Court File and Parties

Court File No.: 13-1284 Date: April 30, 2015 Ontario Court of Justice

Between: Her Majesty the Queen — and — Heidi Rule

Before: Justice Paul F. Monahan

Heard on: March 26 and 27, 2015

Reasons Released on: April 30, 2015

Counsel:

• Mr. S. Anderson, for the Crown
• Ms. H. Spence, for the defendant Heidi Rule

MONAHAN J.

OVERVIEW

[1] Ms. Heidi Rule is charged that on or about September 20, 2013 she had care or control of a motor vehicle while her ability to operate the motor vehicle was impaired by alcohol contrary to s. 253(1)(a) of the Criminal Code of Canada (the "Code"). In addition, she is also charged with having care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in her blood exceeded 80 mg of alcohol in 100 ml of blood contrary to s. 253(1)(b) of the Code.

Overview of the Position of the Parties and Procedure

[2] I heard the evidence on the trial proper and the Charter application on a blended basis on consent. Ms. Rule was arrested and charged with impaired driving on September 20, 2013. After she was arrested and provided her right to counsel and cautioned, she provided breath samples and made various statements to the police. After the breath samples were received on September 21, 2013 she was charged with over 80 contrary to s. 253(1)(b) of the Code.

[3] It was the position of the defence that the breath samples given by Ms. Rule and the statements made by her after her arrest as well as the observations made of her were obtained in violation of sections 8 and 9 of the Canadian Charter of Rights and Freedoms (the "Charter"). Concerning the section 8 argument, the defence submitted that the police did not have reasonable and probable grounds to arrest Ms. Rule and to demand the breath samples from her.

[4] For oral reasons delivered on March 27, 2015, I dismissed the Charter application of the defendant. I concluded that the arresting officer, Constable Lewin, had reasonable and probable grounds to arrest Ms. Rule and charge her with impaired driving and to make the breath demand that he did pursuant to s. 254(3). I found that the reasonable and probable grounds were that (i) based on his observations that there was no debris on the road; no damage to the driver's side door and no trace paint on the driver side door, Constable Lewin did not believe what he was being told by Ms. Rule about a failure to remain accident with another vehicle. I expressed the view that this was similar to the unexplained accident referred to in R v. Bush. (ii) the officer detected the smell of alcohol on Ms. Rule's breath and she admitted that she had been drinking; (iii) Ms. Rule had red rimmed and bloodshot eyes as well as slurred speech, both of which were detected at the roadside; and (iv) Ms. Rule stumbled when she exited the vehicle at the roadside prior to her arrest.

[5] The Crown called four witnesses: Constantinos Vasiliou, a civilian witness; Constable Osbourne Lewin, the arresting officer; Constable Darcy Peters, an officer who assisted at the scene; and Constable Paul Haramis, the breath technician. The defence called no evidence either on the Charter application or the trial proper. However, the breath room video included numerous statements and explanations given by Ms. Rule and it was played at trial and formed part of the evidence. I note that the issue of the voluntariness of the statements of Ms. Rule made post arrest, initially challenged by the defence, was conceded by the defence by the time the trial was complete.

[6] It was the Crown's position that both the impaired and over 80 charges had been proved beyond a reasonable doubt. It was the defence's position that neither charge had been proved. As will be explained further below, a number of issues arise for decision in this case including whether the Crown has proved beyond a reasonable doubt that Ms. Rule was driving within the two hour window afforded by the s. 258(1)(c); whether the breath samples were taken "as soon as practicable" as required by the s. 258(1)(c) of the Code; whether the presumption of care or control under s. 258(1)(a) of the Code had been rebutted and, if so, whether de facto care or control had been established beyond a reasonable doubt by the Crown; and whether the Crown had proved beyond a reasonable doubt that the accused had the care or control of a motor vehicle while her ability to operate the motor vehicle was impaired by alcohol.

THE FACTS

[7] The facts were largely uncontested and flow from the evidence of the four witnesses who testified and, in some respects, from the statements of Ms. Rule on the breath room video. To the extent that there are contested matters of fact, I will identify those matters in these reasons and will indicate my findings on those contested facts.

Constantinos Vasiliou

[8] Mr. Constantinos Vasiliou was leaving his work at Pearson airport on September 21, 2013. He testified that he gets off work at 10:35 PM at which time he "punches out" and that he takes about 10 to 15 minutes to get to his car. He further testified that it took him another about 3 to 5 minutes before he came upon the scene where he saw a person who was most certainly Ms. Rule. He testified that he was coming from Viscount Road and was on the highway 409 East ramp leading to the 409 East highway when a car in front of him swerved. He followed that vehicle and swerved as well. He saw that both the vehicle in front of him and his vehicle had swerved so as to avoid a female pedestrian standing on the roadway examining her car which was off on the shoulder.

[9] Mr. Vasiliou said it was a minute later when he pulled over his vehicle about 300 metres past the woman and the vehicle. He called back to his employer's Operations Department as he thought that the roadway might still be part of the airport roads. He testified that that call "would be before 11 PM". He advised them that there was a vehicle there with a female person standing in the roadway. He was concerned for the person that someone might not see them and hit them. Mr. Vasiliou's Operations Department told him that they would call the police.

