Court File and Parties
Court File No.: Halton Region, Central West 15-847
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Ryan Toyota
Before: Justice Alan D. Cooper
Heard on: January 21, 2016
Reasons for Judgment released on: March 1, 2016
Counsel:
- Erinn M. O'Marra for the Crown
- Frank E. Genesee for the defendant Ryan Toyota
Case History
[1] In the early morning of Sunday, February 8, 2015, a bylaw officer noticed a white sports utility vehicle parked in the visitor's parking lot of a housing complex in Burlington. The engine was running and the exterior lights were on. Inside a man was slumped over in the driver's seat. The police were called.
[2] Halton Regional Police Service officer Mark Urie arrived at 5:15am, and the man was still in the same position, and the engine running. The vehicle had been parked properly. It was cold out and the temperature was below zero. The man was not wearing a seatbelt, and the heater was turned on. The car was not locked, and when the officer opened the door he smelled alcohol within the vehicle and on the occupant, who was Ryan Toyota.
[3] When the car door was opened, the defendant awoke. He was asked to step out and he did, but was groggy, had glassy eyes, and slurred and indecipherable speech. He was extremely unsteady on his feet and had to correct his balance. The officer formed the opinion that Mr. Toyota was in the care or control of a vehicle when impaired by alcohol. He was arrested at 5:20am.
[4] As the defendant became more awake, the steadier he became on his feet, and after taken to the police station he was able to walk normally, and had no problems with his speech. He was turned over to breath technician Pam Douglas for testing. Officer Urie noted that Mr Toyota's vehicle was not damaged and was driveable.
[5] During cross-examination, officer Urie said the defendant had appeared to be sleeping when he first saw him and his slurred speech could have been attributable to his having just been awakened.
[6] Officer Douglas testified that the defendant was talkative and cooperative. She could smell alcohol on his breath, his eyes were bloodshot and his pupils were dilated. Although she could understand what he was saying, his speech was slurred throughout, and he walked with slow, wide steps. In her opinion, the effects of alcohol were obvious, and the ability of the defendant to operate a motor vehicle was impaired by the consumption of alcohol.
[7] An 8 minute portion of the breath room video was played during cross-examination, and it appeared to the court that Mr. Toyota was walking properly and his speech did not seem abnormal. However, a videotape is not a substitute for the actual observations of officer Douglas.
[8] At the outset of the trial, defence counsel admitted that the blood-alcohol readings of Mr. Toyota were 160 and 160 milligrams of alcohol in 100 millilitres of blood.
Defence Evidence
[9] Ryan Toyota gave evidence and said that on the Saturday evening of February 7, he drove to the home of his friend Patrick Moskwa, which was in the housing complex where the defendant was arrested. Mr. Toyota lived in Oakville at the time.
[10] When he gave evidence he was 29 years old, single, and a partner in a wholesale electronics business which had been in existence for 8 years. He had consumed no alcohol before he arrived at 9pm, and had planned to stay the night at Patrick's home in Burlington, and had requested permission to do so. Devin Morao, another friend, also met them at Mr. Moskwa's residence.
[11] The three friends took a taxi to a restaurant and bar in downtown Burlington, known as Italia, where they had some drinks. Mr. Moskwa was sick, or had consumed too much alcohol, and had gone back to his place. Mr. Toyota and Mr. Morao went to a restaurant and ate some food but had no alcohol. They took a cab back to the Moskwa residence, where the defendant got out. Devin continued on in the taxi to his home.
[12] It was now between 2-2:30am, and the defendant pounded on Mr. Moskwa's door to gain entry, but there was no answer. He had his cellular telephone with him but the battery had expired earlier in the evening. His original plan was to sleep in Patrick's home that night and go out for breakfast with him the next morning. His car had never moved from where he had originally parked it. It has an automatic transmission, and in order to set the vehicle in motion one would have to step on the brake, push a button, and pull back a lever.
[13] When cross-examined, the defendant acknowledged he was drunk when found in his car. He had been asleep for 3 hours when officer Urie came along. He did not continue knocking on Patrick's door because he did not want to wake up his neighbours. His parents lived in Burlington but he was unable to call a taxi to take him there. He did not have a car charger for his phone. He did not want to walk to a main street in Burlington because it was 3am and cold outside. He slept in the front seat of his car because there were cabin chairs in the front and they were comfortable. His seat was slightly reclined.
[14] Devin Morao gave evidence and said that he was 28 years old and lived in Waterdown. He has no criminal record. On Saturday, February 7, his girlfriend dropped him off at Pat Moskwa's home. Ryan Toyota was also present. The three of them had some drinks there and then took a taxi to the Italia restaurant in Burlington where they drank some more. He testified that the end result was that the three of them were over the legal alcohol limit if they were to operate a motor vehicle. Pat Moskwa was not feeling well and left the restaurant before the other two did. After he left, Mr. Morao and Mr. Toyota walked to a nearby restaurant and had some food, but no alcohol. Then they were taken by taxi to Mr. Moskwa's residence, where the defendant was dropped off, and Mr. Morao kept going to his home in Waterdown.
