Court File and Parties

Court File No.: 13-238

Date: R. v. Jalali, 2014 ONCJ 86

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Shamsuddin Jalali

Before: Justice S. R. Clark

Charges: Impaired Care or Control/Over 80 Care or Control

Trial held on: October 30, 2013, November 20, 2013, and January 10, 2014

Judgment released on: February 18, 2014

Counsel:

Ms. J. Mathurin for the Crown

Mr. Y. Tahmassebipour for the defendant Shamsuddin Jalali

CLARK J.:

1:0 INTRODUCTION

[1] The defendant is charged with the offences of impaired care or control and over 80 care or control, on January 1, 2013.

[2] This case is about whether the defendant had no intention of driving his car after drinking because he made a plan to have a friend pick him up.

[3] He was found asleep in his vehicle in the middle of a parking lot. The engine was running. A civilian noticed him and contacted the authorities. The police attended and roused him. The officer detected the odour of alcohol. The defendant exhibited many of the usual indicia of impairment. He was arrested and subsequently provided two breath samples, resulting in readings of 160 milligrams of alcohol in 100 millilitres of blood respectively.

[4] The defendant substantially concedes the Crown's case. However, he claims he was not in care or control because he had abandoned any intention to drive. He had called a friend to pick him up. He fell asleep while waiting. Unfortunately, his friend also fell asleep and never did come to get him.

[5] The Crown, on the other hand, submits the statutory presumption set out in s.258(1)(a) of the Criminal Code applies. In any event, the evidence supports a finding the defendant was in actual care or control.

2:0 THE ISSUES

[6] The main issues in this trial are as follows:

1. Is the Crown entitled to the presumption in s.258(1)(a) of the Criminal Code?

2. Has the defendant rebutted the presumption?

3. Even assuming the defendant has rebutted the presumption, has the Crown proven he was in actual care or control beyond a reasonable doubt?

3:0 SUMMARY OF THE EVIDENCE

3:1 The Crown

3:1.1 Cst. Danielle Sterns

On January 1, 2013, at 4:11 a.m., she received a radio dispatch call to attend to a medical assist situation in the vicinity of the intersection of Steeles Avenue and Chinguacousy, in Brampton. She arrived at 4:12. She observed a gold, 2004 Honda parked in a large parking lot in the strip plaza in the southwest corner. It was parked diagonally in the middle of the lot. There were no other cars around. It was near an LCBO store. The only other business open at the time was a Tim Hortons drive-thru some distance away. The information she received was that a male was sleeping while sitting in the driver's seat, possibly intoxicated. A civilian had called in, believing the man had been "knocked out" for the last 15 minutes. The civilian had apparently knocked on the window and opened the car door, but the suspect did not respond. The officer heard the engine running and could see exhaust coming from the car. The keys were in the ignition. She could hear loud music inside. The suspect was the sole occupant. He was slumped against the driver's door and appeared to be asleep. She opened the door and used her right hand to prop him up to prevent him from falling out. She could smell the odour of alcohol from inside the vehicle. She woke him up by rubbing her knuckles along his collarbone. He opened his eyes and seemed confused. He reacted with a blank stare as if he was unaware of what was going on around him. She asked him to turn the car off. He stared blankly at her and did not initially respond. She asked him again. He then turned the music down and "fiddled" with the windshield wipers and turn indicator signal. She told him again to turn off the engine. He did and then gave her the keys. She was not sure if he was wearing his seatbelt. She believed the car had an automatic transmission and was in park. She did not notice if the parking brake was on. The running lights on the outside were on. She observed his belt undone. He was dressed in business clothes. The top 2 or 3 buttons of his dress shirt were undone. She described him as "out of it", meaning unaware of what was happening and disoriented. She formed the opinion his ability to operate a motor vehicle was impaired by alcohol at 4:19 a.m. and arrested him for same. On a scale of 0 to 10, from having no alcohol in one's system to being in a state of unconsciousness, she believed he was a 7 or 8. She then followed all the usual and necessary investigative steps after arrest. A second officer arrived. An ambulance attended and offered assistance, however the defendant declined. While transporting him to the police station he pleaded with her to just give him a ticket and not suspend his licence. The defendant spoke to duty counsel at the police station. She turned him over to the qualified breath technician (QBT), Cst. Bell, and provided him with her grounds for arrest. Subsequently, she served the necessary documentation on the defendant.

