Court File and Parties

Court File No.: Ottawa 16-11237 Date: 2018-04-11 Ontario Court of Justice

Between: Her Majesty the Queen — and — Peter Blouin

Before: Justice P.K. Doody

Heard: March 1, 2018

Reasons for Judgment released: April 11, 2018

Counsel:

• Bruce Lee-Shannok, for the Crown
• Ewan Lyttle, for the defendant

Reasons for Judgment

Doody J.:

Part 1: Issue

[1] Peter Blouin is charged with having care or control of a motor vehicle on June 4, 2016 while his ability to drive was impaired by alcohol, and with having care or control of a motor vehicle with a blood alcohol level of over 80 milligrams of alcohol in 100 millilitres of blood.

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

Part 2: Background

[3] Mr. Blouin's vehicle, a 2003 Ford Windstar, was parked on Sherbrooke Avenue at approximately 3:00 a.m. on June 4, 2016. Mr. Blouin, the defendant, was seen by Caroline Hawthorne, repeatedly entering his vehicle, sitting in the driver's seat with the interior light on, and looking around the interior of the vehicle by, for example, lifting the floormats.

[4] The car alarm sounded more than once. It was this sound which had woken Ms. Hawthorne and caused her to look out the window of her home, which was across and just down the street from the vehicle. At one point, Mr. Blouin urinated in the bushes of the home in front of which the vehicle was parked.

[5] Ms. Hawthorne called 911 and police were dispatched. Cst. Katarzyna Dumont arrived at 3:11 a.m. and found the defendant sitting in the driver's seat. As she approached the vehicle the defendant opened the car door. The car's alarm sounded. She saw the car keys on the floor between the driver's seat and the door. The defendant picked up the car keys and turned off the alarm.

[6] Cst. Dumont smelled alcohol emanating from the vehicle. She asked the defendant if he had been drinking and he told her that he had been, a while ago. His eyes were very heavy and it appeared to Cst. Dumont that he was moving in slow motion. She arrested him for having care or control of a vehicle while his ability to drive was impaired by alcohol.

[7] She read him his right to counsel, cautioned him that he need not give a statement, and demanded that he provide a breath sample suitable to determine the concentration of alcohol in his blood. She transported him to the police station, put him in touch with counsel, and turned him over to the breathalyzer technician at 4:40 a.m.

[8] Two breath samples were taken, which registered 140 and 130 milligrams of alcohol in 100 millilitres of blood. The defence admits that the blood alcohol level of the defendant at the time the police arrived was 130 milligrams of alcohol in 100 millilitres of blood. The defendant also admitted, in his evidence, that he was too drunk to drive at the relevant time.

Part 3: The Law

(a) Meaning of "Care or Control"

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

(1) an intentional course of conduct associated with a motor vehicle;

(2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;

(3) in circumstances that create a realistic risk of danger to persons or property.

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

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

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

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

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

[12] The effect of this provision is that a defendant found in the driver's seat who is impaired or whose blood alcohol level exceeds 80 milligrams of alcohol in 100 millilitres of blood will be convicted unless he or she can establish on a balance of probabilities that he or she did not occupy the driver's seat for the purpose of setting the vehicle in motion. (R. v. Blair, 2014 ONSC 5327, at paras. 13 and 14, per Trotter J.)

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

[13] A defendant found in the driver's seat who is impaired or with a high blood alcohol level who rebuts the presumption will not automatically be acquitted. He or she will be found guilty if there is a realistic risk of danger. Fish J., writing on behalf of 6 of the 7 judges hearing the appeal, wrote at paragraphs 42 and 48 of Boudreault:

In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

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

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

[15] In the case before me, the Crown submitted that the presumption had not been rebutted, but that if it had, there was a realistic risk of danger because Mr. Blouin may have changed his mind. Crown counsel advised me that he was not submitting that Mr. Blouin may have unintentionally set the vehicle in motion or that the vehicle may have endangered persons or property. As he submitted, it was parked on the side of a level road and was not obstructing traffic.

