Court File and Parties

Court File No.: Central East Region-Newmarket 13-00440 Date: 2014-11-27 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ryan Anderson

Before: Justice Peter C. West

Evidence Heard: April 7 and 8, 2014 and June 20, 2014

Oral Submissions Heard: November 14, 2014

Reasons for Judgment Released: November 27, 2014

Counsel:

• Ms. J. Lee, for the Crown
• Mr. M. Occiuto, for the accused Ryan Anderson

Introduction

[1] Ryan Anderson is charged with impaired care or control of a motor vehicle and care or control with excess alcohol on January 13, 2013. The defendant provided breath readings of 180 and 184 milligrams of alcohol in 100 millilitres of blood.

Factual Background

i. Evidence of Henry Andrew Desmarais

[2] Henry Andrew Desmarais, a taxi driver, observed Mr. Anderson's motor vehicle shortly before 6:06 a.m. but could not see into the vehicle because the windows were fogged. After Mr. Desmarais dealt with his fare he called 911 and advised police he observed a vehicle with damage parked in the westbound lane of Sonoma Boulevard in Vaughan. The vehicle had damage, from his recollection, to both front tires which had no rubber; the rims were on the ground.

[3] Mr. Desmarais was able to drive by the vehicle on the left but if someone in the vehicle had opened the driver's door then he would not have been able to get by. He was cautious when he went by the vehicle because it clearly had been involved in an accident.

ii. Evidence of Stephen Tod Smith

[4] Stephen Tod Smith was an employee of York Region. As he was proceeding northbound on Islington Avenue he observed that a street sign was down, which had been on a centre median. The street sign was in the middle of the southbound lanes of Islington Avenue. He also retrieved bits and pieces of debris from the roadway and placed a traffic cone to indicate a sign was missing. He observed a car on Sonoma Boulevard that was parked by the curb with its lights on.

[5] The car was at a bit of an angle and had damage to its front end but Mr. Smith could not remember the details. He assumed there was someone inside as the windows were all fogged up. He called his dispatcher to contact York Regional Police about the damage to the street sign and the damaged vehicle parked on Sonoma Boulevard. In the statement he emailed to the police the next day, Mr. Smith advised he saw the car at 6:30 a.m. This time would have been very accurate as he prepared his statement shortly after the officer arrived.

[6] Mr. Smith saw a male YRP officer arrive on scene. He spoke to the officer. The officer appeared to be having difficulty awakening the driver or getting him out of the driver's seat of the car. The street sign that was struck by the vehicle was at the beginning of the median, which was south of the intersection at Islington and Sonoma. It was the 4x4 wooden post that had shattered and was in the southbound lanes with debris from the car.

[7] Mr. Smith testified the sign at the start of the median is about 50 metres from Sonoma. The vehicle was another 100 metres west from Islington, parked on Sonoma. The vehicle parked on Sonoma was highly visible to Mr. Smith while he was proceeding on Islington northbound as it had its lights on. He observed front end damage to the vehicle. He recalled the car was leaning to the driver's side. Mr. Smith believed it started raining after the police officer arrived.

iii. Evidence of P.C. Adam Patola

[8] P.C. Patola was dispatched to the scene at 6:43 a.m. He arrived at 6:44 a.m. and observed a Chrysler 300 parked on Sonoma. He had received information about a car that had knocked down a street sign on Islington and had both wheels off the vehicle on the left driver's side. It was the officer's evidence the median is approximately 75 metres long. At the southern end of the median had been a street sign which was knocked down.

[9] As the officer turned onto Sonoma proceeding westbound; he observed a tire in the westbound roadway of Sonoma approximately five metres from the intersection. He observed the black Chrysler 300 another 20 metres west of that tire. The car was running as he could see exhaust coming from the muffler. The rear lights and headlights were on. The hazard lights were not activated. P.C. Patola observed the left rear rim was still on the vehicle. The vehicle was close to the northbound curb of Sonoma. The driver's front tire was still on the rim but was flat.

[10] There is a raised median separating the westbound and eastbound lanes of Sonoma. It was the officer's opinion another motor vehicle would be able to drive safely by the Chrysler 300 where it was parked. The officer spoke to Mr. Smith for about one minute and then went to the driver's door of the vehicle. The window was fogged and the officer could not see in. He pulled on the door handle, which was unlocked, and it opened.

[11] There was a male person sitting in the driver's seat asleep and snoring. The keys were in the ignition, the instrument panel was lit up. The officer yelled hello several times trying to wake up the driver. The officer went back to his car to turn on the camera system. When he returned to the car the driver was in the same position sitting behind the wheel in the driver's seat, snoring. The officer yelled again and shook the driver's shoulder but he did not wake up. The officer requested an ambulance because the driver was not awakening. After a minute the driver began to rouse, his eyes opened and he started to move his head. The officer asked if he was okay, to which the driver replied "Cleveland" and was swatting at the officer's flashlight.

[12] The officer asked the driver where he was and the driver again said "Cleveland" and swatted at the flashlight again. He asked where the driver was coming from and the response was the same. In all of the driver's responses P.C. Patola believed the driver's speech was heavily slurred. He drew the word "Cleveland" out and it sounded like "Creeverund". The third time he said it, it was louder, almost a shout, as if the driver was annoyed and it came out sounding like "Cleela". The driver's feet were in the foot well on the driver's side by the gas and brake pedals. The officer was able to smell a strong stale odour of wine on the driver's breath. He also observed the driver had drool on the front of his sweater.

[13] The officer asked the driver if he was aware he had been involved in an accident to which the driver responded "There's no accident, no problems, no problems." The driver's speech was slurred and he was having difficulty pronouncing his words. The driver seemed frustrated by the officer's questions and the flashlight and asked if he could get out of the car. He reached for the keys and turned off the car. He took hold of the steering wheel and used it to pull himself out of the car. He steadied himself on both feet and reached for the top of the driver's door but missed. He tried a second time to grab the top of the door and did so and shut it. He rubbed his face and eyes and then fell back against the side of the car. There was no one else in the car. The driver was constantly shifting his balance back and forth from one foot to the other.

