Court File and Parties

Ontario Court of Justice

Date: 2018-03-20

Court File No.: Gore Bay 17-204

Between:

Her Majesty the Queen

— and —

Erin Medakovic

Before: Justice V. Christie

Heard: March 12, 2018

Reasons for Judgment Released: March 20, 2018

Counsel:

• D. Beaton, counsel for the Crown
• M. Venturi, counsel for the defendant Erin Medakovic

Judgment

CHRISTIE J.:

Charges

[1] Erin Medakovic pleaded not guilty to two charges as follows:

On or about the 24th day of April, 2017 at the Town of Northeastern Manitoulin and the Islands in the said region while her ability to operate a motor vehicle was impaired by alcohol, did have the care or control of a motor vehicle contrary to Section 253(1)(a) of the Criminal Code

And further that

On or about the 24th day of April, 2017 at the Town of Northeastern Manitoulin and the Islands in the said region, having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did have the care or control of a motor vehicle contrary to Section 253(1)(b) of the Criminal Code.

[2] The Crown elected to proceed summarily.

[3] A number of Charter motions were filed by the defence. At the outset of the trial, an application for disclosure, pursuant to s. 7 of the Charter, and an application pursuant to s. 9 of the Charter were abandoned. At the end of the trial, defence counsel effectively abandoned the remaining Charter arguments and advised the Court that a ruling on the issue of care or control would settle all of the issues given that:

(1) If the Court were to find that care or control is not proven, then Ms. Medakovic would be found not guilty of both charges

(2) If the Court were to find that care or control is proven then, as a result of Kienapple, the Court could ultimately only enter a conviction on one count, which could be the impaired charge, and therefore, the over 80 charge would be stayed in any event.

[4] For these reasons, the defence is not requesting or requiring a ruling on the remaining Charter motions.

Facts

Evidence Called by the Crown

Victor Van Horne

[6] The first witness for the Crown was Victor Van Horne. He testified that he had lived in Little Current for the past 15 years. In the early morning hours of April 24, 2017, he was returning home from working his night shift. He saw a car pulled over on the side of the road, located a couple of houses away from his house. The driver's door was open and the car was running. There was a woman in the driver's seat of the car. There was no one else near the car. There were street lights in the area, however, Mr. Van Horne could not be precise about the level of lighting around the vehicle.

[7] Mr. Van Horne went home and parked his truck. He was considering what he should do. In cross-examination, he added that he walked back to the motor vehicle when he was still deciding whether to notify someone. He said that he did not know what was wrong with the female, as she was just lying there. He was about 10 feet away from the vehicle at that time.

[8] Mr. Van Horne decided to notify the police. He was somewhat unsure about times and estimated that it was about 30 minutes from the time he saw the vehicle until he went to the police. He attended at the OPP station and advised the police of what he saw. The police followed Mr. Van Horne back to the location of the vehicle. When they arrived back at the vehicle, it was still in the same position, with the driver's door open and the vehicle running. The female was still in the driver's seat. He estimated that it was approximately an hour from the first time he saw the vehicle until he returned with the police.

[9] He ultimately agreed that the total time he observed the vehicle was less than 15 minutes, and that it may only have been a few seconds.

Sgt. Michael Corrigan

[10] On April 24, 2017, Sgt. Corrigan and Constable Chapman became involved in an investigation into this matter. They were in the Little Current OPP detachment when a gentleman came to the door at 1:46 a.m. Sgt. Corrigan stated that he arrived at the vehicle at 1:49 a.m. Constable Chapman went ahead of him and when Sgt. Corrigan arrived, Constable Chapman was stopped behind the vehicle. The vehicle was parked in a grass area on the north side of Vankoughnet Street. In cross-examination, he explained that there is no shoulder of the road in that area and that the grass went right to the hard top of the road surface. He agreed that this would not be where cars would normally travel. He also agreed that this was consistent with where a motor vehicle had parked, not crashed. Sgt. Corrigan went past the vehicles and angled his car on the roadway so as to shine his lights on the driver's door. He could see legs in the driver's seat, with feet toward the foot controls. He did not see anyone else around the vehicle.

[11] Sgt. Corrigan stated that it was cold and windy that night and that he could see exhaust coming from the vehicle. Constable Chapman dealt with the person in the vehicle while Sgt. Corrigan provided backup and support. He positioned himself more toward the rear of the vehicle on the driver's side. When he approached the vehicle, he could see the driver's seat was reclined and a female person was laying down on the seat with her head essentially over the back seat. She was not conscious. In cross-examination, it was put to Sgt. Corrigan that he had used the term "deep sleep" in his notebook. He indicated that he had written his notes after the fact and he wrote that because it took a long time for her to gain consciousness. In cross-examination, Sgt. Corrigan was asked if the female would have been in a position to reach the steering wheel to which he replied that he was not sure, but likely no. In re-examination, Sgt. Corrigan responded in the affirmative when asked whether she would be able to reach the steering wheel if she sat up.

