Court File and Parties

Court File No.: 14-0731 County of Renfrew Date: 2015-07-08 Ontario Court of Justice

Between: Her Majesty the Queen — and — Christopher Evans

Before: Justice Robert G. Selkirk

Heard on: December 24th, 2014, April 2nd, 2015 and June 17th, 2015

Reasons for Judgment released on: July 8th, 2015

Counsel:

• Elizabeth Ives-Ruyter for the Crown
• James McGillivary for the accused Christopher Evans

SELKIRK J.:

[1] Charge and Legal Issue

Mr. Evans is charged that on June 3rd, 2014 he had care or control of a vehicle while impaired by a drug. The issue is whether Mr. Evans was in care or control of a vehicle as defined by the Supreme Court of Canada in R. v. Boudreault, 2012 SCC 56.

[2] Facts at the Scene

On June 3rd, 2014 the accused was parked in a Walmart parking lot in the Town of Renfrew. This was around the noon hour. A witness, Ms. Jamieson, saw him sitting in the driver's seat in a reclined position. The vehicle was not running. She said he appeared to be intoxicated and he was inhaling the fumes from an aerosol can. As she watched he would put the aerosol can to his mouth, inhale the gas and then appear to fall asleep or pass out. She watched him do this for 10 to 15 minutes during which time she had called the police. She also took photographs of him, filed as Exhibit 1 (A-E). They show the accused in a reclined state sometimes inhaling the aerosol and sometimes appearing to be asleep. She remained until the police arrived.

[3] Police Arrival and Observations

Constable Dikih testified that he arrived, as did Constable Besner at 12:36 hours. He saw the accused who appeared to be passed out in a reclined driver's seat. Both windows were down. The keys were in the ignition but the vehicle was not running. Constable Dikih saw the accused, with his eyes closed, head resting on his left shoulder, put an aerosol can to his mouth, activate the spray, and inhale. He would "stiffen up" while inhaling. He would then relax. He appeared to be completely unaware that there were police officers standing on either side of the car. He used the inhalant twice while the officers watched. Constable Dikih then opened the door, placed his hand on the accused's wrist and asked him to step out. The accused opened his eyes. He appeared disoriented. When he got out he stumbled and Constable Dikih took one arm to prevent a fall. He took the accused to the back of the vehicle and arrested him at 12:41 for Impaired care or control of a vehicle.

[4] Rights to Counsel

He was read his right to counsel which he appeared to understand and indicated that he did not want counsel at that time.

[5] Post-Arrest Procedures

Because the Officer did not know the potential harm of using an inhalant an ambulance was called. It arrived at 12:45 but the accused declined medical assistance. At this point, the accused was described as lucid and aware. He was taken to the detachment. At 14:13 he was turned over to a Drug Recognition Evaluator Officer. At 14:51 he was returned to Constable Dikih. After doing the paperwork the accused was released and driven to the towing compound to pick up his vehicle as the officer saw no issue with his ability to drive.

[6] Cross-Examination of Constable Dikih

In cross-examination the Officer indicated that within five to ten minutes from the point when the officer took the inhalant away from him that the accused was, "fine", "his walking and talking were fine". He agreed that the canister appeared to be almost empty.

[7] Accused's Statement

Admitted as a voluntary statement, made at the time of his arrest, was the statement from the accused that he was in the parking lot because "he was homeless and had no other place to do it that would give him privacy."

[8] Evidence Regarding the Aerosol

Constable Besner testified that he seized the canister as Exhibit #2 and the receipt for it as Exhibit #3. The receipt shows that the aerosol was an Amazon Air Duster which is used to clean electronics. It was purchased that day at 12:01 from that Walmart.

[9] Chemical Analysis

As part of the process, a urine sample was obtained and analyzed. It was found to contain difluoroethane which is a listed ingredient in the aerosol duster.

[10] Toxicology Evidence

The Court heard from Rachelle Wallage who is a toxicologist with the Centre of Forensic Sciences. She testified that difluoroethane is a central nervous system depressant which would create an intense but short lived euphoric moment or a "high". This state could last up to ten minutes but she hastened to add that this was more of an estimate because it is not possible to study the effects on humans given that it is a very toxic chemical. She did not know how long it would take to become sober in that it would depend in part on the dosage and the tolerance of the person using it. She did agree that the effects could quickly dissipate and that after 90 minutes that it would be unlikely to see any effect. The evidence that within five to ten minutes that the accused was lucid did not surprise her.

