Court File and Parties

Date: 2016-01-05

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Shaffar Kabir

Before: Justice A.A. Ghosh

Counsel:

• G. McLoughlin, for the Crown
• L. Thomas, for the accused Shaffar Kabir

Heard: In Writing

Judgment

Released on January 5th, 2016

GHOSH J.:

Introduction

[1] Shaffar Kabir stands charged with having "care or control" of a motor vehicle while impaired by alcohol and while having a blood alcohol concentration over the legal limit ("Over 80"), contrary to ss. 253(1)(a) and (b) of The Criminal Code.

[2] On July 24th, 2014, a building security guard was patrolling the property of 125 Parkway Forest Drive in Toronto and came upon a parked vehicle in the rear of the property. Shaffar Kabir was found in the driver's seat, unconscious and unresponsive. The security guard called 911, and EMS soon arrived and revived Mr. Kabir. The police then attended and after completing their investigation, arrested Mr. Kabir for being in care or control of his vehicle while impaired by alcohol.

[3] Counsel for Mr. Kabir accepts that the Crown has proven that Mr. Kabir was seated in the position ordinarily occupied by the driver. She has also conceded that her client's ability to drive was impaired by alcohol and that his blood alcohol concentration was over the legal limit at the relevant time.

[4] The only issue that requires resolution at trial is whether or not Mr. Kabir was in "care or control" of the motor vehicle he was found in.

The Evidence

Security Guard, Ronald Lyons

[5] On July 31st, 2014, Mr. Ronald Lyons was working building security for 125 Parkway Forest Drive and four other related buildings. During his patrol of the properties and shortly before 11 p.m., Mr. Lyons discovered a parked BMW at the rear of the building at 125 Parkway Forest Drive.

[6] Mr. Lyons observed a male, later identified as Mr. Kabir, to be seated in the driver's seat of this vehicle. The male was unconscious and not responding as Mr. Lyons repeatedly knocked on the driver side window. Mr. Lyons then called 911 out of concern.

[7] Mr. Lyons testified that the vehicle was stopped in a "fire zone" at the rear of the building about ten to fifteen feet away from the side entrance. Garbage from the building would be dropped off in the immediate vicinity of the stopped vehicle.

[8] The designated parking area was at the front of the building. Vehicles would not ordinarily be stopped or parked at the rear of the building, and indeed no other vehicles were observed near the vehicle in which Mr. Kabir was found.

[9] Mr. Lyons testified that in order for the BMW to leave its parked location and to enter the nearest roadway onto Parkway Forest Drive, the driver would have had to drive a relatively short distance and make a few turns out of the driveway before the road could be accessed.

[10] Mr. Lyons testified that the engine of the BMW was not running when he found it, and while he could not recall whether or not the windows were rolled down, he did recall that the sunroof was open.

EMS Personnel, Josh Zubick and Shannon Smyth

[11] Josh Zubick of the Toronto EMS testified as the initial responder to the 911 call. As Mr. Zubick approached the driver's side of the identified vehicle, he observed Mr. Kabir in the driver's seat, slumped over the steering wheel and unconscious.

[12] Mr. Kabir had vomit on his shirt, and Mr. Zubick detected a strong odour of alcohol from inside the vehicle. Mr. Zubick testified that he believed at least the sunroof and the rear driver's side window were open.

[13] After failing to receive a response from Mr. Kabir, Mr. Zubick and his EMS partner moved Mr. Kabir out of the vehicle and provided medical assistance.

[14] Shannon Smyth of the Toronto EMS arrived on scene with her partner, Mr. Zubick. Ms. Smyth testified that as she arrived at the driver's side door, she too observed Mr. Kabir to be seated in the driver's seat, unconscious, covered in vomit, and slumped over.

[15] Ms. Smyth also observed that Mr. Kabir did not have his seatbelt on, and that his pants were half down. She found the key in the ignition and pulled it out. She did not recall that the engine was running before she took out the key.

[16] A cell phone was located in the vehicle, and Ms. Smyth testified that she noticed the screen of the phone indicated that an incorrect password had been repeatedly entered and that phone had consequently locked itself.

