Court File and Parties

Court File No.: Kitchener 1311-15 Date: 2015-10-06 Ontario Court of Justice

Between: Her Majesty the Queen — and — Carlos Castro

Before: Justice G. F. Hearn

Heard on: July 27, 2015

Reasons for Judgment released on: October 6, 2015

Counsel:

• Mr. Brendan Thomas, counsel for the Crown
• Mr. Alex Toolsie, counsel for the defendant Carlos Castro

HEARN J.:

BACKGROUND

[1] Carlos Castro came before the court on July 27, 2015 and at that time entered pleas of not guilty to counts of having the care and control of a motor vehicle while his ability to operate same was impaired by alcohol and also having the care and control of a vehicle with a blood alcohol content in excess of the legal limit. There are no Charter issues raised and the issue to be determined is whether or not the Crown has proven the essential elements of both counts beyond a reasonable doubt.

[2] Counsel have in fact identified the issues to be determined in that regard. These issues are:

(i) whether or not the Crown has established beyond a reasonable doubt that on the date in question the accused had the care or control of a motor vehicle; and,

(ii) whether the breath tests ultimately provided were taken as soon as practicable in the circumstances.

[3] Evidence and submissions with further written submissions following were completed on July 27, 2015 and thereafter. The matter has ultimately been adjourned to today's date for judgment.

EVIDENCE OF THE CROWN

Evidence of Alex Frey

[4] Alex Frey, together with some friends, was a passenger in a motor vehicle in the early morning hours of March 1, 2015 at approximately 2:15 a.m. to 2:20 a.m. The vehicle was driven by his friend "Kyle". The other occupants were Kyle's girlfriend as well as Mr. Frey's girlfriend.

[5] As the vehicle was being driven on Borden Avenue, returning to the area where Mr. Frey resided, it approached Grenville Avenue and he noted a car "stuck on the snowbank". He also observed the accused to be standing outside of the vehicle talking on his phone.

[6] Mr. Frey could not recall specifically the entire conversation with Mr. Castro but he and his friends had asked Mr. Castro what had happened. Mr. Castro indicated that "he got stuck in, his car got stuck in the snowbank". Mr. Frey then agreed to go to his home a short distance away, get his car and "pull him out".

[7] The witness described Mr. Castro's vehicle as having its front end stuck on the top of a snowbank with its front tires "stuck in the snow" and the "rear end still on the road". He could not recall if the vehicle was running when he approached Mr. Castro.

[8] Mr. Frey got his vehicle, backed it up within 20 feet of the rear end of Mr. Castro's car and then took a "ratchet strap" out of his vehicle, attached it to his own vehicle and instructed Mr. Castro to attach it to his vehicle. He recalled Mr. Castro doing that as requested as he had read that if you are pulling someone out you should have them attach the strap to their own vehicle.

[9] Mr. Frey then got into his vehicle and it appears from his evidence he did not continuously observe who was in Mr. Castro's vehicle. At one point he saw Mr. Castro standing outside of his car. At another point while the car was "revving" he did not see Mr. Castro but was not sure if it was Mr. Castro or his friend Kyle who was operating the vehicle, just that someone was "revving the tires to back it out". His line of vision was compromised by the vehicles being trunk to trunk and his attention being to moving his car forward during the efforts to extricate Mr. Castro's vehicle.

[10] Once the tow rope was attached and he was in his vehicle he stated as follows:

"I looked off to my side and I could see Kyle and Carlos over there. No one was in his vehicle yet. I'd just gotten into my vehicle. Then I told someone to get into the vehicle and drive it."

[11] Eventually, although unsuccessful at first, he was able to extricate the vehicle. When the vehicle was "pulled out" he saw his friend Kyle standing off to the side and saw Mr. Castro in the driver's seat. He still could not say for certain that it was Mr. Castro who was in the driver's seat when the car backed up the second time. He estimated it took about 20 minutes to pull the vehicle out and he recalled his friend Kyle telling Mr. Castro to get in and start to back the car out. Again, although he did not see Mr. Castro specifically do that, he thinks he did. (Later evidence indicates Mr. Castro was operating the vehicle when Mr. Frey was attempting to pull it out.)

[12] Once the vehicle was extricated he took his tow strap and drove his vehicle back to his own driveway. He stated the police arrived as soon as the vehicle had been pulled out. It was at that time he was in the process of tying up the tow strap.

[13] Again, although he could not say specifically when, he did testify that he had seen Mr. Castro in the driver's seat steering at some point.

[14] In cross-examination the witness confirmed he had seen Mr. Castro outside the vehicle when they first approached. He acknowledged it appeared Mr. Castro had been drinking as he was slurring his words and appeared intoxicated. He also testified at one point his friend Kyle was in the driver's seat of the vehicle but he did state when asked to clarify whether it was possible it was his friend Kyle that was "revving the vehicle" when it was trying to be extricated, that it was not Kyle and he assumed someone else was in as there were only "three of us out there".

Evidence of Samantha Trider

[15] Ms. Trider was a passenger in Mr. Frey's vehicle. She testified as she and the others approached Mr. Frey's residence they noticed a car in the snowbank and Mr. Castro. She noted Mr. Castro was not "really like co-operative at first so it seemed that he could have been drinking".

[16] She described the location of the vehicle and noted it was "just like hanging onto the snowbank".

[17] This witness testified when she and the others had arrived at the scene Mr. Castro was in the driver's seat of the car and as they pulled up he got out of his vehicle. She was clear that she saw Mr. Castro in the vehicle as they approached. She testified as well when she arrived the vehicle's motor was running. She was certain of that as she saw exhaust coming out and could hear the motor.

[18] This witness believes it was Mr. Frey who was operating their vehicle as they approached, whereas Mr. Frey's evidence was that he was a passenger and it was his friend Kyle actually operating the vehicle. I accept Mr. Frey's evidence in that regard, but ultimately it is of no consequence as they both were occupants of the approaching vehicle.

[19] She approached Mr. Castro with the others and overheard the conversation Mr. Castro was having with "Alex" and "Kyle". During this conversation Mr. Castro asked them to pull him out and they attempted to do so.

[20] As this was happening she observed Mr. Castro trying to help but he could not and was not being very co-operative. He was in the vehicle as the efforts to extricate it were being made and Kyle had asked him to push the gas down and put the car in reverse but "it was just frustrating because he didn't quite do that".

