Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — AND — Keith Boar

Before: Justice Peter Harris

Trial Judgment

Counsel:

• Ms. S. Fericean for the Crown
• Mr. B. Starkman for the Defence

Harris, J.

Introduction

[1] Keith Boar was charged with impaired operation, "excess alcohol" and possession cocaine on May 14, 2014.

[2] The defendant applies under sections 8, 9, and 24(2) of the Charter for the exclusion of the breath sample evidence on the basis that police demanded and obtained samples of the Defendant's breath in violation of his section 8 and 9 rights.

The Facts

[3] On May 14, 2014, P.C. William Ng received a radio call at 2:37 am in response to a 911 communication to police dispatch about an accident in which a "vehicle hit a tree" in the vicinity of the Kipling off-ramp from the Gardiner Expressway in Toronto. On arrival just before 2:46 am, a Ministry of Transportation crash truck driver on scene pointed out Mr. Boar and P.C. Ng proceeded to speak to him. There was a tow truck driver in the vicinity. At this time, Mr. Boar was on the road surface about 30 feet from a black 2007 Pontiac that had come to rest in a grassy field east of the Kipling on-ramp to the Gardiner Expressway. Diagrams in Exhibits 2 and 10 purport to be accident reconstruction sketches that show the trajectory of the vehicle after it proceeded to exit the expressway on the Kipling south off-ramp and instead of turning south it "lost control" and travelled east off the ramp and over the on-ramp and continued into shrubbery in a grassy field east of the ramp. The accident report states: "lost control came to rest in ditch." The vehicle came to rest "25 m. S/W [of a light] pole" which was situated in the median adjacent to the roadway. P.C. Ali Rashid, the author of the accident report, arrived on scene a short after P.C. Ng. He testified that damage had been sustained to the front undercarriage of the car, under the radiator.

[4] The person P.C. Ng approached identified himself as Keith Boar. The officer observed: (1) a "moderate" odour of alcohol on Mr. Boar's breath; (2) his eyes were watery and bloodshot; (3) while walking to the police vehicle he "wandered" and the officer said he had to side-step to avoid walking into him; (4) his words were noticeably slurred. As a result of the accident and the above observations, P.C. Ng formed the opinion Mr. Boar's ability to operate a motor vehicle was impaired an arrested him for "impaired operation." Incident to arrest Mr. Boar was searched and the officer located car keys and a small amount of what he believed to be cocaine in a ziplock bag in his front pocket. P.C. Ng agreed that there were family residences within one kilometre of the site of the accident and that it was not a "pedestrian-controlled area." In other words, the public were not prevented from entering the area where the accident occurred, on foot. Subsequently, the defendant submitted to breath tests that determined that at 3:53 am and 4:19 am, his blood alcohol levels were 143 and 146 mgs. percent respectively. Ms. Inger Bugyra, M.Sc., Forensic Toxicologist gave evidence of a projected blood alcohol concentration between approximately 1:00 am and 2:45 am of 140 to 195 mgs. of alcohol in 100 mls. of blood based on the usual assumptions. The witnesses giving evidence for the Crown were P.C. Ng, P.C. Rashid, D.C. Aaron Swaine (breath tech) and Inger Bugyra. The Defendant did not testify or call evidence at trial.

[5] As a result of an agreement between counsel: (1) there was no evidence adduced as to any pre-arrest statements made by Mr. Boar and (2) all the elements of the possession of (just over one gram) cocaine charge have been proven should I find the arrest to have been lawful and not in violation of the defendant's section 8 rights.

[6] In summary, there was no direct evidence as to the identity of the driver of the Pontiac at the time of the accident and no direct evidence as to the time of driving. Additionally, there was no evidence as to when the alcohol was consumed by Mr. Boar. Further, there was no evidence Mr. Boar had any communication with a tow truck operator in the vicinity before or after the police arrived and no direct evidence the car keys found on Mr. Boar could be used to operate the Pontiac.

