Court Information

Ontario Court of Justice

Date: April 6, 2017

Court File No.: Central East Region (Oshawa)

Parties

Between:

Her Majesty the Queen

— AND —

Jeremy Goodwin

Judicial Officer and Counsel

Before: Justice F. Javed

Heard on: November 14, 18, 25, 2016, February 16, 2017

Reasons for Judgment released on: April 6, 2017

Counsel:

• J. O'Connor — counsel for the Crown
• A. Risen — counsel for the defendant Jeremy Goodwin

Reasons for Judgment

Introduction

[1] Jeremy Goodwin is charged with the offences of being in care and control of a motor vehicle while being impaired by alcohol and "over 80" mgs., contrary to section 253(1)(a) and (b) respectively of the Criminal Code.

[2] Mr. Goodwin was found asleep behind the wheel of his motor vehicle. His position is that he had no intention of operating his vehicle as he couldn't get into his girlfriend's apartment.

[3] The evidentiary record is interesting because the Crown relies, in large part, on Mr. Goodwin's utterances to the police shortly after he was roused from his sleep, which in part, is inconsistent with his position at trial.

[4] Mr. Goodwin testified in his defence, disavowing much of his statements to the breath technician as being largely "drunken babble". He also called his girlfriend, Sjona Ramos, employer, Yvette Chang and a friend with whom he drank alcohol, James Mullen, to support his position that despite his "babble", he did not intend to drive on the night in question.

[5] I propose to review some background facts which are largely non controversial. I will then consider the various routes to a conviction by assessing whether Mr. Goodwin has rebutted the presumption of care and control and then consider whether his actions created a real risk to the public.

The Background Facts

[6] On November 6, 2015, Mr. Clinton Proulx was awakened in the middle of the night by the loud noise of a car horn outside his home. He looked outside his window and saw a van. He became concerned and went outside to investigate. He went to the driver's side window of the Toyota mini-van and found Mr. Goodwin's head going back and forth, hitting the horn of his car. It should be noted that the vehicle in question had been retrofitted with the driver's console in what would typically be the passenger side. The car doors were closed and it appeared that the sole occupant was asleep. In fact, he knocked on the window, rousing Mr. Goodwin who then passed out again. He knocked on the window again – with no response. He thought that perhaps the occupant was drunk so he called the police.

[7] Cst. Dave Morrison of the Durham Regional Police Service (DRPS) was the first responder. He arrived on scene at 1:32 am. He knocked a few times on the driver's side door with no response. Mr. Goodwin was slouched over the wheel, asleep. He was not responsive, which is to say he wasn't moving his arms or legs nor was he touching anything.

[8] He opened the driver's side door, which was not locked. He discovered Mr. Goodwin slouched over the wheel without a seatbelt. He tapped Mr. Goodwin on the leg, which appeared to rouse him. He noticed that he had snot coming down his nose and there was the smell of alcohol from within the vehicle. The keys were in the ignition. In addition, a cell phone appeared to be charging in the dashboard. He took out the keys from the ignition and turned the power off.

[9] He asked Mr. Goodwin if he had been drinking alcohol. He appeared confused and mumbled something in response. It was clear to him that he was not in a position to give a reliable statement. He asked him for his driver's license which lead to him fumbling in a bag next to him on the passenger seat. He was able to produce two driver's licenses.

[10] Cst. Saina Saedi Kendelati of the DRPS arrived on scene and took over the investigation. At the time, she had been a police officer for 7 months. Upon arriving on scene at 1:43 am, she noticed Mr. Goodwin's car parked on the west side of James St. in Oshawa. She didn't note whether his vehicle was parked within the designated lanes or not.

[11] Cst. Bagg of the DRPS who had also arrived on scene, testified that it was on a slight angle but still within the painted lines. The vehicle was full of tools and appeared to be a trade vehicle. He stated that Mr. Goodwin admitted consuming some beers after work and had "just" moved his car as his girlfriend told him to move it. He gestured around the corner. In his view, he was not a reliable historian given his state.

[12] Cst. Kendelati tried to speak with Mr. Goodwin. He was incoherent and didn't appear to know his current address. He reeked of alcohol.

[13] At 1:46 am she formed grounds that he was impaired by alcohol while in care or control of a motor vehicle so she arrested him.

