Court File and Parties

Court File No.: 11-13884 Brampton Date: June 19, 2013 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Raymond Gooden

Before: Justice Richard H.K. Schwarzl

Heard on: October 10 and December 28, 2012; and May 17, 2013

Reasons released on: June 19, 2013

Counsel:

• Ms. Cindy Nadler for the Crown
• Mr. Kas Marynick for the Accused

SCHWARZL, J.:

1.0: INTRODUCTION

[1] In the early hours of November 3, 2011 the Accused, Raymond Gooden, drove his car on top of a fire hydrant at a house in Mississauga. When the police became involved, Mr. Gooden was found to be intoxicated by alcohol. After being brought to the police station, Mr. Gooden refused to provide suitable breath samples.

[2] Mr. Gooden pled not guilty to charges under sections 253(1)(a) and 254(5) of the Criminal Code. The prosecution led evidence from three police officers. No evidence was presented by the defence.

2.0: EVIDENCE

[3] P.C. Andrea Goudreault received a radio call at 2:13 a.m. that a car had collided with a fire hydrant on a residential lawn. She was the first officer at the scene, arriving at 2:20 a.m. to find precisely what had been described over the radio. The car had significant front end damage and it was sitting on top of a broken hydrant. She testified that on her arrival Mr. Gooden was kneeling on the driver's seat searching for something on the passenger side. He was not sitting in the seat and the car was not running. When he found what he was looking for, he withdrew from the car and locked it using his key which he then put in his pocket and he walked a short distance away. She observed that Mr. Gooden was obviously drunk. She dealt with arranging for a tow of the car and contacting the local works department to shut off the water to the hydrant. She had no other dealings with Mr. Gooden as her focus was on managing the collision scene.

[4] P.C. Christopher Stevens arrived on scene a minute or so after P.C. Goudreault. He noticed obvious front end damage to the car which was on top of a fire hydrant. When Stevens arrived he saw that Mr. Gooden was sitting in the driver's seat. Mr. Gooden then opened the door and swung his feet out. The officer walked to the car and asked Mr. Gooden if he was alright, to which he replied to the effect that he had been cut off by another car. The officer then saw Mr. Gooden get out of the car and walk towards a nearby electrical box. P.C. Stevens recalled that Mr. Gooden closed the door behind him, but the officer did not recall whether or not Mr. Gooden locked the door nor did he recall whether Mr. Gooden was holding anything on exiting. P.C. Stevens saw that Mr. Gooden was clearly intoxicated by alcohol. The officer formed the opinion that the ability of Mr. Gooden to be in care or control of a motor vehicle was impaired by the consumption of alcohol and he arrested the Accused for impaired care or control. He then turned Mr. Gooden over to P.C. Brandon Boland. This happened because P.C. Stevens is also a qualified technician. By turning Mr. Gooden over to another officer P.C. Stevens was able to go to the station to prepare the approved instrument he expected to use to test samples of Mr. Gooden's breath.

[5] P.C. Boland arrived on scene around the same time as P.C. Stevens. He saw Mr. Gooden sitting in the driver's seat with the door open and his legs hanging outside. He observed that the car was heavily damaged. When custody of Mr. Gooden was transferred to him from P.C. Stevens, he noticed that Mr. Gooden had a bruise and a scratch on the left side of his forehead which he found consistent with Mr. Gooden having been in a car crash. P.C. Boland made independent observations of Mr. Gooden's sobriety and formed his own belief that the ability of Mr. Gooden to be in care or control of a motor vehicle was impaired by the consumption of alcohol. Shortly thereafter, P.C. Boland made a breath demand to Mr. Gooden, who responded "I'm already screwed."

[6] P.C. Boland drove Mr. Gooden to the station where P.C. Stevens had set up his breath testing equipment. Following the exercise of his right to counsel, Mr. Gooden was turned back over to P.C. Stevens in a breath testing room in which everything was audio and video recorded.

[7] In the breath room, Mr. Gooden made a number of relevant voluntary statements regarding driving including:

• "I'm a good man. Look what I did!"
• "If I didn't try to get out of the way, what would be better? Was I supposed to crash into the car?"
• "I made one mistake. The car is driving. I am trying to turn right by my house."
• "I was so close to home!"
• "I didn't do nothing wrong. If the car didn't act like an idiot…I tried to get out of the way."
• "I didn't hit a fire hydrant."
• "Why did the other car take off?"
• "I went home; I was chilling at Lion Heart. The car came out and I'm like, "Yo! Easy! Easy!""