[14] He was leaning further and further back and it looked as if he would fall so the officer helped him regain his balance. As a result of the officer's observations, he formed the reasonable belief the driver's ability to operate a motor vehicle was impaired by the consumption of alcohol and the driver was placed under arrest for care or control impaired. The time was 6:53 a.m. The driver was identified as Ryan Anderson. He was read his right to counsel and a breath demand and caution. Defence counsel does not take issue with any of these requirements. Mr. Anderson was transported to the 4 District YRP police station and at some point provided two samples of his breath into an Intoxilyzer, producing readings of 180 mg of alcohol in 100 ml of blood at 8:49 a.m. and 184 mg of alcohol in 100 ml of blood at 9:14 a.m.

iv. Evidence of P.C. Andrew Burford

[15] P.C. Burford arrived on scene at 7:02 a.m. to arrange for the towing of Mr. Anderson's vehicle. He observed the rubber tire on the rear driver's side wheel to be off and there was moderate damage to the front end of the Chrysler 300. When he arrived on scene the vehicle was turned off. He entered the vehicle and discovered an open bottle of wine, which was half full, under the passenger side front seat. The officer could not recall if there was a cork or screw top on the bottle of wine but it had some sort of lid on it. The wine was a 2011 Lake and River Chardonnay wine bottle. He seized the bottle.

[16] He got into the driver's seat and turned the vehicle on using the keys, that were in the ignition. He had no difficulty starting the vehicle. The vehicle was in park when the officer started it. The gear shift was in the centre console. He had no difficulty putting the car into drive. He pressed the accelerator and the car moved forward. He did not move the car very far, less than six feet. The officer testified he did not move the car very far because he was concerned about damaging it further as the rear left tire was off the rim. He did not try to move the steering wheel; the car only moved forward. He did not recall any jerking motion or anything unusual or odd about the movement of the car when it moved forward. P.C. Burford testified he just wanted to see whether the car could drive forward. He heard and felt the car respond when he pressed his foot on the accelerator after moving the gear shift to drive.

[17] In cross-examination P.C. Burford testified he got in the car to see if it could be put in motion. He did not measure how far it moved forward. All P.C. Burford can say is the vehicle moved one to six feet forward. He did not try to turn the steering wheel so it moved forward in a straight line. He did not recall hearing the engine sound abnormal.

v. Evidence of Inger Bugyra

[18] The Crown called Inger Bugyra, a toxicologist from the Centre of Forensic Sciences, who was admitted as an expert in the area of alcohol absorption and elimination in a person's body. It was her opinion Mr. Anderson's blood/alcohol concentration between 6:00 a.m. and 6:30 a.m., based on the reading obtained from Mr. Anderson at 8:49 a.m. of 180 milligrams of alcohol in 100 millilitres of blood, would be the projected range of 180 to 235 milligrams of alcohol in 100 millilitres of blood. This projected range is based on four factors: 1. A rate of elimination of alcohol from the blood ranging from 10 to 20 mg of alcohol in 100 ml of blood per hour; 2. Allowance of a plateau of up to two hours; 3. No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident; and 4. No consumption of alcoholic beverages after the incident and before the breath tests.

[19] Ms. Bugyra opined the projected blood/alcohol concentration between 5:00 a.m. to 6:00 a.m. would be 185 to 255 mg of alcohol in 100 ml of blood. It was her opinion the projected blood/alcohol concentration between 4:00 a.m. to 5:00 a.m. would be 195 to 275 mg of alcohol in 100 ml of blood. It was her evidence, the further back one went in time the higher the blood/alcohol readings. Her projections were assuming Mr. Anderson had not consumed any further alcoholic beverages after either the operation of the car or his care or control of the car.

[20] Ms. Bugyra was then asked to assume a male person, weighing 230 pounds and a height of 183 centimetres, had consumed a half bottle of wine, assuming 12 per cent alcohol per volume, 15 minutes prior to 6:30 to 6:53. She testified the projected range would be between 150 to 175 milligrams of alcohol in 100 millilitres of blood at 6:30 to 6:53 a.m. If the consumption of a half bottle of wine was 15 minutes prior to 5:30 a.m., the projected range would be between 150 to 195 milligrams of alcohol in 100 millilitres of blood. The projected range would increase to between 160 and 215 milligrams of alcohol in 100 millilitres of blood, if the time of the incident was 4:30 a.m. The projected range would continue to increase the further back in time one went if the consumption stayed the same.

[21] In cross-examination, Ms. Bugyra was asked to consider the following hypothetical: a male person six feet in height, weighing 230 pounds and consuming four beers (5% alcohol) between 1:00 a.m. to 2:00 a.m. At 2:15 a.m. his reading would be 50 to 60 milligrams of alcohol in 100 millilitres of blood. If the beer was 6% alcohol the reading at 2:15 a.m. would be 65 to 75 milligrams of alcohol in 100 millilitres of blood.

[22] Ms. Bugyra was asked to consider a further hypothetical of the same male consuming the 4 beers (6% alcohol) between 1:00 a.m. and 2:00 a.m. and then consuming a bottle and a half of wine (assuming the bottle is 26 oz.) between 2:00 a.m. and 5:00 a.m. It was Ms. Bugyra's opinion the male would have a projected range at 5:15 a.m. of 160 to 200 milligrams of alcohol in 100 millilitres of blood. Ms. Bugyra was asked to take the same hypothetical scenario involving consumption of a bottle and a half of wine and determine the projected range at 8:49 a.m. It was her opinion the projected range would be 90 to 165 milligrams of alcohol in 100 millilitres of blood.

vi. Evidence of Terrence Hack

[23] Mr. Terrence Hack, a licensed mechanic at Active Green and Ross for approximately five years, examined Mr. Anderson's Chrysler 300 to determine the damage it had sustained. It was his evidence, when he hoisted the vehicle, the driver's side tire and outer part of the rim fell off, leaving the hub of the rim still attached to the car.