[21] She observed the tow rope and the efforts made to pull the vehicle out. During the first efforts it appears Mr. Castro was in the vehicle. He then got out and Kyle got into the vehicle to try and "help a little bit better".

[22] The witness's evidence is that when they were first attempting to pull the vehicle out Mr. Castro was in the driver's seat with the vehicle running and making the efforts. It was only then that Kyle got in the car to "try and help".

[23] At some point Mr. Frey had requested she call the police because "like this guy could not drive". She did that by placing a call from Mr. Frey's house phone.

[24] During conversation with Mr. Castro she found it "odd". Mr. Castro was thankful and saying things like "you guys are my saviour, thanks for pulling me out, I don't know what I would have done". He was slurring his words and it was "just kind of like odd to me".

[25] She believed when the police arrived the vehicle had just been extricated.

[26] In cross-examination the witness testified she had not seen anyone on a cell phone as they approached and when pressed by counsel for the accused noted that she was "one hundred percent sure" Mr. Castro was in the driver's seat of the vehicle as they approached. She further testified she had no idea when the "accident happened", nor did she see anyone else at the scene when they arrived except for Mr. Castro.

Evidence of Constable Michael Dopson

[27] Constable Dopson is a member of the Waterloo Regional Police. On March 1, 2015 he was dispatched to a "crash" on Grenville Avenue. He and Cst. Schelling attended at the scene in separate vehicles.

[28] When this officer first arrived he noticed a car being towed from a snowbank by a tow strap and Mr. Castro to be in the driver's seat of the vehicle being towed. He described the vehicle as being on the roadway and still attached by the tow strap to the other vehicle. He did not remember if the vehicle was running.

[29] Mr. Castro got out of the vehicle as the officer approached and made some utterances to the officer. At this time he observed Mr. Castro's vehicle to still be attached by the strap to the other vehicle.

[30] He noted pieces of the car in the snowbank and could smell the odour of an alcoholic beverage coming from the breath of Mr. Castro.

[31] Mr. Castro then seems to have been taken into the care of Cst. Schelling while this officer called for a tow truck and completed a motor vehicle collision report.

[32] In cross-examination the officer confirmed when he arrived the vehicle was not in the snowbank any longer but still had the strap attached.

[33] He was questioned concerning the timing of the "accident" and although he did not see the "collision take place", the officer stated he had been on that particular street at two o'clock that morning, had driven right past the location and did not observe a car in the snowbank at that time. It was the officer's belief then that the collision took place some time after 2:00 a.m.

[34] The officer further confirmed that even though the car had been in the snowbank it was still operable as it had been ultimately driven to the tow truck that arrived by the tow truck operator.

Evidence of Constable Robert Schelling

[35] Constable Schelling, also a member of the Waterloo Regional Police, was dispatched to the scene on March 1, 2015 and arrived at 2:33 a.m. He estimates Cst. Dopson arrived about five seconds before he did at the area.

[36] Upon arrival he observed Mr. Frey's vehicle pulled forward in a northbound direction. He also observed a tow rope attached from that vehicle to the back of a white motor vehicle (Mr. Castro's vehicle). As a result of his direction of approach and the headlights he was unable to observe the white vehicle moving in reverse.

[37] He observed Mr. Castro's vehicle to be running and the lights as being in the "on" position. He exited his vehicle. He noted Cst. Dopson was already out of his vehicle at that time.

[38] When this officer first observed Mr. Castro the accused was standing next to the driver's side of the white vehicle with the vehicle still running.

[39] He engaged in conversation with Mr. Castro, detected the odour of an alcoholic beverage on his breath and asked him if he had consumed any alcohol. He did not recall the response to that particular question. Mr. Castro then indicated he simply wished to park his vehicle.

[40] Once the odour of alcohol was detected the officer asked Mr. Castro to blow breath in his direction, which he did, and he then confirmed the alcohol odour was emanating from Mr. Castro's mouth. There was an admission of consumption and the officer observed Mr. Castro's eyes to be glassy and bloodshot with his speech to be slightly slurred.

[41] Ultimately, Mr. Castro was placed under arrest at 2:36 a.m. There is no issue taken with the grounds for the arrest.

[42] This officer testified he had been informed by Cst. Dopson that that officer had seen Mr. Castro behind the wheel of the car when he had first arrived.

[43] Mr. Castro was placed in the cruiser and at that time Mr. Castro's cell phone began to ring within the police vehicle. Mr. Castro believed it to be his wife calling and the officer answered the phone. The officer had a conversation with someone he believed to be Mr. Castro's wife for approximately five minutes.

[44] Rights to counsel were read at 2:48 a.m. and at 2:50 a.m. the standard caution was read. There is no issue taken with the wording of either the rights to counsel or the caution.

[45] When asked what the officer did between the time of the arrest at 2:36 a.m. and 2:48 a.m., the officer referred to the cell phone conversation and also during that period of time he had conducted a pat-down search of Mr. Castro and recorded some items in his notebook.

[46] At this point in the officer's evidence the Crown sought to introduce a spontaneous utterance provided apparently after rights to counsel had been given and Mr. Castro had indicated a desire to speak to counsel. A voir dire was entered into and evidence was led of a statement made at 2:52 a.m. That statement was made spontaneously apparently after the caution had been read and when the officer had simply asked Mr. Castro if he understood.

[47] At this point I would note that in my reasons for judgment I place no reliance on the statement made, although Mr. Castro ultimately indicates in his own evidence at trial similar comments.

[48] At that time Mr. Castro had indicated:

"I understand that, but I wasn't behind the wheel. I was just asking a friend to help me out of the snow. I was just trying to park it. I was just trying to park it in a space and I just slipped."

[49] Mr. Castro was then transported to Central Division, arriving at 3:04 a.m. At 3:06 a.m. Mr. Castro's property was collected and he was escorted to the cellblock area. At that time various emergency contact information was obtained and the detain sheet completed. At 3:14 a.m. the officer contacted duty counsel on behalf of Mr. Castro.

[50] At this point there was no further evidence led as to when or if duty counsel returned the call or what took place between 3:14 a.m. and 3:29 a.m. when the officer next indicated he provided his grounds to Cst. Green, the qualified technician.