Analysis

[7] There have been a number of issues raised in this case but in my view the resolution of the care and control issue is dispositive of the driving charges. I will return to the cocaine possession and Charter applications momentarily.

[8] On the basis of testimony from P.C. Ng and D.C. Swaine there is little doubt that the observed indicia of impairment would constitute at least slight impairment within the parameters set out in R. v. Stellato, [1993] O.J. No. 18 (Ont.C.A.) (aff'd SCC) by LaBrosse JA: "If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out."

[9] However, in the absence of any direct evidence that Mr. Boar was driving the car at the time of the accident, and applying the Supreme Court's test in R. v. Griffin, 2009 SCC 28 I could not conclude that the defendant was the person who drove the vehicle into the ditch. As Charron J., writing for the majority, pointed out:

The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty.

[10] There are several other completely rational inferences that could place Mr. Boar at the scene when police arrived — as a passenger, a bystander or an owner who came looking for his car after another driver put it in the ditch.

[11] The only remaining consideration is whether the Crown has proven the included offence of care and control: R. v. Coultis (1982), 66 C.C.C. (2d) 385 (Ont. C.A.)

[12] Durno J. in R. v. Symanski, [2009] O.J. 3623 (S.C.O.) set out three pathways for the proof of care and control:

29 The Crown has three routes for establishing care or control:

(1) evidence of driving because the offence of impaired operation is included in a charge of care or control. R. v. Coultis (1982), 66 C.C.C. (2d) 385 (Ont. C.A.);

(2) applying the statutory presumption of care or control now found in s. 258(1) (a) of the Criminal Code. The presumption was found to violate s. 7 of the Charter of Rights and Freedoms, but was saved by s. 1 because the accused could rebut the presumption. It could not 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. R. v. Whyte, [1988] 2 S.C.R. 3 at p. 19;

(3) de facto or actual care or control which involves the risk of danger as an essential element.

[13] Having eliminated routes 1 and 2 from consideration, there being no proof to the requisite standard in a criminal case of either driving or occupancy of the driver's seat, the only question remaining is: is there actual care and control involving the risk of danger as an essential element?

[14] First, the circumstantial evidence, including the fact the car went through shrubbery into a ditch and the front-end damage it sustained, supports a reasonable and logical inference that the car was not drivable and was essentially stranded and immobile.

[15] Second, when the officer observed Mr. Boar he was 30 feet from the car and on the road surface, according to the police vehicle onboard video recording. As well, there was no evidence Mr. Boar was the driver of the stranded car, nor was he seen to have any dealings with the tow truck which was in the vicinity. And there were residential neighbourhoods a short distance away. In my view, these findings narrow the search for comparable care and control cases to those where the vehicle is immobile and the driver is outside the car at the scene when police arrive.

Proving Care and Control Without the Presumption

[16] The inoperability of a motor vehicle is not determinative of whether an accused person is in care and control. The leading authority in respect to immobile vehicles is R. v. Wren, [2000] O.J. No. 756 (Ont. C.A.) (Aff'd [2000] S.C.C.A. No. 235 October 12, 2000). In this case Feldman J. went to great lengths to reconcile many seemingly contradictory judgments on the subject of the actus reus of care and control:

[29] In my view, the cases from the Supreme Court of Canada and from this court can be reconciled on the issue of the actus reus of care or control. The issue to be determined on the facts of each case is whether any acts by the accused could cause the vehicle to become a danger whether by putting it in motion or in some other way.

[30] In the case as presented below, the only potential danger was of putting the vehicle in motion. It was therefore open to the trial judge to conclude, at the point in time when the respondent was in the vehicle waiting for the tow truck, that he was not in care or control within the meaning of those terms as defined in the case law to which I have referred.