[24] Further examination of the driver's side front tire revealed the lower control arm on the driver's front sway bar was bent. A further area of damage was to the rear driver's side C-V shaft and sub-frame, which was bent in towards the centre of the car. These two areas of damage can be seen in the photo, which is marked Exhibit 6.

[25] Mr. Hack attempted to start the vehicle and there was no reaction at all, it would not start and the engine did not turn over. The vehicle was brought to his shop on January 21, 2013. An estimate of the work and parts required to fix the vehicle was filed as Exhibit 7. Mr. Anderson knew Mr. Hack because of previous cars he owned that he had repaired at Mr. Hack's garage.

[26] In cross-examination, Mr. Hack testified there was no oil in the car when he received it and the engine was completely seized. The vehicle just came on a tow truck but Mr. Hack has no idea where it came from. The tow truck actually had to put the vehicle on the hoist in the garage as it could not be pushed to the hoist. The whole bottom of the car was soaked in oil. He does not know what condition the vehicle was in after the incident which damaged it.

vii. Evidence of Ryan Anderson

[27] Ryan Anderson testified he finished his work around 12:30 a.m. at the Holiday Inn and then went to a friend's house at 36 Islington Woods in Woodbridge. It took him 25 minutes to drive from his work at Carlingview and Dixon Road, which is by the airport. He arrived around 1:00 a.m. While he was there he discussed property values in Woodbridge as his primary job is that of a realtor. They also were drinking beer. Mr. Anderson testified he did not have anything to drink of an alcoholic nature prior to visiting his friend, Danny Bhawa.

[28] He testified he drank four European beers but he does not recall the strength. He was at his friend's house for an hour and ten minutes at the most. He did not feel impaired when he left and testified he did not believe he was impaired. He felt comfortable driving his car home. His house is less than a kilometre from Mr. Bhawa's house. He drove northbound on Islington and the street he turns onto would be Sonoma Boulevard, which is his subdivision.

[29] As he came to the intersection he began to slow down and frisk himself to get his cell phone. He did not find it in his clothes so he "started digging around the seats and [he] took [his] eyes off the road." He felt a "huge bump" and noticed he had knocked the sign down by mounting the curb. He veered to the right and struck the sign with his front tire. He testified he regained control of his car, the car was vibrating and "it wouldn't take turn or steer like properly," but he "had enough inertia that [he] could clear the intersection." He turned onto Sonoma Boulevard and the car came to a stop on the right side of the road.

[30] Mr. Anderson testified "I was just steering the car and, you know, trying to apply the – the gas and – and brake to – move the car into a location where I'd seen cars parked all the time." The car was responding very badly with "lots of gyrating, lots of rumblings" and the "power was not really getting to the wheels." He turned the car off after it came to a stop and he got out. The front and rear side wheels were completely damaged, the rear wheel had no tire and the rim was scratched and bent. It was his evidence the front tire looked as if it had been sheared. He got back into his vehicle; he had one foot outside on the payment and the other foot on the gas pedal. He was looking at the front tire and saw the hub portion spinning. The car would not move. He tried this for "roughly a minute, not long," and he could see he was not going anywhere.

[31] He searched his car trying to find his cell phone but could not find it. He took several items from the car, removed the keys, locked the doors and began walking home around 2:10 a.m. He believed he was 20 to 25 minutes from his house. The evening was cold and the roads were wet. He started walking and it started raining and then it started to come down so he turned around and ran back to his car. He testified he walked about four minutes towards his house. In cross-examination he drew a red "X" at the point he walked before he turned around and ran back to the car because of the rain. This was approximately a third of the distance to his home.

[32] When he got back into his car he put in his key, turned the car on, turned on the heat and turned on the radio. He testified he was going to wait out the storm and maybe try to go to sleep. He then remembered he had two bottles of wine in his trunk, which was left over from gifts he had given to clients for Christmas. He got out of his car and went to the trunk, in the rain, and retrieved one of the bottles of wine. When Mr. Anderson sat back in the driver's seat, he testified it was his intention to listen to music, drink the wine and either fall asleep or wait until he was able to get home without getting drenched and soaked and face the music with his wife. He got back into the car at 2:30 a.m.

[33] He testified, "I'm listening to radio, I have – I have the wine with me and, um, I start to enjoy the wine." He had the heater on full blast. He was hoping he would fall asleep but it did not happen. After an hour and a half he had finished the first bottle and had to urinate. It was still raining out but he turned off his car, exited it and ran over to the plaza to find a dark corner to relieve himself. He did not want to leave the empty bottle in his car so he took it and threw it away in a waste container.

[34] When he returned to the car he opened the trunk and retrieved the second bottle of wine. He testified he is not a heavy drink and believed he was drunk or close to drunk at this point. He was not going to operate his car; he was just using it for shelter until the light of day. He returned to his car from the plaza around 4:05 a.m. He just wanted to go to sleep as he "was extremely exhausted but he could not find rest." He started the second bottle and did not know for sure how much he drank. He was halfway through it or more and he put it under the seat or between the seats in the centre console. He fell asleep and the next thing he remembers is being wakened up by the police.

[35] He guessed he fell asleep at 5:00 a.m. but then said he really did not know. He heard P.C. Burford's testimony that the officer started the car and moved it forward a short distance and this made Mr. Anderson very upset. He knows for "an absolute certainty there is no way that the vehicle could move." He also knew the Active Green and Ross mechanic said the engine was seized so he believed someone seized the engine. This made him extremely upset. He blamed the officer.

[36] Mr. Anderson was asked by his counsel what his plan was and he said when something opened in the plaza he probably would be able to find a phone or it would have been easier to walk when it was not so cold and rainy. He would find a phone and get his wife or a friend to pick him up or call a tow truck.

[37] Mr. Anderson was asked how much he weighed back on January 13 and he testified he saw on the in-car video the pants he was wearing and he realized he was much lighter then as he cannot fit into those pants now. His counsel advised Mr. Anderson that he told the breath technician his weight was 230 pounds. Mr. Anderson testified he has no way of knowing what he weighed then or now.