[14] As he exited his vehicle, she noted that he was unsteady on his feet. She read him rights to counsel and caution prompting a response: "right now, yeah, I was coming here to park off the road, that's it". When asked if he wanted to call a lawyer, he said: "want to call girlfriend, went downtown to Sally Ann's, that's it". Mr. Risen concedes the voluntariness of these utterances.

[15] At 1:59 am, she read him the breath demand, which he appeared to understand.

[16] At 2:00 am, he was transported to 17 division. During the transport, Mr. Goodwin was "up and down" and "very angry". He became belligerent and threatened to urinate in the cruiser if he didn't get a bathroom. According to her, he was not respectful which she attributed to his intoxicated state. Ultimately, she transferred the handcuffs from the front to the rear. He was then turned over to Cst. Ryan Shaw.

[17] Cst. Shaw is a qualified breath technician. He received Mr. Goodwin at 2:43 am and commenced his breath testing procedures. There's no issue in this case with the reliability of the breath instrument or the results. He explained that Mr. Goodwin was "very repetitive" and had a moderate odour of alcohol on his breath. His face was flushed and his language was abusive. He was belching, crying and getting emotional during the process.

[18] The entire ordeal is captured on video, which was tendered as exhibit 2. The breath testing also resulted in Mr. Goodwin making a statement to the police, which Mr. Risen doesn't take issue with. He concedes it was voluntary, notwithstanding his client's intoxicated state. I will review this in detail below in light of Mr. Goodwin's position about the events leading up to his arrest.

[19] Ultimately, Mr. Goodwin provided two samples of his breath in excess of the legal limit. They were: 218 and 198 mgs., respectively, in 100 mls. of blood.

[20] Mr. Goodwin was released from the police station in the morning. His vehicle was towed to a pound. No belongings, including his cell phone were removed prior to the tow.

Overview of the Positions of the Parties

[21] Mr. Risen submitted that Mr. Goodwin has successfully rebutted the presumption of care and control as his trial evidence should leave the court with reasonable doubt as to his intention at the time and further, actual or de facto care or control has not been proven. He points to the lack of any realistic risk of putting the vehicle in motion given that Mr. Goodwin was sleeping. He submits that Mr. Goodwin was so drunk when he gave the statement to the police that his statement should be afforded little or no weight.

[22] Ms. O'Connor submits that the presumption in section 258 of the Criminal Code has not been rebutted and in any event, de facto care or control has been proven. Mr. Goodwin's admitted level of intoxication is clear evidence of his ability at the time, to create a real danger. In other words, if Mr. Goodwin was so drunk at the time, then arguably the risk of putting the vehicle in motion can't be ruled out. Finally, she submits that there is also evidence that he could have changed his mind and driven once he sobered up.

[23] Unlike many other drinking and driving cases, the resolution of this case does not hinge on any constitutional issues but rather on credibility findings as to Mr. Goodwin's proven intention at the time.

Analysis

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

[25] Ms. O'Connor relies on the second and third routes to ground a conviction as Mr. Goodwin was not found driving his vehicle. There is no dispute about the application of the rebuttable presumption in section 258(1)(a). Instead, the debate is whether it's been rebutted.

(i) The rebuttable presumption in section 258(1)(a)

[26] Section 258(1)(a) of the Criminal Code provides an evidentiary shortcut to prosecutors to prove that a defendant was in care or control of a motor vehicle if he is found in the driver's seat of the vehicle. Here, Mr. Goodwin was found asleep behind the wheel, which creates a legal presumption that he was in care or control of the vehicle. This presumption can be rebutted by Mr. Goodwin, on a balance of probabilities, that he did not occupy the driver's seat for the purpose of setting the vehicle in motion.

[27] In R. v. Tharumakulasingam, [2016] O.J. No. 1575 (SCJ) Mr. Justice Code discussed the appropriate time frame to consider when assessing one's intention. He wrote:

The relevant time frame for any rebutting evidence concerning an accused's intention to drive is the point when the accused entered the driver's seat, that is, he "must show that his occupancy began without the purpose of setting the vehicle in motion" [emphasis added] See: R. v. Hatfield, 115 C.C.C. (3d) 47.

[28] In that case, Justice Code went on to note that a defendant's intention could change, thus grounding liability. For example, an accused who initially entered the vehicle with no intention to drive, could change his mind. If there is evidence of such circumstances, this too can ground liability. In this case, Mr. Goodwin testified that he never had an intention to drive once he entered the van after the bar. I would have to reject his trial evidence and draw reasonable inferences from his comments to the police in order to find him guilty.