[12] Constable Chapman started to speak to the occupant and she was unresponsive at first. In cross-examination, Sgt. Corrigan explained that Constable Chapman was calling to her and tapped on the window near where her head was, but that he did not recall Constable Chapman touching her. There was no indication in Sgt. Corrigan's notes as to how loud the knocking or tapping was. Sgt. Corrigan estimated that it was about 30 seconds before she became responsive. However, in cross-examination, he admitted that it could be 20 seconds or 40 seconds, he could not say for sure, however, in his opinion it was more than what was normal for someone to respond.

[13] Sgt. Corrigan observed the female when she came out of the vehicle. He confirmed in cross-examination that she did not have a seat belt on. She sat up and sat on the seat. She stood up outside the vehicle. Constable Chapman advised her that she was under arrest and he cuffed her to the rear. In cross-examination, Sgt. Corrigan was referred to his notebook where he had written some comments made by Ms. Medakovic. Sgt. Corrigan agreed that, in response to the arrest, Ms. Medakovic stated that she was not doing anything wrong, just sleeping. This response was in a timely manner. Sgt. Corrigan also had some conversation with Ms. Medakovic regarding why she was in Little Current and what she had been doing that night. Sgt. Corrigan described her speech as laboured, slow and slurrish, however, he did not note what words were slurred and there was no indication that she was asked to repeat herself. He indicated that at the beginning she was somewhat incoherent and confused, like someone coming out of a deep sleep. However, in cross-examination, he admitted that she was responsive to his questions and that there was comprehension. Sgt. Corrigan admitted that everyone's speech is different and he had never met Ms. Medakovic prior to this occasion. He said that as time went on she became more coherent. Sgt. Corrigan agreed that she continued to protest that she was just sleeping and that she was not doing anything wrong. She said this more than once.

[14] Constable Chapman took the female to his police cruiser, while Sgt. Corrigan stayed at the vehicle. Constable Chapman had turned off the vehicle and taken the keys. Under the upper area of the reclined driver's seat, on the floor of the rear driver's side, Sgt. Corrigan located an LCBO bag with some empty alcohol cans, six in total, which he seized. He also located a purse and a packed sack on the rear seat. He located identification in the sack for Ms. Medakovic with an address in Sudbury. Constable Chapman provided the keys back to Sgt. Corrigan, who secured the vehicle. The vehicle was off the roadway and was not a hazard to others or a safety concern. He cleared the scene at 1:57 a.m. and went directly back to the detachment.

[15] Sgt. Corrigan had some further interaction with Ms. Medakovic at the detachment. He opened the sally port door and Constable Chapman escorted her into the booking area. In the booking area, he was present when she removed her outer clothing and then she was placed in the cells. Sgt. Corrigan agreed that, at the station, she continued to say this was ridiculous and that she did not do anything wrong.

[16] Sgt. Corrigan never noticed Ms. Medakovic having any balance issues at the scene of the vehicle or at the station.

Constable Nicholas Chapman

[17] Constable Nicholas Chapman testified that the vehicle was located approximately 50 metres to the east of the intersection at Vankoughnet Street and Hayward Street in Little Current. He agreed in cross-examination that he had no notes about the placement of the motor vehicle in this location. The vehicle was a silver SUV which was on the shoulder of Vankoughnet Street facing west. The vehicle was running and the driver's door was open. He parked behind the vehicle, walked up on the driver's side and noticed one occupant in the driver's seat who was sitting in the seat normally, but with the seat fully reclined. The person was unconscious, which he agreed meant that she was sleeping. There was no light directly overhead but there were street lights and residential lights in the area. In cross-examination, Constable Chapman agreed that the car was parked in an area where no one would be driving.

[18] Constable Chapman testified that he was parallel to the B pillar of the vehicle. He knocked on the back side window and announced himself as a police officer. In cross-examination, he admitted that he had no notes of what he said. He testified that he was using a slightly elevated voice but was not yelling, however, he agreed that this was not in his notes. There was no response initially. He noticed an odor of alcohol coming from inside the vehicle. The fan of the vehicle was blowing full force and there was heat coming from the vehicle. Constable Chapman agreed that, at that time, he was unaware of the empty alcohol containers in the car. He also agreed that he did not note alcohol coming from the female's breath and if he noticed that, he would have noted it. He agreed that the high heat in the vehicle would have circulated and intensified the smell of alcohol. As he was standing there attempting to arouse the occupant, he heard on the police radio that the owner of the vehicle was Gloria Medakovic. He knocked on the window three separate times and then the occupant began to come to. She seemed very groggy, however, he acknowledged in cross-examination that it is common for someone to awake groggy and that he did not ask her how long she had been sleeping. Constable Chapman reached in and turned off the vehicle. He stated in cross-examination that he had not felt the engine to determine how long it had been running. Constable Chapman testified that it took about 1.5 to 2 minutes for the occupant to regain consciousness. He agreed that this estimate of time is not in his notes and that it is just an estimation.

