Court File and Parties
Ontario Court of Justice
Date: 2017-12-20
Court File No.: 16-13164
Between:
Her Majesty the Queen
— and —
Gurmukh Grewal
Before: Justice P.T. O'Marra
Heard on: November 8 and 9, 2017
Reasons for Judgment released on: December 20, 2017
Counsel
Christina Sibian — Counsel for the Crown
David Locke — Counsel for the Defendant
Reasons for Judgment
P.T. O'Marra J.:
Introduction
[1] On October 16, 2016, Mr. Grewal was charged in the City of Brampton with the following offences:
(i) That he was operating his motor vehicle while his ability was impaired by alcohol, contrary to section 253(a) of the Criminal Code of Canada; and
(ii) That he was operating his motor vehicle with excess blood alcohol, contrary to section 253(b) of the Criminal Code of Canada.
[2] There was an application pursuant to section 24(2) of the Charter of Rights and Freedoms to exclude at trial all evidence obtained subsequent to the violation of Mr. Grewal's right under section 10(b) of the Charter.
[3] Like in most cases, the matter proceeded as a blended voir dire; however, the testimony of Mr. Grewal's daughter, Paramvir Grewal applied only to the trial proper.
[4] Mr. Grewal bears the onus on the section 10(b) Charter argument on a balance of probabilities. The Crown has the onus to establish that the warrantless search and seizure in this case was lawful. See: R. v. Hass, [2005] O.J. No. 3106 (C.A.) paras. 24-26. However, at the conclusion of the trial, Mr. Locke abandoned his assertion that the warrantless search and seizure of his client's breath was not pursuant to a lawful demand.
[5] I am left, therefore to determine the following issues:
(i) Upon his arrest did the police fail to inform Mr. Grewal that he had the right to retain and instruct counsel without delay, contrary to section 10(b) of the Charter?
(ii) If the answer to the first question is "yes", should there be an order excluding all evidence obtained subsequent to the violation of Mr. Grewal's right pursuant to section 24(2) of the Charter?
(iii) Has the Crown proved beyond a reasonable doubt that Mr. Grewal operated his motor vehicle while his ability was slightly impaired by alcohol?
An Overview
[6] On October 16, 2017, early in the evening, Avtar Singh Chauhan was driving to his friend's home. He saw Mr. Grewal's motor vehicle driving erratically along Bovaird Drive in Brampton. He called 911 to report the motor vehicle and the licence plate.
[7] At 7:11 p.m., P.C. Silelnikov and P.C. Best were dispatched to investigate. At 7:17 p.m., they arrived at Mr. Grewal's residence. They both observed Mr. Grewal getting out of his motor vehicle from the driver's side. The garage door was open. He appeared unsteady on his feet and almost falling over. He required his motor vehicle in order to steady himself. Both officers detected a strong odour of alcohol coming from his breath.
[8] At 7:17 p.m., Mr. Grewal was placed under arrest for impaired operation. Mr. Grewal called out in the direction of the open garage. His daughter, Paramvir Grewal came out and walked to her father. Mr. Grewal handed the keys to the motor vehicle to Ms. Grewal.
[9] At this point, Ms. Grewal attempted to persuade the officers that she had driven the motor vehicle and not her father.
[10] Mr. Grewal was handcuffed, given a pat down search and placed in the rear of P.C. Best's cruiser. To some degree the right to counsel was given to Mr. Grewal by P.C. Best in the form of "soft rights" which was a very cursory explanation of the right to counsel. P.C. Best left Mr. Grewal to assist P.C. Silelnikov who was speaking to Ms. Grewal.
[11] At 7:41 p.m., P.C. Best returned to her cruiser and at 7:43 p.m. commenced reading the right to counsel to Mr. Grewal until 7:48 p.m. P.C. Best read the formal breath demand to Mr. Grewal at 7:50 p.m.
[12] At 7:52 p.m., P.C. Silelnikov and P.C. Best left the scene and arrived at 11 Division at 8:06 p.m.
[13] At 8:17 p.m., Mr. Grewal was lodged in a cell.
