Ontario Court of Justice

Date: May 18, 2016

Between:

Her Majesty the Queen

— AND —

Robert Ablack

Before: Justice F. Javed

Heard on: January 26, 2016

Reasons for Judgment released on: May 18, 2016

Counsel:

R. Connolly — counsel for the Crown

R. Aitken — counsel for the defendant Robert Ablack

F. Javed J.:

A. Introduction

[1] Robert Ablack is charged with one count of having the care and control of a motor vehicle while his blood alcohol content exceeded 80 mgs. of alcohol in 100 mls of blood contrary to s.253(1)(b) of the Criminal Code.

[2] Mr. Ablack was driving his motor vehicle when it ran out of gas. He left his vehicle to call a tow truck to bring him gas. As he waited in the driver's seat, he was investigated by the police and subsequently provided two samples of his breath in excess of the legal limit.

[3] At trial, the Crown called three witnesses: the arresting officer, Cst. Jeffrey Bastien, the parading officer, Sgt. James Griepsma and the qualified breath technician, Cst. Alan Ouelette.

[4] The defence called no evidence on either the voir dire or trial.

[5] The parties agreed that the evidence adduced on the voir dire could be blended with the trial.

[6] There is no dispute about the identification of Mr. Ablack and the respective onuses.

B. The Positions of the Parties

[7] The parties agreed to exchange written submissions. Mr. Aitken on behalf of Mr. Ablack submits that the Crown has failed to prove care and control beyond a reasonable doubt. Specifically, his position is as follows:

(i) The police violated Mr. Ablack's ss. 7, 8, 9 and 10(b) rights under the Charter of Rights and Freedoms ("Charter") and as a remedy for the alleged breaches, the breath readings should be excluded under s.24(2) and/or the Crown should not be permitted to rely on the presumption of identity in s.258(1)(c) of the Criminal Code pursuant to s.24(1) of the Charter. Alternatively,

(ii) the Crown cannot prove care and control through a theory of operation because Mr. Ablack was not in actual (or de facto) care and control at the material time; or

(iii) the Crown cannot rely on the presumption in s.258(1)(a) of the Code because:

(a) Mr. Ablack didn't occupy his vehicle for the purpose of setting it in motion at the time he was investigated by the police;

(b) the circumstances created no realistic risk of danger; and

(c) the presumption in s.258(1) infringes s.7 and/or s.11(d) of the Charter and is not saved by section 1 of the Charter. As such, an element of risk of danger should be read into the presumption.

[8] Mr. Connolly on behalf of the Crown responds as follows:

(i) Mr. Ablack has not met his onus to prove that his rights under ss. 7, 8, 9, 10(b) and/or 11(d) of the Charter were breached. Even so, a remedy shouldn't be granted under s.24(2) or 24(1) of the Charter as Mr. Ablack has failed to establish a legal or evidentiary basis for any remedy;

(ii) Mr. Ablack was in de facto care and control of the motor vehicle at the time he was arrested which is sufficient to ground a conviction and not consider the alternative arguments.

Alternatively, if de facto care and control doesn't apply or hasn't been proven:

(iii) the presumption of care and control contained in s. 258(1)(a) is constitutional and has never been overruled by any court of binding authority. Moreover, the issue of realistic risk of danger only arises when and if the presumption has been rebutted and in this case, the presumption has not been rebutted on a balance of probabilities.

[9] For reasons that I will expand on below, I find that on this record, there were no Charter breaches. If I am wrong about this issue, I would not exclude any evidence under s.24(2). In my view, there is no basis for a s.24(1) remedy. Further, the Crown has proven de facto care and control beyond a reasonable doubt. Despite this, I am prepared to consider the alternative argument involving the presumption and conclude that it applies in this case and hasn't been rebutted by Mr. Ablack, which therefore means that the Crown wouldn't have to prove a realistic risk of danger (even though it's implicit in de facto care and control which has been proven in this case). Given my obiter comments, I need not fully consider the constitutional challenge to the presumption but suffice to say, I agree with the Crown's position that it remains binding on this court.

C. The Evidence

(i) The Roadside Investigation

[10] On February 11, 2015, at 2:44 p.m., Cst. Bastien was dispatched to check on the well being of a male walking on the shoulder of the road on Lakeridge Rd., north of Rossland Rd. in the Town of Whitby.

[11] Cst. Bastien is a police officer with 14 years of experience and among other qualifications, is a qualified breath technician and qualified Drug Recognition Expert.

[12] Cst. Bastien was driving in his marked cruiser and had previously passed a male who was "under dressed" for the weather. He had been walking southbound towards the intersection of Lakeridge and Rossland Rd. on the west shoulder of Lakeridge Rd. This information was consistent with the dispatch. This person was later identified as Mr. Ablack.

[13] When Cst. Bastien arrived on scene, he located a black Volkswagen Jetta parked in the same place where he had passed it, on the west shoulder of Lakeridge Rd., facing south. He parked his vehicle behind Mr. Ablack's. He walked up to the driver's side door and knocked on the window to get Mr. Ablack's attention. He found Mr. Ablack, alone, seated in the driver's seat behind the steering wheel. The engine was not running and he didn't think the heat, lights or radio were on. He didn't make any observations of the keys. In fact, it's unclear when Mr. Ablack entered the car. Mr. Ablack rolled down the window. He testified that he immediately smelled the odour of alcohol coming from the interior of the vehicle.

[14] As he spoke to him, Cst. Bastien said he could detect a strong odour of alcohol on his breath. His eyes were bloodshot and glassy. Cst. Bastien advised him that he was there to check on his well being as there had been a call expressing concern that he was outside walking underdressed in the cold weather. He asked him if he was all right.

[15] When asked what he was doing walking around outside, he responded that he had just run out of gas, called for a tow truck to bring him some and he was walking towards the intersection to find out what his location was, so he could convey that information to the tow truck driver that was bringing the gas.

[16] Cst. Bastien asked him if he had consumed any alcohol that day, and Mr. Ablack replied "yes, I have. My wife and I are having some problems". He explained that he was at the Golf Dome in Scarborough, near Markham and the 401. He was "just out, not driving any where in particular, as he and his wife were not on the best of terms". When asked when he had his last drink and whether it was more than 20 minutes ago, he responded, "it was well over 20 minutes ago". Cst. Bastien told him that he could smell it on his breath and that he 'had a few', and Mr. Ablack responded, "probably too much".

[17] The parties agree that these roadside utterances can't be used by me to assess the issue of care and control but only to determine if Cst. Bastien had reasonable and probable grounds to make a breath demand and/or arrest. I have used these utterances accordingly.

(ii) The Arrest

[18] At 2:52 pm, Cst. Bastien formed the suspicion that Mr. Ablack had alcohol in his body, that he was in care and control of the motor vehicle and that he had driven the vehicle to that location and had just run out of gas. Accordingly, he made a demand to Mr. Ablack that he provide a sample of his breath into an approved screening device (ASD).