[17] R. Symanski, supra, provides a helpful survey of how the leading cases define care and control:

28 While instructive the mens rea and actus reus do not provide a definition for care or control. In Toews, McIntyre J. addressed the issue as follows:

As I have noted earlier, the offence of having care or control of a motor vehicle while the ability to drive is impaired by alcohol or a drug is a separate offence from driving while the ability is impaired. It may be committed whether the vehicle is in motion or not. This leaves the Court with the question: What will constitute having care or control short of driving the vehicle? It is, I suggest, impossible to set down an exhaustive list of acts which could qualify as acts of care or control, but courts have provided illustrations which are of assistance. In R. v. Thomson (1940), 75 C.C.C. 141 (N.S.C.A.), Baxter C.J. said, at pp. 143-44:

I have had some difficulty in construing this expression but have come to the conclusion that "care" is intended to cover such a case as an intoxicated driver placing his vehicle, without applying the brakes, in such a situation that it may run away and occasion danger to the public. It is probably intended to cover the possible omission, because of intoxication, of such acts of care as would or might occasion harm, such acts, in short, as would render any person liable in damages for negligence. "Control" does not need definition. The man who is in a car and has within his reach the means of operating it is in control of it.

In the Nova Scotia County Court His Honour Judge Pottier said in R. v. Henley, [1963] 3 C.C.C. 360, at p. 366, in a case similar to this one:

It appears from the above cases that the word "care" implies at least physical possession of the motor vehicle with an element of control. A person in the motor vehicle may have the care thereof. The word care is generally used in jurisprudence in the sense of attention, heed, vigilance as opposed to carelessness, negligence, heedlessness. These uses are involved in the cases of duties and liabilities of motor vehicle operators, carriers, bailees, professional persons, etc., and turn largely on the question of negligence.

The word "care" may also mean custody, charge, safekeeping, preservation, oversight or attention. Where it is used in this sense it becomes a relative term and is of broad comprehension. One has to look at the provision of its use and determine its physical sense from that standpoint.

In R. v. Price (1978), 40 C.C.C. (2d) 378 (N.B.C.A.), Limerick J.A., speaking for the Court, at pp. 383-84, said:

The word "care" is defined in The Oxford English Dictionary as "having in charge or protection". "Control" on the other hand is defined as "the fact of controlling or of checking and directing action" also as "the function or power of directing and regulating; domination, command, sway" ... . The mischief sought to be prohibited by the section as expressed by the wording is that an intoxicated person who is in the immediate presence of a motor vehicle with the means of controlling it or setting it in motion is or may be a danger to the public. Even if he has no immediate intention of setting it in motion he can at any instant determine to do so, because his judgment may be so impaired that he cannot foresee the possible consequences of his actions.

[18] Based on the foregoing it appears that care and control could be found where an accused could cause the vehicle to become a danger by putting it in motion or in some other way - such as operating the equipment or controls of the vehicle or by acting in such a way with the vehicle that amounts to directing action by others in respect to the management of the vehicle.

Immobile Vehicle Cases – Accused Found Outside The Vehicle

[19] For our purposes, it is essential to select comparable cases from which to distill relevant principles to apply to the instant case. In R. v. Magagna (2003), 173 C.C.C. (3d) 188 (Ont.C.A.) the Court of Appeal found a driver of a disabled vehicle who was outside the car and attempting to have it towed, in care and control:

There was care and control. It continued until the police arrived. If that is an issue, I find that she was engaged in extracting the very motor vehicle that she drove into that ditch. Clearly, it was drivable. It was apparent to everyone that all that had to be done is lift it away from the fence and it could have been driven back to [her uncle's] cottage. She clearly consumed alcohol and put herself in care and control of a motor vehicle.

[20] In R. v. Wilford, [2004] O.J. No. 258 (Ont.C.A.) the Court of Appeal once again concluded that an accused who was found next to a vehicle was in care and control having arranged to have a tow truck pull the vehicle out of a ditch:

11 With respect to the "care and control" issue, we see no error of law that would warrant the interference of this court. The appellant was found standing beside a vehicle that had just been driven into the ditch with the keys in the ignition. While the police were on the scene, a tow truck arrived to pull the vehicle out. The appellant produced documentation indicating that his father was the owner of the vehicle. In our view, it was open to the trial judge to infer care and control from these facts and to conclude that the conduct of the appellant in relation to the vehicle created a sufficient risk of danger: see R. v. Wren (2000), 144 C.C.C. (3d) 374 (Ont. C.A.); R. v. Magagna (2003), 173 C.C.C. (3d) 188 (Ont. C.A.).

