Court File and Parties

Court File No.: 12-0984 County: Renfrew Date: 2013-01-07 Ontario Court of Justice

Between: Her Majesty the Queen — and — Kyle Desgroseilliers

Before: Justice R.G. Selkirk

Heard: December 17, 2012

Reasons for Judgment Released: January 7, 2013

Counsel:

• Peter Hageraats, for the Crown
• Michael G. March, for the accused Kyle Desgroseilliers

Reasons for Judgment

SELKIRK, J.:

The Charge

[1] The defendant is charged with one count of Impaired and one count of Over 80 arising out of an incident on August 9, 2012 at Canadian Force Base Petawawa.

[2] It was admitted that the accused was both Impaired and Over 80. He was found in the driver's seat of his car. The issue is whether he was in care and control of his car at the time.

The Crown's Evidence

[3] Cpl. Walsh of the Military police was on patrol. It was raining. At 22:06 she noticed a group of people in a small parking lot. She saw two people in a blue Honda and at least two people in a black pick-up truck. The vehicles were side by side. She said the windows were down and the people in the Honda were speaking to the people in the truck. She saw a young woman, later identified as Ms. Gleeson, get out on the passenger side of the Honda. Ms. Gleeson was partially undressed and was pulling her pants up. While doing so, Ms. Gleeson was overheard to say, "Let's go to the Junior Ranks Mess".

[4] She said she then saw the accused get out of the driver's side and he and Ms. Gleeson walked towards the nearby apartment building.

[5] Her attention is drawn to the people in the truck as it was driving away. She followed it. The driving was appropriate. It went to the Mess.

[6] She returned to the area where the Honda was parked. It was 22:12. The windows were fogged up. She approached the vehicle and knocked on the window. The accused was in the driver's seat. Ms. Gleeson was in the passenger seat. She noted a strong odour of alcohol in the vehicle. She ordered the accused to get out.

[7] She then conducted an impaired driving investigation. As indicated no issue was raised about the accused's ability to drive being impaired or that subsequently his blood alcohol concentration was found to be 170 mgs. of alcohol in 100 ml of blood.

[8] Cpl. Walsh left the area of the parking lot for the detachment at 22:32.

[9] In cross-examination she agreed the car was safely parked. The car was not observed to be running; there were no lights on; nor was music playing. She did not note a key in the ignition.

The Defence Evidence

[10] The accused testified. He said that after supper that the plan was to go to his sister's boyfriend's apartment for drinks and then to the Mess later on. He drove there with his sister and her friend, Alasta Gleeson, in his car. While at the apartment he drank two beers and approximately one half of a bottle of vodka.

[11] He gave his car keys to his sister who later gave them to Ms. Gleeson. The plan was to take a cab to the Mess and then a cab, which is provided free by the military, from the Mess back home. He intended to pick up his car the following day.

[12] However, while at the apartment, another individual, Jesse Trafford, offered to be the designated driver and drive them to the mess.

[13] It was still the accused's expectations to take a cab home. The group of seven persons left the apartment around 10:00 p.m. They went out to the parking lot where both the accused and Jesse Trafford had parked their vehicle. The truck could only take five people in total so after some discussion it was decided that the accused and Ms. Gleeson would wait and Jesse Trafford would make a second trip and come back for them. The truck left. As it was raining, the accused and Ms. Gleeson sat in his car to wait.

[14] Ms. Gleeson couldn't find her cell phone and thinking it may have fallen out on the walk from the apartment to the parking lot, she and the accused got out of the car and re-traced their steps. She then realized she had left it in the apartment which was now locked up. They returned to the vehicle to wait for Jesse Trafford's return.

[15] He said that the keys remained with Ms. Gleeson. At no point were they in the ignition. The vehicle was never turned on, nor were any accessories such as lights, radio or power windows used.

[16] He denied that Ms. Gleeson's pants were half down. He said she was wearing a skirt. He denied that the windows were down or that they spoke to the people in the truck through open windows.

[17] He said the vehicle was a standard. He left it in gear with the emergency brake on. The vehicle will not start without the key or without fully depressing the clutch.

[18] At the time he did not know why Jesse Trafford had not returned by 22:32 when they left for the detachment.

