Court File and Parties

Ontario Court of Justice

Date: 2016-07-25

Court File No.: Central East - Newmarket 4911-998-15-01223-00

Between:

Her Majesty the Queen

— and —

Sharon Correale

Before: Justice David S. Rose

Heard on: April 29, 2016 and July 5, 2016

Reasons for Judgment released on: July 25, 2016

Counsel

Mr. M. Ventola and Ms. K. Hutchinson — counsel for the Crown

Mr. N. Charitsis — counsel for the defendant Sharon Correale

ROSE J.:

Facts

[1] Ms. Correale is charged with Impaired and Over 80 Care or Control on 30 January 2015. At the outset Mr. Charitsis made various admissions including Date, Jurisdiction, the identity of the person identified by the civilian witness as being the accused, that Ms. Correale's Blood Alcohol Content (BAC) at the time of the incident was 150 mg of alcohol in 100 ml of Blood, and that at the time of the incident she was impaired in law. What remains is whether Ms. Correale was in care or control of a motor vehicle at 6:11 p.m. on January 30, 2015.

[2] Ms. Campbell was the first Crown witness. On January 30, 2015 she was at a store in Newmarket called Plato's Closet. That is a consignment store that takes clothing items in and then offers them for re-sale. Ms. Campbell was there browsing that afternoon when she noticed a woman, admitted to be the accused, in the store as well. She smelled strongly of alcohol. Ms. Campbell was right in front of Ms. Correale, who stumbled to the left, almost falling but then caught herself. Ms. Campbell kept her eyes on her because she questioned her sobriety. She wanted to see if Ms. Correale had come on her own or if she drove there. If she was going to drive, Ms. Campbell was going to call 911.

[3] Ms. Correale was waiting to see if the store would take her items and went to her car to wait. She got in the driver's seat and drank out of a bottle. It was hard to see the bottle but it looked like opaque glass. She was in the car about 15 minutes. The car was not running. Ms. Correale came back into the store and talked to the store staff while her items were being assessed. Most of the clothes would not be taken by the store and had to be returned to Ms. Correale. At that point Ms. Campbell was on the phone with 911.

[4] When Ms. Correale came back to the store she was there about 15 minutes before leaving with two garbage bags. Ms. Campbell thought that she was having problems holding the bags, but she managed to put them in the back seat of the car, before getting into the driver's seat. At that point Ms. Campbell saw the vehicle lights turned on. She relayed that to the 911 operator. Once the lights were on it was about 5 minutes before the police arrived at the car to speak with Ms. Correale. Ms. Campbell saw the police make the arrest.

[5] In cross-examination Ms. Campbell admitted that she never saw the ignition of Ms. Correale's car turn on, and that the vehicle was facing the store. She testified that she didn't confront Ms. Correale because she didn't think it was safe. She elaborated in cross-examination to say that she saw Ms. Correale smoking and drinking the first time she got in her car, that the windows were tinted, and she didn't speak with anyone else about the situation, including Ms. Correale. The second time she got in the car she had her hands on the steering wheel, but Ms. Campbell did not see her drink or smoke.

[6] PC Joya-Lopez of the York Regional Police testified that he arrested Ms. Correale on January 30, 2015. That evening he got a call to go to 16655 Yonge Street in Newmarket, near Mulock, about a female in a car who was intoxicated. He went to the plaza looking for the store, and a Volvo with the licence plate AWFM 177 connected with the call. He saw the car after a few minutes. He saw a female coming out of a store carrying black garbage bags. He marked that moment as being 6:11 p.m. He drove to that location and came around to the spot of the Volvo. As he approached the vehicle he noticed brake lights on and Ms. Correale getting out of the driver's side of the car. He didn't see her get into the car, but he did see her get out of the front driver's seat. The garbage bags were in the rear seat. He said that the rear brake lights were on for about two seconds, and could not hear if the engine was running.

[7] PC Joya-Lopez asked Ms. Correale for her driver's licence and if she had been drinking. He detected an odour of an alcoholic beverage, and so was trying to determine if she was impaired. He described her as being not very focussed, but her speech was fair. He didn't know how she spoke normally. Her eyes were a bit glassy.

