Court File and Parties
Ontario Court of Justice
Date: 2015-05-07
Court File No.: Halton 13-3969
Between:
Her Majesty the Queen
— and —
David Earl Dickson
Before: Justice L.M. Baldwin
Heard on: January 9, 2015 and March 16, 2015
Reasons for Judgment released on: May 7, 2015
Counsel:
- Sean Bradley, counsel for the Crown
- Frank Genesee, counsel for the defendant David Earl Dickson
BALDWIN J.:
[1] Charge
[1] David Earl Dickson is charged with impaired care or control of a motor vehicle contrary to section 253(1)(a) of the Criminal Code.
[2] The events in question took place on or about December 17th, 2013 at the City of Burlington.
[3] The Crown proceeded summarily.
[4] The Crown does not have the benefit of the presumption contained in s. 258(1)(a) of the Criminal Code as Mr. Dickson was not found in the driver's seat when the police came upon his vehicle. Mr. Dickson was sleeping in the front passenger seat at the time; the engine was on.
[5] There was no issue at trial that Mr. Dickson was impaired by alcohol at the relevant time. The issue is whether the elements of care or control have been proven beyond a reasonable doubt. Was there a realistic risk that the vehicle could have been put in motion or a change in mind in deciding to drive while impaired by alcohol?
Summary of the Testimony of Officer Andrew Bishop
[6] He has been an Officer with HRPS since April of 2011.
[7] He was on duty driving a marked cruiser on December 17th, 2013. He was patrolling Plains Road in the City of Burlington. Specifically, he was checking out the parking lot of the Solid Gold strip club located at 61 Plains Road East at Cooke Boulevard. The strip club closes at 2 a.m.
[8] It was 3:45 a.m. when he observed Mr. Dickson's SUV vehicle parked in front of the Solid Gold. The vehicle was parked sideways, across the lines. It was not parked in a regular spot. The engine was running and smoke was coming from the exhaust.
[9] Officer Bishop pulled up beside the SUV and observed Mr. Dickson sleeping in the passenger seat. The seat was in the reclined position. Mr. Dickson was the lone occupant.
[10] Officer Bishop tapped on the passenger side window to see if Mr. Dickson would wake up. He then shone his flashlight into Mr. Dickson's face. When Mr. Dickson opened his eyes, Officer Bishop observed that his pupils were dilated. Officer Bishop asked him to exit the vehicle. The dash of the SUV was lit up and the engine was running.
[11] Mr. Dickson told that Officer that he had been at the Solid Gold that night and he had a lot to drink. He stated that he was originally parked at the rear of the Solid Gold and then moved around to the front because he felt he was too intoxicated to drive. (Transcript Jan. 9/15 p. 11)
[12] Officer Bishop arrested Mr. Dickson for impaired care or control and placed him in the back of his cruiser. Rights to Counsel were read at 3:56 a.m.; Caution was read at 3:57 a.m.; Breath Demand was read at 3:58 a.m. Mr. Dickson was taken to 30 Division for breath tests.[1]
[13] In cross-examination, Officer Bishop testified that he may have checked out the Solid Gold front and back parking lots earlier in the evening. He had no notations of anything unusual he observed at that location. He cannot recall if he actually did check out those parking lots earlier that evening. (p. 35)
[14] When he first observed Mr. Dickson in the passenger seat, he was on his left side facing the driver's side door. (p. 27 & p. 33)
[15] Mr. Dickson told Officer Bishop at the scene that he left the Solid Gold at 11:00 p.m.
[16] In re-examination, Officer Bishop testified that Mr. Dickson told him at the scene that he arrived at the Solid Gold at nine o'clock and he exited at eleven o'clock.
Summary of the Testimony of David Earl Dickson
[17] Mr. Dickson was born in Great Britain. He came to Canada when he was 22 years of age.
[18] He is now 68 years of age. He has no criminal record.
[19] Mr. Dickson has lived in the Burlington area since he arrived in Canada. For 3 years he worked in the steel industry; he was a fire fighter in Burlington for 26 years; he ran a moving business in Burlington until 2008.
[20] For 5 years prior to his arrest in this matter, he worked as a truck driver hauling freight for Schneider National.
[21] Mr. Dickson lives at 2054 Brant Street, Unit #5. He is married. His wife does not drive. She works in a retail store in the Burlington Mall as a sales clerk. Mr. Dickson drives her to and from work when he is home. When he is not home, either friends drive her or she takes the bus.
