R. v. Hennessy, 2019 ONCJ 163

CITATION: R. v. Hennessy, 2019 ONCJ 163

DATE: March 12, 2019

COURT FILE No: 18-0094

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

-AND-

RILEY HENNESSY

Before Justice Michael G. March

Heard on January 10, 2019

Reasons for Judgment released on March 12, 2019

Nathalie Castonguay…………………………………………………….Counsel for the Crown

James McGillivary…………………………………………………….Counsel for the Accused

March, M.G., J. :

Introduction:

[1]. Riley Hennessy (“Hennessy”) stands charged that on or about January 18, 2018, he had the care or control of a motor vehicle while the concentration of alcohol in his blood exceeded 80 mgs of alcohol in 100 millilitres of blood. Police spotted Hennessy in a disabled vehicle at the side of the road. Hennessy occupied the driver’s seat. Once separated from the other occupants, the investigating officer was able to detect the odour of alcohol on Hennessy’s breath. Hennessy failed the approved screening device test at the roadside. He was then arrested. Ultimately, he “blew over” at the police station. The challenges made by the defence to the Crown’s ability to prove Hennessy’s guilt were:

a) that the samples were not taken as soon as practicable following his arrest and the demand for further breath samples made by police;

b) that Hennessy established on the evidence adduced when he was investigated by police at the roadside and seated in the driver’s seat of his vehicle, that he no longer had the intention to drive; and

c) that the Crown has not proven the motor vehicle in which Hennessy was found presented a realistic risk of danger by virtue of him:

i) changing his mind and operating it later while still impaired;

ii) unintentionally setting the vehicle in motion; or

iii) through negligence, bad judgment or otherwise, creating a danger to persons or property with his stationary or inoperable vehicle.

Review of the Relevant Evidence:

Ralph Fluegel:

[2]. Ralph Fluegel (“Fluegel”) has worked for Gibson’s Garage as a tow truck driver for some 19 years. Late one evening in January 2018, he received a telephone call from the Communication Centre for the Ontario Provincial Police (“OPP”). In response to the call, he attended to a stationary vehicle on Highway 17 just west of Haley Road.

[3]. On scene, Fluegel positioned his tow truck in front of an unoccupied 2004 Ford Escape. He noticed the vehicle’s hazard lights had been activated. Its engine was not running.

[4]. He hooked up the Ford and winched it onto his flatbed truck. He asked the police officer on scene (not the investigating officer) if there was a key for the vehicle. The officer on scene did not know. While the Ford was on the flatbed, Fluegel went inside it to turn off the hazard lights. There he noticed a lanyard underneath a hat and gloves placed on the dash. He found a key attached to the lanyard. He put the key in the ignition and turned it to determine whether the dash lights would illuminate. They did. He then turned the vehicle off. Before leaving with the Ford, he informed the police officer on scene about his discovery of the key.

[5]. Upon arrival at the garage, Fluegel unhooked the Ford, started its engine and reversed it off the flatbed. He moved the Ford into one of the interior bays of the garage to prevent anyone from having access to the vehicle. He thought a gas warning light had come on to warn of low fuel. He testified that he left the vehicle to run for three to four minutes maximum while moving it inside.

[6]. Under cross-examination, Fluegel confirmed that he did not try to start the vehicle to move it onto his flatbed. He did not remember noticing the gas light indicator activate when he turned the key to determine if it had electrical power.

[7]. Fluegel acknowledged that in winching the vehicle onto his tow truck, he would have created roughly a 45 degree incline, as the Ford mounted the flat bed. He understood that the Ford’s gas tank is located at the rear. He appreciated that any gas, which may have been in the vehicle, would have moved to the rear as a result. He stated that the flatbed was levelled again prior to transport of the Ford to the garage. Any gas in the vehicle, he surmised, would be displaced again by such movement.

[8]. Fluegel could not say whether the Ford had run out of gas prior to his attendance at the roadside to retrieve it. It was possible, he testified, due to displacement of any fuel in the vehicle, that the Ford was able to start when he engaged its ignition to move it off his flatbed. It was his understanding that his co-workers put gas in the Ford to move it outside and back inside during its seven day impoundment at the garage.

Cst. Mask:

[9]. On January 18, 2018 at approximately 1:23 a.m., Cst. Mask of the OPP was on general patrol headed from Cobden to Renfrew on Highway 17. He observed a vehicle, the Ford in question, on the side of the road facing westbound. The Ford’s hazard lights were activated, as were its headlights. As Cst. Mask approached the Ford, he noticed that its headlights turned off.