[16] Fish J. wrote at paragraphs 50 through 53 of Boudreault:

50 The existence or not of a realistic risk of danger is a finding of fact: see R. v. Lockerby, 1999 NSCA 122, 180 N.S.R. (2d) 115, at para. 13; Smits, at para. 61. The trial judge must examine all of the relevant evidence to this end and may consider a number of factors: see e.g. R. v. Szymanski (2009), 88 M.V.R. (5th) 182 (Ont. S.C.J.), at para. 93, per Durno J.; R. v. Ross, 2007 ONCJ 59, 44 M.V.R. (5th) 275, at para. 14, per Duncan J.

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.

53 For example, even where it is certain that the taxi will show up at some point, if the accused occupied the driver's seat without a valid excuse or reasonable explanation, this alone may persuade the judge that "his judgment [was] so impaired that he [could not] foresee the possible consequences of his actions": Toews, at p. 126, again citing Price at p. 384. The converse, however, is not necessarily true. Even where it is probable that the taxi will appear at some point and the accused occupied the driver's seat with a valid excuse or reasonable explanation, the trial judge may nonetheless be satisfied beyond a reasonable doubt that there remained a realistic risk of danger in the circumstances.

[17] Justice Durno, at paragraph 93 of Szymanski, set out a list of factors which have been considered by courts when determining whether the Crown has proven beyond a reasonable doubt that an inebriated driver will change his or her mind and drive the vehicle. I have paraphrased the list, omitting the citations provided by Justice Durno:

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

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

(c) whether the vehicle was running;

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

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

(f) the defendant's disposition and attitude;

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

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

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

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

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

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

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

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

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

Part 4: The Evidence

(a) The Defendant's Evidence: No Intention to Drive and a Plan to Get Home

[19] The defendant testified that he lived in the South Keys area of the city, a 25 minute drive from where he was arrested. He said he had seen on Facebook that some of his friends were planning to attend an event at the Elmdale Tavern on Wellington Street which was part of "WestFest", a music festival in the Westboro neighbourhood, on June 3, 2016. He decided to go to it.

[20] He said he was not sure if he would stay long, or even if his friends were going to be there, because he had not communicated with them directly. He had just seen that they had "liked" the event on Facebook. He said he decided that he would drive his vehicle to the event. If he stayed and drank, he would take an Uber home and return the next day either with a friend or using public transport.

[21] He parked on Sherbrooke, a street which ran perpendicular to Wellington. The spot he parked was about a 3 minute walk to the Elmdale Tavern. He arrived at about 11 p.m. on June 3. He went to the tavern.

[22] He testified that before he went to the bar, he took his bank card, his cellphone, cigarettes, a lighter, and his car key out of a leather bag he always carries. He left in the bag, among other things, his passport, his wallet, his house keys, some condoms, and other personal items. He left the bag in the car on the floor in front of the center console.

[23] His friends were not there. Nevertheless, he stayed and enjoyed himself, having 5 or 6 beers. About 2:30 a.m., he left the bar.

[24] He testified that he was too drunk to drive. In accordance with his plan, he intended to call a Uber. He wanted to do so from his vehicle, because a Uber car comes to the precise location of the passenger when they call the Uber using the application on their cellphone. Furthermore, he wanted to get his bag containing his personal items out of the car. He said he did not want to leave them there overnight and he needed his house keys to get in his home.

[25] He testified that when he got to the car he unlocked it, using the key which he had taken with him when he went to the bar. He got in and sat in the driver's seat. He went to grab his leather bag from where it was on the floor in front of the console, so that he could put the items he had taken into the bar – his bank card, cellphone, cigarettes, and lighter – into it. As he did so, he dropped the car key. He testified that he could not see where he dropped it.

