Court File and Parties

Court File No.: Newmarket 12-7637 Date: 2013-04-15 Ontario Court of Justice

Between: Her Majesty the Queen — and — Boyd Hearn

Before: Justice Joseph F. Kenkel

Heard on: April 15, 2013 Judgment: April 15, 2013

Counsel:

• Mr. Brad Juriansz for the Crown
• Mr. Terry Hawtin for the accused

KENKEL J.:

Charges and Admissions

[1] Mr. Hearn is charged with having care or control of a motor vehicle while his ability to operate the vehicle was impaired by alcohol and with a blood alcohol concentration (BAC) in excess of the legal limit.

[2] The accused admitted in his testimony that he was not fit to drive after consuming seven beers. The Crown has proved that his projected blood alcohol concentration at the time of alleged care or control would have been 160 mgs/100ml of blood or higher.

[3] The sole remaining issue is whether Mr. Hearn was in care or control at the time police found him parked in a lot by a baseball field listening to music.

Care or Control – The Evidence

[4] Constable Gerulath testified that at the time he approached Mr. Hearn's truck he found Mr. Hearn seated in the driver's seat. The engine was running and the keys were in the ignition. There was loud music coming from the truck stereo. The officer didn't recall whether the headlights were on and made no note in that regard.

[5] After the arrest Constable Gerulath searched the truck and found no alcohol in the vehicle.

[6] Constable McLellan approached Mr. Hearn's vehicle from the driver's side. She observed Mr. Hearn in the driver's seat and testified that she could hear the truck's engine running as well as the music that was playing from the stereo. The keys were in the ignition.

[7] Mr. Hearn testified that he drove to that park lot nearby his house to listen to music and be alone while he thought about his breakup with his girlfriend. Once there he decided to drink 7 beers that he had inside the truck. He agreed that he was unfit to drive thereafter and testified that he planned to leave his truck and walk home.

[8] Mr. Hearn testified that his truck engine was not running. He had no need to leave the engine running in order to listen to his music and he did not intend to drive so he turned the engine off.

Care or Control – Analysis

[9] Mr. Hearn chose to occupy the driver's seat so the statutory presumption of care or control applies unless the accused satisfies the court he had no intention to drive or otherwise create a risk of danger. R. v. Boudreault 2013 SCC 56 at para. 37.

[10] Considering the evidence of all three witnesses I find I cannot accept Mr. Hearn's testimony that after he drove to that parking lot he did not intend to drive further.

[11] If Mr. Hearn wished to abandon care or control after driving to that location he had no reason to occupy the driver's seat. There's evidence that his pickup had a passenger seat and an extended cab with seats in the rear. Continued occupation of the driver's seat after the consumption of a large amount of alcohol is inconsistent with Mr. Hearn's stated intention to leave his truck and walk home.

[12] Considering all of the evidence, I accept the testimony of both officers that the engine was running at the time they found Mr. Hearn in his truck. Both officers were acting in a professional capacity at the time. They recorded the details of their observations that night in their memo books. When challenged on this point Constable Gerulath testified that he specifically recorded that detail in his notes. Mr. Hearn was not acting in a professional capacity at the time so it's understandable that he had no reason to note particular details or create a record of those details to assist his recollection later.

[13] Mr. Hearn was a forthright witness, however I find his high level of alcohol consumption that evening detracts significantly from the reliability of his recollection. Both officers were sober that evening and in proper condition to observe and record the events they described.

[14] Neither officer was certain whether the accused's vehicle lights were on, however Constable Gerulath testified that when they approached Mr. Hearn's truck they activated the police emergency lights including "take down" flood lights directed at Mr. Hearn's truck. In that context I don't find that their failure to note whether the truck's running lights were on detracts from the reliability of their specific recollection that the engine was running.

[15] As Mr. Hearn conceded it was not necessary to engage the engine to listen to music. While I accept that Mr. Hearn's testimony today was sincere in that his sober judgment now is that he would never have driven home in that condition, the circumstances of that evening are inconsistent with his present testimony. He drove to the parking lot and did not relinquish care or control of his vehicle. He kept himself in a position to drive with the engine running in circumstances that indicate he intended to drive home or at the very least that there was a realistic risk of danger he would do so. I cannot find any credible evidence that rebuts the presumption.

Conclusion

[16] I find that the Crown has proved both counts beyond a reasonable doubt.

Delivered: April 15, 2013

Justice Joseph F. Kenkel