Court Information
Ontario Court of Justice
Date: March 10, 2015
Court File No.: Central East - Newmarket 4911-998-13-07340-00
Parties
Between:
Her Majesty the Queen
— And —
Aleksandr Gulak
Before: Justice David S. Rose
Heard on: December 11, 2014, January 16, and February 24, 2015
Reasons for Judgment released on: March 10, 2015
Counsel
J. Lee — counsel for the Crown
B. Bytensky — counsel for the defendant Aleksandr Gulak
Judgment
ROSE J.:
[1] Aleksandr Gulak is charged with Impaired care or control of a motor vehicle, and also Over 80 care or control of a motor vehicle on 22 September 2013. Date and Jurisdiction, as well as his BAC readings of 180 mg. alcohol/100 ml. of blood at 8:48 a.m. and 175 mg alcohol/100 ml. of blood at 9:10 a.m. were conceded. The defence also conceded the read back of the readings. Further admissions were made, which are duly recorded in Exhibit 10 from this trial.
[2] Three witnesses testified at this trial.
[3] Jagmeet Dhinsa testified that on September 22, 2013 he was driving east bound along Freedom Trail in Maple going to work. It was around 7:00 a.m. when he saw a vehicle on a tree. He asked the two occupants if they were ok. They asked him if he had cables. At that point both persons were beside the vehicle, and he did not see anyone inside the vehicle. They were about both 6 feet tall and about 160 lbs. One had white pants and a white tank top. It is admitted that this was Mr. Gulak, who was also wearing brown loafers and white socks. His pants had dirt on them and his fly was not done up. The other man was admitted to be Vladimir Prihodko, who was dressed in grey pants, and a striped polo shirt.
[4] Mr. Dhinsa said he didn't have a cable, and he then continued to drive east on Freedom Trail where, it is admitted, he called 911 at 7:01a.m. Mr. Dhinsa stopped his car and looked at this scene west from his driver's window. At that point he was about 100 metres away from the two men and the car he had just seen. He identified the car on top of the tree as being a silver BMW. The male in the white clothing got into the driver's door and attempted to put the vehicle in reverse. Dhinsa saw the white vehicle reverse lights go on and off 2 or 3 times. He saw no other lights illuminated on the car. After that the man got out of the BMW. Dhinsa testified that he was still on the phone with 911 when he got out of the car. The police arrived, and at that point Mr. Gulak was outside the car.
[5] For a late September morning, it was really cold outside but Mr. Gulak was dressed lightly. He was stumbling. According to Mr. Dhinsa the accused was in the driver's seat of the BMW for a couple of minutes. In cross-examination he admitted that he didn't see any exhaust, didn't see the car move, or any other lights go on and off. He didn't see the car key, and didn't see anything get thrown away. He was pressed by Mr. Bytensky about the white light he saw on the rear of the car and insisted that he saw a white light. From the time he arrived until the time he drove away it was maybe ten minutes. It was admitted that Mr. Dhinsa terminated his call to 911 at 7:09 a.m.
[6] The formal Admissions included the fact that PC Brodhagen arrived on scene at 7:07 and spoke with the two males, one of which was Mr. Gulak. She noticed the following indicia of impairment on the accused:
- strong odour of alcoholic beverage from his mouth;
- extremely unsteady on his feet;
- swaying while stationary;
- talking in circles and unable to give a straight answer; and
- his eyes were bloodshot.
[7] Brodhagen saw that two wheels of the BMW were flat, and the car was stuck. She testified that the car could have been put in motion if it was unstuck, although she did not try and put it in motion. She didn't see anyone try and turn it on.
[8] In cross-examination PC Brodhagen said she knows that it ultimately took a tow truck to extricate the BMW, and her first train of thought was that it couldn't be driven. She wrote up her notes that if the vehicle was unstuck it could be driven. She admitted that she never drove the car, and had no idea what the damage was.
