Court File and Parties

Court File No.: Durham Region 998 11 13981 Date: 2012-07-24 Ontario Court of Justice

Between: Her Majesty the Queen — and — Cory Hobbs

Before: Justice J. De Filippis

Heard on: 12 July 2012

Reasons for Judgment released on: 24 July 2012

Counsel:

• Mr. N. Young for the Crown
• Mr. K. Mitchell-Gill for the Defendant

Reasons for Judgment

De Filippis, J.:

Facts and Initial Detention

[1] On August 6, 2011 at about 1:30 AM, the defendant was detained by a police officer who reasonably suspected that he had alcohol in his system while in care or control of a motor vehicle. The defendant was arrested for this offence shortly after when he failed a breath test, conducted at the scene, with an approved screening device. Later, at the police station, he provided two samples of his breath into an approved instrument and registered blood alcohol readings of 230 and 220 – almost three times the legal limit. These facts are not in dispute. Moreover, it is not contested that the police properly discharged their statutory and Charter duties in obtaining the evidence of the breath tests. The only issue in this case is the identity of the person in care or control of the motor vehicle. The police officer claims it was the defendant. The defendant and his former partner assert that it was the latter.

Police Officer's Evidence

[2] On the date and time in question, Cst. Sebaaly was on general patrol in downtown Oshawa in a marked cruiser. While traveling northbound on Simcoe Street – a main city road – he saw a Chevrolet Cavalier ahead of him make a sharp right turn onto Greta Street. He testified that he was about ten feet behind the motor vehicle and never lost sight of it as he followed it. The target vehicle stopped at the curb almost immediately after making the turn. The officer stated that he saw a woman exit from the front passenger door and walk away. As she did so, she passed in front of his cruiser. He called out to her but she did not respond. Cst. Sabaaly testified that as soon as the woman left the car, the engine of the Cavalier was shut down and the car lights went out. As the woman walked away, a man exited from the driver's door. The officer denied the suggestion that when he turned the corner, the Cavalier was already stopped with both its occupants standing outside the car.

[3] Cst. Sabaaly believed the woman had left the car because of a "domestic issue" and he approached the man. The latter identified himself as the defendant and said the woman was "Sandra", his girlfriend. The defendant was upset, emitted a strong odour of alcohol and admitted to alcohol consumption. As already noted, he failed a roadside test and was later shown to have had blood alcohol readings above the legal limit. Cst. Sabaaly learned the woman's name is Sandra Driscoll and, six days after these events, he left her three telephone messages to call him. She did not respond. In April of the following year, he served her with a subpoena to attend this trial.

Defendant's Evidence

[4] The defendant is 28 years old and works for a company in Bowmanville. He testified that on the night in question he was with his ex-girlfriend, Sandra Driscoll. The relationship ended because of the defendant's "drinking problem" and his assault upon Ms Driscoll in 2010. In addition to this conviction, the defendant has a criminal record for theft and failure to comply with probation. Notwithstanding these difficulties, the parties have maintained contact because they have a child and, thus, the defendant joined Ms Driscoll and others at a bar in Pickering. The defendant lives in Bowmanville and Ms Driscoll resides in Oshawa. They drove to the bar in the defendant's motor vehicle, a Cavalier. The defendant consumed much alcohol and by the end of the evening he was drunk. He testified that he decided to "sleep it off at Sandra's house" and go home the next morning and that Ms Driscoll drove them from the bar. However, the drive was not a pleasant one and they argued about his drinking. According to the defendant just before Cst. Sabaaly arrived on scene Ms Driscoll abruptly pulled over to the curb, threw the keys at him, told him to call "Keys R Us" – a service that provides drivers for intoxicated people - and walked away.

[5] The defendant testified that by the time the officer arrived both he and Ms Driscoll had exited the motor vehicle and were arguing outside of it. He insisted he had a clear recollection of the events at the scene. However, when asked why he had not called Ms Driscoll from the station to have her confirm she was the actual driver, he said that "I didn't know what I was charged with and thought it was an assault". He added that he had no recollection of giving breath samples or being charged with the present offences because he was "really drunk". He explained this apparent discrepancy in ability to remember on the basis that he had consumed some "shooters" late in the evening which "must have kicked in at the station". However, he must have had some appreciation of why he was at the police station because the videotape of the taking of the breath samples reveals the defendant protesting that he was not the driver of the car. In any event, the defendant said that in the days that followed he still did not call upon Ms Driscoll to help him clear up this matter because he wanted legal advice about his "situation" and later told her not to worry as he would "fight the charge".