[29] The change of mind and/or continuing care of control principle is not easy to articulate but at its core, hinges on specific findings of fact. It is a contextual exercise. In Tharumakulasingam, Justice Code said:

Given that the Appellant had clearly been driving the car immediately before the accident, and had therefore initially taken up his position in the driver's seat for that purpose, the only way to rebut the presumption in this case was to prove that his intention to drive had changed after the accident and before the police arrived at the scene and found him still sitting in the driver's seat with the engine running and with the lights on. See: R. v. Wren, 144 C.C.C. (3d) 374; R. v. Milne, 2012 ONSC 5779 at para. 23. Since no defence evidence was called, any proof of a change of intention by the Appellant would have to arise by inference from the admitted facts concerning the state of the car and the state of the accused after the accident (the car was severely damaged and the Appellant was effectively pinned in the driver's seat and, once the arresting officers arrived at the scene, he was trying to get out of the car).

[30] Against this backdrop, Ms. O'Connor relies on Mr. Goodwin's comments to the police on the night of the incident to argue that he hasn't rebutted the presumption in at least two ways. First, the court should reject his trial evidence and conclude that he drove to the bar while intoxicated. Alternatively, even if this is not accepted, by virtue of his comments to the police, he intended to change his mind about not driving as he would have driven to work or his old address, while intoxicated. Independent of this, it is argued his location and state at the time he was investigated, created a realistic risk of putting the vehicle in motion.

[31] To place this submission in context, I must make findings of fact related to Mr. Goodwin's intention at the time he entered the driver's seat of the van. There is some disagreement about when or how many times he did so. This exercise will require me to make credibility findings about his evidence along with the evidence as a whole to determine whether I am left in doubt on this issue. Clearly, I can accept some, all or none of the evidence. I am guided by the three-part test in D.W. v. the Queen, 63 C.C.C. (3d) 397. Moreover, as the Court of Appeal made it clear in R. v. B.D., [2001] O.J. No. 198 (CA) at para. 114: "the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favorable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt: Challice".

[32] I now turn to my assessment of the evidence.

(a) Background

[33] Mr. Goodwin is 38 years old. At the time of the incident, he was employed by Ms. Yvette Chang as a bricklayer. As part of his duties, he drove a company van. It had been retrofitted with the steering wheel on the passenger side. The vehicle contained all her tools.

[34] On the night of the arrest, he came home from work at 8:00 pm. He had not consumed any alcohol. He parked the vehicle immediately outside the building in an unauthorized parking spot. He was reluctant to park elsewhere as he wanted to keep an eye on the van, which had his employers' tools.

(b) Entry into the building

[35] Mr. Goodwin had previously lived at 357 Cadillac Ave. in Oshawa, but at the time of the incident, was staying with Ms. Ramos at 249 Drew St. in Oshawa. Her apartment was on the 3rd floor. Ms. Ramos had recently moved into the building. Mr. Goodwin had a key to enter the apartment but didn't have a key fob to gain access inside the building, past the front vestibule. In the previous 5 days, he would gain entry by calling her on her cell phone and she would let him in. The intercom also had a buzz code to Ms. Ramos' apartment but unbeknownst to him, it had been incorrectly programmed.

[36] Ms. Ramos was called by the defence and confirmed this account. She does not have a criminal record. She testified that Mr. Goodwin had moved in with her on November 1, 2015, some 5 days before the incident. Mr. Goodwin didn't have his own key fob and relied on her to get in. Exhibit 3 is a letter from Mordini Management, which confirms that the 'buzzer issue' was corrected on November 16, 2015. It had been programmed incorrectly with the wrong digits of her cell phone thus on the date in question, her unit could not be accessed by a buzz code. Importantly, Mr. Goodwin did not know this.

(c) The initial consumption of alcohol & moving the van

[37] Mr. Goodwin and Ms. Ramos had dinner together. They both had a beer with their meal. He stated that he was not intoxicated. I accept this account as it was confirmed by Ms. Ramos, who said she was sure he only had 1 beer in her presence and was not drunk when he got home.