[10]. Cst. Mask saw Hennessy occupying the driver’s seat of the Ford as the officer crossed the centre line of Highway 17 and pulled alongside it in his cruiser. The Ford’s driver window was open.

[11]. Given the late hour, traffic was very light. The weather was cold. In his dutybook, Cst. Mask had earlier recorded a temperature of minus 14 degrees Celsius. He made no notation regarding road conditions.

[12]. Cst. Mask then pulled around in his police vehicle and positioned it behind the Ford. Upon further questioning by Cst. Mask, Hennessy explained that they had called a “buddy” who was coming with gas. Cst. Mask then asked for Hennessy’s driver’s license, registration and insurance.

[13]. Cst. Mask detected the smell of alcohol emanating from inside the Ford. There were three passengers – one in front – two in back. The officer also noticed that Hennessy’s eyes were glossed over. Cst. Mask observed a sealed can of Budweiser Light beer on the Ford’s back seat. Hennessy, again in answer to the officer’s query about open alcohol in the vehicle, confirmed that all of the Ford’s occupants had been drinking.

[14]. Cst. Mask asked Hennessy to exit the Ford. The officer could smell alcohol coming from Hennessy’s breath outside. At 1:25 a.m., the officer made an approved screening device (“ASD”) demand. He had Hennessy accompany him to the police vehicle. He explained to Hennessy he was not under arrest. He told him he could have a seat inside for his warmth and safety.

[15]. Hennessy told Cst. Mask not to bother. Hennessy believed he would “blow over.” He said he drank two beer in his vehicle waiting for gas.

[16]. Cst. Mask asked if Hennessy had any beer to drink in the last 15 minutes. Hennessy told Cst. Mask he did. The officer then explained that he would wait 15 minutes before requiring Hennessy to provide a sample of his breath.

[17]. Hennessy again told Cst. Mask not to bother. Hennessy offered that he was going to blow over anyway. He offered that Cst. Mask may as well take him to jail. Hennessy stated, “I’ll cut the shit and be honest.” He went on to tell Cst. Mask about a quantity of alcohol he had to drink earlier. He apologized to Cst. Mask for lying.

[18]. At 1:38 a.m., Hennessy blew into an approved screening device. Upon analysis, Hennessy’s sample of breath registered a “fail.” Consequently, Cst. Mask believed Hennessy had more than 80 milligrams of alcohol in his body. The officer then concluded he had the necessary grounds to arrest Hennessy.

[19]. At 1:39 a.m., Cst. Mask read to Hennessy his rights to counsel. Hennessy understood. When asked if he wished to contact a lawyer, he stated, “No. I fucked up. So no. I understand.”

[20]. At 1:41 a.m., Cst. Mask cautioned Hennessy as to how statements he made could be used in evidence against him. Then when asked if he wished to say anything in answer to his charge of being in care or control of a vehicle “over 80,” Hennessy responded: “No. Just No.”

[21]. Cst. Mask next requested a tow truck for Hennessy’s Ford. The officer also made a call for assistance from a qualified technician (“Q.T.”). Cst. Mask’s plan was to meet the Q.T. at the Renfrew detachment of the OPP.

[22]. Cst. Mask returned to the Ford, but found no evidence he wished to seize.

[23]. He did retrieve Hennessy’s cell phone for him. The officer told the front seat passenger, Kyle, who he believed to be in possession of the key to the Ford, to leave it in the vehicle.

[24]. When Cst. Cranford arrived on scene, Cst. Mask departed for the Renfrew detachment of the OPP at 1:54 a.m.

[25]. At 2:07 a.m., Cst. Mask arrived at the detachment. At 2:17 a.m., he communicated to a fellow officer, a Q.T., Cst. Baranovskiy, his grounds for making a further demand for samples of Hennessy’s breath. At 3:11 a.m., Cst. Baranovskiy returned Hennessy to Cst. Mask’s custody. Ultimately, Cst. Mask released Hennessy to his mother at 3:56 a.m. after having served him with a number of documents related to his criminal charge.

[26]. Cst. Mask did not know what type of transmission was in the Ford. He assumed it was an automatic. He did not notice if the Ford’s emergency brake had been applied. He did not know what type of windows the Ford was equipped with.