[10] Considering other evidence, there is no dispute that the female person he saw standing in the roadway was Ms. Rule. Further, based on his evidence and considering the evidence of Constable Lewin discussed below as concerns the position of the vehicle on the shoulder, I find that Ms. Rule was standing on the live roadway intended for vehicle traffic. It was also Mr. Vasiliou's evidence, which I accept, that the vehicle was just on the shoulder but was very close to the live roadway. He testified that there was no room to stand beside the driver's side of the vehicle without being in the live lane of traffic.

[11] When he first set out that night from the airport it was raining lightly. By the time he had seen the pedestrian and the disabled vehicle and he had called back to his Operations Department, it was raining hard.

[12] After a consideration of all of the evidence, I will return to the question of the precise time that Mr. Vasiliou came upon Ms. Rule's vehicle. I will say at this point that I believe he underestimated the time it took him to get from his workplace at the airport to Ms. Rule's vehicle.

Constable Osbourne Lewin

[13] I indicated in my decision on the Charter application that I fully accepted the testimony of Constable Lewin. I indicated at that time that I considered that he was entirely credible, honest, straightforward and fair in his testimony and gave my reasons for that conclusion which I will not repeat here.

[14] Constable Lewin testified that he received a call at 11:06 PM on September 20, 2013 dispatching him to a vehicle on the shoulder of highway 409 eastbound where the Network Road overpass passes over highway 409. This is near Pearson airport in the City of Mississauga. Constable Lewin understood that he was being dispatched to deal with the safety of a vehicle and anyone who might be in it.

[15] Constable Lewin was driving a fully marked vehicle and he pulled up behind Ms. Rule's vehicle with his vehicle's emergency lights on. Constable Lewin's evidence on the location of the vehicle was much the same as Mr. Vasiliou's evidence except that it had more specificity. Constable Lewin testified that the distance between the live lane of traffic and Ms. Rule's vehicle was less than 1 foot and that if the driver opened the door to the vehicle and stepped out she would be in the live lane of traffic. He further testified that there was about 4 feet of space on the shoulder on the driver's side and that he could easily move around on that part of the vehicle.

[16] Constable Lewin arrived at the scene at 11:09 PM. The defendant was ultimately arrested 14 minutes later at 11:23 PM.

[17] Constable Lewin approached on the passenger side of the vehicle and spoke to Ms. Rule who was in the driver seat. Ms. Rule's vehicle was parked on the side of the road beside the live lane of traffic.

[18] It had just started to rain. Ms. Rule was smoking a cigarette and using her cell phone to send some sort of text message. She told the officer that she was parked there because she had a flat tire and that she had been sideswiped. She said the vehicle that had hit her was a black Honda or some such vehicle. She said it looked like her niece's vehicle which was a Honda. He asked her if she need medical attention and she said no.

[19] Constable Lewin went back to his vehicle and gave a report to his dispatch to look for a black Honda which might have hit Ms. Rule's vehicle.

[20] Constable Lewin also walked around the Ms. Rule's vehicle and he noted that there was damage to the driver's side of vehicle. In particular, the car was completely missing the rear wheel on the driver's side and the front wheel was bent. The side view mirror was missing paint. Constable Lewin did not see any other debris from any other vehicle nor did he see the tire that was missing from Ms. Rule's vehicle.

[21] Constable Lewin went back to the passenger side of the vehicle and spoke to Ms. Rule again. She was lighting a cigarette again even though he had previously asked her not to. It was at this point in time that he detected the smell of alcohol on her breath and noticed that she had red rim bloodshot eyes. He testified that at this point he began to consider that he may well be dealing with an impaired driving investigation. He testified that he asked her if she had been drinking and she said she had had three glasses of wine. Based on his assessment of the situation, he did not think that her vehicle had been sideswiped by another vehicle. He did not think there was any failure to remain by some unknown vehicle. He focused in particular on the fact that there was no debris from any other car and there was no damage to the driver's side door which would be consistent with being sideswiped by another car. He thought that she was being untruthful with him regarding what had occurred.

[22] He testified that he asked her to exit the vehicle and to give him the keys which were in the ignition. She did exit the vehicle and he noted that she stumbled backwards as she walked from the driver's side door to the back of the vehicle. He testified it was not a slip due to the wet pavement nor was there any issue with her footwear or the surface of the road that caused the slip. He considered that the stumble was from her impairment due to alcohol.

[23] Constable Lewin called Constable Darcy Peters at 11:22 PM to assist him. Constable Lewin knew that he would need assistance with getting a tow for the vehicle. He did not consider that the vehicle was in a safe place.

[24] He said that Ms. Rule's vehicle was not quite under the overpass. He said they were getting wet standing there. It was 50 to 75 metres away from the overpass.

[25] He placed Ms. Rule under arrest at 11:23 PM and charged her with impaired driving. He testified that in doing so he was relying upon the alcohol on her breath; her red rimmed in bloodshot eyes; inconsistencies in her story regarding the accident and the stumble as she exited her vehicle.