[38] In cross-examination, Mr. Anderson testified the plans to go to his friend's house after work were made that same day around 8:00 p.m. when he was at his dinner. He texted his friend using his cell phone. He went by himself and would have arrived around 1:00 a.m. The purpose was to socialize and talk about real estate and housing prices. He had four European beers. He did not tell his wife he was going to Mr. Bhawa's house after he finished work at 12:30 a.m. He did not call her after he made his plans with Mr. Bhawa. It was not a usual thing for him to stop by his friend's house after work. Mr. Anderson agreed his wife would usually expect him home between 1:00 or 1:30 a.m. They had three young children and his youngest child was just six months old. He knew his wife would be worried when he did not return home by 2:00 a.m.

[39] In cross-examination, Mr. Anderson agreed Sonoma Boulevard was not the normal route he would take off of Islington Avenue when he was driving home. He testified, when shown a map of the area, he takes different routes home almost every day. He then testified, for the first time, he was planning to turn onto Decoroso Drive to check on a house he had listed to sell. This is something he remembered doing, 100 percent. He testified this was his daily routine to drive by this house to check on it.

[40] Mr. Anderson recalled hitting the sign at the beginning of the median on Islington Avenue where the left turn lane starts to turn onto Sonoma Boulevard. He got control of his vehicle and made the turn onto Sonoma and then his car stopped by the right curb. He agreed the distance from where his car stopped to his house was about a kilometre. He marked an "X" on the map where his car came to stop on Sonoma. This map was marked as Exhibit 10. He disagreed with the Google maps' estimate of 13 minutes to walk from Islington Avenue to his house because he believed it was a much longer distance. He does not know how fast the Google person walks; he does not know if they are wearing dress shoes or running shoes; he does not know if they are walking in the rain after working 16 hours. He did not believe he could walk a kilometre in 13 minutes unless he was walking at a very brisk gait; it would take him longer.

[41] He talked about carrying eight hours' worth of heavy tables and chairs on hard floors with dress shoes with steel toes; his feet take a brutal beating. He figured at the time it would take him 20 to 25 minutes to walk home from his car.

[42] He agreed he is not a heavy drinker. When the police woke him up he agreed he was intoxicated, tired and just woken up. He agreed at the police station he was impaired by alcohol. His drink of choice when he drinks is red wine or light beer. He testified if he was drinking socially he might drink three or four light beer over a four to five hour period of time. He agreed four beers over an hour would have been a lot for him to drink. This is not something he does on a regular basis. When asked if he could have had more than four beers, Mr. Anderson testified Mr. Bhawa had a 12-pack of beer and there were three of them. This was the first time Mr. Anderson testified Mr. Bhawa's wife was part of the conversation and that she was consuming beer as well. It was his evidence each person consumed four beers in an hour.

[43] Mr. Anderson would not agree he was feeling anything from consuming four beers in an hour. He felt as if he had consumed no beer and that he was totally sober. He was capable of driving and did not feel impaired. He did not feel any effects of alcohol.

[44] He agreed he was in and out of his vehicle three to four times before the police arrived and he was turning the vehicle on and off and turning on the heat and the radio. He agreed the only time he attempted to put the car into gear and see if it would move was right after the collision, after the vehicle came to a stop.

[45] When he left his vehicle to walk home it had just started to rain. He does not actually know how long he walked for but he thought it was about four minutes. He believed the red "X" is about a quarter to a third of the way to his home. When he ran over to the plaza to relieve himself and throw away the empty wine bottle "it was raining hard enough [he] wasn't gonna try to walk home yet." It was "fairly much the same."

[46] He was not in shock after the collision; he was only upset and concerned. Mr. Anderson testified he was very upset his car was damaged and he could not imagine going home and trying to explain to his wife what had happened and the reason why he did not have his car with him. He was concerned how his wife would react so he decided to defer handling those issues for a later point in time, which seemed more attractive than trying to face it wet in the middle of the night.

Applicable Law

[47] This is a case where the presumption pursuant to section 258(1)(a) applies unless the defence rebuts the presumption on a balance of probabilities that Mr. Anderson did not occupy the driver's seat for the purpose of putting the vehicle in motion.

[48] The offence of having the care or control of a motor vehicle was created in 1925. The Supreme Court of Canada defined its purpose in R. v. Whyte at p. 115:

Parliament wished to discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion, while at the same time providing a way for a person to avoid liability when there was a reason for entering the vehicle other than to set it in motion.

[49] The Ontario Court of Appeal has re-iterated that purpose in relation to the statutory presumption of care or control in R. v. Hatfield at para. 18, as "... discouraging intoxicated persons from even occupying the driver's seat ..."

[50] The presumption of "care or control", in section 258(1)(a), provides:

Where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, the accused 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. (Emphasis added)

[51] In order to rebut the presumption, the accused must establish on the balance of probabilities that he or she did not occupy the seat ordinarily occupied by the driver for the purpose of setting the vehicle in motion: R. v. Appleby. The presumption is an evidentiary aid for the prosecution. Rebutting the presumption does not afford a complete defence to the charge. Where the presumption is rebutted, the burden of proof shifts back to the prosecution to establish actual care or control beyond a reasonable doubt without the evidentiary aid. While the intention to set the vehicle in motion is relevant to the applicability of the presumption, it is not an essential element of the care or control offence. See R. v. Penno, at para. 64. When the Crown seeks to establish actual care or control, there is no onus on the Crown to establish beyond a reasonable doubt that the accused intended to drive the vehicle.

[52] Where the statutory presumption applies, the accused must establish on a balance of probabilities that his occupancy of the driver's seat began without the purpose of setting the vehicle in motion: R. v. Hatfield, supra; R. v. Ahuni-Kumi; R. v. Miller; R. v. Szymanski.

[53] Where the statutory presumption has been rebutted, criminal liability may attach where the Crown proves that the acts or conduct of the accused in relation to the motor vehicle could cause the vehicle to become a danger whether by setting the motor vehicle in motion or in some other way: R. v. Wren, which is referred to as actual or de facto control of the motor vehicle. Evidence showing a real risk of danger arising from the interaction of the impaired defendant with the motor vehicle will establish care or control. In order to establish care or control of a motor vehicle, the acts or conduct of the defendant must be such that there is created a risk of danger, whether from putting the car in motion or in some other way: R. v. Wren, supra.