[27]. Cst. Mask did recall that he saw the three passengers of the Ford leave the scene prior to his departure. He watched them jump into another vehicle, which stopped to collect them.

[28]. Under cross-examination, Cst. Mask confirmed that he believed Hennessy was in the holding cell at the Renfrew detachment at 2:17 a.m., when he gave his grounds for arrest and breath demand to Cst. Baranovskiy, the qualified technician (Q.T.). Cst. Mask was not sure if Cst. Baranovskiy was in the building at the time of Cst. Mask’s arrival at 2:07 a.m. However, at 2:43 a.m., Cst. Mask did note that Cst. Baranovskiy took custody of Hennessy.

[29]. Cst. Mask believed that he initially sought the assistance of a Q.T. at 1:30 a.m. or thereabouts. He acknowledged Cst. Baranovskiy is an Arnprior officer. The closest approved instrument in Cst. Mask’s view was Renfrew. Cst. Baranovskiy, he explained, was the only Q.T. on duty on the night in question. Cst. Mask agreed that he did not consider where the closest A.I. was for the Q.T. to use. Cst. Mask simply asked the OPP Communication Centre to forward a request for the Q.T. to meet him in Renfrew.

[30]. Cst. Mask later clarified that he must have asked for the assistance of a Q.T. at 1:42 a.m. around the time of his request for a tow truck to remove the Ford, and following the failure by Hennessy of the ASD test.

[31]. Cst. Mask could not confirm whether or not the Ford had run out of gas. He simply stopped to make sure everything was okay with the driver of the Ford, and its other occupants.

Cst. Baranovskiy:

[32]. Cst. Baranovskiy became a member of the OPP in 2006. He was first designated as a Q.T. in 2010 by the Ministry of Community Safety and Corrections. At the end of 2018, he recertified.

[33]. He was on duty on January 18, 2018 when he received a call for his services to act as Q.T. at approximately 1:59 a.m. He was asked to attend the Renfrew detachment of the OPP.

[34]. He arrived there at 2:18 a.m. He made no notes of who was there at that time, nor did he recall who was there.

[35]. Between 2:20 a.m. and 2:28 a.m., he changed the alcohol solution utilized by the A.I. to ensure its proper functioning. At 2:43 a.m., the A.I. was ready to accept samples of breath for analysis.

[36]. Hennessy was in the holding cell when Cst. Baranovskiy took custody of him. Hennessy was polite and co-operative with the officer throughout their dealings. Cst. Baranovskiy did recall an odour of alcohol coming from his cell.

[37]. At 2:44 a.m., Cst. Baranovskiy issued a demand to Hennessy to provide samples of his breath for analysis by an A.I. At 2:44 a.m. as well, Cst. Baranovskiy issued a caution to Hennessy about statements he made to him and the use to which they could be put in evidence against him. Hennessy told the officer he did not wish to make a statement in answer to the charge of ‘over 80’ he was facing.

[38]. At 2:47 a.m., Hennessy provided his first sample of breath, which Cst. Baranovskiy deemed was suitable for analysis by the A.I. It registered 134 milligrams of alcohol in 100 millilitres of blood.

[39]. Cst. Baranovskiy then commenced an interview of Hennessy as part of an Alcohol Influence Report (“AIR”) he generated. In filling out the AIR, Cst. Baranovskiy learned that Hennessy last operated his Ford at 11:30 p.m. He had been at home with three of his friends. They began driving to Tim Horton’s at approximately 10:00 p.m. They did not make it back.

[40]. In terms of alcohol consumption, Hennessy indicated that he drank at three different locales:

a) his residence;

b) the brewery; and

c) the side of the road.

Hennessy did not specify what he drank at each specific location. He estimated he began drinking at 1:00 p.m. and finished at 11:30 p.m. The types of alcohol he drank were whiskey and beer.

[41]. Hennessy reckoned he was driving for ten minutes on his return journey from Tim Horton’s when his vehicle stopped functioning. Cst. Baranovskiy did not recall asking Hennessy why his vehicle came to rest at the side of the road.

[42]. The statements made by Hennessy to Cst. Baranovskiy were not the subject of a voir dire as to their admissibility. The defence expressly waived the requirement for proof of the voluntariness of Hennessy’s answers to the officer’s questions.

[43]. At 3:10 a.m., 23 minutes after he provided his first breath sample; Hennessy’s second sample registered 131 milligrams of alcohol in 100 millilitres of blood. Cst. Baranovskiy explained that the specific approved instrument (“A.I.”) he used required an interval of at least 17 minutes between the taking of the first and second samples of breath.

