Court File and Parties

Court File No.: 13-000492

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

William Gavin

Before: Justice Robert S. Gee

Heard on: December 16, 2013

Reasons for Judgment

Counsel:

• D. Zuraw for the Crown
• M. Parrott for the Accused

Introduction

[1] March 3, 2013 was not a good night for William Gavin or his then spouse Tammy Gordon. They started their night by having a couple beers each and then around 9:00 p.m. heading out to a bar in Cambridge in a pick-up truck they borrowed from their neighbour. At the bar they both continued to consume alcohol. They left together an hour and a half later at approximately 10:30 p.m. On the 20 minute ride home, they began to argue and Mr. Gavin began calling Ms. Gordon names.

[2] Upon arriving home, Mr. Gavin parked the borrowed pick-up in the neighbour's driveway and left the keys in it. They then returned to their residence next door, where the arguing and drinking appears to have continued unabated, for several hours.

[3] Eventually, according to Ms. Gordon, Mr. Gavin became physical with her and she told him to leave. He did, taking a half a case of beer with him. When he left, Ms. Gordon called 911 to report the assault she says occurred.

[4] Mr. Gavin did not go very far. He is a truck driver by profession and his Volvo truck tractor was parked at their home at the time. He entered the truck and started it. He stated he intended to sleep in the sleeper compartment of the truck and was waiting for the truck to warm up, when the police arrived. He was found by the police in the driver's seat, head on the steering wheel, asleep, with the engine running and a partially consumed beer in hand.

[5] Given how he was found and his state of sobriety at the time, Mr. Gavin was arrested for having care or control of the truck while his ability to operate it was impaired by alcohol. A demand was made for samples of his breath to determine the concentration of alcohol in his blood. After receiving those samples he was also charged with having care or control of the truck while having more than 80 milligrams of alcohol in 100 millilitres of his blood.

The Law

[6] Mr. Parrott on Mr. Gavin's behalf has made some very helpful admissions. It is conceded that at the relevant time, Mr. Gavin was impaired by alcohol and he had an excessive concentration of alcohol in his blood. The sole issue for the Court to decide is whether Mr. Gavin was in care or control of the truck at the time. The focussing of the trial, by the making concessions such as this, is greatly appreciated.

[7] Whenever a person, like Mr. Gavin in this case, is proven to have occupied the driver's seat of a motor vehicle, section 258(1)(a) of the Criminal Code deems or presumes them to be in care or control of the motor vehicle. An accused, however, can rebut this presumption by calling evidence that shows on a balance of probabilities that he did not occupy the driver's seat for the purpose of putting the vehicle in motion.

[8] However, an accused who rebuts the presumption is not necessarily entitled to an acquittal. Simply put, all rebutting the presumption means is that the Crown is not permitted to rely on it, and in order for the accused to then be convicted, the Crown will have to call evidence capable of proving beyond a reasonable doubt that the accused was, in fact, in care or control of the vehicle. In order to establish this, the evidence must show, in his impaired state, the accused created a risk of danger to persons or property. This risk must be realistic and not merely theoretical. However saying this, the threshold for establishing a realistic risk is low.

[9] The Supreme Court recently reviewed this area of law confirming these principles in the case of R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157. At paragraph 42 of the case, the Supreme Court listed at least three ways in which an accused who occupied the driver's seat of a vehicle without an intention to drive can still pose a realistic risk of danger. First, given their intoxicated state, the person while still impaired may change their mind and drive the vehicle. Second, a drunken person behind the wheel may unintentionally set the vehicle in motion, and third, through negligence, bad judgment, or in some other way, the parked vehicle may still endanger persons or property.

Analysis

[10] I propose to deal with these three issues in reverse order, but before doing so should observe that it is necessary to do so because I find that Mr. Gavin has rebutted the presumption of care or control in this case. This finding was made easier by Mr. Zuraw's helpful and proper concession of such on behalf of the Crown. As such it falls to the Crown to prove beyond a reasonable doubt Mr. Gavin's actions posed a realistic risk of danger in this case.