[9] The accused Aleksandr Gulak testified. The silver BMW is his father's car. On September 21, 2013 he attended his friend Vladimir Prohodko's wedding, which ended up at Mr. Prohodko's parents' house. Mr. Prohodko also goes by the name 'Vova'. The house is located a few blocks from where the silver BMW came to rest. He had driven to his friends' parents' house where a wedding reception/party took place. About midnight or 1:00 a.m. a friend of his, Andre, came over to the party at Mr. Gulak's invitation. Sometime later, in the early morning, Andre asked for the key to the car to get home. Mr. Gulak was himself severely drunk, but he gave Andre the key. He wasn't sure why he did that. He later got a call from Andre who advised that he had put the car up a concrete curb and onto a tree. Andre said he was leaving the scene and left it to Mr. Gulak to sort out. When he learned that the BMW was on a tree Mr. Gulak went right away, and got to the scene in about 10 – 15 minutes. He later returned to the house to wake up his friend Vova, who then came down to the scene of the accident in his Subaru. This was about 10 – 15 minutes before Mr. Dhinsa drove by (which would be approximately 6:45 – 6:50 a.m.). Vova and Mr. Gulak then tried to move the silver BMW. He agreed that he had asked Mr. Dhinsa for a cable to pull out the BMW. In his words, he didn't want to leave it stuck there. He wanted to put it back on the road, and park it by the sidewalk. Vova and Mr. Gulak had initially tried pushing the BMW but that failed. They then used Vova's car to push the car by driving into it, but that didn't work either. In Mr. Gulak's evidence he was out of options and was going to call the tow truck but there was no time.
[10] Mr. Gulak admitted that after they could not push the BMW out onto the road, he entered the car via the driver's seat. He was looking for keys. He did that just to get the keys to lock up the car. He admitted that he possibly touched the gear shift when looking for the keys. He denied putting the car into reverse.
[11] Mr. Gulak testified that when the police came he told them that someone took the car and didn't know the person. He told PC Alexander that "some guy drove my car and then bam". He explained that his English isn't very good and he didn't remember a Police Constable asking whose car it was.
[12] Mr. Gulak was asked about the video tape from the scene of the accident which depicts him holding a Tim Hortons cup of Tea. He had no real explanation for why he had that in his hands. There is another Tim Hortons cup in the screen on the sidewalk.
[13] About 4 – 5 days after his arrest he met up with Andre to get the key back. That meeting happened at a TD Bank parking lot at Bathurst and Steeles. He got there, he said, by bus from his home in Georgina. Mr. Gulak testified that at that meeting he spoke with Andre about getting money for the damage to his car and the tow, but Andre would not pay. Mr. Gulak testified that he got the key to the BMW back from Andre but nothing else. That was the last time he ever saw Andre, because Andre left the country. Mr. Gulak says that he told Andre that he had been arrested, but that was the extent about their conversation other than money concerns.
[14] At 8:48 a.m. and then at 9:10 a.m. on 22 September 2013, Mr. Gulak provided breath samples to a Qualified Breath Technician who obtained readings from an Intoxilyzer 8000C of 180 and 170 mg. alcohol in 100 ml. of blood. The BAC readings were admitted to be between 170 and 220 mg. of alcohol in 100 ml. of blood between 6:33 and 7:03 am. There is no issue at trial that Mr. Gulak's Blood Alcohol level exceeded the legal limit during those times. It is also admitted that at the relevant time Mr. Gulak was impaired sufficient to meet the test for impairment in R. v. Stellato, [1994] 2 S.C.R. 478.
[15] Photographs were entered as exhibits at this trial which show a BMW 323 stuck in the boulevard of Freedom Trail. That road appears to be a broad avenue which feeds side streets containing houses. The BMW itself has its left rear tire on the boulevard side of the curb dug into the grass by about 3 inches. It is positioned diagonally between the curb and the sidewalk. It has clearly gone off the road in a very haphazard way. The right rear tire is perhaps 5 inches into the dirt. It is on a small tree which was clearly flattened when the BMW ran it over. There are muddy tire tracks to the driver's side of the BMW which run parallel and to the front of that car. There is also dirt on the sidewalk directly in front of the BMW consistent with futile efforts to move the BMW off the curb and spinning wheels in the dirt. In one picture the BMW has a tow ring protruding from the rear bumper. That image also has two Tim Hortons cups in it: one on the road which appears to have a tea bag tag dangling from it; and another which is on the sidewalk beside the BMW. Two pictures show small compression damage to the front bumper consistent with a car moving into the BMW in an attempt to shove it to the rear. That damage is in line with the muddy tire tracks which run from the side of the BMW to the front. I cannot say from the pictures that the BMW is otherwise damaged. If the tires are flat, it is not readily apparent from the pictures. Other than its location the car appears to be in reasonable condition for one that looks to be about 10 years old.
