Court File and Parties

Ontario Court of Justice

Date: 2017-12-20

Court File No.: Durham Region 998 16 36616

Between:

Her Majesty the Queen

— and —

Earnest Duff

Before: Justice J. De Filippis

Heard on: November 17 and December 4, 2017

Reasons for Judgment released on: December 20, 2017

Counsel:

• Mr. M. Newell, counsel for the Crown
• Mr. J. Fleming, for the defendant

Judgment

De Filippis J.:

Introduction

[1] The defendant was charged with two offences of having care or control of a motor vehicle while his ability to do so was impaired by alcohol and at a time that his blood alcohol level was over the legal limit. He admits he was impaired and had a blood alcohol level over the legal limit. The sole issue in this case is whether he had care or control of a motor vehicle.

[2] For the reasons that follow, the charge is dismissed.

[3] These facts are not in dispute: On September 12, 2016, the defendant left a bar in Oshawa, at closing time, in an intoxicated state. His truck was parked in front of the establishment. Before leaving the bar, the defendant called for a driving service for "drunk drivers", in which two people arrive – one to give the defendant a ride home and the other to drive his vehicle there. He was met outside by two women from this driving service. The defendant declined the service as he felt the price was too high. He entered his vehicle, sat in the driver's seat, and then moved over to the front passenger seat. The women from the driving service, fearful that he would leave in the vehicle, called the police and remained on scene until they arrived, about 10 minutes later. The defendant was arrested for the present offences and taken to a nearby station to provide breath samples. The result of those two tests are 110 and 120. These readings are over the legal limit.

Evidence

[4] At the time of this incident, Ms. Davenport worked for "DD4U", a driving service. She testified that she went to the Atria Bar on King Street in Oshawa, along with her partner, in response to a call for "Ernie in a F150 Pickup Truck". The truck was parked on the street and she stopped her vehicle behind it. A man who identified himself as "Ernie" came out of the bar and approached her. He "appeared drunk". When told the cost, he declined the service and entered the truck and sat in the driver's seat. According to Ms. Davenport, he "turned on the truck". She saw that its lights went on and she could hear music from the radio. The defendant sat in the driver's seat for a few minutes and then moved to the front passenger seat. About five minutes later, the police arrived and spoke to him.

[5] Ms. Davenport confirmed that King Street is a one-way street and that the driver's door on the truck is on "the sidewalk side". She also agreed that while sitting in the driver's seat the defendant appeared to be using his cell phone. She accepted that in her statement to police at the time, she did not say "the truck was on" and reported that she heard the music after the defendant went to the passenger seat. Nevertheless, Ms. Davenport insisted that he started the engine on first entering the vehicle.

[6] Ms. Deberes worked with Ms. Davenport on the evening in question. She generally confirmed the evidence of her partner, including that the defendant started the engine on first entering the truck and then went over to the passenger seat. She also believed the defendant was using his cell phone while in the driver's seat. Her prior statement to the police, like that of Ms. Davenport, records that the music was heard after the defendant went over to the passenger seat and makes no mention of the engine being started. Like her partner, she insisted that it was.

[7] PC Raffi responded to the call to police by Ms. Davenport. He was accompanied by another officer. He testified that the defendant occupied the front passenger seat of a truck that was properly parked and with its engine running. In response to his inquiries, the defendant reported that he was drunk and was waiting for a second driving service to arrive and take him and the truck to his home. PC Raffi did not see a cell phone in the possession of the defendant. After further inquiries and satisfying himself the defendant was intoxicated, the defendant was arrested. According to the officer, in the 17 minutes that he was on scene, a driving service did not arrive.

[8] The defendant is 54 years old and lives in Oshawa with his brother. He is a metal fabricator. He testified he is a regular patron at the Atria Bar. On the day in question, he had arrived home from a trip to Jamaica and went to the Portly Piper Pub for drinks. He consumed between eight and ten shots of rye whiskey. He contacted his regular driving service – a man he knows as "John" – to transport him and his truck to the Atria Bar. He produced cell phone records to a driving service to support his testimony.

[9] The defendant stayed at the Atria Bar until closing time. He was drunk. He said this often happens when he attends that establishment and he always relies on a driving service to get him and his vehicle home. However, as he could not get hold of John, he contacted other services, including the one that sent Ms. Davenport and Ms. Deberes. After declining their service, he entered his vehicle and made further attempts to find a driving service, at a cheaper price, and eventually reached John. He produced cell phone records to support this testimony. However, the police arrived before John did.

