Court File and Parties

Court File No.: Brampton - 13-8762 Date: 2014-12-16

Ontario Court of Justice (Central West Region)

Between:

Her Majesty the Queen

• Counsel: C. Sibian

- and -

Zachary Mischuk

• Counsel: L. Izakelian

Heard: October 27-28, 2014

Reasons for Judgment

Schreck J.:

I. The Evidence at Trial

A. The Investigation

(i) The Arrest

[1] After spending several hours drinking in a Brampton bar one afternoon, Zachary Mischuk decided to drive his car to a nearby fast food restaurant to get something to eat. He parked between two handicapped parking spots near the entrance and went inside. While in the restaurant, he texted his partner and asked her to come and pick him up because he felt that he had drunk too much to be able to drive. His partner, though less than pleased with the request, agreed and said that she would there in about an hour and a half to two hours. Mr. Mischuk and his co-worker returned to his car where he put his car keys in the glove compartment and began to eat the food he had purchased. A short while later, a police officer responding to a call about a possible impaired driver approached the vehicle and spoke to Mr. Mischuk. Mr. Mischuk was then arrested for impaired driving and taken to a police station. He provided two samples of his breath, both of which resulted in readings of 120 mg of alcohol per 100 ml of blood. As a result, Mr. Mischuk was charged with having the care and control of a motor vehicle while his ability to operate it was impaired by alcohol (Count 1) and while the concentration of alcohol in his blood exceeded the legal limit (Count 2). He has pleaded not guilty to both charges.

[2] Mr. Mischuk has applied, pursuant to ss. 8, 9 and 24(2) of the Canadian Charter of Rights and Freedoms, to exclude from evidence certain utterances he made to the police as well as the breath sample readings. As well, he takes the position that he was not in care and control of the motor vehicle at the relevant time.

(ii) The Arrest Details

[3] At 5:34 p.m. on June 28, 2013, Cst. Matthew McConkey of the Peel Regional Police was dispatched to a plaza on Sandalwood Parkway in Brampton in relation to a radio call about a possible impaired driver. He was told by the dispatcher that a witness had seen two males exit a bar at that location and that these males were associated with a purple car. Cst. McConkey arrived on scene at 5:44 p.m. and located the car, which had been backed into the space between two handicapped parking spots and was on an angle. The parking spots were near to the entrance of a McDonald's restaurant.

[4] There were two males in the front seats of the car. The officer approached the driver's side of the vehicle and spoke to the occupant of the driver's seat, Mr. Mischuk, who was eating a hamburger. The officer asked him why he was parked between two handicapped parking spots and Mr. Mischuk responded that he had just left a bar to get food at McDonald's because he had not eaten all day and was hungry.

[5] Cst. McConkey testified that while he was speaking to Mr. Mischuk, he formed reasonable and probable grounds to arrest him for impaired driving. He initially testified that his grounds for arresting Mr. Mischuk were the information received from the dispatcher as well as that he had slurred speech, a smell of alcohol emanating from his breath and red-rimmed, bloodshot eyes. The officer also maintained that Mr. Mischuk had difficulty answering questions, but could not articulate the nature of the difficulty. In cross-examination, the officer admitted that despite having testified otherwise during his examination-in-chief, Mr. Mischuk's speech was not in fact slurred.

[6] Cst. McConkey noted that the car was not running and there was no key in the ignition. He did not note whether the emergency brake was activated but supposed that it was as the car did not roll. He did not check whether the hood was warm. Later, Mr. Mischuk told Cst. McConkey that the keys were in the glove compartment, which the officer later confirmed.

[7] At 5:53 p.m., Cst. McConkey told Mr. Mischuk to exit the vehicle, placed him under arrest for impaired driving and escorted him to the police cruiser. During his examination-in-chief, Cst. McConkey testified that Mr. Mischuk was "very unsteady" on his feet and was swaying back and forth. In cross-examination, he agreed that Mr. Mischuk had in fact been only slightly unsteady.

[8] Mr. Mischuk was placed in the back of the cruiser and at 5:56 p.m. was advised of his right to counsel. At 5:58 p.m., he was cautioned and a breath sample demand was made. Cst. McConkey and Mr. Mischuk cleared the scene at 6:07 p.m. and arrived at the police division at 6:27 p.m.