[54] The test for establishing care or control, absent the presumption, is set out by McIntyre J. in R. v. Towes at p. 30, as follows:

… acts of care or control, short of driving, are acts which involve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous. Each case will depend on its own facts and the circumstances in which acts of care or control may be found will vary widely. (Emphasis added)

[55] Recently, in R. v. Boudreault, the Supreme Court of Canada dealt once again with the law of care or control. The Court held that in order for a conviction to flow from an individual's care or control of a motor vehicle under s. 253(1) of the Criminal Code, there must exist circumstances creating a realistic risk of danger to persons or property. Fish J., for the majority, summarizes the essential elements of care or control:

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. (Emphasis in original)

[56] 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, a defendant 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.

[57] Justice Fish cites three ways in which a realistic risk of danger may arise when an intoxicated driver "uses a motor vehicle for a non-driving purpose," identified by the Ontario Court of Appeal in R. v. Smits:

[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.

[58] Justice Fish notes that the "realistic risk" test is a low threshold and a defendant will ordinarily face the "tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case."

Position of the Parties

[59] It is the Crown's position that Mr. Anderson's evidence should be rejected as a result of its many internal inconsistencies. Consequently, the Crown submits Mr. Anderson has not rebutted the presumption under section 258(1)(a) of the Criminal Code and should be convicted because of the application of the presumption.

[60] The Crown argues if Mr. Anderson is successful in rebutting the presumption he should still be found guilty of both charges, beyond a reasonable doubt, as a result of having de facto control of the car when he is found behind the driver's seat. This is as a result of the three realistic risks of danger identified in Boudreault. The Crown submits Mr. Anderson was clearly impaired on his own evidence when P.C. Patola arrived on scene. It is the Crown's submission Mr. Anderson was in a state of confusion, slurring his words and he did not know where he was or that he had been involved in an accident. The car was operable according to P.C. Burford, who determined he could start the car by turning the key in the ignition and it moved forward one to six feet when he applied the brake and moved the centre console gear shift to drive.

[61] It is the Crown's position, the evidence of the mechanic, Mr. Hack, is of no assistance in determining the condition of the motor vehicle at the time the police were on scene, as he did not examine the car until eight days after Mr. Anderson was involved in the accident. The toxicologist, Inger Bugyra indicated the blood/alcohol readings were substantially over 80 mg in 100 ml of blood at the time the officer found Mr. Anderson, either as a result of what Mr. Anderson said he consumed after the accident (one and a half bottles of wine) or as a result of extrapolating the blood/alcohol reading taken at 8:49 a.m. back to the time P.C. Patola arrived on scene, assuming no consumption of alcohol by Mr. Anderson after the accident.

[62] Further, it is the Crown's submission, based on the evidence of the toxicologist, Mr. Anderson would have exceeded 80 mg of alcohol in 100 ml of blood at the time of the accident, when he was operating the car and driving home. It is the Crown's position that Mr. Anderson's evidence of consumption should either not be accepted or should be accepted only to the extent there was a half full bottle of wine under the passenger's seat. If either of those scenarios occurred, Mr. Anderson's blood/alcohol reading at 2:15 a.m., according to the expert toxicologist, Inger Bugyra, would have exceeded 80 mg of alcohol in 100 ml of blood.

[63] The Crown further argues Mr. Anderson's ability to operate a motor vehicle, which he had care or control of, was impaired when the accident occurred. On Mr. Anderson's evidence he was approaching the centre median separating the northbound left turn lane onto Sonoma Boulevard and the southbound lanes of Islington Avenue when he began searching for his cell phone and took his eyes off the roadway. Mr. Anderson had clearly consumed alcohol prior to driving his car to go home. Mr. Anderson said he had consumed four beers in an hour, which he conceded was a lot for him and substantially more than his usual consumption, of three to four beers over a four to five hour period. Further, Mr. Anderson testified he was very exhausted after working his two jobs, particularly his job at the Holiday Inn that required him to move heavy tables and chairs for much of his shift. In all of those circumstances, it is the Crown's submission Mr. Anderson's ability to operate a motor vehicle was impaired by his consumption of alcohol. If his evidence of consuming only four beers is rejected, Mr. Anderson, according to Inger Bugyra, would have needed to consume significantly more alcohol to produce a blood/alcohol reading at 8:49 a.m. of 180 mg of alcohol in 100 ml of blood.

[64] The defence argues that R. v. Pendleton precludes the Crown from relying on Mr. Anderson's admission of driving around 2:15 a.m. when the accident occurred. The Crown submits Pendleton is no longer good law and has been effectively overruled by R. v. Farrant. Further, the position of the defence is Mr. Anderson's evidence of consumption of four beers prior to the accident should be accepted, which would have resulted in a blood/alcohol reading under 80 mg of alcohol in 100 ml of blood.

[65] Mr. Occhiuto submits Mr. Anderson has successfully rebutted the presumption pursuant to section 158(1)(a), which arises as a result of P.C. Patola discovering Mr. Anderson asleep in the car at 6:44 a.m. on Sonoma Boulevard. Mr. Anderson attempted to walk home after the accident but had to retreat back to his car to seek shelter from the rain. The motor vehicle was inoperable as a result of the accident and there was no realistic risk of danger created by the location of the vehicle on Sonoma Boulevard. The defence urges me to accept the evidence of Mr. Anderson and the mechanic, Mr. Hack, respecting the vehicle being inoperable and to reject the evidence of P.C. Burford as he did not record in his notes any details as to the damage sustained by Mr. Anderson's vehicle. Further, because the vehicle was inoperable, the possibility Mr. Anderson might change his mind and decide to drive does not arise, nor does the possibility Mr. Anderson, because of his intoxication, might unintentionally set the vehicle in motion.

