Court Information

Ontario Court of Justice

Date: 2015-08-05

Court File No.: Toronto 4817 998 14-75001948

Parties

Between:

Her Majesty the Queen

— and —

Shivani Sharma

Before: Justice Richard Blouin

Heard on: May 25 and May 26, 2015

Reasons for Judgment released on: August 5, 2015

Counsel

Mr. Matthew Giovinazzo — counsel for the Crown

Mr. David Burke — counsel for the defendant Shivani Sharma

BLOUIN J.:

Introduction

[1] Shivani Sharma stands charged that she committed the following two criminal offences on March 22, 2014:

1. Operation Impaired
2. Operation Over 80

[2] The Crown called two paramedics, two arresting officers, a breath technician, and a forensic toxicologist. No defence evidence was called.

[3] Mr. Burke agreed in his closing submissions that Impaired Care or Control was an included offence in the charged offence of Impaired Operation. He submitted that this case turned on the sole issue of proof that the defendant operated, or had care or control of the vehicle.

Evidence

Paramedics

[4] Jonathan Harper and Morgan Phillips were dispatched to a motor vehicle collision at 12:45 a.m. Their ambulance arrived on scene at 12:52 a.m. A car was resting with its bumper against a church at the corner of Carlton Street and Jarvis Street. There was minor damage to the front but no intrusion into the driver's compartment, and the airbags were not deployed. A woman, later identified as the defendant, was in the driver's seat. She had no obvious injuries and told them she was not injured. When Harper asked her to get out of the car, Ms. Sharma refused, "because I'm too drunk." She wanted to go to the hospital not because she was injured, but because she was intoxicated. EMS took her to the hospital after the police arrived.

Police

[5] Constable Kenneth Spence received a radio call around 1 a.m., and arrived on scene shortly thereafter. PC Durran was already present with the ambulance attendants. Durran advised that the defendant was under arrest and was in the rear of the ambulance. There was damage to the defendant's Mazda, which he estimated to be between $1000 and $2000. Inside the vehicle was a red jug about half full with a liquid the officer thought was possibly rum and coke. The lights were on, but he did not know if the engine was running.

[6] Constable Ned Durran arrived on scene at 12:54 a.m. He observed one of the paramedics speaking to the defendant who was "heavily intoxicated," sitting in the driver's seat. He asked her what happened and she giggled. When asked to exit the vehicle, the defendant did not respond. He assisted her to her feet and smelled a strong odour of an alcoholic beverage. He formed the grounds that her ability to operate a motor vehicle was impaired by alcohol, but chose not to arrest her because she was so intoxicated he was concerned for her safety, and that her understanding regarding rights to counsel, reasons for arrest, etc., would be compromised. Around an hour later, at the hospital, he arrested the defendant and made a breath demand. The breath tests were conducted by PC Truong at 2:46 a.m. and 3:12 a.m.

[7] PC Truong testified. Since he was qualified on consent and his evidence was not contested, it suffices to relate only the readings he obtained, which were 190 and 170 (milligrams of alcohol in 100 millilitres of blood) respectively.

Toxicologist

[8] Defence also conceded that Jean-Paul Palmentier was qualified to give expert toxicology evidence. He testified that the Intoxilyzer 8000c was operated properly and calibrated correctly to produce reliable readings. He was able to give the opinion that the defendant's blood alcohol concentration at 12:43 a.m. would have been between 175 and 220 milligrams.

The Law

[9] The recent case of R. v. Boudreault, 2012 SCC 56 is a decision of the Supreme Court of Canada settling the issue that must be decided in this case; at paras:

33 In this light, I think it helpful to set out once again the essential elements of "care or control" under s. 253(1) of the Criminal Code in this way:

(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 of danger to persons or property.

34 The risk of danger must be realistic and not just theoretically possible: Smits, at para. 60. But nor need the risk be probable, or even serious or substantial.

And then most importantly to this fact situation:

36 It is settled law that an intention to set the vehicle in motion is not an essential element of the offence: Ford v. The Queen, [1982] 1 S.C.R. 231. This may appear anomalous in view of the presumption set out at s. 258(1)(a) of the Criminal Code, which provides that an accused who was found in the driver's seat of a motor vehicle

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 . . . .

37 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!

38 At a minimum, the wording of the presumption signifies that a person who was found drunk and behind the wheel cannot, for that reason alone, be convicted of care or control if that person satisfies the court that he or she had no intention to set the vehicle in motion. Dickson C.J. made this plain in R. v. Whyte, [1988] 2 S.C.R. 3, at p. 19: "It cannot be said that proof of occupancy of the driver's seat leads inexorably to the conclusion that the essential element of care or control exists . . . ."

48 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.

49 The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger. Likewise, use of the vehicle for a manifestly innocent purpose should not attract the stigma of a criminal conviction. As Lamer C.J. observed in Penno, "The law . . . is not deprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to drive is impaired in a motor vehicle" (p. 877).

Findings

[10] In my view, since the defendant produced no evidence regarding her intention while sitting in the driver's seat while impaired, she must be found guilty of the Care or Control offences. This result is a direct application of s. 258(1)(a) of the Code. The realistic risk exists in another way. Unlike Boudreault, where a viable plan existed, there is no evidence which would remove the very real possibility involving "change of mind." Even though no evidence exists regarding the defendant's intention not to drive, even if it did, no plan existed to "ensure safe transportation home" (see paragraph 51 of Boudreault).

[11] In addition, all of the available evidence points inexorably to only one conclusion regarding who drove the Mazda into the church – that is the defendant. As Mr. Giovinazzo points out, the defendant's physical state was such that it would be impossible to conclude that she could have found herself in the driver's seat, after the car had left the road and hit the church. I would also conclude that she drove the car very close to 12:43 a.m. It would be impossible to imagine the accident would have escaped the attention of the authorities for very long, given its visually arresting nature.

[12] Since the path to a finding of guilt is more direct on the included Care or Control charge, I find the defendant guilty of Impaired Care or Control, and Impaired Over 80. Kienapple requires me to stay one of the charges, so I will sentence Ms. Sharma on the Care or Control Over 80.

Released: August 5, 2015

Signed: "Justice Blouin"