[19] Mr. Ablack completed the ASD test and registered a fail. Cst. Bastien testified that because the ASD is calibrated to register to fail at 100 mgs. of alcohol in 100 ml. of blood, he believed that Mr. Ablack was over the legal limit of 80 mgs. of alcohol in 100 mls. of blood. Accordingly, he formed grounds to arrest him for care and control of a motor vehicle.

[20] At 2:53 p.m., Cst. Bastien advised Mr. Ablack that he was under arrest for this offence. Mr. Ablack understood.

[21] At 2:55 p.m., Cst. Bastien cautioned Mr. Ablack.

[22] At 2:57 p.m., Cst. Bastien advised him of his s. 10(b) rights to counsel using his standard police issued card. When asked "Do you wish to speak to a lawyer now?", Mr. Ablack responded: "Yes, duty counsel." He did not ask any questions or say anything indicating he didn't understand what was being asked of him.

[23] At 2:59 p.m., Cst. Bastien read the approved instrument breath demand, which Mr. Ablack understood.

[24] Cst. Bastien made arrangements with another officer to attend to Mr. Ablack's motor vehicle so he could transport him to the police detachment.

[25] In cross-examination, he testified that when he approached the vehicle, he noticed that the engine was not running. He also made no observation as to the immediate whereabouts of the keys. After Mr. Ablack was arrested, the keys were found on his person and secured to allow the tow truck driver to move the vehicle.

[26] At 3:18 pm, Cst. Bastien arrived at 18 Division taking the shortest route.

(iii) Arrival at the Station

[27] At 3:24 pm, Mr. Ablack was paraded before Sgt. Griepsma, the officer in charge of the station. This interaction was videotaped which was entered as exhibit 1. Cst. Bastien provided his grounds for the arrest and the breath demand to Cst. Ouellette, the qualified technician who would be performing the breath tests.

[28] During the course of being paraded, Mr. Ablack confirmed that he had been advised by Cst. Bastien, that he can speak to a lawyer if he wished. Cst. Bastien told him that he would make a phone call for him so he could speak to Duty Counsel and he responded "okay". Sgt. Griepsma asked Mr. Ablack if he understood his rights to counsel and that he could call a lawyer if he wished, and he responded "yes". He then told him "we'll make that call for you before we get to that, call a lawyer for you". Cst. Ouelette added "so what I am going to do is to make a phone call for you so you can talk to duty counsel". Mr. Ablack responded "okay". Mr. Aitken argues that this amounted to "funnelling" Mr. Ablack to duty counsel.

[29] In cross-examination, Sgt. Griepsma was asked why he didn't explore with Mr. Ablack whether he would like to speak to his own lawyer or a lawyer out of the phone book or to duty counsel. He replied that he was confident that he had made a decision to speak to Duty Counsel and that Duty Counsel was his counsel of choice. He never objected to speaking to Duty Counsel or said anything to suggest that he wished to call anyone else, so he was quite confident that Mr. Ablack understood his right to call a lawyer of his choosing and that he had decided upon Duty Counsel.

(iv) Mr. Ablack's utterances to the Breath Technician

[30] At 3:46 p.m., Mr. Ablack was turned over to the qualified breath technician for purposes of his breath samples. This exchanged was also videotaped and entered as exhibit 3. Cst. Ouellette confirmed that he [Mr. Ablack] had his legal rights explained to him that evening. He indicated that he understood his rights and when asked if it had been explained to him that you have the right to speak to a lawyer if you so wish to do so, he responded, "ah yes a lawyer was on the phone". He confirmed that he had spoken to Duty Counsel and when asked if he was satisfied with his conversation with the lawyer, he responded, "yeah, I believe so". Cst. Ouellete responded "okay perfect".

[31] After speaking with Duty Counsel and in the course of providing his breath samples in the breath room, Mr. Ablack made the following utterances to Cst. Ouellette:

• He said yes when asked if he knew why he was arrested, stating "it was quite obvious why he arrested me";

• He explained that someone had called in saying that they had seen him walking around and that he had been looking for the proper location to give to the tow truck he had called to bring him gas for his car. He had pulled over to the side of the road as he had run out of gas when Cst. Bastien had come upon him;

• He admitted that he after he left the Golf Dome, he had been driving around thinking as "he was having problems with his better half";

• He admitted that he was alone in the vehicle and that he owned the vehicle;

• He admitted that he started off driving from the Markham Golf Dome and that he had gone there to work out and straighten himself out;

• He admitted that he had been by himself, drinking vodka in the parking lot of the Golf Dome where he had had "one good one"; and

• He said he "had never been in this situation before and if I was more intelligent I wouldn't be here".

[32] At 3:52 p.m., Mr. Ablack registered his first breath sample of 149 mgs of alcohol in 100 mls of blood. At 4:16 pm, he registered his second breath sample of 133 mgs of alcohol in 100 mls of blood.

D. Analysis

[33] The Crown can prove the offence of care and control by three means. The first is by proof of actual driving. The second is to rely on the rebuttable presumption in section 258(1)(a) of the Criminal Code by proving that Mr. Ablack was in the driver's seat of his vehicle. The third is to prove actual or de facto care and control of the vehicle by establishing that there existed a realistic risk of danger in the circumstances. See R. v. Smits, 2012 ONCA 524 at paras. 48-51; R. v. Agyemang, 2014 ONSC 4232.

[34] In this case, the Crown has not established actual driving, thus the only routes to conviction are through the second and third means. Mr. Connolly relies on proof of de facto care and control and alternatively, the presumption in s.258(1)(a) of the Code. The parties agree that if de facto care and control has been proven, I need not consider the application (and constitutionality) of the presumption. However, if it hasn't, I must go further and consider the third means of proof involving the presumption. Accordingly, I will begin my analysis by determining whether there were any constitutional violations that warrant exclusion of evidence. I will then move to the issue of de facto care and control with the admissible evidence that I can consider. Finally, I will consider, if necessary, the operation of the presumption.

(1) Was there a breach of Mr. Ablack's Charter rights?

(a) Sections 8/9

[35] Mr. Aitken submits that the police violated Mr. Ablack's rights under ss. 8/9 of the Charter by failing to obtain the last time of operation of care and control prior to the arrest/Intoxilyzer demand. As a remedy for these alleged breaches, he seeks exclusion of the breath samples and Mr. Ablack's statements to Cst. Ouelette.

[36] Section 253 of the Criminal Code sets out the offences of driving while impaired by alcohol; having the care or control of a vehicle while impaired by alcohol; driving with more than 80 mgs of alcohol in 100 mls of blood and having care and control of a vehicle with over 80 mgs of alcohol in 100 mls of blood. Specifically, it provides:

253. Everyone commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment, or has the care and control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. R.S.C. 1985, c. 27 (1st Supp.), s. 36; c. 32 (4th Supp.), s. 59.

