Court File and Parties

Ontario Court of Justice

Date: 2017-10-13

Court File No.: Ottawa 15-13203

Between:

Her Majesty the Queen

— and —

Joubert Georges

Before: Justice P.K. Doody

Heard on: July 18, 2017 and September 25, 2017

Reasons for Judgment released on: October 13, 2017

Counsel:

• V. Davies, for the Crown
• L. Remigio, for the defendant

Reasons for Judgment

DOODY J.:

Part 1: Issue

[1] Joubert Georges is charged with having care and control of a motor vehicle on November 20, 2015 while his ability to drive was impaired by alcohol, and with having care and control of a motor vehicle with a blood alcohol level of over 80 milligrams of alcohol in 100 millilitres of blood.

[2] The only issue argued by defence counsel was whether the Crown had proven beyond a reasonable doubt that Mr. Georges was in care or control of the car at the time the police arrived.

Part 2: Background

[3] Mr. Georges was urinating on the side of a building on Clarence Street in the Market area of Ottawa shortly before 2:49 a.m. He then walked to his car (which was parked on the side of the road, in a spot intended for parallel parking), got in, and sat in the driver's seat.

[4] Cst. Yannik Bernard and his partner, Cst. Tina Kosnaskie, were driving along Clarence Street. They saw Mr. Georges do this.

[5] Cst. Bernard walked over to the car. Mr. Georges was sitting in the driver's seat. The engine was not on. His partner, Victoria Smith, was in the passenger seat. Three others were in the back seat. Cst. Bernard asked Mr. Georges to get out of the car.

[6] Mr. Georges, Ms. Smith, and their friends had been at two bars in the Market area for a number of hours – The Senate (which the car was parked right in front of) and Cornerstone, a few blocks away. Mr. Georges had been drinking since 10 p.m.

[7] Mr. Georges was intoxicated. This is clear from the evidence of Cst. Bernard, the arresting officer, who testified that Mr. Georges had slurred speech and a strong odour of alcohol on his breath, and that he stumbled when the officer asked him to leave his car, losing his balance so that Cst. Bernard had to grab his right arm to prevent him from falling. It was confirmed by the evidence of Cst. Tina Kosnaskie, Cst. Bernard's partner. She testified that Mr. Georges was unsteady on his feet and that when he left his car he lost his balance to the point that he almost fell. Mr. Georges testified and admitted that he was too drunk to drive. I find that his ability to operate a motor vehicle was impaired by alcohol.

[8] The analyses of Mr. Georges' breath by an approved Intoxilyzer at 4:04 a.m. and 4:26 a.m. showed, respectively, 250 and 240 milligrams of alcohol in 100 millilitres of blood. There is no issue with respect to the time of the tests or anything else that would invalidate the test results.

[9] Ms. Remigio, counsel for Mr. Georges, filed a motion seeking to exclude all of the evidence of police witnesses, including the analyses of the breath of Mr. Georges, as a result of the police allegedly failing to release Mr. Georges as soon as practicable. The trial proceeded as a blended voir dire. At the conclusion of the trial, defence counsel abandoned that application.

Part 3: The Law

(a) Meaning of "Care or Control"

[10] In R. v. Boudreault, 2012 SCC 56, at paragraphs 33 and 34, the Supreme Court of Canada held that "care or control" within the meaning of s. 253(1) of the Criminal Code 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 of danger to persons or property.

The risk of danger must be realistic and not just theoretically possible: Smits, 2012 ONCA 524, at para. 60. But nor need the risk be probable, or even serious or substantial. [emphasis in original]

[11] I note that, as in Boudreault, there is no question that the first two elements are met in this case. Only the third is in issue.

(b) Statutory Presumption of Care or Control if Defendant in Driver's Seat

[12] The Criminal Code contains, in s. 258(1)(a), a statutory presumption that a defendant who is found in the driver's seat of a motor vehicle

shall be deemed to have had the care or control of the vehicle … unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle .. in motion ….

[13] The effect of this provision is that a defendant found in the driver's seat who is impaired or whose blood alcohol level exceeds 80 milligrams of alcohol in 100 millilitres of blood will be convicted unless he or she can establish 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. (R. v. Blair, 2014 ONSC 5327, at paras. 13 and 14, per Trotter J.)

