Court File and Parties

Ontario Court of Justice

Date: August 5, 2016

Court File No.: Brampton 14-7333

Between:

Her Majesty the Queen

— and —

Bianca Sodhi

Before: Justice J.M. Copeland

Heard on: March 16, October 29 and December 11, 2015, and May 13, 2016

Reasons for Judgment released on: August 5, 2016

Counsel:

• R. Levan, counsel for the Crown
• H. Bassi, counsel for the defendant Bianca Sodhi

Judgment

COPELAND J.:

Facts and Charge

[1] The defendant is charged with having care or control of a motor vehicle while her ability to operate was impaired by alcohol. The evidence relates to events in the parking lot of a mall at Highway 10 and Hillcrest Avenue in Mississauga on June 4, 2014 between approximately 6:00 and 7:00 p.m., where police were called to investigate a potential impaired driver and motor vehicle collision. The mall contains, among other things, an LCBO.

[2] Counsel for the defendant conceded that the evidence is sufficient to prove beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired by alcohol when she was in the mall parking lot. The only live issue is whether the Crown has proven beyond a reasonable doubt that the defendant was in care or control of the motor vehicle in the mall parking lot, and some contested factual issues related to the care or control issue.

[3] Counsel for the defendant contested the application of the driver's seat presumption contained in s. 258(1)(a) of the Criminal Code; however, he conceded that if the court were to find that the driver's seat presumption applies, the defence evidence could not rebut it. Defence counsel argued that Crown could not prove a realistic risk of danger on the analysis in Boudreault beyond a reasonable doubt. As I will outline in due course, essentially the defence argued the risk of danger was speculative, because the defendant's friend Raveena Sunda was also in the parking lot, with her own car, and they had a plan that Ms Sunda would drive the defendant to another friend's house. As noted above, counsel for the defendant conceded that the defendant's ability to operate a motor vehicle was impaired by alcohol; however, there were submissions in relation to her level of intoxication as it related to the Boudreault risk assessment.

[4] At the outset of the trial, counsel for the defendant conceded the voluntariness of the defendant's statements in the breath room. In addition, once the evidence was completed counsel conceded the voluntariness of the defendant's statements in the parking lot. No Charter issues were raised.

[5] Rather than review the evidence at the outset, I will review it as I address each legal issue.

Issues

[6] The following legal issues are raised in this trial, both of which relate to whether the Crown has proven that the defendant was in care or control of her car at the relevant time:

(i) Is the presumption of care or control in s. 258(1)(a) of the Criminal Code engaged? (as noted above, the defence does not seek to rebut the presumption in the event the court finds that it is engaged);

(ii) If the s. 258(1)(a) presumption is not engaged, has the Crown proven care or control on the analysis in Boudreault?

Legal Framework

[7] Section 258(1)(a) of the Criminal Code creates a presumption that a defendant who is found in the driver's seat of a motor vehicle is deemed to be in care or control of the vehicle. To rebut the presumption, the defendant must show on a balance of probabilities that he or she did not occupy that seat for the purpose of setting the vehicle in motion, i.e. that he or she had no intention to drive: R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 at paras. 36-38; R. v. Whyte, [1988] 2 S.C.R. 3 at pp. 12-13, 17-19.

[8] Where the defence has rebutted the presumption, or where the Crown has not proven that the defendant was in the driver's seat, the Crown may prove the elements of care or control beyond a reasonable doubt. The elements of care or control are as follows:

(i) An intentional course of conduct associated with a motor vehicle;

(ii) By a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;

(iii) In circumstances that create a realistic risk of danger to persons or property: Boudreault, supra at paras. 9, 33

[9] The risk under the third branch must be a "realistic risk". To be realistic, a risk need not be probable, or serious or substantial. But the risk must be more than just "theoretically possible". A realistic risk is a low threshold, consistent with the preventive nature of the offence of care or control. But a theoretical risk is too low a threshold, since it would criminalize too broad a range of inconsequential conduct: Boudreault, supra at paras. 34-35, 38-39, 41-42, 48.

