Court File and Parties

Court File No.: Central East 12-1110 Date: 2013-03-08 Ontario Court of Justice

Between: Her Majesty the Queen — and — Christopher Aldred

Before: Justice C.M. Harpur

Heard on: January 29 and February 8, 2013

Reasons for Judgment released on: March 8, 2013

Counsel:

• Gregory Barker, for the Crown
• The defendant Christopher Aldred, on his own behalf

HARPUR J.:

(i) Overview and Issue

[1] The narrow issue in this case is whether Mr. Aldred was in care or control of a motor vehicle on February 26, 2012 immediately prior to his arrest by P.C. Christie Cummings at 5:29 p.m. that day.

[2] Trial proceeded on January 29 and February 8, 2013 on the charges of impaired care or control, care or control with excess blood alcohol and, consequently, breach of a keep the peace term in a probation order. Mr. Barker for the Crown called the arresting officer, P.C. Cummings, and the qualified breath technician, P.C. Guy Peters. Mr. Aldred, who represented himself, testified and called the evidence of his mother, Marie Aldred. Mr. Aldred conceded the fact of impairment in his ability to operate a motor vehicle when seen behind the wheel of his mother's car by P.C. Cummings on February 26, 2012 and did not dispute having a truncated blood alcohol concentration of 240 mg of alcohol in 100 ml of blood at that time. He also took no issue with his being subject to a probation order containing a keep the peace and be of good behaviour term.

(ii) The Crown's allegation of care or control by Mr. Aldred's operation of a motor vehicle

[3] The Crown urges me to accept the evidence of P.C. Cummings to the effect that she saw Mr. Aldred finishing his parking of his mother's motor vehicle in the driveway of his mother's home on Poole Street in Midhurst as she, P.C. Cummings, came onto Poole Street from St. Vincent Street. Mr. Barker suggests that the officer's evidence establishes that she saw Mr. Aldred drive into the driveway and park. This, he notes, is in contradiction to Mr. Aldred's eventual evidence that he did not operate his mother's vehicle at any time on February 26, 2012 and, rather, that he was only in it momentarily that late afternoon, with its engine off, trying with the muscle power of one leg to rock it free of the snow pile on which it was stuck.

[4] Mr. Aldred's version of events concerning his operation of his mother's car received some support from the testimony of his mother. Mrs. Aldred corroborated her son's evidence that it was she who drove him from her home to and from The Locker Room Sports Bar that afternoon. Mrs. Aldred said she returned with him to her home and pulled into the driveway, intending to drop off Mr. Aldred and proceed to the animal shelter she manages in Barrie to tend some ill cats. She said she pulled in behind Mr. Aldred's truck and became stuck. She said she tried to extricate the car using the engine but couldn't do so. She said she turned the car off, left the keys in the ignition, got into her other car and drove to the animal shelter. She said she assumed Mr. Aldred would remove the keys and lock the car but that she did not expect him to use her car since he is only able to drive his own which is fitted with an interlock device.

[5] Considering the evidence of P.C. Cummings, Mr. Aldred and Mrs. Aldred, while I retain a strong suspicion that Mr. Aldred did drive Mrs. Aldred's car on the evening of February 26, 2012 and was seen doing so by P.C. Cummings, I am not satisfied to the necessary standard of proof that he did so.

[6] P.C. Cummings fairly acknowledged in her evidence that the movement of the car which she observed as she came onto Poole Street was minimal. She used a number of expressions in describing this aspect of what she observed, among them the following: "just parking at the end of the driveway"; "I saw it pulling in and stopping"; "it was in the process of stopping"; "it was moving enough to notice the lights"; "I saw the ending motions"; and "he was in the midst of parking". Mr. Aldred said he was rocking the car, to an amplitude of an inch or two only, when P.C. Cummings arrived. Although Mr. Aldred conceded to Mr. Barker that the motion of the car he was creating with his foot would be "barely perceptible" (and, thus, his evidence might be seen as in conflict with that of P.C. Cummings, which I regarded as reliable), there exists a possibility, not entirely far-fetched, that his rocking of the car, not the final stages of its being driven, is what the officer saw.

