Ontario Court of Justice

Date: August 1, 2018

Toronto Region – Old City Hall

Court File No.: 16-15007500

Between:

Her Majesty the Queen

— AND —

Patricia Dawkins

Before: Justice H. Pringle

Heard on: June 27, 2018

Reasons for Judgment released on: August 1, 2018

Counsel:

• Benjamin Janzen, for the Crown
• Hussein Ali, for the defendant

PRINGLE J.:

Factual Overview

[1] The defendant Ms. Dawkins was very intoxicated when police found her, passed out, in the driver's seat of a car on September 25, 2016. Her subsequent breath readings were 217 mg of alcohol in 100 ml of blood and 201 mg of alcohol in 100 ml of blood. The defence did not challenge the admissibility of these readings. At trial, the sole contested issue was that of care and control, and more particularly whether the Crown had proven this element beyond a reasonable doubt.

[2] I have concluded the Crown has not met its burden and am acquitting Ms. Dawkins on both counts. These are my reasons.

[3] Initially, the case seemed quite straightforward. Officer Butt, responding to a radio call at 3:51 a.m., encountered a parked black Nissan. It was parked on the west side of the street, facing southbound on a one-way northbound street. The engine was running and the gear shift was in park. Ms. Dawkins was sound asleep in the driver's seat.

[4] PC Butt had to knock several times before Ms. Dawkins awoke. She roused herself and opened the door. Immediately, the officer smelled alcohol coming from both the vehicle and from Ms. Dawkins' breath. She was slurring her words and appeared to be very confused, like she had just woken up. Her eyes were bloodshot. Her pupils were dilated. There was vomit on her jacket and other parts of the car. The vomit was wet and appeared, to the officer, to be fresh.

[5] PC Butt asked Ms. Dawkins to turn the engine off. She had difficulty doing so, fumbling with the keys that were in the ignition. Stepping out of the car, Ms. Dawkins lost her balance and the officer had to hold her to maintain balance. At 4:02 a.m., he placed her under arrest for being Impaired while in Care and Control of a Motor Vehicle and informed her of her constitutional rights.

[6] In providing her the right to retain counsel and the right to remain silent, Officer Butt was satisfied with Ms. Dawkins' ability to understand these legal concepts and to respond in an informed way. She advised she understood the right to counsel but did not have a lawyer. She communicated that she understood the caution. She gave the officer her name when asked. She explained, when asked, that the car belonged to her aunt.

[7] As stated above, Ms. Dawkins provided breath samples at the police station and was released pending trial.

[8] Ms. Dawkins testified in her own defence. She also called Junior Rodney, an independent witness who corroborated Ms. Dawkins' testimony. From the tenor of the Crown's final submissions, I did not take the credibility of either defence witness to be seriously contested. This was a responsible position and I agree with it. Both witnesses, as I will explain, were extremely credible and reliable.

[9] On September 25, 2016, Ms. Dawkins went out to a jazz bar on College Street where one of her old co-workers was having a party. She drove her aunt's car there. Being a responsible adult, she planned not to drink any alcohol because she planned to drive her aunt's car back home to Brampton.

[10] However, during the evening Ms. Dawkins unexpectedly encountered an old friend. That old friend, while reminiscing, mentioned a significant, life-changing tragedy that Ms. Dawkins had suffered three years prior. Ms. Dawkins walked away from that conversation with her personal wounds re-opened. She grew quiet and began to weep.

[11] A co-worker, seeing her upset condition, asked Ms. Dawkins if she wanted a drink. Initially, Ms. Dawkins refused, explaining that she had to drive home to Brampton. But when that same co-worker offered to get a cousin, who also lived in Brampton, to drive Ms. Dawkins home from the club, Ms. Dawkins decided to drink. She drank until she was intoxicated.

[12] Her recollection of what happened next was corroborated, in every material particular, by the independent witness. When the club closed, Ms. Dawkins was sitting on a couch and she was, in her words, "under her liquor". The friend's cousin was nowhere in sight. Some people from the party asked her how she was getting home. Ms. Dawkins replied, "I don't know".