[19] As the occupant regained consciousness, he was calling her Gloria. The occupant stated that she was Erin and that her mother was Gloria. She did this in a timely manner. He testified that she seemed confused, beyond normal of a person waking up and that she did not know what was going on. Constable Chapman indicated that her eyes were glossy and red-rimmed and that her speech was slurred in the same way as an intoxicated persons would be when talking to them. In cross-examination he admitted that he did not note what words were slurred, however, he testified that it was every word. Constable Chapman formed reasonable and probable grounds to believe that the female seated in the driver's seat of the motor vehicle was intoxicated by alcohol. Specifically, Constable Chapman testified that his reasonable and probable grounds for belief were based on his observations that there was an unconscious person in the driver's seat of a motor vehicle on a cool spring night, the heat was blasting, there was a smell of alcohol coming from the vehicle, she was confused and disoriented upon waking, her eyes were glazed and red-rimmed, and her speech was slurred. He agreed in cross-examination that it might be normal for someone to have red eyes at this time of the morning and that also the high heat in the vehicle might lead to dry red eyes.

[20] At 1:53 a.m., Constable Chapman advised Ms. Medakovic that she was under arrest for care and control of a motor vehicle while her ability to operate a motor vehicle was impaired by alcohol. He asked her to step out. She got out of the vehicle without any balance issues and he did a cursory search of her person and escorted her back to the force vehicle. While they were inside the force vehicle, he then read her the breath demand, rights to counsel and caution from his force issued card at 1:53 a.m., 1:54 a.m., and 1:55 a.m., respectively. In response to whether she understood the breath demand, her answer was "yes". In response to whether she understood the rights to counsel, her response was "yeah". In response to whether she wished to call a lawyer now, her answer was "no". In response to whether she understood the caution, initially her answer was "this is ridiculous". Constable Chapman asked her again whether she understood and she said "um hmm". When asked if she wished to say anything, she did not respond. There was no odor of alcohol on her breath noted. She took instructions and appeared to be understanding everything.

[21] The vehicle was left where it was parked. It was not creating a hazard.

[22] At 1:59 a.m., Constable Chapman left the scene and headed to the detachment, taking the most direct route. He arrived at the detachment and went to the cell lodging area. Ms. Medakovic was lodged in the cell at 2:05 a.m. Ms. Medakovic was continually saying that the charge was "bullshit" and she did not understand why she could not sleep in her vehicle when she was drunk. The officer explained that this was a criminal offence. Constable Chapman offered to call her a lawyer so that the lawyer could explain this to her. He asked if she had a lawyer that she wanted contacted or duty counsel. Ms. Medakovic declined this offer. Constable Chapman stated that if she had asked for a list of lawyers, it would have been provided, specifically he would have given her the opportunity to look up a lawyer. In re-examination, he confirmed that there is a phone book at the detachment that has listings for local lawyers.

[23] At 2:16 a.m., Ms. Medakovic was removed from the cell so that Constable Brooks, a female officer, could conduct a more thorough search. Again, Ms. Medakovic indicated that she thought it was ridiculous that she could not remain in her car and "sleep it off". Ms. Medakovic was re-lodged in the cell while Constable Brooks prepared the breath testing instrument. There were no balance issues during this time. There was no odor of alcohol in the cell.

[24] At 2:27 a.m., Constable Chapman provided Constable Brooks with his grounds for arrest. He advised her that there was an odor of alcohol coming from the vehicle, that the occupant was unconscious in the driver's seat, the vehicle was running, the heat was on full, the driver's door was open, the occupant was disoriented beyond the norm, slurred speech, and glazed red-rimmed eyes.

[25] At 2:36 a.m., Ms. Medakovic was removed from the cell and turned over to Constable Brooks for the first test. Constable Chapman was not present when the tests were performed. At 2:43 a.m., Ms. Medakovic was re-lodged in the cells. At 2:59 a.m., Ms. Medakovic was removed from the cells for the second test. At 3:05 a.m., Ms. Medakovic was lodged again in the cells.

[26] At 4:35 a.m., Constable Chapman spoke with Ms. Medakovic briefly to serve her with some documentation.

Constable Kailynn Brooks

[27] Constable Kailynn Brooks testified in relation to the breath samples that were taken and analyzed. Defence counsel confirmed that there was no issue concerning the functioning of the machine. The results of the test were 195 for the first test at 2:37 a.m. and 193 for the second test at 3:01 a.m.

[28] Constable Brooks also stated that in filling out the alcohol influence report, Ms. Medakovic advised her that she had been drinking, that she had 8 beer, she started drinking at 2 p.m. and her last drink was at 11:00 p.m., it took her 30 minutes to consume her last drink which was a beer, and she had been sleeping in the vehicle for an hour.