[11] Drug Recognition Evaluator Evidence — Admissibility Issue

Constable MacInnes then testified. He is a certified Drug Recognition Evaluator Officer. The issue of whether the admissibility of his opinion evidence is to be determined under a Mohan voir dire or is governed by s. 254(3.1) was raised. It was decided to hear the evidence and then submissions. However, by the end of the evidence the accused was content to have the evidence admitted as it negated any possibility of a finding that at the time of the evaluation that the accused was impaired.

[12] R. v. Bingley

I note that this evidence was heard and admitted prior to having the benefit of R. v. Bingley, 2015 ONCA 439 which as I read it makes this type of evidence admissible through the operation of s.254(3.1) and that a Mohan voir dire is not needed.

[13] Drug Recognition Evaluator Findings

The demand by Constable MacInnes for a urine sample was not contested. Nonetheless the Court heard the foundation for the officers' conclusion that he had reasonable and probable grounds to make the demand. To the extent this conclusion is based on the observations of Constable Dikih and Constable Besner, I would agree. To the extent it is based on Constable MacInnes' evaluation this becomes more doubtful. But this was not argued as the evaluation more than raises a reasonable doubt about the accused's state of impairment at the time of the evaluation. In my view, it establishes that the accused's ability to drive was not impaired to the slightest degree. The finger to nose was "perfect". The heel to toe was "perfect". His ability to establish time was "close to perfect". His pulse was normal. He was polite and co-operative. His balance was good. His speech was fine. The only issue raised by Constable MacInnes was that he noted some involuntary jerking of the eye movement while doing the Horizontal Gaze Nystagmus and that on the Convergence Test that while his left eye converged that his right eye did a "loop". There was also a slow reaction by his pupils to light and his muscles (I do not know which muscle) was said to be "flaccid".

[14] Significance of the Evidence

Thus while the officers' conclusions might be questioned, it really does not matter given the observations of the officers' at the scene and the evidence that the aerosol spray being used contained difluoroethane which is a central nervous system depressant.

[15] Defence Position on Standard of Proof

The accused testified. After some discussion the defence indicated that the defence raised, that the accused was not in care or control of the vehicle as defined by the Criminal Code must be established on the standard of proof of a balance of probability.

[16] Accused's Testimony — Background and Plan

The accused said he is thirty-three years of age. At the time he was homeless, essentially living out of his car. He did have work, as a roofer, with two different companies, one in Ottawa and one in Renfrew. This was not full time employment but rather "on call". On June 3rd, 2014 he drove from Ottawa to Renfrew because he anticipated having work in Renfrew on the 4th. He arrived just prior to noon. He parked at the Walmart lot because he wanted to use an inhalant and he knew the parking lot was open until 9:00 or 10:00 p.m. At that time he intended to park behind the hospital and display a medical courier sign, which he had with him, so that people would think he was legitimately parked there and leave him alone until morning.

[17] Accused's Testimony — Reason for Use

His plan was to use the aerosol and remain there until dark. He used the aerosol because it was a central nervous system depressant. He has used it in the past. He suffers with anxiety and he could not afford his medications so he uses "the duster to veg out and not to think about things". He described his circumstances at the time as, "not good".

[18] Accused's Testimony — Timeline of Use

He confirmed he bought the aerosol at the Walmart that day and immediately began using it. It was almost empty by the time the officers arrived which we know to be approximately a half an hour later.

[19] Accused's Testimony — Effects of the Inhalant

He said the effect was to make his body "tingle". His breathing will slow and that there is an "intense rush" for a matter of seconds. The entire effect has dissipated within a minute and he would then take another puff. This is consistent with the officers' observations that they saw him take two puffs within a couple of minutes.

[20] Accused's Testimony — Intention Not to Drive While Impaired

He agreed he could not operate a vehicle after "huffing" but that he had no intention of driving until roughly nine hours later, well after he would be sober and able to drive.