[44]. Cst. Baranovskiy recalled preparing a number of documents in conducting his investigation, amongst them:

a) Notice of Intention to Produce;

b) Certificate of Qualified Technician (“C.Q.T.”);

c) Certificate of Analyst;

d) Breath Program Checklist;

e) Notice of Increased Penalty; and

f) AIR.

[45]. The C.Q.T. was served by Cst. Mask upon Hennessy. The C.Q.T. contained Hennessy’s signature. Both the Notice of Intention to Produce and the C.Q.T. were made Exhibits 1 and 2 respectively on the trial.

[46]. Cst. Baranovskiy explained that there was a lack of synchronicity between his watch and the ‘in built’ clock of the A.I. For example, he placed the timing of the first sample at 2:47 a.m., whereas the AI printout he put at 2:42 a.m.

[47]. Under cross-examination, it was pointed out to Cst. Baranovskiy that Cst. Mask placed his call for the assistance of a Q.T. at 1:42 a.m. By contrast, Cst. Baranovskiy testified that at 1:59 a.m., he received a dispatch to attend the Renfrew detachment of the OPP. Cst. Baranovskiy confirmed that Cst. Mask and he did not check their watches for any discrepancy in the time they were keeping.

[48]. Cst. Baranovskiy agreed that Hennessy last operated his motor vehicle at 11:30 p.m. The breath demand and arrest by Cst. Mask came much later. There was no discussion between the officers about whether it may be quicker for Cst. Mask to go to the Arnprior detachment of the OPP where Cst. Baranovskiy was situate at the time he received a call for his services as Q.T.

[49]. Cst. Baranovskiy acknowledged his perceived obligation to obtain samples of breath from an accused as quickly as he can. He was the only Q.T. on duty on the night in question. He believed the easiest way to fulfil his obligations as Q.T. was for him to go to Renfrew.

[50]. He did not know if the A.I. he had at his disposal in Arnprior was plugged in and ready to go. He did not recall if the A.I. in Renfrew was plugged in. He did confirm that the Renfrew A.I. required a change of alcohol solution when he began to prepare its use.

[51]. Under re-examination, Cst. Baranovskiy explained that it took him 19 minutes to travel from Arnprior to Renfrew on January 18, 2018. He did not recall where Cst. Mask was upon his arrival at the Renfrew detachment of the OPP.

Reid Broadhurst:

[52]. The defence called Reid Broadhurst (“Broadhurst”), a friend of Hennessy’s, who received a telephone call from Kyle, one of the three passengers of the Ford. All occupants of the Ford wanted Broadhurst to come pick them up. Broadhurst testified that he was home in bed when the call came in. He understood that Hennessy and Kyle were together.

[53]. Broadhurst responded to Kyle’s call for assistance. He dressed and went outside to his vehicle. He headed eastbound on Highway 17 from Foresters Falls. Upon discovery of Hennessy’s Ford, he also saw a police car on scene. Broadhurst slowed down, but did not stop. He then turned around and returned after some delay to Hennessy’s vehicle and the police cruiser, both of which were parked on the side of the road.

[54]. Broadhurst knew that Hennessy’s vehicle had run out of gas. However, Broadhurst denied bringing any fuel to the scene.

[55]. Under cross-examination, Broadhurst acknowledged that he could not remember the actual date the incident occurred. However, it was an uncommon request made by his friend, Kyle.

[56]. Broadhurst repeated his denial that he was asked to bring gas to the scene. He could not even recall if the subject of gas came up during his conversations with Kyle. He just left with the intention of picking up his friends.

[57]. Broadhurst attempted to explain why he did not stop immediately when he saw Hennessy’s vehicle and the police car. He recalled that he proceeded for two minutes further eastbound on Highway 17. He parked at the Chenaux Road intersection. It took a further 10 to 15 minutes to get Kyle to respond. Broadhurst could not recall if he was trying to contact Kyle by call or text. Broadhurst admitted that he did not want to be involved with police.

[58]. Broadhurst did not remember the conversation about police involvement either, or if there even was one. He went back to the scene when he knew that his friends were ready to be picked up.

[59]. Broadhurst pulled in front of the police car. The three passengers in Hennessy’s Ford got into Broadhurst’s vehicle. Broadhurst did not speak to the police officer on scene. He did not believe there was any concern about collecting his friends because he had spoken to Kyle.

