Court File and Parties
Court File No.: Red Lake, ON 160016 Date: December 22, 2016 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Christian Timothy Leblanc
Before: Justice Peter T. Bishop
Heard on: November 28, 2016
Reasons for Judgment released on: December 22, 2016
Counsel:
- Bailey Rudnick, counsel for the Crown
- Danny Gunn, counsel for the defendant Christian Timothy Leblanc
BISHOP J.:
Charges
[1] Christian Leblanc stands charged on or about the 6th day of December, 2015 at the Municipality of Red Lake did have care and control of a motor vehicle while his ability was impaired by alcohol;
[2] And further; on or about the 6th day of December, 2015 at the Municipality of Red Lake did have care and control of a motor vehicle when his blood alcohol was greater than 80 milligrams of alcohol per 100 millilitres of blood.
Evidence of Joey Machura
[3] Constable Machura is an officer with the Ontario Provincial Police stationed in Red Lake, Ontario.
[4] On December 6, 2015 he was on general law enforcement with Provincial Constable Klug.
[5] They attended the parking lot of the Balmer Motor Hotel in Balmertown and observed a white SUV Volkswagen Tiguan parked in the midsection of the hotel.
[6] Constable Klug observed a passenger recognized as Brad Molloy getting into the passenger side, and a male getting into the driver's side with a fluid motion.
[7] Constable Machura commented that the individual getting into the driver's side looked "hammered".
[8] When they first passed the subject car there was no exhaust coming from the tailpipe.
[9] There were other people in the general area in the parking lot.
[10] The left turn signal was briefly activated and the brake lights came on momentarily as they swung their cruiser around.
[11] Constable Machura went to the driver's side and found the accused in the driver's seat. He was smoking a cigarette and his head was slouched forward.
[12] He raised his head, his movements were slow and there was loud music playing in the automobile and the accused tried to turn it down, or shut it off three times.
[13] Constable Machura opened the door and smelled an odour of alcohol emanating from the vehicle.
[14] Constable Machura asked how it was going and there was a slurred, slow response.
[15] At 2:19 a.m. Constable Machura formed the grounds for impaired care and control and arrested the accused.
[16] The passenger, Brad Molloy, shut off the vehicle.
[17] Upon exiting the motor vehicle Mr. Leblanc was very unsteady on his feet and the officer had to assist him as he was not coordinated. The ground was snow packed and hard covered.
[18] The accused stated that he was not drunk.
[19] At 2:20 a.m. the caution was read and the accused understood. The motor vehicle was not in gear but there was a slight decline in the Balmer Motor Hotel parking lot.
[20] Rights to counsel were read and understood and the accused did not wish to speak to a lawyer.
[21] The accused stated he was not driving, the vehicle was not running.
[22] The officer ascertained that the motor vehicle was registered to Debra Leblanc, the accused was handcuffed on the way to the detachment was speaking on his cell phone.
[23] The automobile was searched and the officer found an open bottle of Kraken rum behind the front passenger seat. A tow truck was called and the accused was transported to the Red Lake Ontario Provincial police station and arrived at 2:40 a.m.
[24] The accused was very cooperative and had slurred speech and was unsteady on his feet.
[25] The accused wanted to speak to his father, Chris Leblanc, and his father informed the officers that his son should call one of two lawyers including Danny Gunn.
[26] The accused talked to his lawyer in privacy and was handed over to the breath technician Constable Klug at 3:20 a.m.
[27] The first suitable breath sample was taken at 2:21 a.m. and the second at 3:01 a.m.
[28] At that time the accused was also charged with care and control over 80 milligrams of alcohol per 100 millilitres of blood.
Evidence in Cross Examination
[29] The officer did not know whether the motor vehicle had a push ignition or whether keys were required to start it.
[30] The passenger shut off the motor vehicle and the officer was not sure whether the emergency brake was on and was not sure whether the car was in park or neutral.
[31] He did not hear any shifting of gears out of park.
[32] The accused stated that he was going to go to his friends but did not indicate that he had an intention to drive.
[33] The officer did not know whether the accused had called a cab or not.
[34] The officer did not know who turned the vehicle on.