[14] After finding the correct spelling of the name of his counsel of choice "Jerry Saltzman", P.C. Best called at 8:22 p.m. and 8:40 p.m. respectively; however there was no answer and no voicemail.
[15] At 8:28 p.m., Mr. Grewal requested that P.C. Best contact duty counsel on his behalf.
[16] From 8:31 p.m. until 8:51 p.m. Mr. Grewal spoke to duty counsel.
[17] At 8:52 p.m., Mr. Grewal was escorted to the breath room.
[18] At 9:05 p.m., Mr. Grewal provided his first sample of his breath that produced a reading of 224 milligrams of alcohol in 100 millilitres of blood and at 9:27 p.m. his second sample of breath resulted in a reading of 234 milligrams of alcohol.
Analysis
The Charter Application
[19] Mr. Grewal submits that after his arrest at 7:17 p.m., P.C. Best did not commence reading to him his right to counsel until 7:43 p.m. He argues that this is a violation of section 10(b) of the Charter.
[20] Section 10(b) of the Charter provides that upon arrest or detention, individuals must be advised of their right to retain and instruct counsel "without delay". The meaning of the term "without delay" was explained by the Supreme Court of Canada over seven years ago in R. v. Suberu, 2009 SCC 33 at para. 42:
To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.
[21] P.C. Best did not immediately provide to Mr. Grewal the informational nor the implementational components of the right to counsel upon his arrest or detention. The Crown argues that this was not an infringement of section 10(b) citing an overarching concern for officer safety given that Ms. Grewal was confrontational with the police over her father's arrest.
(i) Officer Safety
[22] Mr. Grewal submits that the "officer safety" exception has been exaggerated by the officers, more so by P.C. Best than P.C. Silelnikov and should be rejected.
[23] The concept of officer safety in the context of detaining an individual includes the notion that the officer asserting the doctrine must have a reasonable belief based on facts known at the time. However, courts must be careful to protect an officer's safety. But equally important is the courts' obligation to ensure that officer safety concerns do not infringe upon the individual's liberty.
[24] As Justice Schreck stated in R. v. Singh, [2015] O.J. No. 5922, at para. 24:
Policing is an inherently dangerous profession and the courts must be sensitive to the need to ensure officer safety. That said, there must nonetheless be limits on the extent to which the police can infringe on individual liberty in the name of safety. That limit depends on what is reasonably necessary in the circumstances. To determine reasonable necessity based on safety concerns in the detention context, it is helpful to consider how that standard is applied in the search context. When searches are reasonably necessary for safety reasons was considered in R. v. MacDonald, 2014 SCC 3, where LeBel J., writing for the majority, stated (at para. 41):
But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view, the principles laid down in Mann 2004 SCC 52 and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see also para. 45). The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v. Tse, 2012 SCC 16, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on "reasonable and specific inferences drawn from the known facts of the situation" (Mann, at para. 41).
[25] I must consider whether officers Silelnikov and Best's safety concerns were at stake and reasonably based on the ascertained facts that justified breaching Mr. Grewal's section 10(b) right.
[26] P.C. Silelnikov testified that he remained with P.C. Best for "officer safety reasons". He spent approximately ten minutes talking to Ms. Grewal. He testified that he dismissed her story almost immediately.
[27] P.C. Silelnikov testified that Ms. Grewal's story was inconsistent. She appeared nervous and unable to make eye contact with him while telling her story. He felt that she was being untruthful and was just covering up for her father. She was "outraged and was not happy with the motor vehicle seizure". He testified that he was with her explaining the situation until 7:52 p.m. He felt that P.C. Best remained at his side for safety reasons as Ms. Grewal was in such an emotional state. In addition, Mr. Grewal's wife and a young male were present. The extent of their involvement was to yell "you can't take the car". There were no acts or threats of violence towards the officers. P.C. Silelnikov indicated that he retrieved the keys from the daughter without any resistance from her. In fact, when P.C. Silelnikov directed Ms. Grewal to retrieve her father's wallet she was compliant.