[8] PC Joya-Lopez decided to read an ASD demand, and went back to his car to get a book for that purpose. He noted that she had a cigarette in her mouth and told her that they would wait 15 minutes because of that. He told her not to put anything in her mouth. When he got to his car he noticed that she was reaching beside her for something on her seat. He went back to the car and asked what she was doing. Ms. Correale had a cigarette in her mouth and said she was looking for a lighter. Based on the totality of what he saw he then arrested her for impaired care and control of a motor vehicle. That was at 6:21. When she was placed in the police car he smelled a strong odour of an alcoholic beverage on her breath. He left the scene at 6:30 and went back to the station with Ms. Correale. At the station he noted that she had fair balance while walking within the station, which he described as being normal.

[9] PC Joya-Lopez said that wine was found in the car but was unsure if that was found by him or another officer, but he did see it.

[10] In cross-examination PC Joya-Lopez said that he did not see the vehicle move, or a white light turn on, such as the reverse lights. He did not see her get into the car, but he did see her get out of it. He estimated 30 seconds as the time from when he first saw Ms. Correale come out of the store to the time he was pulled up beside her car and she was getting out of it. He had no memory or notation about where the keys to the car were. He confirmed that he did speak to her about her going to a Christmas party. He also confirmed that she was wearing boots.

[11] Ms. Correale testified in her own defence. She is 51, and married with three grown children. She owns a hair salon across the street from the plaza she was arrested at. She lives about 10 minutes away. On January 30, 2015 she was going to a Christmas party at the Spiro restaurant in the same plaza as Plato's Closet. The restaurant reservations were for 7:00 p.m. In her evidence she said that she left work at about 3:45 that day, and went to Plato's Closet to take some clothes. She was going to see if they could be consigned, and if not they would be donated. She drove her Volvo there, which she had owned seven years by then.

[12] When she went inside Plato's Closet they were busy and she had to wait. She left and went to her car to have a cigarette. She also had a carton of wine in the car, and she drank from it. In her evidence if she drank wine in the car because she would not need to have it when she got to the restaurant. She could not say how much wine she drank in the car. She said in-chief that her keys were in her purse and she didn't take them out. She had a cigarette in the car. That visit to the Volvo lasted 20 minutes to a half an hour.

[13] When she got back to the store she learned that Plato's Closet would not take her clothes and she retrieved the two bags. She went back to her Volvo, and wanted to switch out of her boots to another pair in the foot well of the passenger seat. She said that she touched the brakes when she was hiking herself up to put her boots on, and this may have triggered the rear brake light.

[14] Ms. Correale was adamant that she had no intention to drive the vehicle. She was already where she wanted to be, and only needed to go 8 – 10 steps to reach her destination. She planned to get home by calling her husband. In-chief she put into evidence a restaurant receipt showing a meal for many people that night. The bill documented a tab of $341.83 and was generated at 9:50 pm.

[15] In cross-examination Ms. Correale said that she expected her staff of six to join her for the party at the restaurant and that she holds the Christmas party in January because it is just too busy in December. She said she had nothing to drink that day up to 3:45 p.m. Her plan was to get picked up at the restaurant at the end of the party. She identified the keys to her car in Court, which is a remote device. In order to start the car she puts the fob into a slot on the dash, pushes the brake, and then starts the car. When she went into Plato's closet she locked her car. She had sensible winter boots on at the time, and agreed that at the time she would have no reason to have an odour of alcoholic beverage on her breath, or any reason to have balance problems. When she returned to her car the first time she said that she didn't turn on the radio, or start the car. She admitted to having a cigarette, and sipping wine the whole time she was in the car. The wine carton was 1 liter and she was not sure how much of that she drank.

[16] She locked her car when she returned to Plato's Closet, but said she was not feeling the effects of alcohol. In her evidence she wasn't feeling drunk or intoxicated, and had no concerns about sobriety. She admitted to bringing two bags back to the car the second time with all of the clothes she hoped Plato's Closet would take. She unlocked the car with her remote, put the key back in the car and the bags in the backseat. Her plan was to take off her winter boots and put her dress shoes on. She got into the driver's seat to change her boots. Her keys were still in her purse. She said there was no reason to turn on her lights. She started to take off her boots and put her foot on the brake to hike herself up but never got the chance to change her boots because she saw the police car. At this point it was one hour before the party and her plan was to wait in the car, but not drink.

[17] Ms. Correale said that she did not anticipate drinking anything else at the restaurant when she got to the party. She expected to have a glass only. She admitted that her plan was possibly to drive herself home, but wasn't thinking about it. In her evidence she didn't plan to drink in her car, which was a stupid thing to do. She agreed with Ms. Hutchinson that she got to a level of intoxication that she didn't plan to, and if she drank in her car she would only have to buy one drink at the party.