[51] He then escorted Mr. Castro from the interview room to the breath tech room at 3:37 a.m. He remained in the room while the first test was conducted. After that took place at 3:44 a.m. he escorted Mr. Castro back to the interview room.

[52] At 4:03 a.m. he returned Mr. Castro to the breath room where the second test was conducted. At 4:08 a.m. Mr. Castro requested to use the bathroom and at 4:16 a.m. further questioning of Mr. Castro was conducted, with his release ultimately being at 4:55 a.m.

[53] The officer served documentation on Mr. Castro (there is no issue taken with respect to that service). This included the certificate of the qualified technician and the notice of intention to produce the certificate, which were ultimately marked as Exhibits #1 and #2.

[54] In cross-examination the officer confirmed when he first arrived on the scene no one was in the white vehicle. He parked directly behind Cst. Dopson and observed that the white vehicle had someone "sort of tow line attached to it". He had observed no one else in the area.

[55] The tow truck had been called as a result of the vehicle being impounded and not because it was inoperable.

[56] The following exchange took place between counsel for Mr. Castro and the officer with respect to the "tow line":

Question: Okay. Now in your opinion was the vehicle driveable as long as the tow line was attached to the vehicle? Was there any ability of my client to put the vehicle in motion as long as there was a tow line attached to the vehicle?

Answer: If the tow line was attached it would have prevented it from moving.

Evidence of Constable Jeremy Green

[57] Constable Green is the qualified breath technician who conducted the breath tests on Mr. Castro on the night in question. He spoke of the instrument, his qualifications and the preparation of the approved instrument for receiving the samples.

[58] He testified he had received the grounds from Cst. Schelling at 3:27 a.m. and Mr. Castro was brought into the breath room at 3:35 a.m.

[59] At that time he observed the odour of an alcoholic beverage coming from the breath of Mr. Castro which he described as strong. He noted Mr. Castro had red, glassy eyes which were bloodshot, and when he walked into the room he was somewhat unsteady and uneven.

[60] The officer had been dispatched to the division to conduct the tests at 2:39 a.m. and had arrived at 2:57 a.m. He completed the various tests thereafter with the final test being a sample of his own breath being provided at 3:07 a.m. It appears the machine was ready for use at 3:07 a.m.

[61] At 3:35 a.m. when Mr. Castro was brought into the breath room he read the secondary caution to him and at 3:41 a.m. he received the first sample directly into the device which resulted in a reading of 148 milligrams of alcohol in 100 millilitres of blood, truncated to 140 milligrams of alcohol in 100 millilitres of blood.

[62] Mr. Castro left the breath room and was returned at 4:02 a.m. At 4:06 a.m. after two weak samples into the intoxilyzer Mr. Castro was coached and provided a second suitable sample registering 129 milligrams of alcohol in 100 millilitres of blood, again truncated to 120 milligrams of alcohol in 100 millilitres of blood.

[63] This officer identified as well the certificate of the qualified analyst and notice of intention.

EVIDENCE OF THE DEFENCE

Evidence of Carlos Castro

[64] The evidence of Mr. Castro in-chief was relatively short and to the point. Mr. Castro testified on the evening in question he was not operating the motor vehicle when it became "stuck in the snowbank". As I understand his evidence in-chief it is as follows:

[65] He and his wife had been at a wedding and had made earlier arrangements to be picked up at the wedding by a "designated driver" named Dave Lopez.

[66] Mr. Lopez apparently did pick up Mr. Castro and his wife. It is not entirely clear but it seems they had gone to the wedding in his wife's vehicle which they left at the scene of the wedding. Mr. Lopez drove them to their home, dropped off Mr. Castro's wife but he and his wife had forgotten their wallets in his wife's car so he and Mr. Lopez "went to retrieve them". They then returned, were intending to leave the car on the street but because there was no parking Mr. Lopez drove it to park at his house which was in the area. It was during that drive that the vehicle got stuck in the snowbank.

[67] Mr. Castro testified that from the time they left the wedding Mr. Lopez had in fact been operating the vehicle. When asked why Mr. Lopez was not there when Mr. Frey appeared, Mr. Castro indicated he had gone to retrieve a shovel two minutes before, had left by foot and did not return. When asked if he ever did return, Mr. Castro responded that he "didn't come right away, I was kind of concerned".

[68] He testified when Mr. Frey and the others arrived he was looking at the tire of his vehicle and trying to clear the snow away with his foot. Mr. Frey asked him if he was okay and if he could help. Mr. Castro responded, "I said, if you could help, by all means, because I wanted to park the car at my friend's house."

[69] Mr. Frey agreed then to "hook him up". Mr. Castro stated, "And then he went and got his car and he towed it, like he latch it up and I helped him with that". He states that he was giving directions and it was he that was "speaking behind him".

[70] He stated it was his intention initially that Mr. Lopez would park the vehicle in his driveway and "I would take a taxi home".

[71] In cross-examination he was asked where Mr. Lopez lived. He was not certain of the address but believed it was in a residence behind Mr. Frey's house.

[72] He was questioned by the Crown as to whether Mr. Lopez ever did return. He did not and that "surprised" Mr. Castro. When asked if he had ever asked Mr. Lopez why he did not return, Mr. Castro offered that "unfortunately" after that particular night Mr. Lopez had moved as his home had been" taken by the bank" and he had been unable to locate him. He testified he had tried to find him the next day and call him on his cell phone but his "cell was off".

[73] However, it would appear at some point he was able to get a hold of Mr. Lopez and was told by Mr. Lopez that he had been trying to "call people to help us and he was tired and stuff like that" and "got distracted with a lady friend".

[74] He stated he had asked Mr. Lopez why he had not returned to the scene and Mr. Lopez had indicated he had been "distracted with a lady friend".

[75] The following exchange then took place with the Crown:

Question: So if I'm understanding correctly your intention was to get this Mr. Frey to help pull the vehicle out of the snow?

Answer: Yes.

Question: And then you were going to properly park it on the road after that?

Answer: That...because I wanted to get out of there, yes that would have been my intention but I was going to wait for my friend to do it or was going to ask Alex or Kyle to do it.

Question: Okay.

Answer: For me.

Question: But there was at least part of the time when it was getting towed out you were behind the wheel of the vehicle, right?

Answer: It was me and Kyle that tried.

