Court File and Parties

Court File No.: Brampton - 13-8762 Date: 2014-12-03 Ontario Court of Justice (Central West Region)

Between:

Her Majesty the Queen

• Counsel: C. Presswood

- and -

Ryan Lanno

• Counsel: M. Rother

Heard: November 7, 2014

Reasons for Judgment

Schreck J.:

[1] Introduction

Ryan Lanno is charged with having the care and control of a motor vehicle while his ability to operate it was impaired. He was found in the early morning hours of December 2, 2013 sitting in a car on the side of the road, waiting for his father to come and pick him up. The car was running, but all four tires were flat. Both a civilian witness and the arresting officer testified to observing various indicia of impairment displayed by Mr. Lanno. The central issues to be determined are whether the Crown has proven that Mr. Lanno was impaired and whether he was in care and control of the motor vehicle.

I. The Evidence

A. The Civilian Witness's Observations

[2] In the early morning hours of December 2, 2013, Michael Stapleton, a garbage truck driver, was driving his truck along his usual route in Brampton, which included a right turn from Van Kirk Drive onto the eastbound lanes of Sandalwood Parkway. As he made the turn, Mr. Stapleton noticed a car stopped in the middle of the road about 20 or 30 yards ahead of him. The car was in the right lane, but was slightly askew such that the front left corner of the car crossed the line into the next lane. There was no evidence respecting how the vehicle came to be at that location or how long it had been there.

[3] According to Mr. Stapleton, the car's lights were on, although the four-way flashing lights had not been activated. Although it was night time, the area was well-lit and Mr. Stapleton had no difficulty seeing this car, which he agreed was highly visible. His evidence on this point differed from that of Cst. Eric Boateng, who attended the scene later and who testified that it would have been difficult to see the vehicle if turning eastbound onto Sandalwood Parkway from Van Kirk Drive.

[4] Mr. Stapleton stopped his truck and got out. He noticed a piece of rubber from the tire on the road and assumed that the car had hit the curb and damaged the tire. Believing that the driver of the car may require assistance, Mr. Stapleton approached the driver's side of the vehicle. The driver's side window was down and the vehicle had a single occupant, sitting in the driver's seat. There is no issue that this person was Mr. Lanno. There is no evidence as to when Mr. Lanno entered the car.

[5] Mr. Stapleton asked the driver if he was okay or needed assistance. He testified that he got a "very sleepy, glazed response" from the driver, who had a big smile on his face. Mr. Stapleton recalls the driver telling him that somebody was on the way to assist him. The manner in which the driver responded to him and well as his body posture led Mr. Stapleton to conclude that he was impaired by alcohol. Mr. Stapleton based this conclusion on his experience of having encountered impaired people in the past.

[6] Mr. Stapleton testified that he believes that the driver may have been trying to put the car into gear, but acknowledged that he is not certain about this. He believes that the car may have been running, but again was not prepared to say that it was with certainty.

[7] Although he did not check the car for damage, he recalls concluding that it was evident that the car was not going to move. This, as well as the fact that the driver had told him that help was on the way, led Mr. Stapleton to conclude that it was okay for him to leave.

[8] He returned to his truck and drove past Mr. Lanno's car without difficulty. As he did so, he telephoned 911 to report what he had seen. It was his intention to pick up some garbage along his route and return later to make sure that the police had arrived. He later returned and provided a statement to the police.

B. The Arrest of the Defendant

[9] Cst. Dean Sherman responded to the 911 call and arrived on the scene at 4:11 a.m. According to him, traffic in the area was minimal at this time. As he pulled up, he observed Mr. Lanno getting out of the driver's side of the car. According to Cst. Sherman, there was smoke emanating from the exhaust pipe of the vehicle.

[10] Cst. Sherman approached Mr. Lanno, who told him that he did not know what had happened, but his car did not work and his father was on his way to pick him up. Mr. Lanno's father, Dario Lanno, testified and confirmed that his son had called him at about 4:00 a.m. and had asked him to come and pick him up. However, when he arrived his son was no longer there because unbeknownst to Mr. Lanno Sr., he had been arrested.

[11] While speaking to Mr. Lanno, Cst. Sherman noticed some slurred speech and he appeared to be disoriented. His eyes were bloodshot and glassy and there was a strong odour of alcohol coming from his breath. Cst. Sherman formed the opinion that Mr. Lanno's ability to operate a motor vehicle was impaired and at 4:15 a.m. placed him under arrest.

[12] According to Cst. Sherman, Mr. Lanno's vehicle had extensive damage. All four tires were flat and the rubber on the front passenger side wheel was completely off the rim. Cst. Boateng, who arrived on scene later, made similar observations of the vehicle. Cst. Sherman agreed that in his opinion, the car was immoveable.