3:1.2 Cst. Robert Bell

He has been a police officer since 2009, and a QBT since October 2012. This was his 33rd breath test investigation. He, too, formed the opinion the defendant's ability to operate a motor vehicle was impaired by alcohol. The defendant displayed "classic signs" including a flushed face to the cheeks and nose, and had watery and bloodshot eyes. He responded to questions slowly. He seemed depressed. His coordination was slow when taking the mouthpiece out of the plastic package. The officer issued the breath demand at 5:08 a.m. He was satisfied the instrument was in proper working order.

The video/DVD of the defendant in the breath room was played. The Court made the following observations:

• the officer was very professional throughout.
• when he asked the defendant if he understood he had the right to contact a lawyer, he responded with words to the effect, "My life is ruined".
• when the officer told him he was not obliged to say anything, he said he wasn't driving. He was inside his car and was sleeping and he took his time.
• in between breath tests the officer asked the defendant if he had been driving a car today. He responded, "No".
• when asked when he was last driving, he respondent, "I wasn't. Last year. 5:30 p.m." (meaning the day before since this was now New Year's day).
• he explained he had been at his friend's place. They drove him to his car and he slept there. He was not planning on going anywhere.

3:2 The Defence

3:2.1 The Defendant

He received a call from a friend to go to a New Year's eve party. He made arrangements to have the friend pick him up in the parking lot where he left his car. While at the party, he remembered he left his cell phone in his car. A man he met at the party he was driving back to the Brampton area and offered to drop him off. His intention was to call his friend, Edris, to pick him up in the parking lot and drive him home. He was not comfortable asking the person driving him home from the party to drop him off at his home. If his friend Edris was not available to take his call, he would make arrangements to call a taxi. Edris apparently lived close to the plaza. He described him as a close friend who had helped him in the past. He told Edris he had a few drinks and that someone had dropped him off at the plaza. He asked Edris to pick him up. He responded with words to the effect, "Yeah, why not. I'll be there in 10 minutes". The next thing he recalled he was awakened by the police. He had fallen asleep while waiting for his friend. He subsequently discovered Edris never did come to get him because he, too, had fallen asleep. They spoke with one another after he returned from the police station later that morning. He explained he was shocked when he saw the police. He told the officer he was just sleeping. He also told the officer he was taking his time because he had called his friend who told him he was on his way. Therefore, he was no longer in a hurry. It was less than a 3 minute drive from the plaza to his home. He did not want to risk it, which is why he remained and called his friend. In order to engage the car to drive it, he would have to press a button on the gearshift which otherwise locked it in park. If he had woken up and neither the police nor his friend were there, he would have called a taxi. Some of his cell phone records were tendered as an exhibit. He tried to obtain records to show he made a call to his friend at the relevant time, however, he was only provided with a record of calls made after January 4th.

On cross-examination, he explained he was a light drinker, and only consumed alcohol once or twice per month when with friends. He acknowledged he was intending to drink that evening because it was New Year's eve. The Crown challenged him as to why he would not have just left his car at home and had his friend pick him up there. He explained he didn't necessarily have a plan to come back home that evening and may have stayed over at another friend's place. When he realized he could get a ride, he decided he would go back to his car and then call Edris. He disagreed with the Crown's suggestion he asked to be dropped off in the parking lot because he was intending to drive his own car home. This is why he called Edris. They spoke often, at least weekly. They also worked out in the gym together and went on holidays together. The Crown suggested he could have called Edris from the party, since he knew he was not going directly home. He explained he did not remember Edris' phone number. It was always at his disposal on his cell phone, but he never memorized it. He was also challenged why he told the officer in the interview room at the police station at least three times he was taking his time. He meant he was waiting to be picked up by his friend. The Crown challenged him further, however, because he never told the officer he was waiting for his friend. He explained he was disturbed, worried, and concerned because he had just been woken up and his mind was not working. The Crown reminded him, however, that by the time he was speaking to the officer in the station the investigation had gone on over a 2 hour period. He was also asked why he was able to tell the officer about not intending to drive but never said anything about his apparent plan to call his friend or a taxi. He explained he could not think properly at the time. He acknowledged he told the officer he had to work the next day, but this was not true. He was upset, disturbed and just gave the officer any answer. The Crown suggested there was no way he would mix up the day he was supposed to be working since he gave such detail about his work and how he was so happy to have a job to be able to help his family. He was then asked a series of questions about his phone records. He did not have an explanation why there were none for January 1st. He disagreed with the Crown's suggestion no call was ever made to his friend. He contacted the phone company on January 7 in an effort to obtain the records. Since that time, he has requested them on many other occasions, but for some reason they could not be located. Although he has had almost a year to obtain them, they have not been produced. He agreed he uses his cell phone on a regular basis.