[10] An intention to set a motor vehicle in motion is a realistic risk of danger. In the absence of a contemporaneous intention to drive (i.e., where the defence has rebutted the presumption), a realistic risk of danger may arise in at least three ways:

(i) 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;

(ii) An inebriated person behind the wheel may unintentionally set the vehicle in motion; and

(iii) Through negligence, bad judgment or otherwise, a stationary and inoperable vehicle may endanger persons or property: Boudreault, supra at paras. 41-42.

[11] An important factor in assessing whether there is a realistic risk is whether there is credible evidence that defendant made an alternate plan to ensure his or her safe transportation home (or to another destination), or, to spend the night so that he or she would not drive while impaired: Boudreault, supra at paras. 51-53. The impact of evidence of such a plan will depend on whether the plan was "objectively concrete and reliable", and on whether the defendant, in fact, implemented the alternate plan. A trial judge must keep in mind that even where there is a plan, the evidence may lead to the conclusion that the defendant abandoned the plan due to his or her state of impairment, or there was a realistic risk the plan would be abandoned, leading to a realistic risk of danger in the circumstances.

[12] The defendant's intention with respect to operating the motor vehicle is relevant to the assessment of whether the presumption in s. 258(1)(a) has been rebutted; however, proof of an intention to operate the motor vehicle is not an essential element of care or control. Nor does a finding of fact that the defendant did not intend to operate the motor vehicle preclude a finding of care or control, if the requirements of Boudreault are otherwise met: Boudreault, supra at para. 36; R. v. Ford, [1982] 1 S.C.R. 231.

[13] Generally, a finding of fact that the defendant was impaired and in the driver's seat of a motor vehicle will be sufficient to conclude that there is a realistic risk of danger to persons or property, and as a result that he or she was in care or control of the motor vehicle; however, that finding is not automatic. The assessment of whether there is a realistic risk of danger is a factual one which must be made in all the circumstances. As a practical matter, evidence supporting a finding that the defendant was impaired and in the driver's seat will impose a tactical burden on the defence to adduce credible and reliable evidence, both to rebut the presumption, and to raise a reasonable doubt that there was not a realistic risk of danger in the particular circumstances of the case: Boudreault, supra at paras. 12-13, 45, 48.

[14] The defendant testified. As a result, in assessing the evidence and making my findings of fact, I must bear in mind that the Crown's burden of proof beyond a reasonable doubt applies to issues of credibility, as explained in the Supreme Court of Canada's decision of R. v. W.D., [1991] 1 S.C.R. 742.

[15] I note that there are shifting burdens in relation to care or control that affect how the W.D. analysis applies. The Crown bears the burden of proof beyond a reasonable doubt to prove the facts necessary to engage the presumption in s. 258(1)(a), i.e., to prove that the defendant occupied the driver's seat: Whyte, supra at p. 13. If I find that the Crown has proven the facts necessary to engage the presumption of care or control beyond a reasonable doubt, then the onus shifts to the defendant to prove that she did not intend to drive. That onus is on a balance of probabilities: Boudreault, supra at paras. 36-38; Whyte, supra at pp. 12-13, 17-19. As noted above, in this case defence counsel has conceded that if the presumption is engaged, the defendant's evidence is not sufficient to rebut it. If I find that the s. 258(1)(a) presumption is not engaged (or is rebutted), then the Crown bears the onus to prove care or control according to the risk analysis in Boudreault on the reasonable doubt standard.

Is the Presumption in s. 258(1)(a) Engaged?

[16] As noted above, in order to engage the presumption of care or control in s. 258(1)(a), the Crown must prove beyond a reasonable doubt that the defendant occupied the driver's seat. The only witness who gave evidence which the Crown argues shows that the defendant was in the driver's seat was the LCBO employee Ms Curley. I note that this is not a case where the evidence of other witnesses contradicted Ms Curley. Rather, the police witnesses did not observe the particular periods of time when Ms Curley may have seen the defendant in the driver's seat. And the other civilian, Mr. Puvanandran, testified that he saw the defendant open the driver's side door multiple times, but he was unable to see if she sat in the driver's seat or not.

