Court File and Parties

Court File No.: Central East - Newmarket 4911-998-17-06208

Date: 2017-10-16

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

John Muller

Before: Justice P.N. Bourque

Counsel:

• M. Daigle, for the Crown
• K. Anders, for the defendant

Reasons for Judgment

Released on October 16, 2017

The Facts

[1] On June 11, 2016, a woman and her boyfriend were driving in Kleinberg and saw a man standing by the side of the road near a car that appeared to be stuck on the shoulder of the road. They stopped, and eventually called the police. The police arrived and after their investigation, the defendant was charged with being in care and control of an automobile while impaired and having a blood alcohol limit exceeding 80 milligrams of alcohol in 100 millilitres of blood. The defendant states that he was not in care and control of the automobile and in any event, the arresting officer lacked reasonable and probable grounds to arrest him for impaired driving.

The Crown's Case

Jasmine Greisolia

[2] ...was driving with her boyfriend and were on a deserted road near Kleinberg at dinnertime, on June 11, 2016. They saw a man standing near a car which was on the sand on the shoulder of the road. They stopped and her boyfriend shouted out from the car to the man whether he was okay and the person either did not reply or said "I'm waiting for my ride".

[3] The Crown objected to this statement going into evidence on the basis that it is a "previous consistent statement" of the defendant. I do not think that is the case. It is a statement made during the occurrence of which this investigation is a part. It is part of the narrative of the action. It is a statement of what the defendant said that he was doing at a particular moment, as it is contemporaneous with that action. I contrast this with a statement made by a person after the event which is led to support his assertion at trial.

[4] The witness got out of her vehicle and went up to the man. He was holding a bag with beer in it. She took the bag. She said that she became angry and was shouting at the man. He was really not responsive. She described the man as being older, bald and wearing glasses (the defendant appears to be of late middle age and is bald and wears glasses).

[5] The witness went back to her car and called 911. As part of this call, she related to the 911 operator that the defendant had said that "he was waiting for his ride". She and her boyfriend left the scene before the police arrived.

Sidney Salomons

[6] ...is a York Regional Police officer of some 10 years' experience. He received a dispatch at 21:34 indicating that a female had said "that she saw a car in the ditch on Kipling south of Kirby. It was a dark blue Pontiac Vibe licence plate BBEF 513 and there was a man with an open six pack of beer. The man was a white male in his 50's and was bald and wearing glasses. She said that the man made an utterance about someone coming to "pick him up".

[7] The officer's evidence was given in conjunction with the in-car camera video which was being played as he testified (Exhibit 1).

[8] The officer arrived at 21:34 and it is a deserted road with no houses or buildings nearby. There is little or no traffic during the entire period of the interaction. The officer went up to the defendant and sees the car matching the description of the car from the dispatch. The defendant also matches the description given. The defendant is 50 to 60 feet away from the car and is in a field on the other side of the road. The vehicle is not running and it appears to be dug into the sandy shoulder up to the wheel wells. There is no obvious damage to the car. There is lots of debris around the car although there are not skid marks or indication as to how the car got into the position it was in on the shoulder.

[9] The officer speaks to the defendant who says that he is waiting for a ride. He asks what has happened to his car but there is no response. At 21:45, the officer states that he is now investigating the defendant about how sober he is. The officer describes him as being unsteady on his feet and said that his behaviour was unusual. The defendant stated that the car that he had been driving was in the ditch. His speech was slurred.

[10] He said that his last drink was at 5:30 and he had 5 cans of beer. The defendant did not answer when asked where he had been drinking. He said that he lived in Etobicoke. He did not respond when asked where he was going. He did not reply to the question as to why he was out there in the first place.

[11] Later in the conversation, he denied drinking at all. The defendant said that he was trying to pull off the road.

[12] At 21:49, the officer arrested the defendant for impaired driving. The officer stated that his grounds were the car in the ditch, the defendant just standing in the long grass on the side of the road, his speech was slurred, he was unsteady on his feet, he was confused about what he had been drinking and where he was drinking. The officer did not smell any alcohol on the breath of the defendant.

