Court File and Parties
Ontario Court of Justice
Date: July 9, 2015
Court File No.: Halton 14-1293
Between:
Her Majesty the Queen
— and —
Benjamin Smith
Before: Justice L.M. Baldwin
Heard: March 23, 2015
Reasons for Judgment Released: July 9, 2015
Counsel:
- N. Chiera, for the Crown
- P. Dotsikas, for the defendant Benjamin Smith
BALDWIN J.:
Introduction
[1] Benjamin Smith was charged with impaired care or control of a motor vehicle and over 80 care or control of a motor vehicle on July 6, 2014, in Burlington.
[2] Benjamin Smith was found in the driver's seat of his motor vehicle while impaired by alcohol. The defence called evidence and submits that they have rebutted the presumption available to the Crown pursuant to section 258.(1) of the Criminal Code.
[3] The Crown submits that based on a WD analysis the defence evidence has not raised a reasonable doubt and should be rejected.
[4] The defence version is that Mr. Smith went out to his car to look for cigarettes only. The ignition was not on. He denies telling the 2 civilian witnesses that he was going to drive home when they approached him in the parking lot.
[5] Charter Applications were abandoned during the course of the trial.
[6] Three witnesses testified for the Crown; two witnesses were called for the defence.
[7] The events in question took place in the parking lot outside of Gator Ted's Sports Bar located at Guelph Line and Upper Middle Road in Burlington.
Summary of the Testimony of Christopher Stevens Jr.
[8] He works as a private investigator.
[9] On July 6, 2014, he played baseball until 8:00 p.m.
[10] He arrived at Gator Ted's Sports Bar at approximately 8:30 p.m.
[11] He went there to meet with his father, Christopher Stevens Sr., who is a police officer in the Region of Peel, and with his mother.
[12] As he was entering the bar, he saw Mr. Smith stumble out of the bar. Mr. Smith was swaying as he walked and appeared to be impaired.
[13] He saw Mr. Smith go to a motor vehicle that was 50 to 60 meters away. He saw the vehicle start up and he saw smoke coming from the exhaust of the motor vehicle.
[14] Mr. Stevens Jr. went into the bar and located his father within 10 seconds. He told his father the situation, and he and his father ran outside approximately 20 seconds later.
[15] Mr. Stevens Jr. pointed the car out to his father. The car was in the same position.
[16] They approached the car and his father knocked on the driver's side window.
[17] The motor vehicle was on. Mr. Smith was sitting in the driver's seat.
[18] Mr. Smith put the driver's side window down.
[19] Mr. Stevens Jr.'s father identified himself as a police officer and asked Mr. Smith to turn the vehicle off. Mr. Smith did.
[20] Mr. Stevens Jr.'s father asked Mr. Smith where he was going and Mr. Smith said that he was going home.
[21] Mr. Smith asked his father if he had any identification.
[22] His father asked him to go back into the bar and get his wallet from his mother. Mr. Stevens Jr. did so and was back to the car within 30 seconds. His father was still standing beside the car. Mr. Smith was still seated in the car.
[23] Mr. Stevens Jr.'s father presented his police identification and asked Mr. Smith to step out of the car. Before Mr. Smith stepped out of the car, Mr. Stevens Jr. noticed that Mr. Smith had been texting on his cell phone. Mr. Smith was not talking on his cell phone. Mr. Smith stepped out of the car.
[24] Mr. Stevens Jr.'s father then called Halton Regional Police. It took them 15 to 20 minutes to get there.
[25] A female friend of Mr. Smith's then came out of the bar and up to the car and asked Mr. Smith where his smokes were. Mr. Smith told her that he was looking for cigarettes and that 'these guys stopped me'.
[26] Then a man came out of the bar and up to the car. The female referred to this man as her 'dad'. This man may have arrived when HRPS were already there.
[27] Mr. Stevens Jr. did not see any cigarettes at the scene.
[28] Mr. Stevens Jr. did not have any direct conversations with Mr. Smith at the scene.