[35] It was obvious from his cross examination that there was fishing gear in the hatchback component of the vehicle and he did not recall whether there was any fishing gear in the back seat.
[36] The accused cooperated fully and understood and this officer did not tell the passenger to shut off the vehicle.
Evidence of Josh Klug
[37] Constable Klug has been an Ontario Provincial Police officer since April of 2012 and stationed in Red Lake since September, 2012.
[38] He is also a qualified breathalyzer technician and has been requalified every year.
[39] At 2:18 a.m. he and Constable Machura pulled into the Balmer parking lot and saw some male individuals outside the vehicle.
[40] He also observed an individual who appeared to be "hammered" get in the driver's seat.
[41] At that time exhaust was coming out of the vehicle and the tail lights came on momentarily. There were other vehicles parked nearby.
[42] He identified the accused, Christian Leblanc, as being in the driver's seat and was smoking a cigarette.
[43] He stated that the lights flickered on and off and he could hear loud music coming from the vehicle.
[44] He observed the accused attempt to turn the radio volume down in the car and appeared slow and lethargic.
[45] The accused had red, glossy eyes and it was hard to see the whites of his eyes.
[46] At 2:19 a.m. he was placed under arrest for impaired care and control and he swayed towards both officers and this officer had to brace him so he would not fall as he was swaying back and forth.
[47] The temperature was one degree Celsius and there was a hard snow packed surface.
[48] The accused was handcuffed to the front and stated he was not drunk although his speech was slurred and he insisted that the motor vehicle was not running.
[49] The passenger, Brad Molloy, removed the keys from the ignition and Mr. Molloy walked with the accused and other people in the parking lot.
[50] Some other individuals wanted to talk to the officer because it was not long after the bar closed.
[51] The passenger, Brad Molloy, had been consuming alcohol but was not intoxicated.
[52] The accused was taken to the Red Lake Ontario Provincial police station and suitable samples were taken at 3:31 a.m. reading 227 milligrams of alcohol per 100 millilitres of blood and at 3:53 a.m. 221 milligrams of alcohol per 100 millilitres of blood.
[53] The court viewed the video of the accused in the breath room.
[54] On many occasions the accused stated that he was not planning on driving and he entered the car to get his phone charger, he also stated that Northern Waterworks, his employer, would pay a cab and that the keys were in his pocket. He repeated again that he was not going to drive and the last beer was just before he left.
Evidence in Cross Examination
[55] The officer confirmed that the accused stated many times he was not going to drive and that Brad Molloy reached over for the key and he shut it off.
[56] The officer made no notation of the accused's phone charger being in the vehicle and had no idea what was in the glove compartment.
[57] He observed Mr. Leblanc for approximately 60 seconds before he was arrested. The time that lapsed from the time they first drove past the vehicle when it was not running was 10 to 15 seconds.
[58] The turn signal light was like a flash like someone hit the lever for the lights, and when the brake was touched it illuminated for approximately for 1 second.
[59] The vehicle was in park when he saw it and he did not know whether the emergency brake was engaged.
Evidence of Michael Desmeules
[60] Mr. Desmeules is the owner/operator of Red Lake taxi and he confirmed that he received a telephone call from the accused to come and pick him up at the Balmer Motor Hotel at approximately 1:30 a.m.
[61] Mr. Desmeules had another fare going to the Rubicon camp and he told Mr. Leblanc that he would be there in approximately 15 minutes.
[62] When Mr. Desmeules arrived at Rubicon he had a tire that needed to be fixed and he spent time at Rubicon getting it repaired. He travelled to the Balmer Hotel at approximately 3:00 a.m. but there was no sign of Mr. Leblanc.
[63] Mr. Desmeules confirmed that the accused's employer and father had an account for Northern Waterworks because there was a policy of don't drink and drive.
Evidence of Christian Timothy Leblanc
[64] Mr. Leblanc is 22 years of age and works for Northern Waterworks and has never been charged before.
[65] He viewed the video which was accurate and intoxicated and he was embarrassed by his degree of drunkenness.
[66] He confirmed that he attended at the Balmer Motor Hotel to party and he and his friends were going fishing the next morning.
[67] He called a cab and waited and waited. He went to the car to get his phone charger and other equipment and then got in. He recollects giving the car keys to Brad Molloy before commencing drinking and did not put the key in the ignition.