(iii) The Utterances in the Police Cruiser

[9] When advised of his right to counsel, Mr. Mischuk indicated that he wished to speak to counsel. Cst. McConkey testified in-chief that it was his practice to facilitate contact with counsel at the police station and that he did not ask Mr. Mischuk any questions before he had an opportunity to contact counsel. In cross-examination, Cst. McConkey stated that he in fact did question Mr. Mischuk and asked him several times if he had been driving the vehicle. He initially testified that he asked this upon first approaching the vehicle, but later conceded that there was no mention of this in his notes and the questions had not been asked at that time. When asked if he had asked this question after Mr. Mischuk's arrest, Cst. McConkey eventually conceded that he could not recall when the question was asked.

[10] Cst. McConkey testified that while they were driving to the police station, Mr. Mischuk made several spontaneous utterances. He said that he was very sorry, that he knew that what he had done was wrong, that he had finished work with a co-worker and the two of them had attended a bar where he had about five beers and approximately two shots. Mr. Mischuk also said that he was "trying to be the cool guy" and had told his friend that he would drive him home. He had driven from one side of the parking lot to the McDonald's to get some food. He knew that he had had too much to drink but was very hungry and "wasn't thinking."

[11] In cross-examination, Cst. McConkey added that Mr. Mischuk had also admitted that he should not have been driving. When it was pointed out to him that this utterance was not mentioned in his notes, Cst. McConkey replied that he "retracted" this aspect of his testimony.

(iv) The Breath Tests

[12] After arriving at the police station, Mr. Mischuk spoke to duty counsel and was handed over to the breath technician, Cst. Dameon Okposio, at 7:03 p.m. Cst. Okposio noted that Mr. Mischuk's breath smelled of alcohol, his eyes were red and his cheeks were flushed. His speech was noted as being "fair" and Cst. Okposio did not note any unsteadiness. Breath tests were administered at 7:23 p.m. and 7:46 p.m., both resulting in readings of 120 mg of alcohol per 100 ml of blood. Mr. Mischuk was later released and picked up from the police station by his spousal partner, Melissa Feige.

B. The Defence Evidence

(i) The Defendant's Attendance at the Bar

[13] Mr. Mischuk testified on his own behalf. He is 35 years old, employed as a drywaller and lives with his partner in Mississauga. Mr. Mischuk has a criminal record for mischief, assault and theft from "years ago" and about which I have been provided with no details.

[14] Mr. Mischuk testified that on June 28, 2013 he woke up at 5:00 a.m. as usual. He picked up a co-worker and friend called John who lives in Brampton and proceeded to a job site in downtown Toronto. The two men worked until noon and then Mr. Mischuk drove John back to Brampton. When they arrived there at about 1:00 p.m., they decided to go to a bar John frequented. They stayed in the bar until about 4:30 p.m., during which time Mr. Mischuk consumed about four beers and two shots of tequila.

[15] Mr. Mischuk claims that when he left the bar, he was not feeling any effects from the alcohol he had consumed. In cross-examination, he stated that he did not drink very often, only about once per month, but when he did drink he usually drank about 10 beers.

[16] Mr. Mischuk's testimony was largely confirmed by the evidence of the bartender, Stephanie Laguns, a Crown witness. She recalled serving the two men several drinks and testified that she did not note any signs of intoxication except that the men seemed to become more "loose" and talkative as the afternoon progressed, which she attributed to the consumption of alcohol.

(ii) The Aborted Taxi Ride to Toronto

[17] After leaving the bar, Mr. Mischuk and John got into a taxi with the intention of going to Toronto to attend some bars they had seen near the worksite they had been at. Mr. Mischuk claimed that the reason he planned to take a taxi was not because he felt intoxicated but, rather, because he did not want to "deal with" parking and construction in Toronto. He agreed in cross-examination, however, that the cost of the taxi was likely to be more than the cost of parking.

[18] Before leaving for Toronto, Mr. Mischuk texted his partner, Melissa Feige, to tell her that he was going. Ms. Feige was apparently not pleased to hear this and reminded Mr. Mischuk that he had made plans to go out with her that evening to dinner and a movie. Having been reminded of this, Mr. Mischuk abandoned his plan to go to Toronto. Instead, he and John returned to the bar for another drink. He was only in the taxi for a few minutes.