Question: Okay, so there was a time when you were behind the wheel?

Answer: Yeah, it was for the intention to reverse it, release it to park it and that's what I was trying the officers as well.

Question: Okay, and the vehicle was running when you were behind the wheel?

Answer: I assume so, yes.

Question: Okay, so you were operating it in reverse to help get it out of the snow?

Answer: Yes.

Question: While it was being towed, okay?

Answer: I only tried that once though.

Question: Once the vehicle had been unattached from the SUV you would have parked it properly on the street?

Answer: Right.

[76] Mr. Castro then went on to state that although he had talked to Mr. Lopez, he had been unable to get a hold of him again as he was not at his number and he no longer lived at the same address. He believed "he's from Nicaragua so he's back home on vacations".

[77] In reply Mr. Castro indicated that when he was behind the wheel of the vehicle it was still in the snowbank and had not been "liberated", although the tow line was attached to the vehicle.

ISSUES TO BE DETERMINED

[78] The issues in this matter have been narrowed to two. Defence has acknowledged and the evidence would certainly indicate that at all material times Mr. Castro's ability to operate a motor vehicle was impaired by alcohol. The observations of the witnesses as well as the investigating officers including the intoxilyzer technician clearly support that admission. What are left then are the two following issues:

[79] Has the Crown proven beyond a reasonable doubt that Mr. Castro had the care or control of the motor vehicle on the date in question?

[80] Has the Crown proven to the degree required that the intoxilyzer tests were taken as soon as practicable in order to enable the Crown to rely on the evidentiary shortcut, i.e. the presumption under s. 258(1)(c)(ii)?

POSITION OF THE PARTIES

[81] The Crown submits it has proven beyond a reasonable doubt that Mr. Castro was in care or control of his motor vehicle at the relevant time. The Crown submits not only does the evidence establish that during the process of attempting to extricate the vehicle from the snowbank Mr. Castro was not only in the seat ordinarily occupied by the driver he was actually operating the vehicle. Further, the Crown alleges that upon the arrival of Cst. Dopson at the scene Mr. Castro was in the seat ordinarily occupied by the driver creating therefore a presumption which has not been rebutted.

[82] Further, the Crown alleges not only was Mr. Castro in the seat ordinarily occupied by the driver, there was a realistic risk of danger in the particular circumstances here as not only was Mr. Castro in the driver's seat with the present ability to drive when ultimately observed by the police, it was his intention to do so as noted by his own evidence, i.e. that he intended to park the car once the vehicle was out of the snowbank and the tow strap detached by Mr. Frey. The Crown takes the position Mr. Castro expressed an intention to set the vehicle in motion creating therefore the risk of danger and supporting a finding beyond a reasonable doubt that he was in care or control of the vehicle at the relevant time.

[83] The defence submits that the accused did not have the care or control of the motor vehicle at the time the police officers arrived on the scene or at any time thereafter as there was a tow line attached to his vehicle thereby eliminating the possibility that the vehicle could go anywhere. Further, that when Mr. Castro was in the driver's seat the vehicle was lodged or immobilized in a snowbank. The defence submission in this regard seems to effectively bypass Cst. Dopson's evidence which clearly indicates Mr. Castro was in the driver's seat when he arrived on scene and the vehicle had already been "liberated" from the snowbank. Even if that was the case, however, the defence argues that because of the presence of the ratchet strap the car effectively could not go anywhere. The defence relies on the evidence of Cst. Schelling that if the tow line was attached "it would have prevented it from moving, i.e. the vehicle".

ANALYSIS AND RULING

[84] In Regina v. Szymanski, the court set out three means by which the Crown can prove care or control.

• by evidence of driving as the offence of impaired operation is included in a charge of care or control;
• applying the statutory presumption of care or control; or,
• de facto or actual care or control which involves the risk of danger as an essential element.

[85] Section 258(1)(a) of the Criminal Code creates a statutory presumption that if an accused is found in the seat ordinarily occupied by a driver there is a presumption that they did so for the purpose of setting the car in motion. This is a rebuttal presumption and an accused can on the balance of probabilities seek to establish otherwise.

[86] If the Crown is not in a position to rely on the presumption, the Crown can still establish by other evidence the actual care or control of the vehicle. The actus reus of the offence is the voluntary consumption of alcohol to the point of impairment or over 80 and the act of assuming care or control of the vehicle. The mens rea is the intent to assume care or control. Leading cases in this area are Regina v. Smits, 2012 ONCA 524, Regina v. Szymanski, supra, and Regina v. Boudreault, 2012 SCC 56. Briefly, in Regina v. Smits the Court of Appeal considered previous case law including Regina v. Wren, (2001) 44 C.C.C. (3d) 374, where the Court of Appeal dealt with the actus reus of the offence of care or control and described it as follows:

"In order to establish care or control of a motor vehicle, the act or conduct of the accused in relation to that motor vehicle must be such that there is created a risk of danger, whether from putting the car in motion or in some other way."

[87] In Regina v. Smits, supra, the court considered the various manner in which the risk of danger can arise and noted that an individual in an intoxicated state can create a risk when using a vehicle for non-driving purposes by:

• the risk that the vehicle will unintentionally be set in motion;
• the risk that through negligence a stationary or inoperable vehicle may endanger the individual or others; and,
• the risk that the individual who has decided not to drive at all will change his or her mind and drive while still impaired.

[88] An intention to drive the vehicle is not an essential element of the offence of care and control. It is part of the conduct of the accused that is relevant to the determination of whether that conduct in relation to the motor vehicle had created a risk of danger.

[89] In Boudreault, supra, the Supreme Court held that the phrase "care or control" signifies:

• an intentional course of conduct associated with the motor vehicle;
• by a person whose ability to drive is impaired or whose blood alcohol level exceeds the legal limit; and,
• in circumstances that create a realistic risk as opposed to a remote possibility of danger to persons or property. The risk of danger as opposed to the intention to drive is an essential element of the care of control offence.

[90] In Boudreault as well at para. 42 it was held that:

"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."

[91] The risk of danger must be a realistic risk and a matter of fact for this court to determine. The court must look at all of the relevant evidence and consider a number of factors. A risk of danger 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 an accused will in practice face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case. (See Regina v. Boudreault, para. 50).

