Court Information

Ontario Court of Justice

Date: April 23, 2019

Court File No.: Central East Region: Oshawa Courthouse 17-01148-00

Parties

Between:

Her Majesty the Queen

— AND —

Riley Huff

Before the Court

Justice: Peter C. West

Evidence and Submissions Heard: March 18, 2019

Reasons Released: April 23, 2019

Counsel

For the Crown: I. Skelton

For the Defendant: E. Willschick

WEST J.:

Introduction

[1] On October 22, 2017, Riley Huff was charged with impaired care or control and over 80 care or control. The defence brought a Charter application, which alleged Mr. Huff's ss. 8, 9 and 10(a) Charter rights were infringed. The Crown called three witnesses, PC Deane, the O.P.P. investigating officer; Bradley Hyndman, a tow truck driver and the 911 caller and PC Harris, the qualified breath technician. Mr. Huff testified on the Charter application. The defence called Nicolai Roberts, Mr. Huff's wife on the trial proper. Mr. Huff did not testify on the trial proper.

[2] It was agreed by counsel that the Charter application could be heard by way of a blended hearing. Further, it was agreed by Mr. Willschick that any statements made by his client to PC Deane could be led by the Crown as going to grounds as well as for the truth of what was said. There was no need for a voluntariness voir dire respecting these statements.

[3] As in any criminal case, Mr. Huff is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[4] Mr. Huff did not testify on the trial proper concerning the charges he is facing. There was no onus on him to testify and he does not have to prove his innocence. The onus remains on the Crown to prove Riley Huff's guilt beyond a reasonable doubt throughout this trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence.

Factual Background

[5] On October 22, 2017, at 3:37 a.m., PC Deane of the Whitby O.P.P. received a dispatch of a possible impaired driver travelling eastbound on Highway 401 passing Brock Street in Whitby. The vehicle was a black BMW, licence plate CAWD293. PC Deane was advised by the dispatcher the vehicle was travelling at varying speeds and weaving across all three lanes of traffic. PC Deane was also advised the BMW had struck the centre median of Highway 401 but did not stop. He was aware the vehicle was being followed by a tow truck driver.

[6] At 3:42 a.m., PC Deane was advised the BMW was exiting the 401 at the Simcoe Street exit in Oshawa, driving very slowly and was heading southbound on Simcoe Street. When PC Deane turned onto Simcoe Street he saw the black motor vehicle travelling at a high rate of speed southbound on Simcoe, it was being followed by a tow truck. He observed this black motor vehicle turn left on Conant Street, followed by the tow truck. When PC Deane turned on to Conant shortly after 3:44 a.m., he was unable to locate the black BMW. The registered owner of the BMW resided at 730 Cedar Street, which was 500 to 800 meters from where he was. PC Deane decided to drive to the address to see whether he could locate the black BMW.

[7] At 3:51 a.m., PC Deane arrived at 730 Cedar Street and pulled into the parking lot. He saw a black BMW with licence CAWD293 backed into a parking space with the driver's door open. It was between two other vehicles. There was a male person standing beside the open door, who PC Deane later identified as Riley Huff from his driver's licence. PC Deane observed fresh damage to the front bumper on the passenger side. There was also fresh damage just over the wheel well on the front driver's side. The damage looked like fresh scratches and was in the nature of minor scuffs and scratches and dents.

[8] As PC Deane walked towards the BMW, this person closed the driver's door. PC Deane testified he advised this person there had been a 911 call concerning a possible impaired driver on the 401 in a BMW and that the vehicle had struck the barrier. Mr. Huff told PC Deane he was just out waxing his car, although PC Deane did not observe any wax or cloths to wax a car. He asked Mr. Huff for his driver's licence and Mr. Huff said it was inside his house. PC Deane asked where the keys were and Mr. Huff indicated they were in the house as well.