[17] Ms. Smyth agreed in cross-examination that the driver's seat was in a reclined position when she first observed Mr. Kabir.

[18] Both Mr. Zubick and Ms. Smyth testified that they had observed an empty LCBO bag located in the passenger side foot well of the vehicle. Mr. Zubick observed an empty bottle of alcohol on the grass just outside of the vehicle.

Police Involvement and Forensic Toxicology

[19] Police constables Remy Lazar and Chris Acorn of the Toronto Police Service responded to the dispatch call directing them to the rear of 125 Parkway Forest Drive. They arrived together at the rear of the building, and they first observed Mr. Kabir already on a stretcher outside of the vehicle.

[20] Officer Lazar approached the ambulance and could hear Mr. Kabir expressing some confusion as to what was happening. Officer Lazar was soon within a few feet of Mr. Kabir and noted glassy eyes, a disoriented state, vomit on clothes, and an odour of alcohol emanating from Mr. Kabir's mouth.

[21] Based on the information received from EMS and his own observations, P.C. Lazar testified that he had grounds to arrest Mr. Kabir for being in care or control of a motor vehicle while impaired by alcohol.

[22] Officer Lazar read Mr. Kabir his rights to counsel, caution and the approved instrument demand and then requested that a qualified technician attend the hospital where Mr. Kabir was being taken.

[23] To confirm that the vehicle was operable, P.C. Lazar started the BMW and drove it a few feet. He testified that this vehicle had a pushbutton ignition that required the driver to compress the brake pedal while pressing the key in order to start the engine. In cross-examination the officer could not recall whether or not he had to release the parking brake before briefly driving the vehicle.

[24] P.C. Lazar estimated that the distance from the parked BMW to the street was about forty to fifty feet. At least two turns were required before the vehicle could reach the roadway from where it was positioned.

[25] Officer Acorn testified to having made many of the same observations noted by Officer Lazar and he confirmed that Shaffar Kabir was the registered owner of the BMW. The officer agreed in cross-examination that the residence of Mr. Kabir was a short distance from 125 Parkway Forest Drive.

[26] Officer Poynter, a qualified breath technician, attended Scarborough Grace Hospital in order to collect samples of breath from Mr. Kabir. Two proper samples of breath were received into an approved instrument. As the samples were taken outside of the two hour time period that would have permitted reliance on the certificate and the related statutory presumption, P.C. Poynter did not generate a certificate of analysis.

[27] With the consent of defence counsel, the Crown filed a curriculum vitae and a report from an expert in forensic toxicology. It was agreed that the blood alcohol concentration of Mr. Kabir at the time he was discovered in the driver's seat substantially exceeded the legal limit. The Crown closed its case.

The Defence Case: Shaffar Kabir and His Father

[28] The defence called two witnesses in its case. The accused Shaffar Kabir testified that earlier in the evening he had received a phone call from a friend and they made plans to meet.

[29] Mr. Kabir drove to the rear of 125 Parkway Forest Drive and met his friend. The two of them chatted for a while and Mr. Kabir then drove his friend to the LCBO nearby.

[30] They soon returned to the rear area of 125 Parkway Forest Drive. Mr. Kabir parked his car in the area where it was discovered, and the two of them sat on a bench.

[31] Mr. Kabir testified that he had not been feeling well due to some takeout food he had eaten earlier. He vomited in the area of the bench where he and his friend were sitting. After vomiting, Mr. Kabir testified that he and his friend drank from a "mickey" of alcohol that the friend had just purchased.

[32] Mr. Kabir advised that he and his friend then entered his parked vehicle in order that the friend could discreetly return some money he owed to Mr. Kabir.

[33] Shaffar Kabir's father testified. Mr. Kabir Sr. advised that there were clear rules in the family home that no one was to drink and drive. He testified that he had specific discussions with his son Shaffar that no one in the home was to ever drink and drive, that there would be severe consequences for anyone that did, and that there would be a supportive plan in place to prevent driving where alcohol had been consumed.

Analysis

Overview of the Law of "Care or Control"

[34] The Crown can prove an accused was in care or control of a vehicle while impaired by alcohol or while "over 80" in three ways. Firstly, if it is proven that the accused operated the vehicle while impaired or with excess blood alcohol, care or control will be made out.