[26] Constable Lewin expressed the view that considering all of the circumstances he thought that Ms. Rule's ability to operate a motor vehicle was impaired by alcohol.

Statements by Ms. Rule

[27] Ms. Rule did not testify at the trial. However, she made a number of statements on the breath room DVD marked as an exhibit at trial. It was admitted by the defence that the statements were all voluntary. The statements included the following:

(a) She admitted that she had been drinking. She said she had three glasses of wine at the airport Hilton;

(b) She said that she was driving in the center lane and had been sideswiped by another vehicle which hit her on the driver's side and that the other vehicle had left the scene without stopping;

(c) She said that police showed up about 3 to 5 minutes after the accident. She said she was sideswiped and that she pulled over. She got out of her vehicle and walked to the back and opened the trunk. She took her son's bag out of the trunk. She made some effort to extract the spare tire from the trunk but had difficulty. She got back in the vehicle and she phoned her sister-in-law. She then said the police showed up right away with the police car's flashing lights on behind her. She reiterated that the time between her pulling over and the police showing up was 3 to 5 minutes.

(d) She was asked when the accident occurred. On one occasion she said occurred "after 10:30 PM" but said she was guessing. On another occasion on the DVD she said she was "assuming it was around 10:30 PM" when the officer stopped her but that "I could be wrong". She did not indicate any uncertainty or suggest she could be wrong on the time between the time of the accident and the police showing up;

(e) She said that she saw that she was missing her passenger wheel and that she went to look for the spare tire so she could change the tire and then "be on my merry way". She also said that she saw her front driver side tire was flat as well but mentioned nothing about it being bent; and

(f) When Constable Haramis (the breath technician who happened to be a former mechanic) said to Ms. Rule, as recorded on the breath room video, that he thought her vehicle was "done" she responded incredulously "what do you mean done?" and she said "it is just a tire." She said that she "did not think it was that bad."

Constable Darcy Peters

[28] Constable Peters testified that he assisted with arrangements for the towing of the vehicle. At 11:22 PM, he received a call over the police radio to attend a possible impaired. He arrived at 11:28 PM. By this time Ms. Rule was in the back of Constable Lewin's cruiser. He examined Ms. Rule's vehicle. There was damage to the front wheel which was bent. The rear wheel was missing. He found what he thought was the brake rotor for the vehicle on the left side of the roadway about 5 feet from the concrete barrier. He found the tire for the vehicle about 75 metres in front of the vehicle. The tire still had the nuts on it and part of the axle in it. The tire had been sheared off from the vehicle at the axle. He checked about a hundred meters behind the vehicle and hundred meters in front of it and there was no other debris from any other vehicle. There were no brake marks or skid marks on the road although it was wet and so they could have not been visible. There were marks on the median but he couldn't say if they were made from Ms. Rule's vehicle.

Constable Paul Haramis

[29] Constable Haramis was the breath technician who took the two breath samples from Ms. Rule. Prior to obtaining the breath samples from her he read her her rights to counsel and cautioned her. The first breath sample was taken at 12:45:58 AM September 21, 2013 and registered 140 mg of alcohol in 100 mL of blood. The second breath sample was taken at 1:11:13 AM and registered 130 mg of alcohol in 100 mL of blood.

Chronology

[30] The chronology as set out below is what I have found occurred in broad terms and is based on Constable Lewin's testimony as well as testimony of Constable Peter's and Constable Haramis. The chronology does not address the precise time of driving which will be dealt with under my consideration of the issues. The chronology is as follows:

Time	Event
11:06 PM	Constable Lewin is dispatched to attend at the scene.
11:09 PM	Constable Lewin arrives the scene.
11:22 PM	Constable Peters receives a call indicating a possible impaired charge and he is requested to attend at the scene.
11:23 PM	After assessing the situation Constable Lewin disbelieves Ms. Rule's explanation and concludes that he has reasonable and probable grounds to arrest Ms. Rule for impaired driving which he does.
11:23 to 11:28 PM	At some point during this time Constable Lewin retrieves Ms. Rule's purse from the vehicle and puts it in the police cruiser.
11:28 PM	Ms. Rule is read her rights to counsel by Constable Lewin.
11:28 PM	Constable Peters arrives on the scene and speaks briefly to Constable Lewin.
11:31 PM	Ms. Rule indicates that she wishes to call duty counsel.
11:32 PM	A breath demand is made on Ms. Rule by Constable Lewin.
11:33 PM	Constable Lewin gives her a caution
11:33 to 11:46 PM	During this time Constable Lewin is making notes by the roadside; he also retrieves Ms. Rule's asthma puffer from her vehicle.
11:46 PM	Constable Lewin departs for the police station with Ms. Rule.
12:05 AM	Constable Lewin arrives at the police station with Ms. Rule.
12:05 to 12:15 AM	Ms. Rule is booked at the station.
12:12 AM	Constable Lewin calls duty counsel.
12:15 AM to 12:20 AM	Ms. Rule speaks to duty counsel.
12:31 AM	The breath tech video discloses that by this point in time Ms. Rule is in the custody of the breath technician, Constable Haramis.
12:45:58 AM	The first sample is provided. The truncated reading is 140 mg of alcohol in 100 mL of blood.
1:11 AM	The second sample was provided. The truncated reading is 130 mg of alcohol in 100 mL of blood.