Defence Evidence

Erin Medakovic

[29] Erin Medakovic testified in her own defence. She stated that in April 2017 she was living with her parents in Sudbury and that she was not employed at that time.

[30] She had come to Little Current on April 22, 2017 to visit with friends. She was driving a Hyundai Santa Fe SUV. On April 22, 2017, she spent the night with her friend Nathan on White's Point Road, about a 5 minute drive from downtown Little Current. She agreed that she had no trouble getting to Nathan's, she was comfortable in his house, and that he is a close friend. She also agreed in cross-examination that this is a walkable distance from Little Current.

[31] The next day, April 23, 2017, she left Nathan's and went to Little Current and tried to get in touch with friends to visit. Upon arriving in Little Current, she parked at Elliott's Restaurant and used her phone to text a few people. Following that, she drove to the home of Warren Cooper, who lived on Vankoughnet Street. She parked in his driveway at about 2:00 pm on April 23, 2017. Up to that point, she had not consumed any alcohol that day. Mr. Cooper was at home when she knocked and she visited with him for a while. At this point, she started drinking. She stated that she had two beer (355 ml cans).

[32] Ms. Medakovic asked Mr. Cooper if it was ok to park in his driveway, but he stated that he would need access in and out. She asked Mr. Cooper to move her vehicle to the side of the street. She did this because she had already consumed the two beer and she did not want to operate her vehicle. She asked him to move the vehicle to a good location where it could stay. Mr. Cooper moved the vehicle to the location where the police ultimately found it, on the shoulder in front of his house. Ms. Medakovic never moved the vehicle again that night. In discussion with Mr. Cooper, she said that she was going to get in touch with a couple of friends to see if she could spend the night and that in the event that she could not do that, she planned to sleep in her vehicle.

[33] Ms. Medakovic stayed at Mr. Cooper's for a few more drinks, probably 4 more drinks. She then went to meet a friend at Elliott's Restaurant at the top of Vankoughnet Street. She walked to Elliott's, which was a 5 minute walk, at around 6:30 or 7:00 p.m. At Elliott's, she met her friend Jordan and she had two glasses of wine. She estimated that she stayed there for about an hour, at which point, her and Jordan walked to his mother's residence. She was unsure of the address but it was only a 2 minute walk. She said she stayed at Jordan's mother's residence for an hour or an hour and a half at most. In cross-examination, she confirmed that she did not drink any alcohol at Jordan's mother's residence. She asked Jordan if she could spend the night but he said that it was not a good idea as this was his mother's place. She agreed in cross-examination that she would have left Jordan's mother's house at around 10 p.m.

[34] Jordan walked her back to her vehicle at Mr. Cooper's residence and then he left. She opened the vehicle and got into the driver's seat, reclined the seat and texted a couple of people, including Jamie and Nathan. Jordan also texted her to say that he made it back home safely. Ms. Medakovic stated that if she reached Jamie, her intention was to walk to her place which was a 5 minute walk. The reason for reclining the seat was so that she could sleep more comfortably rather than in an upright seated position. She tried to fall asleep but it got cold so she turned the vehicle on for the heat. She then fell asleep, as was her intention. When she fell asleep the driver's door was closed. When asked whether she opened the door, she said "I don't know" and that she had no recollection of opening the door. In cross-examination she stated that she locked the vehicle, specifically there was one button on the driver's door that locked all the doors. She agreed that she had the only key to the vehicle. She could not say how the driver's door got open. She had not invited anyone into the vehicle and did not recall anyone else coming to the vehicle. She agreed that the vehicle had the usual type of foot pedals and that with her seat pulled back and reclined her feet were approximately one foot away from the pedals.

[35] In cross-examination, it was suggested to her that in order to get the door open, she would have to sit up. She said "not necessarily". It was suggested to her that she would have had to open the handle, to which she replied that if her arm hit the unlock or hit the door handle it could open. She clarified that the doors do not have to be unlocked in order to open them from inside the vehicle. She also indicated that it could have been hot and she opened it, however, she agreed that she could have opened the window rather than the door. She also agreed that the reason to lock the doors was to be safe and that it was not reasonable to open the door. She was asked whether she thrashes in her sleep not knowing what she is doing to which she replied "sometimes yes". She was asked whether it was possible that she was too intoxicated to know what she was doing in the car to which she said "no, I was asleep. I know I am a deep sleeper. I know I have slept walked in the past". She agreed that she sleeps deeper the more she drinks and that she did have a lot to drink that day. She further testified that she has done things, physical things, in her sleep that she was not aware of.

[36] When asked why she did not stay at Mr. Cooper's, she testified that it was a smaller house with one bedroom, that his girlfriend was staying the night and that he had four large dogs and that she was terrified of dogs. She agreed in cross-examination that Mr. Cooper was a good friend whom she had known for a number of years. She was welcome in his home, and he had never refused to help her out.