[35] Secondly, s. 258(1)(a) of The Criminal Code provides that where it is proven that the accused occupied the driver's seat of a motor vehicle, he or she is deemed to have had the care or control of the vehicle. The accused can rebut this presumption by establishing on a balance of probabilities that he or she did not occupy the driver's seat for the purpose of setting the vehicle in motion.

[36] Finally, where the statutory presumption is rebutted or inapplicable, the Crown may still prove de facto care or control. This can be done by establishing that the accused created a risk of danger by performing some act or series of acts involving the use of the vehicle, its fittings or equipment whereby the vehicle may be set in motion: R. v. Ford, [1982] S.C.J. No. 4 (S.C.C.); R. v. Toews, [1985] S.C.J. No. 48 (S.C.C.); R. v. Boudreault, 2012 SCC 56, [2012] S.C.J. No. 56 (S.C.C.).

Care or Control – Applicability of the Presumption in s.258(1)(a)

[37] It is not disputed that Mr. Kabir was found in the driver's seat while impaired by alcohol and with a blood alcohol concentration exceeding the legal limit. With the s.258(1)(a) presumption engaged, it is to be determined whether or not the defence has established on the balance of probabilities that Mr. Kabir did not occupy the driver's seat for the purpose of setting the vehicle in motion.

[38] In order to rebut the statutory presumption of care or control, the accused must show that the occupancy of the driver's seat began without the purpose of setting the vehicle in motion: R. v. Hatfield, [1997] O.J. No. 1327; R. v. Miller, [2004] O.J. No. 1464.

[39] Mr. Kabir's challenged but uncontradicted testimony was that he never intended to set the vehicle in motion after he shared the bottle of alcohol with his friend. I have been invited by the Crown to completely reject Mr. Kabir's evidence as improbable and unworthy of belief. While there are aspects of his testimony that cause me some concern, I find he was unshaken in key areas of his evidence and the thrust of his testimony was reasonably supported by the evidence led by the Crown. I will return to this observation again when discussing de facto care or control.

[40] Mr. Kabir testified that he picked up his friend earlier in the evening and drove to an LCBO location nearby. When he drove them back to the rear area of 125 Parkway Forest Drive, they got out of the vehicle and sat on a bench. Mr. Kabir testified to feeling ill from some food he had eaten earlier and he vomited near the bench.

[41] After vomiting, Mr. Kabir advised that he drank a few shots of alcohol from a bottle his friend had just purchased. While I find this aspect of his testimony somewhat concerning, it is not inconceivable that one might consume alcohol soon after obtaining some measure of relief through vomiting.

[42] Mr. Kabir testified that he and his friend then re-entered the BMW only in order that the friend could return some money to Mr. Kabir. Neither of them apparently wished to exchange money out in the open. This is neither an incredible nor an unreasonable motivation to re-enter the vehicle. Mr. Kabir sat in the driver's seat and the friend sat in the front passenger seat. Mr. Kabir testified that he opened his car door and vomited again.

[43] I have been asked to make an adverse credibility finding against Mr. Kabir, given the professed pattern of drinking is submitted to be dramatically inconsistent with the more objective evidence tendered of his blood alcohol concentration. The difficulty with this particular submission is that Mr. Kabir could not recall with any accuracy how much alcohol he had consumed before resuming the driver's seat of his vehicle. He then conceded the evidence of the forensic toxicologist. Consequently, I do make the requested adverse inference.

[44] After providing Mr. Kabir with the money owed, the friend got out of the vehicle and left to comply with his court ordered curfew. Mr. Kabir testified to feeling quite sick at that time. His head was spinning, he felt faint and he determined he needed to sleep or rest. He attributed his physical deterioration to some combination of the food-related nausea and the alcohol he had just consumed.

[45] Mr. Kabir testified that he knew he was in not in any condition to drive, and that he made a failed effort to call a family member to come and take him home. He stated that he tried to unlock his cell phone to make the call for assistance, but dropped the phone a few times before passing out. This is somewhat supported by the evidence of Shannon Smyth of the EMS, who had observed the locked screen of Mr. Kabir's cell phone which displayed a message indicating that the incorrect password had been inputted several times.

