Court File and Parties

Ontario Court of Justice

Date: 2018-08-01

Court File No.: Toronto 4817 998 16-75001871

Between:

Her Majesty the Queen

— and —

Jarett Shabaga

Before: Justice Feroza Bhabha

Heard on: June 27 and June 28, 2018

Reasons for Judgment released on: August 1, 2018

Counsel:

• Mr. Matthew Morley, counsel for the Crown
• Mr. Bruce Daley, counsel for the defendant Jarett Shabaga

BHABHA, J.:

Charge

[1] Early on a Friday morning in late April of 2016, the police investigated Jarett Shabaga after receiving a call about a suspected impaired driver asleep in a car. The officer found Mr. Shabaga asleep in the driver's seat of his vehicle with the engine running. As a result, Mr. Shabaga stands charged with having care and control of a motor vehicle with a blood alcohol count of over 80 milligrams of alcohol in 100 milligrams of blood.

[2] He pleaded not guilty and testified in his own defence. He also called two other witnesses: his wife, and his mother, who testified about when and why he went to his car earlier that morning.

Issues

[3] The defence has raised three issues, asserting:

• Firstly, that the delay in administering the roadside device, the "ASD" does not meet the "forthwith" requirement and therefore infringed the defendant's Charter right not to be arbitrarily detained or be subject to an unjustified seizure of a sample of his breath;

• Secondly, that the defendant's right to counsel was violated because the officer ought to have done more to assist him in finding a lawyer of his choice instead of duty counsel; and lastly

• The defence submit that they have successfully rebutted the presumption of care and control, but that the Crown has failed to prove that there was a realistic danger that the car could accidentally be put into motion.

Background

[4] At approximately 7:24 AM on Friday, April 29th, 2016, police constable Broughton responded to a call regarding a suspected impaired driver at or around 154 Vanderhoof, which is in a residential area.

[5] He arrived equipped with a roadside device, and there is no issue that the device was in proper working order and was recently calibrated.

[6] The officer testified that when he arrived in the area of Brian Peck Crescent at a T-Intersection, he saw a white 4-door Mercedes in the curb at a stop sign at Vanderhoof.

[7] He also saw a male seated in the driver's seat with his head tilted up. He investigated and found the car running with the window up. The male occupant appeared to be sleeping. When he tapped on the window, the male rolled the window down and looked at him with one eye squinting and one eye open.

[8] He had a brief conversation with the occupant, and there is no issue that the occupant was Mr. Shabaga. Mr. Shabaga answered the officer's queries about why he was sleeping in the car and whether he had had anything to drink. Based on the answers he received, the officer then formed a reasonable suspicion that the defendant had alcohol in his body. The defence does not dispute that the officer had grounds to make a demand that Mr. Shabaga provide a sample of his breath in to the ASD.

The Delay in Administering the ASD Test

[9] Subsection 254(2) of the Criminal Code of Canada ("the Code") requires that where a police officer has reasonable grounds to suspect that a person has alcohol in their body and that the person has within the preceding three hours had the care and control of a motor vehicle, whether it was in motion or not, the peace officer may by demand, require the person to provide forthwith a sample of breath.

[10] There is no issue on the evidence that the demand was made within minutes of the officer's arrival on scene. Also, the defence concedes that officer Broughton was more than professional with the defendant, that he was accommodating, polite and acted in good faith throughout the investigation.

[11] It is the timing of the test that is in dispute. In particular, whether the approximately 30-minute delay in administering the test was unduly long and unjustified resulting in the breach of the defendant's Charter rights under ss. 8 and 9.

[12] The defendant submits that although the officer was well-intentioned in accommodating, in explaining several times the reason for the demand, and in permitting a consultation with counsel at the roadside, he was in fact misguided in that he failed to the administered the test "forthwith" as he was required to do.

[13] Effectively, the defence submits that since the test was not administered "forthwith", Mr. Shabaga's right to counsel and right not to be arbitrary detained were infringed. As such there was no lawful basis for the approved instrument demand and therefore the breath test results ought to be excluded.

[14] Without the results, the Crown is unable to prove that Mr. Shabaga was in care and control when his BAC was over the legal limit.