[66] It is the position of the defence that Mr. Anderson's blood/alcohol readings at 8:49 a.m. and 9:14 a.m. were a result of Mr. Anderson's consumption of alcohol after the accident at 2:15 a.m., between 2:30 a.m. and 5:00 a.m., and not as a result of Mr. Anderson's consumption prior to the accident.

[67] Mr. Occhiuto submits both charges should be dismissed.

Analysis

[68] It is my view Mr. Anderson's evidence is problematic and internally inconsistent in a number of areas. He testified he did not regularly go to his friend's house after finishing work at 12:30 a.m. He arranged to visit his friend during his dinner break around 8 p.m. on January 12, 2013. He agreed his wife would be concerned when he did not arrive home around 1:00 a.m., yet he did not call his wife to tell her he would be home late. He told me he and his wife have three young children, the youngest being six months old. His reason for visiting with his friend at 1:00 a.m. did not make a lot of sense; namely, to talk about housing prices.

[69] He testified he only had four beers at his friend's house in an hour. When he was questioned by the Crown if he could have consumed more than four beers he advised for the first time his friend's wife was also part of the conversation and she was drinking beer as was his friend. In Mr. Anderson's evidence in-chief there was a clear impression it was just he and his friend consuming beer. He testified he had four beers but he did not indicate how many beers his friend consumed. In cross-examination, he said for the first time he was counting down the beers as it was a 12-pack and three of them each had four beers to drink. It is my view this was an after-the-fact rationalization to support his assertion he only consumed four beers.

[70] There is only Mr. Anderson's evidence as to when he left his friend's house and when the accident occurred as no one witnessed Mr. Anderson strike the road sign at the beginning of the centre median. The first witness to observe Mr. Anderson's car parked on Sonoma Boulevard is Mr. Desmarais, at approximately 6:15 a.m.

[71] Mr. Anderson testified he was driving his vehicle northbound on Islington Avenue around 2:15 a.m. He had consumed, on his evidence, four European beers in an hour at a friend's house, which by his admission was a lot for him. He testified his friend's house was less than a kilometre from his house. He was driving home and he did not feel any effects from the four beers he consumed in an hour. I do not accept Mr. Anderson's evidence he felt no effects from the four beers he consumed in an hour.

[72] Mr. Anderson testified he proceeded northbound on Islington Avenue and his turn was onto Sonoma Boulevard, which he testified was the street into his subdivision. His evidence on this issue changed in cross-examination. When he was shown a Google map showing his subdivision he agreed the route he took on January 13, 2013 was not his normal route to go home. He agreed the most direct route to his home would be to turn left at Rutherford Road to Forest Foundation Drive to the roundabout to his home on Buena Vista Drive. In my view he was evasive in his answers concerning his route home. It was now his position that "almost each day [he] took a different route" home. As Ms. Lee pressed him about why would he turn at Sonoma, which was some distance north of Rutherford Road and really out of his way at 2:00 a.m. when he was trying to get home, Mr. Anderson "volunteered" for the first time he was checking on houses in his subdivision that were for sale by his company to make sure the lights were not on or the sign had not fallen over. As he was describing how he often drove through the neighbourhood checking on listings he testified, "Actually at that time I had a listing that was on Delcoroso, it closed mid-February of 2013." It is my opinion Mr. Anderson's evidence was evasive and contrived after-the-fact justification to try and explain why he had not turned on Rutherford Road, which clearly would be the fastest and preferred route home at 2:00 a.m., particularly when he is over an hour late getting home from his work and has not advised his wife earlier the reason why. In-chief he gave the impression turning onto Sonoma Boulevard was his route home into his subdivision, which was not true.

[73] In his evidence in-chief, Mr. Anderson testified he felt a "big bump" and noticed he had knocked over a road sign as he mounted the curb of the centre median. He was able to steer his car back onto the left turn lane of Islington Avenue northbound and then turned his car onto Sonoma Boulevard and steered it to the north curb and parked it where he had seen other cars parked previously. He testified he checked the damage his car had sustained and then put the car in drive to determine if it could move forward. It did not move. He only tried this one time.

[74] I do not accept Mr. Anderson's explanation for how the accident occurred. Why would he be looking for his cell phone given he was almost home? He had not called his wife at 8:00 p.m. after he made his plans to drop by his friend's house. He testified he did not call his wife from his friend's house because she would have been asleep at that time. There is no reasonable, common sense explanation for why he would be frisking himself to find his cell phone or why he would be feeling around the passenger seat to find it. It is my view this is another after-the-fact manufactured explanation.

[75] It is clear Mr. Anderson's car was operable and capable of being driven immediately after the collision with the road sign at the beginning of the median. Mr. Anderson was able to drive his car, on his own evidence, a little more than 100 meters until he was able to park it close to the north curb of Sonoma. Further, Mr. Anderson was able to turn his car's engine on and off at least three times as well as operate a number of the fixtures inside the car; the heater and the radio. P.C. Burford, minutes after Mr. Anderson's arrest and minutes after Mr. Anderson was found by P.C. Patola sitting in the driver's seat, was able to start the car with the key, put it in drive and move it forward one to six feet. This evidence was not shaken in cross-examination. I accept the officer's evidence as to what he described occurring with the car. I find that Mr. Hack's evidence does not detract from P.C. Burford's evidence. The car examined by Mr. Hack, eight days after the accident, was not in the same condition it was in on January 13, 2013. Mr. Hack could not even turn the car on because all of the oil had drained out as a result of Mr. Anderson's collision. As an aside, I find the fact P.C. Burford turned on the car and moved it forward did not cause further damage to Mr. Anderson's car as alleged by Mr. Anderson.

[76] The most troubling aspect of Mr. Anderson's evidence is what he testified he did after parking his car on Sonoma Boulevard. He was less than a kilometre from home. His wife did not know he had gone to his friend's house. It was an hour and a half later than the time Mr. Anderson would normally be home after working at the Holiday Inn. He started to walk towards his home. He testified he thought it would take him 20 to 25 minutes to walk home from where he parked his car. Mr. Anderson testified when he started walking towards his home, "The evening was cold um, the roads were wet. I think rain was kinda coming and going at that point. There was at – at the – at that point it was starting to rain. Um, it was starting to come down." This statement is internally inconsistent from he thinks the rain was coming and going to it was starting to rain to it was coming down when he first started walking. He started to walk home around 2:10 a.m. He testified the rain started to come down really hard and he had only walked about four minutes. He immediately turned around and made a "beeline back to the car." He testified there was no shelter anywhere so he went back into his car. He started the car with the key and turned on the heater and the radio to wait out the rain.