[17] I found Ms Curley to be an honest and reliable witness. She had no interest in the case one way or the other that might bias her evidence. She gave her evidence in a fair and measured fashion. And she was consistent between her examination in chief and cross-examination. However, I find that her evidence falls short of proving beyond a reasonable doubt that the defendant was in the driver's seat of her car in the parking lot. In examination in chief, Ms Curley testified that the defendant "got into the front seat", and that it was "not very long". She also testified it may have been then that the defendant took her shoes off. In cross-examination, Ms Curley was asked if the defendant was "fully inside of the vehicle, sitting inside, or did she just get in to grab something?". Ms Curley responded: "Maybe get in to grab something. The door was never shut."

[18] The issue of whether the defendant actually sat in the driver's seat ("occupied" it, to use the language of s. 258(1)(a)), was explored very little in examination in chief for a case where the Crown seeks to rely on the presumption in s. 258(1)(a). I find that Ms Curley's evidence is simply not definitive enough for me to find beyond a reasonable doubt that the defendant actually occupied the driver's seat. I find that the s. 258(1)(a) presumption is not engaged.

Has the Crown Proven Care or Control on the Risk Analysis from Boudreault?

[19] Counsel for the defendant argues that the evidence does not establish that she was in care or control because, in his submission, the evidence supports that the defendant did not intend to drive, and that she had a plan to have Ms Sunda drive her to her friend's house. He argues that the risk that the defendant would drive is speculative.

[20] I note that many of the surrounding facts were not in dispute. The defendant's car was parked in the parking lot at the mall, far from both her home in Vaughan, and the home of the friend in Oakville she claimed to be going to see. Her friend Ms Sunda was also in the parking lot with her own car. Both Ms Sunda and the defendant were drinking rum in the parking lot in Ms Sunda's car. The defendant's car was parked in the parking lot so close to the car of Mr. Puvanandran that he was unable to open his driver side door to get into his car. At no time did the civilian witnesses or the police witnesses observe the defendant's car to have the ignition turned on.

[21] The resolution of the issue of whether the Crown has proven that the defendant was in care or control of her car at the relevant time turns in significant measure on my credibility findings with respect to her evidence. I will summarize her examination in chief, and address her cross-examination in explaining my credibility findings.

Defendant's Evidence

[22] The defendant was 18 years old at the time of the alleged offence, and 20 years old when she testified. The defendant's evidence was that on June 4, 2014, she woke up at about 9 or 10 a.m. She spoke by phone to her friend Matthew, who lives in Oakville, and planned to meet up with him later in the day. The defendant was also planning to meet up with another friend, Ms Sunda before she met up with Matthew. The defendant also spoke to Ms Sunda by phone about their plans. Cell phone billing records were entered as evidence which the defendant testified showed the calls to Matthew and Ms Sunda's numbers. The defendant was at home until about 1:30 or 2:00 or possibly 3:00 p.m., and then drove to meet Ms Sunda at the condo of another friend near Square One. She planned later to go to Matthew's home in Oakville with Ms Sunda.

[23] The defendant testified that she arrived at the condo at 3:00 or 4:00 p.m., and parked outside the condo on Living Arts Drive in an area where a paid ticket is required to park. She went into the condo and hung out with Ms Sunda and her friend for an hour or so. During that time each of them had one glass of wine. She said they had not planned to drink, but that "we just kind of had a glass." They were waiting until Matthew was done whatever he was doing before going to Oakville. They planned to hang out and drink at Matthew's home, and the defendant intended to sleep over there. She believed they left the condo at 5:00 or 5:30 p.m.