[26] He said he then put the other items into the bag and searched for the key. He could not find it. He decided to open the door to get out and look for it. When he did so, the car alarm sounded. He got out, took a quick look, and got back in the car, closing the door so the alarm would stop. It stopped after a few seconds. He continued to look for the key in the vehicle.

[27] He testified that he has a very overactive bladder. He has very little time after feeling the urge to urinate before he has to do so. He testified that this is a medical condition of long duration for which he has sought medical attention. As he was sitting in the driver's seat, he realized he needed to urinate. He left the car. He urinated in a bush nearby. He returned to the car and opened the door. As he did so, the alarm sounded. He took a quick unsuccessful look on the floor for the key. He then got back in the car and shut the door so the alarm would stop.

[28] He testified that his car has a feature that causes the door to lock after you are in it for a certain period of time. If the door is then unlocked from the inside, the system reacts as if someone is trying to break into the vehicle and sets off an alarm. The alarm stops several seconds after the door is closed.

[29] He testified that after he had returned to his car after urinating, he remained in the driver's seat, looking for the car key. He wanted to find it before calling Uber because he did not want to leave the car unlocked with the key in it. As he was sitting there, a police officer approached.

[30] The officer came to the driver's door. He opened the door to talk to her (the power window would not work because the key was not in the ignition). He testified that he told the officer he was not going to drive home, and that he was in the car to retrieve his bag.

[31] Because the door was open, the alarm went off. The officer asked him to turn off the alarm. He testified that he told her that he could not do so, because he needed his key to do so and he did not know where it was. She told him that the key was on the floor beside the driver's seat, between it and the door. He grabbed the key and turned off the alarm.

[32] He testified that he did not put his seat belt on, although he invariably did so when he got in the car, because he had no intention of driving. He said there was no possibility he would have changed his plan if he had found the key.

[33] In cross-examination, he testified that he wanted to put the things in his pocket into the bag rather than keep them in his coat pocket because he likes to put things in the places they belong. He said it was his habit to do so when he returned to his car. Furthermore, there was a light inside the car that would have helped him see the items when he transferred them to the bag. And he got in the driver's door rather than the passenger door because that is how he always gets in the car.

[34] He agreed that a Uber ride to his home would have cost him about $25 or $30, or perhaps more if surge pricing had been in effect. He admitted that at no point did he call Uber. He said he did not do so because he wanted to find his key before doing so. He said he knew he would find his key eventually because he knew it was there somewhere.

(b) Cst. Dumont's Evidence: The Defendant Told Her He Was Not Planning on Driving

[35] Cst. Dumont testified that when she approached the vehicle, the defendant opened the door. The alarm went off. The first thing the defendant said to her was that he was not planning on driving the vehicle. She testified that he made that statement spontaneously.

[36] She testified that she then asked him to turn the alarm off. He told her he could not find the car key. She saw the key on the floor between the driver's seat and the door. He saw it there as well. She testified that she may have pointed the key out to him. He then picked it up and put it in the ignition to turn the alarm off, as she had told him to do.

Part 5: Analysis

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

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

[38] In my view, the defendant has done so. His evidence was not seriously challenged on cross-examination. It is not inherently unrealistic.

[39] It is common for persons to drive to a location where they intend to spend the evening, deciding ahead of time to take a cab or Uber home if they drink, and drive if they do not.

[40] Most drivers have had the experience of losing car keys, and then finding them in what seems by hindsight to have been an obvious place. And the floor of the car between the driver's seat and the door is very difficult to see when the door is closed. This is particularly so at night because the dome light does not illuminate that part of the car.

[41] The fact that the defendant had not called Uber by the time Cst. Dumont arrived does not make his evidence less credible. Once a car is requested from Uber, the nearest car is dispatched. The cars are frequently available very quickly – that is one of the features of the program that has made it a success. If he had called it before finding his car key, he would have been in the position of having to either take it without his key or turning it away and paying a cancellation fee. It made more sense to wait until he was ready to leave.