[46] Mr. Kabir was unwavering in his evidence that he had no intention to drive once he had re-entered his vehicle after having consumed the alcohol. While he stated that he initially entered the driver's seat only to discreetly receive the money owed, he testified that he soon began to feel very sick and took some steps to support his singular desire to remain in the driver's seat in order to rest and recover from his nausea.

[47] Mr. Kabir testified that he reclined his seat, had the parking brake engaged, and only had the key in the ignition in order to roll down the windows to let in fresh air. There is some support in the Crown evidence for these assertions. Mr. Lyons, the building security guard, testified that the engine was not running when he discovered Mr. Kabir in the driver's seat of the BMW. The collective testimony of the EMS personnel and P.C. Lazar either supported or failed to contradict Mr. Kabir's testimony about the reclined seat, the parking brake and the windows.

[48] To support his stated lack of intention to drive after drinking, Mr. Kabir and his father both testified to a family and household dynamic establishing severe consequences for anyone in the home who dared to drive after drinking. They had specific discussions about a supportive plan should anyone in the family find himself in the position where alcohol had been consumed and there was a need to get home. Driving was not an option.

[49] After considering all of the evidence, I find that Mr. Kabir has established on a balance of probabilities that he did not occupy the driver's seat for the purpose of setting the vehicle in motion. The presumption engaged by s.258(1)(a) is thus rebutted and I will now consider whether or not the Crown has proven that Mr. Kabir actually had care or control of his vehicle at the relevant time.

De Facto Care or Control – a "Realistic Risk of Danger"

[50] As referenced earlier, where the presumption in s.258(1)(a) is rebutted or inapplicable, the Crown may still prove actual or de facto care or control by establishing that the accused interacted with the vehicle in a manner that created a risk of danger. The absence of an intention to drive is not a defence under this analysis, as it is only relevant to rebutting the statutory presumption. That the vehicle may unintentionally be set in motion may be sufficient to establish care or control.

[51] Justice Fish in the Supreme Court decision in R. v. Boudreault, supra, confirmed at paragraphs 9 and 33 "that "care or control" within the meaning of s.253(1) signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property."

[52] Justice Fish went on to clarify that this "realistic risk of danger" must involve more than a theoretical possibility. However, the risk need not be probable, serious or substantial and a "realistic risk of danger" is a low threshold to meet. The requisite risk of danger may materialize by setting the vehicle in motion, either intentionally or unintentionally: R. v. Boudreault, supra, at paragraphs 34, 48 and 54.

[53] The following facts established in this case are relevant to the determination of whether or not a realistic risk of danger was present:

• The key was in the ignition
• The engine was not running
• The parking brake was engaged
• The seat was in a reclined position
• To start the engine of this particular vehicle, the brake pedal must have been compressed while pushing the key into the ignition slot
• The vehicle was stopped in the rear of the building in a "fire zone" near the area where residents would dump garbage
• Vehicles would not ordinarily park in the area where the vehicle was found
• The accused made some efforts, as supported by the display on his cell phone to call for someone to come and drive him
• Mr. Kabir had not arrived at his final destination before he was discovered
• The vehicle needed to travel at a minimum of forty to fifty metres and make a few turns before encountering the nearest roadway

[54] As I intimated earlier in my assessment of Mr. Kabir's testimony, while I have some concerns with his evidence, I am left in a reasonable doubt that he ever intended to set the vehicle in motion after consuming alcohol. His stated plan to call someone to come and get him was objectively supported by the display observed on the locked screen of his cell phone.

[55] Although he was unable to implement the plan to call for help before he passed out, several circumstances were in place to prevent the vehicle from being unintentionally set in motion. The parking brake had been engaged, the dual-step pushbutton ignition had not been activated, and there was a relatively involved path for the vehicle to travel in order to encounter the nearest roadway or vehicle.

[56] After considering all of the evidence, I find that the requisite "risk of danger" was not present and that the accused was not in care or control of his motor vehicle at the relevant time. Consequently Mr. Kabir will be acquitted of both counts.

Signed "Justice A.A. Ghosh"

Released: January 5, 2016