[13] The officer searched him and found the keys to the vehicle (the defendant admitted they were the keys). He then said that he was just out for a drive. At 21:52, the defendant was handcuffed and searched. There is another officer at the scene and there is a lot of discussion between the two officers. They are confused about how the vehicle came to be in the ditch. The officer goes to look for skid marks but does not find any. They surmise that he drove off the road but did not intend to go that far into the ditch. The kicked-up dirt and grass around the vehicle was caused by the spinning of the tires. He believes that the car reversed into the spot that it was in. They talk about the civilian witness.

[14] At 21:59, the officer reads the caution and rights to counsel. The defendant says that he understands the caution and does not wish to say anything in answer to the charge. He understands the rights to counsel and does not wish to speak to a lawyer. The officer asks him about when he was driving and the defendant says that the car has been in the ditch since 4:30 or 5:00 o'clock.

[15] At 22:03, the officer leaves for the station. He stops after a few minutes and at 22:08 he reads the breath demand. They arrive at the station at 22:23 and he is paraded in front of the duty sergeant. There is a further sign on the wall with the rights to counsel on it. The officer then did a further search of the defendant. The officer did a further caution and read a further rights to counsel. The defendant said that he understood and stated that he did not wish to call a lawyer. He did not in any case speak to a lawyer and never made the request to speak to a lawyer. The officer said that at the station, the defendant was still speaking slow and was slurring his words and was unsteady on his feet but he made no further specific observations.

[16] In cross-examination, the officer was queried about why he arrested the defendant for impaired operation. The officer stated that he believed that the civilian witness who had interacted with the defendant had seen him behind the wheel of his car and since she described (as was contained in the dispatch) a 6 pack of beer in the front seat. The officer thought that the witness had seen the defendant very shortly before the dispatch and therefore he believed that was the charge to lay. He stated that after being back at the station and interviewing the witness, he believed that the appropriate charge to lay was care and control from the time that he had seen him at the roadside.

[17] The officer's grounds for arrest were the subject of cross-examination. With regard to the slurred speech, he did not make a note of it. I will discount the reference to slurred speech in the officer's evidence. There could be some slurred speech in the video but it was probably not in the mind of the officer at the time he made the arrest.

Tanner Golemiec

[18] ...is a York Regional Police officer with 2 years' experience. He arrived on scene just after officer Salomons. He stated he responded to a dispatch of a possible impaired driver with a car in the ditch. The dispatch made reference to a witness interaction with a man who fit the description of the person who was standing in the grass at the side of the road. The dispatch said that the witness said that the man told her that he was "waiting for a ride". The witness said that the car had buried itself in the gravel on the side of the road and there was gravel and debris around the car. It was facing at a 45 degree angle and was partway into a ditch. The defendant had difficulty coming out from the ditch. He was having problems standing and was swaying from side to side. He spoke slowly and would roll his eyes and kind of extended his words. Under caution, he said he did not have anything to drink after the vehicle ended up where it was.

[19] The officer found a bag with several beers in it and one of them was partially consumed. The tall grass was pushed down in the shape of a man near where the bag of beer was found. He stated that he saw CAA cards on the passenger seat of the car.

[20] In cross-examination, the officer was asked about a memo that he wrote to the crown indicating that a witness said that the defendant could have been there for several hours. The officer indicated that this was found out later from the witness who first called in the complaint. He was not aware of it at the time.

Exhibit 2 - Vehicle Ownership Records

[21] The Crown filed a certified copy indicating that the vehicle at the scene was owned by the defendant.

Scott Vincent

[22] ...is a York Regional Police officer and a breath technician. He received grounds from the arresting officer and at 22:51 received the defendant in the breath room. He read a breath demand and a secondary caution. At 23:02, he received the first sample and had a reading of 163 milligrams of alcohol in 100 millilitres of blood. At 23:26, the defendant provided a second sample which was 161 milligrams of alcohol in 100 millilitres of blood.

[23] Between the first and second samples, the defendant answered several of the officer's questions. The defendant admitted to driving the car to that location and admitted to consuming alcohol (before the driving) between 4:30 and 5 o'clock.

[24] The Crown filed a toxicologist's report.

The Defence

Janet Muller

[25] ...is the mother of the defendant. She was out that day but came home at about 9:00 p.m. She received a call from her son (the defendant) who asked her to come out and pick him up. He gave the general location where he was. She set out to get him but became lost on Kipling Avenue, and although she tried to contact the defendant, he was not answering his phone (he was probably under arrest by this point).

