Court File and Parties
Ontario Court of Justice
Date: 2015-01-22
Court File No.: Peterborough 14-0251
Between:
Her Majesty the Queen
— and —
Lauren McColl
Before: Justice S.W. Konyer
Heard on: 2015-01-12
Reasons for Judgment released on: 2015-01-22
Counsel:
- Ms. K. Eberhard, counsel for the Crown
- Mr. B. Miller, counsel for the defendant Lauren McColl
Konyer J.:
INTRODUCTION
[1] Lauren McColl is charged with having the care or control of a motor vehicle while her ability to operate the vehicle was impaired by alcohol, and with having the care or control of the vehicle while her blood alcohol level exceeded the legal limit. These offences are alleged to have occurred in the early morning hours of January 20, 2014 outside of a residence on Treetop Road in the city of Peterborough.
[2] It is conceded that Ms. McColl was over the legal limit and that her ability to drive was impaired by alcohol at the time she admittedly occupied the driver's seat of her vehicle. The main issue at trial was whether Ms. McColl was in care or control of her vehicle at the relevant time. If she was not in care or control, the Crown also argued that I could draw an inference from circumstantial evidence of tire tracks that she operated her vehicle at a time when she was impaired and had an excessive blood alcohol concentration.
SUMMARY OF RELEVANT FACTS
[3] Ray Gillespie, a tow truck driver, received a dispatch call from CAA sometime around 2 a.m. on January 20, 2014, sending him to a residential address at 1557 Treetop Road, Peterborough. Once on scene, he observed a vehicle stuck in the snowbank at the foot of the driveway. He approached the vehicle, and observed the accused to be asleep in the driver's seat with the motor running. He woke her by knocking on the window, and when she lowered the window to speak with him, Mr. Gillespie noted that Ms. McColl's speech was slurred. He then informed her that he was required to notify the police in accordance with company policy, which he then did. Ms. McColl remained seated in the driver's seat of her vehicle until police arrived, while Mr. Gillespie did the same in his tow truck.
[4] Cst. Whitten and Cst. Plumbe of the Peterborough Police Service arrived at the same time, though in separate vehicles, at approximately 3:00 a.m. Cst. Whitten interacted with Ms. McColl while Cst. Plumbe, who would later act as an Intoxilyzer technician, stood by. Cst. Whitten noted many of the usual signs of impairment on the accused, and eventually formed the requisite grounds to believe her ability to drive was impaired by alcohol. He arrested Ms. McColl, informed her of rights and caution, and made a breathalyzer demand, all of which was understood.
[5] Both officers gave evidence about tire tracks observed at the scene in the snow that covered the area. It was snowing at the time of the police attendance, and Mr. Gillespie estimated that there was between 6 and 8 inches of fresh snow on the ground. The tire track evidence was somewhat unclear. Cst. Whitten stated that Treetop Road was a quiet residential street, and that he saw tire tracks leading down Treetop Road to the residence in question, entering the driveway and then appearing to back out to the point where Ms. McColl's vehicle was lodged. Cst. Plumbe described tracks coming down the driveway, veering to the right, and then coming to the left, ending where Ms. McColl's vehicle was lodged. Mr. Gillespie did not make note of the tire tracks.
[6] After the arrest, Mr. Gillespie pulled Ms. McColl's vehicle from the ditch using the winch on his tow truck prior to police leaving the scene. No efforts were made to dislodge the vehicle without the use of the tow truck, though Mr. Gillespie described the vehicle as being lodged in a "cockeyed" manner between the snowbanks on either side of the driveway, and stated that "there was no way it would come out without a pull".
[7] Once the vehicle was removed from the snowbank, Ms. McColl was transported to the police station, where samples of her breath were obtained and analyzed in accordance with proper procedure, yielding readings of .170 at 3:53 and .160 at 4:16 a.m. Both the arresting officer and Intoxilyzer technician also formed the belief that Ms. McColl's ability to drive was impaired by alcohol.