Issues

[31] The various arguments of the Crown and the defence give rise to the following issues:

(i) Has the Crown proved beyond a reasonable doubt that the accused was driving at some point during the period 10:46 PM to 11:06 PM on September 20, 2013?

(ii) Has the Crown proved beyond a reasonable doubt that the breath samples were taken as soon as practicable as required by s. 258(1)(c) of the Code?

(iii) Has the accused proved on the balance of probabilities that the presumption of care or control pursuant to s. 258(1)(a) of the Code is rebutted?

(iv) If the presumption of care or control under s. 258(1)(a) is rebutted, has the Crown proven beyond a reasonable doubt that the accused was in care or control of the vehicle when the police arrived at 11:09 PM?

(v) Taking into account the answers to the questions above, has the Crown proved beyond a reasonable doubt that the accused had the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in her blood exceeded 80 mg of alcohol in 100 mL of blood contrary to s. 253(1)(b)?

(vi) Taking into account the answers to the questions above, has the Crown proved beyond a reasonable doubt that the accused had the care or control of a motor vehicle while her ability to operate the motor vehicle was impaired by alcohol contrary to s. 253(1)(a)?

[32] I will examine each one of these issues in turn.

Issue I - Has the Crown proved beyond a reasonable doubt that the accused was driving at some point during the period 10:46 PM to 11:06 PM on September 20, 2013?

[33] The presumption of identity contained in s. 258(1)(c) of the Code has a number of requirements. One of them is that the first breath sample must be taken "not later than two hours" after the time when the offence was alleged to been committed.

[34] In this case, Constable Lewin arrived on the scene at 11:09 PM. The first breath sample was taken at 12:45:58 AM and registered a truncated reading of 140 mg of alcohol in 100 mL of blood. The second breath sample was taken at 1:11:13 p.m. and registered a truncated reading of 130 mg of alcohol in 100 mL of blood.

[35] The Crown did not call a toxicologist. Accordingly, the only way for the Crown to prove the over 80 charge is to establish beyond a reasonable doubt that the accused had the care or control of the vehicle sometime during the period 10:46 PM to 11:09 PM. One way for the Crown to do this is to prove that Ms. Rule was actually driving the vehicle some time during this time frame. Ms. Rule is obviously not actually driving the vehicle when the police show up at 11:09 PM. Nor is there any evidence that she was actually driving the vehicle when the dispatch call was made at 11:06 PM and logic would suggest that she was not driving at that point. She is also not driving the vehicle when Mr. Vasiliou sees her standing on the roadway. However, it is very important to determine, if possible, when Mr. Vasiliou saw Ms. Rule as it is clear to me, considering all the evidence, that she was driving immediately before this time.

[36] The key evidence on this issue is as follows:

(a) The civilian witness, Mr. Vasiliou testified that he gets off work at 10:35 PM; that it takes about 10 to 15 minutes to get to his car; that he took another 3 to 5 minutes to come upon the scene at which point Ms. Rule was standing in the road out of her vehicle and he had to swerve to avoid her; and that he past Ms. Rule's vehicle and one minute later called back to his Operations Department who in turn indicated they would call the police. He thought he it "would be" before 11 PM when he called his Operations Department. If Mr. Vasiliou is right about his time estimates he would have come upon Ms. Rule's vehicle between 10:48 PM to 10:55 PM at which time, to repeat, Ms. Rule was already out of her vehicle;

(b) Constable Lewin testified that he received a call from dispatch at 11:06 PM and that he arrived on the scene at 11:09 PM;

(c) Ms. Rule did not testify but the breath room DVD was put into evidence and it was accepted by the defence that her statements on the DVD were all voluntary. She said that she was driving in the center lane when she was sideswiped by another vehicle on the driver side. The other vehicle left the scene without stopping. She said that she pulled over after she was sideswiped; she got out of her vehicle and saw that the back tire was missing; she walked to the back and opened the trunk. She took her son's bag out of the trunk. She made some effort to extract the spare tire from the trunk but had difficulty and could not do so. She noted that her front driver side tire was bent. She then returned to the vehicle. She said that the police showed up right away after she returned to the vehicle. She estimated that time between when she pulled over her vehicle and the police showing up was 3 to 5 minutes.

(d) As to the time that the accident occurred, Ms. Rule said it occurred "after 10:30 PM" but said she was guessing. On another occasion on the DVD she said she was assuming it was around 10:30 PM when the officer showed up but that "I could be wrong". She did not indicate any uncertainty or suggest she could be wrong on the amount of time that passed between the accident and the police showing up.

(e) The evidence is clear that the location of Ms. Rule's vehicle was very close to Pearson International Airport. In fact, Mr. Vasiliou thought that the road might be an airport road as opposed to a public roadway and that was why he phoned his Operations Department. It was in fact a public roadway.