[8] P.C. Stevens carefully and fully explained to Mr. Gooden what he had to do in order to provide suitable samples, but Mr. Gooden never tried. When he was given the mouthpiece to remove from its wrapping, he said, "I'll take the next one" meaning the charge for failing to provide a sample. P.C. Stevens provided a clear and thorough outline of the consequences of failing to provide suitable samples to which Mr. Gooden replied, "I'm not blowing. Just charge me." Following this statement, P.C. Stevens repeated what the consequences were of not blowing and offered Mr. Gooden another opportunity to blow. Mr. Gooden responded by stating, "Let it ride. I won't provide a sample." Shortly after, Mr. Gooden asked P.C. Stevens what it meant if he didn't provide a sample. P.C. Stevens explained once more about the charge of failing to provide samples as well as the potential consequences. Mr. Gooden then said, "Then it's the same thing. Just give me the other charge." P.C. Stevens then charged Mr. Gooden with refusing to provide breath samples.

3.0: ISSUES

3.1: General

[9] With respect to the impaired charge, there is no doubt that Mr. Gooden was impaired by the consumption of alcohol. The sole issue is whether the Crown has proven that Mr. Gooden was in care or control of his motor vehicle. With respect to the refuse charge, the only issue is whether the prosecution has proven that the breath demand of the Officer in Charge, P.C. Boland, was valid. If it was not, then there was no demand to refuse.

3.2: Was the Accused in care or control?

3.2.1: Positions of the parties

[10] The defence submits that there is a reasonable doubt that the statutory presumption set out in section 258(1)(a) of the Criminal Code applies. If it does not apply, the defence submits that the Crown has failed to prove actual care or control.

[11] The Crown, on the other hand, submits that the statutory presumption applies in this case and that it has not been rebutted. In the alternative, the prosecution submits that assuming that the statutory presumption does not apply it has nevertheless proven that Mr. Gooden was in actual care or control.

3.2.2: Applicable legal principles

[12] The case of R. v. Boudreault, 2012 SCC 56 has authoritatively established that "care or control" within the meaning of section 253(1) of the Criminal Code signifies (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. With respect to the third element, the risk of danger must be realistic and not just theoretically possible. Parliament's objective in enacting s. 253 of the Criminal Code was to prevent the risk of danger to public safety that normally arises from the mere combination of alcohol and automobile. Conduct that presents no such risk falls outside the intended reach of the offence. To require that the risk be "realistic" is to establish a low threshold consistent with Parliament's intention.

[13] The existence of a realistic risk of danger is a matter of fact. The risk, however, need not be probable, serious, or substantial. An intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control. On the other hand, an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion -- without intending at that moment to do so -- may nevertheless present a realistic risk of danger.

[14] In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, 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; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

[15] In the absence of evidence to the contrary, a realistic risk of danger will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face a tactical necessity of adducing evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. The trial judge must examine all of the relevant evidence and may consider a number of factors, including whether the accused took care to arrange an alternate plan to ensure his safe transportation home.

3.2.3: Analysis

[16] It was argued by the defence that there is a material contradiction between the evidence of P.C. Goudreault who said Mr. Gooden was kneeling on his car seat and P.C.s Stevens and Boland who both said he was sitting in the driver's seat.

[17] It is clear from all of the evidence that matters progressed quickly at the scene. P.C. Goudreault's job was to deal with the scene itself including towing and hydrant repair. P.C. Stevens and P.C. Boland were both concentrating on investigating the driver, not the collision scene. Consequently the focus of the two sets of police officers was different from the other. I do not find that there is a material contradiction insofar as I find that Mr. Gooden was first sitting in his car then kneeled on the seat to find his property before returning to a seated position before exiting. Even if there is a contradiction, I prefer the evidence of P.C.s Stevens and Boland both of whom were engaged in a criminal investigation whereas P.C. Goudreault was involved in a collision investigation. Furthermore, both P.C. Stevens and P.C. Boland acted independently of one another, yet both saw the same thing. I find that Mr. Gooden was occupying the driver's seat of the motor vehicle when the police arrived, thereby engaging the presumption set out in section 258(1)(a) of the Criminal Code.