[15] The leading case on this point, the "forthwith" issue, continues to be R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779 (C.A.) at paras 28-44. The court considering this issue must consider five things:

i) The analysis of the forthwith requirement must always be done contextually;

ii) The demand must be made promptly once the reasonable suspicion is formed;

iii) Forthwith connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of grounds to making of the demand, to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his duty as contemplated under s. 254(2);

iv) The immediacy requirement must take into account all of the circumstances; and

v) One of the circumstances is whether the police could reasonably have fulfilled their obligation to implement the detainee's right to counsel before requiring a sample. If so, the "forthwith" criterion is not met.

[16] In assessing the merit of this issue, it is necessary to examine what happened, when it happened and why it happened when it did. Officer Broughton arrived on scene at 7:24 AM. He knocked on the defendant's window at 7:26 AM. The demand was made at 7:31, but the sample was not provided until 8:01 AM.

[17] The delay between the last two events: the time of the demand at 7:31 and the start of the test at 8:01 is one half hour. If calculated to the end of the test at 8:03 it is 32 minutes, in fact.

[18] The videotape, or rather the audio recording of what happened at the roadside, best explains the reasons for the delay in administering the test. It provides the context that the case law says must guide the analysis.

[19] The defendant did not immediately comply with the initial demand at 7:31. Instead, he engaged the officer in a conversation as he was clearly having difficulty understanding his predicament. So much so that he indicated that he was not likely to comply. The initial conversation lasted for seven (7) minutes until the officer gave his first warning that Mr. Shabaga would be charged with refusing to provide a breath sample. The back and forth between the two men shows the following:

• That after the formal demand Mr. Shabaga appeared not to understand the reason for the demand. He repeated that he was not driving;

• That after he was asked to turn the car engine off, he did so, but held on to the keys;

• That Mr. Shabaga indicated he was uncomfortable with the situation and did not know what he was being investigated for;

• That Mr. Shabaga inquired about his liabilities if he refused;

• That after the officer explained that he could be arrested for refusing to provide a sample, Mr. Shabaga asked once again what the charges were and indicated that he lived "right there";

• That the officer inquired if he was refusing, to which he responded he was "just finding out" and did not want to do anything to impair his ability to do his job;

• The officer inquired again if he was refusing and the defendant responded "no";

• The officer then stated: "Let's administer the breath sample" and showed the defendant the mouthpiece. He then asked the defendant to open the mouthpiece. Mr. Shabaga was then instructed as to how to blow into the instrument;

• The defendant then repeated that he did not understand why he was being asked to provide a sample and the officer explained to him that it was because he had been sleeping in his car, his appearance was dishevelled, he admitted to having consumed alcohol, etc.;

• At 7:38, the officer gave a "last caution" about refusing and indicated that he would arrest the defendant if he refused;

• The defendant did not comply but instead repeated that he lived "right here", that he did not know how breath samples work, he asked: "if I blow, am I guilty of anything?"

• The defendant then continued to talk about the reasons for sleeping in his car, the brand new baby, and text messages about a multi-millionaire client…

• At 7:41 the officer demonstrated the test by doing a self-test;

• After the self-test, the defendant stated: "That's okay, "I'll be arrested – I would rather have my lawyer and the officer asked again: "Are you refusing now?" To which he got an equivocal answer: "I am intellectually challenged as to why I am being asked to blow, I do real estate for a living – I was in the car warming it up, my driving is my livelihood, by blowing I feel like I am giving a plea without my lawyer";

• The officer then cautioned the defendant again: "if you refuse, you will be charged";

• The officer then explained what the readings mean and the defendant can be heard arguing with the officer saying: What, I have to now spend $10,000.00 to defend myself? At which point the officer advises that he can smell alcohol on the defendant's breath;

• The time between the last caution given at 7:38 and the defendant commenting on the expense of a defence was almost six (6) minutes – 7:43:59;

• Between 7:45 and 7:50, the officer permitted the defendant to call a lawyer and afforded him privacy to do so by permitting him to call from his own car; the officer testified that he believed no lawyer would advise him not to blow;

• The defendant reported back to the officer that he was only able to speak to his wife and that his wife would call a lawyer who would return the call in 5 minutes;

• Thereafter, there was more confusion on the part of the defendant and then an unexpected turn of events when the lawyer called back at 7:58;

• Finally, at 8:00, the call with the lawyer was over and the demand was reread with the defendant at last indicating that he understood the demand. It was at this time that the previously reluctant defendant was ready and willing to comply with the demand to provide a sample of his breath;

[20] Where an accused asks to speak to counsel before providing an ASD sample, the courts have found that does not amount to a refusal. The refusal in such circumstances is to be treated as provisional. See R. v. Mandryk, [2012] O.J. No. 3349.