[60]. Broadhurst did not ask where Hennessy was, or if he already knew through his earlier conversation with Kyle. Broadhurst brought his passengers back to their ice shack in Cobden.

Issues:

[61]. The issues for resolution on the trial are as follows:

a) Is the Crown able to rely upon the presumption in s. 258(1)(c)(ii) of the Code: (i.e. were the samples taken as soon as practicable?);

b) What use can be made of Hennessy’s roadside statement given to Cst. Mask prior to being given his rights to counsel?

c) Has the defence rebutted the presumption in s. 258(1(a) of the Code that Hennessy occupied the driver’s seat of his vehicle for the purpose of setting it in motion?

d) Was there a realistic risk of danger that Hennessy would:

i) change his mind and drive again;

ii) unintentionally set the vehicle in motion; or

iii) create a danger to persons or property with his stationary or inoperable vehicle?

The Law:

As Soon As Practicable:

[62]. Section 258(1)(c)(ii) of the Code provides:

In any proceedings under subs. 255(1) in respect of an offence under s. 253…where samples of the breath of the accused have been taken pursuant to a demand made under subs. 254(3), if each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time…evidence of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time that the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses, and if the results of the analyses are different, the lowest of the concentrations determined by the analyses…

[63]. In R. v. Ruck, 2013 ONCJ 527, Paciocco J., as he then was, offered the following helpful guidance on the interpretation of “as soon as practicable.” At paragraphs 50-54, he wrote:

“[50] As a matter of law, the Crown cannot succeed in this prosecution without relying on the presumption of identity found in section 258(1)(c) of the Criminal Code of Canada. This legal tool is necessary before I can find that at the time of driving Mr. Ruck’s blood alcohol readings were the same as they were when he provided his samples at 2:02 and 2:27. In order to use this presumption the Crown has to prove among other things that the samples were taken “as soon as practicable.” This does not mean that the samples were taken as soon as possible. It means they must have been taken “within a reasonably prompt time under the circumstances”: R. v. Vanderbruggen 2006 CanLII 9039 (ON CA), [2006] O.J. No. 1138 at para.12 (C.A.). In this case the Crown was correct to address this issue in submissions. There are periods of suspicious delay that require consideration.

[51] Before examining those periods of suspicious delay it is helpful to consider the purposes for the “as soon as practicable” requirement. I believe there to be two.

[52] One of the reasons for the “as soon as practicable” requirement is that in spite of the presumption of identity the actual blood alcohol level of accused persons at the time of the alleged offence is apt to be factually different from their blood alcohol level at the time of the test, and that the longer the delay between the alleged offence and the evidential breath test, the greater that discrepancy is apt to be. This is inevitable given that alcohol is absorbed into the blood over time and metabolized. In spite of this the presumption of identity was adopted out of necessity. At the time the legislation was passed it was not feasible to equip officers with mobile evidential breath machines that meet Canadian standards of accuracy. Delay in capturing actual blood alcohol concentrations would be inevitable. In order to facilitate the prosecution of alcohol driving offences the law had to deem the blood alcohol level to be identical at the two points in time, even though it is not in fact apt to be so. Parliament evidently sought to minimize the risk of inaccuracy raised by the presumption in two ways. First, it required that samples be taken “as soon as practicable” to encourage samples to be secured promptly. Second, Parliament provided that even if the entire delay is reasonable in the circumstances, if it takes more than two hours after the alleged offence to secure the first breath result the delay is too long to suppose fairly that the blood alcohol content of the driver would be the same at the time of the test as it was at the time of driving. Hence the presumption of identity cannot be relied upon.

[53] Another reason for the “as soon as practicable” requirement is concern for the deprivation of liberty that detention to accommodate the test entails. It is exceptional to require citizens to forfeit their liberty to accommodate police investigations. While it is necessary to do so the period of deprivation should not be unreasonably long, given its purpose. The “as soon as practicable” requirement is no doubt meant to ensure that liberty deprivations caused by the need to secure breath samples are reasonable in their duration.

[54] Even bearing these purposes in mind the case law is clear that in deciding whether a sample has been taken “within a reasonable prompt time under the circumstances” a judge is not to require a precise accounting of every minute between the arrest and the test. The judge must consider the overall period of delay (R. v. Newton [2013] O.J. No. 428 (Ont.S.C.J.). Individual periods of delay that are not adequately explained or that are unexplained can, however, contribute to a finding that the samples were not taken “as soon as practicable”: R. v. Bugler [1997] O.J. No. 2238 (C.A.). In effect, the judge should assess the overall delay, including periods of inordinate or unexplained delay, to determine whether in all of the circumstances the samples were taken “within a reasonably prompt time under the circumstances.”