[13] After being arrested, Mr. Lanno was placed in the rear of the police car, advised of his rights to counsel and cautioned. A breath demand was made at 4:29 a.m. When asked by Cst. Sherman if he had had anything to drink, Mr. Lanno replied that he had had two or three pints at the St. Louis Bar and Grill. According to Cst. Sherman, Mr. Lanno appeared to understand what was going on.

[14] Cst. Sherman left the scene with Mr. Lanno at 4:36 a.m. and arrived at 22 Division at 4:47 a.m. He testified that Mr. Lanno fell asleep on the ride to the police station. According to Cst. Sherman, at the police division Mr. Lanno continued to show some signs of impairment in that his eyes were red and there was still an odour of alcohol. He was, however, very cooperative.

C. The Breath Technician's Observations

[15] Cst. Christine Lovell, a qualified breath technician, observed Mr. Lanno enter the cell area at 4:52 a.m. From one or two meters away, she observed him to have red, watery, bloodshot eyes and there was an odour of alcohol coming from his breath.

[16] At 5:01 a.m, Mr. Lanno entered the breath testing room where Cst. Lovell again advised him of his rights to counsel, cautioned him and read him the breath demand. She also explained to him the consequences of refusing to provide a breath sample. According to her, he appeared to follow what she was saying and was very polite. She again noted an odour of alcohol and also that Mr. Lanno's cheeks were flushed and his eyes were red-rimmed, watery and bloodshot. His pupils were normal, his speech was good and his clothes were orderly.

[17] At 5:10 and 5:33 a.m., Mr. Lanno provided suitable breath samples which indicated the presence of alcohol in his system in excess of the legal limit. No expert evidence was called with respect to the readings so nothing further can be inferred from them. Although Mr. Lanno was charged with an excess alcohol offence, he was not arraigned on that charge.

[18] Mr. Lanno admitted to Cst. Lovell that he had been operating a motor vehicle. However, he was not asked when he did so. When asked where he was going, he replied that he was going home. He also said that he had been at a bar called St. Louis located at Bovaird Drive and McLachlan Road in Brampton, where he had consumed one pitcher and one pint of Coors Light and Bud Light beer. He started drinking between 10:30 and 11:00 p.m. and finished at 12:30 a.m. After leaving the bar, he went to a friend's home but did not consume any alcohol there. When asked what time it was, Mr. Lanno replied that it was 1:30. It was in fact past 5:00.

II. Positions of the Parties

[19] Counsel for Mr. Lanno takes the position that the evidence has not proven that Mr. Lanno's ability to operate a motor vehicle was impaired at the relevant time. While he concedes that Mr. Lanno occupied the driver's seat of the vehicle, thereby engaging the presumption in s. 258(1)(a) of the Criminal Code that he was in care and control of the vehicle, he submits that the presumption has been rebutted in two ways. First, the evidence of Mr. Lanno's father as well as the utterances he made to Mr. Stapleton demonstrate that his purpose in occupying the driver's seat was not to set the car in motion but, rather, to await the arrival of his father who was on his way to pick him up. Second, the evidence of Mr. Stapleton and Cst. Sherman demonstrate that the vehicle was inoperable.

[20] Crown counsel submits that the evidence amply demonstrates that Mr. Lanno's ability to operate a motor vehicle was impaired. He also submits that Mr. Lanno has failed to rebut the presumption of care and control because he ought to have called his father earlier. The Crown asks me to infer that the damage to the car's tires occurred somewhere else and that Mr. Lanno subsequently drove the car to the location where it was found and then called his father. This inference would also rebut the suggestion that the car was inoperable. In the alternative, the Crown submits that de facto care and control has been proven because the location of the car in a live lane of traffic gave rise to a realistic risk of danger.

III. Analysis

A. Impairment

[21] The Crown bears the onus of establishing that Mr. Lanno's ability to operate a motor vehicle was impaired at the relevant time. Impairment is generally understood as meaning that an individual's judgment is altered and his or her physical abilities, such as coordination or reaction time, are reduced. Evidence which establishes any degree of impairment from slight to great is sufficient to establish this element of the offence: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff'd, [1994] 2 S.C.R. 478.

[22] In my view, the evidence establishes beyond a reasonable doubt that Mr. Lanno's ability to operate a motor vehicle was impaired. In so concluding, I note the following:

• Mr. Stapleton noted that when asked if he required help, Mr. Lanno gave a "very sleepy, glazed response."

• Both Mr. Stapleton and Cst. Sherman formed the opinion that Mr. Lanno was impaired. This is a matter upon which the Court may receive the opinion of a non-expert: R. v. Graat, [1982] 2 S.C.R. 819.