[29] Mr. Stevens Jr. gave a written statement to the Halton police when they arrived.
[30] In cross-examination, Mr. Stevens Jr. testified that he used to work undercover for the LCBO for 5 years and he has dealt with intoxicated people before.
[31] He also used to work at Joe Dog's in downtown Burlington and has had to call the police to report drunk drivers before.
[32] In his police statement he said that Mr. Smith told his father that he was going to drive home.
[33] It is not in the police statement that he saw Mr. Smith texting on his cell phone. Mr. Stevens Jr. testified that when the Crown asked him what Mr. Smith was doing in the car before he got out in examination in-Chief, he remembered that Mr. Smith was texting.
[34] Mr. Stevens Jr. denied that he had made up his evidence that Mr. Smith was texting in his car.
[35] Mr. Stevens Jr. agreed that there was nothing in his police statement about the conversation about the cigarettes at the scene.
[36] Mr. Stevens Jr. disagreed with the defence suggestion that the engine was not on when Mr. Smith was sitting in the car.
[37] Mr. Stevens Jr. disagreed with the defence suggestion that at no time was the engine to the motor vehicle on.
Testimony of Christopher Stevens Sr.
[38] He has been employed as a Peel Regional Police Officer since 2003.
[39] On July 6, 2014, he was off duty.
[40] He attended Gator Ted's Sports Bar after a baseball game. His wife was there and his son was meeting them there as well.
[41] He had just ordered his meal when his son arrived at approximately 8:05 p.m.
[42] His son appeared panicked and said, 'I need you to come out right away'. He and his son exited the bar.
[43] His son pointed to a red Nissan Altima and said 'that guy is hammered'.
[44] The Nissan was 15 to 20 cars up the parking lot from the door to the bar.
[45] Mr. Stevens Sr. approached the motor vehicle. The car was running. He could hear the engine running and the lights were on.
[46] Mr. Smith was in the driver's seat with his feet in the pedal area. Mr. Smith was talking to someone on his cell phone.
[47] Mr. Stevens Sr. knocked on the window. Mr. Smith rolled the window down. Mr. Stevens Sr. asked Mr. Smith where he was going and Mr. Smith said that he was going home.
[48] Mr. Stevens Sr. asked Mr. Smith where he lived and Mr. Smith said 'around the corner' or words to that effect.
[49] Mr. Stevens Sr. could smell the odour of alcohol on Mr. Smith's breath and noted that Mr. Smith's speech was very slurred and his eyes were glossy.
[50] Mr. Stevens Sr. identified himself as a police officer and asked Mr. Smith to step outside the car and to shut the motor vehicle down. Mr. Smith did shut the motor vehicle down.
[51] Mr. Stevens Sr. asked his son to get his police identification that was in his wallet with his wife in the bar.
[52] His son ran back to the bar and retrieved it. His son was gone for less than a minute.
[53] Mr. Stevens Sr. testified that he had formed grounds to arrest Mr. Smith for impaired care or control of a motor vehicle. He had his son call HRPS.
[54] The HRPS were there within a couple of minutes.
[55] Before they arrived, Mr. Smith was out of his car. Mr. Smith was using the car to support himself.
[56] Mr. Smith told Mr. Stevens Sr. that he would take a cab home if Mr. Stevens Sr. would let him go.
[57] Mr. Smith's girlfriend came out of the bar. Mr. Stevens Sr. testified that she told him that she was Mr. Smith's girlfriend.
[58] The girlfriend said that she was going to get her 'great big father' to come out.
[59] Her father came out just before the police arrived.
[60] The girlfriend said that Mr. Smith was getting her cigarettes. She yelled at Mr. Smith for wanting to go home. She said, 'I can't believe you were leaving without me.'
[61] Mr. Stevens Sr. testified that this seemed to be a 'fake/staged' conversation.
[62] Mr. Stevens Sr. provided a written statement to HRPS on scene.