[15] He supported Mr. Toyota's evidence that he had planned to stay the night at the Moskwa residence, and had no intention of driving home that night. Mr. Toyota has spent nights at Mr. Morao's home, and he at the Toyota and Moskwa homes, after he had been drinking.
[16] When cross-examined, Mr. Morao gave evidence that the defendant's intention to spend the night at the Moskwa home was discussed by all three at the beginning of the night. He also said that he found out that Mr. Toyota had been charged with the offences before the court only a few days before he testified in this trial.
[17] Patrick Moskwa was the last defence witness. He has no criminal record. He said that he was sure that the defendant was going to sleep over at his place, but he was not sure about Mr. Morao. He had stayed over at the defendant's residence many times, and Mr. Toyota at his. Mr. Moskwa said he had too many drinks at the Italia restaurant, where the price of alcoholic drinks had been marked down that night. He felt noxious and highly intoxicated, and took a taxi home. The other two were to meet him back at his place.
[18] When he got home, he fell asleep on his couch and woke up there the next morning. He tried to call the defendant but could not get through to him. He assumed he had gone home. Mr. Moskwa testified that Ryan never told him that he had been charged until 3 days before Mr. Moskwa gave his evidence.
[19] In cross-examination, Mr. Moskwa agreed that all three were drunk that night. He said he was sure the other two were both going to sleep at his place that night.
The Law
[20] The defendant testified and I am applying the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742.
[21] The presumption of care or control is set out in section 258(1)(a) of the Criminal Code:
258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),
(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;
[22] The onus on the defendant to rebut this presumption is on a balance of probabilities. See R. v. Whyte, [1988] S.C.J. No. 63.
[23] The leading case on care or control is R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157. The essential elements of this case were set out by Durno J. in R. v. Agyemang, [2014] O.J. No. 5047 (S.C.J.):
40 The Crown has three routes for establishing care or control: evidence of driving, applying the rebuttable presumption in s. 258(1)(a) where the accused was in the seat normally occupied by the driver, or through evidence of de facto or actual control which involves the risk of danger as an essential element. R. v. Szymanski, [2009] O.J. No. 3623 (S.C.J.) at para. 29. Here, the Crown had to rely on de facto care or control because the only time the toxicologist gave for the appellant's blood alcohol being over the legal limit was from the time the officer arrived at the scene to the time of the appellant's arrest.
The Risk of Danger Element of Care or Control
41 Whether a finding of risk of danger is required was settled in Ontario in R. v. Wren (2000), 144 C.C.C. (3d) 374 (Ont. C.A.), leave to appeal refused, [2000] S.C.C.A. No. 235, where Feldman J.A. held that the act or conduct in relation to the motor vehicle must be such that there is created a risk of danger, whether from putting the vehicle in motion or in some other way. The "some other way" encompassed situations as occurred in the Court's earlier decision in R. v. Vansickle, [1988] O.J. No. 2935, aff'd [1990] O.J. No. 3235 where an intoxicated person seated in the driver's seat of an inoperable car in the middle of the road in a snow storm was found to be in care or control.
42 Feldman J.A. addressed an earlier judgement of the Court in R. v. Lackovic (1988), 45 C.C.C. (3d) 80 (Ont. C.A.), one of the two judgments the trial judge relied upon in the directed verdict ruling here. In Lackovic, the accused struck a post and his vehicle wound up on top of a snowbank. When the police arrived twelve minutes after the accident, he was standing outside of the vehicle and admitted that he was the driver. Justice Feldman found it was implicit in Lackovic that the court considered the vehicle was capable of becoming a danger in some way. By retaining custody of the vehicle the appellant maintained his ability, while impaired, to affect such potential danger. Wren, at para. 19.
43 Feldman J.A. held that actual or de facto care or control involves:
Performance of some act or series of acts which involve some use of the car or its fittings or equipment, or some course of conduct associated with the vehicle which would involve the risk of putting the vehicle in motion or in some other way to become dangerous, which is what the section is designed to prevent. at par. 28.
44 The Supreme Court of Canada agreed with Wren in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157, released eight months before this trial, finding that the risk of danger is an essential element of care or control. Fish J., for the majority, concluded care or control signified:
an intentional course of conduct associated with a motor vehicle;
by a person whose ability to drive or whose blood alcohol level exceeds the legal limit;
in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property.