[24] The defendant testified that she and Ms Sunda intended to go to Matthew's in Oakville in one car. They wanted to look for public parking to leave her car. The defendant's aunt lives down the street from the condo they were at, and the defendant thought they could use her visitor parking lot. The defendant and Ms Sunda each drove their cars to the visitor parking lot of the defendant's aunt's condo, but the parking lot was full. So they each drove on in their cars, and the next public parking area was the mall at Hillcrest and Hurontario. The defendant testified that she parked there planning to leave her car there and drive with Ms Sunda to Oakville.

[25] The defendant testified that when she parked her car at the mall, she did scratch Mr. Puvanandran's car, because she was playing music and not really paying attention. She denied the collision was due to the effects of alcohol. She said her car ended up parked "a few inches" away from his car.

[26] The defendant testified that after she parked, she got into Ms Sunda's car, and Ms Sunda took out a bottle of rum, and Ms Sunda told her to drink some. The defendant had not planned before that to drink in the parking lot. The defendant testified that she drank a little more rum than Ms Sunda. The defendant said that she "definitely took a few swigs", and this was around 6:00 p.m. During this time, they were also on the phone with Matthew "figuring out if we can come there now." The defendant testified that she did not intend to drink and drive, and the plan was for Ms Sunda to drive to Oakville.

[27] The defendant testified that she went back and forth between Ms Sunda's car and her own car to make sure she had everything she needed to go to Matthew's, including looking for a flat pair of shoes, as she had been wearing heels. She denied that she ever sat in the driver's seat of her own car (or Ms Sunda's car) after drinking alcohol in the parking lot, but said she did open the driver's side door of her car to reach in and get things (because she could not open the passenger side door because she was parked so close to Mr. Puvanandran's car).

[28] Before they left the mall parking lot for Matthew's home, Mr. Puvanandran came over to talk about the defendant having scratched his car. She testified that the conversation was frustrating for both of them because of the language barrier (Mr. Puvanandran testified at trial with an interpreter). She described her level of intoxication at that point as "pretty tipsy, I guess."

[29] The defendant testified that the police arrived 10 or 15 minutes after the confrontation with Mr. Puvanandran. The defendant testified that when the police arrived she was "a little tipsy", and on a scale of 1 to 10, "probably like a six, I don't know. Five, six, I wasn't like crazy, crazy, you know, wasted, but like I had control over myself." She agreed that she did not feel comfortable to drive at that point.

[30] The defendant did not really take issue with the police evidence regarding her statements at the scene and in the breath room. She attributed her inconsistent statements to police to being scared and lying to try and get out of trouble. She later added that her intoxication was also a factor in her making inconsistent statements to police; but she was adamant that her state of intoxication would not have had an effect of her changing her mind and driving.

Credibility Assessment

[31] I do not believe the defendant's evidence, and it does not leave me with a reasonable doubt. The defendant was not a credible or reliable witness. I found that she was evasive in cross-examination; that her memory was not good, and the defendant herself testified that she was intoxicated; that her trial evidence was inconsistent with her statements to police in the parking lot and in the breath room; and that the central narrative of her evidence was simply illogical and did not make sense. I will address each of these issues in turn.

[32] In terms of being evasive, the defendant said in her examination in chief that she lied to police because she was scared and to try and get out of trouble. When she was cross-examined about her statements to police, in addition to repeating that she was scared and had lied to police, she repeatedly said she did not recall various parts of her conversations with police. She was also evasive about whether or not she had scratched Mr. Puvanandran's car. In her examination in chief, she clearly admitted that she had. But in cross-examination she resiled somewhat from that, saying that probably she had, but she was not 100 percent sure, and then later saying that she did not believe she had scratched Mr. Puvanandran's car.

[33] The issues with the defendant's memory and intoxication at the time of the events is to some extent related to her evasiveness, in the sense that when the defendant claimed not to remember certain things, it was difficult to tell if she was being evasive or if the issue was her memory. She testified that she was intoxicated during her interactions with police, and offered her intoxication as part of the explanation for her inconsistent statements. Whether the defendant's asserted lack of recollection is evasiveness or a genuine problem with her memory, it tells against the reliability of her evidence.