[7] The Crown's theory that Mr. Aldred was seen parking the car in the driveway involves either (i) Mr. Aldred having driven himself home from The Locker Room, contrary to the evidence of both Mr. Aldred and his mother, or (ii) Mr. Aldred having operated the car to extricate it from the snow after he was dropped off by his mother and she had left, contrary to Mr. Aldred's evidence. The first branch of the theory derives some force from the fact that, as Mr. Aldred and his mother acknowledged, she at no time prior to trial approached the police to disclose that she, not Mr. Aldred, was the person who drove home from The Locker Room. This silence exists notwithstanding Mrs. Aldred's knowing, by the end of the day on February 27, 2012 and her attendance at her son's bail court, that the Crown intended to identify Mr. Aldred as the driver. Mrs. Aldred testified that she was very concerned about the false charge but was nervous and upset by it and by other unpleasant factors in her life at the time. She also said that Mr. Aldred seemed to be dealing with the charge adequately with his then-retained lawyer.

[8] Mr. Aldred's explanation for his mother's reticence was that he did not want her involved and did not expect that anything she said to the police would alter the prosecution. "Once I got in the car, I knew I was out to dry", was the way Mr. Aldred put it.

[9] I found neither of these explanations for Mrs. Aldred's failure to tell the police about her involvement to be compelling. In the venerable phrase of O'Halloran, J. in Faryna v. Chorney, [1952] 2 D.L.R. 354 (B.C.C.A.), neither was "in harmony with the preponderance of probabilities" of the situation. Nonetheless, I cannot say that I regarded Mrs. Aldred's failure to come forward as altogether undermining her or Mr. Aldred's credibility about who drove home from The Locker Room.

[10] As indicated, I also retain a doubt arising from Mr. Aldred's testimony concerning the central point in time in the driveway and whether he only rocked, not drove, the car when there.

(iii) The Crown's allegation of care or control by Mr. Aldred's foot-propelled rocking of the motor vehicle

[11] I turn then to Mr. Barker's alternative argument that, even on Mr. Aldred's version of his actions, he was in care or control.

[12] Mr. Aldred said his mother's car was stationary in the driveway once his mother turned it off and got out. He said he exited the passenger side and went and sat in the driver's seat. His intention, he said, was to rock the car to free it from the snow on which it was stuck, back it up slightly, and thus be able to back his interlock-equipped truck out and around it for work the following morning. He said he was unaware, as he sat, that the keys were in the ignition, but he did not dispute that this was so. He said the car lights were off (contrary to P.C. Cummings's testimony) but that he used his right foot on or about the brake pedal and may have activated the brake lights. He said he left the driver's door open, used his left foot for propulsion, kept his right in the vicinity of the brake, and tried to rock the car free. He said it moved no more than one or two inches. He said he was still attempting to move the car when P.C. Cummings arrived at the foot of the driveway. He said he had no intention of operating his mother's car, that she was aware of his interlock driving restriction and that she would not allow him to operate her car. He said that, in any event, he knew better than to violate his driving disqualification resulting from a conviction under section 253 C.C. in 2011.

[13] Mr. Aldred said that, in retrospect, he should have tried to free the car by pushing it at the front end but that he did not do so for fear of it rolling backward onto Poole Street. He said the car became stuck in the snow close to the street end of the drive, a drive which accommodated two vehicles and in which his truck was already parked.

[14] P.C. Cummings's testimony contradicted Mr. Aldred's as to whether the lights of Mr. Aldred's car were on and, arguably, as to the extent of the motion of Mr. Aldred's car which she observed. P.C. Cummings's observations were not susceptible to weakness through consumption of alcohol that evening and her evidence is to be preferred. However, as indicated, I am not prepared to reject Mr. Aldred's testimony as to the extent of, or cause for, the motion of his mother's car. His testimony can be reconciled, if barely, with P.C. Cummings's evidence.

[15] Thus, the issue of Mr. Aldred's criminal liability becomes whether his sitting in the driver's seat trying to rock the car backward for approximately two feet constituted care or control.