[77] When Mr. Anderson was cross-examined on why he did not run home when the rain started to come down hard, it is my view he was particularly evasive. Ms. Lee put to him that Google maps calculated a person walking from the intersection of Islington and Sonoma as taking 13 minutes. Mr. Anderson disagreed with this estimate. He did not know how fast the Google person was walking, whether they were wearing dress shoes or if they were walking in the rain after working 16 hours that day. If he was to walk the distance in 13 minutes he would have to walk at a very brisk gait. He then talked about the brutal beating his feet had taken at work carrying heavy tables and chairs for eight hours. It was obvious Mr. Anderson recognized the illogic of his returning to his car when he was so close to his home.

[78] In my view, it does not make logical sense for Mr. Anderson to run back to his car instead of running to his home, which was only 600-700 metres from where he had walked to. It would not take him 25 minutes to walk or run less than a kilometre; however, he was forced to maintain this position to provide an explanation for why he was found in his car by the police. It is my view Mr. Anderson was exaggerating the length of time it would take him to walk to his home. It is clear from his evidence he was going to get completely soaked either direction he went, as it was pouring hard. It was not as if he had the accident several kilometres from his house in the country; he was less than a kilometre away in his subdivision. I do not accept his evidence respecting what he did immediately after the collision with the road sign in terms of his attempt to walk home.

[79] Mr. Anderson's decision to exit his car again to retrieve a bottle of wine to drink, which he fortuitously remembered was in his trunk left over from Christmas gifts he was giving to clients, is completely inconsistent with common sense. On Mr. Anderson's evidence, his car was inoperable, he ran back to his car to get out of the rain, to wait until it stopped and then try to walk home again. He knew his wife would be worried about why he was late coming home.

[80] I do not accept Mr. Anderson's evidence that he consumed one and a half bottles of wine between 2:30 a.m. and 5:00 a.m. In his evidence in-chief, Mr. Anderson testified he retrieved the bottle, opened it, started listening to the radio and he "start[ed] to enjoy the wine." This is a very strange way to express his actions of drinking wine while waiting for the rain to stop so he could walk home. It was his evidence he was "drinking the wine and um, just sort of, I guess, contemplating and sitting and hoping [he] would fall asleep which – which didn't happen." At 4:00 a.m. he testified he had finished the bottle of wine and realized he had to find a place to urinate. So he said he turned off his vehicle, exited it and ran to the plaza across from where he was parked. He testified he found a dark corner to relieve himself. He then testified he did not want to leave the empty bottle in his car so he brought it with him to the plaza and disposed of it in a waste container. Mr. Anderson agreed in cross-examination he was intoxicated after he consumed the full bottle of wine. I do not accept his evidence of consuming a full bottle of wine in an hour and a half and then taking the empty bottle to dispose of when he ran in the pouring rain to the plaza to relieve himself. Again, it is my view Mr. Anderson is engaging in a creative reconstruction of events, which did not occur, in order to provide an explanation for why he was found in his car asleep and for the extremely high blood/alcohol readings obtained by the breath technician at 8:49 a.m.

[81] It is interesting to note that Mr. Anderson in cross-examination testified it was still raining when he ran over to the plaza to relieve himself. When the Crown asked questions about how hard it was raining Mr. Anderson was quick to say, "It was raining. Hard – I mean, it was raining enough that I wasn't gonna try to walk home yet." I do not believe Mr. Anderson ran to the plaza or was waiting in his car for the rain to stop.

[82] Mr. Anderson maintains after he relieved himself and threw away the empty wine bottle, he returned to his car in the pouring rain and opened the trunk to get a second bottle of wine. He then re-entered his car, turned it on with the key and activated the heater and the radio, opened the second bottle and started to drink it. He did not know when he fell asleep or exactly how much he consumed, maybe half or more. He thought he put the bottle in the center console or under the seat. A half full bottle of wine was discovered and seized by police from under the passenger seat of the car. Mr. Anderson may have consumed this half bottle of wine during the early morning of January 13, 2013; however, I do not know when this occurred. It could have occurred prior to or after the accident. It also could have occurred on another day entirely. Given the fact Mr. Anderson had worked 16 hours at two jobs on January 12, 2013, and by his own admission was extremely exhausted, it is unlikely he consumed a half bottle of wine and then had the mental awareness to cap the bottle and put it under the passenger seat. I find it is more likely the bottle would be in the center console or on the passenger's seat if he had been consuming it after the accident.

[83] A further piece of evidence which demonstrates the falsity of Mr. Anderson's assertion he consumed one and a half bottles of wine between 2:30 a.m. and 5:00 a.m. is the evidence of Inger Bugyra. In cross-examination, Mr. Occhiuto provided a hypothetical to Ms. Bugyra which included someone Mr. Anderson's weight and height consuming one and a half bottles of wine at 13% alcohol per volume, between 2:30 a.m. and 5:00 a.m., and then asking her to project the blood/alcohol level at 8:49 a.m. It was her projection the blood/alcohol readings would be between 90 and 165 mg of alcohol in 100 ml of blood, which is considerably lower than the actual breath reading obtained at 8:49, which was 180 mg of alcohol in 100 ml of blood.

[84] Consequently, for all of the reasons set out above, I do not accept Mr. Anderson's evidence of consuming wine after the collision.

[85] When Mr. Anderson was awakened by P.C. Patola, I am satisfied he was confused, incoherent, slurring his words and he had no recollection of being in an accident. He did not know where he was and told the officer he was in Cleveland. He had drool on his sweater. He was unsteady on his feet when he exited his car; he had to steady himself by holding onto the roof of the car and then leaning against the car. The car was running when the police arrived. The heater was on as was the radio. The defence concedes Mr. Anderson was impaired.