• Cst. Sherman noted that Mr. Lanno appeared to be disoriented and his speech was slurred.

• Mr. Lanno fell asleep on the way to the police station.

• Both Cst. Sherman and Cst. Lovell noted that Mr. Lanno's eyes were red and watery. As I have no evidence as to the normal state of Mr. Lanno's eyes, this evidence is of limited value. It is, however, evidence that is consistent with impairment.

• Both Cst. Sherman and Cst. Lovell detected an odour of alcohol emanating from Mr. Lanno's breath. I am cognizant that this evidence confirms the consumption of alcohol but is not probative of the amount of alcohol consumed or the degree of impairment that results from it: R. v. Tavone (2007), 54 M.V.R. (5th) 278 (Ont. S.C.J.) at paras. 8-11.

• The breath tests revealed a blood alcohol concentration in excess of the legal limit. I infer from this that there was alcohol in Mr. Lanno's system, but absent expert evidence I am unable to draw any inference as to the level of impairment resulting from it: R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 22; R. v. Nandlall, [2009] O.J. No. 3452 (S.C.J.) at paras. 4-9; R. v. Selvarajah, [2011] O.J. No. 4158 (C.J.) at para. 17.

B. Care and Control

(i) The Presumption in s. 258(1)(a) of the Criminal Code

[23] Mr. Stapleton observed Mr. Lanno occupying the driver's seat of the vehicle. In these circumstances, the presumption in s. 258(1)(a) of the Criminal Code applies: Mr. Lanno is deemed to have had the care and control of the vehicle unless he establishes that he did not occupy the driver's seat "for the purpose of setting the vehicle . . . in motion." Counsel for Mr. Lanno submits that the presumption has been rebutted in two ways. First, by evidence that Mr. Lanno was waiting to be picked up by his father and second, by evidence that his vehicle was inoperable.

(a) Evidence of Waiting to be Picked Up

[24] With respect to the first submission, I accept Dario Lanno's evidence that his son had called him and asked to be picked up. I accept as well that when Mr. Stapleton first spoke to Mr. Lanno, Mr. Lanno was waiting for his father and did not at that time intend to set the vehicle in motion. However, in determining whether the presumption in s. 258(1)(a) has been rebutted, the relevant point in time is not when the accused is observed in the driver's seat, but rather the time at which he began to occupy the driver's seat: R. v. Hatfield (1997), 33 O.R. (3d) 450 (C.A.) at para. 19. In this case, I have heard no evidence as to when Mr. Lanno first began to occupy the driver's seat. As he bears the onus of rebutting the presumption, the lack of evidence on this point means that he has failed to do so.

[25] I recognize that it is somewhat incongruous that had there been evidence that Mr. Lanno got out of the car to call his father and then got back into it, the presumption would be rebutted whereas if he had remained in the car after deciding not to drive, it would not have been. This was alluded to by Durno J. in R. v. Amyotte, [2009] O.J. No. 4122 (S.C.J.) at para. 107:

While the appellant argued it is illogical to have a case determined on whether or not the accused got out of the car and returned not intending to drive and one who never leaves the seat but abandons the intention to drive, that is the law in Ontario. Whether the presumption applies is determined by the accused's intention when he or she first occupied the driver's seat.

As I am bound by both Hatfield and Amyotte, I must conclude that Mr. Lanno has not rebutted the presumption by showing he was awaiting his father at the time he was observed in the driver's seat.

(b) Evidence That the Vehicle Was Inoperable

[26] I have heard no evidence as to how Mr. Lanno's vehicle came to be where it was first observed by Mr. Stapleton. Cst. Sherman, who examined the vehicle and observed that all four tires were flat and that the rim was exposed on one wheel, testified that he believed that the car was incapable of being moved. Although Mr. Stapleton did not examine the car in detail, he too formed the impression that it could not be moved. I heard no other evidence on this issue. Based on the record before me, I find that the vehicle was not capable of being moved.

[27] I do not agree with the Crown that it is open to me to infer that the car's tires were damaged elsewhere and that Mr. Lanno subsequently drove the car to the location where it was found. There is no evidence to support such an inference. Moreover, Mr. Stapleton observed a piece of rubber on the road near Mr. Lanno's car, which suggests that the tires were damaged at that location.

[28] There is authority, binding on me, for the proposition that evidence that a vehicle that is inoperable in the sense that it cannot be driven is capable of rebutting the presumption in s. 258(1)(a) of the Criminal Code. In R. v. Amyotte, supra, Durno J. stated (at para. 102):

Unless an inoperable vehicle "defeats" the presumption or in itself precludes a finding of care or control, the onus was on the appellant to establish that he probably did not occupy the seat for the purpose of setting the vehicle in motion.