[92] Further in Boudreault an alternate plan to ensure safe passage home may eliminate any realistic risk of danger provided that the plan was objectively concrete and reliable and was in fact implemented by the accused. Even where, for example, it is certain that a 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 his judgment was so impaired he could not foresee the possible consequences of his actions. The converse, however, is not necessarily true. Even where it is probable that the taxi will appear at some point, for example, 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. (See Regina v. Boudreault, paras. 51 to 53).

[93] In Regina v. Szymanski the court set out a series of factors to assist in assessing whether there is a risk of danger based on circumstantial evidence. Those considerations were as follows:

• The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive.
• Whether the keys were in the ignition or readily available to be placed in the ignition.
• Whether the vehicle was running.
• The location of the vehicle, whether it was on the side of a major highway or in a parking lot.
• Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination.
• The accused's disposition and attitude.
• Whether the accused drove the vehicle to the location where it was found.
• Whether the accused started driving after drinking and pulled over to "sleep it off" or started using the vehicle for purposes other than driving.
• Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit.
• Whether the accused had a stated intention to resume driving.
• Whether the accused was seated in the driver's seat regardless of the applicability of the presumption.
• Whether the accused was wearing his or her seatbelt.
• Whether the accused failed to take advantage of alternate means of leaving the scene.
• Whether the accused had a cell phone with which to make other arrangements and failed to do so.

[94] It is important to note that where the presumption under s. 258(1)(a) applies and has not been rebutted there is no obligation on the Crown to prove a realistic risk of danger. The accused can rebut the presumption contained in s. 258(1)(a) by proving on the balance of probabilities that he did not occupy the driver's seat for the purpose of setting the vehicle in motion.

[95] In Regina v. Blair, [2014] O.J. No. 4296, the Superior Court on a summary conviction appeal found the trial judge had erred in finding that even though the presumption had not been rebutted the Crown was required to prove a realistic risk of danger. At paras. 11 through 14 the court stated there as follows:

"[11] Boudreault was squarely focused on s. 253(1) of the Criminal Code. While s. 258(1)(a) was referred to in Fish J.'s reasons, the operation of the presumption was not in issue in that case because it had been rebutted by the accused.

"[12] Boudreault establishes that, when the Crown seeks to establish actual or de facto 'care or control', it is required to prove a realistic risk of danger. It does not follow that, when the accused is unable to rebut the presumption, the Crown must still prove this element. Admittedly, there is language in Boudreault that suggests otherwise. As Fish J. held at p. 232:

"'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 … 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 ... .'

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.'

"[13] However, this passage must be considered in context. The majority in Boudreault was merely describing the operation of the presumption in the light of its holding in Whyte. There is nothing in the language of Boudreault that suggests that the Court modified or altered the operation of the presumption by requiring the Crown to go further and prove a realistic risk of danger when the presumption stands unrebutted. When the presumption is not rebutted, all elements of 'care or control' (both the mens rea and actus reus components, as described in Smits, paras. 49 to 51) are deemed to exist.

"[14] There are no provincial appellate court decisions that directly confirm this interpretation. However, the same conclusion was reached in the thoughtful decisions of Fragomeni J. in R. v. Brzozowski, [2013] O.J. No. 2483 (S.C.J.) and Oleskiw J. in R. v. Tharumakulasingam, 2014 ONCJ 362. See also the thorough analysis in R. v. MacKenzie (2013), 50 M.V.R. (6th) 1 (Alta. Q.B.), a post-Boudreault case, in which Browne J. held that the presumption in s. 258(1)(a) was left unchanged. As she said at para. 22:

"'If the presumption did not apply unless the Crown established a 'realistic risk of danger', the presumption would serve no purpose. The Crown would be required to prove that the accused was seated in the driver's seat of a vehicle, an intentional course of conduct associated with the vehicle, and that sitting in the driver's seat created a realistic risk of danger to persons or property. This is the same onus that the Crown would have to satisfy if the presumption did not exist. To interpret the presumption in this way would make it ineffective and essentially meaningless.' [emphasis added]"

(a) Does the statutory presumption apply?

(b) If so, has Mr. Castro rebutted that presumption?

[96] In assessing this particular issue I keep in mind, as with all issues, the onus on the Crown throughout this matter. The charges before the court are criminal charges and Mr. Castro is presumed to be innocent until the Crown proves his guilt beyond a reasonable doubt. The burden or onus of proving the guilt of Mr. Castro rests with the Crown and it never shifts. Mr. Castro does not have to prove his innocence and I am to presume that he is innocent throughout and can only find him guilty if I am satisfied on all of the evidence that the Crown has proven the essential elements of these charges to the degree required. In this case, as Mr. Castro has given evidence and credibility is in issue, I remind myself of the principles and the application of those principles as set out in Regina v. W.(D.).

[97] In assessing the evidence of Mr. Castro, there is no need to refer to any utterances that may or may not be relied upon by the Crown during the course of the investigation whether before rights to counsel or thereafter. I simply do not believe the evidence of Mr. Castro with respect to the operation of the motor vehicle prior to its entry into the snowbank nor thereafter. Appreciating the Crown does not rely on any operation of the vehicle prior to its contact with the snowbank, the evidence of Mr. Castro as to what happened leading up to that event and thereafter is inconsistent, contradictory and, I find ultimately, fabricated.

[98] Mr. Castro, by his own counsel's admission, was under the influence of alcohol on the evening in question to the point that his ability to operate a motor vehicle was impaired. He presents as such both to the police officers who attended at the scene, the intoxilyzer operator and, as well, the civilian witnesses who attempted to come to his aid.

[99] Mr. Castro would have the court believe that he had arranged as a reasonable person for the operation of his motor vehicle by a designated driver on the evening in question for he and his wife when they attended a wedding. It was clearly, on his own evidence, in the mind of Mr. Castro to put himself in a position that he would not be capable of operating the vehicle on his own.

[100] That individual, the mysterious Dave Lopez, appears to have picked Mr. Castro and his wife up at the wedding, driven them to their home and then somewhere there was a missing wallet or wallets on the part of Mr. Castro and his wife, causing Mr. Lopez and Mr. Castro then to return somewhere to retrieve the wallets.