[16] The issue in this trial is whether Mr. Gulak was in care or control of the silver BMW between 6:33 and 7:03 a.m. on September 22, 2013. Ms. Lee asks me to consider two possible ways to establish liability on the part of Mr. Gulak. One is via the presumption of care or control under s. 258(1)(a), and the other is by proving de facto control. I heard much in the way of submissions on both of these issues.
[17] Has the Crown proven that the presumption of care or control applies to Mr. Gulak under s. 258(1)(a)?
Principles
[18] Mr. Bytensky urges me to find that, in law, because the BMW is inoperable his client is entitled to an acquittal if the Crown cannot prove a realistic risk of danger.
[19] Where the accused is occupying the driver's seat of a motor vehicle, s. 258(1)(a) creates a legal presumption that the accused is in care or control of that vehicle. That presumption is rebuttable where the accused can prove on a balance of probabilities that he or she did not occupy the driver's seat for the purpose of setting the vehicle in motion (see R. v. Smits, 2012 ONCA 524 at para. 47). That much is straightforward. Mr. Bytensky's argument is that, even if the accused does not rebut the presumption in s. 258(1)(a), the Crown must still go further to prove a risk of harm. That argument stems from R. v. Boudreault, 2012 SCC 56, where Fish J. commented at paragraphs 38 - 39 regarding whether a conviction for impaired care or control necessarily follows when there is no realistic risk of danger in a particular case. In R. v. Blair, 2014 ONSC 5327, Trotter J. quoted (at para.13) from those paragraphs and said,
However, this passage must be considered in context. The majority in Boudreault was merely describing the operation of the presumption in the light of its holding in Whyte. There is nothing in the language of Boudreault that suggests that the Court modified or altered the operation of the presumption by requiring the Crown to go further and prove a realistic risk of danger when the presumption stands rebutted. When the presumption is not rebutted, all elements of "care or control" (both the mens rea and actus reus components, as described in Smith, paras 49 to 51) are deemed to exist.
[20] Notwithstanding Mr. Bytensky's able argument that I should not follow Blair, I do follow Blair. Clearly Blair is a Summary Conviction Appeal decision which is binding on me qua Summary Conviction trial judge. Subject to my comments below, as a matter of stare decisis I am not at liberty to ignore it. I would also add that Justice Trotter's explanation makes sense. Parliament could have added a 'realistic risk of danger' requirement to the language of s. 258(1)(a) but didn't. Surely the reason why is that the very presence of an impaired or Over 80 person in the driver's seat of a motor vehicle, airplane, or train, with the intention of setting it in motion etc., is itself a societal harm requiring the sanction of criminal law. As Trotter J. said in Blair, where the presumption under s. 258(1)(a) is not rebutted, the Crown is not required to prove a realistic risk of danger because "… That risk is embedded in the presumption." (Blair at para. 15). Reading the Criminal Code as a coherent whole, any additional risk requirement in s. 258(1)(a) simply doesn't fit. Put another way, adding an additional risk component to s. 258(1)(a) renders the presumption of care or control quite meaningless. See also R. v. Mackenzie, [2013] A.J. No. 899, and from this Court R. v. Tharamakulasingham, 2014 ONCJ 362, R. v. Coomansingh, 2014 ONCJ 560 at para. 32, and R v. Shrikka Arulrasan West J. Feb. 24, 2015. Where the vehicle is inoperable, this may speak to rebutting the presumption under s. 258(1)(a) depending on the individual case, see R. v. Amyotte, [2009] O.J.No. 5122 (S.C.J.).