Conclusion

[86] I find beyond a reasonable doubt that Mr. Anderson was in care or control of his motor vehicle. This finding can be made on a number of bases.

[87] As a result of my findings of fact and my rejection of the majority of Mr. Anderson's evidence I find he has not rebutted the presumption pursuant to section 258(1)(a). He was found in the driver's seat. He has not satisfied me on a balance of probabilities that after the collision he exited the car and tried to walk home but the rain forced him to re-enter his car with the intention to seek shelter with no intention of setting the vehicle in motion. It was Mr. Anderson's evidence he entered his car intending to drive home after he left his friend's house. I find on the evidence before me that Mr. Anderson collided with the road sign and then drove his car onto Sonoma Boulevard where he remained until he was awakened by the police sitting in the driver's seat. The evidence does not establish when the accident occurred.

[88] There is some question in the caselaw post-Boudreault, when the presumption applies whether the Crown is nonetheless required to prove there was a realistic risk of danger. Cases prior to Boudreault are clear this is not a requirement (see R. v. Amyotte). In R. v. Blair, a post-Boudreault case, Trotter J. held:

Boudreault establishes that, when the Crown seeks to establish actual or de facto "care or control", it is required to prove a realistic risk of danger. It does not follow that, when the accused is unable to rebut the presumption, the Crown must still prove this element.

[89] Justice Trotter continues at para. 14:

There are no provincial appellate court decisions that directly confirm this interpretation. However, the same conclusion was reached in the thoughtful decisions of Fragomeni J. in R. v. Brzozowski, [2013] O.J. No. 2483 (S.C.J.) and Oleskiw J. in R. v. Tharumakulasingam, 2014 ONCJ 362. See also the thorough analysis in R. v. MacKenzie (2013), 2013 ABQB 446, 50 M.V.R. (6th) 119 (Alta. Q.B.), a post-Boudreault case, in which Browne J. held that the presumption in s. 258(1)(a) was left unchanged. As she said at para. 22:

If the presumption did not apply unless the Crown established a 'realistic risk of danger', the presumption would serve no purpose. The Crown would be required to prove that the accused was seated in the driver's seat of a vehicle, an intentional course of conduct associated with the vehicle, and that sitting in the driver's seat created a realistic risk of danger to persons or property. This is the same onus that the Crown would have to satisfy if the presumption did not exist. To interpret the presumption in this way would make it ineffective and essentially meaningless. [emphasis added]

I agree.

[90] Consequently, I find Mr. Anderson had care or control of his motor vehicle at the time P.C. Patola came upon him, asleep, seated in the driver's seat with his car running.

[91] Even if Mr. Anderson had rebutted the presumption, it is my view there was a realistic risk of danger respecting his car. I accept the evidence of P.C. Burford that he put the key in the ignition, started the engine, put the gear shift in drive and pressed the accelerator and the car moved forward one to six feet. I find Mr. Anderson's car was operable. Given Mr. Anderson's intoxicated condition when he was awakened it is a realistic risk he might have decided to put the gear shift in drive and move forward. Further, the driver's door could have posed a realistic risk of danger if Mr. Anderson had awakened on his own and opened it as another motorist was attempting to drive by his parked vehicle on Sonoma.

[92] Consequently, I find the Crown has proven de facto or actual care or control by Mr. Anderson.

[93] As indicated above, I do not accept Mr. Anderson's evidence of his consuming one and a half bottles of wine while seated in his car between 2:30 a.m. and 5:00 a.m. Consequently, the evidence of Inger Bugyra establishes Mr. Anderson's blood/alcohol level at 2:15 a.m., when Mr. Anderson admitted driving and being involved in the collision, or at any time later in the morning would have been significantly greater than 80 mg of alcohol in 100 ml of blood.

[94] It is my view that Pendleton, supra has been overruled by Farrant, supra. I adopt the reasoning set out by Duncan J. in R. v. Pereira, [2008] O.J. No. 646 (Ont. C.J.) at paras. 11-18 (see also R. v. Van Ousterhout, 2004 ONCJ 328, [2004] O.J. No. 5149 (Ont. C.J.), at paras. 92-98). Impaired operation is an included offence in the charge of impaired care or control and operation with blood/alcohol concentration "over 80" is an included offence in the charge of care or control with blood alcohol concentration "over 80". Consequently, as a result of Mr. Anderson's admission that he was operating his car when he collided with the road sign on Islington Avenue and the extrapolation by the toxicologist, Ms. Bugyra, of Mr. Anderson's blood/alcohol reading at 8:49 a.m. back to the time of the driving, I am satisfied beyond a reasonable doubt Mr. Anderson was operating his motor vehicle when his blood/alcohol level exceeded 80 mg of alcohol in 100 ml of blood at 2:15 a.m.

[95] I am also satisfied beyond a reasonable doubt Mr. Anderson's ability to operate his motor vehicle was impaired by the consumption of alcohol. I am cognizant of the test in R. v. Stellato: "If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out." I look to the following pieces of evidence to find impairment. I find Mr. Anderson clearly missed turning his vehicle onto Rutherford Road, which was the quickest route to get to his house. He had worked 16 hours at two jobs and by his admission was extremely exhausted. The accident itself demonstrates a level of impairment. He struck a clearly marked road sign, which was on a raised centre median. He had to drive up onto the median in order to strike the road sign. He continued to drive for 100 metres before he brought his vehicle to a stop by the north curb of Sonoma Boulevard. I find that he had significantly more alcohol in his body that he admitted he had consumed (4 beers would result in a blood alcohol concentration of 65 to 75 mg of alcohol in 100 ml of blood) as Inger Bugyra testified the blood alcohol concentration at 2:15 a.m. would be greater than 195 to 275 mg of alcohol in 100 ml of blood.

[96] Mr. Anderson is therefore found guilty as charged on both counts. The impaired count will be stayed pursuant to the principles enunciated in R. v. Kienapple.

Released: November 27, 2014

Signed: "Justice Peter C. West"