[37] Further, a demand for a breath sample is set out in s. 254(3) of the Criminal Code, which provides:

254(3) Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding three hours has committed, as a result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable ... such samples of the person's breath ... (my emphasis)

[38] Mr. Aitken submits that Cst. Bastien didn't develop reasonable and probable grounds about the last time of operation or care and control. In support of this position, Mr. Aitken points to the lack of information known to Cst. Bastien from the dispatch about the last time of driving or how long the vehicle had been stopped at the roadway waiting for gas. He did not ask him when he ran out of gas or take steps to determine if the vehicle was still warm where an inference of recent driving could be made. With respect, I disagree.

[39] The controlling principles were nicely distilled by Brown J. in R. v. McMeekin, [2014] O.J. No. 1062 (Prov. Ct.) at paragraph 63:

63 The existence of reasonable and probable grounds imports both an objective and a subjective component. Section 254(3) of the Criminal Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief. See R. v. Bernshaw at para. 48, and R. v. Rhyason, 2007 SCC 39 at para. 12.

64 The "reasonable grounds to believe" formulation in s. 254(3) applies to the impairment of that person's ability to drive. Further, the test has both subjective and objective components: R. v. Censoni (2001), 22 M.V.R. (4th) 178 (Ont. S.C.) at para. 32. As said by Provincial Court Judge MacDonnell (as he then was) in the oft-quoted case of R. v. Cooper (1993), 46 M.V.R. (2d) 231 at paras. 12 to 14:

This provision [s. 254(3)] bestows a significant power upon a peace office to interfere with the liberty of the citizen. It requires, however, as preconditions to [the lawful exercise of] the grant of power, that the officer form a particular belief, and that the belief be based on reasonable and probable grounds. ...

[Applying the approach to arrest powers endorsed by the Supreme Court in R. v. Storrey (1990), 53 C.C.C. (3d) 316], the question to be addressed is whether, on the basis of the record before the court, a reasonable person placed in the position of [the arresting officer] could conclude that there were reasonable and probable grounds to believe that the accused's ability to operate a motor vehicle was impaired by alcohol.

65 As said by Hill J. in R. v. Censoni, supra at para. 43:

Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom.

66 In R. v. Bush, 2010 ONCA 554 at paras. 55-56 as follows:

55 In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection": R. v. Jacques, [1996] 3 S.C.R. 312 at para. 23; also Censoni at para. 43. However, it is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable: R. v. McClelland, 1995 ABCA 199.

56 An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed; Censoni at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; R. v. Wang, 2010 ONCA 435 at para. 21.

[40] In addition to the above principles, the law is clear that the last time of driving can be inferred which must be a reasonable inference grounded in the evidence. There is no positive duty on the police to determine the last time of driving. All that must exist are reasonable and probable grounds that an offence is being committed or has been committed within the preceding three hours and a breath demand is made within two hours of Mr. Ablack being in care and control of the vehicle. In this case, Cst. Bastien found Mr. Ablack in the driver's seat of his vehicle, not some place outside of it. The issue is whether he formed reasonable and probable grounds. The secondary issue is whether his failure to ask him of his last time of driving was reasonable in that the inference that he was operating his vehicle between 11:53 a.m. and the time of arrest, being 2:53 p.m. was a reasonable one.

[41] In my view, Cst. Bastien had formed reasonable and probable grounds to believe that Mr. Ablack was committing the offence of impaired care and control as he found him in the driver's seat and alternatively, his belief that the offence was committed in the preceding three hours was also reasonable. I arrive at this conclusion for four reasons. First, Cst. Bastien is a qualified breath technician and brings this experience to the investigation. I accept that he smelled a strong odour of alcohol on his breath as they spoke and noted his eyes as being bloodshot and glassy. This would provide him with ample subjective grounds to believe he was impaired and also ground a basis to make an ASD demand. He didn't rush to an arrest for impaired driving. Second, he was permitted to rely on Mr. Ablack's utterances at the roadside of his admission of alcohol which was "well over 20 minutes ago" and followed up with that he had "probably too much". Third, Mr. Ablack failed the ASD, which provided him with objective grounds for his arrest for the offence of care and control; and fourth, I found Cst. Bastien's evidence credible when he testified that he had formed reasonable and probable grounds in making the breath demand. His viva voce testimony is supported by the rest of the evidence when the "totality of the circumstances" standard is applied. He was not seriously challenged on this point.

[42] Mr. Aitken relies on some cases as set out in paragraph 54 of his written submissions. I have reviewed them and in my view, they do not advance his position. My failure to refer to all of them in these reasons is not a reflection that I have not considered them because I have. In R. v. Subramaniam, [2004] O.J. No. 225 (SCJ), Justice Molloy sitting as a summary conviction appeal court considered an appeal where the trial judge found a breach of s.8 of the Charter because the officer did not determine the exact time of driving. At paragraph 28 she wrote:

28 In my opinion, the trial judge erred in law in finding a breach of s. 8 of the Charter in these circumstances for two reasons. First, within one minute prior to making the breath demand, the officer had reasonable and probable grounds to believe that the accused was committing the offence of being in care and control of a motor vehicle while impaired by alcohol. That is sufficient to justify the breath demand, even where the actual arrest was for impaired driving and not care and control of a motor vehicle. Second, even if it was necessary for the Crown to prove a subjective belief on the part of the arresting officer that then accused had been driving a car within three hours of the demand being made, there was ample evidence before the trial judge from which such a conclusion could be drawn.

[43] The circumstances of this case are similar. I find that Cst. Bastien did have reasonable and probable grounds for the breath demand. Accordingly, there was no breach of s.8 of the Charter, which invariably means that Mr. Ablack was not arbitrarily detained under s.9 of the Charter either.

(b) Section 10(b)

[44] Mr. Aitken submits that the police "funneled" Mr. Ablack to duty counsel thereby breaching his rights under s.10(b) of the Charter. Specifically, the police failed in their implementational duties by not allowing him to choose between duty counsel and a lawyer of his choice. Mr. Connolly disagrees. It's important to observe that unlike the s.8 issue, Mr. Ablack bears the onus of proving this breach on a balance of probabilities. He did not testify on the issue. I take nothing from this, as he's not required to do so but only to observe that the evidentiary basis for the allegation must be inferred from the evidence adduced on the blended application and the exhibits.

[45] The law is clear that the police must give rights to counsel to a suspect before taking breath samples and must give the individual (a) sufficient information concerning the right (the informational component) and (b) a reasonable opportunity to exercise those rights (the implementational component). R. v. Brydges (1990), 53 C.C.C. (3d) 330 (SCC). In R. v. Baig (1987), 37 C.C.C. (3d) 181 (SCC) at 183, the Supreme Court of Canada stated that when police properly inform a detainee about his s.10(b) rights and the evidence does not suggest that the detainee did not understand these rights, compliance is presumed unless the detainee proves on a balance of probabilities denial of a reasonable opportunity to ask for or consult with counsel. Police have no correlative duties unless the detainee indicates a desire to exercise right to counsel. I find that the informational component in this case was satisfied. At the roadside, Cst. Bastien advised Mr. Ablack of his rights to counsel from his police notebook and Mr. Ablack understood what this meant. When asked if he wanted to speak to a lawyer now he said "Yes, duty counsel". There can be no real issue with the informational component.