[21] Looking then at the totality of the circumstances as they unfolded during the investigation, I find that the officer was not dilatory in administering the test.

[22] The circumstances captured on the in-car video (audio) clearly reflect that the investigation at the roadside was a fluid and changing situation. The administration of the test was interrupted and prolonged by the defendant's own conduct, not by the officer's conduct.

[23] The investigation changed and appeared to be heading in a different direction, possibly a charge for refusal to comply with the demand, then back again to a decision to comply with the demand.

[24] For that reason, the defence assertion that the delay in ultimately administering the roadside test resulted in a Charter violation strikes me as rather "rich", since it was Mr. Shabaga's own conduct that delayed the test.

[25] If officer Broughton can be faulted at all, and I do not suggest that he should be, it could be said that he was too polite, too patient, too professional, and too understanding of the defendant's predicament and difficulty in understanding a simple and lawful demand. The officer could have charged the defendant with refusing to comply when Mr. Shabaga appeared to express an extreme reluctance to comply, yet, he gave the defendant further opportunities to comply when other officers might justifiably not have in the circumstances.

[26] I find that the officer was trying to administer the test in earnest, but was faced with a very difficult and recalcitrant Mr. Shabaga who had difficulty understanding and/or was not prepared to simply comply. The circumstances that unfolded were somewhat unusual. Here I am referring, in particular, to Mr. Shabaga's behaviour at the roadside.

[27] It is important to note that I took into account in deciding this issue that this was not a situation where the officer was occupied with other unrelated tasks and failed to appreciate that time was of the essence. The officer's time was occupied with answering the defendant's questions and in re-iterating the demand to ensure that the defendant understood the implications of a refusal. In all of the circumstances, the delay was necessary to enable the officer to properly discharge his duty and to be scrupulously fair to the defendant.

[28] Ironically, had the officer rushed to charge Mr. Shabaga with a refusal, I have no doubt that there would have been a complaint that the officer was too quick to charge the defendant with a refusal and should have been more patient in explaining the consequences. Effectively, the argument would have been that he should have held off.

[29] When I carefully examine what happened in the 32-minute delay in administering the ASD test and the real reason for the delay, I conclude that the defendant was responsible for much of the delay.

[30] The 15-minute delay occasioned by the call to his wife and lawyer could have been avoided, as the law does not afford a person with the right to counsel before complying with the ASD test. The officer was aware of this. After the first attempt to call a lawyer resulted in a delay of 5 minutes, he re-iterated the implications of refusing. The defendant continued to assert that he did not fully understand the situation, because he was not driving. He continued to question the officer and pleaded that he has a child at home.

[31] The officer appeared to be preparing to lay a refuse charge, explaining that the defendant would be released on a Form 9, when during this final exchange the defendant's phone rang. The lawyer had called back. This happened at 7:58; twenty minutes after the officer initially gave the defendant his last warning. The call lasted less than two minutes. By 8:01 the test was underway.

[32] Had the officer persisted and refused the call, the complaint would have been that the lawyer was on the phone and there was no harm in delaying the test for a few more minutes so that the defendant could get legal advice. The officer did what he thought was prudent at the time. These were, as I have noted, unusual circumstances. He respected the defendant's request to consult with a lawyer when strictly speaking the defendant was not entitled to such a consultation.

[33] When I consider the underlying reason for the "forthwith" requirement, that detention without the ability to consult counsel should be kept minimal, I struggle to understand the complaint that the test was delayed when part of the delay was a consultation with counsel that the defendant wanted before making a decision to comply with the demand.

[34] In conclusion, I find no merit whatsoever in this argument.

[35] I will now turn to the second issue relating to the defendant's right to counsel of choice when at the station.