Roadside Questioning of the Driver:

[64]. In R. v. Orbanski, R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, Charron J., speaking for a seven member majority of a full panel of the Supreme Court of Canada explained at paragraph 58:

“…As the Crown concedes, the evidence obtained as a result of the motorist’s participation without the right to counsel can only be used as an investigative tool to confirm or reject the officer’s suspicion that the driver might be impaired. It cannot be used as direct evidence to incriminate the driver: see R. v. Milne (1996), 1996 CanLII 508 (ON CA), 107 C.C.C. (3d) 118 (Ont. C.A.), at pp. 128-31, leave to appeal refused, [1996] 3 S.C.R. xiii; R. v. Coutts (1999), 1999 CanLII 3742 (ON CA), 45 O.R. (3d) 288 (Ont. C.A.); R. v. Ellerman, 2000 ABCA 47, [2000] 6 W.W.R. 704 (Alta. C.A.); and R. v. Roy (1997), 1997 CanLII 10524 (QC CA), 117 C.C.C. (3d) 243 (Que. C.A.). The rationale for this limitation was first set out in Milne and is founded on the purpose of the s. 10(b) right to counsel.”

[65]. As a basis for deciding whether to make an ASD demand, police can rely on answers provided to questions put to detained motorist. Otherwise, it is devoid of evidentiary value.

Occupying the Driver’s Seat:

[66]. Section 258(1)(a) of the Code reads:

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

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

Realistic Risk of Danger:

[67]. Fish J. in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157, provided at paras. 30 to 42 a succinct review of the law on impaired “care or control” of a motor vehicle as follows:

“[30] In Toews, McIntyre J. held that acts of care or control, short of driving, are acts which involve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous. [Emphasis added; p. 126.]

[31] And in Penno, citing Toews, Lamer C.J. reaffirmed the requirement of risk of danger in these terms:

The law . . . is not deprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to drive is impaired in a motor vehicle. In fact, Toews stands for the proposition that when a person uses a vehicle in a way that involves no risk of putting it in motion so that it could become dangerous, the courts should find that the actus reus was not present. [Emphasis added; p. 877.]

[32] Parliament’s objective in enacting s. 253 of the Code was to prevent a risk of danger to public safety: Toews, at p. 126, citing R. v. Price (1978), 1978 CanLII 2288 (NB CA), 40 C.C.C. (2d) 378 (N.B.S.C., App. Div.), at p. 384. Accordingly, conduct that presents no such risk falls outside the intended reach of the offence.

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

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

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

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

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

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

[36] It is settled law that an intention to set the vehicle in motion is not an essential element of the offence: Ford v. The Queen, 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231. This may appear anomalous in view of the presumption set out at s. 258(1)(a) of the Criminal Code, which provides that an accused who was 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 . . . .

[37] 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!

[38] At a minimum, the wording of the presumption signifies that a person who was found drunk and behind the wheel cannot, for that reason alone, be convicted of care or control if that person satisfies the court that he or she had no intention to set the vehicle in motion. Dickson C.J. made this plain in R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3, at p. 19: “It cannot be said that proof of occupancy of the driver’s seat leads inexorably to the conclusion that the essential element of care or control exists . . . .”

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

[40] I agree with Justice Cromwell that Parliament’s purpose in enacting the care or control provision was preventive, and directed at the inherent danger that normally arises from the mere “combination of alcohol and automobile”: Saunders, at p. 290. With respect, however, I believe this supports my view that Parliament’s intention in enacting s. 253(1) of the Criminal Code was to criminalize only conduct that creates a realistic risk of danger.

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

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

[68]. Further, in R. v. Currie, [2015] O.J. No. 5670 (Ont. S.C.), Forestell J. sitting on a summary conviction appeal, held that the Crown does not have to prove a realistic risk of danger where the statutory presumption in s. 258(1)(a) of the Code has not been rebutted.