[19] Ms. Feige testified that she received a text from Mr. Mischuk around noon saying that he was leaving work and then another text stating that he was going to drive his friend John home to Brampton but that they would stop first to have a beer. Ms. Feige next heard from Mr. Mischuk at about 4:30 p.m., when he texted her to say that he was planning to take a taxi to Toronto. This made Ms. Feige somewhat angry, as she had expected Mr. Mischuk to be home by then and because they had plans for that evening. She made her anger clear to Mr. Mischuk and he then indicated that he would not go to Toronto but, rather, would stay where he was and have another beer.

(iii) The Trip to the Fast Food Restaurant

[20] Mr. Mischuk and John returned to the bar where Mr. Mischuk consumed another beer. They then left because Mr. Mischuk, who is hypoglycemic, needed something to eat as he had not eaten since 9:15 a.m. He testified that he and John got into his car and drove to the McDonald's that was about 500 metres away. He parked as close to the entrance as he could as he needed to get food quickly and backed his car into the parking spot. At this point it was around 5:00 p.m. He did not at that time notice that he had parked in a handicapped spot because he was so focussed on obtaining food. Once again, Mr. Mischuk claimed that when he left the bar he was not feeling any effects of the alcohol he had consumed. He agreed that at this point, it was his intention to drive his friend John home. The bartender, Ms. Laguns, who recalled Mr. Mischuk and John returning to the bar for another drink, confirmed that when they left for the second time, they did not seem to her to be intoxicated.

(iv) The "Alternate Plan"

[21] Mr. Mischuk testified that once he was inside the McDonald's, he suddenly began to feel the effects of the alcohol and became very dizzy. At that point, he decided that he should not drive so he texted Ms. Feige to ask her to come and pick him up. Ms. Feige replied that she would come to get him between 6:30 and 7:00 p.m.

[22] Ms. Feige confirmed that she was contacted by Mr. Mischuk, who said that he was really sorry but that the "alcohol was hitting him" and that he needed her to come and get him. Ms. Feige testified that she was not at all pleased by this, but that she agreed to go and pick him up. Because she was in the process of cooking dinner and had to feed her son, she told Mr. Mischuk that she would pick him up between 6:30 and 7:00 p.m. He told her that he was at a McDonald's on Sandalwood Parkway.

[23] Mr. Mischuk returned to the parking lot and entered his car. He testified that his intention at this time was to sit in the car, eat his food and wait for Ms. Feige, whom he was sure was coming because she had always been reliable in the four years they had been together. He testified that he had no intention of driving, so he put the car keys in the glove compartment. He noticed at this point that he had parked between two handicapped spots. He felt badly about this but did not move the car because he did not believe that he should drive. Soon after, a police officer arrived and arrested him.

[24] According to Ms. Feige, she was about to leave to pick up Mr. Mischuk as planned when she received a telephone call from a police officer who advised her that he had been arrested and that her car was to be impounded. The officer provided her with information on how to retrieve the car and said that she could pick Mr. Mischuk up later from the police station. Ms. Feige went to the police station later and picked him up.

(v) The Utterances

[25] Mr. Mischuk agreed that he made most of the utterances attributed to him by Cst. McConkey. He explained that when he apologized, he was apologizing for parking in the handicapped spot. When he said that he wanted to be the "cool guy" and drive his friend home, he meant to say that he regularly drove his friend home and that he was "cool" because he was the only person at work to do this.

II. Analysis

A. The Charter Application

[26] Mr. Mischuk has applied to exclude from evidence the utterances he made to the police and his breath samples on the basis that his s. 8 and s. 9 Charter rights were breached. Given my ultimate conclusions on the "care and control" issue, it is unnecessary for me to deal with the application. I should note that had I dealt with the Charter application, because the taking of the breath samples constituted a warrantless search, the onus would have been on the Crown to establish on a balance of probabilities that reasonable and probable grounds for the breath demand existed: R. v. Haas (2005), O.R. (3d) 737 (C.A.); R. v. Bush (2010), 2010 ONCA 554, 101 O.R. (3d) 641 at para. 13 (C.A.). To do so, the Crown would have had to rely entirely on the evidence of Cst. McConkey. This would have posed significant difficulties for the Crown as I had serious concerns about the credibility and reliability of this officer. He apparently had no difficulty in testifying under oath about events that never happened and offered no explanation for why he had made claims that he later admitted were untrue.