[9] PC Deane asked Mr. Huff if he would retrieve his identification and Mr. Huff walked to a townhouse, Unit 17, just behind where the car was parked. PC Deane walked with him. As Mr. Huff was walking to the townhouse PC Deane observed Mr. Huff to be very unsteady on his feet. He also was swaying far to the left as he walked and stepped over the curb and up a slight grassy incline. This was noticeable although Mr. Huff did not fall down. When he got to the door Mr. Huff tried to open the door but it was locked and he stood there and dropped his head. PC Deane testified he did not believe Mr. Huff was detained at this point as PC Huff was still investigating the 911 call and trying to determine who was driving the BMW.

[10] PC Deane asked if Mr. Huff had the key to get in and he said his wife was inside and she was going to be really mad. The officer asked if he could not get inside because he just got home, to which Mr. Huff began pleading with PC Deane that he was home and could the officer just let him go inside. Mr. Huff then walked back to the BMW with PC Deane without entering the townhouse. At 3:55 a.m., PC Deane cautioned Mr. Huff because of his conduct and his answers to the officer's questions and the fact he was pleading with the officer to just let him go because he was home. This caused PC Deane to believe Mr. Huff could possibly be the driver of the BMW. PC Deane told Mr. Huff, "You are charged or will be charged with impaired driving. You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you understand?" Mr. Huff said "Yeah."

[11] They were standing by the BMW again and PC Deane observed the dashboard was lit up, he opened the driver's door and saw the keys in the ignition. The vehicle was not running. He removed the keys. PC Deane asked Mr. Huff to be honest with him and asked again for his Driver's Licence. Mr. Huff reached into his right front pocket and pulled out his Ontario Driver's Licence. The Driver's Licence identified him as Riley Huff with a birthdate of May 19, 1987. PC Deane identified Mr. Huff in court as the person he was interacting with on October 22, 2017, after 3:51 a.m.

[12] PC Deane testified he was standing in much closer proximity to Mr. Huff when they were speaking beside the BMW and he detected a strong odour of alcohol on Mr. Huff's breath. He also observed Mr. Huff's eyes were glossy and he testified Mr. Huff had a glazed over kind of look. Mr. Huff hung his head and he apologized saying he had taken the car for a spin. PC Deane asked him where he went and Mr. Huff said "I just went and flipped around. I woke up and had a couple of drinks. I was stressed and went for a drive. My wife's going to kill me, I have 5 kids officer, please."

[13] PC Deane testified he believed Mr. Huff operated his vehicle while he was impaired by alcohol and placed him under arrest at 4:04 a.m. for impaired care or control. PC Deane handcuffed Mr. Huff to the rear and at 4:05 a.m., he read Mr. Huff his right to counsel from a pre-printed card. Mr. Huff said he understood and that he had his own lawyer, "Josh Ramsy." PC Deane cautioned Mr. Huff a second time at 4:06 a.m. and at 4:07 a.m., he read Mr. Huff the breath demand. Mr. Huff said he did not understand the breath demand so PC Deane repeated it in simpler language and Mr. Huff said "Okay."

[14] At this point Mr. Huff became slightly uncooperative and agitated. He asked about the handcuffs and PC Deane had Mr. Huff step out of the police cruiser. Mr. Huff started to fall down as PC Deane was adjusting and loosening the handcuffs but PC Deane caught him by his arm and had him lean against the cruiser so he could adjust the handcuffs.

[15] At 4:11 a.m., PC Deane left the parking lot to go to the Whitby detachment and he arrived at 4:24 a.m. Mr. Huff provided the number for his lawyer, 416-271-9922. At 4:32 a.m., PC Deane called the number and it went straight to voicemail. He left a detailed message about Mr. Huff and a return number.

[16] At 4:35 a.m., PC Deane told Mr. Huff he had left a message at the lawyer's phone number. He asked if Mr. Huff wanted him to call duty counsel if his lawyer did not call back. Mr. Huff told PC Deane to call duty counsel. PC Deane called the duty counsel hotline and left the information of Mr. Huff's arrest and a callback number. When PC Deane returned to where Mr. Huff was seated he saw that Mr. Huff was on a cell phone. Mr. Huff said he was speaking to his lawyer, Jason Ramsy. PC Deane took Mr. Huff to the private booth so he could have a private conversation with his lawyer at 4:00 a.m. Mr. Huff handed the phone to PC Deane and he confirmed Mr. Huff was talking to his lawyer. He then gave the phone back to Mr. Huff and closed the door to the private booth. At 4:44 a.m., Mr. Huff came out of the booth. PC Deane asked if Mr. Huff was satisfied with his call to his lawyer and Mr. Huff said yes.