[28] In cross-examination, P.C. Silelnikov conceded that he did not record in his notes that the daughter was yelling. He stated that he required P.C. Best to assist him when he was speaking to the daughter as she has "people skills". P.C. Silelnikov agreed that he could have gone to the cruiser to provide the right to counsel to Mr. Grewal, but he testified that he was uncertain if P.C. Best had already spoken to Mr. Grewal. He also acknowledged that he never bothered to inquire if P.C. Best had informed Mr. Grewal of his right to counsel. P.C. Silelnikov agreed with the suggestion that Ms. Grewal did retrieve Mr. Grewal's wallet from the motor vehicle.
[29] If there was a bona fides officer safety concern the officers could have easily called for backup from other officers to assist in managing Mr. Grewal's family. When that suggestion was put to P.C. Best in cross-examination, she testified that she did not feel that it was necessary to "pull other officers from other calls".
[30] P.C. Best recorded in her notes that any reason for the delay for the tow truck or other units arrival was not due to officer safety issues or difficult circumstances, but rather it was due to the "investigation". Neither officers cited in their notes that there was a concern for officer safety that led to the delay in the implementation of the right to counsel or the delay in the arrest and processing of Mr. Grewal.
[31] In my view, the 33 minute delay had less to do with officer safety concerns and more to do with calming down Mr. Grewal's family, explaining the reason for the tow and to investigate Ms. Grewal's story.
(ii) The Duty to Investigate Ms. Grewal's Story
[32] The Crown advanced a further argument in the Response to the Notice of Application that the police delayed informing Mr. Grewal about the right to counsel as they were obligated to investigate Mr. Grewal's daughter's claim that she was the driver of her father's motor vehicle and not him.
[33] Mr. Grewal argues that the officers were engaged in a further investigation and that should not have undermined Mr. Grewal's right to immediacy to be informed of his right to counsel as stated in Suberu.
[34] I agree with the Crown that the police had a duty to investigate her claim and that may have affected their grounds to arrest Mr. Grewal. However, I am not persuaded that the officers spent a great deal of time investigating Ms. Grewal's story. As P.C. Silelnikov testified he had rejected her story almost immediately based on their reasonably held belief that they had arrested the correct driver.
(iii) The Soft Rights
[35] The Crown argues that when P.C. Best placed Mr. Grewal in the rear of the police cruiser she provided him with "soft rights" or "quick rights", and as such she fulfilled the section 10(b) requirement.
[36] I respectfully disagree with the Crown that this was in compliance with the informational requirement of section 10(b). As a matter of routine the Supreme Court has mandated that a detainee must be informed of the existence and availability of duty counsel and legal aid in order to give the detainee a comprehensive understanding of the right to retain and instruct counsel. See: R. v. Brydges and R. v. Pozniak, [1990] 3 S.C.R. 310.
[37] As the Supreme Court stated in Suberu, the right to counsel must be given without delay and that means immediately. The officers embarked upon other actions, some are acceptable such as fulfilling administrative duties, but the majority of their time was spent conversing with Ms. Grewal and other family members. This delay could have been circumvented if they simply called for assistance and regained their focus on providing Mr. Grewal's Charter-protected rights.
[38] Based on the foregoing, the delay in providing Mr. Grewal's right to retain and instruct counsel was violated.
Section 24(2)
Should there be an order excluding all the evidence obtained subsequent to the violation of Mr. Grewal's right to counsel pursuant to section 24(2) of the Charter?
[39] The Supreme Court of Canada, in R. v. Grant, 2009 SCC 32, held that three factors are relevant to an assessment of whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute:
(1) an evaluation of the seriousness of Charter-infringing state conduct;
(2) the seriousness of the impact of the breach on the Charter-protected interests of the accused; and
(3) society's interest in an adjudication of the case on its merits.
After considering these factors, a court must balance the assessments under each line of inquiry in deciding the ultimate issue.
[40] Mr. Grewal did not receive the fully informed right to counsel until 7:43 p.m. from P.C. Best. Notwithstanding that Mr. Grewal was given his right to counsel and indicated that he wanted to speak to counsel of choice and did speak to duty counsel, does not ameliorate or give Mr. Grewal a "fresh start". See: R. v. Manchulenko, 2013 ONCA 543, R. v. Singh [2015] O.J. No. 5922. In this case, the Charter breach and the obtaining of the evidence were part of the same chain of events and temporally connected. On the facts of this case, I do not find that there was a "fresh start" that had the effect of severing the link. As a result, the evidence at issue was "obtained in a manner that infringed or denied" Mr. Grewal's Charter rights.