B. Care and Control

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

[27] There is no issue that Mr. Mischuk was in the driver's seat of the vehicle at the time he was first approached by Cst. McConkey. As a result, the presumption in s. 258(1)(a) of the Criminal Code applies and Mr. Mischuk 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." In this case, Mr. Mischuk testified that his purpose in occupying the driver's seat was not to the set the vehicle in motion but, rather, to eat his food and wait for Ms. Feige.

[28] The defendant's testimony was somewhat problematic. I have difficulty accepting that after consuming five beers and two shots of tequila between 1:00 and 5:00 p.m., he felt no effects of the alcohol whatsoever until they suddenly hit him while he was at McDonald's, where the effects were so severe he immediately decided not to drive. I also have difficulty accepting his explanation for wanting to take a taxi to Toronto.

[29] In my view, it is more likely that Mr. Mischuk had been feeling the effects of alcohol for some time prior to 4:30 p.m. and that this is the reason he planned to take a taxi to Toronto. The consumption of alcohol also explains why he forgot about the plans he had made with Ms. Feige, which was apparently out of character for him. She testified that he usually honoured their plans.

[30] If the defence relied entirely on Mr. Mischuk's testimony to rebut the presumption, I would have some difficulty in finding that it had been rebutted, given that the onus of establishing this is on him. However, his evidence on this point is corroborated in two ways. First, the key was in the glove compartment, as confirmed by Cst. McConkey. This would be an unusual location for the key if Mr. Mischuk's intention was to drive the car. Second, Ms. Feige confirmed that she had been contacted by Mr. Mischuk and that there was a plan in place for her to go and pick him up. The Crown concedes that Ms. Feige is a credible witness, an assessment with which I agree. I therefore accept, on a balance of probabilities, that when Mr. Mischuk entered the car after purchasing food, his purpose was not to set the vehicle in motion.

[31] The relevant time period in determining the defendant's intention is 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. Crown counsel asks me to find that the time when the defendant began to occupy the driver's seat was when he left the bar to drive across to the McDonald's. She relies on the judgment in R. v. Chernywech, [2010] O.J. No. 1638 (S.C.J.), where Tulloch J. (as he then was) held that the accused's brief exiting of the vehicle in that case was not sufficient to divest him of care and control (at para. 42). In that case, after the intoxicated accused left a restaurant he got into his car and soon thereafter drove it into a snow bank. A witness observed the accused get out of the vehicle, walk around the back of the vehicle to the passenger side, and then return to the driver's side and re-enter the vehicle. There was no evidence as to the accused's purpose in momentarily leaving the car.

[32] In my view, Chernywech is clearly distinguishable from the case at bar. The accused in that case only exited the car very briefly and, more significantly, never left the car. In this case, Mr. Mischuk left the car and only returned to it after entering the restaurant and purchasing food. His purpose when he entered the vehicle upon leaving the bar was to drive to the McDonald's. He testified to having an entirely different purpose when he re-entered the car after buying food, namely, to await Ms. Feige. Unlike in Chernywech, the exiting of the car was more than simply a "brief interlude" in what was otherwise a continuous occupancy of the vehicle.

(ii) Realistic Risk of Danger

[33] The fact that the presumption in s. 258(1)(a) has been rebutted does not end the matter, as it is still open to the Crown to establish that there was a realistic risk of danger that the vehicle would be set into motion: R. v. Smits, 2012 ONCA 524, [2012] O.J. No. 3629 (C.A.) at paras. 48-51. In this case, the danger the Crown says exists is not that the vehicle would accidentally start moving but, rather, that Mr. Mischuk would change his mind about waiting for Ms. Feige and decide to drive the car. A potential change of mind by the accused can meet the "risk of danger" threshold: R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 at para. 33; R. v. Smits, supra at paras. 53-60.

[34] The Crown's submission has some evidentiary support. There is evidence that Mr. Mischuk had prevaricated throughout the afternoon about whether to drive the car. He intended to take a taxi to Toronto, suggesting that he knew he should not drive, but then changed his mind and decided to drive the car to McDonald's and, on his own admission, planned to drive his friend home. He then changed his mind again and called Ms. Feige to come and get him.

[35] One of the significant factors to consider in assessing whether the Crown has established a risk of danger on the basis that the accused may change his mind and decide to drive is the existence of an "alternate plan". This was explained by Fish J. in R. v. Boudreault, supra (at paras. 51-52):

One of the factors of particular relevance in this case is that the accused took care to arrange what some courts have called an "alternate plan" to ensure his safe transportation home.