[22] His personal vehicle is a 2004 Ford Explorer that he had just purchased 3 to 4 weeks before this incident. It had been "executive driven." (p. 85)
[23] On (Monday) December 16, 2013, he picked his wife up from her work. They had some dinner. They had an argument about the use of the TV. Voices were raised and he left. He had not consumed any alcohol at his house.
[24] Mr. Dickson testified that during the course of the argument with his wife, his wife would not give him his wallet that contains his Canadian cards (including his driver's licence) and money. Before he left the house, he reached up into a cupboard and took a wallet that contains some U.S. money and a fast pass card he uses to cross the border into the U.S. That card is what he produced to the Officer when he was asked for his driver's licence at the time of his arrest. (p. 97)
[25] His plan was to go to the truck terminal in Aberfoyle, just north of the 401, to see if the truck he was driving the next day was in. Somebody else was driving that truck on the Monday and Mr. Dickson said he was going to change it over and get it ready for him to drive at 6:30 a.m. on the Tuesday. (p. 79)
[26] If the truck had been there, he was going to refuel it which would save him some time the next morning before he began his assigned truck hauling trip. The truck was not there.
[27] He then planned to return home and bring his wife Tim Horton's coffee from Plains Road and Brant street as a "peace offering".
[28] As he was coming down Highway 6, he realized that he had to urinate and he was not going to make it to the Tim Horton's, so he exited at Waterdown Road (turned east onto Plains Road) and pulled in behind the Solid Gold strip club because he thought it had been closed a long time ago. He was looking for some bushes to urinate into. (p. 81)
[29] The last time he had been to the Solid Gold was 5 to 7 years before.
[30] As he pulled in there, somebody came out the back door and "that's when it went awry, as you might say". (p. 82)
[31] He parked his car and decided to go inside. He entered through the back door. He went inside to use the washroom. It was approximately 9:00 p.m.
[32] While inside he decided to have a couple of beers. He had a beer and thought if he had a couple of beers he was not going to drive home, so he moved his vehicle from the back to the front parking lot at approximately 9:30 p.m. Another vehicle was parked in the front sideways so he decided to park behind that vehicle the same way. That vehicle, a pick-up truck, was the only vehicle in the front parking lot. Mr. Dickson does not know what time that other vehicle left the parking lot.
[33] He did not want to leave his vehicle in the back parking lot because he thought it was too "risky". (p. 85) Then he went back inside.
[34] Back inside he had more beers – maybe four more; in total he had 5 or 6 beers at the strip club.
[35] Before he left the Solid Gold the first time, he asked the waitress if he could rent a room there because he thought it was a motel or hotel. The waitress said no, that only employees were allowed to stay there.
[36] Then he asked the waitress to call him a cab. She said, "yeah, so that was that" and he went outside and stood for a while. Then he sat in his truck. Nothing happened. He thought the place closed at midnight. He nodded off in his truck. He was "not really sleeping". (p. 87)
[37] At about one o'clock or 1:30 a.m. he got cold and that is when he started the engine up and got in the passenger's side. He was thinking that the place was closed, but actually it was not. He was also thinking that nobody would be coming there tonight.
[38] His plan was to call his wife in the morning and she would phone her friend Cindy to come and pick him up (p. 88). Most of the time, when he was drinking, he would get a cab and then Cindy would drive him to pick up his car in the morning. (p. 98)
[39] He had no intention of driving. If he had any intention of driving he would have driven home. By sleeping in the car, he was trying to protect his licence.
[40] His plan was to wait until it got light, around 7:00 or 7:15, and then he would call his wife to call Cindy and tell her where he was, and have Cindy come down and pick him up. Sometimes Cindy brings her husband Eddy with her. (p. 94) Cindy would then drive him home in her car. Then he planned to get a ride back to Solid Gold around 10 or 11 o'clock in the morning after he had picked up things from home that he needed for his truck hauling job that day. He planned to drive to Aberfoyle and go to work.
Re: Setting the Vehicle in Motion
[41] Mr. Dickson testified that the SUV had 2 bucket seats separated by a small console in the front. There is a gearshift that has a handle. The handle cannot be moved unless a 'trigger' is squeezed. None of that can be moved unless your foot is on the brake. Exhibit #2 is a photograph showing the console and the gearshift.
[42] In cross-examination, Mr. Dickson said that he had been scheduled to work on December 17, 2013. If the truck is at the depot by 5:00 or 6:00 a.m. he gets a good load. If it arrives at 11:00 or 12:00, he has to wait for a load. This could take up to 6:00 p.m.
[43] When he is on the road, he is gone for 7 to 14 days, so he needs to take a lot of stuff with him.
[44] His original plan was to take his wife to work in the morning and then to drive to work.