(c) If Presumption is Rebutted, Crown Must Prove Realistic Risk of Danger

[14] A defendant found in the driver's seat who is impaired or with a high blood alcohol level who rebuts the presumption will not automatically be acquitted. He or she will be found guilty if there is a realistic risk of danger. The Supreme Court held at paragraphs 42 and 48 of Boudreault:

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.

… To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case.

[15] Although there is this practical tactical necessity, the burden of proof does shift back to the prosecution to establish actual care or control beyond a reasonable doubt if the defendant rebuts the presumption. (R. v. Szymanski, [2009] O.J. No. 3623 (S.C.J. per Durno J.))

[16] Justice Durno, at paragraph 93 of Szymanski, set out a list of factors which have been considered by courts when determining whether the Crown has proven beyond a reasonable doubt that a realistic risk of danger may arise in the first of the three ways set out in Boudreault – the risk that an inebriated driver will change his or her mind and drive the vehicle. I have paraphrased the list, omitting the citations provided by Justice Durno:

(a) the level of impairment – relating to the likelihood of the defendant exercising bad judgment, the time it would take to become fit and the likelihood that he or she would be presented with an opportunity to change their mind during that time;

(b) whether the keys were in the ignition or readily available to be placed in the ignition;

(c) whether the vehicle was running;

(d) the location of the vehicle, including whether it was on the side of a major highway or in a parking lot;

(e) whether the defendant had reached his or her destination or if they were still required to travel to their destination;

(f) the defendant's disposition and attitude;

(g) whether the defendant drove the vehicle to the location of the drinking;

(h) whether the defendant started driving after drinking and pulled over to "sleep it off" or started out using the vehicle for purposes other than driving (because if the defendant drove while impaired it might show continuing care or control, bad judgment regarding fitness to drive and willingness to break the law);

(i) whether the defendant had a plan to get home that did not involve driving while impaired;

(j) whether the defendant had a stated intention to resume driving;

(k) whether the defendant was seated in the driver's seat regardless of any presumption;

(l) whether the defendant was wearing his or her seatbelt;

(m) whether the defendant failed to take advantage of alternative means of leaving the scene; and

(n) whether the defendant had a cell phone with which to make other arrangements and failed to do so.

[17] This list is not exhaustive. Nor is it necessary for all of the factors to be decided in favour of the defendant for the charges to be dismissed. In each case, the issue is whether, on all of the evidence, the Crown has proven beyond a reasonable doubt that the defendant, by reason of his or her intentional course of conduct associated with a motor vehicle, has created a realistic risk of danger.

Part 4: The Evidence

(a) The Defendant's Evidence: No Intention to Drive

[18] The defendant testified that he lived with Victoria Smith at 252 St. Andrew Street, a 10 minute walk or a 3 to 4 minute cab ride from where his car was parked. On the day before he was arrested (the arrest having taken place in the early morning hours of the following day) he worked from 2:00 p.m. to 10:00 p.m. He then went to the Market area, arriving at the Senate bar at about 10:20 p.m. He met Ms. Smith at the bar. She had driven the car there.

[19] He testified that the car was perfectly parked on the right hand side of Clarence Street, in a designated parking spot and not obstructing traffic.

[20] He left his backpack, sweatshirt, and wallet in the car, keeping a credit card. He testified that his intention was to either walk or Uber home and get the car the next day, since it was parked on the route he took to get to or from work.

[21] He testified that he, Ms. Smith, and 3 friends stayed at the Senate bar until 12:30 a.m. They then went to Cornerstone, a bar a few blocks away. The group left Cornerstone at about 2:15 or 2:30 a.m. He drank 3 pints of beer and 2 shots of liquor at the Senate and two pints and a shot at Cornerstone.

[22] He testified that he realized that he was too drunk to drive. He and Ms. Smith debated whether to call a cab or Uber because they recognized that neither of them were in a condition to drive.

[23] He said he did not want to call a cab in front of Cornerstone because he still had to collect his wallet, sweatshirt, and backpack from the car. Furthermore, if he called an Uber while in front of the bar, they would have to stay there until they were picked up, because the Uber system points the driver to the GPS coordinates of the cellphone at the time the car is called.

[24] He said that he thought that it was a better idea to wait in the vehicle so that they did not have to stand outside in the cold longer than necessary. Neither he nor the others were dressed for the cold – he was in a T-shirt and jeans, and two of the women were wearing only very short dresses.