[38] Ms. Ramos wanted Mr. Goodwin to take some items to the Sally Ann. He didn't want to as he had a long day at work, which resulted in an argument. The two went outside for a cigarette, when Ms. Ramos noticed his parking spot and told him to move the vehicle to an off site to avoid a parking ticket. He testified that he didn't want to but relented and went to move the vehicle to James St., which is nearby. Importantly, Ms. Ramos said she saw Mr. Goodwin move the car towards James St. I accept this.

[39] On the whole of the evidence, I accept Mr. Goodwin's account of moving the vehicle to the off site parking lot. While I have some reservations about his account that he did so without objection, I am prepared to accept he did so.

(d) The attendance at the bar & alcohol consumption

[40] Instead of returning back to the apartment, Mr. Goodwin testified that he decided to call his friend Jimmy (James Mullen) and invited him to a local bar, The Atria on King St. in Oshawa. Jimmy agreed to meet him. He denied driving to the bar and instead, walked over, as he wanted to drink alcohol and didn't want to drive home. I accept this account as there's no evidence that the van was moved from the initial location on James St. As I will discuss below, Mr. James Mullen also testified and said they walked home from the bar.

[41] The bar was in walking distance to Ms. Ramos' apartment. They had frequented the bar together in the past. Moreover, Mr. Goodwin stated that his plan was to return to the apartment as he had to work the next morning. Once he made his plans with Mr. Mullen, he didn't bother calling or notifying Ms. Ramos as he was "annoyed" with her. He retrieved some money from his backpack, which he left in the van and walked to the bar. He added that he left his wallet in the backpack as well, which contained his driver's license.

[42] He arrived at the bar between 9-9:30 pm. He immediately began to drink alcohol, which included shots of whiskey and beer. Eventually, his friend Mr. Mullen joined him. The two drank alcohol together and stayed for approximately 3 hours, playing pool. Ms. Ramos called and texted him but he ignored both. Ms. Ramos estimated making approximately 30 attempts to contact him, all without success. She became "very angry" but ultimately went to bed. Mr. Goodwin estimated that at 10:30 pm, the battery in his cell phone died.

[43] Mr. Mullen has known Mr. Goodwin for 8 years. They work in the same industry and are good friends. He confirmed much of Mr. Goodwin's account. In particular, he testified that Mr. Goodwin called him to meet at the Atria. He walked over which took him 10-15 minutes. When he arrived, it appeared that Mr. Goodwin had already been there as it looked like "he had a few". They played pool and drank beer and had shots of whiskey. He couldn't say specifically how much Mr. Goodwin drank although estimated that he himself drank 5 pints of Guinness beer over 3.5 hours and Mr. Goodwin was "lapping him" or having 2 drinks for every drink he had. Overall, Mr. Goodwin would have had 10 pints of beer along with shots of whiskey. He was more drunk than usual. This conflicts with Mr. Goodwin's recollection, which was roughly 3 beers and 3 shots. I'm prepared to accept Mr. Mullen's account over Mr. Goodwin's given Mr. Mullen's less inebriated state at the time.

(e) Leaving the bar

[44] They left the bar together around 12:30 am. Mr. Goodwin was "staggering a bit". It did not appear to him that he was completely inebriated. They walked eastbound together for 3 blocks. Mr. Mullen went south to his home and Mr. Goodwin proceeded eastbound. After parting ways, he didn't see where he went.

[45] In cross-examination, Mr. Mullen added that he couldn't recall what they talked about at the bar or what if anything Mr. Goodwin did with his cell phone. He was not concerned that he would drive nor did he see him around a vehicle after they left.

(f) Entering the van

[46] Mr. Goodwin testified that he walked to Ms. Ramos' apartment. It would appear that the route taken would involve passing the van, which was parked on James St. There's no evidence that he entered the van at that time, although Ms. O'Connor submits I can conclude as such based on his later comments to the police. I will deal with that submission below.

[47] He testified that he tried to buzz Ms. Ramos' unit but kept getting a busy signal. Again, he didn't know the buzz code was not working at the time. I have some concerns about this aspect of his evidence as it is somewhat inconsistent. He claimed to have a poor recollection, which doesn't explain why he would know it wasn't working. In any event, this is not a vital inconsistency. He stated that he became frustrated and he tried to throw stones at her window with no success. Since his cell phone was dead, he decided to walk back to the van on James St. and charge it. He said his plan was to charge the phone then call Ms. Ramos to let him in. He was unsure how much time it would take, possibly 5-15 minutes or until the green arrow on his phone lit up. He proceeded to James St. as he vaguely recalled where it was.