[21] Cross-Examination of the Accused

In cross-examination he indicated he was familiar with the effects and the duration of those effects of using an inhalant. He reiterated that he uses it to reduce his anxiety. He was not challenged on his plan to remain at the Walmart until dark and then drive over to the hospital to park there until morning.

[22] Credibility Assessment

I can indicate that I accept his evidence without qualification or hesitation. Indeed, all of the witnesses were credible, reliable and consistent with each other.

[23] Factual Findings

I find, on a balance of probability that the accused went into Walmart to buy the inhalant, that he returned to his car for the purpose of using the inhalant and that he had a very definite plan of remaining there until well after he was sober and able to drive. After all, he had no place to go and no one to see. His evidence was unchallenged on this point.

[24] Application of Boudreault Test

This factual scenario requires that the Supreme Court of Canada's dictates in Boudreault be applied with some modification due to the fact that Boudreault dealt with alcohol impairment and we are dealing with a very short lived impairment caused by an inhalant. Nonetheless the basic principles do apply.

[25] Boudreault — Presumption of Care or Control

At paragraph 37, the Court writes:

"Accordingly, an accused found in the driver's seat will be presumed, as a matter of law, to have care or control of the vehicle, unless the accused satisfies the court that he or she had no intention to drive — an intention that, pursuant to Ford, is not an essential element of the offence!"

[26] Boudreault — Realistic Risk of Danger

At paragraph 39, the Court writes:

"Put differently, s. 258(1)(a) indicates that proof of voluntary inebriation and voluntary occupancy of the driver's seat do not by their coexistence alone conclusively establish "care or control" under s. 253(1) of the Criminal Code. Something more is required and, in my view, the "something more" is a realistic risk of danger to persons or property."

[27] Boudreault — Intention to Drive and Risk of Danger

At paragraphs 41 and 42, the Court writes:

"A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control. On the other hand, an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion — without intending at that moment to do so — may nevertheless present a realistic risk of danger.

In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property."

[28] Crown's Position on Realistic Risk

The Crown did not challenge the accused's evidence that he did not intend to drive the vehicle while impaired. I agree. However, the Crown relies on the first two risks, as stated above, that the accused could, while still impaired, change his mind and proceed to drive or that he could unintentionally set the vehicle in motion to establish care or control of the vehicle. The Crown agrees that the third risk is not applicable here.

[29] Boudreault — Low Threshold for Realistic Risk

Unless the accused negates these risks on a standard of balance of probability then he should be convicted because he was found in the driver's seat while impaired. At paragraph 48 the Court writes:

"I need hardly reiterate that "realistic risk" is a low threshold and, in the absence of evidence to the contrary, 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 credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case."

[30] Finding — No Realistic Risk of Danger

On the facts of this case, I find that there is no realistic risk of danger. To repeat myself, I accept that the accused did not intend to drive the vehicle. The car was not running and his seat was reclined. There was no risk that he would change his mind and drive while still impaired because he had nowhere to go, he did not want to go anywhere and he was sober within five to ten minutes of his last puff. He was familiar with the effects of the inhalant. He knew he could not drive for a short period of time but after that his ability to drive would not be impaired to any degree.

[31] Finding — No Risk of Unintentional Vehicle Operation

As well, given his plan and his situation with the seat reclined, the car parked, engine off, there is no realistic risk of his unintentionally setting the car in motion. A number of discrete acts would have to take place to put the vehicle in motion and there is no reason to believe anyone of them would happen until at the very earliest the effects of the inhalant had dissipated.

[32] Verdict

Having said that it follows that the accused must be found not guilty. While the Court does not condone or encourage the use of inhalants to self-medicate at any time let alone while in the driver's seat of a car, on these facts the offence of having the care or control of a vehicle while impaired is not made out.

[33] Conclusion — Accused's Current Circumstances

Happily, Mr. Evans no longer uses inhalants to medicate himself. He has a job, a home, appropriate medications and a girlfriend. His circumstances have much improved over the sorry state he found himself in, a year ago.

Released: July 8th, 2015

The Honourable Mr. Justice Robert G. Selkirk