Ex-Girlfriend's Evidence

[6] Ms Driscoll is 24 years old and works at Walmart. She said her relationship with the defendant ended because of his drinking and she has no intention of reconciling with him. However, for the sake of their child they remain friends. On the night in question, the defendant drove her to a bar to meet her friends. Ms Driscoll testified that he embarrassed her by becoming highly intoxicated and she took him away from the establishment. She said she was sober and decided to drive him to her home in Oshawa so that he sleep there and go home in the morning. On route they argued about his drinking and by the time they reached the point of encounter with Cst. Sabaaly, the argument became so heated that Ms Driscoll abruptly pulled over and told the defendant to get out. When he refused, she left the car and walked away. Ms Driscoll said she saw the cruiser arrive and assumed the police "would help" the defendant. It took two hours for Ms Driscoll to reach her home. She said she did not ask the officer for a ride home as she was too upset.

[7] Ms Driscoll denied the suggestion that the argument in the car arose because she did not realize how drunk the defendant was until after they left the bar and he was driving them home. She testified that the defendant called her one week after his arrest to ask her to "clarify matters" but she refused because she was still mad at him and "there was no need as it was obvious he wasn't driving". She acknowledged that she did not respond to several attempts by the police to contact her. Ms Driscoll testified that she is strongly opposed to drinking and driving and believes those who do so deserve to be punished. This includes her brother who has been convicted of such an offence in the past.

Legal Framework

[8] 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., 63 C.C.C. (3d) 397 (S.C.C.). The application of this principle does not mean the defendant's evidence is to be viewed in isolation, divorced from the context or other evidence in the case: F v R.D., [2004] O.J. 2086 (O.C.A). Moreover, in the appropriate case, the trier of fact may reject a defendant's evidence and find guilt on the basis of a reasoned acceptance beyond a reasonable doubt of a complainant's evidence: R v T.S., 2012 ONCA 289.

Analysis of Defendant's Credibility

[9] I have no hesitation in rejecting the evidence of the defendant. His level of intoxication makes his version of events unreliable. Moreover, it is incredible: He claims to have a clear recollection of the events at the scene of arrest that contradict those of the officer but he nevertheless added the "Keys R Us" detail not asserted by Ms Driscoll. More importantly, his clear recollection evaporated soon after at the police station. His explanation for this inconsistency - that the consumption of "shooters" late in the evening must have "just kicked in" – was obviously contrived. The defendant's testimony does not raise a doubt.

Analysis of Ex-Girlfriend's Credibility

[10] If the defendant was the only defence witness my rejection of his evidence would lead to his conviction because I find that the officer's testimony was not successfully challenged. However, I must consider the evidence of Ms Driscoll. Her testimony raises a number of questions: Why leave a drunken man in possession of a motor vehicle, especially considering her views on drinking and driving? Why do so when, according to her, a police cruiser then arrives, thereby exposing the defendant to the jeopardy he now faces? Why not seek the officer's assistance rather than make a lonely two hour walk in the early hours of the morning? The answers to these questions could lead to the conclusion that she is lying. Ms Driscoll explained that her puzzling conduct reflects her level of anger at the time. That might be the answer but it does not necessarily explain why she later did not do more to help the defendant by telling the police he was not the driver. On the other hand, the abrupt stop of the motor vehicle, far from the homes of the defendant and Ms Driscoll, supports the assertion that the parties were arguing. Moreover, it is difficult to believe that Ms Driscoll would have willingly been a passenger in a motor vehicle operated by a person who, according to all witnesses at this trial, was so highly intoxicated. In all the circumstances, I cannot reject her evidence.

Conclusion

[11] A criminal trial is more than a credibility contest. When the Crown and Defence both lead evidence, it is not a question of which one is to be preferred. The prosecution fails if I believe the Defence or it raises a reasonable doubt. The testimony of Ms Driscoll does the latter.

[12] The charge is dismissed.

Released: July 24, 2012

Signed: "Justice J. De Filippis"