[8] Ms. McColl made a number of utterances to the officers who dealt with her, at the roadside, during transport to the station, and during an interview with the Intoxilyzer technician. The defence concedes the voluntariness of all statements. In these statements Ms. McColl said a number of things that contradicted each other and contradicted her testimony in court about what she had to drink at a restaurant earlier that evening, the times at which she was operating her vehicle, and whether she consumed any alcohol after arriving at the Treetop Road residence.
[9] Ms. McColl testified in her own defence, stating that she had attended a Boston Pizza restaurant in Peterborough the evening before, where she spent several hours socializing with friends and watching NFL playoff games. She left after the last game finished at around 10 p.m. She left with a man named Mark Collicutt, who was a casual acquaintance. Ms. McColl testified that she consumed two 32 oz glasses of draft beer during the time at the restaurant, that she felt sober enough to drive, and that she drove herself and Mr. Collicutt to his residence.
[10] Mr. Collicutt, who also testified, stated that he drank around 10 beers over several hours at the restaurant, confirmed that Ms. McColl drove the two of them back to his residence. Once there, it appears as though she initially pulled into the laneway behind Mr. Collicutt's vehicle. Her intention at this point was to spend the night at Mr. Collicutt's residence.
[11] Although he left early in the mornings at around 5 a.m. on days when he had to work, he was not working the following morning, a Monday. Despite this fact, when Ms. McColl stated her intention to move her car to the street so that he could leave when he needed to in the morning, Mr. Collicutt said nothing about having the following day off from work. This is despite the fact that it had been snowing that night, that it was known to both parties that city by-laws prohibited overnight parking in the winter months, and that Ms. McColl risked having her vehicle ticketed or towed if she moved it to the street rather than leaving it in Mr. Collicutt's driveway.
[12] They both stated that Ms. McColl lost control of her vehicle when attempting to maneuver it out of the driveway, such that it became stuck in the snowbank. Efforts to dislodge the vehicle were unsuccessful, and in fact made the situation worse as the spinning of the tires led to the vehicle becoming more firmly lodged in the snowbank. Unable to move the vehicle, which was blocking the driveway, they proceeded into the Collicutt residence, where both consumed between 4 and 6 beers before Mr. Collicutt passed out.
[13] At this time, Ms. McColl testified that she decided, out of a stubborn determination to have her vehicle moved from blocking the driveway, to call CAA to have the vehicle towed. She said that she had used CAA towing services in the past, and that they typically asked that the caller wait at the vehicle if safe to do so. They made the same request of her this night. She was inside the vehicle with the engine running in order to keep warm, according to her evidence.
APPLICABLE LEGAL PRINCIPLES
[14] Where an accused is alleged to have had the care or control of a motor vehicle, the Crown can prove care or control either through operation of the statutory presumption, or by proof of actual care or control.
[15] Section 258(1)(a) of the Criminal Code provides that an accused who is found in the driver's seat of a motor vehicle "shall be deemed to have had the care or control of the motor vehicle". Where the statutory presumption applies, the accused must establish on a balance of probabilities that his or her occupancy of the driver's seat began without the purpose of setting the vehicle in motion – see R. v. Minhas, 2013 ONCJ 557, at para. 35.
[16] If the statutory presumption does not apply, or if the accused rebuts the presumption, the Crown can still attempt to prove that the accused was in actual care or control: see R. v. Smits, 2012 ONCA 524, at para. 48. This requires proof that the accused presented a "realistic risk of danger to persons or property": see R. v. Boudreault, 2012 SCC 56, at para. 39.
[17] This risk of danger typically arises in one of three ways: by the inebriated person who may change his or her mind and decide to drive while intoxicated; by the possibility that the inebriated person may unintentionally set the vehicle in motion; or because a stationary or inoperable vehicle may present a danger. The question of whether a realistic risk of danger exists is a question of fact for the trial judge. Finally, the Supreme Court cautions that "[a] conviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case": see R. v. Boudreault, supra, at para. 45.