[25] A printout from the Environment Canada website showed that the temperature at 3:00 a.m. in Ottawa was -6 degrees Celsius.

[26] The defendant testified that the group walked to the car. He got in the car and put the keys in the cupholder while he gathered his things – his backpack from the back seat, his wallet from the console, and his sweatshirt from the back. He did not have his seatbelt on. Neither did any of the other persons in the car.

[27] After he had been in his car for a minute or two, the officer approached his car and asked him to lower the window. Mr. Georges testified that he told the officer that he could not do so, because it was a power window and the car was off.

[28] He said that he then opened the door. The officer inserted his body into the car and asked where the keys were. Mr. Georges testified he told the officer that they were in the cupholder. He then exited the car. The officer grabbed him, said he was too intoxicated to drive, and put him in his cruiser.

[29] He testified that he had no intention of starting the car or driving home with it.

[30] In cross-examination, he was asked why he had not yet called a cab or Uber when the police arrived. He said that he was still collecting his belongings and making sure he had everything. He testified that he told the others that he would call it once he had done this.

[31] It was suggested to him in cross-examination that it was not realistic that he and his friends would sit in a cold car with the engine off if their intention was to keep warm. He responded that it was better than waiting in the cold.

[32] He was asked whether there was a designated driver planned for that evening, and he responded that he had not intended for Ms. Smith to come with the car. He thought that she would either walk or Uber to the bar, since they lived so close. When asked why he did not walk all the way home if he lived so close, he replied that he did not want to walk another 10 minutes through the cold.

(b) Constable Bernard's Evidence: Corroboration of Some of the Defendant's Evidence

[33] Constable Bernard's evidence did not differ significantly from the defendant's. He testified that the defendant's vehicle was parked parallel to the sidewalk. He said that he could not contradict the defendant if he testified that he was parked in a proper parking spot. He agreed that he was not parked in the middle of the roadway and was not obstructing traffic.

[34] Cst. Bernard testified that while he could not recall whether the defendant lowered the window or opened the door when he approached the car, he agreed that it was possible that he had opened the door because the defendant could not lower the window.

[35] He testified that the car was off and the keys were visible in the cupholder between the driver's seat and the passenger seat. While he could not recall whether the defendant was wearing a seat belt, he agreed that he had made no note of it. He also testified that if the defendant had been wearing a seat belt, he would have made a note because it would have been an obvious indicator that he was going to drive.

[36] Cst. Bernard testified that Mr. Georges had been in his car only 10 to 15 seconds before he, Cst. Bernard, was standing beside the driver's door.

(c) Ms. Smith's Evidence: Corroborative of Much of Defendant's Evidence

[37] Ms. Smith testified that she and the defendant had made plans to go out after the defendant was finished work. She said that she drove to the Senate bar and parked in front of it at about 8:00 p.m. She met a few friends there and they waited for the defendant to join them.

[38] She testified that she had driven to the bar because she had planned to not drink; consequently, she would be able to drive everyone home. However, she testified that she "ended up having a really good time and decided to have some drinks."

[39] She testified that she was at the Senate for 4 or 5 hours. The group then went to Cornerstone just before last call – 1:00 or 1:45. They stayed there for a drink or two and left as it was closing. She said that they made their plans as they walked – whether to walk or take an Uber. She testified that they decided to call an Uber but had to stop and get things out of the car.

[40] She said that they did not call the Uber right away because they had not made all their plans. Some were planning to go elsewhere. She testified that they went into the car because it was very cold. She was wearing a dress – not warm enough for the weather.

[41] She testified that she was sitting in the car waiting for the things in the car to be put together and for the plans to be made. The keys were in the cupholder. Shortly after they got in the car, the police arrived.

[42] She testified that she would not have driven home because she was too drunk. Nor would she have let the defendant drive home. She said that she does not believe in driving impaired.

[43] Crown counsel did not cross-examine Ms. Smith.

Part 5: Analysis

(a) Has the Defendant Rebutted the Presumption of Care or Control?

[44] The first question is whether the defendant has rebutted the presumption by establishing, on a balance of probabilities, that he did not occupy the driver's seat for the purpose of putting the car in motion.

