Court File and Parties

Ontario Court of Justice

Date: 2018-03-29

Court File No.: Ottawa 16-11107

Between:

Her Majesty the Queen

— and —

Christopher Evans

Before: Justice Heather Perkins-McVey

Heard: March 20, 2018 Judgment: March 29, 2018

Counsel:

• Mr. Hart Shouldice, counsel for the Crown
• Mr. James McGillivary, for the Defendant, Christopher Evans

Decision

PERKINS-McVEY J.:

The Charge

[1] Mr. Evans is charged that on June 3rd, 2016 he had care or control of a vehicle while impaired by a drug. The issue is whether Mr. Evans was in care or control of a vehicle as defined by the Supreme Court of Canada in R. v. Boudreault, 2012 SCC 56.

Facts

Witness Evidence - Mr. Martial Forrest

[2] On June 3rd, 2016 the accused was parked in a parking lot at the Carlingwood Mall in the City of Ottawa. One witness Mr. Martial Forrest says he saw the accused around the noon hour. This witness, Mr. Forrest, had driven into the underground parking lot to the north of the entrance to Franscesco's Hair Salon and the entrance to the area of the mall closest to the YMCA where he was going to work out. As Mr. Forrest was getting his workout bag out his car, he observed the accused sitting in the driver's seat of his motor vehicle. Mr. Forrest said he heard the sound of an aerosol can spraying and looked to over to see the man look like he was passing out. He said he heard the noise again and saw him slouched over. Mr. Forrest says he believed the car was on, because he saw the lights on the dash. He also observed that the driver's side window was down. He said it looked like the accused was inhaling dust cans. He saw the can in the air and his face facing it. He would hear the spray and the accused would be slouched over again. He says he saw this happen twice. He also heard the aerosol spray noise once or twice as he was walking into the mall. Mr. Forrest described that the man would appear to pass out then he would be up, then he would hear the aerosol can and then he would slouch back down. Mr. Forrest said during the short time he observed him, the accused never looked fully awake.

[3] Mr. Forrest confirmed in cross-examination that he thought the car was a silver or light gray Honda or Toyota. He also said that he would see the guy take a hit, slump over and then come up again. He reported what he saw to the mall security guard and said he would be in the gym if they needed him to make a statement.

Witness Evidence - Constable Jesty

[4] Constable Jesty, an officer with 29 years of service, testified that he arrived at approximately 2:40 pm. He was waved over by the security guard to a Silver Honda with licence BYFJ 886. He saw that driver's side window was down, the vehicle was running and the he heard the music blaring. He saw a male in the driver's seat, slumped over into the passenger side. He observed numerous aerosol cans all over the vehicle. These were seized by the police. Constable Jesty opened the driver's side door and observed the male to be rigid. Constable Jesty had never seen anything like that before. He said the accused eyes were half open and that he was completely disoriented and unable to respond to questions. He was completely incoherent. Constable Jesty said the accused could not speak at all and that there was no movement and the accused's body was rigid. Constable Jesty said he was not sure what he had inhaled and did not know if this was a medical situation or drug inhalant so he called the paramedics. While the paramedics were with the accused, Constable Jesty was speaking to the Security Guards. He said within approximately ten minutes of seeing the accused he was alive, talking and one hundred percent fine. There were no effects from what he had inhaled. He then arrested the accused for Impaired Care or Control of a Vehicle. He was later passed along to a DRE officer but by then he was fine. This court heard no evidence from that witness.

[5] In cross-examination Constable Jesty was asked if the accused could have unintentionally put the motor vehicle in motion. He said given what he observed of the accused he would not have been able to do that.

Expert Evidence - Toxicology

[6] On consent of all parties, a Toxicology letter of Opinion was filed as Exhibit 1 from Mr. Randy Warren from the Centre of Forensic Sciences. He noted that the product names of the cans found in the vehicle were "Nexxtech Dust Remover" and "Emzone Air Duster". Both of these products contain difluoroethane which is a listed ingredient in the aerosol duster.

[7] Mr. Warren's opinion was that difluoroethane is used as a refrigerant and used to remove dust from electronics and computer keyboards. He said these products are also abused by persons via inhalation to achieve a euphoric effect. The high associated with DFE tends to be intense and short lived. Due to its rapid elimination from the body. As such, users often re-administer the drug. Abuse causes significant impairment/intoxication immediately after inhalation followed by rapid improvement of functioning shortly after due to excretion of the compound through normal patterns of exhalation. This drug does not enter the blood stream the same as other drugs. He could not estimate how long the effect would last or how quickly a person would become sober or show no effects because it is not possible to study the effects on humans given that it is a very toxic chemical.

Defence Evidence - The Accused

[8] The accused Chris Evans testified. The defence had indicated that the defence raised, that the accused was not in care or control of the vehicle as defined by the Criminal Code and must be established on the standard of proof of a balance of probability.

[9] The accused said he is thirty-six years of age. He said he has been using dust aerosol spray on and off since 2014. He is currently working as a carpenter and living with his fiancée. He says he uses this as a way of coping with anxiety and depression. On June 3rd, 2016 he drove from his house on 446 Ancaster across from Carlingwood to use the aerosol in the parking garage. He is not allowed to use it in the house.

[10] His plan was to use the aerosol spray that he had which he thought would last until 3:00 p.m. or 4:00 p.m. and get back home before 6:00 pm when his fiancée would be home from work. He said he planned to use his inhalants, out of the sun in the parking garage and then when he was back to normal, he would return home. He said then he would sleep or relax until she was home. He described that although he had been prescribed medication by his doctor for his anxiety and depression, that he took this inhalant to veg out for a while. He says the high usually lasts 30 to 45 seconds after taking a spray and that he gets back to normal "immediately pretty much". He said his mental health at the time as, "not good".

