Court File and Parties

Ontario Court of Justice

Date: 2014-07-09

Court File No.: Regional Municipality of Durham 998 13 15228

Between:

Her Majesty the Queen

— and —

Michael Iacovetta

Before: Justice J. De Filippis

Heard on: 3 April & 26 May, 2014

Reasons for Judgment released on: 9 July 2014

Counsel:

• Ms. Thompson, counsel for the Crown
• Mr. Dotsikas, counsel for the Defendant

Judgment

De Filippis J.:

[1] The Charge and Core Issue

The defendant was tried on an Information alleging he was in care and control of a motor vehicle while impaired and at a time that his blood alcohol level was over 80mgs of alcohol per 100 millilitres of blood. There is no doubt that the defendant was both impaired and had a blood alcohol level over the legal limit on the date and place in question. The sole issue is whether he was in care or control of a vehicle at the time. As may be apparent from the foregoing, much of the prosecution evidence is not in dispute.

[2] Legal Framework

The governing legal principles are set out in the decision of the Supreme Court of Canada in R v Boudreault 2012 SCC 56, [2012] 3 S.C.R. 157:

33 …I think it helpful to set out once again the essential elements of "care or control" under s. 253(1) of the Criminal Code in this way:

(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.

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 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 Accordingly, an accused found in the driver's seat will be presumed, as a matter of law, to have care or control of the vehicle, unless the accused satisfies the court that he or she had no intention to drive - an intention that, pursuant to Ford, is not an essential element of the offence!

38 At a minimum, the wording of the presumption signifies that a person who was found drunk and behind the wheel cannot, for that reason alone, be convicted of care or control if that person satisfies the court that he or she had no intention to set the vehicle in motion. Dickson C.J. made this plain in R. v. Whyte, [1988] 2 S.C.R. 3, at p. 19: "It cannot be said that proof of occupancy of the driver's seat leads inexorably to the conclusion that the essential element of care or control exists ... ."

39 Put differently, s. 258(1)(a) indicates that proof of voluntary inebriation and voluntary occupancy of the driver's seat do not by their coexistence alone conclusively establish "care or control" under s. 253(1) of the Criminal Code. Something more is required and, in my view, the "something more" is a realistic risk of danger to persons or property.

40 I agree with Justice Cromwell that Parliament's purpose in enacting the care or control provision was preventive, and directed at the inherent danger that normally arises from the mere "combination of alcohol and automobile": Saunders, at p. 290. With respect, however, I believe this supports my view that Parliament's intention in enacting s. 253(1) of the Criminal Code was to criminalize only conduct that creates a realistic risk of danger.

41 A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, 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.

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.

[3] Facts: The Evening of December 12, 2013

On 12 December 2013, the defendant attended a work related Christmas event at a restaurant in Toronto. He boarded an eastbound GO train at Union station and arrived at the Oshawa GO station shortly after 1 AM. While en route he vomited in the train. This was reported to GO Transit Special Constable Arbuckle, who was at the Oshawa station. When the train arrived, the officer saw the defendant stumble as he walked from the station, through the lot and into a parked car. S/Cst. Arbuckle drove his vehicle to that car. He saw a wet spot in front of the parked car. The officer saw the defendant seated in the driver's seat. On speaking with him, he detected a strong odour of alcohol on his breath, glassy and bloodshot eyes, and slurred speech. The defendant immediately said he was "getting a ride" and that his "girlfriend [was] coming". The police, who had been alerted to a possible impaired driver, arrived within minutes. S/Cst. Arbuckle left the scene about 20 to 30 minutes later. He testified that as of the time of his departure, nobody had come to pick up the defendant.

[4] Police Arrival and Observations

Cst. Liaird is an officer with the Durham Regional Police Service. She responded to S/Cst. Arbuckle's report. Upon arrival, she saw the defendant seated in the driver's seat of a car with his pants undone. The engine was running and the heater was on. She detected a "very strong" odour of alcohol. The defendant told her he "would not be driving". The officer told the defendant to exit the vehicle. He did so with difficulty; he was unsteady on his feet and had to hold the door to get out and maintain his balance. As it was obvious the defendant was intoxicated, the officer arrested him for the impaired charge. This happened at 1:25 AM and was followed by the right to counsel, caution, and breath demand. Cst. Liaird testified the defendant appeared to understand and that he was polite. She did not see a cell phone in the possession of the defendant or in plain view in the vehicle. However, the officer could not say if such a phone was elsewhere in the car as she did not conduct a search.

[5] Breath Analysis

Cst. Bastien is the qualified intoxilyzer technician who obtained two samples of the defendant's breath, at 2:15 AM and 2:38 AM, with (truncated) readings of 150 and 160. This is well over the legal limit. The officer recorded these observations with respect to the defendant; strong odour of alcohol combined with that of vomit, slurred speech, slow movements, watery eyes, confused about what time it was, compliant, and responsive to questions. During the breath test process, the defendant told Cst. Bastien he "was texting [his] girlfriend when the police arrived" at the GO station.

[6] Defendant's Personal Circumstances and Testimony

The defendant is 31 years old and lives with his common-law partner and their four year old child. He is employed at a financial institution. He admits that on the night in question, his ability to operate a motor vehicle was impaired by alcohol and added that, for this reason, he had no intention to drive. He testified that before attending the party in Toronto he and his partner had agreed that he would drive to the Oshawa GO station, take the train to Toronto, and, "if need be", she would pick him up at the Oshawa station on his return later in the evening.