[42] The evidence of Ms. Hawthorne is consistent with the defendant's evidence. She saw the interior light come on, as it would if he was looking for his key. She testified that she saw him sitting in the driver's seat, leaning over as if he was looking on the dash and under the floor mats.

[43] It makes sense that the defendant would want to get his bag before going home. He needed his house keys. And he would not want to leave his wallet and passport in the car overnight.

[44] Similarly, it makes sense that once he lost his car key, he would not leave the car unlocked and go home via Uber. He would not want to leave the car unlocked when he knew the key was in it.

[45] His seat belt was not on.

[46] His statement that he was not planning on driving the vehicle made to Cst. Dumont as soon as she approached the car is admissible as going to its truth under the principle set out in R. v. Edgar, 2010 ONCA 529. The defendant made the statement immediately upon being confronted by the police. The defendant took the stand and exposed himself to cross-examination. Alternatively, it is admissible as part of the res gestae. (R. v. Graham, [1974] S.C.R. 206, per Ritchie J.; R. v. Risby, [1978] 2 S.C.R. 139.)

[47] Crown counsel submitted that the fact that the defendant was looking for his keys does nothing to rebut the presumption that he was intending to drive because if he had intended to drive and lost his key he would still be looking for it. I accept that that is so. Nevertheless, the fact that the defendant had clearly lost his key is part of the surrounding circumstances which I must consider in determining whether he has rebutted the presumption. That fact does not assist the Crown. It is consistent with the defendant's evidence. And if he had, in fact, had a plan to call Uber once he had the key, and then lost the key, the facts would have unfolded in the way he testified, consistent with the evidence of Ms. Hawthorne and Cst. Dumont. That cannot hinder his attempt to rebut the presumption.

[48] In all of the circumstances, I conclude that the defendant has established, on the balance of probabilities, that he did not sit in the driver's seat to set the car in motion.

(b) The Crown Has Not Proven a Realistic Risk of Danger

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

[50] Crown counsel concedes that the second and third risks cited by the Supreme Court in Boudreault – that the defendant may have unintentionally set the car in motion or that the stationary vehicle may have endangered persons or property – did not arise. He submitted that the first risk – that the defendant may have changed his mind and decided to drive – had been established beyond a reasonable doubt. He pointed to paragraph 52 of the Supreme Court's decision:

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.

[51] Crown counsel submitted that there was evidence of sufficient impairment that the risk of his changing his mind was real. He pointed to the evidence of Cst. Dumont of a strong odour of alcohol, droopy eyes, swaying when standing on the paved level roadway, and that he was tired.

[52] In my view, this evidence does not rise to the level contemplated by the Supreme Court at paragraph 52 of Boudreault. The strongest evidence of intoxication came from the defendant himself, who admitted he was too drunk to drive. But he was not too drunk to conduct a diligent search for his key, albeit one which was unsuccessful. The lack of success, given the location of the key, is not evidence of significant impairment. Nor is the fact that he had to urinate, given his unchallenged evidence of his medical condition.

[53] Referring to the list of factors in Szymanski, I note:

(a) the car was parked on the side of the road;

(b) there was no evidence of inappropriate or impetuous behaviour;

(c) he had driven the vehicle to the location where it was parked, although he had an explanation, which I have accepted on a balance of probabilities, for his having done so;

(d) He had a plan to get home without driving;

(e) He had not driven while impaired that evening;

(f) He had no stated intention to drive;

(g) He was not wearing his seatbelt;

(h) He had a cellphone by which he could have made alternative arrangements and he had a reasonable explanation for not yet having used it.

[54] Considering all of the circumstances, I conclude that the Crown has not proven beyond a reasonable doubt that there was a real risk that the defendant may have changed his mind and put the car in motion.

[55] The charges are dismissed.

Released: April 11, 2018

Signed: Justice P.K. Doody