[18] The operation of a motor vehicle is included within care or control. Therefore, even if I find that Ms. McColl has rebutted the statutory presumption and that the Crown has otherwise not proven actual care or control, I must consider whether the Crown has proven that Ms. McColl operated the motor vehicle at a time when she was impaired or had an excessive blood alcohol concentration. The Crown argues that I can draw an inference that Ms. McColl operated her vehicle while impaired and over the limit because the tire track evidence proves that she drove her vehicle into the snowbank immediately before calling for the tow truck, at a time when she must have been in an intoxicated state. The Crown argues that I should draw this inference despite the fact that the accused and Mr. Collicutt testified that she drove the car into the snowbank earlier in the evening after returning from Boston Pizza, at a time when there is no evidence that she was impaired or over the legal limit.
[19] As a trial judge I may draw inferences from proven facts, where the inference is one which derives logically from the proven facts. Inferences are permissive, not mandatory, and it is often difficult to separate permissible inference from unsafe speculation. Generally speaking, while inferences can range in strength from weak to near irresistible, an inference is more likely to be drawn where it represents the only reasonable conclusion arising from the proven fact or facts.
ANALYSIS
a) Whether the s.258(1)(a) presumption has been rebutted
[20] The presumption applies in this case as Ms. McColl was found passed out in the driver's seat by the operator of the tow truck that she had herself called. She testified that she occupied the driver's seat for the purpose of waiting for the arrival of the tow truck. She waited with the vehicle because she was instructed by CAA to wait with the vehicle on this occasion, and because she had dealt with CAA previously and had always been instructed to wait with the vehicle if safe to do so until the arrival of the tow truck. She waited inside the vehicle with the engine running and heater on due to the cold temperature.
[21] I share many of the concerns of the Crown with respect to Ms. McColl's credibility as a witness. She gave conflicting statements to the police about her activities that night, she deliberately lied to Cst. Plumbe when she told him that she had not consumed any alcohol after leaving Boston Pizza, and her explanation for wanting to move the car from the driveway to the road in the first place is illogical.
[22] Despite these concerns, I accept that she occupied the driver's seat of her vehicle after calling CAA for the purpose of waiting for the tow truck because there is no other plausible explanation for her being in the vehicle. It was clearly immobilized, and she would have known this after the earlier unsuccessful efforts undertaken by her and Mr. Collicutt to extricate the vehicle. Clearly, she called the tow truck because the vehicle was stuck. Just as clearly, in my view, her occupancy of the driver's seat began for the purpose of awaiting the arrival of the tow truck. I therefore find that Ms. McColl has rebutted the presumption in s.258(1)(a).
b) Whether the Crown has proven actual care or control
[23] In considering whether the Crown has established care or control in the absence of the s.258(1)(a) presumption, I must consider whether the Crown has proven that there existed a realistic risk of danger to the public as a matter of fact in the circumstances of this case. The circumstances of this case as I find them are that Ms. McColl was intoxicated when she passed out in the driver's seat of her vehicle, that her vehicle was incapable of being set in motion either intentionally or accidentally prior to the vehicle being extricated from the snowbank, and that the position of the vehicle in the snowbank at the end of a driveway on a quiet residential street in the middle of the night did not pose a realistic risk to other users of the road.
[24] Furthermore, it is noteworthy that the tow truck operator kept watch over Ms. McColl and her vehicle from the time he woke her up and noted her intoxicated state until the police arrived. There was no suggestion that she attempted to move the vehicle during this period of time. In Boudreault, supra, the trial judge found as a fact that the accused, who had called for a taxi then passed out in the driver's seat of his own vehicle with the motor running in cold weather, did not pose a realistic danger of changing his mind because he was monitored by the taxi driver, who called the police. In the case at bar, even if she could have managed to extricate her vehicle without assistance once woken up, any such possibility was virtually eliminated by the continued presence of the tow truck driver.