[37] In cross-examination, she agreed that she was welcome to stay at Nathan's the night before and that she had not had a fight with him. Nathan did not know she was staying two nights and in fact she had planned to go back to Sudbury on the 23rd but then thought that she wanted to visit friends. She had his phone number and could have contacted him. She indicated that she did text him from the vehicle but did not get a response, thought he was sleeping and did not want to impose. She said in hindsight it would have been better to have plans. She said that it was poor planning on her part in terms of having a place to stay. She agreed in cross-examination that this was a "fluid" visit.

[38] Ms. Medakovic agreed in cross-examination that the car had been running for a significant amount of time before police arrived. She stated that she was woken up by bright lights and that she could sort of see the police outside the vehicle. The police were not yelling or screaming at her. She remembered being very confused as to what was happening, although she said that she recognized the police. She stepped outside the vehicle and was handcuffed. She estimated that it took her a couple of minutes to lose the confusion. Ms. Medakovic was asked about her level of impairment when she woke up, to which she stated that it was sort of hard to say because she was fresh out of a deep sleep and that she was confused for that reason but that alcohol played a part as well. She said that she did not feel like she would fall over or be sick but she was definitely confused. She testified that she was not in a position to drive and that it was never her intention to drive that evening. If she was not woken by police, her plans were to stay in the vehicle if she did not reach anyone, and at a more reasonable hour, she would try again to reach someone and walk to their place. She had no plans the next day and nowhere to be. When asked again what her plans were for the morning, she said she would reach out and try to meet up with friends in Little Current, or knock on Mr. Cooper's door and hang out, or she would walk around, take time to let the alcohol out of her system.

[39] Ms. Medakovic did recall saying to the police that she did not think she was doing anything wrong. She testified that, in the circumstances, she thought she was doing the right thing by staying in the vehicle just to sleep, keeping it parked, taking precautions to walk around and having someone else move her vehicle. She said she understood why the charge exists but that she thought she was justified to be in the vehicle.

[40] In order to move the car from park to drive, Ms. Medakovic explained that she would use the gear shift on the middle console, press the button with her thumb and move the shifter to the right gear. In order to do this, the brake needs to be pressed. In cross-examination she agreed that the shifter was within reach if she sat up. She indicated that she could not reach the steering wheel from her reclined position but that if she sat up she could reach it. She had no seat belt on. In cross-examination, she agreed that it would be fairly easy for her to sit up and grip the steering wheel.

[41] In cross-examination she agreed that she did not count her drinks that night. She indicated that she had an idea as to how many drinks she had, but could not be certain. She agreed that she told the qualified breath technician that she had 8 beer and agreed that she did not mention having any wine. She further agreed that alcohol can cloud memory.

[42] Ms. Medakovic testified that she had no intention of driving that motor vehicle and that it was never her intention to operate the vehicle under the influence. She stated that she had heard that a person should wait one hour for every drink so she was anticipating giving herself 12 hours after her last drink.

Warren Cooper

[43] Warren Cooper testified that he lived on Vankoughnet Street in Little Current for the past 10 years. He recalled Ms. Medakovic coming to visit in April 2017 and that she drove to his house. In cross-examination, he agreed that she was there for an hour or so. He was asked whether there was any discussion about driving. He stated that she wanted to park her car at his house. She thought she would visit for a while but he was leaving and needed to get his van out. Mr. Cooper testified that he moved her vehicle for her and that it was his decision as to where he put it. He told her he was going out and did not know what time he would be back. He did not want to leave the house door unlocked. Ms. Medakovic told him that she might crash at a friend's house or crash in the car.

[44] Mr. Cooper and his partner went out for the evening. When they got back, Ms. Medakovic's vehicle was still on the front lawn. He believed this was around midnight but then said it could be between 11 and 12. He was asked whether it was possible that he got home at 10 p.m. to which he said it was possible. They went in and went to bed. The car was not idling when they got home and no one was inside the car. The doors to the car were not open. He did not think he went out to the car that night.

[45] He stated that he had known Ms. Medakovic for 8-10 years and that she was somebody who was always welcome in his home. He agreed that if she needed help he would give it to her and if she needed a place to stay he would give it to her. He agreed that someone could tell whether he was home or not by his vehicle being in the driveway.

Position of the Parties

Defence

[46] Mr. Venturi argued that there is no realistic risk that the vehicle would be set in motion in this case. He stated that a determination of realistic risk depends on the findings of fact made by the Court. Mr. Venturi conceded that the testimony of Ms. Medakovic confirmed impairment, despite the fact that the officers gave very little and point to benign indicators lacking specificity which would be fatal without the testimony of Ms. Medakovic.