[63] In cross-examination, Mr. Stevens Sr. agreed that there was nothing in his police statement about the conversations with the girlfriend or her father and Mr. Smith. He agreed that there was nothing in his statement about Mr. Smith offering to take a cab home. Mr. Stevens Sr. testified he did not include those issues as he did not think they were important to the issue of impairment.
[64] Mr. Stevens testified that the distance from the bar door to Mr. Smith's vehicle was approximately 60 metres. There were cars parked on both sides of Mr. Smith's vehicle.
[65] Mr. Stevens Sr. testified that Mr. Smith's car was 'definitely' running and Mr. Smith 'definitely' said that he was going home.
[66] After he showed Mr. Smith his police identification, he told Mr. Smith that it was obvious that he was impaired and that they were going to call Halton Regional Police.
Testimony of Officer Shannon Booney
[67] Officer Booney has been with HRPS since April of 2007.
[68] On July 6, 2014, she received a dispatch call in this matter at 8:14 p.m.
[69] She arrived on scene at 8:19 p.m. She described the scene as a large commercial parking lot in a strip mall plaza. There is a McDonalds, a TD Bank, a Food Basics and the Gator Ted's Sports Bar located there.
[70] She was flagged down by the last 2 Crown witnesses. She observed Mr. Smith leaning up against his red Nissan Altima.
[71] She spoke to the 2 witnesses and formed grounds that Mr. Smith was in care or control of a vehicle while impaired by alcohol.
[72] Officer Booney noted that Mr. Smith was slurring his words, he had bloodshot eyes and there was an odour of alcohol on his breath.
[73] Mr. Smith was arrested and given rights to counsel at 8:28 p.m.; Mr. Smith was cautioned at 8:30 p.m.; the Breath Demand was read at 8:32 p.m.
[74] As Mr. Smith was being handcuffed, he demanded to know why he was under arrest. Officer Booney explained it to him again.
[75] A large heavy-set man with a beard then appeared from Gator Ted's. This man became verbally abusive when Mr. Smith was placed in her cruiser. Officer Booney was also in her cruiser still in the parking lot. The other female officer on scene asked the man to leave.
[76] The man said that they (the police) were wrong. He banged his fist on the cruiser, gave her a peace sign and said 'good luck fuckers I'll see you in court'.
[77] Officer Booney transported Mr. Smith to 30 District where he spoke with Duty Counsel from 9:26 p.m. to 9:30 p.m.
[78] He provided 2 suitable samples of his breath to a qualified Intoxilyzer technician as set out in Exhibit #1. The readings were both 160 milligrams of alcohol in 100 millilitres of blood.
Testimony of Benjamin Smith
[79] Mr. Smith is 37 years of age and has no criminal record. He works as a meat cutter and lives in Ottawa now. His boss is Steve Currie. Mr. Smith has known Mr. Currie since 2008.
[80] Mr. Smith grew up in Burlington.
[81] On July 6, 2014, he was working locally.
[82] He drove Steve Currie's daughter, Amanda Currie, to Gator Ted's bar. They arrived sometime between 5:00 and 5:30 p.m.
[83] Mr. Currie was meeting them there for dinner. Mr. Currie had spent the day preparing his house for sale because of the upcoming move to Ottawa. Mr. Currie arrived approximately 15 minutes later.
[84] Mr. Smith testified that he had consumed at least 6 pints of beer at Gator Ted's. He did not count.
[85] Amanda asked him for cigarettes. He did not have any because he gave up smoking 3 years ago. Amanda then asked him to check his car to see if her smokes had fallen out of her purse when they drove to the bar.
[86] Mr. Smith went to his car and sat in the driver's seat. He was looking for Amanda's cigarettes under and behind the passenger seat she had used.
[87] He was in the car for 2 to 3 minutes when he heard the knock on the car window and saw the 2 Crown witnesses for the first time.
[88] Mr. Smith testified that he never started the engine of the car. He was only in the car to look for the cigarettes. He did not find them. He was going to go back into the bar and eat his dinner of chicken wings.