[25] The case of R. v. Wren, [2000] O.J. No. 756 from the Ontario Court of Appeal also bears some factual similarity to the case at bar. In that case the accused crashed his vehicle into a ditch while impaired and after unsuccessful attempts were made to remove the vehicle, he called for a tow truck and was arrested while waiting in the driver's seat of the vehicle for the tow truck to arrive. His vehicle had been rendered inoperable by the crash. The trial judge found that the vehicle was inoperable, that the accused had tried unsuccessfully to move it, that the accused was awaiting the arrival of a tow truck which he had called for, and that there was no risk of any action on his part setting the vehicle in motion at the time he was found. The trial judge's conclusion that Mr. Wren was not in care or control of his vehicle was upheld by the Court of Appeal, which affirmed that the vehicle "was incapable of representing any danger to which [s.] 253 is addressed": see para. 26.
[26] In R. v. Bond, [2008] M.J. No. 124 (Q.B.), the summary conviction appeal court found that there was no realistic danger to the public of a vehicle stuck in a snowbank being set in motion where the evidence was that the accused and his friend had made efforts to dislodge the truck before the accused passed out in the driver's seat. I agree with that reasoning.
[27] In Ms. McColl's case, her vehicle was operable but stuck in a snowbank from which it could not be dislodged without the mechanical assistance of a tow truck. I find as a fact that her vehicle was not capable of being set in motion until such time as it was extracted from the ditch. The tow truck operator dispatched to the residence, however, is the person who contacted police and waited with the vehicle until police arrived. Ms. McColl had no present ability to set the vehicle in motion at any time after it became stuck in the ditch. The only evidence I heard with respect to the positioning of the vehicle leads me to conclude that it was not on the roadway and would not have presented any more danger to users of the road than a vehicle parked at the curb. Therefore, in the circumstances of this case, there was no realistic risk of harm to the public, which is the mischief Parliament intended to prohibit by enacting the care or control offences.
c) Whether the Crown has proven operation
[28] The Crown also argued that I could infer actual operation of the vehicle by Ms. McColl while she was impaired or over the legal limit based on the existence of the tire tracks. The Crown submitted that the existence of fresh tire tracks in the snow leading to Ms. McColl's vehicle is a fact capable of supporting an inference that Ms. McColl drove her car into the ditch immediately before calling CAA, and not some hours earlier when she first arrived at Mr. Collicutt's residence.
[29] Cst. Whitten gave the most extensive evidence about tire tracks, and testified that he observed a fresh set of tracks leading from further up Treetop Road to the driveway and continuing into the driveway. He then said it appeared from the tracks that the vehicle backed out of the laneway and became stuck. On the evidence before me, the tire tracks leading from Treetop Road into the driveway could only have been made when Ms. McColl drove to that residence after leaving Boston Pizza some hours earlier. Both these tracks and the tracks backing out of the driveway to the location where the vehicle came to rest were described by Cst. Whitten as being "fresh". No distinction was drawn by the witness in terms of relative freshness between the tracks made on Treetop Road, which would have been made at the time the vehicle arrived at the Collicutt residence, and the tracks made backing out of the driveway.
[30] I cannot determine on the basis of the observations of the tracks alone when they were made and it would in my view be unsafe to draw an inference from the tracks that Ms. McColl had operated her vehicle after rather than before her consumption of alcohol at the Collicutt residence. Therefore, the Crown has not proven liability on the basis of operation rather than care or control.
CONCLUSION
[31] Accordingly, although Ms. McColl was voluntarily intoxicated and voluntarily occupied the driver's seat of her vehicle while awaiting the arrival of the tow truck, in my view she has rebutted the presumption that she did so for the purpose of setting the vehicle in motion. Furthermore, she occupied the driver's seat of her vehicle in circumstances where there was no realistic risk of a danger to the public. Accordingly, in my view, she was not in care or control of her vehicle at the time.
[32] Nor is there any evidence that her operation of the vehicle occurred at a time when she was impaired or had a blood alcohol level in excess of the legal limit.
[33] She is therefore found not guilty of both charges.
Released: January 22, 2015
Signed: "Justice S.W. Konyer"