[18] It is also obvious from the totality of the evidence that a spectacular car crash had just occurred. Given that (a) the police were dispatched around 2:15 a.m. and arrived only a short number of minutes later, (b) common sense and experience dictates that people will report such matters almost immediately, and (c) Mr. Gooden's admissions to the police he was driving at the time of the collision I find that the collision happened within a very short time prior the police being alerted.

[19] If I were to accept P.C. Goudreault's evidence over that of the other officers, by taking her evidence that Mr. Gooden was kneeling on the car seat in isolation this probably rebuts the statutory presumption. However, when considering at her evidence as a whole, it is clear that Mr. Gooden was care or control of his car. This is because (a) he drove it onto the lawn, (b) he was still inside it looking for property, (c) he exercised care of it by locking the door and (d) he maintained control by keeping the keys on his person after exiting. Although he walked a short distance from the car, he did not leave the scene. Nothing in his conduct indicates to me that he took any steps or even intended to divest himself of care or control of his automobile.

[20] Even if the statutory presumption did not apply, there was a realistic risk that Mr. Gooden might re-enter his car and drive. Although the car had obvious front end damage and was atop a fire hydrant, there was no evidence, nor was any reasonable doubt raised, that the car was not driveable. Mr. Gooden told the qualified technician that he was so close to being home. I find that but for the intercession of the police there was realistic risk Mr. Gooden would try to drive away.

[21] On the totality of all the evidence I find that the prosecution has proven beyond a reasonable doubt that Raymond Gooden was in care or control of a motor vehicle while his ability to do so was impaired by the consumption of alcohol.

3.3: Was the demand which the Accused refused a valid demand?

3.3.1: Positions of the parties

[22] The defence submits that the demand made by P.C. Boland was not valid for two reasons. The first reason is that P.C. Boland failed to tell Mr. Gooden that the samples would be taken by a qualified technician, a requirement said to have been established in the case of R. v. Kagayalingam, 2006 ONCJ 196. The second reason argued by the defence is that Boland's demand was based on what the defence submitted was a false belief that Mr. Gooden was sitting in his car seat and was in care or control whereas the defence submits that the Accused was not in care or control.

[23] The Crown submits that the case of Kagayalingam is distinguishable on its facts and in any event is neither binding nor persuasive. They further submit that belief of P.C. Boland that the Accused was in care or control was reasonable in all the circumstances.

3.3.2: Analysis

[24] I find that P.C. Boland's demand was valid. I agree with the Crown that Kagayalingam is distinguishable. In that case, the demanding officer made the wrong demand: he made a screening demand when he should of made a breath demand. In the case before me, P.C. Boland made the correct demand.

[25] The defence relied on paragraph 8 of Kagayalingam wherein the learned trial judge held, in part, "that the person subject to the approved instrument demand should be advised that samples of his or her breath are required to be given to a qualified person who can determine the concentration of alcohol in his or her blood." With respect this is not a legal requirement. What matters is that the subject understood he had to provide breath samples for testing: R. v. Ghebretatiyos, [2000] O.J. No. 4982. In that summary conviction appeal case which is binding upon me, Hill, J stated at paragraphs 19 and 20 that "No particular words are necessary to make a breath sample demand… [the focus is] on whether the vehicle driver understood he or she was required to give a sample of breath."

[26] There is no doubt on the evidence before me that Mr. Gooden understood that he was required to give breath samples to test his blood alcohol concentration. Not only was the demand made by Boland clear in this regard, but the numerous times that P.C. Stevens clearly explained the breath demand and the consequences for non-compliance fully impressed upon Mr. Gooden the requirement to provide suitable samples. Mr. Gooden simply chose not to comply even though he knew he was required to do so.

[27] I have already found that Mr. Gooden was occupying the driver's seat as believed by P.C. Boland. Even if Mr. Gooden was kneeling on the car seat, the totality of the circumstances provided P.C. Boland with ample and reasonable grounds to make the breath demand.

[28] For these reasons, I find the breath demand made by P.C. Boland was valid. Mr. Gooden's outright refusal of a valid breath demand was not ameliorated by any reasonable excuse.

4.0: CONCLUSIONS

[29] Raymond Gooden was impaired by alcohol while he was in care or control of a motor vehicle and I therefore find him guilty of Count #1. Mr. Gooden refused, without reasonable excuse, to comply with a valid breath demand made by P.C. Boland. I also find him guilty of Count #2.

ORIGINAL SIGNED BY JUSTICE R.H.K. SCHWARZL

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice