crown challenge the existence of a plan for Ms Levy to spend the night at the home of Shannon and Jimmy Papageorgiou. Rather, as is discussed below in the legal analysis, the Crown took issue with whether Ms Levy was still following through with the plan at the time the police arrived.

THE ISSUES

[14] The Crown conceded that based on the evidence led, the Crown cannot prove beyond a reasonable doubt that Ms Levy drove the vehicle after she arrived at the Papageorgious' home and started drinking. Thus, the case must be decided on the basis of whether Ms Levy being in the driver's seat of the vehicle while impaired, in all of the surrounding circumstances constituted care or control.

[15] The defence concedes that Ms Levy was significantly impaired by alcohol on the night in question. This was confirmed by the evidence of all of the witnesses, including Ms Levy. It is also quite apparent on the breath room video.

[16] The defence also concedes that the presumption in s. 258(1)(a) is engaged, because Ms Levy was in the driver's seat, but argued that the evidence is sufficient to rebut the presumption.

[17] The Crown and defence agree that the two live issues in this trial are:

(i) Has the defence rebutted the presumption in s. 258(1)(a)? and

(ii) If so, has the Crown nonetheless proven beyond a reasonable doubt that Ms Levy was in care or control of the motor vehicle.

THE APPLICABLE LAW

[18] Crown counsel and defence counsel were in general agreement about the applicable law, but differed on the outcome its application to this case should yield.

[19] Section 258(1)(a) of the Criminal Code creates a presumption that a defendant who is found in the driver's seat of a motor vehicle is deemed to be in care or control of the vehicle. To rebut the presumption, the defendant must show on a balance of probabilities that he or she did not occupy that seat for the purpose of setting the vehicle in motion, i.e. that he or she had no intention to drive: R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 at paras. 36-38.

[20] Where the defence has rebutted the presumption, the Crown may prove the elements of care or control beyond a reasonable doubt. The elements of care or control are as follows:

(i) An intentional course of conduct associated with a motor vehicle;

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

(iii) In circumstances that create a realistic risk of danger to persons or property: Boudreault, supra at paras. 9, 33

[21] I note that in this case the defence conceded that the first two elements are not in issue, and the Crown has proved them beyond a reasonable doubt.

[22] The risk under the third branch must be a "realistic risk". To be realistic, a risk need not be probable, or serious or substantial. But the risk must be more than just "theoretically possible". A realistic risk is a low threshold, consistent with the preventive nature of the offence of care or control. But a theoretical risk is too low a threshold, since it would criminalize too broad a range of inconsequential conduct: Boudreault, supra at paras. 34-35, 38-39, 41-42, 48.

[23] An intention to set a motor vehicle in motion is a realistic risk of danger. In the absence of a contemporaneous intention to drive (i.e., where the defence has rebutted the presumption), a realistic risk of danger may arise in at least three ways:

(i) 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;

(ii) An inebriated person behind the wheel may unintentionally set the vehicle in motion; and

(iii) Through negligence, bad judgment or otherwise, a stationary and inoperable vehicle may endanger persons or property: Boudreault, supra at paras. 41-42.

[24] In this case the Crown argues that the first two types of risk are present.

[25] An important factor in assessing whether there is a realistic risk is whether there is credible evidence that defendant made an alternate plan to ensure his or her safe transportation home, or, as in this case, to spend the night so that he or she would not drive while impaired: Boudreault, supra at paras. 51-53. The impact of evidence of such a plan will depend on whether the plan was "objectively concrete and reliable", and on whether the defendant, in fact, implemented the alternate plan. A trial judge must keep in mind that even where there is a plan, the evidence may lead to the conclusion that the defendant abandoned the plan due to his or her state of impairment, or there was a realistic risk the plan would be abandoned, leading to a realistic risk of danger in the circumstances.

