Court File and Parties
Ontario Court of Justice
Date: 2015-09-08
Court File No.: Halton 13-2570 and 13-163
Between:
Her Majesty the Queen
— and —
Krzysztof Osuchowski
Before: Justice D.A. Harris
Heard on: May 25 and 26, 2015 and July 9, 2015
Reasons for Judgment released on: September 8, 2015
Counsel:
- S. Bradley, counsel for the Crown
- M. Caroline, counsel for the defendant Mr. Osuchowski
HARRIS J.:
Charges and Proceedings
[1] Krzysztof Osuchowski is charged with having the care or control of a motor vehicle in the Town of Oakville on August 26, 2013 (1) when his ability to operate a motor vehicle was impaired by alcohol, and (2) when his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of his blood. He is further charged with failing or refusing to provide a suitable sample of his breath into an approved instrument.
[2] Crown counsel elected to proceed summarily.
[3] Mr. Osuchowski pled not guilty and a trial was held.
[4] Eva Coffey and Police Constables Marc Taraso and Steven Nopper and toxicologist Elizabeth Hird testified as Crown witnesses.
[5] Mr. Osuchowski testified on his own behalf along with Melodie Alderson.
[6] At the conclusion of the evidence, Crown Counsel conceded that he had not proven the over 80 offence beyond a reasonable doubt and invited me to dismiss that charge.
[7] The issues remaining to be decided by me are:
(1) Was Mr. Osuchowski in care or control of his motor vehicle?
(2) Was his ability to operate a motor vehicle impaired by alcohol? And
(3) Did he fail or refuse to provide a suitable sample of his breath into an approved instrument?
[8] Needless to say, the onus is on the Crown to prove each of these elements beyond a reasonable doubt.
[9] I will address the three issues in order.
Was Mr. Osuchowski in Care or Control of his Motor Vehicle?
[10] In R. v. Boudreault, the Supreme Court of Canada set out the essential elements of "care or control" as:
(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.
[11] The risk of danger must be realistic and not just theoretically possible. But nor need the risk be probable, or even serious or substantial.
[12] 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.
[13] 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.
[14] Anyone found inebriated and behind the wheel with a present ability to drive should almost invariably be convicted but a conviction is only appropriate if a realistic risk of danger is present in the particular circumstances of the case.
[15] Anyone who is intoxicated and in a position to immediately set the vehicle in motion faces conviction on those facts alone.
[16] Fish J stated at para 48 in R. v. Boudreault that:
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.
[17] One of the factors of particular relevance in both R. v. Boudreault and this case is that Mr. Osuchowski took care to arrange what some have called an "alternate plan" to ensure his safe transportation home.
[18] Fish J discussed such alternative plans at paras. 52 and 53:
52 The impact of an "alternate plan" of this sort on the court's assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused. A plan may seem watertight, but the accused's level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward.
53 For example, even where it is certain that the taxi will show up at some point, if the accused occupied the driver's seat without a valid excuse or reasonable explanation, this alone may persuade the judge that "his judgment [was] so impaired that he [could not] foresee the possible consequences of his actions": Toews, at p. 126, again citing Price at p. 384. The converse, however, is not necessarily true. Even where it is probable that the taxi will appear at some point and the accused occupied the driver's seat with a valid excuse or reasonable explanation, the trial judge may nonetheless be satisfied beyond a reasonable doubt that there remained a realistic risk of danger in the circumstances.
[19] Mr. Osuchowski testified that he drove to the Hopedale Mall with the intention of meeting Ms. Alderson there. They would then go fishing nearby. Following this, Ms. Alderson would drive the two of them to the house of a friend of hers for a small get together. Mr. Osuchowski did not plan on driving then since he would be drinking in the meantime.
[20] I note that Mr. Osuchowski never did provide a satisfactory explanation for his arriving at the Mall one hour before he was to meet Ms. Alderson.
[21] He drove in and parked near the LCBO. He went into the LCBO and bought a small bottle of whiskey. He then drove his vehicle to a different location in the parking lot – the place where he intended to leave the car overnight. He left the car running, but opened his door a bit, and then drank – guzzled may be a more appropriate word - approximately 8 ounces of whiskey – and then he passed out.
He testified that he had not planned on guzzling so much whiskey while he waited for Ms. Alderson. He said that he had planned to maybe drink a bit. He also planned to maybe drink some of it while they were fishing. He never did explain why he changed these plans and drank so much all at once. His statement that "Sometimes I enjoy to have a good drink" fell far short of explaining his actions.
[22] I note from all of this that even before he started drinking, Mr. Osuchowski's plans were quite capable of being changed within a very short time. In light of this, I place no reliance on his "alternate plan" holding firm after he drank himself into a stupor. I am satisfied that, in the circumstances, he very well could have changed his mind and driven away.
[23] In addition, the car was already running. He was in the driver's seat. Even with the transmission in park and the parking brake set, Mr. Osuchowski could easily have unintentionally set his vehicle in motion.
[24] I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Osuchowski had the care or control of his motor vehicle.
Was His Ability to Operate a Motor Vehicle Impaired by Alcohol?
[25] Mr. Osuchowski testified that the whiskey "made me sleepy and probably impaired".
[26] Constable Taraso testified that Mr. Osuchowski was passed out or sleeping. When awakened, he appeared to be groggy. His eyes were very red bloodshot eyes. There was a very strong odour of an alcoholic beverage on his breath. When he stepped out of his vehicle he was unsteady on his feet and he was taking very slow deliberate steps. He was fumbling while trying to open his folding wallet and had difficulty in removing his driver's licence from the wallet.
[27] There is no doubt in my mind that Mr. Osuchowski's ability to operate a motor vehicle impaired by alcohol at that time.
Did He Fail or Refuse to Provide a Suitable Sample of his Breath into an Approved Instrument?
[28] There is no question that Mr. Osuchowski failed to provide suitable samples of his breath into the approved instrument. The issue is whether this failure was wilful.
[29] Mr. Osuchowski testified that he was genuinely trying to provide a suitable sample but that he could not. He attributed this to asthma.
[30] The toxicologist Ms. Hird testified that people suffering from simple asthma had no difficulty in providing a sufficient sample of their breath into an approved instrument. This evidence was not challenged by any other witness.
[31] Constable Nopper, the Breath Technician, testified that while Mr. Osuchowski "tried" to blow many times, he did not try long enough or in the proper manner. Constable Nopper testified that Mr. Osuchowski was not following instructions and as a result he did not provide two proper samples. Constable Nopper could feel Mr. Osuchowski's breath escaping his lips around the mouthpiece. In addition, at times he would interrupt the air flow with his tongue or his teeth.
[32] All of this is evident when watching the video.
[33] I am satisfied that the Crown proved beyond a reasonable doubt that Mr. Osuchowski wilfully failed to provide suitable samples of his breath into the approved instrument.
CONCLUSION
[34] The over 80 charge is dismissed. I find Mr. Osuchowski guilty of impaired care or control and of wilfully failing to provide suitable samples of his breath into the approved instrument and convictions will be registered for those two offences.
Released: September 8, 2015
Signed: "Justice D. A. Harris"