[18] Ms. Correale was cross-examined about where her keys were at the time of her arrest. She struggled with that answer, but said that she could not recall where they were. She was then cross-examined on a statement she made while under arrest which was that her keys were in her hands or in her pocket. That utterance did not mention her purse.

[19] Ms. Correale denied having an odour of an alcoholic beverage on her breath, but admitted that when she went into the store the second time she was not intoxicated because she had then drank wine in the car, which was not planned.

[20] In re-examination she said she had no concerns about her sobriety the second time she got in the car because she wasn't driving anywhere. She said that when she gave the statement about the location of her keys to the police it was about the first time she got in her car, not the second time.

Issues

[21] Given the admissions by the defence, I identify two issues: 1. Has the Defence rebutted the presumption under s. 258(1)(a) that Ms. Correale was in care or control of her Volvo when she occupied the driver's seat; and 2. If the answer to that question is yes, has the Crown proven de facto Care or Control?

[22] Cast against this is the credibility of the witnesses, including Ms. Correale, which I will deal with as they impact on the legal issues. This is not a classic case of a contest of credibility.

Law

Issue 1 – the Presumption

[23] Section 258(1)(a) provides a presumption that an accused who occupies the driver's seat of a motor vehicle is in care or control of that vehicle. That presumption may be rebutted if the accused establishes on a balance of probabilities (see R. v. Smits 2012 ONCA 524 at para. 47) that they did not occupy that seat for the purpose of setting the vehicle in motion.

[24] In R. v. Whyte (1988), 42 C.C.C. (3d) 97, the Supreme Court considered the presumption of Care or Control. The Court noted at p. 115 that,

Parliament wished to discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion while at the same time providing a way for a person to avoid liability when there was a reason for entering the vehicle other than to set it in motion.

[25] Several years later, in R. v. Hatfield (1997), 33. O.R. (3d) 350 at paragraph 19 the Ontario Court of Appeal considered the argument that the relevant time to consider in s. 258(1)(a) is the time of arrest, and not the time of entry into the vehicle. That is not exactly the argument before me, but the Court did say that,

...where an intoxicated person is discovered occupying the driver's seat of a vehicle, the presumption will apply unless the person can demonstrate that his or her occupancy began without the purpose of setting the vehicle in motion.

[26] In the case before me, Ms. Correale has given evidence that she occupied the driver's seat of her Volvo not for the purpose of driving it, but merely waiting – first while her clothes were in the consignment store, and secondly while waiting for her party to start at a nearby restaurant. The test on this preliminary issue is on a balance of probabilities, and I would find that on that she has rebutted the presumption. The question then becomes, has the Crown proven beyond a reasonable doubt that Ms. Correale was in de facto or actual care or control of her Volvo when she was Impaired and Over 80 (see Smits, supra at para. 48).

[27] Where an accused who has displaced presumption of care or control the test to be met by the Crown was conveniently summarized by Brown RSJ sitting ad hoc in the Court of Appeal on Smits:

51 In R. v. Wren (2000), 144 C.C.C. (3d) 374 (Ont. C.A.), at para. 16, this court considered the prior jurisprudence, including Toews and other leading decisions from the Supreme Court of Canada and described the actus reus of the offence of care or control in this way:

[I]n order to establish care or control of a motor vehicle, the act or conduct of the accused in relation to that motor vehicle must be such that there is created a risk of danger, whether from putting the car in motion or in some other way.

52 While Wren makes it clear that proof of a risk of danger is a necessary ingredient to establish the actus reus of care or control, the more difficult question is what kind of risk of danger is sufficient for the Crown to establish care or control.

[28] The kind of risk required to establish care or control may involve a variety of factual pieces. In R. v. Szymanski, 88 M.V.R. (5th) 182, Durno J. listed many such indicia. As the Supreme Court of Canada found in R. v. Boudreault 2012 SCC 56,

50 The existence or not of a realistic risk of danger is a finding of fact: see R. v. Lockerby, 1999 NSCA 122, 180 N.S.R. (2d) 115 (N.S. C.A.), at para. 13; Smits, at para. 61. The trial judge must examine all of the relevant evidence to this end and may consider a number of factors: see e.g. R. v. Szymanski (2009), 88 M.V.R. (5th) 182 (Ont. S.C.J.).