[37] It is my view that the Crown has established beyond a reasonable doubt that Ms. Rule was driving sometime between 10:46 PM and approximately 11:02 PM. In particular, I have concluded that she was last driving about two minutes before 11 PM or two minutes after. My reasons are as follows:

(i) The location of the vehicle was very close to Pearson international Airport. Common sense suggests that in this busy area close to Canada's largest airport, disabled vehicles do not sit by the side of the road close to that airport without the police coming upon them very quickly. The fact that Constable Lewin showed up only 3 minutes after the dispatch call gives some indication that the police watch this area closely;

(ii) I believe Ms. Rule when she said on the breath room video that the police showed up very quickly after her accident. She thought it was perhaps 3 to 5 minutes after she had pulled over. In my view, this is very close to what actually did happen. In my view, at most, it might have been 5 to 10 minutes from her accident until the time that police showed up. Ms. Rule placed emphasis on the fact that she could not believe how quickly police showed up. Her statement that the accident happened around 10:30 PM was clearly wrong in my view and she expressed no certainty as to that time. I also note that it does not matter whether Ms. Rule was involved in a hit-and-run accident or a single motor vehicle accident. She was clearly involved in one or the other and her vehicle ended up disabled on the shoulder of the road. Her statements on the breath room video to the effect that police showed up very shortly thereafter (3 to 5 minutes) make perfect sense in all the circumstances;

(iii) I believe that the civilian witness, Mr. Vasiliou, underestimated the amount of time it took him to get to his car and to arrive upon the scene. Unlike police officers, he does not make his living making a note of where he is at a precise given time and he had no notes in this case. I do appreciate that he follows a daily routine of leaving work at 10:35 PM. He estimated 10 to 15 minutes to get to his car and 3 to 5 minutes to reach the point where he saw Ms. Rule. Considering all of the evidence I believe he was underestimating the time it took to come upon Ms. Rule. His other evidence that his call to his Operations Department was "before 11 PM" suggests to me that it was much closer to 11 PM when he came upon the vehicle. I have concluded that it was right about 11 PM (perhaps a minute or two before or minute or two after) when he saw Ms. Rule standing outside her vehicle.

(iv) I also believe that the accident had occurred immediately prior (a minute or two at most) to the time that Mr Vasiliou saw Ms. Rule which I have concluded was somewhere between 10:58 PM to 11:02 PM. Mr. Vasiliou testified that when he saw Ms. Rule she was examining her car. It makes sense that she would try to get a handle on the damage to her vehicle and that she would do so almost immediately after the accident. Logic also suggests that after Mr. Vasiliou called his Operations Department and informed them of the disabled vehicle, they would have called the police promptly. Accordingly it is my view that Mr. Vasiliou came upon Ms. Rule right about 11 PM, or, as I say, a minute or two earlier or later. I believe a consideration of all of the evidence supports the conclusion that Ms. Rule had been driving immediately before Mr. Vasiliou saw Ms. Rule (a minute or so before). Mr. Vasiliou called his Operations Department and someone there in turn called the police who dispatched Constable Lewin by 11:06 PM.

[38] For the foregoing reasons, I find that it has been established beyond a reasonable doubt that Ms. Rule was driving right about 11 PM, or a minute or two before or after. She was most certainly driving well after 10:46 PM.

Issue 2 - Has the Crown proved beyond a reasonable doubt that the breath samples were taken as soon as practicable as required by s. 258(1)(c) of the Code?

[39] It is a further requirement of the presumption of identity in s. 258(1)(c) that each sample must be taken "as soon as practicable" after the alleged offence.

[40] Even if the first sample was taken within two hours of the alleged offence, the defence submits that the presumption of identity does not apply because the breath samples were not taken as soon as practicable.

[41] The law is clear that "as soon as practicable" does not mean "as soon as possible". All of the circumstances must be considered and the breath samples must be taken within a reasonably prompt time. Further, there is no obligation on the Crown to provide a detailed explanation of what occurred every minute that the defendant is in custody. The key question becomes whether the police acted reasonably.

[42] The defence complains in particular about the 13 minute period between 11:33 PM and 11:46 PM and the 11 minute period between 12:20 A.M. and 12:31 AM.

[43] It is my view the Crown has proven beyond a reasonable doubt that the as soon as practicable requirement has been met in this case.

[44] With respect to the time from 11:33 to 11:46 PM, the evidence is that Constable Lewin was making notes by the roadside. Also during this time, he retrieved Ms. Rule's asthma puffer from the subject vehicle. In my view was not unreasonable for Constable Lewin to take some time at the roadside to make his notes. He had been told an unusual story about a hit-and-run accident in which he had the disabled car by the side of the road. He thought that the driver was not being truthful with him. It was appropriate in my view that he take the time to record his thoughts at this juncture. I have no doubt that he was undertaking other steps during this 13 minute period that he did not make a note of (other than going to get the asthma puffer which would only have taken a minute or two) and the law is clear that the police do not have to account for every minute.

[45] As to the time between 12:20 AM and 12:31 AM, there is little evidence as to what occurred during this time frame. We know that the breath room video commenced at 12:31 PM. It seems highly likely to me that during at least part of the 12:20 to 12:31 AM time period, Constable Lewin was providing grounds to Constable Haramis and this would have taken approximately 3 minutes.