[89] Mr. Smith testified that he had used the remote entry to enter the car. He used the key fob to roll the driver's side window down. He did not have the key to the car in the ignition. The engine was not on.
[90] When the man who identified himself as an off-duty police officer approached him, he did not say that he was going home and that he lived just around the corner. He told the man that he was looking for cigarettes.
[91] Mr. Smith did ask to see this man's police identification. The man's son got the identification and Mr. Smith was told to wait for the police.
[92] Amanda came out of the bar because he was taking so long to get the cigarettes.
[93] Mr. Smith did not text anyone from his car. He did not call anyone or send any E-mails.
[94] His boss came out. Mr. Smith did not hear anything his boss said to the police.
[95] Mr. Smith's plan was to go back into the bar and eat dinner. He was going to either call a taxi or his mother to come and pick him up. He had no intention of driving home.
[96] Mr. Smith testified that he has been in Gator Ted's Bar before.
[97] He has abandoned his vehicle when he has had too much to drink maybe 5 or 6 times before.
[98] In cross-examination, Mr. Smith described his vehicle as being a 2006 Nissan Altima 2.5 SL automatic. It has power windows that can be activated with the power key fob.
[99] When he left the bar to look for the cigarettes, his boss was waiting to get a beer and they had already ordered the food. He had not started to eat the chicken wing dinner before he left the bar.
[100] He was a 'little tipsy' when he left the bar.
[101] There was no other car parked beside the driver's side of his car.
[102] When inside the car, he kept the keys in his crotch.
[103] He looked in the front, sides and behind the passenger seat sifting through the garbage in his car for the cigarettes.
[104] When the off-duty police officer asked him what he was doing, he told him he was looking for cigarettes. He never said that he was going home.
[105] Amanda came outside about 5 minutes later. Amanda and Steve both talked about him going to the car to look for cigarettes when they had all been in the bar. The HRPS arrived about 5 minutes later.
Consent Statement re: Nissan Altima's Power Fob Abilities
[106] The fob can open the locked car. Fob entry results in the upper tail lights going on.
[107] If the brakes are tapped, the bottom tail lights go on.
[108] The power fob will activate the windows to go down.
Testimony of Stephen Currie
[109] Mr. Smith works for him. They both worked for Whole Foods in Ontario and now they work in Ottawa as well.
[110] On July 6, 2014, he lived down the road from Gator Ted's Bar.
[111] He was getting his house ready to sell and Mr. Smith had been helping him out. Mr. Smith worked until 5 p.m.
[112] Mr. Currie asked Mr. Smith to pick up his daughter Amanda and take her to the bar where they were all going to have dinner together. Mr. Currie was going to pay for the dinner. It was wing day. Mr. Currie arrived at the bar close to 6:00 p.m.
[113] Amanda was trying to quit smoking, but she wanted a cigarette. Mr. Smith left the bar to look for cigarettes.
[114] Mr. Currie testified that he had consumed 3 mini jugs of beer by that time. He had no plans to drive home. His plan was to walk home. It was a 10-minute walk to his home.
[115] He had just ordered the chicken wings when a lady in the bar told him that his friend was being arrested.
[116] Amanda left the bar first.
[117] Mr. Currie testified that he saw a male cop push her back and he was yelling at her.
[118] Mr. Currie testified that he went outside and asked the man for his identification. After approximately 10 minutes the man showed him something. It did not look real to him.
[119] In cross-examination, Mr. Currie said that his daughter Amanda and Mr. Smith had been drinking beer at the bar before he got there.
[120] After he arrived, they talked about work, selling the house and his divorce. It was about an hour and a half before the food was ordered.
[121] When he left the bar, there were no cruisers on scene. There was only the father and son. They were in 'grubbies'. They were yelling at him to get back inside and said that it was none of his business.
[122] Mr. Smith was leaning against his car.
[123] Mr. Currie had been outside for between 2 and 5 minutes before the Halton cruisers arrived. It was enough time to get everybody on the patio yelling and screaming.