The impact of an "alternate plan" of this sort on the court's assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused. A plan may seem watertight, but the accused's level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, 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 afterward.

[36] In this case, the plan was objectively concrete. Ms. Feige had been contacted and had agreed to arrive at a specified time to pick Mr. Mischuk up. She testified that she owned a second car in addition to the one Mr. Mischuk was using and that she intended to leave one car in the parking lot with the intention of retrieving it at a later time.

[37] There was also evidence that the plan had been implemented. Mr. Mischuk had contacted Ms. Feige and then awaited her arrival at a pre-determined meeting place. He had placed the keys in the glove compartment.

[38] As was recognized in Boudreault, even where there is a concrete plan, there may nonetheless be a realistic risk that it will be abandoned because the accused's judgment is impaired by alcohol. However, the existence of a mere possibility that this may occur is insufficient, as was made clear in Smits, supra (at para. 60):

Although the courts below have applied different modifiers, what all the authorities, including this court, seem to be saying is that in order to establish that an accused has created a risk of danger in change of mind cases, the Crown must demonstrate a risk that an accused, while impaired, would change his or her mind and put the vehicle in motion. That risk must be based on more than speculation or conjecture. Saying that any person whose ability to operate a motor vehicle is impaired to any degree might change his or her mind is not sufficient. The trier of fact must examine the facts and determine if there is an evidentiary foundation that such risk of danger exists.

[39] I do not believe that such a risk existed in this case. Mr. Mischuk had already incurred Ms. Feige's displeasure on two occasions, once when he forgot about their evening plans and had intended to take a taxi to Toronto and again when he called her to come and get him. With respect to the first of these, Mr. Mischuk quickly abandoned the plan to go to Toronto once he realized that doing so would upset Ms. Feige. Had Mr. Mischuk changed his mind and driven away before Ms. Feige arrived, she would no doubt have become even more upset with him than she already was. In these circumstances, I find it unlikely that he would risk incurring further wrath from his partner.

(iii) The Earlier Driving

[40] There is authority that suggests that even where an accused has no intention to drive and there is no realistic risk of danger that the vehicle will be set in motion, a finding of care and control may nonetheless be made if there is evidence of recent driving: R. v. Schwandt, 2010 ONSC 1383, [2010] O.J. No. 998 (S.C.J.) at para. 28; R. v. Bernatsky, [2007] O.J. No. 4787 (C.J.) at para. 12. However, I decline to make a finding of care and control on the basis that Mr. Mischuk drove his car from the bar to the McDonald's. The Crown's theory of liability throughout the trial was that Mr. Mischuk was in care and control of the vehicle at the time it was parked between the two handicapped spots. It was that theory that the defence responded to. In my view, it would be unfair to now convict Mr. Mischuk on an alternative basis: see R. v. Ranger (2003), 67 O.R. (3d) 1 (C.A.) at paras. 134-138.

[41] In any event, while Mr. Mischuk admitted that his ability to operate a motor vehicle was impaired at the time he was parked outside the McDonald's, he denied that it was at the time he left the bar. While I have significant reservations about the veracity of this claim, Mr. Mischuk's evidence on this point is corroborated by the evidence of Ms. Laguns, the bartender. While I do not accept that Mr. Mischuk's ability to operate a motor vehicle was not impaired at the time he left the bar, I am not convinced beyond a reasonable doubt that it was.

[42] As well, the evidence is unclear as to when Mr. Mischuk drove to the McDonald's. Unless he had done so after 5:23 p.m., the breath test results could not be relied upon as they would not have been taken within the two-hour window required by s. 258(1)(c)(iii) of the Criminal Code.

(iv) Conclusion Respecting Care and Control

[43] I therefore conclude that in the circumstances of this case, the presumption in s. 258(1)(a) of the Criminal Code has been rebutted and the Crown has failed to establish that there was a realistic risk of danger that the vehicle would be set in motion. As a result, the Crown has failed to prove that Mr. Mischuk was in care and control of the motor vehicle while his ability to drive was impaired and while his blood alcohol content exceeded the legal limit.

III. Disposition

[44] For the foregoing reasons, Mr. Mischuk is found not guilty on Counts 1 and 2.

Justice P.A. Schreck

Released: December 16, 2014