[48] He entered the driver's side and started the engine to get power. There's no evidence as to whether the auxiliary power alone would have been enough to get power to charge the phone. He didn't recall adjusting any fittings including the temperature or radio. He started to charge the phone. Some time later, he was awakened by the police.

[49] As expected, Mr. Goodwin was vigorously cross-examined on his position. He stated that the gearshift in the van was on the floorboard, in between the driver and passenger seats. It would require one to step on the brake, squeeze the gearshift and manually move it. He never attempted to do so. I accept this account.

[50] As for his utterances to the police, he could not recall most them as he was very confused. He did not deny making them. He explained he didn't know why he said certain things to the police as they were false and he must have been "out of it". The timeline was incorrect and other comments were objectively wrong. I have reviewed the statement and for the most part, agree with this assessment. In particular, he told Cst. Shaw the following details, which contradicted with his trial evidence and the evidence of other defence witnesses, which I have accepted:

He started by saying:

I went to the bar and had a few beers. I went home. She's like – I sat at home with her.

I had two more beers. She said can you, please move the car? I said yes. I did. Fucking – and …

Later on, he said:

I went from the parking lot to there. I sat there. I had a cigarette. I phoned an ex-girlfriend. Don't tell my new girlfriend there. If you told her – huh. Then you guys showed up. I drank at the house. It's not I was out drinking and fucking driving.

A while later, he said:

We went outside and had a cigarette together. She's like there's going to be somebody that says something about that, why don't you park it over at the lot by the park? I said sure. Here I am.

And finally, he said:

I went one block down and one block over, backed it in. You guys showed up. Actually, I didn't back it in. I pulled in forward. I was about to back up and I seen flashing lights. I drank at home. I drank at the bar. I had one beer at the bar. I got home. She said can you take this shit to the Sally Ann? I said sure, put it in the van. Regardless of what this says, I wasn't out on the streets driving.

Some of these details are internally inconsistent. For example, he earlier said he had a few beers at the bar, then said one beer. Mr. Mullen said he had many beers at the bar. It would appear that he was confused about the timing of the events which I would attribute to his inebriated state, not him being dishonest. Ms. Ramos confirmed he had a beer with dinner and then went for a cigarette with him and told him to move the car. In his last comment, he said this request was after he came back from the bar. I have accepted Ms. Ramos' account, making his explanation false. Moreover, his comment "I was about to back up and saw flashing lights" is also objectively false because independent witnesses roused him from his sleep. There's no evidence of any flashing lights. Viewed as a whole, his account was unreliable when measured against Ms. Ramos and Mr. Mullen. Moreover, his comment to Cst. Bagg that he "just" moved the car has to be assessed in the context when he made it. He was roused from his sleep and I accept he was confused. He was incorrect with his use of the word "just". For me to accept this timing, I would have to reject the evidence of Ms. Ramos, which I am not prepared to do. She was a credible witness.

(g) The aftermath and attendance at the tow yard

[51] Ms. Ramos was awakened at 6:30 am, by Mr. Goodwin throwing rocks at her window. Surprised and upset at his whereabouts, she asked him what happened. This prompted an explanation, which is arguably a prior consistent statement and thus hearsay. After some discussion with the parties, it was agreed that it would be admissible to rebut any allegation of recent fabrication. Mr. Goodwin told Ms. Ramos that after he parked the car, he walked to the Atria with his friend Jimmy. When he tried to come back home, he had no way to get in and his phone was dead. He went to charge the phone and fell asleep. He was awakened by the police and arrested.

[52] Ms. Ramos added that Mr. Goodwin was adamant in his explanation and added that the cell phone would be in the vehicle, proving his story. She was somewhat reluctant but ultimately agreed to accompany him to the tow yard.

[53] Ms. Ramos drove Mr. Goodwin to work around noon. He explained the above circumstances to Ms. Chang and asked her to accompany them to the tow yard to retrieve her company van. She agreed.

[54] Ms. Chang was also called to testify. She considered Mr. Goodwin a friend. She confirmed that Mr. Goodwin was employed by her and at the time, drove her company van, which had her tools. He was scheduled to work at 9-9:30 a.m. He was a responsible employee and was tasked with opening the job site for other workers. On the date in question, he didn't show up on time.