Were the s. 10 rights of the defendant breached?

[26] The officer came up to the defendant at 21:34 and had information that there was a suspected impaired driver. After arriving and viewing the scene and beginning to talk to the driver, he tells the driver at 21:45 that he is investigating him for impaired driving. At 21:49, the defendant is arrested for impaired driving. The officer then cuffs and searches the defendant and places him in the cruiser at about 21:52. He then speaks to the other officer and views the scene again before then going back to the police cruiser and begins to read the rights to counsel at 21:59. With regard to the period of investigative detention, (some 6 to 9 minutes), I do not think that rights to counsel has been triggered. The officer informed him of the nature of the investigation and it is analogous to any other drink and drive investigation where the driver is told to pull over and is engaging with the officer for a similar period of time. There was no long period of wait for and ASD and no time for the defendant to exercise any such right.

[27] With regard to the period of time after arrest, the officer took time to handcuff and search and place the defendant in his cruiser. The officer then made some further observations of the scene and spoke with the other officer about the scene. The officer then attended back at the cruiser to begin the various warnings and demands, including the rights to counsel. There was a delay of some 6 to 9 minutes. I would not find that this was enough of a delay in the circumstances, to run afoul of the directions in R. v. Suberu, 2009 SCC 33. Even if it was, I would not be inclined to exclude any evidence.

[28] With regard to the first test in R. v. Grant, 2009 SCC 32, I do not find that the breach was serious. The officer was attending to the investigation. The officer was not seeking to conscript other evidence from the defendant in the meantime. With the regard to the impact of the Charter-infringing conduct, I find it minimal. The delay did not lead to any great prejudice to the defendant.

[29] Finally, breath test results are reliable and society has a strong interest in an adjudication of these cases on the merits.

Did the officer have reasonable and probable grounds to arrest the defendant and make a breath demand?

[30] The officer was aware of the dispatch call, had made his own observations of the defendant in the vicinity of the vehicle, there were signs of impairment, (the unsteadiness on his feet) and the defendant had open and full beer cans with him. A car was stuck in soft sand on the shoulder of the road. Based on the responses of the defendant, and on a reasonable inference that it was him who had driven the vehicle to that location, it is likely that impairment of the ability to drive the car was one of the reasons it was there. While the officer was unsure as to how the defendant had done it, it was still a reasonable inference that it was an indication of impairment.

[31] The officer believed that the defendant was the driver of the vehicle and had brought it to that location. It was a deserted location (no houses or buildings of any kind within walking distance) and the defendant was the only person in the vicinity. As stated above, he believed that the driving was very recent. It was only later in the conversation with the defendant that he referred to driving at an earlier time and the civilian witness could not confirm the driving. I do not believe that the officer's observations were seriously shaken in cross-examination and I believe he had a right to rely on the information that he had.

[32] Based upon all of the above, I believe that the officer had reasonable and probable grounds to arrest the defendant for impaired driving. As stated in R. v. Censoni, and many other cases, the threshold is not an onerous one and should be not elevated to proof beyond a reasonable doubt. While the connection of the defendant to the vehicle could clearly raise proof issues at trial that does not mean that the officer did not have reasonable and probable grounds namely, that the defendant had been the operator of the motor vehicle and his ability to drive was impaired by alcohol. The defendant points to some of the particular language used by the officer in cross-examination. I do not think any of that language was an admission that he did not have reasonable and probable grounds of impairment. While I would discount the officer's reference to slurred speech, I do think that all of the other matters referred to above would allow him to have the requisite reasonable and probable grounds not only of the defendant as being in care and control of the motor vehicle, but also that there was a level of impairment.

Was the defendant in care and control of the motor vehicle?

[33] While there is some evidence (circumstantial and the answers to the breath technician) that the defendant drove the vehicle to that location, there is no evidence that he did so within 3 hours of the time that the police found him there. The crown has admitted as much and is seeking a conviction upon the basis that the defendant was in care and control of the motor vehicle when the officers attended at 21:34.

[34] The element of care and control must be proven by the crown beyond a reasonable doubt. In R. v. Boudreault, 2012 SCC 56 at par 33:

The Crown may prove "care or control" three ways:

1. Prove that the accused was driving and thus necessarily in care or control.

2. Prove that the accused occupied the driver's seat of the vehicle triggering the s. 258(1)(a) presumption of care or control subject to rebuttal by the defence.