[7] Text Message Evidence

The defendant caught the last eastbound GO train from Toronto, around midnight. Before doing so, he had exchanged text messages with his partner. He also tried, unsuccessfully, to contact her once he had boarded the train. These messages are preserved in his smart phone and were produced at trial. They reveal the following:

Time	Sender	Message
11:25 PM	Partner to defendant	Are you planning on coming home?
11:26 PM	Defendant to partner	Yes, next train.
11:27 PM	Partner to defendant	So, you finally get back to me.
12:02 AM	Defendant to partner	On my way.

[8] Defendant's Actions at the Station

The defendant did not receive a response to the last text message. He testified that, at 12:07 AM, he telephoned his partner but that the call was not answered. After this, he fell asleep on the train and vomited. The defendant arrived at the Oshawa GO station shortly after 1 AM. He needed to urinate, was cold, and wanted to contact his partner. He walked out of the station, across the parking lot to the last row. He urinated in front of his car and entered it. He started the engine and activated the heater. The defendant testified he did all this because he believed the station was closed and "didn't think it would be an issue to wait in the car" for his partner. He added that "almost immediately, GO security arrived".

[9] Partner's Alleged Abandonment

The defendant denied that his partner's text at 11:26 PM ("Are you planning on coming home") was "sarcastic" and that she left him "high and dry", notwithstanding the earlier agreement to pick him up. The defendant testified that when, hours later, he finally arrived home, he found his partner asleep, with the television on.

[10] Partner's Testimony

Sarah Hawkins is the defendant's partner. She confirmed their agreement that she would pick up the defendant if he had consumed too much alcohol. She testified that she would have awakened her then three year old son for this purpose because the defendant "does not get out much". She agreed that her 11:27 PM text ("So, you finally get back to me") implies prior unsuccessful attempts to contact the defendant but denied she was angry with him. Ms Hawkins testified that given how late the defendant had stayed at the party, she knew she would have to pick up. This, she explained, is why she did not respond to the 12:02 AM text ("On my way") and stated, "there was no need, but I fell asleep waiting for him to call on arrival at Oshawa GO".

[11] Standard of Proof

The burden on the Crown in a criminal trial is a high one; to support of finding of guilt, each element of the offence must be proven beyond a reasonable doubt. In a case where the Defence adduces evidence, that standard is not met if the evidence (i) is believed, or (ii) is not believed, but leaves the trier of fact in reasonable doubt, or (iii) does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond a reasonable doubt, that the defendant is guilty: R v W.D. (1991), 63 C.C.C. (3d) 397 (S.C.C.). This does not mean the Defence evidence is to be viewed in isolation; on the contrary, it is to be assessed in context of the entire case: F v R.D. [2004] O.J. 2086 (O.C.A).

[12] Defence Position

The Defence position is as follows: "Drunken people do sometimes end up in motor vehicles with no intent to drive". The defendant made several contemporaneous statements that he did not intend to drive that undermine any suggestion of recent fabrication. In this regard, since he was "hammered", it cannot be seriously claimed that he was planning his defence as events unfolded. Moreover, the defendant's interaction with the officers shows he was not "so drunk he could have changed his mind" about his decision not to drive.

[13] Crown's Position

The Crown did not seriously push the theory that the defendant would accidentally put the car in motion. Rather, it is argued that: If there was a plan for Ms Hawkins to pick up the defendant, "it went away because she was mad at him and left him high and dry". Thus, the defendant decided to drive home. In the alternative, if he was still trying to contact his partner while seated in the car, there was a realistic risk that he would change his mind about driving because "drunks make bad choices".

[14] Court's Assessment of Credibility

I reject the Defence evidence. The defendant's trial testimony, and that of Ms Hawkins, is inconsistent with their conduct on the night in question. The defendant asserted he wanted his partner to pick him up, but he did nothing to facilitate this. Ms Hawkins claimed that by 12:02 AM, she knew she would have to drive the defendant home, but she took no steps to do so. Moreover, the text messages exchanged between the parties do not reflect a prior agreement that Ms Hawkins might pick up the defendant or that he now wanted her to do so. In this regard, the two unanswered communications by the defendant, sent while he was on the GO train, are equivocal. By the time the defendant's train journey had ended, Ms Hawkins may have already fallen asleep – as had, presumably, the young child.

[15] Defendant's Conduct Demonstrates Intent to Drive

Assuming the parties had previously agreed that Ms Hawkins would pick up the defendant, the defendant's actions show he intended to travel home without the assistance of his partner. The defendant did not persist in trying to contact Ms Hawkins while he was on the train. When he awoke at Oshawa, he walked directly to his parked car and started the engine. I do not accept the defendant's testimony that he did this to find a warm place from which to call his partner. That could easily have been done from the station – a place which also offered much needed washroom facilities. He had to know the station was open because he must pass through it, or around it, on leaving the train.

[16] Cell Phone Evidence and Reasonable Alternatives

I am confident the defendant possessed a cell phone while in the car because records show he had one on the GO train when he tried to contact Ms Hawkins. However, I accept Cst. Liaird's testimony that he did not have it in hand, when she arrived, and it was not in plain view; that is, the defendant was not then trying to call his partner. Moreover, on the defendant's version of events, almost two hours had passed since he last heard from Ms Hawkins. His only real option was a cab. Assuming none were waiting for customers coming from the last train out of Toronto (about which there is no evidence), the only reasonable course of action was to call one from the readily identifiable station, not a parked car at the end of the lot.

[17] Finding of Care or Control

I have no doubt the defendant occupied the driver's seat of his vehicle with a contemporaneous intention to drive. In any event, if he occupied the driver's seat of his motor vehicle for the purpose of trying to contact Ms Hawkins, it is reasonable to conclude he would not succeed. Given the time, place, and circumstances, there was a realistic risk he would change his mind and drive home.

[18] Verdict

The defendant is guilty as charged.

Released: July 9, 2014

Signed: "Justice De Filippis"