Right to Counsel of Choice was Violated – Officer did not Assist Defendant in finding Counsel of Choice

[36] The evidence reflects that after his arrest, the defendant made it clear he did not wish to speak to duty counsel, but wished to speak to a lawyer of his choosing. He advised the officer that he had four (4) lawyers in mind. The officer provided Mr. Shabaga with access to his own cell phone at the station so that he could make any necessary calls or inquiries, including to his wife.

[37] Mr. Shabaga indicated that he wanted to look through his contacts – he explained that he had a number of lawyers to consider and was texting his wife. When none of the lawyers he said he wanted to call answered, the officer raised the issue of speaking to duty counsel and noted that it was a free service. Mr. Shabaga then agreed to speak to duty counsel.

[38] In his evidence Mr. Shabaga testified that he did not have any luck reaching any of the lawyers he felt comfortable with. He maintained that he never changed his mind about speaking to duty counsel. He could not recall what the officer told him before inquiring about talking to duty counsel. He also testified that he was not provided with any other information about the process of contacting any other lawyer.

[39] In cross-examination, Mr. Shabaga agreed he had access to the Internet on his cell phone. He is familiar with looking at directories. He also testified that he did not think he left voicemail messages for any of the lawyers he tried to contact.

[40] His evidence was that he thought that duty counsel were appointed by the police, Yet, he agreed that he did not speak to the officer about calling a different lawyer, and never expressed any dissatisfaction after having spoken to duty counsel.

[41] Finally, Mr. Shabaga acknowledged that officer Broughton was accommodating and that he was appreciative of the way the officer treated him throughout the morning.

[42] The case law on this issue makes it clear that when the police assist a detainee in exercising right to counsel, the police must be reasonably diligent in that assistance; R. v. Wilding, 2007 ONCA 853, [2007] O.J. No. 4776 (C.A.). However, the police are not required to exhaust all possible means for a detainee to speak with a lawyer: R. v. Winterfield, 2010 ONSC 1288, [2010] O.J. No. 952 (S.C.J.) at paras 66-67.

[43] When considering what assistance the police offered, the question is not whether the police could have done more, but rather whether the police provided the accused with the necessary information and assistance to allow the accused to exercise his rights in light of the circumstances of the case: R. v. Gentile, [2008] O.J. No 3664 (S.C.J.) at para 24.

[44] When I consider the totality of the circumstances as they relate to the knowledge and tools available to Mr. Shabaga and his decision to ultimately speak to duty counsel, I find that he was not reasonably diligent in finding a lawyer of his own. For that reason, I find that he has not satisfied me on a balance of probabilities that his Charter rights under s. 10(b) were infringed.

[45] Those circumstances include, but are not limited to the following:

i) Mr. Shabaga had access to his own cell phone while at the station specifically so that he could contact his wife and any or all of the four lawyers he told the officer he had in mind;

ii) Given Mr. Shabaga's very argumentative and assertive behaviour at the roadside, it is difficult to accept that once at the station he passively gave in to a suggestion he did not feel comfortable with. The video evidence confirms that Mr. Shabaga was no shrinking violet;

iii) Mr. Shabaga is someone who uses his cell phone and the Internet daily to conduct business. On his own evidence, he is someone who is business savvy and computer-literate. He did not need to be told by the police how he could access lawyers on the Internet. As well, on his own evidence he was not feeling impaired and was able to function well enough. There was no reason for the officer to believe that he was not capable of accessing on line phone directories to assist in his search for a lawyer of choice; and finally

iv) Mr. Shabaga expressed no dissatisfaction with the advice he received from duty counsel. If he was not, I find he would have had no difficulty in telling officer Broughton as much. I therefore find that he was in fact satisfied having spoken to duty counsel. See: R. v. Littleford, [2001] O.J. No. 2437 (C.A.) at paras. 7-9.

[46] For all of these reasons, the Charter application on this ground is denied.

[47] I will now turn to the third and last of the issues raised by the defence that relate to the substantive issue of whether the Crown has proven all the elements of the offence of over 80 care and control beyond a reasonable doubt.

Care and Control Analysis

[48] Firstly, the defence takes no issue with the breath readings taken at the station into the approved instrument. Those readings show that Mr. Shabaga's blood alcohol count was more than twice the legal limit. At 9:44 in the AM his 1st breath sample yielded a reading of 178 mg of alcohol in 100 ml of blood; while the second reading at 10:06 in the morning was 179 mg of alcohol in 100 ml of blood. The legal limit is 80 mg of alcohol in 100 ml of blood.