[29] With this in mind I now consider the various factors outlined in Szymanski, recognizing that the list is not exhaustive.

a) The level of impairment. In this case Ms. Correale was admitted to be impaired in law. I will also not ignore that at 150 mg per cent of BAC her breath readings are approaching double the legal limit. That said, her physical indicia of impairment, while sufficient under the test of R. v. Stellato 1993 ONCA 3375, were not what I would find as being grossly apparent. This factor weighs against Ms. Correale.

b) Whether the keys were in the ignition or readily available to be placed in the ignition. In the case at Bar, Ms. Correale had her keys with her in her purse. There is an inconsistency in her evidence about her keys being in her hands or on her body, as she said to the Breath Technician, or in her purse as she said in evidence. I find that even if her viva voce evidence is to be believed on this issue, and I have concerns about the inconsistency between her evidence and her statement to the police, it amounts to an admission that she had her keys in her hand or her pocket, or her purse with her in her car, alone, while she was drinking wine. On the second visit to the car she had the keys with her again while she was alone in the car with a container of wine. I therefore find that this factor weighs more heavily against Ms. Correale.

c) Whether the vehicle was running. In this case it was not, and this weighs in favour Ms. Correale.

d) The location of the vehicle, whether it was on the side of a major highway or in a parking lot. Here the car was in a parking lot which is modestly in favour of Ms. Correale.

e) Whether the accused had reached his or her destination or if they were still required to travel to their destination. While the vehicle was indeed parked at the destination of the party, the party was not Ms. Correale's final destination that night, which was her home. This factor weighs against Ms. Correale.

f) The accused's disposition and attitude. While there is no evidence in this case of lack of cooperation post arrest, there is an abundance of evidence that Ms. Correale was exhibiting poor judgment. She admitted to this. Moreover, her poor judgement was in connection with one of the central issues at this trial, namely consumption of alcohol while seated in a motor vehicle. This factor weighs heavily against Ms. Correale.

g) Whether the accused drove the vehicle to the location of drinking. In this case she did, and this weighs somewhat against her.

h) Whether the accused started driving after drinking and pulled over to "sleep it off" or started out using the vehicle for purposes other than driving. If the accused drove while impaired it might show both continuing care or control, bad judgment regarding fitness to drive and willingness to break the law. In this case there is no evidence that Ms. Correale drove while impaired. This weighs in her favour.

i) Whether the accused had a plan to get home that did not involve driving while he or she was impaired or not over the legal limit. Here Ms. Correale testified, at least initially, that she had a plan to get home which involved her husband coming to pick her up. That said, in cross-examination she admitted that she might possibly have driven home. I had difficulty with her evidence in this regard. I find that she had not given up the idea of driving herself home from the party, and accordingly I weigh this factor against Ms. Correale.

j) Whether the accused had a stated intention to resume driving. In this case Ms. Correale did not, and this is in her favour.

k) Whether the accused was seated in the driver's seat regardless of the applicability of the presumption. In this case she was, which weighs against her.

l) Whether the accused was wearing his or her seatbelt. Ms. Correale was not, and this is in her favour.

m) Whether the accused failed to take advantage of alternate means of leaving the scene. This factor seems inapplicable given the facts before me.

n) Whether the accused had a cell phone with which to make other arrangements and failed to do so. In this case there is no evidence of a cell phone, but I am prepared to accept that the restaurant which hosted Ms. Correale's staff party would have had a phone with which to contact her husband. This weighs to her favour, albeit in a limited manner.

[30] To the above factors I add that the time difference between 6:11 when Ms. Correale got in her car, and when her party was to start at 7:00 p.m. requires examination. Ms. Correale had wine in her car, her keys, and about 45 minutes to spend before the party. She was a short drive away from her office, and only 10 minutes away from her home. I find that this portion of time is part of the factual matrix. It speaks to a risk that her conduct created a risk of danger because she had time to drive back to her office or home before the party.

[31] When the charge is care or control of a motor vehicle impaired by alcohol or Over 80, danger can be established by merely sitting in a stationary motor vehicle for a non-driving purpose either by unintentionally setting the vehicle in motion; by negligence; or by a change of mind by the accused. See R. v. Boudreault 2012 SCC 56, R. v. Balogun-Jabril 2016 ONCA 199 and Smits at para. 53. After considering the various factors above, I have no difficulty whatsoever in concluding Ms. Correale did indeed create a risk of danger through her bad judgement. I find that all three such risks outlined by the Court in Smits have been made out by the Crown. Ms. Correale is convicted of the Over 80 Charge and Impaired care or control. The Impaired Driving charge is stayed.

Released: July 25, 2016

Signed: "Justice David S. Rose"