[46] The right to counsel imposes a duty on Mr. Ablack to exercise the right with reasonable diligence. Section 10(b) does not guarantee an accused the right to counsel of choice at all times. (R. v. Burlingham (1995), 97 C.C.C. (3d) 385 (SCC) at para. 16). Nevertheless, an accused has the right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time, that the detainee should be expected to exercise the right to counsel by calling another lawyer, including duty counsel. R. v. Ross (1989), 46 CCC (3d) 129 (SCC) at 135; R. v. Richfield, [2003] O.J. No. 3230 (Ont. C.A.).

[47] Cst. Bastien testified that Mr. Ablack requested the services of duty counsel and made no specific request to speak to counsel of choice. Mr. Aitken urges me to reject the evidence of Cst. Bastien on this point, as there was a conflict in his notes, namely, that the request for duty counsel was only noted in his typed notes and not in his written field notes. I disagree. The fact that an event is not recorded in a police officer's notebook does not lead to the conclusion that the event did not take place: R. v. Antoniak, [2007] O.J. No. 4816 (S.C.J.) at paras. 21-25; R. v. Golubenstev (2007), 2007 ONCJ 568, 55 C.R. (6th) 170 (Ont. Prov. Ct.) at para. 30. Here, I found Cst. Bastien credible on this point and accept his viva voce evidence. Moreover, it stands uncontradicted. This was not his first drinking and driving investigation and in many respects, is corroborated by the evidence of Sgt. Griepsma and Cst. Ouelette, both of which testified to the same effect. In particular, Sgt. Griepsma testified that that he confirmed with Mr. Ablack that he could call a lawyer and he said "yes". When asked why he didn't probe with him that he could call counsel of choice, he said he was satisfied that duty counsel was his counsel of choice. This also stands uncontradicted. Finally, Cst. Ouelette said he asked him if he was satisfied with the advice and he responded "I believe so". Mr. Ablack never said anything to the contrary. I accept Cst. Bastien's evidence that Mr. Ablack's responses were not out of the ordinary, which explains the failure to make a notation in his field notes.

[48] Moreover, I do not find that Mr. Ablack was confused about his options when he arrived at the detachment. It's important to observe that there was no confusion at the roadside of Mr. Ablack's desired counsel of choice, duty counsel. Had he been equivocal in his responses about who to consult, it would have been incumbent on the police to assist him to contact a lawyer of his choice, but that's not what happened here. At the roadside, there was no uncertainty, which continued to the booking procedure, where also, there was no confusion. I have reviewed the booking video many times and I do not find that Mr. Ablack's response "ah, yes I guess" meant that he was confused. It is not a reasonable inference. This is borne out by his responses to Cst. Oulette afterwards that he was satisfied with the advice. There's also no confusion that he misunderstood the role of duty counsel. He said "ah yes a lawyer was on the phone". I find the police evidence on this point is credible. They reasonably believed that Mr. Ablack wanted duty counsel and they assisted him with this decision. There was nothing in the exchange that suggested otherwise. If there was any confusion, it was not intimated to the police. Nor is there any evidence of such on this record.

[49] Mr. Aitken argues that he was "funneled" to duty counsel and not given the option of a private lawyer, including the availability of his office, which would have been open at the time. In support, he relies on some trial judgments that hold that the police are obligated to clarify with a defendant that they could search for a private lawyer. See R. v. Sterling, [2001] O.J. No. 3342 (Ont. Prov. Ct.); R. v. Bulgin, [1997] O.J. No. 6514 (Ont. Prov. Ct.). With respect, to the extent that these cases stand for this proposition, they have been overtaken by binding appellate authority which holds otherwise. In R. v. Zoghaib [2005] O.J. No. 5947 (SCJ) aff'd [2006] O.J. NO. 1023 (C.A.) the Court of Appeal said the following in a brief endorsement:

We are in substantial agreement with the analysis of the Summary Conviction Appeal Court. The appellant was fully advised of her right to counsel at the roadside and understood those rights. On the finding of fact made by the trial judge, any subsequent misapprehension by the appellant of her right to contact her own lawyer as opposed to duty counsel was a product of her own thought processes, none of which were conveyed to or known by the officer. The Summary Conviction Appeal Court correctly held that as a matter of law the appellant's unexpressed desire to speak to her own lawyer could not result in a breach of s. 10(b) of the Charter.

Also see R. v. Papanastasiou, [2014] O.J. No. 3447 (Ont. Prov. Ct.). I do not find that Mr. Ablack has met his onus to prove a breach of his s.10(b) rights.

(c) Section 24(2)

[50] If I am wrong in my assessment of the Charter issues I would not exclude the evidence under s.24(2). I'm mindful of the fact that this exercise is somewhat artificial as I have not found a Charter breach(es) but for sake of completeness, I will endeavor to do so.

[51] The determination of whether evidence ought to be excluded pursuant to s. 24(2) of the Charter requires a consideration of the three factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 ("Grant"). In R. v. Rehill, 2015 ONSC 6025, [2015] O.J. No. 5068 (SCJ) Campbell J. offered a persuasive analysis of how to approach this issue in the context of breath samples. In my view, all three factors in this case point to inclusion not exclusion of the evidence. It must be kept in mind that the onus in this inquiry is on Mr. Ablack on a balance of probabilities.

(i) Seriousness of the Charter Infringing State Conduct:

[52] In this line of inquiry, the court must consider the nature of the police conduct and locate it on a continuum that runs between minor and technical breaches and those that result from a blatant and flagrant disregard for the Charter. The more severe the violation, the greater the need for the court to disassociate itself from the police conduct in order to maintain confidence in the administration of justice.

[53] Mr. Aitken submits that the combination of the Charter breaches was serious police conduct. As already noted, I did not agree with this position. Here, the police treated Mr. Ablack with respect and dignity throughout their investigation. Cst. Bastien was mindful of the limits of his powers and didn't rush to an arrest. He relied on a failed ASD, then assisted him with implementing his right to counsel. There was no bad faith on his part nor any systemic failings on part of the police. The obligations that Mr. Aitken points to such as going further to assist a detainee don't arise on this record. I do not find that Mr. Ablack has met his onus that any Charter breaches (if any) were serious in the circumstances.