Seriousness of the Charter-Infringing State Conduct
[41] In my opinion the breach of Mr. Grewal's right was serious. As already stated, I am sceptical that the officers needed 24 minutes (time of the arrest to the time he was given the right to counsel) to investigate Ms. Grewal's claims that she was the driver. As I understand the evidence, the police spoke to Ms. Grewal for ten minutes, and her story was quickly rejected. The right to counsel has to be administered without delay upon arrest or detention. The right is not suspended while the police further investigate. Even if I do accept that the officers had only spent ten minutes investigating her story, an officer still had ample time to read the right to counsel to Mr. Grewal. Rather than doing so, the officers called for a tow truck, called dispatch to advise that they had Mr. Grewal in custody, and called for a breath technician. Even if I gave the officers the benefit of the doubt that they were absolutely satisfied that they had the correct driver in custody at 7:36 (when they called for the tow truck) that still left approximately seven minutes for the police to commence reading the right to counsel and the breath demand.
[42] Furthermore, the claim that the police officers needed to remain at each other's side for "officer safety reasons", in my view, has been embellished. They could have called for assistance and then focused on providing Mr. Grewal his right to counsel. The circumstances of Mr. Grewal's arrest were hardly dynamic involving multiple detainees and the officers were not outnumbered facing a very real officer safety concern. See R. v. Blazevic, [2012] O.J. No. 531 and R. v. Bollers, [2017] O.J. No. 2740 (S.C.J.). For those reasons the state-infringing conduct militates towards exclusion.
The Impact of the Breach on the Charter-Protected Interests of Mr. Grewal
[43] I am next required to consider the impact of the violation on Mr. Grewal's constitutionally protected interests. "The more serious the impact on the accused's protected interests", the majority in R. v. Grant, 2009 SCC 32, noted, "the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration into dispute."
[44] Mr. Grewal was handcuffed, patted down and placed in the rear of the cruiser after his arrest at 7:17 p.m. The right to counsel was commenced at 7:43 p.m., which was 31 minutes after his arrest. He did not have the comfort of knowing that he could speak to a lawyer or duty counsel during that period of time. He made it clear in the police cruiser that he did want to call a lawyer. He also stated that he was "very uncomfortable" and asked for his hands to be "released". It is a reasonable inference to draw that Mr. Grewal's handcuffs were too tight and needed to be loosened.
[45] With regard to the breach of the right to counsel, I consider the impact upon the accused's Charter protected right to be significant. In my view, admission of the evidence would send the message that the accused's right to counsel counts for little.
[46] Justice G.A. Martin once described the right to counsel as one of "superordinate" importance. It is the means by which individuals can gain an understanding of all their rights, obligations, and vulnerabilities; and it is the means by which individuals may then begin to assert their other rights. See R. v. Sakharevych, [2017] O.J. No. 5209 paras. 104 and 105.
[47] The impact on Mr. Grewal's Charter-protected rights was relatively serious. This favours exclusion.
Society's Interest in the Adjudication of the Case on Its Merits
[48] Mr. Grewal's breath samples and the breath room video are reliable and probative evidence which is essential to the determination of the case on its merits. I am mindful of the seriousness of the case, the reliability of the evidence and its importance.
[49] Drinking and driving has potentially deadly and life altering consequences. The carnage that it creates is a scourge to our society: See R. v. Bernshaw.
[50] I am aware of the fact that the seriousness of the offence should not take on a disproportionate significance. See R. v. Harrison, 2009 SCC 34.
[51] The exclusion of breath samples will be fatal to the Crown's case. However, had the right to counsel not been ignored for such a long period of time, perhaps this would not be necessary.
[52] In this case and in these particular circumstances, taking into consideration the three factors that I have outlined, it is my view that in order to best serve the long-term repute of the administration of justice the evidence is excluded. As a result, the charge of excess blood alcohol is dismissed.