[34] Turning to the issues of inconsistencies, the defendant's statements both at the parking lot and in the breath room were inconsistent with her trial evidence. The defendant told Constable Davidson in the parking lot that she had not consumed any alcohol. The defendant told Constable Davidson in the parking lot that she intended to drive back to Vaughan. I accept Constable Davidson's evidence in this regard. In the breath room, the defendant told Constable Yake that she had only consumed alcohol in the morning at her home. She said at different times in the breath room that she had either had one glass of wine or two glasses of wine that morning. She said she had had the wine around 11:30 a.m. in North York. She said her parents were big on wine for its health benefits, and had it once a day at breakfast or lunch. She told Constable Yake that the wine in the morning was the only alcohol she consumed that day. She also told Constable Yake that she was going to her aunt's house from the mall parking lot, and that she did not intend to drive there, but planned to walk. All of the breath room statements can be heard on review of the breath room video. Clearly the defendant's statements at the scene and in the breath room were inconsistent with her trial evidence on significant issues, including whether and when she had consumed alcohol, and where she intended to go when she was in the parking lot. As noted above, her explanation for the inconsistencies was that she was scared and she lied to try and get out of trouble. I find the inconsistencies troubling in themselves. I also find her explanation that she lied to police to try and get out of trouble troubling. These factors contribute to my disbelief of the defendant's evidence.

[35] I further find that the inconsistent statements to police on the specific issue of where she intended to go from the parking lot (to Vaughan as she told Constable Davidson, or to her aunt's as she told Constable Yake), are factors that lead me not to accept or have a reasonable doubt that she had a concrete and reliable plan to go to her friend's in Oakville with Ms Sunda driving.

[36] Lastly, with respect to the defendant's evidence, the narrative of her evidence is illogical and makes no sense. For example, why drink in the mall parking lot, and then have Ms Sunda drive her to the Matthew's home in Oakville, thereby creating the need for Matthew to drive her back the next day to get her car? Why not simply drive to Matthew's house when she was sober, and drink there, and her car would be waiting there for her the next morning to go home. In light of this lack of logic, I do not believe the defendant's evidence and it does not leave me with a reasonable doubt regarding her version of the events leading up her being in the parking lot intoxicated with her car. Nor do I believe or have a reasonable doubt that she had a plan not to drive.

Evidence of Ms Sunda

[37] Nor does the evidence of Ms Sunda, the defendant's friend who was present in the parking lot and who was called as a Crown witness, assist the defendant. Ms Sunda has been the defendant's friend for eight years. She was 21 years old at the time she testified. Ms Sunda testified that earlier in the afternoon she had been with another friend, Jessica, driving around, she could not recall where. Two hours later, Ms Sunda met the defendant at the mall parking lot (without Jessica). Ms Sunda said she did not know how the defendant arrived at the mall parking lot, but agreed that the defendant's car was also in the parking lot. She testified that she did not see the defendant drive her car. They texted each other prior to meeting in the parking lot, and their plan was to drink. Ms Sunda testified that they did not really have a plan, but they met in the parking lot and were probably going to go to a friend's house afterwards. They drank rum in Ms Sunda's car in the parking lot. Ms Sunda could not remember exactly how much rum she and the defendant drank in her car, but she testified that: "It wasn't a little bit." Ms Sunda testified that the defendant only went to her own car to grab her shoes. Ms Sunda testified that a man came and said the defendant had hit his car. After the man came and said that the defendant had hit his car, the police were called.

[38] Crown counsel confronted Ms Sunda with inconsistencies between her statement to police and her trial evidence, pursuant to s. 9(2) of the Canada Evidence Act. One inconsistency was that she told police that she had seen the defendant drive to the LCBO. Ms Sunda responded to this inconsistency by saying that she was intoxicated and confused and did not know why she told the officer that when she gave her statement. Another inconsistency was that Ms Sunda told police that she had met the defendant earlier that day at the Living Arts Centre near Square One, and that they drove their cars to the mall parking lot after their plans changed because they were going to a friend's house in Oakville. In response to that inconsistency, Ms Sunda said she did not recall this, and she did not remember if they had met-up before arriving at the mall parking lot, and then reiterated that she had not seen the defendant prior to meeting in the mall parking lot.