[46] Again, while there is an absence of evidence for the between 12:20 AM to 12:31 AM, I still consider that the Crown has proven the as soon as practicable standard beyond a reasonable doubt. I repeat that the Crown does not have to account for every minute and the absence of detailed evidence for this time (12:20 AM to 12:31 AM) does not undermine the Crown's proof of the "as soon as practicable" requirement beyond a reasonable doubt in this case. I reiterate that the overall context of this case is important. The police were dealing with an unexplained accident and a story coming from Ms. Rule that they did not believe. From the court's perspective it does not matter whether Ms. Rule was the victim of a hit-and-run (as she said) or whether she was involved in a single motor vehicle accident (as the police thought). She was clearly involved in some form of accident which caused serious damage to her vehicle. In my view, the police were right to be skeptical of Ms. Rule's explanation as to what had occurred and this delayed somewhat the taking of the first sample. For example, there is no doubt that the 14 minute gap between 11:09 PM when the police arrived and 11:23 PM when Ms. Rule was arrested, was spent dealing with the hit-and-run story given by Ms. Rule. The bottom line is that the police were dealing with something more complicated than a routine impaired driving/over 80 charges case.

[47] To summarize, the as soon as practical requirement is met and the presumption of identity applies.

Issue 3 - Has the accused proved on the balance of probabilities that the presumption of care or control pursuant to s. 258(1)(a) of the Code is rebutted?

[48] The Crown has three routes for establishing care or control of a motor vehicle. The first is proof of actual driving. The second is to rely on the presumption in s. 258(1)(a). The third is to prove de facto or actual care or control. For the reasons expressed earlier, I have found that the Crown has proved that Ms. Rule was driving her vehicle during the operative time that the presumption of identity applies. Notwithstanding that finding I will consider further arguments which impact the over 80 case on an alternative basis and the impaired charge.

[49] In this case, Ms. Rule was found at 11:09 PM sitting in driver's seat of the vehicle with the keys in the ignition. The Crown submits that the presumption in s. 258(1)(a) applies. In the alternative, the Crown submits that even if the presumption is rebutted, there is evidence of actual care or control of a motor vehicle at 11:09 PM.

[50] S. 258(1)(c) provides in part as follows:

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

[51] Where the presumption applies, there is no obligation on the Crown to prove a realistic risk of danger.

[52] The accused can rebut the presumption contained in s. 258(1)(a) by proving on a balance of probabilities that they did not occupy the driver's seat for the purpose of setting the vehicle in motion.

[53] The operative time for determining whether or not the presumption has been rebutted is when the accused first entered the vehicle. Accordingly, if a person exits the vehicle and then re-enters, the operative time to examine is their intention at the time of re-entry. Justice Durno made this observation in R v. Amyotte as follows:

While the appellant argued it is illogical to have a case determined on whether or not the accused got out of the car and returned not intending to drive and one who never leaves the seat but abandons the intention to drive, that is the law in Ontario. Whether the presumption applies is determined by the accused's intention when he or she first occupied the driver's seat. The reason the presumption was saved by s. 1 when constitutionally challenged in R. v. Whyte, 42 C.C.C. (3d) 97 (S.C.C.) was that the accused could rebut it by showing that he or she did not occupy the seat for the purpose of setting the vehicle in motion.

[54] An immoveable vehicle will not necessarily defeat the presumption although an inoperable vehicle can defeat the presumption. In R v. Amyotte, Justice Durno made this point when he said "on either scenario, the presumption remained and the appellant was deemed to be in care or control of the truck, subject to the finding the vehicle was inoperable". (emphasis added)

[55] Applying the foregoing principles to the case at bar it is important to note that Ms. Rule exited her vehicle right after the accident in order to assess the damage. The civilian witness, Mr. Vasiliou, and another unknown driver, had to swerve to avoid Ms. Rule who was standing in the roadway. She indicated that she got out of the vehicle to look for her spare tire so that she could change it and "be on my merry way". I have no doubt that if she could have changed the rear tire, she would have tried to drive the vehicle. In my view, she had not yet abandoned her attempts to fix the vehicle and be on her way. In these circumstances, there is an argument that the presumption has not been rebutted as Ms. Rule had not yet fully given up her attempts to drive and she had not yet formulated a plan for what she was going to do. However, in my view, the Court must look at all of the evidence fairly and realistically. In my view, the evidence is clear that the rear tire could not be changed (without substantial repairs to the vehicle) and the vehicle could not be driven. The rear tire was found by Constable Peters with the nuts and a piece of the axle still in it, meaning that it had become severed from the car. The spare tire was not going to solve the problem. The front tire was bent. There was no possibility for Ms. Rule to drive that car with a missing wheel and one of the remaining three wheels being bent.

[56] Accordingly, I am satisfied that on the evidence that when she re-entered the vehicle after surveying the damage there was no realistic prospect that she could drive the vehicle because it was inoperable and accordingly, the presumption under s. 258(1)(c) is rebutted.