Has the Crown Proved Beyond a Reasonable Doubt Mr. Grewal Was Operating His Motor Vehicle While His Ability Was Impaired by Alcohol?
[53] The Crown bears the onus of establishing that Mr. Grewal's ability to operate a motor vehicle was impaired at the relevant time. Impairment is generally understood as meaning that an individual's judgment is altered and his or her physical abilities, such as coordination or reaction time, are reduced. Evidence which establishes any degree of impairment from slight to great is sufficient to establish this element of the offence: R. v. Stellato.
[54] Ms. Grewal's testimony was that she drove her father home from his friend's house after he consumed too much alcohol. She described him as "smashed" and "pretty drunk". She claimed that he was "being a bit of a distraction" to the extent that he caused the motor vehicle to swerve. I believe her driving evidence was to account for the erratic driving that Avtar Singh Chauhan observed that caused him to call 911 to report a possible impaired driver.
[55] I find that based on Ms. Grewal's testimony that I do accept, that evidence alone with regards to her father's sobriety proves that he was beyond slightly impaired by alcohol. Furthermore, the officers described the following signs of impairment by alcohol:
P.C. Silelnikov observed Mr. Grewal having "trouble standing up and was almost falling over". He required the motor vehicle to steady himself.
P.C. Best observed that when Mr. Grewal stepped out of the driver's seat he "tripped over his feet".
Mr. Grewal needed P.C. Best's support to walk to the rear of the motor vehicle.
They were concerned that Mr. Grewal was so intoxicated that he was going to fall over and possibly injure himself.
They both stated that Mr. Grewal had the strong smell of alcohol on his breath.
P.C. Best observed that Mr. Grewal's speech was slurred.
After his daughter, Ms. Grewal came out of the garage Mr. Grewal handed his car keys to her.
Upon Mr. Grewal's arrest he was uncooperative and he refused to be handcuffed.
[56] Ms. Grewal testified that she drove her father's motor vehicle onto the driveway and opened the garage. She stated that her father got out of the passenger side and she waited for him to proceed through the garage and into the house. She claimed that she left the key fob in the cup holder inside the motor vehicle.
[57] After the police arrived and arrested her father she testified that her father denied driving and told the police that his daughter was driving the motor vehicle.
[58] The Crown submits that if I believe Ms. Grewal than I must acquit Mr. Grewal. Applying the principles of R. v. W.D. I do not believe Ms. Grewal's evidence on this point that she was the driver. Ms. Grewal was not an independent witness, and I cannot rule out the possibility that she was not an interested party in the outcome of these proceedings. It would be easy to conclude that she does not want her father to incur a criminal record and lose his driving privileges over this matter. However, I do not place any undue weight on that possibility when I assess her credibility. See: R. v. Laboucan, 2010 SCC 12. Nevertheless, I am entitled to accept all, part, or none of the evidence of a witness. R. v. Toy, 2009 ONCA 176.
[59] Ms. Grewal's story about accompanying her father to a body shop to check the motor vehicle tire pressure is difficult to accept. She felt that he could have been drinking before they left but did not expand on what was the basis for her belief. Furthermore, she claimed he drank at his friend's body shop and then at his friend Charnjit Singh's home. She could not tell the court what he was drinking or how much he had to drink. Her description in this regard was devoid of details. Her account of the drive home was equally unbelievable. She stated in cross-examination that her dad was talking to her and there was a "possibility" that the motor vehicle swerved. Her evidence was tailored to fit into Mr. Chauhan's account of the erratic driving that he observed. This evidence I describe as a convenient coincidence.
[60] I accept the evidence of the officers that they saw Mr. Grewal exiting from the driver side of his motor vehicle with the keys in his hand. I reject the notion that Ms. Grewal was the driver. I must be careful in assessing the remainder of her evidence in the face of my abject rejection that she was the driver of the motor vehicle. If a witness deliberately lied, demonstrated a marked disregard for the truth, or patently unreliable, a trier of fact must be alive to the impact that such a finding can have on the assessment of that witness's credibility. See: R. v. MacIntosh, 2011 NSCA 111. That being the case I accept her evidence that her father was intoxicated as this was her raison d'etre to claim that she was driving. On the evidence that is before me, I am more than satisfied beyond a reasonable doubt that Mr. Grewal was impaired by alcohol.