[17] At 4:52 a.m., Mr. Huff was turned over to the qualified breath technician, PC Harris, who performed two breath tests. PC Deane advised PC Harris of his grounds for the arrest for impaired care or control. Mr. Huff was returned to PC Deane by PC Harris at 5:30 a.m. He served Mr. Huff with the Certificate of a Qualified Breath Technician, which revealed at 5:03:45 a.m., Mr. Huff's breath reading was 180 mg of alcohol in 100 mL of blood and the second breath reading at 5:26:13 a.m., was 170 mg of alcohol in 100mL of blood.

[18] In cross-examination PC Deane testified the door to Unit 17 was just a short distance to the right of the trunk of the BMW. PC Deane testified he went with Mr. Huff when Mr. Huff said his driver's license was in his house. It was a short distance. They walked to the townhouse door sometime after 3:51 a.m., when he first arrived. At 3:55 a.m., PC Deane read him the caution because Mr. Huff could not get into his house and the car had come back registered to a female person. He showed defence counsel where his note of cautioning Mr. Huff at 3:55 a.m. was in his notebook. He agreed he told the breath technician he cautioned Mr. Huff at 4:06 a.m. after Mr. Huff was arrested and he had read the right to counsel to Mr. Huff but this was after the arrest. When they got back to the car PC Deane noticed the dash was lit up. This was when he opened the driver's door and saw the keys in the ignition. He had been facing away from the car when he first came up to Mr. Huff, so he did not see the dash lit up when he first spoke to Mr. Huff. When he first saw Mr. Huff beside the open driver's door Mr. Huff just closed the door, he did not go into the vehicle to retrieve the key.

[19] PC Deane disagreed with Mr. Willschick's suggestion the vehicle did not have an ignition. He disagreed there was a push button start. Mr. Willschick produced three photographs on 8x10 photo paper, stapled together. The first two photographs showed a person's hand holding a BMW key fob by the steering wheel of a car with a push button start. The third photograph was of a VIN number on a car's dash, WBAXH5C55DD111831. Two of the photographs (one showing the BMW key fob with a push button start and the other showing the VIN number) have rain drops on the windshield. These three photographs were marked collectively by Mr. Willschick as Exhibit B subject to further proof being tendered by Mr. Willschick.

[20] PC Deane testified he could not tell if the photographs were of the vehicle from that early morning on October 22, 2017. All he remembered was the key was in the ignition when he looked inside at the illuminated dash. Mr. Willschick asked PC Deane if the VIN number showed the BMW did not have a traditional ignition, would he say that was incorrect. PC Deane responded, "When I got in the vehicle, the keys were there. That's all I can really testify to. I don't recall a push button start or anything else." He disagreed he never saw an ignition or that this portion of his notes was inaccurate. He disagreed he inserted this detail because it helped in determining Mr. Huff had care or control of the BMW.

[21] PC Deane testified he did not have any recollection of what this ignition actually looked like, he just recalled when he leaned in there was a key there. He would not make this up. He advised defence counsel he did not write down the VIN number of the BMW. The BMW was towed and impounded.

[22] In re-examination PC Deane testified the keys would have gone with the tow truck operator. Mr. Huff told PC Deane after the caution was read that he had driven the car, he took the car for a spin after having a couple of drinks.