Issue 4 - If the presumption of care or control under s. 258(1)(a) is rebutted, has the crown proven beyond a reasonable doubt that the accused was in care or control of the vehicle when the police arrived at 11:09 p.m.?

[57] In R. v. Minhas my colleague Justice Schwarzl made the following points with respect to care or control when the presumption has been rebutted:

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 (2000), 144 C.C.C. (3d) 374 (Ont. C.A.).

An intention to drive the vehicle is not an essential element of the offence of "care or control": Ford v. The Queen, [1982] 1 S.C.R. 231, at pp. 248-49. It is, however, part of the conduct of the accused that is relevant to the determination of whether that conduct in relation to the motor vehicle had created a risk of danger: R v. Ruest, [2009] O.J. No. 5108 (C.A.).

The phrase "care or control" signifies (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: R. v. Boudreault, 2012 SCC 56, [2012] S.C.J. No. 56 (S.C.C.).

In Boudreault, supra at paragraph 42, it was held that in the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways:

(i) 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;

(ii) an inebriated person behind the wheel may unintentionally set the vehicle in motion; or

(iii) through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

The risk of danger must be a realistic risk and is a matter of fact for the trial judge to determine: Boudreault, supra, para 50. The trial judge must examine all of the relevant evidence to this end and may consider a number of factors: R. v. Smits, 2012 ONCA 524, [2012] O.J. No. 3629 (C.A.) at para. 60 - 65; R. v. Szymanski (2009), 88 M.V.R. (5th) 182 (Ont. S.C.J.), at para. 93. 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 accused will in practice face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case.

[58] The test of a "realistic risk" is a low threshold for the Crown to meet. It requires a risk of something more than just being "theoretically possible". However, the risk need not be "probable or even serious or substantial".

[59] In a recent case, R v. Agyemang Justice Durno made the point that even a car left in a live lane of traffic will not always pose a realistic risk of danger. Evidence regarding the lighting, the curved or straight road nature of the road, whether the car's lights were on or off and how busy a road is involved may all factor into the analysis of whether or not there is a realistic risk of danger. The decision in R v. Agyemang is, on its face, somewhat surprising as one would have thought that a vehicle simply left in a live lane of traffic would almost always pose a realistic risk of danger, but properly understood, this decision really stands for the proposition that it is the Crown's onus and each case will depend on the circumstances.

[60] The realistic risk must involve using the car or its fittings or equipment. The Court of Appeal in R v. Wren indicated that actual or de facto care or control involves:

Performance of some act or series of acts which involve some use of the car or its fittings or equipment, or some course of conduct associated with the vehicle which would involve the risk of putting the vehicle in motion or in some other way to become dangerous, which is what the section is designed to prevent. (emphasis added)

[61] The Crown in this case submits that Ms. Rule could have moved her vehicle and, even if she could not move it, the mere opening of the driver's side door to get out of it would have placed the driver's side door into a live lane of traffic and thereby created a danger.

[62] I have already concluded that Ms. Rule could not move her vehicle although she would have liked to. It was inoperable. Accordingly, there was no realistic risk of her driving the vehicle. I do consider that there were at least two ways in which there was a realistic risk of danger associated with Ms. Rule and the vehicle. It is instructive to remember that when Mr. Vasiliou first saw Ms. Rule, she was standing in the live roadway in the rain at night while two vehicles approached and both vehicles had to swerve to avoid her. She was fortunate that she was not hit. Her actions in standing in the roadway does not meet the test in Wren for care or control of a vehicle even though it was a foolish and dangerous thing for her to have done. Standing on the roadway by itself does not involve a use of the vehicle or its fittings or equipment.

[63] However, it is clear to me that Ms. Rule did not understand the predicament she was in with her car or the extent of the damage to the vehicle. As mentioned above, Constable Peters testified that he found the missing wheel and that it was sheared off the vehicle. The wheel that he found still had the nuts in it as well as a piece of the axle connected to it. Ms. Rule thought she could simply take the spare tire out of the trunk and put it on her car and drive away. When Constable Haramis (who happened to be a former mechanic) said to her, as recorded on the breath room video, that he thought her vehicle was "done" she responded incredulously "what do you mean done?" and said "it is just a tire." She said that she "did not think it was that bad."

[64] It is clear to me that by the time police showed up, Ms. Rule had not yet formulated a plan for what she was going to do. As indicated, she did not understand the extent of the damage to her vehicle. When Constable Lewin showed up she was sending a text message and smoking a cigarette in the car. She had already been into the trunk of the vehicle trying to reach the spare tire. She had taken her son's hockey bag out and put it on the ground. She had not yet retrieved her spare tire out of the trunk but I do not believe that she had abandoned this idea. She was aware that her front tire was flat, but I don't think that would prevent her from trying to change the back tire.