See also R. v. Coomansingh, [2014] O.J. No. 5120 (C.J.) at paras. 30-32 and R. v. Lu, [2013] O.J. No. 836 (C.J.) at paras. 27-31.

[29] I recognize that a distinction is drawn in Amyotte between vehicles that are "inoperable" and those that are "immoveable". Only the former defeat the presumption. As I understand the distinction, "immoveable" vehicles are those which are temporarily incapable of moving but which may become moveable. In Amyotte, Durno J. considered a number of cases involving immoveable vehicles, all of which were stuck in some way in a ditch or elsewhere (see paras. 109-110). In each of these cases, there was a realistic possibility that the vehicle could become unstuck and then be driven, which is why the presumption remained intact. In this case, however, there was no possibility that the state of the vehicle would change absent significant repair work.

[30] As the vehicle was not capable of being moved, I conclude that the presumption in s. 258(1)(a) of the Criminal Code has been rebutted. This does not, however, end the matter.

(ii) Realistic Risk of Danger

[31] In cases where the presumption has been rebutted, it is still open to the Crown to establish de facto care and control of the vehicle by establishing that there existed a realistic risk of danger in the circumstances: R. v. Smits, 2012 ONCA 524, [2012] O.J. No. 3629 (C.A.) at paras. 48-51. The risk must be realistic and not just theoretically possible. However, it need not be probable, significant or substantial: R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 at paras. 34-35; R. v. Smits, supra at para. 60.

[32] The risk of danger found in care and control cases usually falls into three categories: (1) the risk that the vehicle will be unintentionally set in motion; (2) the risk that an accused who does not intend to drive will later change his or her mind; and (3) the risk that through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property: R. v. Boudreault, supra at para. 42. The first and second type obviously do not arise in the case of an inoperable vehicle that cannot be moved. The issue in this case is whether the third type of risk existed.

[33] The Crown submits that Mr. Lanno's vehicle created a risk of danger by being stopped in a live lane of traffic and relies on R. v. Balogun-Jubril, [2014] O.J. No. 4268 (S.C.J.). In that case, the accused's vehicle was parked in the middle of the off-ramp leading from Highway 409 for almost two and a half hours. In my view, Balogun-Jubril is clearly distinguishable. Highway 409 is a major highway and cars driving on the off-ramp are likely to be going at a high rate of speed. It is obvious that a car parked in the middle of the off-ramp would create a risk of danger. However, as Durno J. recently observed in R. v. Agyemang, 2014 ONSC 4232, [2014] O.J. No. 5047 (S.C.J.), not every car stopped in a live lane of traffic creates a risk of danger (at para. 72):

I am not persuaded that any car left in a live lane of traffic, regardless of the surrounding circumstances, represents a realistic risk of danger. As the trial judge held in R. v. Pharai, 2007 ONCJ 486, "although the accused's car was in a live lane of traffic on a busy highway, no specific potential danger that could have been triggered by an act on the part of Mr. Pharai has been established before me." Here, there was no evidence regarding the lighting in the area, whether it was on a curved or straight road, whether it was on a hill or level surface, and no evidence whether the car's lights were on or off. There was no evidence how busy Humberwest Parkway was or would normally be in the early morning hours. It is not a major road in the Peel Region.

[34] In this case, the evidence was that the area was well lit, the road was not busy at the time, and the car's lights were on. While Cst. Boateng testified that it would have been difficult to see Mr. Lanno's car if turning eastbound onto Sandalwood Parkway from Van Kirk Drive, Mr. Stapleton actually made that turn and testified that he had no difficulty seeing the vehicle, nor did he have any difficulty in getting around it. In these circumstances, I am not satisfied that the location of the vehicle gave rise to a realistic risk of danger.

(iii) Conclusion Respecting Care and Control

[35] I strongly suspect that Mr. Lanno drove the vehicle to the location where it was later observed by the witnesses and that he was impaired while he did so. However, I have heard no evidence as to how the vehicle came to be where it was found or how long it had been there before Mr. Stapleton's arrival. Although Mr. Lanno admitted to Cst. Lovell that he had been operating a motor vehicle, she did not ask him when that occurred. On this record, I am not prepared to conclude that he did so at a time when his ability to drive was impaired.

[36] For the reasons given, I have concluded that the presumption in s. 258(1)(a) of the Criminal Code does not apply and the Crown has not established de facto care and control of the vehicle by proving that there was a realistic risk of danger. As a result, while I am satisfied beyond a reasonable doubt that Mr. Lanno's ability to operate a motor vehicle was impaired at the relevant time, I am not so satisfied that he was in care and control of the vehicle.

IV. Disposition

[37] For the foregoing reasons, the charge is dismissed.

Released: December 3, 2014

Justice P.A. Schreck