[49] The leading case on the issue of care and control is R. v. Boudreault, 2012 SCC 56 at paras 33 and 34. The Supreme Court of Canada in that case set out the three elements of offence of care and control:

i) An intentional course of conduct associated with the motor vehicle;

ii) By a person whose ability to drive is impaired or whose blood alcohol count exceeds the legal limit; and

iii) In circumstances that create a realistic risk of danger to persons or property.

[50] As in the Boudreault case, it is the third element of the offence that is in issue.

[51] Section 258 of the Criminal Code creates a statutory presumption that a defendant found in the driver's seat of a motor vehicle "shall be deemed to have had the care and 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 …"

[52] This means that a defendant found in the driver's seat who is impaired or who has a blood alcohol level in excess of the legal limit will be guilty of the offence unless he can establish on a balance of probabilities that he did not occupy the driver's seat for the purpose of setting the vehicle in motion. See R. v. Blair, 2014 ONSC 5327, at paras. 13 and 14.

[53] In this case, the presumption applies and the next part of the analysis is whether the defendant has successfully rebutted the presumption.

[54] Mr. Shabaga testified in his own defence. He gave evidence that he, his wife and his new-born daughter lived in a one bedroom condominium not far from where his white Mercedes was parked. He is a real estate agent who works primarily from home. He will often meet clients at their residence or at a property they may be interested in. His evidence is that he had the engine on so that he could keep warm, and also to keep his phone charged. In his line of work he needs to be reachable at any hour of the day.

[55] Shabaga testified that he was not going anywhere when he was investigated, nor had he been driving that morning or evening. He explained that his mother was visiting from out of town. She had come to see the then six-week-old baby. He and his mother drank together as they played a game of Risk the evening before. His wife put his daughter down to sleep and she herself went to bed early, but the baby was fussing. Because his mom was sleeping in the living room, he decided to sleep in the car rather than join his wife in the bedroom and be disturbed by a crying or colicky baby.

[56] He testified that he had done this in the past (sleeping in the car) when he needed to get some rest. His wife's car was parked underground in the building's parking lot, but it did not occur to him to sleep in her car.

[57] Mr. Shabaga's evidence was supported by his wife and his mother who also testified about what the threesome were doing the night before the incident. They both testified that it was his intention to sleep in the car and that this was not his first time doing so.

[58] Mr. Shabaga and the two (2) defence witnesses were not shaken in their testimony on the issue of the defendant's intention and purpose for going to his car. It was to sleep not to go anywhere, nor had he returned from somewhere else.

[59] In assessing the credibility of the defence witnesses, I also take into account a couple of other circumstances:

i) The time of the morning that Mr. Shabaga was found in his car asleep or passed out. It was 7:30 AM. There is some evidence that he had not just occupied the driver's seat since the officer was responding to a call about a suspected impaired driver that came in at least a half hour before that. The officer was dispatched to the scene around 6:59 AM;

ii) Mr. Shabaga's appearance when he was found in the car: he was dishevelled, his belt was undone, and he not wearing shoes.

[60] I therefore find that the defendant has successfully rebutted the presumption on a balance of probabilities.

[61] However, that does not end the analysis. A defendant found in the driver's seat with the engine running with a high blood alcohol who successfully rebuts the presumption will not automatically be acquitted of the offence of care and control over 80.

[62] Having discharged the onus on the issue of the presumption, the onus returns to the Crown to prove a realistic risk of danger that the car could be put in motion beyond a reasonable doubt.

[63] The existence or not of a realistic risk of danger is a finding of fact. The court must examine all of the relevant evidence and may consider a number of factors. Some of the factors courts have considered are:

1. The level of impairment, as this could speak to the possibility of the defendant changing his mind about driving;

2. Whether the keys were in the ignition or readily available to be placed in the ignition;

3. Whether the accused had reached his destination or if he still had to travel to his destination;

4. The defendant's disposition and attitude;

5. Whether the defendant drove the vehicle to the location of the drinking;

6. 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;

7. Whether the defendant was wearing his seatbelt; and

8. Where and how the vehicle was parked.

See R. v. Szymanski (2009), 88 M.V.R. (5th) 182 (Ont. S.C.J.) decision of Durno, J at para. 93.