[21] In R. v. Lackovic, [1988] O.J. No. 1732 (Ont. C.A.) Griffiths J. affirmed the necessity of an element of control to support a conviction where a vehicle was rendered immobile:

At approximately 1:45 a.m. on January 21, 1984, the respondent was driving his automobile in a westerly direction on Highway No. 7 just west of Highway No. 404, when witnesses saw his vehicle suddenly swerve to the left. His motor vehicle collided with and knocked down a traffic light standard and then continued across the eastbound lanes, finally coming to rest on top of a snow bank. The respondent was alone in his vehicle.

A police officer was dispatched to the scene; he arrived approximately twelve minutes after the estimated time of the accident. When the officer arrived, the respondent was standing outside his vehicle but in close proximity to it. He identified himself to the police officer as the driver of the vehicle. At this time the officer noted nothing remarkable about the respondent's condition.

The authorities cited with approval in Toews emphasize that one may have "care" of a motor vehicle in the sense of being in charge or having custody. In R. v. Drapeau (1985), 36 M.V.R. 58, the Nova Scotia Court of Appeal held that the accused continued to have care and control of his vehicle when the police officer made his demand because, at the time of the demand, the accused identified himself as the driver, was standing near his vehicle and had arranged for a tow truck to come to the scene.

In the present case, as in Drapeau, the respondent was standing by his motor vehicle when the police officer arrived at the scene and the respondent subsequently identified himself as the driver and owner of the motor vehicle. Following the demand by the police officer and the abortive attempt to comply, the respondent authorized the towing of his motor vehicle from the scene and the respondent accompanied the tow truck driver, who later drove the respondent home. The respondent had not surrendered care or control of his motor vehicle at the time the demand was made of him and he continued to exercise care and control after the demand. In the circumstances, the officer was authorized under the provisions of the Code to make the demand. It follows that the respondent did not have a reasonable excuse for failing to supply a sample of his breath.

[22] In R. v. Agyemang, 2014 ONSC 4232, [2014] O.J. No. 5047 (S.C.O.) a summary conviction appeal, the facts were that the accused's disabled vehicle (two tires were flat and shredded) was parked in a live lane of traffic for two and one-half hours and when an officer arrived, the owner of the car was asking a tow truck driver to tow the car from its location. The Court held, ordering a new trial for other reasons, that the location of a motor vehicle can create a realistic risk of danger. The Court quoted Fish J. in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 (SCC) to the effect that "through negligence, bad judgment, or otherwise, a stationery or inoperable vehicle may endanger persons or property. The Court also referred to R. v. Mallery (2008), 2008 NBCA 18, 231 CCC (3d) 203 (NBCA) in which it was determined that parking a car in the middle of a public thoroughfare may create a realistic risk of danger.

[23] In my view all of the above authorities are distinguishable from the case at bar. In Magagna, Wilford and Lackovic the accused were all observed to be directing tow trucks to remove their vehicles and consequently all could be said to have retained and not relinquished control over the vehicle. In Agyemang, the accused created a realistic risk of danger by leaving the vehicle in a live lane of traffic for 2.5 hours (and was seen by police to be directing the car being towed).

[24] Crown counsel argued that Mr. Boar was close enough to the vehicle to have been in a position to instruct the tow truck driver and thereby exercise control or create a danger by switching on the vehicles headlights while it rested in a stationery position in the ditch. The latter position analogously recognizes the R. v. Vansickle, [1990] O.J. No. 3235 (C.A.) danger of an accused inadvertently turning off the headlights on a vehicle that was stuck in the middle of the road during whiteout conditions.

[25] In terms of these and other conceivable scenarios, it is of assistance to make reference to one of the seminal authorities on care and control: R. v. Boudreault, supra. Fish J. writing for the majority held that:

[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.