45 Fish J. provided the following assistance in further defining the offence:
i) Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger. In practice, to avoid conviction, the accused will therefore 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. para. 13;
ii) The concept of danger provides a unifying thread which promotes certainty in the law while balancing the rights of an accused with the objectives of the legislation, citing R. v. Mallery (2008), 2008 NBCA 18, 327 N.B.R. (2d) 130 (C.A.);
iii) The law ... is not deprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to drive is impaired in a motor vehicle. In fact, Toews stands for the proposition that when a person uses a vehicle in a way that involves no risk of putting it in motion so that it could become dangerous, the courts should find that the actus reus is not present, citing R. v. Penno, [1990] 2 S.C.R. 865;
iv) Parliament's objective in enacting s. 253 of the Code was to prevent a risk of danger to public safety. Accordingly, conduct that presents no risk falls outside the intended reach of the offence. Boudreault, para. 32;
v) The risk of danger must be realistic, not just theoretically possible. It need not be probable or even serious or substantial, para. 34. The realistic risk is a low threshold and absent 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, para. 48. The accused may escape conviction by showing the vehicle was inoperable, or on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger, Boudreault, para. 49;
vi) As a realistic risk the vehicle will be set in motion constitutes a realistic risk of danger, an intention to set the vehicle in motion suffices in itself to create a risk of danger, para. 41;
vii) Absent a contemporaneous intention to drive, a realistic danger may arise in at least three ways: first, an inebriated person who does not intend to drive may later change his or her mind; 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, para. 42;
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.
77 No doubt, pre-Wren and Boudreault judgments held that a person whose ability to operate a motor vehicle was impaired remained in care if he or she had not relinquished custody of the vehicle. Those cases must be viewed with caution in light of Wren and, most importantly, the Supreme Court's finding in Boudreault that the risk of danger must be realistic, not theoretically possible.
Analysis
Credibility
[24] The witnesses for the Crown were credible and trustworthy, and so were the defence witnesses. Defence witness Patrick Moskwa said in his evidence in chief that he was not sure that Devin Morao was going to sleep over at Mr. Moskwa's place that night, but in cross-examination said he was sure both were going to.
[25] Mr. Moskwa testified that he only found out 3 days before he gave evidence that the defendant had even been charged with the charges which are before this court. The uncertainty in his evidence may be due to his trying to recall something from almost a year before. It is difficult to conclude that he lacks credibility because of this uncertainty.
The Presumption of Care or Control
[26] In the opinion of this court, the cumulative defence evidence has satisfied me on a balance of probabilities that Mr. Toyota had no intention of driving his vehicle home that night. He was sleeping in his car, with the engine on to get heat, only because his homeowner friend had passed out and had locked Mr. Toyota out. The clear plan was for the defendant to spend the night inside that residence so he would not have to drive home. The presumption of care or control has been rebutted.
The Risk Inquiry
[27] Officer Urie gave evidence that the car was parked properly, and there is no evidence that it would be a danger to anyone by virtue of where it was located.
[28] It is necessary to consider whether a realistic risk of danger still existed because Mr. Toyota, in his inebriated state, might have changed his mind and driven somewhere, or might have unintentionally set the vehicle in motion.
[29] As Durno J. stated 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.
77 No doubt, pre-Wren and Boudreault judgments held that a person whose ability to operate a motor vehicle was impaired remained in care if he or she had not relinquished custody of the vehicle. Those cases must be viewed with caution in light of Wren and, most importantly, the Supreme Court's finding in Boudreault that the risk of danger must be realistic, not theoretically possible.
[30] Officer Urie testified that when the defendant first got out of his car he was extremely unsteady on his feet and his speech was slurred and indecipherable. As he got more awake he became steadier on his feet. At the station, he had no speech or physical coordination difficulties. However, officer Douglas said Mr. Toyota's speech was slurred when she was with him and he walked with slow, wide steps.
[31] In my opinion, the defendant was walking and speaking normally when seen on the breath room video. There is a difference of opinion between officers Urie and Douglas as to the nature of the defendant's speech and physical coordination at the police station. Therefore, I am relying on what I have observed myself on the video.
[32] Although the defendant's blood-alcohol readings were 160 and 160 milligrams of alcohol in 100 millilitres of blood, it is my view that once awake, it is very unlikely that he would have changed his mind and driven home. I also find it unlikely that he would have unintentionally set his vehicle in motion in his intoxicated condition. To set the car in motion he would have had to put his foot on the brake, push a button, and pull the gear lever back.
[33] I find as a fact that the Crown has not proven beyond a reasonable doubt that the defendant presented a realistic risk of danger in the particular circumstances which are before me. Therefore, I find that he was not in care or control of his vehicle at the time in question.
Conclusion
[34] Accordingly, Mr. Toyota is found not guilty of the two charges before this court.
March 1, 2016
Signed: "Justice Alan D. Cooper"