[10] The defendant testified that he explained he was waiting for a driving service, but when he produced his cell phone to substantiate this, PC Raffi's partner took it from his hand and threw it on the dashboard. The defendant also asserted that John approached his truck as the police were dealing with him and the same officer directed John to back away. John left the scene.

[11] The defendant said he put the keys in the ignition after he moved from the driver's seat to the passenger seat. He turned the key to the "power" position so that the radio came on but did not start the engine. When pressed on this issue, he replied "I don't think I turned the engine on, there was no reason to do so" and added that he could not dispute the contrary evidence by the prosecution witnesses. The defendant acknowledged that he "was not thinking clearly" because he was intoxicated but insisted he would have taken a cab home and left his truck if John had not arrived. In this regard, he explained that he has been "more drunk than this" on other occasions and has never driven home from the bar.

[12] Ms. Kristy Thompson is a bartender at the Atria Bar and knows the defendant as a regular patron. She testified he often drinks to excess and always uses a driving service to get home. She added that she often calls the service on his behalf. She testified that on the night in question both she and the defendant contacted several driving services. After the defendant left the bar, she learned the police were investigating him. Her curiosity took her outside. While the police were dealing with the defendant she saw a man from a driving service that the defendant often used in the past approach the truck. She testified that this man "did not stay as the cops didn't think he was needed".

Care and Control: The Applicable Principles

[13] There are three means of establishing care or control:

i) Evidence of driving because impaired operation is an included offence.

ii) Statutory presumption of care or control set out in section 258(1)(a) of the Criminal Code

iii) De facto or actual care or control.

[14] The statutory presumption applies when a person occupies the driver's seat of a motor vehicle. Where a charge is laid in such a case, the accused must establish on a balance of probabilities that the purpose of occupying the driver's seat was not to set the vehicle in motion. The risk of danger is not an element of the offence of care or control where the Crown relies on the statutory presumption: R v Amyotte, [2009] O.J. No. 5122 (Ont. S.C.), para. 127. However, this risk is relevant to actual care or control.

[15] The mens rea for the offence is the intent to assume care or control after the voluntary consumption of alcohol. In the case of actual care and control, the Crown must establish that there is a realistic probability of a risk of danger. This harm arises in three ways: (i) unintentionally setting a vehicle in motion, (ii) a stationary or inoperable vehicle that may endanger the individual or others, and (iii) an individual who has decided not to drive will change his mind. Cases of actual care or control are fact specific, reflecting the variety of conduct that may come within the definition. See: R v Sandhu, [2008] O.J. No. 4584 (Ont. S.C.).

Submissions

[16] The parties agree that the only route to conviction in this case is proof of actual care and control. In this regard, they also agree that the only issue is whether there was a realistic danger that the defendant would change his mind about not driving. That is, the Crown does not suggest that he might have unintentionally set the vehicle in motion or that it might otherwise endanger the public.

[17] Defence counsel argues that there is no realistic danger the defendant would change his mind because he had a concrete plan to get home. He asks me to accept the defendant's evidence that he was awaiting the arrival of the driving service and that, in fact, "John" arrived while the police investigated him.

[18] The Crown points to the following factors in support of actual care and control: The defendant had no way of knowing if and when "John" would arrive. He was the sole occupant of the truck and needed to get home. The keys were in the ignition and the engine was running. Counsel points out that the defendant had not abandoned his continuous intention to get home with his truck.

Criminal Law Standard of Proof

[19] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This means that if the defendant has called evidence, there must be an acquittal: (i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R v W.D. (1991), 63 C.C.C. (3D) 397 (S.C.C.).

Result

[20] The defendant has a criminal record that ends in 1991. I do not consider it relevant to credibility as it is 26 years old. He testified in a forthright manner and I am confident about his sincerity. The only concern is reliability, having regard to his intoxication. That said, I accept the accuracy of his account as it is confirmed by other evidence. It is clear from the cell phone records as well as the testimony of Ms. Davenport, Ms. Deberes, and Ms. Thompson that the defendant had called several driving services and continued to do so after he entered his motor vehicle. That the defendant is correct in stating he had contacted John is attested to by Ms. Thompson. She saw a man, identified by her, as a person often employed by the defendant approach the vehicle. This must be John. I accept that he left at the direction of PC Raffi's partner. The defendant had waited 10 minutes for John and, but for the arrival of the police, would have been on his way home under the terms of the driving service. I am satisfied that the defendant would not have changed his mind about driving.

[21] I find that the defendant was not in care and control of his motor vehicle. I find him not guilty.

Released: December 20, 2017

Signed: Justice J. De Filippis