[26] The defendant's intention with respect to operating the motor vehicle is relevant to the assessment of whether the presumption in s. 258(1)(a) has been rebutted; however, proof of an intention to operate the motor vehicle is not an essential element of care or control. Nor does a finding of fact that the defendant did not intend to operate the motor vehicle preclude a finding of care or control, if the requirements of Boudreault are otherwise met: Boudreault, supra at para. 36; R. v. Ford, [1982] 1 S.C.R. 231.

[27] Generally, a finding of fact that the defendant was impaired and in the driver's seat of a motor vehicle will be sufficient to conclude that there is a realistic risk of danger to persons or property, and as a result that he or she was in care or control of the motor vehicle; however, that finding is not automatic. The assessment of whether there is a realistic risk of danger is a factual one which must be made in all the circumstances. As a practical matter, evidence supporting a finding that the defendant was impaired and in the driver's seat will impose a tactical burden on the defence to adduce credible and reliable evidence, both to rebut the presumption, and to raise a reasonable doubt that there was not a realistic risk of danger in the particular circumstances of the case: Boudreault, supra at paras. 12-13, 45, 48.

ANALYSIS

[28] As noted above, this is a case where significant defence evidence was led in relation to whether the defendant was in care or control. As well, aspects of the evidence led by the Crown were supportive of the defence position on care or control. The Crown did not challenge the credibility or honesty of the defence evidence, and generally accepted it. But the Crown did challenge the reliability of the defence evidence on two issues – Ms. Levy's memory in relation to her intention with respect to driving, and the reliability of the evidence of the evidence of Mr. Quirk that Ms Levy was not wearing her seatbelt when the police arrived. In addition, the Crown argued that on the evidence the court should find that there was a realistic risk pursuant to the analysis in Boudreault.

[29] In relation to the seat belt, I accept the evidence of the three officers that Ms Levy was wearing her seat belt at the time the police arrived. This is a fact that the officers had reason to note, since it was relevant to the offence they were investigating. Ms Levy had no recollection one way or the other about whether she was wearing her seat belt. Although Mr. Quirk testified that Ms Levy was not wearing her seat belt, I find that in the circumstances it is a fact on which he may be mistaken, because it was not a fact that was important for him to observe one way or another when he and Ms Levy were in the car for the purpose of smoking and talking. I consider the seat belt below in relation to both the presumption and the issue of whether the Crown has proven care or control beyond a reasonable doubt; however, it is not a factor that I accord a lot of weight in the circumstances, as putting on a seat belt is often a routine action people take when they get into a car out of habit.

(i) The presumption in s. 258(1)(a)

[30] In order to find that the presumption in s. 258(1)(a) is rebutted, I must find that the defence has proven on a balance of probabilities that Ms Levy did not occupy the driver seat for the purpose of setting the vehicle in motion, i.e., that she did not intend to drive.

[31] The defence argued that Ms. Levy's evidence, as supported by Mr. Quirk and Ms Papageorgiou was sufficient to rebut the presumption. Crown counsel conceded that if I accept Ms. Levy's evidence that she did not intend to drive, the presumption would be rebutted. However, he argued that I should not accept her evidence on this issue, as it was not reliable given Ms. Levy's admission that she was extremely intoxicated (which was confirmed by the breath room video). The Crown further relied on her evidence that although she asserted that she had a memory of events up until the police attended, she admitted that memory was fairly hazy, and she also testified she had no memory of events after the police arrived until she awoke the next morning. The Crown further argues that I cannot rely on Mr. Quirk's assertion that Ms Levy did not intend to drive, since he cannot speak for her intention; although the Crown did agree that I could consider all of the surrounding circumstances.

[32] I find that Ms. Levy has rebutted the presumption in s. 258(1)(a). I base this conclusion on the combined effect of Ms Levy's evidence and the supporting evidence of Mr. Quirk and Ms Papageorgiou.

[33] Had Ms Levy's evidence been the only evidence relevant to the presumption, I would have found that her evidence standing alone did not rebut the presumption, because given her level of intoxication, her evidence standing alone would not be sufficiently reliable. However, her evidence does not stand alone. I also accept the Crown's argument that the bald assertion from Mr. Quirk that Ms. Levy did not intend to drive is not properly admissible as evidence of her intent. He cannot say what thoughts were in her mind. However, I find that his evidence and that of Ms Papageorgiou regarding the surrounding circumstances is relevant to assessing Ms Levy's state of mind.