[39] In cross-examination Ms Sunda indicated that she was not sure if she had reviewed the statement before signing it, and reiterated that she was intoxicated when she gave the statement. She also reiterated that she met the defendant for the first time that day in the mall parking lot. She described the amount of rum she and the defendant drank in the mall parking lot as: "Like, we, we drank quite a lot." When asked in cross-examination about telling police they had a plan to go to a friend's home in Oakville, she responded: "I don't remember", "there was no definite plan, but we wanted to go to a friend's house and drink. We just didn't make a plan yet"; however, she indicated that there was a plan to take her (Ms Sunda's) car, because the defendant was "a little bit more intoxicated than I was". Ms Sunda also indicated that the defendant drank more than Ms Sunda at the mall parking lot, because Ms Sunda intended to drive. But when asked where she intended to drive, Ms Sunda responded, "I don't really remember", and that she was not yet intending to drive, "not yet. Not until we made a plan." When asked if it was possible she and the defendant would each drive their own vehicles, Ms Sunda responded, "I'm not sure." Then when defence counsel directly suggested to her that "the plan was that you were going to drive with the defendant. Is that fair to say?", she responded, "yes".

[40] I find that Ms Sunda is not a reliable witness. Frequently in her evidence both in chief, and in cross-examination, she responded to questions with some version of "I don't remember". Ms Sunda's evidence was inconsistent on significant issues, such as whether she had seen the defendant driving that day, and whether she met-up with the defendant earlier or if they met for the first time that day in the mall parking lot.

[41] On Ms Sunda's own evidence, she was drinking rum in the parking lot in her car and "it wasn't a little bit", and indeed was "quite a lot". She then drank more afterwards and was intoxicated at the time she gave her statement to police. I find that Ms Sunda's inability to provide detail in her evidence is a result of her own level of intoxication, and also to some degree due to her friendship with the defendant and not wanting to give evidence harmful to her case.

[42] At the end of the day, Ms Sunda's evidence does little to assist the Crown or the defence. But as it relates to the defendant's evidence of a plan that Ms Sunda would drive the defendant to their friend's home, it is inconsistent with the defendant's evidence in two respects. First, Ms Sunda was inconsistent about whether there was, in fact, a plan that she would drive and the defendant would not. At times she said there was, at times she said there was no plan yet, and times she said she was not sure. Second, I find that Ms Sunda's own level of intoxication would have rendered any plan that Ms Sunda would drive the defendant unrealistic.

[43] Based on all of the evidence, I do not believe, and I am not left in a reasonable doubt, that the defendant had a plan not to drive. On the record before the court I find that the defendant did not have any set plan, other than that she was drinking in the parking lot with her friend.

Risk Analysis

[44] In all the circumstances, I also find that there is a realistic risk that the defendant, whose ability to operate a motor vehicle was impaired by alcohol, would drive her car while her ability to do so was impaired by alcohol: Boudreault, supra; R. v. Szymanski at paras. 91-94 (ONSC). I note the following factors in coming to this conclusion:

• The defendant was in the parking lot of a mall with her car, far from both her home, and her stated destination of a friend's home in Oakville. She had driven her car to the mall parking lot.

• The defendant was drinking in the car of her friend Ms Sunda, nearby in the same mall parking lot.

• The defendant had the keys to her own car with her – at the time of her arrest the keys were located on the front passenger seat of her car.

• The defendant had been going in and out of her car in the time before the police arrived – on her evidence, for the purpose of getting things out of the car such as her shoes and purse. When Constable Harriott, the first officer to arrive on the scene, arrived, he observed the defendant walking towards her car, and the driver door of the car was ajar.