3. Prove that the accused had care or control of the vehicle in circumstances that posed a risk of danger.

[35] The defendant was not in the driver's seat. The Crown cannot rely upon the presumption. The Crown is left in a situation where it has to prove beyond a reasonable doubt that the defendant was in care and control of the motor vehicle in circumstances that posed a risk of danger, from other evidence.

[36] In R. v. McBrine, 2007 ONCA 25, the court found that where a defendant drove a motor vehicle off the road and was actively seeking to extricate it from its position so he could proceed to drive, then there never was a loss of care and control. Even though there was some evidence, in our case, at some point the defendant had tried to drive away (the dirt around the area) there was no evidence that when the civilians arrived or the police arrived, he was taking any such active steps.

[37] The factors which point to the defendant having care and control of the automobile are as follows:

• (i) The defendant was the registered owner of the car;
• (ii) He was the only person in the vicinity and the area was deserted with no homes or buildings nearby;
• (iii) There were no sidewalks and it was a narrow 2 lane road;
• (iv) He was in the vicinity of the vehicle albeit on the other side of the road;
• (v) He had a bag with beer cans in it with him at the side of the road and there were empty beer cans in the car;
• (vi) There were car keys in his pocket.

[38] There are factors which are not consistent with care and control namely:

• (i) He expressed no intention to drive and indeed spoke to the civilian and to the officer that he was "waiting for a ride". Most importantly is the evidence of his mother who testified that he had called her for a ride and indeed set out to pick him up.
• (ii) He did not say nor act as if he was seeking a tow. The presence of the CAA card on the seat of the car may be some indication that at least a tow was contemplated, there is no evidence that he acted and called for a tow;
• (iii) He was on the other side of the road and was not seen by any witness to be in the driver's seat or in the car or dealing with the car in any fashion whatsoever.

[39] Based upon the above, it is my finding that the defendant was the owner of the car and had brought it to that location and the car did not appear to be damaged in any way. I think there was a distinct possibility that with the assistance of a tow truck, the defendant could have resumed his driving.

[40] However, is this sufficient to place him in care and control? If I find that the defendant had not relinquished care and control (as per McBrine) then I need not exhaustively deal with the risk factors. Unlike McBrine, where the defendant was taking active steps to extricate his vehicle from its immoveable position and preparing to resume his driving, I do not think that in the above circumstances, I can say that he was maintaining his care and control. The Crown points to the efforts to extricate the car by the kicked up dirt. There is no indication as to when that happened. When the police arrived (or indeed when the civilian witnesses were there) there is no evidence of any of these actions.

[41] It must still be determined if the Crown can prove care and control on the basis that there is a "realistic risk of danger to persons or property which is not just theoretically possible albeit not necessarily "probable, or even serous or substantial".

[42] Justice McInnes in R. v. Ramanathan, 2017 ONCJ 130, had a case which has some similarities to this case. The defendant drove the vehicle in a manner which immobilized it. There is no evidence as to when the incident occurred. There is little evidence as to what the defendant was doing in the interval before the police arrived, such as arranging a tow or making personal transport arrangements. McInnes used the list of factors as set out in R. v. Szymanski, and came to the conclusion that the evidence was capable of two "rational hypotheses", namely that he intended or might later have driven away or that he got out of the vehicle after the incident did not continue any course of conduct associated with the vehicle".

[43] In our case, the evidence of Janet Muller is also very strong evidence that not only had the defendant relinquished care and control, but that he was simply waiting for her to come and get him. In that sense, the evidence is stronger that there was little danger that he would put the vehicle in motion. I also note that he was a distance from his vehicle and indeed, on the other side of the road. If he had changed his mind, he would have had to have taken several active steps to resume care and control and then actually attempt to drive. That includes having to summon a tow truck to make his vehicle mobile.

[44] As did Justice McInnes, I am also unable to say that the evidence in this case would lead only to the conclusion that the defendant had care and control of the vehicle. The weight of the evidence points in the other direction.

Conclusion

[45] I am therefore in doubt and must acquit the defendant as I cannot find him in care and control.

Signed: "Justice P.N. Bourque"

Released: October 16, 2017