[34] The evidence was not disputed that the car was properly parked in a parking space in the townhouse complex on private property.

[35] Mr. Quirk confirmed, and I accept his evidence on every issue except the seat belt (discussed above), that he and Ms Levy had gone to the car to continue their discussion which had arisen out of the fight, and for her to smoke. He confirmed they had been in the car for 5 or 10 minutes at the time the police arrived. He confirmed that Ms. Levy never attempted to set the car in motion and never put her hand near the gear shift during the time they were in the car.

[36] I accept the evidence of Ms Papageorgiou that she and Ms Levy had been out to the car several times that night previously to smoke, because the Papageorgious did not allow smoking in their home. I accept the evidence that on those occasions they went to the car to smoke because it was very cold, and that Ms Levy turned on the car in order to use the heat. This evidence provides support for Ms Levy's asserted lack of intention to drive, in light of the similarity of those previous trips to the car to the time she was in the car when the police attended. I accept as a fact that on each of those prior occasions that night, Ms Levy and Ms Papageorgiou had attended at the car to smoke, because smoking was not allowed in the house. Because it was a very cold night in February, Ms Levy turned the car on for heat. On none of those prior occasions was there an intention to drive and on none of those prior occasions was the car put in motion.

[37] I also accept that there was a plan for Ms Levy and Mr. Quirk to spend the night at the Papageorgious' home, and that the couch was made up in the basement for them. The evidence of the plan for her to spend the night at the home of the Papageorgious was confirmed by Mr. Quirk and by Ms Papageorgiou. There was some dispute in the evidence as to when the couch was made up, but the Crown did not dispute the existence of the plan. The existence of this plan is further support of a lack of intention to drive on the part of Ms Levy. I find that Ms Levy did not at any point abandon the plan to spend the night. Although Ms Papageorgiou testified that she called police because she was concerned that Ms Levy might drive, she agreed in cross-examination that Ms Levy never said anything indicating that she intended to drive, and that she never saw her drive.

[38] In the context of this supporting evidence, I find that Ms Levy's evidence that she did not intend to drive, and was in the car to smoke and continue her discussion with Mr. Quirk is entitled to some weight, and in combination with the supporting evidence is sufficient to rebut the presumption. As noted above, I have considered the fact that I have found Ms Levy was wearing her seat belt. But even taking that fact into consideration, I find that the presumption has been rebutted, as putting on a seat belt can be a routine act of habit.

[39] For these reasons, I find that Ms. Levy has rebutted the presumption in s. 258(1)(a). As a result, the Crown has the burden to prove beyond a reasonable doubt that she was in care or control of the motor vehicle at the relevant time.

(ii) Has the Crown proven care or control beyond a reasonable doubt?

[40] The Crown argues that there was a realistic risk that Ms Levy would change her mind and decide to drive, and also that there was a realistic risk that she may unintentionally set the vehicle in motion. I find that neither of these risks has been proven beyond a reasonable doubt.

[41] With respect to the risk that Ms Levy would change her mind and set the vehicle in motion, I find that the risk is at best theoretical and has not been proven to be a realistic risk beyond a reasonable doubt. The factual basis for this finding is largely set out above at paragraphs 2-12 and 28-38, and I will not repeat it here. In referencing these paragraphs, I wish to make clear that I am referencing them to avoid repeating facts already found, but that I instruct myself that proof of an intention to drive is not an essential element of care or control (see paragraph 26 above).

[42] The car was parked in a proper parking space. The car was running, but I have found that it was running for the purpose of heat. Ms Levy was in the car for the purpose of smoking and continuing her discussion with Mr. Quirk. There is evidence, which I accept, of a concrete plan for her to spend the night at the Papageorgious' home. I find that the evidence does not show either that Ms Levy abandoned the plan to spend the night at the Papageorgious' home, or that there was a realistic risk she might abandon the plan due to her level of intoxication. I find that the Crown has not proven a realistic risk that Ms Levy would change her mind and drive.