[61] However, that does not end the matter. I still have to be satisfied beyond a reasonable doubt that Mr. Grewal was 'operating' his motor vehicle based on the evidence led by the Crown. The Crown relied on the observations of the civilian witness, Mr. Singh Chauhan and both officers. The officers never saw Mr. Grewal drive the motor vehicle into the driveway. Mr. Chauhan conceded in cross-examination that due to the window tinting he could not see the driver and could not determine if the driver was a man or woman. As well, he could not tell if there was more than one person in the motor vehicle.
[62] That being the case, based on the evidence that I have accepted, I am not satisfied beyond a reasonable doubt that the Crown has proven that Mr. Grewal was in fact operating his motor vehicle moments before the arrival of police.
[63] Having found that I am not satisfied beyond a reasonable doubt that Mr. Grewal was operating his motor vehicle while his ability was impaired by alcohol does not end the matter. It has been long established that impaired care or control is an included offence. Recently the Ontario Court of Appeal reaffirmed the doctrine of included offences in R. v. Pawluk, 2017 ONCA 863. On behalf of the panel Justice Paciocco stated at para. 19 the following:
The parties before us are in agreement that care or control over 80 is an included offence in a charge of driving over 80. By implication, this proposition has long been settled in this court, which has held that impaired care or control is an included offence in an impaired driving allegation: see R. v. Plank. This same proposition has also received the endorsement of the Supreme Court of Canada when the court upheld the decision in R. v. Drolet, for the reasons given by LeBel J.A., as he then was: . If impaired care or control is an included offence in an impaired driving allegation, care or control over 80 is an included offence in a charge of driving over 80.
[64] In my view the Crown is entitled to rely on the presumption of care or control under s. 258(1)(a) of the Code, as Mr. Grewal was observed at 7:17 p.m., in "the seat or position ordinarily occupied by a person who operates a motor vehicle" and he was in possession of the keys of the motor vehicle. Since Mr. Grewal has done nothing to discharge his onus to rebut the presumption, the Crown has established that he was in care or control.
[65] To rebut the presumption of care or control contained within section 258(1)(a) of the Code, the accused must establish that she or he lacked the intention to set the vehicle in motion. If this occurs, the Crown has the onus of proving that the accused had de facto care or control of the vehicle. This requires proof that a realistic risk of danger to persons or property existed in the circumstances despite the lack of an immediate intention to place the vehicle in motion. The Ontario Court of Appeal has suggested that the "question the court must determine is whether any realistic risk of danger was created" (see R. v. Balogun-Jubril, [2016] O.J. No. 1231 (C.A.), at paragraph 12). It has also been noted that "even if an accused satisfies the court that he did not occupy the driver's seat with an intention to drive, this will not necessarily result in an acquittal. Nor will it automatically result in a conviction. In the absence of an intention to drive, what will be required to convict is that there be a realistic risk of danger given the particular facts of the case" (see R. v. Steuart, 2014 MBCA 7, at paragraph 43).
[66] Even if I am incorrect that Mr. Grewal has not led any credible evidence that he lacked the intention to set the vehicle in motion, I am still satisfied that the Crown has discharged its onus that Mr. Grewal had de facto care or control of his motor vehicle and presented a realistic risk of danger to drive his motor vehicle regardless that he was parked on his driveway and he was intending to enter his home. Whether he had the keys in his possession as the police observed or they were in a cup holder, given Mr. Grewal's level of intoxication he could have changed his mind and decided to drive while heavily intoxicated.
[67] The standard for a realistic risk is a low threshold. The Court noted in R. v. Boudreault, 2012 SCC 56, at para. 48 that the realistic risk test constitutes a "low threshold":
I need hardly reiterate that "realistic risk" is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. 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.
Conclusion
[68] For the reasons already stated, the Crown has established that Mr. Grewal was in care or control of his motor vehicle while his ability was impaired by alcohol. He is found guilty of this included offence.
Released: December 20, 2017
Signed: Justice P.T. O'Marra