[55] She drove to the tow yard with Ms. Ramos and Mr. Goodwin following in their vehicle. Upon arriving, Mr. Goodwin opened the passenger door and she observed a cell phone still plugged into the dashboard. She testified that Ms. Ramos also exited her car and walked to the van with Mr. Goodwin. When Mr. Goodwin opened the passenger door, she saw the cell phone plugged in. Ms. Ramos was not far behind. Ms. Ramos testified that she too saw the phone plugged in, a position she was challenged on in cross-examination. I accept her evidence which is corroborated by Ms. Chang. The parties removed some tools and ultimately were allowed to move the vehicle.

[56] Mr. Goodwin testified that he did not take or consume any alcohol in the van after the bar. I accept this account. Neither Ms. Chang or Ms. Ramos saw any open or closed alcohol in the van in the tow yard. I would think an inventory search would have revealed same. It did not.

[57] In cross-examination, it was also elicited from Ms. Chang that at the tow yard, Mr. Goodwin explained to her that he had been out the night before with some friends and had a "few beers". Moreover, he "walked there and back". While also hearsay, it remains admissible for the same purpose, namely, to rebut an allegation of recent fabrication.

[58] Ms. O'Connor also asked about the vehicle. Specifically, Ms. Chang testified that the gear shift in the van was a "side stick" on the steering column. This is not entirely consistent with Mr. Goodwin who said it was in the floorboard but understandable as she didn't drive it. In any event, I can reasonably infer from this that the gear shift would require some use of force to manually move it into the various modes, including reverse and drive.

(ii) Conclusion on the presumption

[59] Based on the whole of the evidence, I am satisfied that Mr. Goodwin has met his onus to displace the rebuttable presumption. That is, I have concluded that he entered the van after attending at the bar to charge his phone and not drive the vehicle or put it in motion.

[60] I have carefully assessed Ms. O'Connor's submissions along with the comments of Mr. Goodwin to the police on the night in question along with his evidence of the defence witnesses. I have done so after reviewing the videotape of the breath testing to assess his state. Mr. Goodwin was heavily intoxicated and bore the hallmarks of being an unreliable historian. I have considered that not all of his comments were false but when viewed as a whole, they were internally inconsistent. It would have been different if he maintained the same story throughout which would have made it more reliable. That was not the case. He was patently wrong about objective facts, unusually emotional, unnecessarily belligerent while being crass in front of a police officer and simply unable to appreciate the context of his situation. He rambled and simply couldn't stop talking – even when not asked. Most if not all his comments to the police are inherently unreliable and merit little or no weight.

[61] I agree with Mr. Risen that the circumstances leading to Mr. Goodwin finding himself behind the wheel of his van were so unique and bizarre, that it defies common sense that he would have successfully fabricated the story at trial. I have been careful to not improperly use his prior consistent statements to Ms. Ramos, Ms. Chang and later on to Mr. Mullen to bolster the credibility of his account. See R. v. Dinardo, 2008 SCC 24 at para. 40. However, recently, the Ontario Court of Appeal in R. v. Khan, 2017 ONCA 114 commented that a prior consistent statement can be admissible in circumstances in which it can assist a trier of fact in evaluating the context in which an initial complaint arose, including the fact, timing and spontaneous nature of that complaint. If the statement speaks to the timing of events and emotional state at the time, it can be admitted to assist a trier of fact in evaluating the credibility of a witness. This goes beyond the fact that it was previously stated which would have no probative value.

[62] In my view, Mr. Goodwin's actions the morning of the arrest vis a vis Ms. Ramos and Ms. Chang make it more unlikely that he spun an intricate story that he didn't have an intention to drive. I have no reason to disbelieve or be left in doubt about his trial evidence that he entered the van solely for the purpose of charging his cell phone, which had died. Too many coincidences would have to fall into place to make the story believable. I find that he has rebutted the presumption and furthermore, never changed that intention once he entered the van. His comments to the police suggesting otherwise were inherently unreliable thus must be rejected. Nor am I prepared to conclude that it's the only reasonable inference that arises out of his comments. He said he had to get to work, which doesn't mean that he entered the van to sleep it off and then drive to work. Ms. Ramos expected him home and I accept that his plan was to walk home, sleep, get ready and then go to work, all while not impaired. I cannot speculate as to his state when he would have entered the van if he was able to get home as planned.