[19] Alasta Gleeson testified that the accused is her best friend's older brother and confirmed the night's activities. She had had four or five drinks but was not intoxicated. She said she and the accused waited in his car for Jesse Trafford to return. She had his keys in her purse.

[20] She testified that the plan, after leaving the apartment was to go to the Mess with Jesse Trafford and then take a cab back home.

[21] She said she was wearing a skirt that night and that at no time was she partially undressed.

[22] She denied talking to the other people in the truck through an open window. She did not recall saying, "Let's go to the Junior Mess", while outside because it had been decided to go there earlier in the evening.

[23] She said that she and the accused did get out to look for her cell phone and then returned to the vehicle to wait as it was raining out.

[24] She said that at no time did the accused ask for his keys and indicated that even if he had that she would not have given them to him.

[25] Jesse Trafford testified that the accused is an acquaintance and that he met him for the first time that night.

[26] He said he offered to drive the group to the mess as he did not drink. When they left the apartment he said there was some discussion as to who would go in the first trip and who would wait. It was decided that the accused and Ms. Gleeson would wait.

[27] He said he delivered the first group to the mess and while there he saw a number of inebriated friends who he offered to drive home. This was why he did not return directly to pick up the accused and Ms. Gleeson. He said it was approximately one half hour before he returned.

[28] He said he did not talk to the accused and Ms. Gleeson while sitting in the truck at the parking lot. He saw the military police there however and was aware that they followed him to the Mess. He saw them again upon his return but did not see the accused or Ms. Gleeson at that time.

Credibility Assessment

[29] I found the accused, Ms. Gleeson and Jess Trafford to be credible. I find that there was a plan to be driven to the mess and to take a cab home. I find the accused did not intend to drive his vehicle once he had consumed alcohol.

[30] I find he has met his onus in s. 258 of proof on a balance of probabilities that when he entered his vehicle and sat in the driver's seat that it was not for the purpose of setting the vehicle in motion. It was to simply wait, out of the rain, for Jesse Trafford to return.

[31] I did not accept Cpl. Walsh's evidence that the accused and Ms. Gleeson talked to the people in the truck through open windows which would then require the key to be turned on in order to put the power windows up and therefore not in Ms. Gleeson's purse but rather in the accused's hand. I find I do not have much confidence in her observations at that point. Her evidence is contradicted by not only the accused but also by Ms. Gleeson and Mr. Trafford whose evidence, I do accept. I do not believe it is likely that Ms. Gleeson would be sitting and talking to the others with her pants half off. I accept her evidence that nothing like that occurred.

Application of the Boudreault Test

[32] The Crown argues that even if the above was true that there is still a realistic risk that the accused, in his impaired condition, could change his mind about driving and take the keys back from Ms. Gleeson and drive to the mess because Jesse Trafford did not appear to be returning for them.

[33] This argument requires the application of the Supreme Court of Canada's decision in R. v. Boudreault, 2012 SCC 56.

[34] At paragraph 9, the Court writes:

[9] I have concluded that "care or control", within the meaning of s. 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, as opposed to a remote possibility, of danger to persons or property.

[35] Realistic risk is further discussed at paragraphs 13, 34 and 35 which are set out below:

[13] Impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol or drugs. Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger. In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case.

[34] The risk of danger must be realistic and not just theoretically possible: Smits, at para. 60. But nor need the risk be probable, or even serious or substantial.

[35] To require that the risk be "realistic" is to establish a low threshold consistent with Parliament's intention to prevent a danger to public safety. To require only that the risk be "theoretically possible" is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct.

[36] In paragraph 36 the Court makes it clear that an intention to drive is not an essential element.

[36] It is settled law that an intention to set the vehicle in motion is not an essential element of the offence: Ford v. The Queen, [1982] 1 S.C.R. 231. This may appear anomalous in view of the presumption set out at s. 258(1)(a) of the Criminal Code, which provides that an accused who was found in the driver's seat of a motor vehicle

shall be deemed to have had the care or control of the vehicle . . . unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle . . . in motion . . .;

[37] At paragraph 42 the court discusses risks that could lead to conviction even though there is no intention to drive.

[42] 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.

[38] At paragraphs 48 and 49 the Court discusses what would likely be necessary to avoid conviction.

[48] I need hardly reiterate that "realistic risk" is a low threshold and, in the absence of evidence to the contrary, 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 credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case.