[13] The next thing she knew, one of the guys from the group came over to her and said "let's go". Ms. Dawkins, this male, and another girl walked to Ms. Dawkins' car, which was parked in front of the bar on College. The man put her in the passenger side of the car and said "He'll drive you home, don't worry". A different male got into the driver's side. The female got into the backseat. Ms. Dawkins knew none of these people. By the time she testified, however, she had learned the male's name was Junior.

[14] Junior drove the car only a short distance, perhaps two minutes, before he stopped it. The defendant only recalled being driven straight and then a right turn before he stopped the car. Parking it on the west side of the street, where police later found it, Junior said he needed his jacket and left the car with the girl. He left the driver's side door ajar.

[15] Ms. Dawkins sat there for a while and waited. The night air was chilly, too chilly, and Ms. Dawkins could not close the open driver's side door from where she sat. So she stepped out of the passenger side door and walked around the car. She suddenly felt nauseous. She sat down in the driver's seat. Then she threw up.

[16] After vomiting, the defendant leaned back in the driver's seat. She had no plan to drive and no intention to drive. She thought Junior was coming back to drive her after retrieving his jacket. If he had not, she would have had to take an Uber or rent a hotel room. She testified there was no risk of her waking and changing her mind about not driving.

[17] The defendant closed her eyes. The next thing she knew, Officer Butt was waking her up. Junior had not come back. She was admittedly still intoxicated but aware of her circumstances, aware of her surroundings, and able to answer police questions.

[18] Although Ms. Dawkins had no idea who Junior was or how to find him after that night, Mr. Ali, in his usual thorough fashion, ensured his attendance at trial. Junior's last name was Rodney. He was a total stranger to Ms. Dawkins, having met her once at the club on the night of the alleged offence. He did not know her before and he did not associate with her afterwards. It was palpably clear that he was unhappy about getting involved with this incident and about having to testify.

[19] Mr. Rodney and his girlfriend were with the same general group, at the same jazz bar, as Ms. Dawkins that night. While getting ready to leave, a friend asked him to give Ms. Dawkins a ride back to Brampton, since they were driving back to Bolton. Ms. Dawkins, the friend advised, was in no shape to drive.

[20] Mr. Rodney, his girlfriend, and Ms. Dawkins all walked to Ms. Dawkins' car. It was parked close to the club. The plan was for Mr. Rodney to drive Ms. Dawkins back, in her car, while his girlfriend would follow behind in theirs.

[21] The three got into Ms. Dawkins' car and drove, first straight and then around the corner. Their car was parked just around the corner, on Augusta. The turn made was a right hand turn onto Augusta, going the wrong way down a one-way street.

[22] They stopped Ms. Dawkins' car about 20 or 30 feet away from where the girlfriend's car was parked. It was cool, and Mr. Rodney wanted to get his jacket from his girlfriends' car. He did not think he mentioned the jacket to Ms. Dawkins before he exited the car. He left the driver's side door open. There was no vomit in the car when he left.

[23] When Mr. Rodney exited the driver's seat of the defendant's car, his girlfriend also exited. They argued about going into Ms. Dawkins' wallet to get her exact address. Mr. Rodney was on bail and very unhappy to be dragged into driving a strange woman home to begin with. He refused to touch the wallet and was adamant that his girlfriend should do it instead.

[24] They continued to argue, standing outside on the street while Mr. Rodney smoked a joint. Then he heard sirens approaching. Looking down Augusta, he saw a fire truck and, he thought, police flying down the street towards them. This ended Mr. Rodney's resolve to help anyone. In addition to being on bail he had had, as he put it, "bad luck" with police in the past. Throwing his hands up metaphorically, Mr. Rodney concluded that Ms. Dawkins "wasn't my problem". He and his girlfriend left.

Resolution of Credibility and Reliability

[25] Before applying the facts of this case to the applicable legal principles, I must first resolve what the facts are. As stated above, the substance of Mr. Janzen's submissions did not dispute the accuracy of the defence witnesses' version of events. I agree with this approach. The defence witnesses were extremely credible. Ms. Dawkins' testimony, as strange as it was in substance, was given in a straightforward fashion. There were no exaggerations or inconsistencies. When pressed in cross-examination about details, she appeared to be honestly searching her memory for what happened, as opposed to making up whatever might be in her best interest.