[64] I will now consider the foregoing factors against the evidence called at this trial.

Level of Impairment

[65] Mr. Shabaga's breath readings were twice the legal limit, but there were no obvious signs of impairment. He testified that he holds his liquor very well. That may be his explanation or it may signal a very seasoned and regular drinker. In any event, the officer made no note of obvious signs of impairment, no slurred speech, and no unsteadiness on his feet. There were also no issues with fine motor skills, etc.

Location of Keys

[66] The keys were in the ignition and the engine was running. This is admittedly the factor that weighs most heavily against the defendant. However, the defendant testified that in order to put the car in motion, he would have to perform more than one action. He would have to put the gear into drive, and release the handbrake. His unshaken testimony was that he always uses the handbrake.

Destination

[67] The undisputed facts are that the defendant lived in very close proximity to where he was found in his car, asleep. It was a few minutes' walk at most. The inference I draw is that he was at his destination and not going anywhere, not at that hour of the morning.

Disposition and Attitude

[68] The defendant was somewhat argumentative with the officer and had difficulty understanding why he was being investigated. He described himself as "intellectually challenged" when engaging with the officer. This disposition could have any number of possible explanations, such as a reflection of his level of impairment, or that this is his normal disposition. I note that part of the difficulty he experienced in understanding the demand for the roadside test could also be explained by his insistent refrain that he had not been driving.

[69] I will consider the next two factors together as they are related, in my view, in the circumstances of this particular case.

How the Vehicle got to the Location / Pulling Over versus Leaving Home to go to the Car to "sleep it off"

[70] There is no clear evidence as to exactly when the vehicle was parked in the location it was found. On the evidence this was the defendant's car and the obvious inference is that he was the one to park it there. His wife had her own car which was parked in the underground parking garage of the condominium building. On Mr. Shabaga's evidence, his car was already parked on the side street when he left his apartment sometime after 1:00 AM after he finished drinking in his apartment.

Seatbelt

[71] There is no evidence before this court that the defendant was wearing his seatbelt. The officer did not testify to that effect and nor did the defendant give evidence either way. We do know he was not wearing shoes and his belt was undone when he was roused from his sleep. A tempting inference is that Mr. Shabaga has taken a few steps already to make himself comfortable and therefore it was unlikely that he was wearing his seatbelt. Not wearing a seatbelt is more consistent with the notion that he did not fall asleep soon after driving and parking, and alternatively that he had no imminent plan to drive anywhere immediately before he was investigated.

Position of the Car

[72] There was some disparity in the evidence as to which street the defendant's car was actually parked on. I found the evidence to be unsatisfactory and confusing on this point. The Crown's submission is that the car likely was parked in an area immediately in front of the condominium, where it could have been tagged. The Crown conceded that the officer was mistaken as to where he investigated the defendant. The inference the Crown sought to draw is that Mr. Shabaga must have intended to move the car to avoid getting a parking tag because he was parked on Brian Peck Road. I was unable to discern from the evidence exactly where the car was parked. The evidence simply does not permit me to make an inference that he must have intended to move his car to avoid a parking tag.

[73] The undisputed evidence is that the car was parked on a side street, not obstructing anyone or anything. There is no evidence of any hazard posed by the location where the car was parked.

[74] Turning now to the potential risk. I accept that anytime the engine is on there may be a potential risk of putting the car in motion, but that is not the test I must apply. The risk must be a realistic one.

[75] In the case of R. v. Hannemann, [2001] OJ No 1686 at paras 61-64 (SCJ), Justice Hill considered facts that were similar to those at bar. The driver was asleep with his shoes off when discovered by the police. The keys were in the ignition and the engine was running, but the transmission was in park and the parking brake engaged. There was a definite plan for the driver to be picked up later in that parking lot. On these facts, the court found that there was affirmative evidence showing the absence of risk that the vehicle would be accidentally set in motion. The accused was found not guilty.

[76] When I consider all of the above factors together, I am unable to conclude that the Crown has satisfied me beyond a reasonable doubt that the risk of danger was a realistic one.

[77] In the result, I find the defendant not guilty.

Released: August 1, 2018

Signed: "Justice Bhabha"