[65] If the police had not shown up, it is my view that there was a realistic risk that she would continue to make efforts to get the spare tire out of the truck and try to put it on her vehicle using the car jack. She was not going to be successful as the axle was broken. In addition, there was also a realistic risk that she would open her car door into the live lane of traffic, as the Crown has submitted. She might do this to while in the process of further attempts to get the spare tire or just to further survey the damage. Neither of these risks were fanciful or unrealistic. The context for this conclusion is important. Ms. Rule was on a ramp leading to the 409 highway which in turn leads to the 401 highway. Although the traffic was said to be light at that time and the lighting good, this is a relative observation. Ms. Rule was located on a rainy night by Canada's largest airport right on the way to two 400 series highways. Her car was less than 1 foot from the edge of the roadway. She didn't have the proper judgment to stay off the roadway and stay in her vehicle while other vehicles were approaching. She had already created a risk of danger to herself and other drivers by standing in the live lane of traffic and there is every likelihood that she would use "the car or its fittings or equipment" to pose a realistic risk to other motorists and their passengers.

[66] Accordingly, while I have found that the inoperable nature of the car serves to rebut the presumption under s. 258(1)(a), when the police found her at 11:09 PM Ms. Rule had an ongoing intentional course of conduct with respect to the vehicle. She had ongoing care or control in circumstances that created a realistic risk of danger to persons or property. As a result, she was in actual or de facto care or control of the vehicle at the time the police arrived.

Issue 5 - Taking into account the answers to the questions above, has the Crown proved beyond a reasonable doubt that the accused had the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in her blood exceeded 80 mg of alcohol in 100 mL of blood contrary to s. 253(1)(b)?

[67] By reason of the foregoing findings, I have concluded that the over 80 charge has been proved beyond a reasonable doubt. I have found that it has been proved that Ms. Rule was driving the vehicle after 10:46 PM. The fact of the truncated readings of 140 and 130 mg of alcohol in 100 mL of blood combined with the presumption of identity in s. 258(1)(c) prove the over 80 charge beyond a reasonable doubt.

[68] I have also found, in the alternative, that Ms. Rule was in actual care or control of the vehicle when the police arrived at 11:09 PM. The presumption identity applies to this time as well and proves, in the alternative, the over 80 charge.

Issue 6 - Taking into account the answers to the questions above, has the Crown proved beyond a reasonable doubt that the accused had the care or control of a motor vehicle while her ability to operate the motor vehicle was impaired by alcohol contrary to s. 253(1)(a)?

[69] The following test for proof of impaired care or control of a motor vehicle was stated by Labrosse J.A. for the Ontario Court of Appeal and approved of by the Supreme Court of Canada:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. (emphasis added)

[70] I have concluded that the Crown has proved beyond a reasonable doubt that Ms. Rule had the care or control of a motor vehicle while her ability to operate the motor vehicle was impaired by alcohol. I base this conclusion on the following:

(a) For reasons previously stated, Ms. Rule was in care or control of her motor vehicle at the time of driving at about 11 PM and when Constable Lewin arrived at 11:09 PM;

(b) Both Constable Lewin and Constable Haramis were of the opinion that Ms. Rule's ability to operate a motor vehicle was impaired by alcohol. It is difficult to attach much weight to Constable Haramis' observation as he did not see Ms. Rule until about one hour and twenty minutes after Constable Lewin arrived on the scene. I do concur with Constable Haramis that Ms. Rule appeared somewhat impaired on the video based on the slurring of her words. Constable Haramis's opinion and the Court's observation of the slurring of the words is certainly consistent with impairment at the earlier time of care or control. Constable Lewin's perspective is of significantly more weight given that he formed the opinion at 11:23 PM which was right after she was in care or control of the vehicle at about 11:00 PM and at 11:09 PM;

(c) Ms. Rule had clearly been consuming alcohol as follows from the fact that Constable Lewin and Constable Haramis detected the smell of alcohol on her breath. Similarly, the breath readings established that she had alcohol in her system. Neither the smell of alcohol nor the breath readings on their own can be used, absent expert evidence, to determine the level of impairment;

(d) Ms. Rule stumbled when she exited the vehicle at Constable Lewin's request. She also had red rimmed eyes;

(e) Ms. Rule had impaired judgment such that she stood on a busy live lane roadway in the rain at night with at least two vehicles headed right at her which had to swerve to avoid her. She had been driving immediately before this occurred. This fact by itself is a highly persuasive one in my view that strongly points towards at least some degree of impairment.

[71] I have serious doubts as to whether or not Ms. Rule was involved in a hit-and-run accident but I cannot say with any degree of certainty that it did not happen. Accordingly, I have not factored that into my analysis as to whether or not she was impaired at the time of driving. I have taken the other factors noted above and considered them together with all of the other evidence and I am satisfied beyond a reasonable doubt that Ms. Rule had the care or control of a motor vehicle while her ability to operate the motor vehicle was impaired by alcohol.

Conclusion

[72] In conclusion, for the reasons given I find that the Crown has proven beyond a reasonable doubt that on or about September 20, 2013: Ms. Rule had the care or control of a motor vehicle while her ability to operate the motor vehicle was impaired by alcohol contrary to s. 253(1)(a) of the Code; and Ms. Rule had the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in her blood exceeded 80 mg of alcohol in 100 ml of blood contrary to s. 253(1)(b) of the Code.

[73] I will hear from the parties as to whether one of the charges should be stayed due to the overlap between the charges.

Released: April 30, 2015

Justice Paul F. Monahan