[26] However, Ms. Dawkins was intoxicated and even though I believed her, her narrative seemed strange from a common sense perspective. It was odd that a total stranger would drive her a very short distance, get out of the car, leave and never come back. I wondered about her ability to recall accurately. However, any reliability concerns I had after she testified were entirely quashed by Mr. Rodney's testimony. He corroborated her on material aspects and his testimony explained the gaps in Ms. Dawkins' narrative that seemed strange.

[27] For example, Ms. Dawkins' testimony that the man drove her only a short way before stopping her car was explained by the fact that the girlfriend's car was parked where they had stopped. They intended to drive in tandem to Brampton. Getting out to get his jacket made sense, because the jacket was in the girlfriend's car, where he left it before going to the club.

[28] Not only did Mr. Rodney have no apparent motive to lie, and no apparent ability to collude with Ms. Dawkins, in no way was he trying to stretch his evidence to help her case. He clearly did not want to be in court. As he put it, he "had stuff scheduled" the day he testified and he was visibly resentful about having to be in court at all.

[29] This resentment translated over to his views on having to drive Ms. Dawkins home. He was clearly conscripted, by someone, into driving an intoxicated stranger home. When he testified, Mr. Rodney was still visibly agitated about getting involved in the situation. The tenor of Mr. Rodney's evidence entirely supported my conclusion that when he heard the sirens, he would and he did leave Ms. Dawkins drunk and alone in the car.

[30] I entirely accepted Mr. Rodney's testimony about leaving the driver's door open because he planned to come right back. There was no vomit in the car when he stepped out. When Officer Butt woke up Ms. Dawkins, he observed fresh vomit. Both of these factors corroborated Ms. Dawkins' testimony as well.

[31] Mr. Rodney, respectfully, struck me as someone who, perceiving a threat to his own self-interest would abandon any notion of helping out a stranger. No doubt Mr. Rodney made himself scarce when he heard sirens. In fairness, upon hearing Ms. Dawkins had been charged with drinking and driving offences, he unhappily came to the court and told the truth about what happened. I did accept what he said to be true and accurate. I did accept what Ms. Dawkins said to be true and accurate.

Applicable Legal Principles

[32] The offences of having over 80 mg of alcohol in 100 ml of blood, and of being impaired, while in care and control of a motor vehicle are both prohibited by s. 253(1) of the Criminal Code. It matters not whether the car was in motion. What matters is whether the person was occupying the driver's seat. This, in turn, triggers the statutory presumption in s. 258(1)(a) that the person was in care and control of that motor vehicle.

[33] Officer Butt found Ms. Dawkins in the driver's seat. The presumption was thus triggered. It operates unless she establishes that she did not occupy that seat or position for the purpose of setting the vehicle in motion. Mr. Janzen fairly conceded that Ms. Dawkins' testimony discharged the presumption. I wholeheartedly agree with his concession.

[34] The effect of discharging the presumption shifted the onus back upon the Crown. He must prove, beyond a reasonable doubt, that the defendant was in care and control of her car while impaired.

[35] The Supreme Court of Canada, in R. v. Boudreault, 2012 SCC 56 at paras. 10 and 33, defined three ways in which the Crown can prove care and control of a motor vehicle. The essential elements of this phrase signify:

(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, as opposed to a remote possibility, of danger to persons or property.

[36] The "realistic risk" analysis is engaged in the case at bar. The question of a realistic risk of danger is a low threshold and a question of fact I must resolve. Fish, J. explained at paragraph 35 that "[t]he 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." At paragraph 42, he held:

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.

[37] The "realistic risk" issue is where the Crown has planted his flag, so to speak. Accepting why she was in the driver's seat to begin with, he submitted there was a realistic risk of danger to persons or property. With reference to the non-exhaustive list of factors to consider, from paragraph 63 of R. v. Smits, 2012 ONCA 524, he submits:

(i) The defendant was extremely intoxicated to the point of vomiting and passing out;

(ii) Drunkenness and bad judgment go hand in hand, leading either to a change of mind about driving or an action that could inadvertently set the vehicle in motion;

(iii) The defendant was in the driver's seat and had a distance to go;

(iv) The car was parked the wrong way on a one-way, leading to the risk that she may move it to avoid a ticket.