[47] Mr. Venturi submitted that there is ample evidence from Ms. Medakovic, corroborated by Mr. Cooper, that she had no intention to drive, including the fact that she would not even move her vehicle out of the driveway earlier in the evening. She was fully reclined in the driver's seat with no seat belt, demonstrating an intention to sleep, not to drive. When approached by the police, she stated "this is ridiculous". She was forthright in her testimony and recalled as best she could with no opportunity to review notes prior to testifying.

[48] According to Mr. Venturi, Ms. Medakovic's plans were somewhat certain in that she wanted to stay in Little Current another day. She had planned to visit with Mr. Cooper but the plans changed. Her plan was then that if she could not get in touch with friends, she would sleep in the car.

[49] With respect to sleep walking in the past, Mr. Venturi stated that she said she had slept walked in the past however, there was no information about when the last sleep walking was or what she does when she sleep walks. The Court, therefore, cannot conclude that this is a realistic risk without knowing more about the condition.

[50] A realistic risk cannot exist from the fact that the door was open. Mr. Venturi submitted that Ms. Medakovic was an honest witness. It would have been easy for her to say that she got hot and opened the door, but she did not do that. She was being honest about what she remembered.

[51] Mr. Venturi reminded the court that Ms. Medakovic was in a position in the car where she would have to sit up and move in order to operate the car. Her feet were a foot from the pedals. She would have to press the brake and press the button on the shifter to move the shifter into gear. This would require hand and foot coordination.

[52] Finally, Mr. Venturi submitted that Ms. Medakovic was very clear that she was not going to drive. The evidence of Ms. Medakovic and Mr. Cooper rebut the presumption that she had care and control.

Crown

[53] Mr. Beaton submitted that the operative part of the case of Boudreault comes from paragraph 42 which explains how a realistic risk can arise in three ways. In this case, Mr. Beaton submitted that we have a drunk person in an idling car late at night. Mr. Cooper said when he got home the car was not running. Ms. Medakovic admitted that she had slept walked in the past. Mr. Beaton submitted that in this case we have evidence that she can have random movement in her sleep without knowledge. She got in the car, she locked the doors, no one had the keys except Ms. Medakovic, yet the car door was wide open. The only person that could have logically opened the car door was Ms. Medakovic. This demonstrates a realistic risk of danger within the context of Boudreault. In the absence of an explanation of a third party coming to the vehicle, a locked door is wide open. If Ms. Medakovic is capable of doing this, she was capable of unintentionally setting the vehicle in motion, especially after many drinks and in essentially a passed out state.

[54] Mr. Beaton further submitted that the plan Ms. Medakovic had that evening did not amount to a solid plan and that the case law suggests more solid evidence is needed in terms of a plan.

[55] With no plan and in the absence of any explanation as to how the door was opened, Mr. Beaton submitted that the Court could consider this as falling under the second or third branch of paragraph 42 in Boudreault.

Defence Reply

[56] In reply, Mr. Venturi submitted that the third prong in paragraph 42 of Boudreault would not apply as the vehicle was safely off the road. Further, he submitted that the plan need not be as solid as the Crown suggested.

Analysis

Legal Principles

[57] Section 253 of the Criminal Code provides as follows:

253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. [emphasis added]

The burden of proof is on the Crown. The Crown must prove the guilt of the accused beyond a reasonable doubt.

[58] The Crown is entitled to attempt to prove care or control either by means of the presumption contained in s. 258(1)(a) of the Criminal Code, or by proving de facto control, or both.

[59] The mens rea for having care or control of a motor vehicle is the intent to assume care or control after the voluntary consumption of alcohol or a drug. The actus reus is the act of assumption of care or control when the voluntary consumption of alcohol or a drug has impaired the ability to drive. See R. v. Toews (1985), 21 CCC (3d) 24 (SCC) at para. 7, McIntyre, J.

[60] The Crown may establish care or control without proof of any intention to drive on the part of the accused. See: R. v. Ford (1982), 65 CCC (2d) 392 (SCC) at 399. The accused's intention is relevant, however, in so far as it may contribute to the presence of the required mens rea for the offence or tend to exclude it. See: R. v. Toews (1985), 21 CCC (3d) 24 (SCC) at para. 17. The accused's intention to either drive or not drive at some point in the future is also relevant to the actus reus in that it may serve to either increase or reduce the risk of danger from an impaired accused either (a) involuntarily setting the vehicle in motion, or (b) changing his or her mind and voluntarily putting the vehicle in motion.

[61] Section 258(1)(a) of the Criminal Code creates a rebuttable presumption of care and control. The section states:

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be…

[62] Ms. Medakovic occupied the driver's seat of the motor vehicle, therefore, the presumption is relied upon by the Crown in this case.