[35] To require that the risk be "realistic" is to establish a low threshold consistent with Parliament's intention to prevent a danger to public safety. To require only that the risk be "theoretically possible" is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct.

[47] Parliament, in its wisdom, has until now seen fit to create only one reverse onus in the context of the care and control offence. It is found in s. 258 of the Code and is not in issue on this appeal. Any other reversal of the burden of proof ― for example, as to the existence of a realistic risk of danger to persons or property ― is a matter for Parliament and not for the courts. And it would be subject, of course, to constitutional scrutiny under the Canadian Charter of Rights and Freedoms.

[26] Relying as I do on Boudreault, I find the Crown's submissions unpersuasive, although thoughtful and engaging. As to whether he could be said to be in a position to exercise control by directing the tow truck driver, there is simply no evidence that at 30 feet from the car Mr. Boar could have been directing any management exercise regarding the car particularly where there was no evidence of contact with the tow truck or even whether the tow truck driver was within earshot. While it was theoretically possible that Mr. Boar could have created a danger by switching on the vehicles headlights or by some other use of the car's equipment, it could not be said that such an action was realistic and more than mere speculation.

[27] Most importantly, Boudreault stands for the proposition that there is only one reverse onus found in s. 258 of the Code and it only arises when the accused is found in the driver's seat of the vehicle. Consequently, while it is a low threshold, the Crown bears the onus of establishing that the accused created a realistic risk of danger. As Durno J. commented in R. v. Agyemang, supra:

[76] After Wren and Boudreault, where the Crown's case is based on de facto or actual care or control, the Crown is required to prove beyond a reasonable doubt there was a realistic risk of danger as an element of the offence. In order to find the accused guilty, the judge must conduct the "risk inquiry" and conclude that element has been established to the criminal prosecution degree of certainty.

[28] Applying Lackovic as a template for care and control as determined by the Court of Appeal, I am not persuaded that a person 30 feet from an immobile vehicle who was: (1) not standing [close] by the vehicle when the police officer arrived at the scene; (2) did not (on the evidence) identify himself as the driver and (3) was not directing the towing away of the car –– has been proven beyond a reasonable doubt to have been in care and control. While recognizing the many variations of care and control, clearly the criteria for care and control in Lackovic are not present in this case.

[29] Two other decisions of the Ontario Court are worth mentioning. In R. v. Soto, [2009] O.J. 2953, a vehicle had been driven into a concrete barrier on the ramp of the Gardiner expressway. There was substantial damage and the car was considered inoperable. Mr. Soto was observed 10 feet from the vehicle when police arrived and there were 3 tow trucks on scene. Since there was no evidence as to who, if anyone, had requested the tow trucks, there was no indication of his intentions and therefore the court had a reasonable doubt as to whether there was a realistic risk of danger sufficient to satisfy the care and control test articulated in Wren. Mr. Boar was found in virtually the same set of circumstances - the only differences being that he was 30 feet from the vehicle and there was but one tow truck on scene.

[30] A second case involved a car that struck a curb so forcefully that the tires on the passenger side of the car were slashed to the rims and flattened. When the police arrived the vehicle was on a soft shoulder of the road and the driver was 10 feet from the car. The driver called a tow truck to remove the car to his home and while he waited for the tow truck to "hook up his car" the police arrived on scene. The Court was satisfied that since he never went back into the vehicle and according to police, he made no attempt to move it, the driver had relinquished control over the car to the tow truck. The court concluded that driving the car in that state would have been extremely difficult at best; he accepted the accused's testimony that he did not intend to drive the car and held that the Crown had not proven care and control as contemplated in Wren. It had not been shown that there was a potential danger from conduct associated with his car or some act involving the use of the car its fittings or equipment: R. v. Narinesingh, [2010] O.J. No. 1850 (Ont. C.J.). So it seems that even in cases where a tow truck follows a driver's instructions to remove a disabled vehicle, control can be found to have been sufficiently relinquished by the driver to result in a verdict of not guilty where there is no longer any realistic risk of danger.