[38] Although in Boudreault, the appellant was acquitted where he was found, intoxicated and asleep behind the wheel of his running car, I am not bound by another judge's finding of fact. This question can only be answered by reliance on the evidence called in the case at bar.

[39] The threshold of risk is low, but the burden remains on the Crown to prove care and control beyond a reasonable doubt. Ms. Dawkins' evidence more than raised a reasonable doubt in relation to the risk that she would change her mind and drive. Indeed, I had some trouble even conceptualizing this risk on the facts of this case. Ms. Dawkins was asleep. She thought Junior was returning to the car to drive her home. Junior was returning to the car to drive her home.

[40] The intervening act that stopped him from driving was the arrival of emergency services, which quickly led to both Junior's departure and Ms. Dawkins' arrest. The Crown's submission that Ms. Dawkins could have woken up, found herself alone, concluded she had slept it off and decided to drive home is premised on the inference that even if the sirens had not arrived, Junior still would have left her alone in the car. But for all Ms. Dawkins knew, the plan that was put in place was still in place. It only fell apart because police arrived.

[41] In any event, leaving my difficulty with that proposition aside, I accepted Ms. Dawkins' testimony including her assertion that she had no intention to drive. I accepted why she, on her evidence, wound up in that driver's seat. She had a reasonable explanation for how that came about. Her evidence on that point was corroborated by Mr. Rodney's testimony that he left the door ajar, as well as the presence of fresh vomit.

[42] Appreciating that she was quite intoxicated, I accepted that from start to finish she maintained a responsible approach to the issue of drinking and driving. She drank no alcohol whatsoever, at the club, when she was still planning to drive home. The encounter with her old friend was unexpected. I accept that being reminded of the trauma she suffered, coupled with the promise of a safe ride home, and led her to consume alcohol that she had not planned to consume at all.

[43] In assessing the risk that Ms. Dawkins would change her mind and drive back to Brampton, I look to the steps she was willing to take to avoid driving. Rather than drive home having consumed alcohol, she was willing to have a total stranger drive her home. She did not know who either Mr. Rodney or his girlfriend were. While they involved themselves solely as good Samaritans, albeit in Mr. Rodney's case an unhappy Good Samaritan, for all Ms. Dawkins knew these total strangers could have robbed her or worse. Yet she entirely put her life in their hands, rather than risk the safety of others by getting behind the wheel drunk. This spoke volumes to Ms. Dawkins' predisposition, or rather lack of predisposition, to drink and drive.

[44] I find that, had she woken and not been arrested, with Mr. Rodney nowhere to be seen, she would have implemented her back-up plan of taking an Uber. She expected her aunt would be unhappy about leaving the car in Toronto, but would understand her decision. In accepting her evidence on this point, I also rely on Officer Butt's testimony that Ms. Dawkins, while intoxicated, understood her constitutional rights and was able to respond to his questions in that regard. She was clearly able to make cognitive decisions.

[45] I do not agree, respectfully, with the Crown's submission that taking an Uber was a vague and unimplemented plan. Taking an Uber does not involve intricate decision-making. One simply decides to take an Uber. A few phone buttons are pressed and the plan is then implemented. It is not a vague plan, it is a simple solution. Ms. Dawkins had the Uber application on her phone and said she would have taken an Uber if necessary. I believed her when she said this.

[46] Finally, with reference to the Crown's burden on this essential element, I had at least a reasonable doubt about the risk of inadvertently setting the vehicle in motion. The engine was running. She was asleep. Appreciating the element of risk is a low threshold, there must still be some evidence for me to conclude that this realistic risk arose. I have no evidence about what it would take to put this car in gear, or how this car operates, or even where the gear shift is. To be fair, the Crown's position did not rest heavily on this submission. But in any event, in the absence of such evidence, I have a reasonable doubt here as well.

[47] Ms. Dawkins, as a result of this analysis, must be acquitted of the two charges she faces.

Released: August 1, 2018

Signed: Justice Heather Pringle

[1] For ease of reference, I have referred to this car as Ms. Dawkins' car throughout, although it was registered to, and belonged to, her aunt.