[63] The accused must rebut the presumption on a balance of probabilities. In R. v. Whyte (1988), 42 C.C.C. (3d) 97 (S.C.C.), the Supreme Court was asked to consider the constitutionality of this rebuttable presumption. The Court found that the section violated section 11(d) of the Charter, however, ultimately found that it was saved by section 1. The Court made the following comments:

28 …..The basic fact which the Crown must prove to invoke the section is that the accused occupied the seat normally occupied by the driver of the motor vehicle. The presumed fact is that the accused had the care or control of the vehicle. To rebut this presumption, the accused must "establish" the absence of intention to set the vehicle in motion. As I have already indicated, Appleby, supra, and other decisions of this Court make it clear that the word "establishes" requires the accused to prove lack of intention on a balance of probabilities.

29 …..Is the intention to set the vehicle in motion an ingredient of the offence of having care or control of a motor vehicle while impaired, or is the absence of such intention simply a way for an accused to rebut the presumption of care or control? This Court settled the question in Ford v. The Queen, [1982] 1 S.C.R. 231, when Ritchie J. for the majority held that the intention to set the vehicle in motion is not an element of the offence. Proof of lack of intention is simply an evidentiary point that rebuts the presumption of care or control of the vehicle established by s. 237(1)(a). The Court recently affirmed Ford in R. v. Toews, [1985], 2 S.C.R. 119.

47 …..Parliament wished to discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion, while at the same time providing a way for a person to avoid liability when there was a reason for entering the vehicle other than to set it in motion. The position adopted is admittedly a compromise. It is an attempt to balance the dangers posed by a person whose abilities to reason are impaired by alcohol with the desire to avoid absolute liability offences. It is an attempt by Parliament to recognize that alcohol, because of its effects on the reasoning process, may in some cases require a special treatment, while avoiding absolute labiality offences.

[64] Where an accused person decides to 'sleep it off' and ultimately to drive when sober, he or she may not have rebutted the presumption since it is merely a delay in the intention of setting the vehicle in motion rather than abandonment. The courts have also considered an accused's alternate plan to avoid driving, however, it remains for the trial judge to assess whether there remains a realistic risk that the plan would be abandoned and the danger would materialize.

[65] Rebutting the presumption, of course, does not necessarily lead to the acquittal of the accused. The presumption is only an evidentiary assist to the Crown. If it is rebutted, the Crown can still attempt to prove de facto care or control.

[66] The leading and oft cited case of R. v. Boudreault, 2012 SCC 56 provides further guidance to the Court. Fish J. for the majority stated as follows:

33 In this light, I think it helpful to set out once again the essential elements of "care or control" under s. 253(1) of the Criminal Code in this way:

(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.

34 The risk of danger must be realistic and not just theoretically possible: Smits, at para. 60. But nor need the risk be probable, or even serious or substantial.

35 To require that the risk be "realistic" is to establish a low threshold consistent with Parliament's intention to prevent a danger to public safety. To require only that the risk be "theoretically possible" is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct.

39 Put differently, s. 258(1)(a) indicates that proof of voluntary inebriation and voluntary occupancy of the driver's seat do not by their coexistence alone conclusively establish "care or control" under s. 253(1) of the Criminal Code. Something more is required and, in my view, the "something more" is a realistic risk of danger to persons or property.

41 A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control. On the other hand, an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion -- without intending at that moment to do so -- may nevertheless present a realistic risk of danger.

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.

48 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.

51 One of the factors of particular relevance in this case is that the accused took care to arrange what some courts have called an "alternate plan" to ensure his safe transportation home.

52 The impact of an "alternate plan" of this sort on the court's assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused. A plan may seem watertight, but the accused's level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward.

[67] In Boudreault, the Supreme Court of Canada made it very clear that a determination of whether there is a realistic risk is a question of fact. The Court also recognized that a conviction will normally follow where the accused was found inebriated behind the wheel of a motor vehicle with nothing to stop the accused from setting it in motion, either intentionally or accidentally.

[68] In R. v. Smits, 2012 ONCA 524, the Ontario Court of Appeal endorsed the decision of Justice Durno in R. v. Symanski (2009), 88 M.V.R. (5th) 182 (S.C.) which lists a number of factors that the Court might consider when assessing the risk of danger. The Court stated:

63 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:

(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;

(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;

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

(f) The accused's disposition and attitude;

(g) Whether the accused drove the vehicle to the location where it was found;

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

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

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

(l) Whether the accused was wearing his or her seatbelt;

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

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

Application to the Facts

[69] Ms. Medakovic testified at this trial and called a further defence witness on her behalf. To the extent that her version of events, as corroborated by Warren Cooper, could and would lead to an acquittal, I have considered and followed the analysis in R. v. W.(D.), [1991] 1 SCR 742.