[21] It may be that Trotter J.'s ruling in Blair conflicts with Justice Campbell's in R. v. Balogun-Jubril, [2014] O.J. No. 4268 (S.C), which was released the day before Blair. In Balogun-Jubril, Campbell J. found that an accused sleeping behind the wheel of a disabled vehicle on a highway off-ramp did indeed pose a realistic risk and overturned the acquittal from the trial court. It is unclear why the conviction could not have been found simply on the basis that the presumption under s. 258(1)(a) wasn't rebutted. In my humble opinion, the lengthy analysis undertaken by Justice Campbell at paragraphs 50 – 60 of Balogun-Jubril was unnecessary. Recognizing that there is a conflict in the Summary Conviction Appeal Court rulings, but for the above reasons, and in the absence of a ruling from a senior appellate court, I decline to follow Balogun-Jubril in that regard.
Principles Applied
[22] Mr. Dhinsa gave evidence that he saw Mr. Gulak in the driver's seat at the time of the 911 call. He saw the white back up lights come on 2 or 3 times. He was not shaken in cross-examination, and was credible as a witness. His opportunity to observe what he says he saw was not ideal insofar as it was 100 meters away, but he was focussed on it because it was unusual enough for him to call 911. Furthermore, Mr. Gulak admitted in his evidence that he sat in the driver's seat looking for the key. On both the evidence of Mr. Dhinsa and the accused's own evidence the presumption of care or control under s. 258(1)(a) applies. It falls to Mr. Gulak to rebut that presumption. His evidence was that he only occupied the driver's seat looking for the car key. As he said in his evidence in-chief, he was not planning to drive but just searching for the key.
[23] Mr. Gulak's testimony has frailties, which I identify as the following.
i. In his evidence he gave the keys to the BMW to an acquaintance named Andre. Andre had arrived at the wedding party around midnight not knowing anyone there except for Mr. Gulak. I was provided no real reason why Andre was at the party, other than to later relieve Mr. Gulak of the keys to the BMW. Mr. Gulak's evidence was that the wedding party was not being held at a large function hall but a private residence in a subdivision, which suggests that the occasion was more intimate and therefore exclusive. There is no explanation why Andre was there in the first place, or could not leave the same way he arrived, whatever that was. This does not have the ring of truth.
ii. Mr. Gulak says he handed the keys over to Andre so that Andre could leave in the BMW, yet Mr. Gulak appears to know little of Andre, and Mr. Gulak lives some distance away in Georgina. Andre has no last name, no address, no common friends to Mr. Gulak, and no work location. Apparently he is no longer anywhere he might be found. I find it inherently implausible that such an anonymous person would show up in the middle of the night and get the keys to Mr. Gulak's BMW.
iii. After Mr. Gulak was charged he says that he met up with Andre, again not obtaining it would seem, his last name, address, or contact information. At that meeting on Mr. Gulak's evidence he did not make inquiries of Andre about putting him in contact with someone who would assist Mr. Gulak in bringing this significant witness forward in his pending charge. The possibility that Mr. Gulak was wrongfully charged was apparently not brought up in the conversation. While it is plausible that Mr. Gulak would want his key back from Andre, and ask about money for damage, it is not believable that Mr. Gulak wouldn't raise the issue of Andre potentially assisting with his case. From my review of the photographic evidence at this trial, it is not plausible that the minimal damage to the car would have excluded any discussion about Andre assisting in Mr. Gulak's defence.
iv. When Mr. Gulak entered the BMW for the second time he said it was just to look for his keys. That, on his evidence, would have been after he had attempted to physically move the car with the assistance of his friend Vladimir and the Subaru. I find it contradictory that he would try to move his car with Vladimir before trying to find his car key. It only makes sense to try and get the car unstuck with a car key, and not try and find the car key later. This I find is an internal inconsistency in his evidence.
v. The video of Mr. Gulak clearly shows him drinking from a cup of Tim Hortons tea. The presence of the tea cup – and for that matter the second Tim Hortons cup on the sidewalk - is unexplained on his evidence, which supports the strong inference that there is another complete aspect of the factual narrative on the morning of September 22 which is missing from his evidence. This external inconsistency significantly detracts from Mr. Gulak's credibility.