[45] If the truck had been at the depot on December 16, 2013, he would have slept in the truck. He would have punched in earlier and got his load earlier. Then he would have driven back to Burlington to get his stuff and then head back up for the trip.
[46] On December 16, 2013, after he left the Aberfoyle truck depot, he had planned to go down the hill on Highway #6, eastbound on the 403, pass by the Waterdown Road exit, and get off at the exit for Brant Street and the North Service Road. He was going to get the 'peace offering' coffees at the Tim Horton's on Brant Street.
[47] Because of the urgent need to urinate when he was coming down Highway #6, he decided to take the Waterdown Road exit instead. He originally planned to relieve himself at the Tim Horton's.
[48] Mr. Dickson could not explain why he did not stop at a gas station to relieve himself in a washroom.
[49] Mr. Dickson repeated that he pulled in behind the strip club to urinate in the bushes. A man approached him, so he ran inside. Once inside, he decided to stop for a beer. The time was around 8:30 or 9:00 p.m.
[50] There was hardly anybody inside; maybe 5 or 6 boys and somebody else. He ordered a second beer.
[51] When the waitress was bringing the second beer, he moved his car from the back to the front because it was safer.
[52] He parked behind a pick-up truck that had been parked in a crooked manner. He parked his vehicle that way because for some reason the other guy did.
[53] He went back into the club and consumed up to 6 beers. Mr. Dickson agreed that he was impaired.
[54] At some point he asked the waitress if he could rent a room for the night. She said the rooms are for employees only.
[55] He paid his tab and went outside to wait for a bus. He waited 10 minutes, it felt like half an hour; a bus did not come. Then he sat in his vehicle and waited for a cab.
[56] At approximately 11:30 he went back into the club and asked the waitress to call a cab for him again. She told him that the taxi was coming. Mr. Dickson went back to his car.
[57] Mr. Dickson testified that he had a cell phone with him at the time. He did not use it to call a cab because he does not know how to call a cab using his cell phone. He only uses his phone to get the weather and the news.
[58] When asked why he did not call his wife and ask her to order a taxi for him, Mr. Dickson answered that it was too late. His wife goes to bed early.
[59] Sometime after 12:00 a.m. he was back in his car and it was cold. He put the keys into the ignition to put the heat on. He then got into the passenger seat to sleep.
[60] His new plan was to stay until the morning and call his wife around 7:00 a.m. He would ask his wife to call Cindy to come and get him. He would go home and get the things he needed for his work. That would take him approximately 2 hours. Then he would get a ride from a friend up to the Aberfoyle depot.
[61] Mr. Dickson agreed that this plan did not include how he was going to get his car back home from the Solid Gold parking lot.
[62] Mr. Dickson repeated that his primary goal was not to drive his vehicle from the Solid Gold parking lot.
Position of the Defence
[63] The defence submits that there was no danger that Mr. Dickson could accidentally or intentionally put the vehicle in motion.
[64] The defence submits that by falling asleep in the passenger seat, with the ignition on for purposes of heat, Mr. Dickson was using his vehicle as a place to sleep only.
[65] The defence submits that Mr. Dickson's evidence is credible and his explanation that he had a plan to get to his home in the morning that did not involve driving his vehicle from the Solid Gold should raise a reasonable doubt.
Position of the Crown
[66] The Crown submits that Mr. Dickson's evidence of the events in question is nonsensical and should be rejected.
[67] The Crown submits that there was no reasonable evidence as to why Mr. Dickson did not take a cab home from the Solid Gold when he became aware that he was too impaired to drive.
[68] The Crown submits that there was no reasonable explanation from Mr. Dickson as to how he planned to get his car home from the Solid Gold parking lot.
[69] The Crown submits that Mr. Dickson's real plan was to drive his vehicle either home in the morning when he woke up or drive up to the Aberfoyle truck depot.
[70] The Crown submits that there was a real risk that Mr. Dickson would drive his vehicle away from the strip club when his ability to do so was impaired by alcohol.
Cases Referred To
[71] Both counsel referred to the following cases in support of their positions: R. v. Boudreault, 2012 SCC 56; R. v. Smits, 2012 ONCA 524; R. v. Szymanski; R. v. Pincemin, 2004 SKCA 33; R. v. Burton, [2000] O.J. No. 1781.
Findings of Fact – R. v. W.D. Applied
[72] I agree that Mr. Dickson's testimony has raised a reasonable doubt on the issue of whether the vehicle could have accidentally been put in motion.