[31] In all the circumstances, I am not satisfied the Crown has proven to the requisite standard that there was any realistic risk of Mr. Boar putting the car in motion or doing anything else to the car or its equipment or fittings which could pose a risk of danger to the public. Accordingly, the Crown has not proven Mr. Boar was in care or control of the Pontiac in the ditch and he is therefore acquitted of both the driving charges he faces.

The Cocaine Possession Charge

[32] At 2:46 a.m, Constable Ng concluded that he had the requisite reasonable and probable grounds to arrest Mr. Boar and arrested him. The resulting search incident to arrest lead to the finding of cocaine in his possession. The grounds he relied on are set out in paragraph 4, above.

[33] It is submitted on behalf of Mr. Boar that Constable Ng had nothing more than a reasonable suspicion that an offence under Section 253 of the Code had been committed and the officer's grounds did not meet the statutory perquisite of reasonable and probable grounds for a section 254(3) demand. Further it was argued that there was no basis for any belief that Mr. Boar was the driver of the car in the ditch or that Mr. Boar had committed a s. 253 offence within the preceding 3 hours as required by the statute.

[34] First, there is no doubt that the M.T.O. crash truck driver directed the officer to the operator of the car in the ditch by pointing to him. There would be no other reason for the M.T.O. driver to have made that gesture. It is trite law that a hearsay representation by a person not called as a witness can form part of the grounds that an officer gathers to decide whether to make an arrest.

[35] Second, P.C. Ng testified he considered the issue of when the driving occurred that led up to the accident and offered reasons as to why he thought the driving took place shortly before the call to 911. In the circumstances known to the officer, it is highly improbable that he did not turn his mind to a consideration of whether the driving offence had been committed within the preceding three hours.

[36] Third, based on the indicia noted at the scene and detailed in paragraph 4 above, there were, objectively speaking, reasonable and probable grounds to believe the defendant's ability to drive was at least slightly impaired by the consumption of alcohol. (See R. v. Bush, 2010 ONCA 554 at para. 48). Consequently there would necessarily be sufficient reasonable grounds for an arrest and a lawful and reasonable basis for a search of Mr. Boar incident to arrest. See R. v. Collins, [1987] 1 S.C.R 265 (SCC); R. v. Caslake, [1998] 1 S.C.R. 51 (SCC).

[37] Fourth, this court is entitled to infer from all the evidence that the officer had the requisite reasonable and probable grounds to believe even if the officer does not use the "magic words". R v. Clarke, [2000] O.J. No. 804 (S.C.J.)

[38] In view of my conclusion that Constable Ng's grounds to arrest the Defendant for impaired operation were honestly held and objectively reasonable in all the circumstances, I find the arrest was lawful and the search incident to arrest did not result in an infringement of Mr. Boar's rights under the Charter and the cocaine found during the search is therefore admissible. If I am incorrect in that conclusion, I still would not have excluded the drug evidence under s. 24(2).

[39] First, the seriousness of any such breach would have been mitigated by the lack of any dishonesty, bad faith or wilful or reckless disregard for the law on the part of P.C. Ng. Second, the impact on the defendant's Charter-protected interests would not have been significant in terms of his privacy interests in the contents of his pocket given the fact he chose to be present at an expressway accident scene at 2:46 am. While his liberty interests were impacted by the arrest and detention for a few hours, the impact was no more than what anyone would experience during a drinking and driving investigation. Finally, society's interest in an adjudication on the merits favours admission of the drug evidence. This evidence makes up a critical piece of the Crown's case on the drug charge. Balancing the three Grant factors (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353) I would not exclude the drug evidence.

Conclusion

[40] In the result, based on the Charter conclusions and the drug offence admissions noted in para. 5, above, Mr. Boar is found guilty of possession of cocaine and not guilty of the section 253(a) and (b) offences.

P. Harris J.

September 4, 2015.