[43] I note as well that on the facts before me, there is a further factor, absent in Boudreault and Hannemann, supporting an absence of a realistic risk that the vehicle would be set in motion, either by accident or by a change of mind of Ms. Levy: I refer to the presence of Mr. Quirk in the passenger seat. Mr. Quirk was sober, as he testified and which was confirmed by Constable Longden. Mr. Quirk testified, and I accept his evidence, that Ms Levy never attempted to put the car in gear, never reached for the gear shift, and that he would not have let her drive the motor vehicle in her condition. Given his sober state, and his size (evidence was led that he was a body builder, and this was clear in court from his physical appearance), I find that there was no realistic risk that even had Ms Levy attempted to set the car in motion, that she would have been able to do so. Mr. Quirk could have easily prevented her from doing so, and I accept that he would have.

[44] With respect to the risk that Ms Levy would unintentionally set the vehicle in motion, I also find that the risk is at best theoretical and has not been proven to be a realistic risk beyond a reasonable doubt. The car was parked, but the ignition was on. It was common ground that to set the vehicle in motion, Ms Levy would have had to depress the brake pedal, and shift the car into gear with her hand. The gear shift was in the centre console, between Ms Levy and Mr. Quirk. Mr. Quirk was close to Ms Levy, sitting in the passenger seat right beside her. At least one of the officers testified that Ms Levy's feet were not on the gas or brake pedals. Mr. Quirk testified that at no point did Ms Levy put her hand near the gear shift. He also testified that he would have stopped her if she tried to put the car in gear. I accept his evidence, and his credibility was not challenged by Crown counsel on this issue. I find as a fact that there was not a realistic risk that Ms Levy would unintentionally put the car in motion in all the circumstances, particularly where there was a sober adult in the passenger seat right beside her.

[45] I note that the facts before me are in many ways similar to those in Boudreault, supra and R. v. Hannemann, [2001] O.J. No. 1686 at paras. 42-64 (S.C.), both cases which resulted in acquittals. As in this case, in each of those cases the defendant was in the car in the driver seat with the ignition on, but the evidence was that it was on for warmth. As in this case, in Boudreault and Hannemann, there was evidence which was accepted of a plan for the defendant other than driving (a taxi, or being picked up, or in this case, the plan to stay over for the night). I acknowledge that the similarity of the facts of this case to Boudreault does not compel me to acquit, in that the Supreme Court recognized that a finding of care or control would be open (but not inevitable) on the facts in Boudreault, but did not intervene due to the scope of the Crown right of appeal and appellate deference: R. v. Boudreault, supra at paras. 7, 12-13, 45, 48, 54, 56. However, Boudreault is also clear that conviction is not automatic based on a finding that the defendant was impaired and in the driver's seat of a motor vehicle: Boudreault, supra at paras. 33-35, 41-42, 45, 48.

[46] I hasten to add that these reasons should not be taken as endorsing in any way the propriety of using a car as a location to smoke after one has been drinking. As is clear from Boudreault, depending on the particular constellation of circumstances, it would be open for a trial judge to find that the presumption or care or control is not rebutted, or to find that care or control is proven beyond a reasonable doubt. People who smoke when they drink ought to find a place to do so other than a motor vehicle.

CONCLUSION

[47] For the reasons given above, I find that Ms Levy has rebutted the presumption in s. 258(1)(a) of the Criminal Code. I further find that I am not satisfied beyond a reasonable doubt that she was in care or control of the motor vehicle at the relevant time.

[48] In light of this finding, it is not necessary to deal with the subsidiary issue raised by defence counsel in relation to mouth alcohol and possible issues with the accuracy of the breath readings.

[49] I find Ms Levy not guilty of both counts. Both charges are dismissed.

[50] I wish to thank counsel for their fair and focused presentation of the evidence and submissions in this case.

Released: May 15, 2015

Justice J. Copeland