[16] Although not its primary argument, the Crown relies on the presumption of care or control when one is proven to occupy the driver's seat of a motor vehicle, as set out in section 258 (1)(a) C.C. Given Mr. Aldred's description of his position in his mother's car when trying to extricate it, the presumption would apply, in my view, absent Mr. Aldred establishing that he did not occupy the seat for the purpose of setting the vehicle in motion.

[17] Mr. Aldred submits that, given his one-foot-in-and-one-out position behind the wheel of the car, he cannot be said to have "occupied the seat or position ordinarily occupied by a person who operates a motor vehicle" so as to give rise to the presumption described in s. 258(1)(a) C.C. Mr. Barker responds by reference to R. v. Hatfield, [1997] O.J. No. 1327 in which the Ontario Court of Appeal rejected, as follows, a similar argument based on the fact that the driver's seat occupied by the accused was fully reclined:

In my view the summary conviction appeal court was correct in determining that, as a matter of law, the presumption provided for by s. 258(1) applies in this case. The language of the section requires that the accused occupy the seat ordinarily occupied by the driver. In this case, the appellant was in the driver's seat. On the plain language of the section, the presumption is therefore triggered. The fact that the seat was fully reclined does not, in my view, negate the application of the presumption. In R. v. Toews the Supreme Court of Canada said at p. 28:

I would agree that to occupy the seat ordinarily occupied by the driver within the meaning of s. 237(1) one need not be sitting straight up with hands on the steering wheel and in all respects be ready to drive. The fact that some movement or adjustment of position might be required to enable a person to take the steering wheel and drive the car will not necessarily be such a departure from the occupation of the driver's seat that it will deprive the Crown of the right to rely on the presumption.

[18] Here, the steps required to enable Mr. Aldred to "take the steering wheel and drive the car", in the sense of directing its movement if it could move, were no more significant than the repositioning of the reclined seat required in Hatfield. Thus, the discrepancy from ordinary occupation is, similarly, not enough to deprive the Crown of reliance on the presumption.

[19] I accept that Mr. Aldred has rebutted the presumption that he occupied the driver's seat for the purpose of operating his mother's car, in the sense of starting its engine and moving it by way of engine propulsion. That does not, however, determine the persistence of the presumption. Section 258 (1)(a) C.C. raises the presumption where the accused occupied the driver's seat "for the purpose of setting the vehicle in motion", not only where occupation is for the purpose of engine-propelled operation. "Set in motion" is, inferentially, a concept distinct from and broader than the concept of operation.

[20] Although not dealing expressly with these words of the Criminal Code provision, several court decisions have applied the presumption of care or control even where the vehicle in the driver's seat of which the accused was found was incapable of engine-propelled operation: R. v. Saunders, [1967] 1 S.C.R. 284; R. v. Maslek, [2004] O.J. 2770 (S.C.J.); R. v. Smith, [2004] O.J. 57 (S.C.J.); R. v. Danji, [2005] O.J. 917 (O.C.J.).

[21] Here, with some reluctance given Mr. Aldred's creditable self-representation at trial, I see no basis to find that Mr. Aldred did not occupy the driver seat of his mother's car to put it in motion. He has fairly acknowledged that that is precisely what he was attempting to do, albeit by leg power, only for a short space within the driveway and in an effort that was doomed to fail. These qualifications are certainly mitigating but do not prevent his actions from falling within the scope of s. 258(1)(a) C.C. As the Supreme Court said in Saunders, "these provisions of the Code manifest the determination of Parliament to strike at the very root of the evil, to wit, the combination of alcohol and automobile, that normally breeds this warrant of danger which this preventive legislation was meant to anticipate". Given the anticipatory purpose of s. 258(1)(a) C.C. it may reasonably be regarded as targeting a proven attempt by an impaired person to put his car in motion, whether he can effect this result or not.

[22] Accordingly, I find Mr. Aldred guilty of the three charges he is facing.

[23] Were it not for Mr. Aldred's admission of his occupying the driver's seat of his mother's car to put it in motion by way of foot power, I would not regard care or control proven, despite Mr. Barker's vigorous submission to the contrary.