[11] He said the effect was that there is an "intense rush" for a matter of seconds. The entire effect would dissipate and he would then take another puff. This is consistent with the witnesses' observations that they saw him take two puffs within a couple of minutes.

[12] He agreed he could not operate a vehicle after "huffing" but that he had no intention of driving until the effects had worn off which was almost immediately after stopping and he was able to drive.

[13] In cross-examination he indicated he was familiar with the effects and the duration of those effects of using an inhalant. He reiterated that he uses it to reduce his anxiety. He was not challenged on his plan to remain at the Mall and then drive home when the effects had dissipated.

[14] The accused testified that his vehicle had a standard transmission which was located on the console and that there is a parking brake that must be engaged. To engage the parking brake you must push down the button and pull up a lever in order to disengage it. The lever must be pulled up 45 degrees. He said it would not be possible to accidently put this vehicle in motion.

[15] In cross-examination he confirmed that the parking brake was engaged and the vehicle in neutral. His evidence was that he did not think the vehicle was running but that the accessory was on so he could run the radio, lights and air conditioning. He further stated that he would not take another hit until the last one had worn off as you would not feel a new high if the other one had not worn off. This of course is consistent with the evidence of Mr. Forrest who observed him take a hit, come to, then take another and slump over. He told the Crown that the effects of a hit are immediate and that similarly the effect of coming out of the high immediate also. He said the buffer between the high and coming out would be very short a few seconds. He disagreed that he would be still impaired in the few seconds while he was coming out of the high. He said when he would come out of it he would not really feel anything, it was like the head rush when you hold your breath and then breathe. He said "I don't even know if I would say light headedness". He said as soon as you come out of it you can speak and answer questions.

Credibility Assessment

[16] The accused was not challenged in his evidence. He answered all questions without hesitation or guile. I accept his evidence without qualification or hesitation. Indeed, all of the witnesses were credible, reliable and generally consistent with each other. Mr. Forrest gave detailed forth right evidence and Constable Jesty was also very forthright in his observations of the accused. The determination of this case does not rest on the credibility of the evidence but rather on the legal interpretation of their evidence.

Legal Analysis

Factual Findings

[17] I find, on a balance of probability, that the accused went to the Carlingwood Mall parking lot and that he parked his car for the purpose of using the inhalant and that he had a very definite plan of remaining there until after he was sober and able to drive. His unchallenged evidence was that he had enough inhalant to last until 3:00 or 4:00 p.m. and that he planned to be home by 6:00 pm.

Application of R. v. Boudreault

[18] This factual scenario requires that which the Supreme Court of Canada dictates in Boudreault be applied with some modification due to the fact that Boudreault dealt with alcohol impairment and we are dealing with a very short-lived impairment caused by an inhalant. Nonetheless the basic principles do apply.

[19] At para. 37, the Court writes:

Accordingly, an accused found in the driver's seat will be presumed, as a matter of law, to have care or control of the vehicle, unless the accused satisfies the court that he or she had no intention to drive -- an intention that, pursuant to Ford, is not an essential element of the offence!

[20] At para. 39, the Court writes:

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.

[21] At paras. 41 and 42, the Court writes:

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.

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 other-wise, a stationary or inoperable vehicle may endanger persons or property.

Analysis of the Three Risks

[22] The Crown did not challenge the accused's evidence that he did not intend to drive the vehicle while impaired. I agree. However, the Crown relies on the first two risks as stated above, that the accused could, while still impaired, change his mind and proceed to drive or that he could unintentionally set the vehicle in motion to establish care or control of the vehicle. The third risk is not applicable here as the vehicle was properly parked in a parking lot out of the way of traffic.

[23] Unless the accused negates these risks on a standard of balance of probability then he should be convicted because he was found in the driver's seat while impaired. At para. 48 the Court writes:

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.

Application to the Facts

[24] On the facts of this case, I find that there is no realistic risk of danger. I accept that the accused did not intend to drive the vehicle. I find the car was running and he was sitting upright in his seat while observed by Mr. Forrest and he was slumped over into the passenger seat when seen by Constable Jesty. This accused has experience using this type of inhalant and formed a clear intention to drive only after the effects had completely gone. I accept the evidence of Mr. Warren that "immediately after inhalation there would be a rapid improvement of functioning shortly thereafter. This is supported by his expert opinion, as well as the observations of Mr. Forrest and Constable Jesty and the accused unchallenged evidence. He was familiar with the effects of the inhalant. He knew he could not drive for a short period of time but after that his ability to drive would not be impaired to any degree.

[25] As well, given his plan and the fact that his vehicle was a standard transmission properly parked with the parking brake engaged, there is no realistic risk of his unintentionally setting the car in motion. A number of discrete acts would have to take place to put the vehicle in motion. He would have had to push the parking brake button and then pull the lever up to a 45 degree angle to disengage the brake. The vehicle would then and only then have possible movement in its neutral position. The parking brake could not have been disengaged by simply falling on the button. Further given the observation by both the witnesses of the accused physical state including his rigid limbs and there is no reason to believe any one of that could have occurred until at the very earliest the effects of the inhalant had dissipated.

Conclusion

[26] Having said that given that there is no realistic risk of putting the vehicle in motion it follows that the accused must be found not guilty. I echo the words of Justice Selkirk in his decision of R v. Evans OCJ unreported decision of July 8, 2015 involving the same accused and similar type circumstances the Court does not condone or encourage the use of inhalants to self-medicate at any time let alone while in the driver's seat of a car, despite the fact that on these particular facts the offence of having the care or control of a vehicle while impaired is not made out.

Released: March 29, 2018

Signed: Justice Heather Perkins-McVey