Analysis:

As Soon As Practicable:

[69]. The thrust of the defence argument is that there is 17 minutes of completely inexplicable delay between when Cst. Mask requests a Q.T. at 1:42 a.m. and Cst. Baranovskiy, the Q.T., responds to a call for his services at 1:59 a.m. The Crown in reply submits that although this would appear to be so, there is no need to scrutinize each period of unexplained or inadequately explained delay. Rather, the proper approach to be taken is to assess the overall period of delay. Consequently, I have prepared timelines for police conduct as follows:

Timeline – Cst. Mask:

1:23 a.m. – Cst. Mask spots Hennessy’s vehicle on the side of the road.

1:25 a.m. – Cst. Mask makes an ASD demand

1:38 a.m. – Hennessy fails the ASD test and is arrested by Mask for ‘over 80” care or control

1:39 a.m. – Cst. Mask reads to Hennessy his rights to counsel

1:41 a.m. – Cst. Mask cautions Hennessy; Hennessy expresses his desire not to say anything in answer to the charge.

1:42 a.m. - Cst. Mask requests that the nearest Q.T. meet him at the Renfrew detachment of the OPP

1:54 a.m. – Cst. Mask departs the scene

2:07 a.m. – Cst. Mask arrives at the Renfrew Detachment and is unsure whether the Q.T. is present as well.

2:17 a.m. – Cst. Mask communicates his grounds to Cst. Baranovskiy, the Q.T., for making an A.I. demand of Hennessy; Hennessy is in a holding cell.

2:43 a.m. – Cst. Baranovskiy takes custody of Hennessy.

3:11 a.m. – Cst. Baranovskiy returns Hennessy to Cst. Mask’s custody.

3:56 a.m. – Hennessy is released from police custody.

Timeline – Cst. Baranovskiy:

1:59 a.m. – Cst. Baranovskiy receives a call that his services as a Q.T. are required.

2:18 a.m. – He arrives at the Renfrew Detachment of the OPP.

2:20 a.m. – He begins to change the expired alcohol solution for the A.I. he wishes to use.

2:28 a.m. – He finishes changing the solution, and calibrates the A.I.

2:35 A.M. – He conducts a self-check of the A.I. to ensure its proper functioning.

2:43 a.m. – He determines the A.I. is ready to accept samples of Hennessy’s breath

2:44 a.m. – Cst. Baranovskiy issues an AI demand for samples of Hennessy’s breath and cautions Hennessy.

2:47 a.m. – Hennessy supplies his first sample of breath, which when analyzed, generates a reading of 134 mgs of alcohol in 100 mls of blood.

3:10 a.m. – Hennessy supplies his second sample of breath. Upon analysis, it registers 131 mgs of alcohol in 100 mls of blood.

[70]. While I appreciate that since Vanderbruggen, trial judges are specifically instructed to bear in mind an outer limit of two hours from the time the offence is alleged to have been committed to the taking of the first sample, I do not conclude as a result that any and all delay is excusable, provided the two hour deadline is met. The ultimate test is – did the police act reasonably?

[71]. There are essentially three periods of delay in this case where no adequate explanation exists on the evidence adduced at trial. Firstly, Cst. Mask made a call for the assistance of a Q.T. at 1:42 a.m. By contrast, Cst. Baranovskiy testified he did not receive a call for his services until 1:59 a.m. I cannot speculate as to whether the officers’ time pieces are quite significantly out of sync to explain the discrepancy. The Crown had the opportunity, if it could, to lead evidence to satisfy the Court on a balance of probabilities how this gap in time occurred. The Crown did not. The defence established that the officers, Cst. Mask and Cst. Baranovskiy, did not ask one another what time it was. This simple procedure, if followed, may have provided a full and complete answer to the mystery.

[72]. The second period of delay involved Cst. Mask’s decision to wait on scene for the arrival of Cst. Cranford This occurred between 1:42 a.m. and 1:54 a.m., the latter time being when Cst. Mask departed for the Renfrew detachment. Cst. Mask may have searched the Ford for evidence. However, this would not have been a time consuming task. He spoke to Kyle about the key – to leave it in the vehicle. Cst. Mask did not confirm Kyle did so. Cst. Cranford could not assist Fluegel with knowing whether there was a key for the Ford or not.

[73]. For whatever reason, Cst. Mask waited for Cst. Cranford to arrive on scene. Although it is not clear from Cst. Mask’s evidence, this had to have happened some time before 1:54 a.m. The Ford’s occupants had all left by this point. Cst. Mask did not express any great concern for their warmth or safety in his testimony. To be fair, Cst. Mask expected they had a rescue ride coming imminently anyway. The Ford itself was well off the roadway with hazard lights activated. Cst. Mask did not indicate it was a danger by virtue of its location. Indeed, Cst. Mask was able to pull alongside the Ford with his police cruiser without either vehicle being on the paved portion of the highway.