3:2.2 Ahmed Edris Rahmani

He has been friends with the defendant for approximately 3 years. He was out with his girlfriend at a restaurant on New Year's eve. He dropped her off later and then returned home and went to sleep. He does not recall the time, but received a phone call from the defendant saying words to the effect, "I'm here. Please come and pick me up". He told the defendant, "Okay. I will be there in a few minutes". The defendant gave him the address where he was to go. They had spoken earlier that evening and made arrangements to be picked up. He testified, however, the defendant did not tell him why he wanted to be picked up. When asked if it was normal for him to receive calls from the defendant in the middle of the night for a ride, he said it was. He has done this several times in the past. After he hung up the phone, he fell back asleep. Later that morning he spoke with the defendant and discovered what had happened.

On cross-examination, he explained he and the defendant live within a 10 minute drive of one another. At the time of this incident he had been working for 2 or 3 months at a juice factory. He was scheduled to work on January 1st starting at 9 a.m. He acknowledged when he and the defendant spoke earlier in the evening on December 31, the defendant did not mention anything to him about his plans. He wanted to do this favour for the defendant, who had done so many favours for him in the past. The defendant had previously picked him up from work if he did not have his own car, and would help him financially when he was not working. He agreed he did not want the defendant to be convicted of a crime. He described him as his best friend. He was not aware of any of the defendant's efforts to provide phone records of any calls made on December 31st or January 1st between them. He did not go to the parking lot after he woke up. He acknowledged he has never fallen asleep before, when asked by the defendant to pick him up.

4:0 THE POSITIONS OF THE PARTIES

4:1 The Defence

[7] Defence counsel asks the Court to consider the following points:

1. The defendant has rebutted the presumption he was occupying the driver's seat with the intention of driving. He was merely trying to keep warm while waiting for his friend to pick him up.

2. This was a reasonable and objectively concrete plan in furtherance of him getting home without operating his car.

3. He had been able to rely on his friend Edris in the past, and there was no reason why this would not have been the case again on this particular evening.

4. Although his friend fell asleep, which effectively foiled the initial plan, the Court should accept the defendant's evidence that had he woken up and his friend was not there, he would have called a taxi.

5. The Court should not draw an inference against the defendant who tried to produce his phone records to confirm the call or calls made to his friend. It is highly improbable he would go 4 or 5 days without using his phone. He testified he uses it daily. Therefore, the Court should accept his explanation.

6. There was no realistic risk the defendant would unintentionally put his car in motion. It was away from any buildings. It was in an empty parking lot. There were no cars around. In any event, in order to put it in motion, even accidentally, would require him placing his foot on the brake, then putting it in gear, and even putting on a seatbelt before it would start.

7. One's level of impairment is a relevant consideration when determining whether an individual might exercise bad judgement and change his mind and drive the car after all. Although impairment was "noticeable", and although the officer indicated the defendant was a 7 or 8 on a scale of 10, he acknowledged some of the indicia could have been attributable to the defendant having just been woken up from a deep sleep.

8. Keys in the ignition and the engine running are factors to be considered. However, in context, the defendant was merely trying to keep warm until his friend came to pick him up. Note he was not wearing a jacket.

9. The defendant was only a 3 minute drive away from his home. Clearly, if he intended to drive he would have done so. Instead, he knew he shouldn't and waited for his friend.

10. The Court should accept his explanation why he felt he could not impose on the person who dropped him off at the parking lot to drive him home.

11. The totality of the evidence points to there being no risk whatsoever the defendant was initially intending to drive, or that he would have changed his mind.

12. Although the presumption may apply since the defendant was sitting in the driver's seat with the car running, he has rebutted this. He had an objectively realistic plan. Although it failed, this was through no fault of his own. He even had a back-up plan to call a taxi.

13. In all the circumstances, the Crown has not proven the essential elements of each offence beyond a reasonable doubt.

4:2 The Crown

[8] The Crown asks the Court to consider the following points:

1. The presumption has clearly been met. He was sitting in the car with the engine running.

2. The defendant's so-called plan was unrealistic. He told the officer on the video he was taking his time, but never specified why. He never articulated he was waiting for his friend. He was able to give the officer details about his job but somehow, never mentioned the plan. It is suspect he failed to provide the most important details. Therefore, the Court should be left with the inevitable conclusion no such plan existed.