(ii) The Impact of the Breach

[54] Under this line of inquiry, the court must determine the extent to which the breach undermined the interests protected by the right that was infringed. There is a spectrum of conduct from fleeting or technical to profoundly intrusive. Much like Campbell J. in Rehill, supra at paragraphs 35-37, the taking of breath samples has been held to be minimally intrusive upon constitutional rights. In the circumstances of this case, I agree. I find that any breaches (if any) had a low impact on Mr. Ablack's Charter protected interests.

(iii) Society's Interest in a Trial on the Merits

[55] This line of inquiry requires the court to determine whether the truth-seeking function of the trial process would be better served by the admission or the exclusion of the evidence. In the circumstances of this case, this branch clearly favors admission (if there's a breach). The breath sample results are reliable and conclusive evidence of the offences and indispensable to the Crown's case. (See Rehill, supra at paragraphs 38-40).

(iv) Balancing

[56] On balance, I would not be persuaded that the evidence should be excluded in the circumstances of this case (if there was a breach). All three lines of inquiry in the Grant analysis point to inclusion. As noted above, the police acted diligently and assisted Mr. Ablack in exercising his right to counsel.

[57] For the foregoing reasons, the breath readings and utterances to Cst. Ouelette are admissible at trial.

(2) Has the Crown proven de facto care and control?

[58] In this case, Mr. Connolly relies primarily on proof of de facto care or control to ground a conviction and argues only if necessary, that the presumption also applies. I propose to consider this issue first, which may render the alternative issue moot. Mr. Aitken submits that de facto care and control hasn't been proven because of the following: (a) the vehicle was parked safely off the roadway, (b) there's no evidence that the "fittings" of the vehicle were impacted such as the steering wheel, radio or lights, (c) the vehicle was out of gas and thus immoveable and (d) there's no good evidence of where the keys were. As such, there was no realistic risk of danger. Mr. Connolly disagrees.

[59] The jurisprudence is clear that the risk of danger must be realistic and not just theoretically possible. However, it need not be probable, significant or even substantial: R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 at paras. 34-35; R. v. Smits, supra at para. 60. In Smits, supra, the court indicated that danger can come in many forms. In particular, three risks were identified where an intoxicated person uses a motor vehicle for a non-driving purpose. These risks were adopted by the Supreme Court in Boudreault, infra.

[60] The Supreme Court of Canada in Boudreault, supra outlined examples of how a realistic risk of danger may arise:

42 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.

[61] The determination of a realistic risk of danger is a finding of fact and the standard of proof that must be met by the Crown is to be assessed on a "low threshold". See R. v. Balogun-Jubril, [2014] O.J. No. 4268 (S.C.J.) at para. 50. In Smits, supra, the Ontario Court of Appeal cited, with approval, the analysis of Durno J. in R. v. Szymanski, [2009] OJ No 3623 (SCJ) as instructive on the analysis of risk of danger. At paragraph 63, the Court wrote: "In Szymanski, at para. 93, Durno J. provides an excellent, although non-exhaustive, list of factors a court might look at when engaging in a risk of danger analysis on the basis of circumstantial evidence". This reasoning is binding on me. These factors, applied to this case are as follows:

a) 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: There isn't much objective evidence of the level of impairment at the roadside except the circumstantial evidence of leaving the vehicle and then returning to it. It's also unclear how long it would take to become fit to drive as no expert evidence was lead on this issue.

b) Whether the keys were in the ignition or readily available to be placed in the ignition: There is no evidence that the keys were in the ignition but the keys were with Mr. Ablack and retrieved from him when the vehicle had to be towed. Thus, they were available to be placed in the ignition but it's unclear whether it was completely out of gas. I'm prepared to assume it was completely out of gas, however, this doesn't mean that the vehicle was completely immoveable but rather temporarily inoperable.

c) Whether the vehicle was running. The vehicle was not running: R. v. Cadieux, [2004] O.J. No. 197 (C.A.).

d) The location of vehicle. The vehicle was located at the side of the roadway. It was not in a parking lot. It's unclear how much of a hazard this caused, if any. R. v. Grover, [2000] A.J. No. 1272 (Q.B.)

e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination: Based on the admissible utterances at the police station (not at the roadside), I find that it's reasonable to infer that Mr. Ablack had a continuing intention to drive home after gas arrived. Clearly, he had driven to the spot where he ran out of gas impaired, and there's nothing to suggest otherwise. He was simply intercepted by the police. See R. v. Pelletier, [2000] O.J. No. 848 (C.A.); R. v. Ross (2007), 2007 ONCJ 59, 44 MVR (5th) 275 (Ont. Prov. Ct.) per Duncan J.; Balogun-Jubril, supra.

f) The accused's disposition and attitude: Mr. Ablack's disposition was pleasant and cooperative throughout.

g) Whether the accused drove the vehicle to the location of drinking: See factor (e) above. Also see R. v. Pelletier, supra.

h) Whether the accused started driving after drinking and pulled over to "sleep it off" or started using the vehicle for purposes other than driving: See factor (e), (g) above. I find that the inference of a continuing intention of being in care and control while impaired is present.

i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit: There is no evidence of any alternative plan. There is no evidence, for example of calling a taxi or friend to get home. I am mindful that Mr. Ablack didn't testify on this issue and is not obligated to do so. The burden on this issue is on the Crown.

j) Whether the accused had a stated intention to resume driving: In Cadieux, supra, the accused testified that he was waiting to sober up. The Court of Appeal held that his evidence that he would not drive until he was sober only went to weight. Here, there is no evidence from Mr. Ablack but I find that he drove to the location while impaired and ran out of gas. It can be reasonably inferred that he would drive again once gas arrived.

k) Whether the accused was seated in the driver's seat regardless of the applicability of the presumption: Mr. Ablack was seated in the driver's seat of the car.

l) Whether the accused was wearing his or her seatbelt: There is no clear evidence of this.

m) Whether the accused failed to take advantage of alternate means of leaving the scene: There is no evidence of any alternate means.

n) Whether the accused had a cell phone with which to make other arrangements and failed to do so: There is no direct evidence of this. It is unclear how he contacted the tow truck driver but there is some evidence that one was called.

[62] In R. v. O'Neill, 2016 ONCA 307, the Court of Appeal considered a case in which de facto care and control had been proven in circumstances where the accused was found asleep behind the wheel and testified that his intention was to "sleep it off". In an endorsement upholding the conviction, the Court said:

10 As the Supreme Court observed in Boudreault, at para. 41, the intention to set the vehicle in motion "suffices in itself to create the risk of danger contemplated by the offence of care or control." Although the presumption may be rebutted by proof of the absence of the requisite intention, the risk of danger remains relevant, not for the purpose of rebutting the presumption, but for the purpose of determining whether the accused's conduct in relation to the vehicle presents a realistic risk of danger to persons or property so as to establish care or control under s. 253(1) of the Code: Boudreault, at para. 41.