[24] For these reasons I reject Mr. Gulak's evidence about why he entered the car and occupied the driver's seat. Having rejected his testimony I would go further and find that it does not rebut the presumption of care or control. For reasons stated above, I accept Mr. Dhinsa's evidence that Mr. Gulak was putting his car into reverse during the time frame immediately preceding the 911 call at 7:01 a.m. It follows that Mr. Gulak has not rebutted the presumption under s. 258(1) and he is guilty of the charges of Impaired care or control and Over 80 care or control.
De Facto Care or Control
[25] Given my finding that Mr. Gulak was in care or control by operation of s. 258(1)(a) of the Criminal Code it is not necessary to determine if he is also guilty of the charges on the second Crown argument, i.e. de facto care or control. However, since the parties devoted some time to this in argument I will rule on it on an obiter basis.
Principle
[26] Over and above reliance on s. 258(1)a, the Crown may seek a conviction on the basis of de facto or actual care or control, see R. v. Smits, 2012 ONCA 524. De facto care or control requires the accused creating a risk of danger from putting the car in motion or in some other way, see Smits at para 51 quoting from R. v. Wren (2000), 144 C.C.C. (3d) 374 (Ont. C.A.). What does danger mean in this context? Again, I turn to Smits at para. 53:
…danger can come in many forms. It would appear that three risks of danger have been identified in the cases where an intoxicated individual uses a motor vehicle for a non-driving purpose:
(i) The risk that the vehicle will unintentionally be set in motion: see R. v. Ford, [1982] 1 S.C.R. 231 (S.C.C.);
(ii) The risk that through negligence a stationary or inoperable vehicle may endanger the individual or others: see R. v. Vansickle, [1990] O.J. No. 3235 (Ont. C.A.), aff'g [1988] O.J. No. 2935 (Ont. Dist. Ct.);
(iii) The risk that the individual who has decided not to drive will change his or her mind and drive while still impaired: see R. v. Pelletier (2000), 6 M.V.R. (4th) 152 (Ont. C.A.).
[27] Given Mr. Gulak's evidence that he tried with Mr. Prohodko to move his car onto the roadway by pushing it with the Subaru, and intended to next get a tow truck to achieve that result I find that all three risks of de facto control were present.
[28] The test of what constitutes a danger in de facto care or control cases is further refined by Durno J. in R. v. Szymanski, 2009 CarswellOnt 5150 to include the following factors. Notably, this non-exhaustive list of factors was expressly approved of in Smits.
(a) The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive;
(b) Whether the keys were in the ignition or readily available to be placed in the ignition;
(c) Whether the vehicle was running;
(d) The location of the vehicle;
(e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination;
(f) The accused's disposition and attitude;
(g) Whether the accused drove the vehicle to the location where it was found;
(h) Whether the accused started driving after drinking and pulled over to "sleep it off" or started using the vehicle for purposes other than driving;
(i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit;
(j) Whether the accused had a stated intention to resume driving;
(k) Whether the accused was seated in the driver's seat regardless of the applicability of the presumption;
(l) Whether the accused was wearing his or her seatbelt;
(m) Whether the accused failed to take advantage of alternate means of leaving the scene;
(n) Whether the accused had a cell phone with which to make other arrangements and failed to do so.
Principles Applied
[29] Considering the Szymanski factors in turn.
(a) The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive;
[30] Mr. Gulak was, by his own admission quite intoxicated. PC Brodhagen observed Mr. Gulak to have serious indicia of intoxication. Over and above that, by his own admission, Mr. Gulak was attempting to move his car off of the boulevard by pushing it with another car. It should be self-evident that this was an unwise maneuver. One can only imagine what would have happened if the BMW had been moved onto the roadway at the very moment that a car passed by. The potential for damage to property or persons is in my view significant. Trying to push the BMW off of the boulevard with the Subaru was a very unwise thing to do, and very strongly suggests that Mr. Gulak was beset with bad judgement at the time due to his level of intoxication.