3. His exchange with the QBT exposes his lack of a plan. He was merely trying to "cover himself" in an effort to convince the officer he wasn't going to drive.

4. The defendant's evidence about not being able to produce records to confirm phone calls at the relevant times is not plausible.

5. There was a realistic risk the defendant may have changed his mind and even unintentionally set the car in motion, either through negligence or otherwise. It is a low threshold for the Crown to establish this in accordance with the Boudreault principles.

6. The defendant's level of impairment was significant. His demeanour, behaviour, and slurred speech continued even after having been woken up. The Court should note the breath readings were twice the legal limit.

7. His explanation about why he did not feel he could ask the person who drove him to the parking lot to merely carry on for another 3 minutes to drop him off at home makes no sense.

8. It is also telling the defendant had a cell phone but never showed it to the police to confirm he had called his friend.

5:0 ANALYSIS

5:1 Care or Control – General Principles

[9] S.258(1)(a) of the Criminal Code provides that where a person is found in a driver's seat while intoxicated, he is presumed to have occupied it with the intention to drive.

[10] Where the statutory presumption applies, the defendant must establish, on a balance of probabilities, his occupancy of the driver's seat began without the purpose of setting the vehicle in motion.

[11] Where he did not occupy it in such a manner, guilt may still be proven by evidence of actual, as opposed to presumed care or control.

[12] In cases where the vehicle is stationary, the Crown may prove care or control by acts which involve some use of the vehicle or its fittings and equipment, or some course of conduct associated with the vehicle that would involve a risk of putting it in motion so it could become dangerous.

[13] The phrase "care or control" signifies three possible scenarios as follows:

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, as opposed to a remote possibility, of danger to persons or property. The risk of danger, as opposed to the intention to drive, is an essential element of the care or control offence.

[14] In the case of R. v. Boudreault, 2012 SCC 56, the Supreme Court of Canada held that in the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways:

1. An inebriated individual who initially does not intend to drive may later, while still impaired, change his mind and proceed to do so.

2. An inebriated person behind the wheel may unintentionally set the vehicle in motion.

3. Through negligence, bad judgement, or otherwise, a stationary or inoperable vehicle may endanger persons or property.

[15] The risk of danger must be a realistic one, and is a matter of fact for the Court to determine. The Court must examine all of the relevant evidence to this end and may consider a number of factors. A realistic risk of danger will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. To avoid conviction, the defendant will face a tactical necessity of adducing evidence tending to prove the inherent risk is not a realistic one.

[16] An "alternate plan" to ensure safe passage home may eliminate any realistic risk of danger, provided the plan was objectively concrete and reliable, and was, in fact, implemented by the defendant.

[17] Where there is conflicting evidence on core issues, the Court must assess the credibility and reliability of that evidence.

[18] If the Court believes the evidence of the defendant, he must be acquitted. If the Court does not believe his evidence, but is left in a reasonable doubt by it, he must also be acquitted. Even if the Court is not left in doubt by this, he can only be found guilty if it has been proven beyond a reasonable doubt by the evidence the Court has accepted from the various Crown witnesses, and any other evidence. Mere disbelief of the defendant's evidence does not satisfy the burden of proof upon the Crown. In other words, to use disbelief of the defendant's evidence as positive proof of guilt by moving directly from it to a finding of guilt constitutes a legal error.

[19] The Court must not arrive at its determination based on choosing between the defence and prosecution evidence. Rather, it is whether, on the basis of the evidence as a whole, the Court is left with a reasonable doubt as to the guilt of the defendant. The Court must be satisfied on the totality of all the evidence there is no reasonable doubt as to the guilt of the defendant on each count.

[20] The Court may believe none, some, or all of any witness' evidence. The Court is also entitled to accept parts of a witness' evidence and reject other parts. Similarly, different weight may be attached to the evidence.

5:2 Issue 1 - Is the Crown entitled to the Presumption in s.258(1)(a) of the Criminal Code?

[21] The Court is satisfied the Crown has proven beyond a reasonable doubt the defendant occupied the driver's seat of the motor vehicle while impaired, or while his blood alcohol concentration was over the legal limit.

[22] Accordingly, the statutory presumption applies.

5:3 Issue 2 - Has the Defendant rebutted the Presumption?