[63] In my view, the binding authority in O'Neill, supra is instructive. When I consider the Szymanski, supra factors as a whole, the conclusion that there was a realistic risk of danger has been proven beyond a reasonable doubt. I find that it's a reasonable inference that Mr. Ablack drove his vehicle to the location where it ran out of gas. He was impaired at the time. It can be inferred that his intention, much like sleeping it off, was to continue driving home once the gas arrived. His intention to set the vehicle in motion was a continuing one and was only temporarily interrupted by the police. It's reasonable to infer that had he not been arrested, he would have driven home impaired, placing the public and himself at risk. I am being careful not to speculate about this issue but there's no evidence that suggests otherwise. In particular, there is no evidence to suggest he abandoned his intent. In the circumstances, it is the only reasonable inference from the circumstantial evidence. (R. v. Griffin, 2009 SCC 28, [2009] S.C.J. No. 28)

[64] Mere immovability is no defence to de facto care or control: see R. v. MacMillan CarswellOnt 1880 (C.A.). Here Mr. Ablack's vehicle was only temporarily inoperable. In my view, the first risk identified by the Boudreault court, namely the risk associated with not driving at the moment but evidence that the person will change their mind while impaired was present. While Mr. Ablack did not intend at the time he occupied the driver's seat to drive home (as he couldn't because it was out of gas), his intention was to eventually drive when gas arrived and thus endanger persons and/or property as he had consumed alcohol. I disagree that this constitutes a "future or hypothetical" intention. This was his intention when he got into the car after exiting and remained his intention until he was arrested. In many ways, this case is similar to that of Pelletier, supra where the Court of Appeal said:

6 In our view, there was ample evidence to support a finding that the appellant was in care and control of the vehicle. The undisputed evidence established that the appellant had the means readily available to drive the car. He was sitting in the driver's seat. Although the keys were not in the ignition they were immediately accessible to him. The appellant had driven the car to the hotel. When he left he was impaired and did not take advantage of the hotel's shuttle bus service. He told the police that he intended to sleep for a while. As the summary conviction appeal court judge pointed out there was a risk that the appellant would change his mind and drive the car. There was also the risk that, in his impaired condition, the appellant would misjudge his level of impairment and drive the car while his condition continued to pose a risk.

Here, while gas wasn't readily available, the undisputed evidence is that he told Cst. Ouelette he was waiting for gas which reasonably means his intention was to drive home. There may be cases where a person may change their mind about operating a vehicle after running out of gas. This wasn't such a case. As such, I find that the Crown has proven actual or de facto care and control.

(3) Does the presumption in s.258(1)(a) of the Criminal Code apply?

[65] If I am incorrect in my conclusion of de facto care and control, I must go on to consider the third means by which the Crown can prove the offence. This involves the operation of the presumption in s.258(1)(a) of the Code. For it to apply, Mr. Ablack must have been found in the driver's seat of his vehicle. There is no dispute about this. His location creates a presumption that he was in care or control of the vehicle. The presumption can be rebutted by Mr. Ablack, on a balance of probabilities that he did not occupy the driver's seat for the purpose of setting the vehicle in motion. Where a vehicle is inoperable, this may speak to rebutting the presumption depending on the individual case. See R. v. Amyotte, [2009] O.J. No. 5122 (S.C.J.)

[66] Mr. Aitken in his written materials submits that the Crown can't rely on the presumption for three reasons: (a) at the time Mr. Ablack was discovered, he was not occupying the vehicle for the purpose of setting it in motion, (b) jurisprudence has established that where there is no immediate risk of danger, the presumption cannot apply and (iii) the presumption is not constitutional. Put differently, Mr. Aitken submits that Mr. Ablack has rebutted the presumption and even if he hasn't, the law requires the Crown to prove a realistic risk of danger. With respect, I disagree. I have already explained above why I am of the view that Mr. Ablack has not rebutted the presumption because of his continuing intention of being in care or control. I do not intend to repeat much of that discussion as its equally applicable here. Rather, I propose to spend more time addressing the second submission about the interpretation of the law, which he urges me to accept.

(a) Has the presumption been rebutted?

[67] Mr. Aitken submits that the evidence establishes that Mr. Ablack was occupying the vehicle and re-entered it for the purpose of waiting for a tow truck to bring him gas. He urges the court to find that a present intention is to be assessed not at some point in the future. If such were the case, his intention at the time he was investigated behind the wheel was to wait for gas and thus he had no present intention to put the car in motion.

[68] I cannot agree with this position. The comments of Code J. in R. v. Tharumakulasingam, [2016] O.J. No. 1575 (SCJ) are a full answer to this submission. At paragraph 8 he wrote:

The relevant time frame for any rebutting evidence concerning an accused's intention to drive is the point when the accused entered the driver's seat, that is, he "must show that his occupancy began without the purpose of setting the vehicle in motion" [emphasis added]. See: R. v. Hatfield (1997), 115 C.C.C. (3d) 47 (Ont. C.A.). Given that the Appellant had clearly been driving the car immediately before the accident, and had therefore initially taken up his position in the driver's seat for that purpose, the only way to rebut the presumption in this case was to prove that his intention to drive had changed after the accident and before the police arrived at the scene and found him still sitting in the driver's seat with the engine running and with the lights on. See: R. v. Wren (2000), 144 C.C.C. (3d) 374 (Ont. C.A.); R. v. Milne, 2012 ONSC 5779 at para. 23. Since no defence evidence was called, any proof of a change of intention by the Appellant would have to arise by inference from the admitted facts concerning the state of the car and the state of the accused after the accident (the car was severely damaged and the Appellant was effectively pinned in the driver's seat and, once the arresting officers arrived at the scene, he was trying to get out of the car).

[69] In this case, I find that it's reasonable to infer that Mr. Ablack drove his car to the location where he ran out of gas while impaired. There's no evidence of any change in his intention. He was seated in the driver's seat waiting for gas and it's reasonable to infer that he would drive home, impaired, once he re-fueled. Mr. Aitken argued in his written reply submissions that Tharumakulasingam, supra appears to be inconsistent with Durno J. in Amyotte, supra, who said "[w]hile the appellant argued it is illogical to have a case determined on whether or not the accused got out of the car and returned not intending to drive and one who never leaves the seat but abandons the intention to drive, that is the law in Ontario". In my view, there is no inconsistency as Durno J. adopted the principle in Hatfield, supra, which was also cited by Code J. that intention to drive is to be assessed at the time the accused enters the driver's seat. The difference here is that Mr. Ablack left his car and returned with a continued intention to drive. See also R. v. Miller, [2004] O.J. No. 1464 (C.A.); R. v. Hudson (1989), 1989 ABCA 75, 23 M.V.R. (2d) 284 (Alta. C.A.); R. v. Decker (2002), 2002 NFCA 9, 162 C.C.C. (3d) 503 (Nfld. C.A.). I agree with Mr. Connolly that by merely exiting his vehicle to get his bearings and obtain his location for the tow truck does not amount to a change of intention. As such, Mr. Ablack has not rebutted the presumption.