[73] He was asleep in the passenger seat with the engine on for purposes of heat only. His unchallenged evidence was that in order to put the car in gear, he would need to press a button on the gear shift and move the gear shift handle out of park. He would need to have his foot on the brake at the same time. It is reasonable to infer from this evidence that he would need to be in the driver's seat to do this. He could not accidently set the vehicle in motion from the passenger seat based on this evidence.
[74] However, I find that Mr. Dickson's evidence does not raise a reasonable doubt on the issue of deciding to drive while impaired by alcohol. Mr. Dickson's evidence about his activities on the night/morning in question, including his various plans not to drive away from the Solid Gold, are all rejected as being incredible and defying common sense.
[75] I find as a fact that Mr. Dickson deliberately drove to the Solid Gold strip club to consume alcohol. This premise is well known to Burlington residents and the activities there are regularly monitored by the police. Mr. Dickson testified that he has been there before. He has lived in the Burlington area for over 4 decades. The testimony he gave about going there to urinate in the back bushes was incredible.
[76] I will start with his plans once he started drinking at the Solid Gold. The first plan appears to be a request to a waitress to call him a cab. The cab did not show. Then he stood outside for some 10 minutes and waited for a bus. The bus did not show up. He went back inside and asked the waitress to call him a cab for a second time. He went back outside and waited in his car. Again, the cab did not show. I reject as fabrication that Mr. Dickson waited for a cab twice and a bus.
[77] Mr. Dickson had a cell phone. He could have called for a cab if that was his intended way to get back home. I reject his evidence that he does not know how to call a cab on his cell phone.
[78] Mr. Dickson gave inconsistent evidence as to when he decided to use his car as a place to sleep. The evidence varies from around midnight to approximately 1:30 a.m. Accordingly, this evidence is unreliable.
[79] His next set of plans involved calling his wife at 7:00 a.m. to involve Cindy to pick him up. Clearly he intended to use his cell phone to call his wife if this was his real plan.
[80] In cross-examination it was clear that Mr. Dickson had no plan as to how he was going to get his car out of the Solid Gold parking lot. He said that his wife and Cindy would bring him home in Cindy's car and then a friend would drive him up to the truck depot for work.
[81] It is reasonable to infer, and I do, that Mr. Dickson planned to drive his car either back home or back up to the truck depot when he woke up in the early morning. There was no credible plan to ensure his safe transportation home. This establishes care or control of a vehicle with a real risk of driving while impaired by alcohol.
[82] The leading case on the elements of the offence of care or control is R. v. Boudreault from the Supreme Court of Canada (supra).
[83] Care or control within the meaning of s. 253(1) 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.
[84] The purpose of criminalizing having the care or control of a vehicle while impaired is preventive. While the evil is the danger of impaired operation of a vehicle, a wider ambit of criminality has been created to prevent that evil from materializing. (per Cromwell J, in dissent).
[85] The facts in Boudreault were as follows: Because he was too drunk to drive home, Mr. Boudreault called a special service called "Taxic" to come and get him and to also drive his vehicle home. Taxic sends 2 drivers – one to take the inebriated motorist home and the other to drive their vehicle home. Mr. Boudreault had used the service in the past. He sat in his truck and waited for this service to come and get him. He turned the engine on to keep warm until it arrived. He fell asleep. The taxi driver arrived and called the police after finding Mr. Boudreault inebriated and asleep in his truck. The trial judge acquitted him on the basis that there was no risk that Boudreault would at any point intentionally set the vehicle in motion because he had taken care to arrange an alternate plan to ensure his safe transportation home. The Supreme Court of Canada held that this was a finding of fact that the trial judge was entitled to make on the evidence. Mr. Boudreault's acquittal on the charge of impaired care or control was upheld.
[86] Unlike the case of Boudreault, I conclude that Mr. Dickson did not have a concrete and reliable plan to get himself home. There was a realistic risk that Mr. Dickson would drive his vehicle while impaired by alcohol.
[87] The essential elements of the offence have been proven beyond a reasonable doubt and a finding of guilt is registered.
Released: May 7, 2015
Signed: "Justice Lesley M. Baldwin"
Footnote
[1] A charge of failing or refusing to provide a suitable breath sample was dismissed at the Crown's request on January 9, 2015, acknowledging a section 10(b) Charter violation with respect to a failure to facilitate access to counsel of choice before Mr. Dickson entered the breath room.
Accordingly, the testimony of Officer Syring, the breath technician, and the DVD of the breath room interview, should have been excluded from the trial evidence. I will not be considering that as admissible evidence in these final reasons for judgment.
I should note that there was a brief reference to statements to the breath technician in earlier reasons dismissing a motion for non-suit. On the basis that this evidence is inadmissible, I still rule that the non-suit motion is dismissed.