Court Information

Ontario Court of Justice

Date: 2014-05-27

Court File No.: North Bay 13-679

Parties

Between:

Her Majesty the Queen

— AND —

Justin Wigelius

Judicial Officer and Counsel

Before: Justice A. Perron

Heard on: May 6, 2014

Reasons for Judgment released on: May 27, 2014

Counsel:

• P. Mazurski, counsel for the Crown
• A. Perrin, for the defendant

Reasons for Judgment

Justice A. Perron

[1] Justin Wigelius is charged with having care and control while his ability was impaired and over 80 in relation to an incident of March 31, 2013. This trial commenced on December 23, 2013 with the crown reading in some facts on consent. On May 6, 2014, the trial continued with the crown calling one civilian witness and the defendant testifying himself along with two other corroborating witnesses.

[2] Shortly after 3 AM on March 31, 2013, the police were directed to a motor vehicle parked in the civic parking lot behind Cecil's bar in the city of North Bay. The vehicle was observed to be running at that time, exhausts could be seen emitting from the pipes and the rear lights were shining red. Upon arrival to the motor vehicle, Constable Elia found the accused sitting in the driver seat and a male passenger. Police knocked on the window and eventually the accused opened the same. Upon questioning the accused, he immediately admitted that he had too much to drink and that was why he was not driving. Under these circumstances, the Constable arrested Mr. Wigelius for having care and control of the motor vehicle and he was brought to the North Bay Police Service headquarters. He later provided two suitable samples of his breath which resulted in results of 108 and 104 mg of alcohol per hundred milliliters of blood. Even though not specifically noted on the record, it is clear that there is no issue concerning the taking of the sample and the analysis of same.

[3] Both counsel agreed that the presumption as outlined in section 258(1)(a) of the Criminal Code of Canada applies. Where a person occupies the driver's seat, section 258 of the Criminal Code of Canada presumes that he or she is in care control of a motor vehicle. The accused may rebut the presumption in section 258 by calling evidence that shows on balance of probabilities that he or she did not occupy the driver's seat for the purpose of putting the vehicle in motion.

[4] The accused testified that he was in fact impaired on the night in question. He had made some plans with his friend Alicia Lazarou to have her mother drive him home after a night of drinking at the bar. After last call he was unable to find her or unable to call or text her as his iPhone battery was dead. He therefore went to his car in order to charge his phone. He unlocked the motor vehicle; he placed the keys under his seat and proceeded to plugging his phone in his radio. He testified that he is able to charge his cell phone without starting the motor vehicle due to a special USB connection on his aftermarket stereo. Within two minutes of him entering the car the police arrived.

[5] He clearly stated that the only reason he attended his car was to charge his telephone. He was then going to try to contact Alicia Lazarou or her mother in order to secure his ride home. He then testified that if he would be unable to secure this ride, he would walk home as he has done in the past. He had no intention to drive the motor vehicle.

[6] Alicia Lazarou also testified on behalf of the accused. She mentioned that on the night in question she had gone out with some of her girlfriends and ended up at the Zoo nightclub. That is when she ran into the accused Justin Wigelius. Shortly after greeting each other, Justin immediately requested a ride home which she describes was a typical move for him as he is always asking for a favor. She mentioned that she advised him that she would drive him home after the bar closed and then they both went on to continue socializing with their own respective friends. Shortly after 2 AM she went to get something to eat then called her mom for a ride. She testified that she tried to text the accused on four occasions and never received a reply. She testified that she waited with her mom for about 10 minutes and, in fact drove around the block looking for the accused. As he could not be found and he was not responding to his text they returned home without him.

[7] The defense also called Rhonda Lazarou the mother of Alicia Lazarou. She testified that at approximately 2:15 AM her daughter called for a ride from the Zoo nightclub. She testified that she was advised at that time that "wiggy" would also need a ride. She clarified that "wiggy" is her pet name for the accused Justin Wigelius. She mentioned that it took approximately 15 minutes from her house to the nightclub where she immediately located her daughter. She drove to the museum located on Oak Street turned around and continued looking for the accused while her daughter was texting him. Having no response and being unable to find Justin Wigelius, they returned home.

[8] She clearly testified that she has an open agreement with her daughter that she will provide rides at any time that she requests same. She has no issues in also driving other people home at her daughter's request. When she drove to the bar in the morning in question she fully expected to give a ride to the accused. Her daughter had advised her of same during their short telephone conversation. She would've also gladly given a ride to any friends with the accused as she has done this in the past.