(b) Does the law hold that the presumption doesn't apply where the Crown hasn't proven a risk of danger?

[70] In submissions, Mr. Aitken clarified that his position is that even if the presumption hasn't been rebutted, the Crown must prove a realistic risk of danger. He relies in large part on an interpretation of Boudreault, where Fish J. commented at paragraphs 38-39 regarding whether a conviction for impaired care or control necessarily follows when there is no realistic risk of danger in a particular case. There has been much debate about this observation and what it means. In R. v. Blair 2014 ONSC 5327, Justice Trotter, sitting as a summary conviction appeal court, weighed in on this debate and said:

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 rebutted. When the presumption is not rebutted, all elements of "care or control" (both the mens rea and actus rea components, as described in Smith, paras. 49 to 51) are deemed to exist.

[71] While not framed as such, the effect of Mr. Aitken's submission would be to disregard Blair. In my view, Trotter J.'s interpretation of Boudreault is correct and in any event, is binding on me. A similar argument was rejected in R. v. Gulak, [2015] O.J. No. 1120 (Ont. Prov. Ct.) where Rose J. agreed with Trotter J.'s interpretation and commented that the risk of danger is embedded in the presumption and adding an additional risk component to s.258(1)(a) renders the presumption of care or control quite meaningless. See Gulak, supra at para. 20; R. v. MacKenzie [2013] A.J. No. 899; R. v. Tharamakulasingham 2014 ONCJ 362; R. v. Coomansingh 2014 ONCJ 560 at para. 32; R. v. Shrikka Arulrason, [2015] O.J. No. 935. I agree.

[72] More recently, the issue was revisited by Mr. Justice Campbell sitting as a summary conviction appeal court in R. v. Balogun-Jubril, supra. At trial, the court acquitted the defendant on the basis that his vehicle was inoperable even though the defendant was found behind the wheel (thus the presumption applied). The trial court relied in large part on the interpretation of Boudreault which Mr. Aitken urges me to adopt as the Crown had not proven a risk of danger. In reversing the acquittal and convicting the accused, Campbell J. remarked that the jurisprudence stood for the proposition that a realistic risk of danger may arise from an inoperable vehicle. At paragraph 54 he wrote:

54 Indeed, in my view, this trilogy of judgments from the Court of Appeal for Ontario also compels the reversal of the decision of the trial judge. These cases collectively hold that in cases where the motor vehicle is inoperable, the necessary realistic risk of danger may well be created by an inherently dangerous location of a stationary, incapacitated vehicle on or near a roadway, in combination with an alcohol-impaired accused who might realistically escalate that inherent risk of danger by his or her negligent or accidental conduct in relation to the vehicle (e.g. accidentally switching off headlights or hazard lights).

[73] Importantly, this interpretation was affirmed by the Court of Appeal in R. v. Balogun-Jubril, [2016] O.J. No. 1231 (C.A.).

[74] In this case, I find that Mr. Ablack has not rebutted the presumption and in any event, his vehicle was only temporarily inoperable. Unlike Balogun-Jubril, supra, where the vehicle was completely inoperable because it was leaking oil and the engine had seized, this wasn't the case here. In that case, the defendant had called for a tow truck and sat in a live lane of traffic in the driver's seat awaiting its arrival. He mitigated any risk of danger by activating his emergency lights. Campbell J. held that this course of conduct met the "low threshold" of a realistic risk of danger as given his inebriated state, he could have accidentally turned off the hazard lights, among other things, to endanger public safety. He said the risk is designed to prevent danger to public safety, while not rendering criminal conduct that is "benign and inconsequential" (at para. 59).

[75] While the case at bar is clearly different in that Mr. Ablack took some additional steps to mitigate the risk by pulling off the roadway, in many ways, the risk is even more real because there is an absence of evidence that he abandoned his intention to drive home while inebriated. In other words, the only reasonable inference before me is that he was intent on driving home while intoxicated once gas arrived. (Pelletier, supra) Unlike Balogun-Jubril, Mr. Ablack could drive home whereas Mr. Balogun-Jubril couldn't because the engine had seized. The law criminalizes conduct which arises through "negligence, bad judgment or otherwise". In my view, his decision to drive home as opposed to having his car towed or finding a ride home clearly fits within this rubric of bad judgment. It would frustrate the intent of Parliament to not criminalize this type of poor decision making. The brief period of time that he got out of the vehicle to ascertain his location for the tow truck does not interrupt the sequence of events such that the presumption in favour of care and control no longer applies. See also R. v. Chernywech, [2010] O.J. No. 1638 (S.C.J.).

[76] For the above reasons, the presumption in s.258(1)(a) applies and hasn't been rebutted. It is conclusive proof (as an alternate basis) for Mr. Ablack's guilt.

(c) Is the presumption in s.258(1)(a) constitutional?

[77] Given my conclusion that the presumption applies, Mr. Aitken submits it should not in cases where it stands unrebutted because it violates s.7/11(d) of the Charter. As an appropriate remedy, he submits that I should exercise my discretion and grant a remedy under s.24(1) to prevent the Crown from relying on it in this case and declare it unconstitutional. Further I should "read in" the risk of danger analysis to align with the interpretation of Boudreault that he submits is correct. He argues that it undermines the presumption of innocence as a person can be convicted even where the Crown doesn't have to prove a realistic risk of danger. In particular, he submits that the Supreme Court of Canada in R. v. Whyte, [1988] 2 S.C.R. 3 did not consider the element of risk and degree of danger.

[78] I am mindful of the fact that I am considering this argument as an alternative basis, thus my comments are arguably obiter in their reach. In any event, this may not matter because in my view, Mr. Aitken's able submission is premised, with respect, on an erroneous interpretation of Boudreault, which I have addressed above. In Whyte, supra, the Supreme Court at paragraphs 47-51 held that that section 237(1)(a), now s.258(1)(a), violated sections 7 and 11(d) of the Charter but was saved by section 1 and was therefore constitutional. At paragraphs 49-50, the Chief Justice wrote:

49 In my view, viewed in this context, s. 237(1)(a) represents a restrained parliamentary response to a pressing social problem. It is important for the purposes of the s. 1 analysis to view s. 237(1)(a) in the context of its overall statutory setting. Parliament has attempted to strike a balance. On the one hand, the Crown need only prove a minimal level of intent on account of the fact that consumption of alcohol is itself an ingredient of the offence. On the other hand, where an accused can show that he or she had some reason for entering the vehicle and occupying the driver's seat other than to drive the vehicle, the accused will escape conviction. Viewed in this light, s. 237(1)(a) constitutes a minimal interference with the presumption of innocence guaranteed by s. 11(d) of the Charter.