[74]. Cst. Mask did not know that a Q.T. would take so long to respond to his request for assistance. Moreover, there appeared to be a real lack of direct communication between Cst. Mask and Cst. Baranovskiy to co-operate in ensuring Hennessy’s breath samples were taken as soon as practicable. It seems one of the few occasions they spoke was at the detachment when Cst. Mask gave his grounds for making an A.I. breath demand at 2:17 a.m. However, Cst. Baranovskiy testified he only arrived at the detachment at 2:18 a.m. A lack of timepiece synchronization may have afforded an explanation, but none was provided on the evidence.

[75]. The third questionable period of delay was the gap between the taking of the first and second breath samples (i.e. 2:47 a.m. and 3:10 a.m.). Cst. Baranovskiy testified that this particular A.I., the Intoxilyzer 8000C, requires there to be a 17 minute interval between the taking of the first and second samples of a subject’s breath. Like Paciocco in Ruck, I find that the Crown had the onus of explaining the further six minutes of delay. It did not.

[76]. All told, there was some 23 minutes of unexplained or inadequately explained delay in this case. All of those 23 minutes may have inured to Hennessy’s benefit by allowing extra time for his blood alcohol concentration to decline, but I cannot be sure. He did drink in his vehicle awaiting his ride on the evidence adduced by the Crown through Cst. Baranovskiy’s interview of Hennessy. The presumption of identity set out in s. 258(1)(c)(ii) of the Code was compromised as a result. Further, Hennessy’s detection was prolonged more than necessary.

[77]. On the unique facts of this case, I am not satisfied that Hennessy’s breath samples were taken as soon as possible. Without the evidentiary assist s. 258(1)(c)(ii) provides, there is no evidence of Hennessy’s blood alcohol concentration when he was first spotted by Cst. Mask in his disabled vehicle at the side of the road at 1:23 a.m. on January 18, 2018. Accordingly, I must find him not guilty of the ‘over 80’ care or control offence upon which he was tried.

Roadside Questioning of the Driver:

[78]. Having found as I have on the first issues, I need not decide the remaining issues, but I will address them briefly in passing.

[79]. Roadside statements of the motorist are clearly only admissible to assist an investigating officer on the issue of whether to make an ASD demand. In this case, the Crown urged me to consider that Hennessy told Cst. Mask he was waiting for a buddy to bring him gas. The Crown argued essentially that I could use this statement to reinforce the presumption in s. 258(1)(a) of the Code – that Hennessy occupied the driver’s seat for the purpose of setting his Ford in motion once refueled. In my view, to accept this proposition would be an error. The use to which roadside statements can be put is very limited. I cannot use them for purposes of incrimination.

Rebuttal of the Presumption in s. 258(1)(a):

[80]. Even without Hennessy answers given to Cst. Mask at the roadside, I find that the defence did not rebut the presumption in s. 258(1)(a) of the Code. The Crown led admissible evidence to suggest that Hennessy ceased operation of his vehicle at 11:30 p.m. on January 17, 2018. However, he did not abandon its care or control. On an objective assessment of the whole of the evidence, I am not satisfied on a balance of probabilities that the presumption was displaced. Broadhurst’s evidence did not assist Hennessy. I have no reason to doubt that Broadhurst did not bring gas to assist with restarting the vehicle. That matters little. His conduct in response to Kyle’s distress call does not help me in making a finding about Hennessy’s intentions.

[81]. In the absence of any cogent evidence to refute the presumption in s. 258(1)(a) of the Code, I must find that Hennessy remained in care or control of his vehicle.

Realistic Risk of Danger:

[82]. In light of my finding on the failure to rebut the presumption in s. 258(1)(a) of the Code, the need to assess a ‘realistic risk of danger’ is precluded (see R. v. Currie [2015] O.J. No. 5670 (Ont. S.C.) at paras. 7-9).

Conclusion:

[83]. For the reasons stated above, Hennessy is not guilty of having the care or control of a motor vehicle while his blood alcohol concentration exceeded 80 mgs of alcohol in 100 mls of blood contrary to s. 253(1)(b) of the Code.

DATED: March 12, 2019

The Honourable Mr. Justice M. March