[24] One piece of evidence tendered by Mr. Aldred was his receipt from the police-summoned towing company which took away Mrs. Aldred's car. The document corroborates the evidence of both Mr. Aldred and his mother that Mrs. Aldred's car was stuck fast; the receipt lists, among other expenses, "winch out of snow – $30". I find that the car was immovable in the driveway at the point when Mr. Aldred was seen sitting in it, apart from the one to two inch rocking which Mr. Aldred was able to accomplish by foot power. The car was entirely within the house driveway, that is, not blocking the sidewalk or Poole Street. R. v. Wren, [2000] O.J. 756 (O.C.A.) has established that, absent proof of an attempt to put a vehicle in motion, "an accused will have care or control of an inoperable vehicle if that vehicle in the hands of an impaired person has the potential to create some danger". On this record, I find that no such potential has been proven to exist. The car could not move as Mr. Aldred sat in it and I am not satisfied that the steps he was taking at this point in respect of the car's fittings were taken with a view to his operating the car prior to the following morning, nor that they created anything beyond the mere possibility that he might do so. On this last point I am guided by the decision of Duncan, J. in R. v. Ross, 2007 ONCJ 59, [2007] O.J. 619 (O.C.J.) which dealt with the related issue of the potential for changed intention. He said this:

"The potential for changing intention is just as real as the potential of doing something that causes the vehicle to be unintentionally set in motion. On the other hand, there must be some limit to the role that future possibilities can play. The man drinking in his living room might decide to drive to the store for cigarettes or pizza. Is he, for that reason, in care or control?

A compromise between these two extremes was formulated by Whittmann A.C.J. in R. v. Ogrodnick. Following a thorough review of the law, the court concluded that the mere possibility of the accused, while still unfit, changing his mind and deciding to drive is not a sufficient basis for liability. Rather, the Crown must establish a probability, not mere possibility – a "concrete and tangible risk [of changing one's mind] and deliberately setting the vehicle in motion"."

[25] Here, Mr. Barker suggested that Mr. Aldred's initial, unsuccessful efforts to move the car pointed to the likelihood of later, successful efforts to dislodge it. He submitted that the situation would then exist in which an impaired Mr. Aldred would have available to him an operable car. In my view, to posit these things, together with an ongoing intention by Mr. Aldred to operate his mother's car, is more speculation than probability.

[26] Mr. Barker made reference to R. v. Burton, [2000] O.J. 1781 (S.C.J.) and the following dicta of Durno, J. in support of his position:

"A person having consumed excess alcohol performing some acts involving the vehicle's equipment provides, in itself, sufficient evidence of the potential for danger. Where no such acts have been undertaken the Crown would be required to lead evidence of what would be required to put the vehicle in motion".

[27] On its face, the first of these principles from Burton would appear to encompass Mr. Aldred's situation. However, the facts in Burton involved a fully-operational vehicle with its engine running, not one which was immovable. Moreover, I do not take Durno, J.'s reasons to say that, where an impaired accused has engaged in an act involving his vehicle's fittings, an irrebuttable presumption arises that there is potential danger, such that evidence of what would be required to put the vehicle in motion becomes irrelevant. In Burton, no evidence was led by the defence as to the steps required to put the vehicle in motion and, thus, the presumption described by Durno, J. persisted. Here, evidence was led as to the substantial impediments – literally – to causing Mrs. Aldred's vehicle to move or otherwise constitute a danger.

[28] Mr. Barker also relied on R. v. Boudreault, 2012 SCC 56, [2012] S.C.J. No. 56 (S.C.C.) in urging a finding of realistic risk of danger to persons or property. Again, I regard the authority as distinguishable. The judgment expressly identifies the facts as involving "a motor vehicle with nothing to stop the accused from setting it in motion" and "a present ability to drive while impaired". That circumstance does not exist in Mr. Aldred's case.

Released: March 8, 2013

Signed: "Justice C.M. Harpur"

Justice C.M. Harpur, O.C.J.