Legal Analysis

[9] As I already mentioned, the presumption created by section 258(1)(a) of the Criminal Code of Canada can be rebutted by the accused on a balance of probabilities.

[10] The accused personally testified in what first appeared to be in a very nervous fashion. He quickly settled in and presented a very candid recollection of the events of that evening. His demeanor and presentation did not change even through cross examination. His explanation about having a ride was also corroborated by the two other civilian witnesses.

[11] I am therefore convinced on the balance of probabilities that the accused has rebutted the presumption as set out in section 258 of the criminal code of Canada.

[12] When the accused has rebutted the 258 presumption, the court must next assess whether the crown has otherwise proven that the accused was in fact in care and control. Evidence showing a risk of danger arising from the impaired accused's interaction with the motor vehicle will establish care and control. In order to establish care and control the act or conduct of the accused in relation to the motor vehicle must be such that there is a risk of danger of putting the car in motion or in some other way.

[13] Both counsel referred me to the Supreme Court Canada decision of R. v. Boudreault 2012 SCC 56. The court confirms that the existence of a realistic risk of danger is a matter of fact. A 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.

[14] Courts have found three categories of risk posed by an impaired driver's interaction with a vehicle:

1. inebriated person who initially does not intend to drive may later while still impaired change his or her mind and proceed to do so.

2. an inebriated person behind the wheel may unintentionally set the vehicle in motion.

3. through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

[15] In our particular case there appears to be some contradictory evidence as to whether the car was in fact running. The facts as read in by the crown on December 23 clearly allege that the vehicle was observed to be running and exhaust could be seen emitting from the pipes and the rear lights were shining red. On the other hand, Mr. Wigelius' testimony was that the car was never started and that the keys were under the front seat.

[16] In doing a WD analysis and in reviewing the totality of the evidence presented in this case I accept the versions of events as presented by the accused. The crown's versions of events was simply read in and was not subject to cross-examination and the only witness called by the crown, Mr. Michael Hinsman, did not mention anything about the car running or the lights being on. I see no reason to disbelieve the accused's version of events concerning this point. Accordingly I do make a finding of fact that the motor vehicle was never running during the evening in question.

[17] It is clear however that having the keys readily available while sitting in a motor vehicle can in certain circumstances pose a risk. Mr. Wigelius' own testimony establishes that the motor vehicle keys were placed under the driver's seat which would therefore make same readily available.

[18] Mr. Perrin in his submissions made references to many leading authorities on the issue of care and control. One of these decisions is R v. Pilon, 1998 O.J. No. 4755 of the Ontario Court of Appeal.

[19] In that particular decision Mr. Pilon was convicted of having care and control of a motor vehicle while his ability was impaired and this conviction was upheld on appeal. The keys to the motor vehicle in that matter were on the floor directly below the driver's seat between the appellant's feet. The court mentions at paragraph 9 that "it is a simple matter to pick up the keys off the floor and put the key in the ignition and do something which could set the vehicle in motion".

[20] The Court of Appeal also makes reference to the Supreme Court of Canada decision of R vs Ford (1982) 65 CCC 2(d) 392 where Justice McIntyre is quoted as saying that "each case will depend on its own facts and the circumstances in which acts of care control may be found will vary widely."

[21] In the Pilon appeal decision, the appellant was unconscious or sleeping when he was located by the police. In our particular case, the accused testified that he was in the car for about two minutes when the police arrived. This difference in the facts, is in my view, crucial in distinguishing the appeal decision in Pilon from our particular matter.

[22] I earlier listed three categories of risk posed by an impaired driver's interaction with a vehicle. In this particular case I did accept that Mr. Wigelius did not have intention to drive. However, since he was only in the motor vehicle for approximately 2 minutes he clearly did not have enough time to change his mind and proceed to do so. As the keys were under the seat it is in my view improbable that the motor vehicle be unintentionally set in motion. And as for the third category the stationary vehicle was not endangering any persons or property.

[23] Therefore in reviewing the totality of the evidence and having done a risk of danger analysis I am not satisfied beyond a reasonable doubt that there exist a risk of danger from the accused, who admittedly was impaired, and his interaction with the motor vehicle did not establish care and control. Accordingly there will be a finding of not guilty on the two charges.

Released: May 27, 2014

Signed: "Justice A. Perron"