[70] I do believe the evidence of Ms. Medakovic. I believe that she had no intention to drive that evening after having consumed alcohol. I, therefore, find that she has rebutted the presumption. This, however, does not end the inquiry. I still must consider whether there was a realistic risk of danger that may arise on the facts of this case in any one of three ways:

(1) Was there a realistic risk that Ms. Medakovic, who admittedly was impaired and who initially did not want to drive, later, while still impaired, may change her mind and proceed to do so;

(2) Was there a realistic risk that Ms. Medakovic, who admittedly was impaired behind the wheel, may unintentionally set the vehicle in motion; or

(3) Was there a realistic risk that through negligence, bad judgment or otherwise, the stationary vehicle may endanger persons or property.

[71] It is for the Crown to demonstrate that a realistic risk of danger existed. There is no onus on Ms. Medakovic to prove that there was no realistic risk of danger. See R. v. Boudreault, 2012 SCC 56 at para 47; R. v. Lachapelle, [2017] O.J. No. 5464 at paras 34-35.

[72] In this case, based on all of the evidence, I am not convinced that the Crown has proven a realistic risk of danger on the first and third prongs of the test in paragraph 42 of Boudreault. With respect to the first prong, some factors do raise concerns, specifically:

(1) Ms. Medakovic was not living in the area, in fact she was living in Sudbury at the time. She had planned to return to Sudbury on April 23, but those plans changed.

(2) Ms. Medakovic's plan as she got into the vehicle was to attempt to contact some friends, and if unsuccessful, she would sleep in the car. In other words, she was still working out her plans. She admitted that it would have been better for her to have worked out a plan.

(3) Warren Cooper testified that he would help Ms. Medakovic and give her a place to stay if she needed it, however, no such arrangements were made for this to happen, despite the fact that the car was parked in Mr. Cooper's yard. Based on the evidence it is uncertain as to who arrived at Mr. Cooper's house first. Ms. Medakovic testified that the house was small, his girlfriend was present, and Mr. Cooper had large dogs. However, she had spent some time at his house earlier in the afternoon.

(4) She had heard that one hour for each drink was an appropriate time to wait until she drove so she intended to wait for 12 hours.

[73] While these factors do raise some concern, I am not convinced that this amounts to a realistic risk that Ms. Medakovic may change her mind and proceed to drive. Ms. Medakovic was intent upon sleeping in the vehicle and she was doing just that when police arrived. There is no reason to believe that she would have changed her mind.

[74] With respect to the third prong in paragraph 42 of Boudreault, the evidence at trial established that the stationary vehicle was positioned in such a way that it would not cause any safety concern. Therefore, I would not find a realistic risk of danger in this respect.

[75] However, I do find that the Crown has proven that a realistic risk of danger existed on the second prong in Boudreault, in that there was a realistic risk that Ms. Medakovic, who admittedly was impaired behind the wheel, may unintentionally set the vehicle in motion. Specifically, I find the following facts:

(1) Ms. Medakovic was clearly seated, albeit, reclined, in the driver's seat of the motor vehicle.

(2) Ms. Medakovic locked the doors of the vehicle after she got in.

(3) Ms. Medakovic became cold at some point after she got into the vehicle so she put the key in the ignition, turned the car on, and put the heater on high.

(4) Ms. Medakovic admitted that she was impaired while she was in the vehicle in the driver's seat. She admitted to being confused when she woke up and that alcohol played a part in that confusion. Both officers testified that it took longer than usual to arouse Ms. Medakovic in the car and that she was initially disoriented and confused.

(5) Ms. Medakovic's feet were about a foot from the pedals.

(6) Ms. Medakovic admitted that she thrashes in her sleep not knowing what she is doing.

(7) Ms. Medakovic admitted that she is a deep sleeper and that she has slept walked in the past.

(8) Ms. Medakovic admitted that she has done things in her sleep that she is not aware of.

(9) Despite the fact that Ms. Medakovic remembered locking the vehicle doors, and despite the fact that no one else had a key to the vehicle, the driver's door was open when the police arrived. Ms. Medakovic had no explanation for how this happened, other than maybe she opened it when it got hot. She did not recall doing this. She agreed it would have made more sense to open a window if she was hot. The only reasonable inference is that Ms. Medakovic opened the driver's door in her sleep without realizing it.

(10) Ms. Medakovic admitted that it would have been easy to sit up and grip the steering wheel.

(11) The vehicle was parked on the side of a residential street. While the location of the vehicle if it remained stationary did not cause a safety hazard, any movement of the vehicle would cause an immediate safety hazard given its proximity to the residential street.

[76] Based on all of the evidence, the Crown has demonstrated that there was a realistic risk that Ms. Medakovic, who admittedly was impaired behind the wheel, may unintentionally set the vehicle in motion.

[77] For these reasons, the Court finds Ms. Medakovic guilty of count 1 being that while her ability to operate a motor vehicle was impaired by alcohol, she did have the care or control of a motor vehicle contrary to Section 253(1)(a) of the Criminal Code. Pursuant to Kienapple, count 2 will be stayed.

Released: March 20, 2018

Signed: Justice V. Christie