[23] Bradley Hyndman is a tow truck driver and on October 22, 2017, he observed a black BMW sometime after 3:15 a.m., hit the centre median on Highway 401. It was raining and the roadway was slippery. This car went from the far right lane across three lanes driving in an erratic manner. He believed the driver was impaired. The vehicle was not indicating its lane changes and was cutting off other vehicles despite the traffic being light. There was not much traffic at that time in the morning. The driver was not driving safely. The driver was fluctuating his speed between 80 and 130 km/hr. The speeds were up and down and without any reason for the variation. There was no need for it. He felt he should call 911, which he did, commencing at 3:31:40 a.m. He followed the vehicle while he spoke to the 911 operator. He advised he first saw the vehicle on Highway 401 at Whites Road in Pickering. He was giving updates to the 911 operator. He was telling her exactly what he was observing. He saw the license number and provided it, licence number CAWD293. He had to get close to the BMW to take down the license number. The driver exited at Simcoe Street in Oshawa. The driver drove very slowly going off on the ramp and ran the stop sign at Bloor Street turning left and then 50 metres later turned right onto Simcoe southbound. The BMW driver was driving erratically with fluctuating speeds. The driver drove into a neighbourhood but the street was a crescent and he came back onto Simcoe. He saw the driver run other stop signs.

[24] Mr. Hyndman saw the police vehicle on Simcoe coming south. Mr. Hyndman listened to three 911 calls, Exhibit 1, which he identified as his voice, telling the operator the manner of driving being done by the BMW driver. He told the operator the driver of the BMW was definitely impaired. He described the driver weaving all over the road. He provided the licence number by speeding up and getting close to the BMW. He told the operator CAWD293 was the license number on two different occasions. He told the operator the driver was impaired, "He is hammered." The driver drove through a number of stop signs without stopping. The last time provided on the 911 call was 3:43:15.

[25] In cross-examination Mr. Hyndman agreed he could not identify the driver as he did not see who was driving the BMW. He did not know if it was a man or a woman. The BMW was always in front of him.

[26] PC Harris, the qualified breath technician testified. He produced the printouts from the Intoxilyzer 8000C and they were filed as Exhibit 2. The defence conceded the approved instrument was operating properly. PC Harris identified his writing on the Certificate of a Qualified Technician, which had been marked as Exhibit A.

[27] Riley Huff testified on the blended hearing respecting the Charter applications. He testified he was at his home in the parking lot when he encountered the police officer. He testified the officer asked what he was doing and he told him he was cleaning the car. He testified the officer was two feet from him. He did not recall the officer say he was investigating a possible impaired driver. Mr. Huff testified he did not think he could leave when the officer was speaking to him.

[28] The officer came with him to the townhouse door. He was right beside Mr. Huff. Mr. Huff testified he felt he had to do what the officer asked him to do. Mr. Huff testified the officer asked him to come back to the BMW. In cross-examination Mr. Huff volunteered for first time that when he got to his townhouse he opened his townhouse door, went inside and retrieved his wallet and keys, which were right beside the door on a shelf. The officer did not come into his house. PC Deane had not been asked if Mr. Huff went into his house to retrieve his driver's licence and the keys to the BMW.

[29] According to Mr. Huff, the officer asked if he had been driving that night and Mr. Huff told the officer, "No." Then the officer put him under arrest. The officer went into Mr. Huff's car, opened the door, went in and rummaged around. Mr. Huff testified he believed he was being investigated for a criminal offence. The officer did not ask if he could open his vehicle and go inside.

[30] Mr. Huff agreed he had been drinking a little bit because he was home that night. He had a few beers. At some point he ended up outside by his wife Nicholai's car, the BMW. He was not driving that night. He had been having issues sleeping, so he watched the hockey game. He could not fall asleep. He likes to keep his wife's car clean. The keys were inside his house. He went outside around 2:30 a.m. Mr. Huff testified he often leaves the BMW unlocked or he unlocks it from inside the townhouse by using the fob. He was not concerned about people stealing things from his car. Mr. Huff testified he parks the BMW right under an overhead light so that it is lit up when he cleans it.

[31] He testified the car never left the parking lot that night or early morning hours. When it was put to him the tow truck driver took down the license number, Mr. Huff testified the car never left the parking lot after 2:30 a.m. After he went outside, the car never budged. He testified he was putting wax on the car with a spray bottle when the officer drove up. The bottle was on the curb towards the rear of the car when officer walked up and spoke to him. Mr. Huff testified he showed the officer the spray bottle of wax. When he was questioned about the officer's evidence of not seeing any wax or cloths, Mr. Huff testified it was dark behind the car so maybe the officer missed it.