[101] While that was taking place Mr. Castro's evidence is that Mr. Lopez, in an effort to park the vehicle apparently in the proximity of Mr. Lopez's home not Mr. Castro's, lodged the vehicle in a snowbank. It was Mr. Castro's initial intention to simply have Mr. Lopez park the vehicle at his house and then Mr. Castro was going to take a taxi home. It makes no sense that if Mr. Lopez was the designated driver one wonders why the vehicle he was using was apparently Mr. Castro's and how, if that is true, Mr. Lopez, if he had successfully driven Mr. Castro and his wife to their house, was to get back to his own house.

[102] In any event, Mr. Lopez apparently leaves the scene to get a shovel and hopefully return. In the interim, the civilians show up and it is clear from their contact with Mr. Castro that he has no interest in waiting for Mr. Lopez to return. Not only does he not mention Mr. Lopez to anyone, he makes it clear that he is willing to take part in the extrication of the vehicle and assists by direction and, in fact, at some point operating the vehicle while it is on the snowbank.

[103] The court never heard from Mr. Lopez who seems to have disappeared almost immediately after the event. Mr. Castro indicates he was not certain even where Mr. Lopez lives but believed it was in close proximity. He further gave evidence that the house had been "taken by the bank" and he had been unable to contact Mr. Lopez at his residence as a result.

[104] One wonders how he was going to do that when he does not seem to know specifics of where Mr. Lopez actually lived and, further, the attempts to contact Mr. Lopez seem to have been unsuccessful with regard to any cell phone communication because Mr. Lopez's cell phone, rather interestingly, seems to have been disconnected following the event.

[105] In any event, as I understand Mr. Castro's further evidence, at some point he was able to contact Mr. Lopez and Mr. Lopez indicated he had gone back to his residence to try to make some calls to get other friends to help because he had been "distracted by a lady". Mr. Lopez then, again according to Mr. Castro, was no longer available because he had returned to his home country for a vacation or otherwise.

[106] Mr. Castro, I find, is not a reliable historian and is careless with the truth.

[107] I find that the alleged involvement of Mr. Lopez, whether such a person exists or not, on the night in question is an invention and a creation of the imagination of Mr. Castro. I do not accept his evidence in that regard and, if necessary, I would have found it was Mr. Castro who had operated the vehicle and driven it into the snowbank. All of the evidence thereafter is consistent with him being the directing mind and the sole occupant of the vehicle at that relevant time.

[108] However, the Crown does not, as I have noted previously, rely on any driving prior to the "snowbank" to form part of the care or control, although they well could have in this particular case.

[109] I find at the end of the day with respect to Mr. Castro's evidence, I do not accept it nor am I left in reasonable doubt by it and where it conflicts with the evidence of other witnesses I accept the evidence of those witnesses. It is of note, however, that Mr. Castro on his own evidence appears to present in a contradictory manner when stating exactly what his intention was with respect to the vehicle, and I will address that issue more thoroughly later.

[110] Having rejected the evidence of Mr. Castro and not being left in reasonable doubt by it, I must then look at the balance of the evidence which I do accept to see if the Crown has established the essential elements of the charges beyond a reasonable doubt.

[111] With regard to the issue of the presumption, the evidence of the civilian witnesses is quite clear and I accept that at some point during the process of the vehicle attempting to be extricated from the snowbank with the assistance of Mr. Frey, his vehicle and a tow rope Mr. Castro was in fact operating the vehicle. This is consistent not only with the evidence of Samantha Trider, but also ultimately consistent with the evidence of Mr. Frey who at one point saw Mr. Castro during that particular process either directly or by strong and reasonable inference behind the wheel.

[112] In addition, even on Mr. Castro's own evidence he was directing "Kyle" who I find was the other operator of the vehicle during part of trying to get the vehicle out of the snowbank. I also accept the evidence of Cst. Dopson, the first officer who arrived on scene seconds before Cst. Schelling, who observed the vehicle out of the snowbank, apparently still attached by the tow rope to Mr. Frey's vehicle but with Mr. Castro clearly sitting in the seat ordinarily occupied by the driver. I also accept Cst. Dopson's evidence that Mr. Castro then got out of the vehicle and by the time Cst. Schelling saw Mr. Castro he in fact was outside of the vehicle as testified to by Cst. Schelling. I find that Cst. Schelling did not have a reasonable opportunity to view Mr. Castro in the vehicle, as did Cst. Dopson, because of his approach the blocking of vision by Mr. Frey's car and the presence of the headlights as he testified to.

[113] I am also satisfied that Cst. Schelling made the appropriate inquiries of Cst. Dopson and was advised that Mr. Castro had in fact been in the seat ordinarily occupied by the driver.

[114] I find then that the presumption is in place and I also find that the presumption has not been rebutted. I specifically reject the evidence of Mr. Castro with respect to his lack of intention to continue to use the vehicle once out of the snowbank. I further find that the presumption has not been rebutted, not only by rejection of Mr. Castro's evidence but also, notwithstanding the tow rope may have been attached, the vehicle was still operable and quite capable of being moved. There is nothing to indicate whether it could have been reversed, forwarded or otherwise put in motion even though attached to the tow rope. Indeed, Mr. Frey's evidence, which I also accept, was that he was in the process of detaching the tow rope just as the police arrived.

[115] I find then as a result of the presumption applying there is no need for the Crown to prove a realistic danger in any event and I am satisfied on that basis alone that Mr. Castro was in the care or control of the motor vehicle on the date and time in question.

(c) If I am wrong and Mr. Castro has rebutted that presumption in some manner, has the Crown otherwise proven beyond a reasonable doubt that he was in care or control of the vehicle?

[116] With respect to this particular issue, assuming that I am incorrect and the presumption is found to have been rebutted, I would have otherwise been satisfied that Mr. Castro had the care or control of the vehicle on the evening in question. He entered into an intentional course of conduct associated with the vehicle either by driving it or directing its removal from the snowbank and his presence in the driver's seat, as I have found, would certainly indicate he had the ability to set the vehicle in motion. Further, it is acknowledged that his ability to operate the vehicle was impaired by alcohol and the circumstances leading up to the extrication as well as the circumstances that existed when the police arrived created a realistic risk. It was more than a remote possibility that there could be danger to persons or property.