• The defendant was at the relevant time emotionally erratic, behaving erratically, and making bad judgments – for example, she was walking around the parking lot approaching and stopping vehicles and talking to people through their driver's window in a loud voice; she was sitting on the hood of her car yelling, "are the police coming? Did you call the police?"; she was taking off her high heels and putting them down and at times walking around the parking lot barefoot. I accept the evidence of Ms Curley and Mr. Puvanandran on these issues.

• I find that the defendant was significantly impaired by alcohol, based on the evidence of the civilian and police witnesses. I reject the defendant's evidence that she was only "pretty tipsy". I accept the evidence of Ms Curley, Constable Harriott, and Constable Davidson of their observations of various indicia of intoxication on the part of the defendant in the parking lot. These observations included staggering, approaching and stopping vehicles in the parking lot and talking to drivers, sitting on the hood of her car yelling, being unsteady on her feet, her eyes being red-rimmed, watery, and bloodshot, and the odour of alcohol on her breath. I find that this evidence shows that the defendant was significantly impaired.

• In coming to the conclusion that the defendant was significantly impaired in the parking lot, I have considered the fact that although there are some signs of impairment on the part of the defendant in the breath room video, particularly some of the things she said, in the breath room her level of impairment seems less significant than what was described as her level of impairment in the parking lot. However, I note that in this case there was a significant delay between the events at the scene and the defendant being brought into the breath room. The defendant was arrested at 6:55 p.m. She was not brought into the breath room until 8:41 p.m. Based on Constable Harriott's evidence, it appears the delay related to delay at the scene and also some issues that arose with the defendant requesting counsel of choice after she spoke to duty counsel; however, the reason for the delay is not significant for the count of impaired care or control. I find that in light of my acceptance of the evidence of Ms Curley, and Constables Harriott and Davidson regarding observations of impairment on the part of the defendant in the parking lot, her lesser level of impairment two hours later in the breath room does not detract from my acceptance of their evidence. I do note that there was some evidence of impairment in the breath room based on some of the defendant's statements to police being a bit bizarre. For example, her statement about drinking wine at breakfast (and her parents supporting this) seems unlikely and illogical. Also, in the breath room the defendant had no idea what time it was, estimating the time as 4:00 p.m., when it was after 9:00 p.m.

• In coming to the conclusion that the defendant was significantly impaired by alcohol in the parking lot, I have also considered that the evidence in relation to slurred speech was contradictory. Ms Curley did not observe slurred speech. Constables Harriott, Yake and Davidson did testify that her speech was slurred; although Constable Davidson had no note regarding slurred speech. Even setting aside slurred speech as an observation, the other observations which were much more consistent between the witnesses lead me to find that the defendant was significantly impaired in the parking lot.

• The evidence before the court shows poor driving on the part of the defendant in the relevant time period. Whether or not she hit Mr. Puvanandran's car, which seems probable on the evidence but I would not put it higher than that, the defendant parked so close to his car that he could not open his driver door.

• I find that the fact that the defendant parked her car so close to Mr. Puvanandran's car also contributed to the risk that she would drive due to real possibility he would ask her to move her car so he could get into his. The defendant's car was parked so that Mr. Puvanandran was unable to open his driver door. Although one option open to him was to crawl across from the passenger side, I believe I can take notice that most people would prefer not to get into their car to drive by crawling across from the passenger side. Thus, there is a realistic basis to consider as part of the risk of the defendant driving that Mr. Puvanandran may have come and asked her to move her car so that he could get into his car.

• Even on the defendant's own evidence, various changes in her plans that day suggest that her plans were less than firm. She had not intended to drink at the condo of Ms Sunda's friend, but she did so. She had not intended to drink in the parking lot, but she did so. As I have outlined above, I do not accept the defendant's evidence and I am not left in a reasonable doubt by it, but even on her own evidence there was significant fluidity to her plans.

• The defendant's "plan" to avoid driving while impaired by alcohol was dependent on her friend Ms Sunda, who herself was also drinking in the parking lot and on Ms Sunda's own evidence was intoxicated. As I have noted, Ms Sunda's evidence was far from firm regarding the alleged plan, and the defendant's evidence about the alleged plan was inconsistent with her statements to police in the parking lot and in the breath room. This is not an "objectively concrete and reliable" plan, in the words of Boudreault.