[68] At approximately the same time, the police came by and arrested him.
[69] He complied completely with all of the officer's requests.
[70] He stated that he had no intention to set the vehicle in motion and most of his belongings which he wished to retrieve, gloves, keys and phone charger were on that side of the motor vehicle.
[71] He stated that it was possible that his foot hit the brake as he entered the vehicle but in order to put the car in gear the operator has to press the button then move the gear shift down and take the parking brake off.
Evidence in Cross Examination
[72] If the taxi did not come he was planning on walking to his friend's place in Balmertown.
[73] He estimates that he accidentally hit the brake lever and signal light. It was no more than a minute before the police came.
[74] His friend, Brad Molloy, told him the next day that he (Molloy) started the motor vehicle.
[75] He stated that he gave the car key to Mr. Molloy when he was sober when he first arrived at the Balmer.
[76] He can't speak for Mr. Molloy, but assumed that he was listening to music and warming up as the bar had closed.
[77] The phone charger which he wished to retrieve was in the center console and both doors were closed.
[78] He did not try and call another cab but had an alternate plan to walk to his friend's place. He estimates that he had 15 drinks over his stay of 2 ½ to 3 hours at the Balmer Motor Hotel.
Position of the Defense
[79] The defense relies upon R v. Boudreault, 2012 SCC 56 and refers to paragraph 33 which states:
"In this light, I think it helpful to set out once again the essential elements of 'care or control' under Section 253 (1) of the Criminal Code in this way:
an intentional course of conduct associated with a motor vehicle;
by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;
in circumstances that create a realistic risk of danger to persons or property."
[80] The defense submits that the accused has rebutted the presumption found in Section 258 of the Criminal Code and that the accused's intention could create a danger but in the absence of a realistic danger the accused must be acquitted.
[81] The defense relies on the fact that the motor vehicle was not in a dangerous location like an intersection but rather in a parking lot.
[82] Further, the accused may change his mind, but he was willing to wait for a cab so he could get his possessions. His placement behind the driver's seat was very short lived, approximately 1 minute and he had an alternate plan if the taxi did not arrive which was to walk to his friend's place.
[83] As well, the indicia of care of control that the Crown is relying upon are really a touch of the turn signal and a flick of the brake lights.
[84] In these circumstances, the evidence of the accused is that he had a realistic plan, he had called a cab, did not start the vehicle, nor did he turn it off.
Position of the Crown
[85] The Crown relies upon the presumption found in Section 258 of the Criminal Code and emphasizes paragraph 33 of the Boudreault decision.
[86] The Crown submits that on a balance of probabilities, the accused has not rebutted the presumption and the evidence related to his friend Brad Molloy is hearsay and inadmissible.
[87] From viewing the video it is obvious that the accused was extremely intoxicated.
Decision
[88] Having reviewed all of the evidence I am finding that the accused has rebutted the presumption found in Section 258 (1) of the Criminal Code. I must now turn my attention to whether or not the accused had actual care and control as in R v. Bulmer, [2000] O.J. No. 4418, 49 W.C.B. (2d) 57.
[89] I note that Bulmer was decided before Boudreault and I am finding that the accused did not have actual care and control of the motor vehicle for the following reasons:
The momentary touching of the signal light and brake light did not create a realistic risk or danger to persons or property. There is simply no evidence of that before the court.
The accused was extremely intoxicated but had the foresight to give his keys to Mr. Molloy when he was in a sober state before entering the Balmer Motor Hotel and commencing drinking.
He had an alternate plan, and through his employer at no cost to himself and his own volition called a cab to pick him up. He entered the motor vehicle to retrieve his cell phone charger and after the cab failed to appear planned to walk to Brad Molloy's residence and stay the night and go ice fishing the next day.
I am finding there were no active steps to operate the motor vehicle and have care and control of this vehicle and therefore there is no realistic risk or danger to persons or property as the police intervened in less than a minute of his entering the vehicle for a purpose which is not illegal.
[90] In all of the circumstances, a not guilty verdict will enter on both charges.
Released: December 22, 2016
Signed: "Justice Peter T. Bishop"