[11] Dealing with the third factor listed by the Supreme Court in Boudreault, I find that there is no evidence that the truck, parked as it was at Mr. Gavin's residence, endangered any person or property. There was no evidence Mr. Gavin did anything improper in the manner he started it that would have created a risk, nor was there any evidence of other persons or property in the vicinity at the time that could have been put at risk simply by it being parked and running, as it was, with Mr. Gavin behind the wheel.

[12] The next issue is the Supreme Court's second factor, whether there was a realistic risk the truck could be put in motion unintentionally by Mr. Gavin. Again I find there was no such risk in this case. Mr. Gavin testified about the steps required before the truck could be put in motion. When the truck is shut down, the emergency brake is engaged which prevents it from moving. In order for it to then move, the emergency brake must be disengaged. When the truck is started, he testified it has to run for approximately five minutes in order to allow air pressure to build in the brake lines. Once the pressure in the brake lines reaches 60 pounds per square inch the emergency brake is capable of being disengaged. To do so a yellow button has to be pushed and held for approximately five seconds. Mr. Gavin testified this button is not easy to push and requires such force to push it that accidentally doing so is not possible.

[13] Given this process required before the truck could be put in motion, I find that the Crown has not proven beyond a reasonable doubt that there was a realistic risk that the truck could have been put in motion unintentionally by Mr. Gavin at the time.

[14] It is the first factor referred to by the Supreme Court, being, that the inebriated accused may change his mind and decide to drive, that is most problematic in this case. Whether there is a realistic risk of danger is a finding of fact. In cases where an accused is behind the wheel and denies an intention to drive, whether there is a realistic risk the person will change their mind and drive, and thereby create a danger, is determined based on the particular circumstances of the case.

[15] In most cases like this, the accused is located near where he left his car before becoming impaired, like the parking lot of the establishment, or the house, or other place where he did his drinking. In other cases persons are found stopped at the side of the road, having pulled over to "sleep it off" because they realized they were too inebriated to continue. In these scenarios the Court assesses what the accused's plan was to ensure his safe transportation to his destination, which is usually his home. Whether the plan was objectively realistic and what steps the accused actually took to implement it are important considerations. As well, as Justice Fish stated in Boudreault at paragraph 52 "… 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 afterwards."

[16] This case however, has several significant factors differentiating it from these other more common scenarios. In this case, Mr. Gavin was already home and had been for approximately three hours when found by the police. Also, he had been in the truck with it running for approximately 10 to 15 minutes, waiting for it to warm up, without taking any steps to put it in motion. Furthermore, his stated intention was he wanted to use the truck as a place to sleep, and the truck contained a sleeping compartment, which is also evidence supportive of a concrete plan not to drive.

[17] The Crown contended that Mr. Gavin displayed a pattern of bad decision making that night, not the least of which was getting in the truck and starting it. The Crown contends that Mr. Gavin intended, or at least there was the realistic risk that given his bad decision making that night, that he would decide to drive the truck in an attempt to leave the residence to avoid the police who he knew were on the way to investigate Ms. Gordon's assault allegation. However the defence points out that, were that his intention he could have achieved that goal much easier and much more quickly simply by taking the neighbour's pick-up truck, which he knew was still in the driveway next door with the keys in it.

[18] In paragraph 45 of Boudreault, Justice Fish stated that:

…anyone found inebriated and behind the wheel with a present ability to drive will – and should – almost invariably be convicted. It hardly follows, however, that a conviction in these circumstances is, or should be, "automatic". A conviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case

[19] I find that this is one of those rare cases referred to by Justice Fish. Given the factors in this case; that he was already home and had been for some time, the truck was running without any attempt to drive it for at least 10 to 15 minutes, there was a sleeping compartment in the truck and Mr. Gavin had other, simpler means of leaving were that his intention, the Crown has failed to prove that there was a realistic risk of danger. As a result, both charges will be dismissed.

Dated at Brantford, Ontario

This 4th day of February, 2014

The Honourable Mr. Justice R.S. Gee