Case Law Considered re: Care or Control
[124] 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.
[125] The leading case on the elements of the offence of care or control is R. v. Boudreault from the Supreme Court of Canada (supra).
[126] 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.
[127] 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).
[128] 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.
Findings of Fact
[129] I have applied the 3-pronged test set out by the Supreme Court of Canada in R. v. WD in assessing the reliability and credibility of the evidence called in this case.
[130] There was no issue that Mr. Smith was found in the driver's seat while he was impaired by alcohol with a BAC of 160. The Crown has the benefit of the presumption under s. 258.(1) of the Criminal Code.
[131] Based on the evidence called by the Crown, the case to establish the elements of care or control appeared strong.
[132] An off-duty experienced police officer was adamant and consistent that the engine was running; he could hear it; the lights were on; he directed that Mr. Smith shut the motor vehicle down; Mr. Smith did shut the motor vehicle down.
[133] The police officer's son was also adamant and consistent that he saw the motor vehicle start up; he saw smoke coming from the exhaust of the motor vehicle; his father told Mr. Smith to turn the vehicle off; Mr. Smith did turn the vehicle off.
[134] Mr. Smith denied ever having turned the engine of the motor vehicle on. He testified that the ignition keys were in his crotch. He used the car fob to enter the car and put the window down. On consent of counsel, his testimony was supported in this regard by what I will call the super fob for this 2006 Nissan Altima. The super fob activates entry to the vehicle that results in lights going on. The super fob also activates the power windows to go down.
[135] There now becomes doubt with respect to the testimony of the father and son regarding the issue of the engine being on.
[136] Accordingly, I am left in reasonable doubt as to whether the engine was turned on. That finding rules out the danger of the vehicle being accidentally put in motion and causing danger to others. There was no evidence that the super fob could be used to put the vehicle in motion.
[137] The off-duty police officer was also adamant and consistent that Mr. Smith stated that he was going to drive home.
[138] Mr. Stevens Jr. was also adamant and consistent that Mr. Smith said he was going to drive home.
[139] Mr. Smith denies saying he was going to drive home. He was in the car looking for some cigarettes that may have fallen out of Amanda's purse. He had no intention to drive home. He intended to go back into the bar and eat his dinner. He was going to call a taxi and or his mother to pick him up afterwards.
[140] Mr. Smith's evidence raises a reasonable doubt with respect to his intention to drive away from the Gator Ted's parking lot while impaired. He denies he was going to do that when stopped by the father and son, and he denies that he would have done that at any time that evening.
[141] Mr. Currie's evidence supported the version testified to by Mr. Smith.
[142] Although Mr. Currie's vulgar and disrespectful statement to the police while banging on the police cruiser did not enhance his credibility, his conduct in that regard does not erode his credibility about Mr. Smith going out to his car for the purposes of looking for cigarettes only.
[143] There were other problems with the evidence in this case including, but not limited to, whether Mr. Smith was texting someone or using his cell phone to call someone when he was sitting in his car. The off-duty police officer and his son both said this happened, though neither of them put it in their written statement to Halton Police. The father went as far as to say, that it appeared to him that the hunt for cigarettes story had been 'staged' or 'faked'.
[144] The Crown did not cross-examine the defence witnesses about this. Mr. Smith was not even asked if he had a cell phone in the car with him at the time. If Mr. Smith did have a cell phone with him at the time, I would like to know why, if his purpose was only to dash to the car for a quick look for some cigarettes. That evidence was not before the court.
[145] The Crown also did not cross-examine Mr. Smith about Mr. Stevens Sr.'s evidence that Amanda came out of the bar and yelled at Mr. Smith for wanting to go home and for wanting to leave without her.
[146] This is one of those cases where after carefully reviewing all the witnesses' testimony the Court is left in real doubt as to who to believe.
[147] Accordingly, the defence has rebutted the presumption of care or control in this case and a finding of not guilty on both counts is registered.
Released: July 9, 2015
Signed: "Justice L.M. Baldwin"