[23] The burden is on the defendant to demonstrate on the evidence that it was more likely than not he occupied the driver's seat of his vehicle for a purpose other than driving. The Court has considered the evidence as a whole in deciding this issue.

[24] The Court finds that the defendant's evidence is less than credible. His rationale for driving and leaving his car in the parking lot to meet friends to then go to the party makes very little sense in the grand scheme. Furthermore, his explanation about being dropped off by the person he met at the party as opposed to asking to be dropped at his home, although a little more understandable, strongly suggests he intended to drive it the short distance home. His so-called plan was fraught with difficulty from the outset. If he knew he was going to be drinking that night and wasn't sure if he was going to stay overnight at a friend's place or not, his plan should have started and ended with his car remaining at home. Furthermore, his idea of calling his best friend in the middle of the night to pick him up to drive him for 3 minutes to his home is patently absurd. To be more charitable, it is at least an illogical and ill-crafted plan. It was inconsiderate of him to impose on his friend's goodwill by waking him up and getting him out of bed to come and get him. How ironic he wasn't prepared to impose on a person who willingly gave him a ride from the party when he was so willing to inconvenience his friend. His evidence about not being able to provide phone records to confirm the call he made to his friend defies logic and common sense. Of course, the Court is quite mindful the defendant doesn't have to prove anything in his trial. That said, once he puts this matter in issue, the Court is entitled to consider this evidence, or absence of evidence in the overall evaluation of his credibility and reliability. The Court also finds he had every opportunity to tell the police about his so-called plan, notwithstanding the confusion and the stress he said he was experiencing. In the final analysis, the Court finds his evidence of a plan is merely a revisionist "spin" of what he wished he had done, in an effort to advance a legal defence to these charges.

[25] A few words should be said about the evidence of the defendant's friend, Edris. The gentleman was well-intended, but it is clear he was trying to follow a "script" which was badly crafted. He and the defendant couldn't get their stories straight. Edris was clearly biased in favour of the defendant to assist him in avoiding criminal liability for his actions. For him to have fallen asleep after receiving such a phone call from his friend is yet another piece of evidence that stretches credulity. It will be remembered that Edris was supposed to work at 9 a.m. that morning at a job he had only had for 2 or 3 months. Surely he would not have so readily agreed to pick up his friend. Even if he did, he apparently told the defendant he would be there in 10 minutes. The rhetorical question that emerges is, how does someone then fall back to sleep when the whole purpose of the exercise was to act immediately?

[26] In all the circumstances, the Court is not satisfied the defendant has rebutted the presumption, on a balance of probabilities.

5:4 Issue 3 – Even assuming the defendant has rebutted the presumption, has the Crown proven he was in actual care or control beyond a reasonable doubt?

[27] The following factors could support the argument that the defendant was not in actual care or control as follows:

1. His car was parked in a parking lot, well off the travelled portion of the roadway, and out of harm's way to others using the main roadways.

2. He had no immediate intention to drive at the time the police arrived.

3. He had apparently formulated a plan to call his best friend to come and pick him up.

[28] On the other hand, there are a number of factors that tend to prove actual care or control as follows:

1. The car was operable.

2. He was in an altered state which increased the likelihood of making poor and dangerous choices and decisions.

3. The keys were in the ignition.

4. The engine was running.

5. He had the present ability to set the car in motion.

6. He was only a three minute drive from his final destination.

7. He was the driver and sole occupant.

8. His "plan" was not concrete or reliable since his friend never did come to pick him up.

9. Had the police not intervened, he could have woken from his sleep and on his own, quite readily decided to drive home, having the present ability to do so.

[29] Balancing all of these competing factors, the Court finds, even if the statutory presumption had been rebutted, the Crown has proven actual care or control beyond a reasonable doubt. The defendant presented a realistic risk of danger to the public on the first prong of the Boudreault test, which is that an inebriated individual who initially does not intend to drive may later, while still impaired, change his mind and proceed to do so.

6:0 CONCLUSION

[30] The Court is ever vigilant to avoid making determinations and interpretations which would cast too wide a net of criminal liability in care or control scenarios. The case law has continued to emphasize while the general principles are easily stated, their application to particular fact situations have proved difficult.

[31] This notwithstanding, the Court is satisfied the Crown has proven the essential elements of both charges beyond a reasonable doubt. Findings of guilt are made.

[32] The Crown will advise which count should be the subject of a formal conviction. On the basis of the Kienapple principle, a judicial stay will be entered on the other.

Released: February 18, 2014

Justice S.R. Clark