50 The final stage of the Oakes test is to ask whether there is proportionality between the effects of the impugned measure and the objective being advanced. In my view, s. 237(1)(a) satisfies this final element in s. 1 analysis. The threat to public safety posed by drinking and driving has been established by evidence in this case and recognized by this Court in others. While section 237(1)(a) does infringe the right guaranteed by s. 11(d) of the Charter, it does so in the context of a statutory setting which makes it impracticable to require the Crown to prove an intention to drive. The reverse onus provision, in effect, affords a defence to an accused which could not otherwise be made available.

[79] In my view, the Supreme Court in Whyte, supra did implicitly consider the realistic risk of danger in finding that such a risk of danger is inherent in consuming alcohol to the point where a driver's ability to operate a motor vehicle is either impaired by alcohol or he or she is over the legal limit. As discussed above, the weight of binding appellate authorities on point support the interpretation of Boudreault that the realistic risk of danger is inherent in the presumption, which can be rebutted by an accused. In Boudreault, the Court recognized that a realistic risk of danger was part of the offence to be proved by the Crown after the accused has rebutted the presumption. It only arises where an accused has rebutted the presumption or the Crown relies upon proof of de facto care and control. It does not violate the presumption of innocence.

[80] Accordingly, the presumption in s.258(1)(a) remains constitutional and does not violate ss.7 and/or 11(d) of the Charter. As such, I need not consider s.1 of the Charter or "read in" the risk of danger into the presumption.

(d) Section 24(1) remedy

[81] In my view, a section 24(1) remedy, which is discretionary in nature, is not an appropriate response to any alleged Charter breaches in this case. Mr. Aitken urges me to find that the Crown shouldn't be permitted to rely on the presumption under this rubric. (R. v. Tran, [1994] 2 S.C.R. 951 (SCC). Again, I cannot agree for two reasons.

[82] First, resort to s.24(1) is to avoid meeting the more onerous hurdles associated with seeking an exclusion of evidence remedy under s.24(2). I have already concluded why I would not exclude evidence under s.24(2) as Mr. Ablack did not meet his onus on a balance of probabilities. It would frustrate the explicit purpose of a s.24(2) remedy if a discretionary remedy was granted.

[83] Second, I find the decision of my colleague Monahan J. in R. v. Orenchuk 2014 ONCJ 650, [2014] O.J. No. 5864 (Ont. Prov. Ct.) persuasive in a case where the defendant sought a similar remedy for alleged constitutional violations in the drinking and driving context. At paragraphs 66-70, Monahan J. found that there was no binding authority, which mandated such a result. I agree. I can do no better than rely on his comments at paragraphs 67-70 where he wrote:

67 While s.258(1)(c) is commonly referred to as a "presumption of identity", it is more than a simple presumption. It is direction by Parliament that provided certain circumstances exist, there is "conclusive proof" beyond a reasonable doubt of the "over 80" element of a s. 253(1)(b) offence at the time the offence is alleged to have been committed. There is no element of discretion in the application of the presumption. The Court does not "permit" the Crown to "rely" on it. There is a test in s.258(1)(c) as set out above and if the factual and legal components of the test are made out (including the absence of evidence tending to show the malfunctioning and related points as provided for in the section), then the direction from Parliament is operative, conclusive and binding. If the requirements of the test are not met, then the provision is not operative. In this case, all of the components of the test in s.258(1)(c) have been proven. Indeed, the elements which support the test are admitted by the defence in that the defence invited the Court to make a finding of guilt if the Charter remedies sought were rejected. Accordingly, it is not open to the Court in these circumstances to grant a remedy under s.24(1) of the Charter to say that the conclusive proof direction from Parliament in s.258(1)(c) of the Code shall have no application when the direction itself is not constitutionally challenged. I note further that it is common ground that s.258(1)(c) in its current form in the Code has been found by the Supreme Court of Canada to be constitutionally valid. (See R. v. St-Onge Lamoureaux, 2012 SCC 57, [2012] 3 S.C.R. 187 at para. 101)

68 I should add that no higher court authority was provided in support of the defence submission that I could order under s.24(1) of the Charter that the Crown not be permitted to rely upon the presumption of identity in s.258(1)(c) of the Code.

69 In my view, the issue is somewhat analogous to the Supreme Court of Canada's decision in R. v. Nasoguluak where the Court held that, save in exceptional circumstances, in the event of a Charter breach a trial judge cannot use s. 24(1) of the Charter to give less than a mandatory minimum sentence where the mandatory minimum penalty itself is not constitutionally challenged. (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 6)

70 If I am wrong and it would be open to this Court to simply say that the conclusive proof direction under s.258(1)(c) does not apply, I find that it would not be an "appropriate and just remedy in all of the circumstances" as s. 24(1) of the Charter requires. Considering that the s.8 breach was not egregious, the subsequent change in practice by the police and the interests of society in a trial on the merits in a serious case, such a remedy would not be appropriate and just.

[84] Mr. Aitken pointed me to the case of R. v. Charette 2009 ONCA 310, [2009] O.J. No. 1506 (C.A.) in which the Court of Appeal commented on the availability of a discretionary s.24(1) remedy in a case where a constitutional violation has been proven. He argues that Orenchuk, supra is inconsistent with Charette and Tran. In my view, the reliance on Charette on this issue is misplaced. Doherty J.A. in Charette simply commented on the availability of a s.24(1) remedy on an obiter basis. The circumstances of that case were different because the officer lacked reasonable and probable grounds for an arrest. Such was not the case here. In R. v. Rambissoon, [2012] O.J. No. 2305 (SCJ), the Court commented on Charette and observed that while a s.24(1) remedy is available even when one under s.24(2) is not, "it is difficult to imagine that any remedy would have been considered 'appropriate and just' given the trifling or tenuous nature of the underlying breach". It may be that in the right case, such a remedy is available based on the unique factors of the case. This is simply not one of those cases.

[85] If any Charter violations were proven, I would decline to grant a remedy under s.24(1).

E. Conclusion

[86] The applications under ss.7, 8, 9, 10(b), 11(d), 24(1) and 24(2) of the Charter are dismissed. I find that the Crown has proven de facto care and control beyond a reasonable doubt. Alternatively, I find that the presumption in s.258(1)(a) of the Criminal Code applies which has not been rebutted by Mr. Ablack. In light of the interpretation of Boudreault that is binding on me, the presumption remains constitutional. Accordingly, Mr. Ablack will be found guilty of the offence.

[87] I would like to thank counsel for their excellent written submissions. They were of great assistance to the court.

Released: May 18, 2016

F. Javed J.

Footnote

[1] On May 12, 2016, Mr. Connolly notified my judicial secretary by email communication that Crown Counsel from the Ministry of Attorney General (Criminal Law) who had been served on the constitutional issue but could not attend in person for submissions, wanted the Court to have two decisions which he submitted were binding authorities. In fairness, I permitted Mr. Aitken to reply to these two cases along with another case which I found. I permitted both counsel to make further written submissions on this issue which I received and agreed to further oral submissions if necessary.