[117] I say that for, among other reasons, the following:

[118] Mr. Castro's ability to operate a motor vehicle, I find, was impaired by alcohol on the night in question. Defence agrees that there is sufficient evidence before the court to warrant such a finding and the evidence in that regard is effectively overwhelming. Indeed, even the evidence of Mr. Castro would seem to support the finding that he himself acknowledged by his actions and otherwise that his ability to operate the vehicle was impaired by alcohol.

[119] The car was running when the police arrived on scene and also when the civilians first arrived. The vehicle was running in the snowbank and continued to run thereafter until the police arrived and had contact with Mr. Castro.

[120] When the police arrived the vehicle was on the roadway ready to be moved in some form or another. I find in fact it was going to be moved by Mr. Castro, even on his own evidence when he stated that his intention was to park the vehicle. He tried to back off of that somewhat later in his evidence but it is clear from the positioning of Mr. Castro in close proximity to the vehicle, in the absence of anyone else readily available, that it was his intention to, at the very least, move the car once it was detached. His evidence of control of the vehicle is clearly indicated by his involvement in the vehicle while being moved from the snowbank by driving it, directing its operation and by his involvement with the vehicle thereafter. Indeed, it is fortunate the police arrived as I strongly suspect it was Mr. Castro's actual intention to get in the vehicle and drive it home. The vehicle was located on the roadway when the police arrived.

[121] Mr. Castro, as I have noted, had not reached his destination, he did not have a plan in place that I accept (indeed, he indicated to the civilians that he did not know "what he would have done if they had not shown up and helped"), he certainly was involved in the operation of the vehicle after having consumed alcohol and I find on the evidence that he had every intention to resume driving the vehicle once it was out of the snowbank. It was operable and able once the tow rope was detached, and even before the tow rope was detached, to be capable of movement which would put at risk, not only property, to Mr. Frey's car perhaps, but more importantly, to the civilians on the scene who were attempting to assist Mr. Castro.

[122] There was no alternative means of travel presented by Mr. Castro as to how he was going to get home, although there was the presence of a cell phone that was being used by Mr. Castro at the scene when the police arrived. Thereafter Cst. Schelling took a call for Mr. Castro, which interestingly enough, was not from Mr. Lopez but was from Mr. Castro's wife. Again, I stress I find that Mr. Lopez, or at least his involvement on the night in question is a fabrication of Mr. Castro.

[123] I find then not only does the presumption apply, but even if the presumption did not apply, the evidence is overwhelming that the accused was in care or control of the vehicle. There is nothing to suggest the motor vehicle was inoperable at the time the police arrived and, in fact, it was quite capable of being operated and the danger or risk posed at that time was realistic. Further, the actions involving the vehicle immediately before the police arrived, for some 20 minutes according to Mr. Frey, and thereafter clearly support the finding made.

[124] When reviewing the evidence with respect to this issue thoroughly and realistically, the risks involved with Mr. Castro's continuing involvement with the vehicle while in the snowbank and thereafter are obvious.

FINDING ON IMPAIRED OPERATION CHARGE

[125] As a result of the above, I find the Crown has proven well beyond a reasonable doubt the following:

[126] Mr. Castro's ability to operate a motor vehicle on the date and time in question was impaired by alcohol (an admission also having been so made by the defence); and,

[127] At all relevant times Mr. Castro had the care or control of the motor vehicle.

CHARGE OF OVER 80 AND THE ISSUE OF WERE THE BREATH TESTS TAKEN "AS SOON AS PRACTICABLE"?

[128] With respect to this particular issue, I find as a fact the relevant times to be as follows:

• 2:33 a.m.: Arrival of Cst. Schelling on scene, preceded shortly before by the arrival of Cst. Dopson. Further, with respect to the time frame prior to that, I find as a fact and accept Mr. Frey's evidence in that regard that some time after 2:15 a.m. he and his friends arrived on scene and attempted to extricate Mr. Castro's vehicle for some 20 minutes prior to the police arrival.

• 2:36 a.m.: Mr. Castro arrested.

• 2:48 a.m.: Rights to counsel were read.

• 2:50 a.m.: Standard caution read.

• 2:57 a.m.: Constable Green attends detachment.

• 3:04 a.m.: Arrival at detachment. There was no evidence given with respect to when the constable left the scene with Mr. Castro.

• 3:06 a.m.: Mr. Castro's property collected and he was escorted to the cellblock.

• 3:07 a.m.: Approved instrument appears ready for use.

• 3:14 a.m.: Duty counsel contacted on behalf of Mr. Castro.

• 3:29 a.m.: Constable Schelling provides grounds to Cst. Green. (Constable Green had this time noted as 3:27 a.m. and there is no explanation for the difference in the timing between the two officers.)

• 3:37 a.m.: Mr. Castro brought into the interview room by Cst. Schelling. (Again, Cst. Green had this at 3:35 a.m.)

• 3:41 a.m.: First sample provided. (Cst. Green's evidence)

• 3:44 a.m.: Mr. Castro escorted by Cst. Schelling to interview room.

• 4:03 a.m.: Mr. Castro returned to breath room.

• 4:06 a.m.: Second sample received.

[129] The Crown's position is that when one looks at the entire time frame involved and the fact that both samples of breath were within the two hour period the tests were in fact taken as soon as practicable. The Crown submits this is so notwithstanding the lack of evidence with respect to the time frame between the time of placing of the call to duty counsel at 3:14 a.m. and the turnover to Cst. Green.

[130] Defence takes the position that there is no explanation for the period of time not only with respect to the issue of duty counsel being called, but also with respect to the time frame between the two tests. Defence submits ultimately the tests were therefore not taken as soon as practicable.

[131] The determination of this issue, in my view, involves an analysis of the entire time frame and whether or not the police acted reasonably and promptly within that particular period. When looking at this more closely, I find that the time most problematic for the Crown is the time frame between the time the instrument was apparently ready for a sample to be received at 3:07 a.m. and the actual presentation of Mr. Castro into the breath room on Cst. Schelling's evidence at 3:37 a.m. I note there is a difficulty in establishing some of the exact times with any precision given the difference in the time frames in the evidence of Cst. Green and Cst. Schelling. There was no clarification with respect to the difference in those time frames and although they may appear to be relatively small, one to two minutes, some explanation should have been provided.

[132] Within that particular time frame the period of primary concern to the court is the period of time from when duty counsel was called at 3:14 a.m. and the time Mr. Castro was taken from the interview room to the breath room at 3:37 a.m., a period of some 23 minutes.