[49] The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger. Likewise, use of the vehicle for a manifestly innocent purpose should not attract the stigma of a criminal conviction. As Lamer C.J. observed in Penno, "The law . . . is not deprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to drive is impaired in a motor vehicle" (p. 877).

[39] Of particular importance to this case are paragraphs 51 and 52 which read:

[51] One of the factors of particular relevance in this case is that the accused took care to arrange what some courts have called an "alternate plan" to ensure his safe transportation home.

[52] The impact of an "alternate plan" of this sort on the court's assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused. A plan may seem watertight, but the accused's level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward.

Application to the Facts

[40] In this case, I find there was an alternative plan that was appropriate in all of the circumstances. The accused occupied the driver's seat only for the purpose of waiting out of the rain for Jesse Trafford to return. He had divested himself of the keys. The car was safely parked. It could not accidentally be put in motion.

[41] I find that the risk of the accused changing his mind in these circumstances to be speculative in nature, no more than a theoretical possibility of the kind that will not support a conviction.

Application of the Smits Factors

[42] I say that with the Ontario Court of Appeal's decision in R. v. Smits, 2012 ONCA 524, in mind, and in particular paragraphs 60 to 65, which read as follows:

[60] Although the courts below have applied different modifiers, what all the authorities, including this court, seem to be saying is that in order to establish that an accused has created a risk of danger in change of mind cases, the Crown must demonstrate a risk that an accused, while impaired, would change his or her mind and put the vehicle in motion. That risk must be based on more than speculation or conjecture. Saying that any person whose ability to operate a motor vehicle is impaired to any degree might change his or her mind is not sufficient. The trier of fact must examine the facts and determine if there is an evidentiary foundation that such risk of danger exists.

[61] I appreciate that this task is not without its challenges because a finding of whether a risk of danger arises in circumstances where an accused is not actually driving requires the trial judge to engage in an assessment of what in all the particular circumstances may occur in the not too distant future. However, that is all part of the fact-finding process for the trier of fact.

[62] Whether a risk of danger arises on the facts is determined by assessing circumstantial evidence. The following comments from Watt J.A. in his text Watt's Manual of Criminal Evidence (Toronto: Carswell, 2011), at p. 43, illustrate the approach that must be taken:

Where evidence is circumstantial, it is critical to distinguish between inference and speculation. Inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. There can be no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture.

[63] In Szymanski, at para. 93, Durno J. provides an excellent, although non-exhaustive, list of factors a court might look at when engaging in a risk of danger analysis on the basis of circumstantial evidence:

(a) The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive;

(b) Whether the keys were in the ignition or readily available to be placed in the ignition;

(c) Whether the vehicle was running;

(d) The location of the vehicle;

(e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination;

(f) The accused's disposition and attitude;

(g) Whether the accused drove the vehicle to the location where it was found;

(h) Whether the accused started driving after drinking and pulled over to "sleep it off" or started using the vehicle for purposes other than driving;

(i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit;

(j) Whether the accused had a stated intention to resume driving;

(k) Whether the accused was seated in the driver's seat regardless of the applicability of the presumption;

(l) Whether the accused was wearing his or her seatbelt;

(m) Whether the accused failed to take advantage of alternate means of leaving the scene;

(n) Whether the accused had a cell phone with which to make other arrangements and failed to do so.

[64] Adapting the language in Wren to the facts of this case, the question becomes – did the conduct of the respondent in relation to the motor vehicle create a risk that the respondent, while impaired, would put the vehicle in motion and thereby create a danger?

[65] In all the circumstances, and considering the factors set out by Durno J. in Szymanski, it was open to the trial judge in this case to conclude that the conduct of the respondent in relation to the motor vehicle created a risk that the respondent, while impaired, would put the vehicle in motion and thereby create a danger.

[43] I find there are no objective facts on the evidence that would allow for an inference to be drawn that the accused would change his mind and operate his vehicle. There is only "impermissible speculation and conjecture".

Conclusion

[44] I also find that applying the factors listed in paragraph 63 that the accused's alternative plan was in place and was intended to be followed. This plan removes any realistic risk. The accused will be found not guilty on both counts as the Crown has failed to establish that he was in care or control of the vehicle.

Released: January 7, 2013

The Honourable Mr. Justice R. G. Selkirk