[63] As noted above, Mr. Goodwin was confused about the circumstances of the events preceding the arrest, which were contradicted by his own witnesses. It is not unreasonable to conclude that a person who is so inebriated would lose his ability to perceive, recall and recount details including timing. His repeated assertion that he "just moved the car" makes no sense at all and must be rejected as "drunken babble". Once he entered the van, he likely immediately fell asleep and given the efforts it took to rouse him, was probably in a deep sleep.

[64] In short, the presumption has been rebutted, however, this does not end the analysis.

(iii) Has the Crown proven de facto care or control?

[65] If the presumption in section 258(1)(a) has been rebutted, the Crown can still prove care or control by establishing that the defendants actions created a realistic risk of danger. The jurisprudence is clear that the risk of danger must be realistic and not just theoretically possible. However, it need not be probable, significant or even substantial: R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 at paras. 34-35; R. v. Smits, supra at para. 60.

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

42 In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

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

[68] Mr. Risen submits that there was no "real risk" of creating any danger. Mr. Goodwin was asleep and any risk of danger was too speculative.

[69] Ms. O'Connor disagrees submitting that Mr. Goodwin's position in the car created a real risk of danger. She adds that the court would have to be convinced to the requisite standard that Mr. Goodwin was so inebriated that he didn't know what he was doing or saying to the police and thus couldn't reasonably create a risk of danger.

[70] There is some appeal to the Crown position, especially in light of the fact that Mr. Goodwin was behind the wheel, with the engine running and in close proximity to the fittings of the vehicle, including the horn. However, a fulsome analysis of all the factors to be applied, including those enunciated in Szymanski, may point to a different direction.

[71] These factors, applied to this case are as follows:

a) The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive:

As noted above, I find that Mr. Goodwin was heavily inebriated after consuming at least 10 beers and shots of whiskey in the preceding 3.5 hours before he entered the van. In my view, it would have taken a lot of time for him to sober up and make a rational decision to drive. This factor is tempered by the fact that he was in a deep sleep at the time he was investigated. In other words, he wasn't simply waiting to sober up in his van, instead, he was fast asleep. This invariably means he couldn't exercise any judgment at all because he was passed out. The only evidence as to how the horn was being activated is by Mr. Proulx who saw him slouched over the wheel with his head hitting the horn. There's no evidence that his hands were doing so as well.

b) Whether the keys were in the ignition or readily available to be placed in the ignition:

There is evidence that the keys were in the ignition, however they were placed in there to power up the van so the cell phone could be charged.

c) Whether the vehicle was running:

There is evidence that the vehicle was "running" in the sense that the power was on but no evidence that the engine was "running". See R. v. Cadieux, [2004] O.J. No. 197 (C.A.).

d) The location of vehicle:

The vehicle was located in a parking spot in an off site parking lot. On the whole of the evidence, I find that it was parked appropriately (within the lanes) and it's unclear how much, if any of a hazard it caused. It's clear that it was not in a live lane of traffic or near a roadway: R. v. Grover, [2000] A.J. No. 1272 (Q.B.)

e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination:

I accept that Mr. Goodwin had driven to the apartment from work and then moved the van to appease Ms. Ramos. He had clearly arrived at his destination and no immediate plans to drive away. He did not drive to the bar.

f) The accused's disposition and attitude:

As noted above, Mr. Goodwin was found in a deep sleep. On all the police evidence, he was incoherent, belligerent and confused. His roadside utterances were not reliable. This remained constant through the breath testing procedures too, which is further evidence that he was in a deep sleep and not just dozing to sleep it off.

g) Whether the accused drove the vehicle to the location of drinking:

I do not find that Mr. Goodwin drove to the bar. Instead, I accept that he walked there with the express intention of wanting to drink so he wouldn't have to drive. See R. v. Pelletier, [2000] O.J. No. 848 (C.A.)

h) Whether the accused started driving after drinking and pulled over to "sleep it off" or started using the vehicle for purposes other than driving:

I do not find that he drove after drinking alcohol. As noted above, I found that he fell asleep after occupying the seat to charge his cell phone. In other words, there is clear evidence that he used the vehicle for purposes other than driving.

i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit:

I accept Mr. Goodwin's account that his plan was to walk home leaving the van in the off site parking lot. Mr. Mullen confirmed that they commenced walking home from the bar.

j) Whether the accused had a stated intention to resume driving:

I accept Mr. Goodwin's account that he had no intention to resume driving. Instead, he fell asleep while charging his cell phone. His statements to the police which may although not necessarily suggest otherwise are unreliable. This is unlike Cadieux, supra, in which the accused testified that he was waiting to sober up. The Court of Appeal held that his evidence that he would not drive until he was sober only went to weight.