[133] Both s. 258(1)(c)(ii) and s. 258(1)(d)(ii) of the Criminal Code require that both breath tests be taken as soon as practicable after any breath demand has been made. The case law sets out the reasoning behind this particular issue and notes the two main reasons are the issues of trial fairness and liberty interests.

[134] The case law clearly establishes that the as soon as practicable requirement exists for both of those interests and to ensure the statutory presumption of identity operates fairly and accurately while at the same time the period of detention for individuals such as Mr. Castro is minimized.

[135] The leading cases in this particular area are Regina v. Vanderbruggen, and Regina v. Singh, 2014 ONCA 293, both decisions of the Ontario Court of Appeal. Those cases, together with others, establish that "as soon as practicable" means within a reasonably prompt time in all the circumstances and does not mean either immediately or as soon as possible. Those cases establish there is no onus on the Crown to account for every minute when considering the issue of "as soon as practicable" and the key issue is whether the Crown has proven the police acted promptly and reasonably in all the circumstances. Whether or not the police acted promptly and reasonably is a matter of evidence and the facts established in each individual case where this issue is considered.

[136] The touchstone of all the cases is whether the police have acted reasonably and promptly in all the circumstances. That requirement must be applied with reason and the Crown, while having to demonstrate in all the circumstances the breath tests were taken within a reasonably prompt time, does not have an obligation to provide a detailed explanation of what occurred every minute that the accused is in custody.

[137] There must, however, be some evidence showing that the officers were aware of the requirements of the Criminal Code and that they acted reasonably and expeditiously in all the circumstances. The test or practicality is reasonableness and the court must be satisfied the conduct of the police in the interval between the arrest and the tests was reasonable.

[138] Here, I am satisfied there is no issue with respect to the "as soon as practicable" requirement that arises until the arrival at the police station.

[139] According to Cst. Schelling, Mr. Castro and he arrived at the station at 3:04 a.m. There is relatively minimal evidence as to what takes place between that time and 3:14 a.m., although there is some evidence that property was collected, Mr. Castro was placed in a cell and various information was received and a detain sheet was completed.

[140] What the evidence also, however, discloses is that at 3:07 a.m. Cst. Green had the instrument prepared and ready to receive a sample.

[141] Thereafter there is evidence as to duty counsel being called at 3:14 a.m. There is a total absence of evidence of the particulars of what happened thereafter with respect to duty counsel. There is no evidence that duty counsel returned the call or that Mr. Castro had an opportunity to speak with counsel and that some of that time period was subsumed by that conversation. Interestingly, defence counsel in submissions makes reference to the possibility of very specific timing with respect to any conversation and that may very well be what happened but there is no evidence before this court to establish that. I have to assume, therefore, there is no evidence with respect to what took place between 3:14 a.m. when duty counsel was called and thereafter until, on Cst. Schelling's evidence, Mr. Castro was introduced into the breath room at 3:37 a.m.

[142] I should note I am satisfied that the time frame between the two samples was not inordinate given the weak samples that were provided which would have subsumed some time.

[143] What, however, is a difficulty for this court to determine is the time frame between 3:14 a.m. and the turnover to Cst. Green. What the court does know is that at 3:07 a.m. Cst. Green was ready to receive a sample and that Cst. Schelling had been in the detachment since 3:04 a.m. There is no explanation or evidence to indicate why it took Cst. Schelling until 3:29 a.m., over half an hour after he had arrived in the detachment, to provide grounds to Cst. Green. This is of a particular concern given the fact it would appear that nothing happened between 3:14 a.m. and 3:29 a.m., nor from 3:29 a.m. until 3:37 a.m. from which the court could conclude or infer that Cst. Schelling was acting in a reasonable and prompt manner. There is simply a lack of evidence with respect to what took place there.

[144] In my view this case is very similar to the fact situation in Regina v. Schouten, [2002] O.J. No. 4777, referred to by defence counsel in their written submissions. There, the court effectively said that an unexplained time frame of some 18 minutes was fatal to the Crown's case.

[145] In that particular case the breath tech had been ready to receive the accused at 12:34 a.m., which had been the time the accused had finished speaking with duty counsel. There was not a turnover of the accused until some 18 minutes after that call had been completed.

[146] The trial judge had convicted the accused, finding the tests were taken as soon as practicable, but on appeal that decision was overturned. The basis of the appeal court's decision was that there had been no explanation given for the delay in the turnover. The court there held it was incumbent on the Crown to establish beyond a reasonable doubt the tests were taken as soon as practicable before they could be related back to the time of driving. The court further stated that, although there was no magic point in time when an unexplained gap will be sufficient to raise a doubt, where there is evidence from when the machine was ready and the investigating officer knew that until the turnover the Crown had not established the tests were taken as soon as practicable.

[147] Here, there is almost a complete absence of evidence as to what occurred between the time the call was placed to duty counsel and the accused was actually turned over to the breath tech. The only evidence as to what took place within that period of time is that grounds were provided to the qualified technician Cst. Green at 3:29 a.m. It is impossible for the court to determine whether the time prior to that from 3:14 a.m., or the time thereafter until 3:37 a.m., which is the time that Mr. Castro was presented to Cst. Green on Cst. Schelling's evidence, was reasonable.

[148] I say all this fully appreciating that "as soon as practicable" does not mean "as soon as possible" or "immediately". It simply means the tests must be taken within a reasonably prompt time in all the circumstances. To determine whether they were requires some evidence as to what took place, fully again appreciating that the police do not have to account for every moment. Here, there is a significant gap and it is impossible to determine whether Cst. Schelling acted reasonably and promptly in all the circumstances absent evidence as to what those circumstances actually were.

[149] As a result, I am not prepared to find beyond a reasonable doubt that the Crown has established that the "as soon as practicable" requirement has been met. Without the availability of the presumption, the essential elements of the over 80 charge are not able to be proven to the degree required. The charge of over 80 will be dismissed.

SUMMARY

[150] In summary then, there will be a finding of guilt on the charge of impaired care or control, and a finding of not guilty on the charge of care or control while Mr. Castro's blood alcohol level exceeded the legal limit.

Released: October 6, 2015

Signed: "Justice G. F. Hearn"