(b) Whether the keys were in the ignition or readily available to be placed in the ignition;
[31] There was no evidence that the keys were present at the scene or even on Mr. Gulak when he was arrested. I heard argument that the BMW was inoperable because of the lack of a key. In my view it is one thing to say that there is no evidence of a key – which is the evidence from the trial - and something quite different to say that the key is so far away as to render the BMW inoperable. I have rejected Mr. Gulak's evidence about Andre, and I do not find that there is positive evidence that the unavailability of the key made the BMW inoperable. Mr. Dhinsa's evidence that the BMW was put into reverse 2 – 3 times gives me great concern that the BMW key was present at the scene but simply did not turn up. I heard no evidence that the police looked for the key and never found it in the vicinity.
(c) Whether the vehicle was running;
[32] The BMW was not running when the police arrived on scene. Mr. Dhinsa testified that the car was put into reverse 2 – 3 times but did not see exhaust.
(d) The location of the vehicle;
[33] The vehicle was on a tree stuck on a boulevard but if Mr. Gulak had his way it would have been moved to Freedom Trail.
(e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination;
[34] According to Mr. Gulak, he was staying at his friend's house that night in the vicinity.
(f) The accused's disposition and attitude;
[35] There is no evidence that Mr. Gulak was belligerent or impolite.
(g) Whether the accused drove the vehicle to the location where it was found;
[36] Mr. Gulak testified that he walked to the car, but as I have said, I have rejected his evidence partly on the basis that the presence of the Tim Hortons tea cup strongly suggests a completely different narrative to these charges which Mr. Gulak has not given in his evidence.
(h) Whether the accused started driving after drinking and pulled over to "sleep it off" or started using the vehicle for purposes other than driving;
[37] This does not appear to describe the facts before me. There is no evidence that the car was intended to be used for a non-driving purpose.
(i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit;
[38] Mr. Gulak said that he intended to sleep at his friend's home, but again, the narrative he gave in his evidence has frailties.
(j) Whether the accused had a stated intention to resume driving;
[39] Mr. Gulak did not intend to start driving on his evidence, but he did want to move the car onto the roadway to park it.
(k) Whether the accused was seated in the driver's seat regardless of the applicability of the presumption;
[40] During the purported de facto care or control, Mr. Gulak was outside the vehicle trying to push it onto the roadway.
(l) Whether the accused was wearing his or her seatbelt;
[41] There is no evidence that the accused was wearing a seatbelt at any time.
(m) Whether the accused failed to take advantage of alternate means of leaving the scene;
[42] On Mr. Gulak's evidence he walked to the scene, and suggested he would have walked back to his friend's house. Again, I found his narrative to be incomplete.
(n) Whether the accused had a cell phone with which to make other arrangements and failed to do so.
[43] It appears that Mr. Gulak had his own cell phone, but there is no evidence that he was going to use it to call a cab. It is a fair inference, and I find, that he would have called a tow truck had the police not appeared.
Conclusion
[44] Considering the above factors as a whole I would have found that Mr. Gulak was in de facto care or control of the silver BMW in the minutes up to the arrival of Mr. Dhinsa, and up to the time that the police arrived. Mere immovability is no defence to de facto care or control, see R. v. MacMillan, 2005 CarswellOnt 1880 (C.A.), and there is no evidence before me about inoperability. I find that Mr. Gulak wanted to move the BMW onto a roadway, and took steps towards that end. Regardless of his credibility, there is physical evidence in the form of muddy tire tracks and physical damage to each car that the Subaru moved in front of the BMW to push it off the boulevard. That was a very risky thing for Mr. Gulak to do. He may well have succeeded, and pushed the car into oncoming traffic. The tow ring was inserted into the rear bumper of the BMW, and this is positive evidence of Mr. Gulak's continuing interest in moving the BMW onto the roadway where it posed a hazard to passing motorists in the hands of Mr. Gulak while he was in that condition – regardless of the presence of the key.
[45] For these reasons Mr. Gulak is found guilty of both charges. I register a stay of proceedings on the Impaired Care or Control count.
[46] In their submissions, and in coming to a reasonable agreed statement of facts, Mr. Bytensky and Ms. Lee were both very helpful to the Court.
Released: March 10, 2015
Signed: "Justice David S. Rose"