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

Mr. Goodwin was seated in the driver's seat of the van.

l) Whether the accused was wearing his or her seatbelt:

Mr. Goodwin was discovered not wearing a seatbelt. This is some evidence of corroborating his position that he didn't occupy the driver's seat to drive the vehicle which might be expected of a driver, although not always.

m) Whether the accused failed to take advantage of alternate means of leaving the scene:

There is no evidence of any alternate means. In fact, there is some evidence, which I accept, that he tried to enter the apartment of Ms. Ramos but couldn't due to his dead cell phone and non functional buzzer.

n) Whether the accused had a cell phone with which to make other arrangements and failed to do so:

I accept that the battery in Mr. Goodwin's cell phone died. There is some corroboration of this through Ms. Ramos and Ms. Chang who both saw the phone in the charging position the morning after.

[72] In my view, applying the Szymanski factors on the whole of the evidence (both direct and circumstantial), de facto or actual care or control has not been proven to the requisite standard. While Mr. Goodwin was admittedly inebriated, this alone doesn't advance the Crown's position. The risk envisioned in Boudreault has to be a real and realistic one, not just possible. As noted by Durno J. in Syzmanski, with an impaired person, anything is possible. However, Parliament doesn't sanction all theoretical risks, just realistic ones. If such were the case then any impaired person behind the wheel would be guilty of being in care or control. It would make the Boudreault analysis redundant. That isn't the law.

[73] I have also considered Ms. O'Connor's careful submission that there was a risk that Mr. Goodwin could have driven to his former address, which he gave to the police or would have driven there if not roused. I have evaluated this submission in light of R. v. O'Neill, 2016 ONCA 307, in which the Court of Appeal considered a case in which de facto care or control had been proven in circumstances where the accused was found asleep behind the wheel and testified that his intention was to "sleep it off". In an endorsement upholding the conviction, the Court said at para. 10:

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

[74] In my view, O'Neil instructs trial courts to carefully assess the accused's conduct in relation to the vehicle taking into account his intention at the time. Importantly, the accused in O'Neil testified that his intention was to "sleep it off" which may mean that once he sobered up, he would have driven the vehicle, thus signalling a future change in his intention. I have already explained above why I can't come to the same conclusion in this case. Mr. Goodwin entered his vehicle only because his cell phone had died and he couldn't get into his girlfriend's apartment. He occupied the driver's seat and activated the engine, only to charge the phone. There is no evidence to suggest that he could have accomplished this goal by other means unrelated to using the vehicle to charge it. While he could have occupied the passenger side, this ignores the reality of the steps required to turn the engine on and quite frankly, requires a person to be versed in the niceties of drinking and driving law.

[75] In O'Neil, arguably, the court held that the effect of the accused's evidence was that he would have driven once he sobered up. Here, the risk Mr. Goodwin did drive to his previous address or would have driven to it is entirely speculative. There's simply no evidence of it. Moreover, he said he had moved out of that apartment thus had arguably had no access to it. His comments to the police were unreliable. Had he not fallen asleep, I can reasonably surmise that he would not have driven off but rather use his charged cell phone to contact his girlfriend. He was fast asleep and there is little evidence to suggest that his conduct in relation to the van created a realistic risk of danger. While he was in close proximity to the fittings of the vehicle, he was fast asleep, not dozing. Any risk of danger, if any, remains speculative and therefore unreasonable. There is no evidence to suggest that apart from being slouched over the wheel while asleep, his legs, arms or other parts of his body would have unintentionally been used in a way to impact the fittings to create a dangerous situation. The gear shift required some use of force given its position and there's little else to suggest how the vehicle would have created a risk of danger. Finally, it is clear that the vehicle was not moving and Mr. Goodwin was in a deep sleep and likely unable to exercise any judgment at all. Viewed either way, the three routes to conviction in Boudreault, all point the opposite way.

[76] Accordingly, it has not been proven beyond a reasonable doubt that Mr. Goodwin was in care or control of the vehicle while impaired by alcohol.

Conclusion

[77] For the foregoing reasons, Mr. Goodwin will be found not guilty of both offences.

Released: April 6, 2017

F. Javed J.