[45] In my view, the defendant has done so. His evidence was not seriously challenged on cross-examination. Cst. Bernard corroborated the defendant's evidence where they testified about the same things except the length of time between the defendant getting in the car and the police officer approaching the car. This is understandable because neither was timing the events, neither had a note of the times, and significant time had passed since the events.

[46] Mr. Georges' explanation for not calling the Uber from the Cornerstone makes sense. There is no point in calling an Uber from a spot where you do not intend to be when it arrives. And they did have to return to the car to get Mr. Georges' wallet, sweatshirt and backpack.

[47] Similarly, Mr. Georges' evidence that they wanted to wait in the car while they called the Uber makes sense, even though the car was not turned on. They were not dressed for the cold, and it would have been warmer inside the car, even without a heater, than it would be outside.

[48] I accept Mr. Georges' evidence that he did not want to walk another 10 minutes in the cold before getting to the warmth of his home. That, too, makes sense.

[49] If Mr. Georges had intended to drive home, he would not have put the keys in the cupholder. He would have put them in the ignition as soon as he got in the car. That way they could all get warm as soon as possible. I do not accept Crown counsel's submission that he had not had time to put the keys in the ignition. That could have been done in the same time it took to put them in the cupholder.

[50] Ms. Smith's evidence did not coincide exactly with Mr. Georges'. She testified that they were waiting to decide where the other passengers were going before calling the Uber, and he testified that he was waiting until he got his belongings together. They agreed, however, on the basic facts. Both testified that they had agreed that neither would drive and they would call an Uber or a cab, and that they had to return to the car to pick up his things. If their evidence had been identical on all details I might have been suspicious that they had agreed on and rehearsed their evidence.

[51] The defendant has established on the balance of probabilities that he did not occupy the driver's seat for the purpose of putting the car in motion.

(b) Has the Crown Proven a Realistic Risk of Danger?

[52] The next issue is whether the Crown has established beyond a reasonable doubt that the defendant, by reason of his or her intentional course of conduct associated with a motor vehicle, has created a realistic risk of danger.

[53] In my view, neither the second nor third potential risks identified by the Supreme Court in Boudreault are realistic in this case.

[54] The car was not turned on. The keys were not in the ignition. To put the car in motion, the defendant would have had to take the keys out of the cupholder, put the key in the ignition, and turn the key. That could not have been done unintentionally. I note that Crown counsel did not submit that this was a realistic risk.

[55] The car was properly parked against the curb. It was not blocking traffic. It was not in a position to endanger anyone.

[56] The real issue, and the one argued most strongly by Crown counsel, is whether the Crown has proven beyond a reasonable doubt that there was a real risk that the defendant may have changed his mind and put the car in motion.

[57] The following factors set out in Szymanski support a conclusion that there was not such a risk:

(a) the keys were not in the ignition;

(b) the car was not running;

(c) the car was parked on the side of a street in a parking spot, and not on the side of a major highway;

(d) the defendant had not reached his destination, but he was not far from it;

(e) the defendant did not drive the car to the pub;

(f) the defendant had not driven the car while impaired;

(g) the defendant had a plan to get home that did not involve driving, and it was a reasonable and relatively inexpensive plan;

(h) the defendant did not have a stated intention to drive the car when he sobered up;

(i) the defendant was not wearing his seatbelt; and

(j) the defendant had not failed to take advantage of other means of leaving the scene.

[58] The following factors set out in Szymanski support a finding that there was a real risk that the defendant may have changed his mind and put the car in motion:

(a) the defendant was quite impaired, but given the situation and Ms. Smith's evidence, which I accept, that she would not have allowed him to drive, I believe that he would have had some difficulty in putting the car in motion;

(b) the keys were readily available, but Ms. Smith was seated in the passenger seat prepared to intervene to prevent the defendant from driving;

(c) the defendant exhibited an aggressive attitude after he was arrested and taken to the station, but this is consistent with a belief that he had done nothing wrong and there was no evidence of aggression before he was taken to the station;

(d) the defendant was seated in the driver's seat;

(e) the defendant did have a cell phone with which to make other arrangements and he failed to do so before the police arrived, but he gave a reasonable explanation for his delay.

[59] In all of the circumstances, I conclude that there was not a real risk that the defendant may have changed his mind and put the car in motion.

[60] The charges are dismissed.

Released: October 13, 2017

Signed: Justice P.K. Doody