Court Information

Court File No.: Not provided

Ontario Court of Justice

Between: Her Majesty the Queen — and — Melissa Curley

Before: Justice Robert S. Gee

Heard: August 12th, 2014

Reasons for Judgment Released: September 11th, 2014

Counsel:

• A. Avery for the Crown
• J. Renwick for the Accused

Reasons for Judgment

Facts

[1] On January 26, 2014 Sergeant James Sawkins was on patrol in the City of Brantford. At approximately 2:30 p.m. he observed a motor vehicle pulled to the side of the road on Colborne Street, near its intersection with Queen Street, in downtown Brantford.

[2] Sergeant Sawkins observed the vehicle to have significant damage to its left front corner, including an outward bend of approximately 30 cm's to the left front fender and a buckled hood. He also observed the accused, Melissa Curley, apparently attempting to fix the damaged fender. According to Sergeant Sawkins as he approached the vehicle, Ms. Curley noticed him and moved around toward the driver's side of the vehicle.

[3] When asked by Sergeant Sawkins if she had been in an accident Ms. Curley admitted she had. Blood was observed by Sergeant Sawkins on the damaged area of the vehicle. He asked Ms. Curley if she was injured and she showed him a cut to a finger of her left hand. Blood was also observed by Sergeant Sawkins on the driver's side door handle and the turn signal lever on the steering column.

[4] As he spoke to her, Sergeant Sawkins detected a strong odour of alcohol coming from Ms. Curley, her speech was slurred and her eyes were glossy. As a result he formed the opinion her ability to operate her motor vehicle was impaired by alcohol. He arrested her at 2:34 p.m. for having care or control of her vehicle while impaired. He then read her rights to counsel, cautioned her, and demanded samples of her breath. Upon arrest, Ms. Curley was searched. The keys for the vehicle were located in her front pocket.

[5] At about this time, Constable Edward Bragg attended the scene to assist. Shortly after, he transported Ms. Curley from the scene to the Brantford Police Station while Sergeant Sawkins waited for a tow. Samples of Ms. Curley's breath were obtained and analyzed, and as a result a charge of having an excessive concentration of alcohol in her blood while in care or control of a motor vehicle, was added.

Issue

[6] The defence does not dispute that at the time Ms. Curley was observed by Sergeant Sawkins her ability to operate a motor vehicle was impaired by alcohol and that the concentration of alcohol in her blood exceeded the legal limit. It is the position of the defence that the Crown has failed to prove that Ms. Curley was in care or control of the vehicle at the time.

Evidence

[7] The only witnesses at trial were Sergeant Sawkins and Constable Bragg who testified for the Crown. Ms. Curley did not testify, but several utterances she made to either Sergeant Sawkins or Constable Bragg were admitted.

Legal Framework

[8] This area of law has recently been the subject of review by the Supreme Court in the case of R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R 157. The essential elements of the offence were set out in paragraphs 33 and 34 by the Supreme Court as follows:

[33] In this light, 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.

[9] Since Ms. Curley was not found occupying the driver's seat, the presumption afforded the Crown in s.258(1)(a) of the Criminal Code is not engaged. As such the Crown need prove Ms. Curley posed a realistic risk of danger in the circumstances.

[10] In her admitted state of impairment when observed by Sergeant Sawkins, if Ms. Curley intended to drive the vehicle, this would constitute a course of conduct that created a risk of danger to persons or property. Even if Ms. Curley did not have an intention to drive at the time she was encountered by Sergeant Sawkins, a realistic risk of danger could still be found if it is shown that in her impaired state she may later change her mind and proceeded to do so. It is this risk of danger that the Crown must prove existed beyond a reasonable doubt.

[11] The offence of care or control encompasses a wide ambit of dangerous conduct and the realistic risk of danger threshold is a low one (see Boudreault supra at pars. 46 and 48).

Application and Findings

[12] Applying this state of the law to the facts in this case, I find that the Crown has proven beyond a reasonable doubt that Ms. Curley created a realistic risk of danger and as such was in care or control of the vehicle when encountered by Sergeant Sawkins.

[13] I come to this conclusion based on the entirety of the evidence presented in this case. For instance, when first encountered by Sergeant Sawkins, Ms. Curley was in close proximity to the vehicle and was in fact attempting to fix or lessen the damage to its front end. Also she had ready access to the keys which were located in her front pocket.

[14] Additionally, there was blood located on both the driver's door and the turn signal lever on the steering column. Given the context and the evidence heard concerning those who were in and dealing with the vehicle at the time, the conclusion that this blood was Ms. Curley's is inescapable. This shows she was in close proximity to the controlling mechanisms of the vehicle after cutting her finger.

[15] The time or place of the accident which caused the damage was not established with precision. In her dealings with the police, Ms. Curley was at times somewhat forthcoming with them, and at others times she was not. She did state the accident had occurred somewhere near the Dairy Queen restaurant on Fairview Road in Brantford, which is several kilometres from where she was located. She also indicated she did not notice a stop sign and had hit a snow bank. At what time the collision occurred, she never did say.

[16] However based on her statements and the other evidence a number of facts can be inferred. Foremost, is that she was the driver of the vehicle when it hit the snowbank. Next, since the Dairy Queen is several kilometres from where she was located, it seems clear the vehicle was in an operable condition, notwithstanding the damage it suffered.

[17] As well, even though the time of the collision was not established, that it had occurred recently, can also be inferred based on the evidence. When Sergeant Sawkins encountered Ms. Curley, the vehicle still had snow and debris on its hood, and there was still snow packed in the grill. This points to the collision with the snowbank having occurred recently.

[18] Also, Ms. Curley stated she was in the area of the Dairy Queen to drop off her brother. There was no evidence of anyone else being in the vehicle, and when located by Sergeant Sawkins, Ms. Curley was the only person present. As such, it is reasonable to conclude she drove to where she later stopped on Colborne Street.

[19] Finally, I would note where she was stopped was in downtown Brantford, not a typical residential area of the City. There was no evidence before me that she was at her home, had reached her final destination if not going home, or had made any other arrangements for her transportation such as a taxi, or calling and waiting for a friend.

[20] Given that she was in an accident, drove after the accident, was attempting to fix the damage and given the other observations noted above, I am satisfied that the Crown has proven Ms. Curley posed a realistic risk of danger to persons or property due to the fact she either intended to continue to drive the vehicle, or, that in her inebriated state if she did not so intend, there was a realistic risk she would change her mind in that regard. As such, findings of guilt will be made in relation to both charges.

Dated at Brantford, Ontario This 11th day of September, 2014

The Honourable Mr. Justice R.S. Gee