[45] Boudreault is clear that realistic risk means more than a speculative or theoretical risk. But Boudreault is also clear that realistic risk does not mean a probability. Boudreault is also clear that for an alternative plan that does not involve the defendant driving while impaired to be a factor in finding that a realistic risk of danger has not been proven, the plan has to be concrete and reliable. In this case, the plan the defendant testified to is not sufficiently concrete and reliable to mitigate the risk she would choose to drive while her ability to do so was impaired by alcohol. She was drinking in a parking lot far from both her home and her asserted destination of her friend Matthew's home in Oakville. Her asserted plan that Ms Sunda would drive her was entirely dependent on Ms Sunda, who was also drinking in the parking lot. Further, as I have noted, the defendant's statements in the parking lot and in the breath room were inconsistent with her trial evidence about where she planned to go.

[46] Based on these factors, I find that the Crown has proven beyond a reasonable doubt that there was a realistic risk that the defendant would decide to drive while her ability to do so was impaired by alcohol.

Application of Boudreault Branches

[47] I note that Crown counsel argued the risk analysis on the basis that each of the three branches of the Boudreault risk analysis was met, i.e., a realistic risk that the defendant might change her mind and drive, a realistic risk that she might accidentally set the car in motion, and a realistic risk posed by the location of the car. As I have outlined, I find that there is a realistic risk based on the risk that the defendant might change her mind and drive. I find that the second and third branches of the Boudreault risk analysis are not really conceptually applicable to the facts in this case; although I agree that some of the factors that Crown counsel raises under those branches are relevant to the first branch of the Boudreault analysis.

[48] With respect to the risk of accidentally setting the car in motion, I find that that analysis would make more sense in a case where the defendant was in the driver's seat (and the presumption in s. 258(1)(a) had been rebutted). Since the evidence in this case is that the Crown has not proven that the defendant was in the driver's seat, the notion of her accidentally putting the car in motion is not really applicable. And if the defendant changed her mind and got into the driver's seat to drive, which I have found was a realistic risk, then the risk is better dealt with under the first branch of the Boudreault risk analysis.

[49] Similarly, Crown counsel argued that the possibility the defendant would have to move her car in order for Mr. Puvanandran to get into his car because she was parked so close was an issue of the location of the car creating a realistic risk of danger. I do not accept this argument. I understand the third branch of the Boudreault analysis to relate to the vehicle itself posing a risk due to its location – for example a vehicle left in a live lane of traffic. In this case, I find that the risk that the defendant would move car in order for Mr. Puvanandran to get into his car is better conceptualized as a change of mind issue. That is, in addition to the risk that the defendant would change her mind and drive somewhere else, part of the realistic risk of danger in this case is that even if the defendant did not plan to drive somewhere outside the parking lot, there was a realistic risk that Mr. Puvanandran would ask her to move her car so that he could get into his car, and that she would then drive her car to move it for him. Thus, I accept that the risk that the defendant would have to move her car to allow Mr. Puvanandran to get into his car is part of the realistic risk of danger. But I find that it is more appropriately considered under the first branch of the Boudreault analysis than under the third branch.

[50] For all of these reasons, I find that there was a realistic risk of danger arising from the risk that the defendant would change her mind and drive her car. I find that she was in care or control of the motor vehicle in the parking lot.

Conclusion

[51] As noted above, counsel for the defendant conceded that her ability to operate a motor vehicle was impaired by alcohol during the time that she was in the parking lot. I accept this concession and find that it is amply supported by the evidence of Ms Curley and Constables Harriott and Davidson. Thus, the Crown has proven beyond a reasonable doubt that the defendant was in care or control of a motor vehicle while her ability to operate one was impaired by alcohol. I find the defendant guilty as charged.

Released: August 5, 2016

Signed: Justice J.M. Copeland