[32] Mr. Huff testified he never had the keys on his person. The car was open because some days he leaves it open or he opens it from inside the house. He agreed he lived in south Oshawa but his area is a nice little pocket of houses. According to Mr. Huff there was no damage on the car. When he was pressed he then testified there was a scuff on the passenger side from a previous incident, by the wheel well.

[33] Mr. Huff denied telling the officer he was driving the car that night. He also volunteered during his cross-examination that he asked the officer if he could leave and the officer said no. PC Deane was not asked if Mr. Huff asked if he could leave and that PC Deane told Mr. Huff he could not leave.

[34] Mr. Huff testified he has an "addiction" keeping his wife's car clean. He likes to clean and wax the car at 3 or 4 a.m. and he does this a couple of times a week. He testified there is an overhead light where he parks the car and he can see any streaks and anything he has missed. He told the Crown, "Call me crazy but that is when I like to clean the car."

[35] The defence did not call any other evidence on the blended hearing respecting the Charter application.

[36] On the trial proper the defence called Nicholai Roberts, the registered owner of the black 2013, 535i xDrive AWD BMW. She testified the vehicle was purchased in October 2016 and on July 29, 2018 the BMW was totalled in an accident. Exhibit 3 is the Insurance Valuation for her BMW, license number CAWD293, VIN #WBAFU7C58DDU74689.

[37] Ms. Roberts was shown a further document listing all the specifications for a 2013 535i xDrive AWD BMW, with VIN #WBAFU7C58DDU74689. This document was marked as Exhibit 4.

[38] Ms. Roberts testified to start her BMW the key had to be inside the car and it had a push button start with no ignition. She was provided the three photographs contained in Exhibit B by Mr. Willschick. The three photographs were stapled together. These were the questions and answers respecting Exhibit B:

Mr. Willschick: When was the photograph taken? [Referring to the top photograph of the three stapled photographs]

Nicolai Roberts: When was the photograph taken, I'm not 100% sure, I don't know the exact date but it was taken a while ago.

Mr. Willschick: Is that your vehicle?

Nicolai Roberts: This, [pause] no.

Mr. Willschick: What do you mean?

Nicolai Roberts: Umm

Mr. Willschick: Is that your BMW, [pause] not the last picture,

Nicolai Roberts: Not the last picture but yes.

Mr. Willschick: Okay. So that's your vehicle?

Nicolai Roberts: Yes.

Mr. Willschick: Okay, so turn the page.

The Court: Sorry, are the first two pictures your vehicle with some other BMW VIN?

Nicolai Roberts: The last one is not

The Court: I don't understand, so you're saying the first two is your vehicle

Nicolai Roberts: Yea, absolutely.

The Court: The last one with the VIN number is not yours

Nicolai Roberts: No its not.

The Court: The VIN number is not your VIN number. So why is that picture in?

Mr. Willschick: I got a printout of these and they were in a package. I'd received the three of these photographs they were in a package together and I didn't know what the last one was.

The Court: Well…Can I see the last one please. So the last one is a picture of a VIN number. So you're saying that's not your vehicle, so, why would this picture be sent to counsel?

Nicolai Roberts: I do not know.

The Court: Who's taking the picture because you can see a person with a camera? [Referring to the third photograph of the VIN number]

Nicolai Roberts: That is my brother-in-law.

The Court: Your brother-in-law. So he's taking a picture of the VIN, did he take the pictures of the key and …?

Nicolai Roberts: Ya

The Court: He did.

[39] The first two photographs were marked as Exhibit 5 and the photograph of the VIN number remained as Exhibit B. In cross-examination Ms. Roberts testified the photographs were taken after the incident by her brother-in-law. She ultimately agreed the pictures of the dash board might not be her vehicle as she was not present when the photographs were taken. She agreed on one of the photos of the BMW fob and push button start and the photo of the VIN there was rain on the windshield in both photographs.

[40] She further testified her husband was not drinking the night of October 21, 2017. She spent time with him that night. She did not drive the BMW that night or early morning. Her mother is the only other person who drives the BMW and she did not drive it the night. Ms. Roberts went to bed at 2 a.m. Her husband was watching TV when she went to bed.

Was Mr. Huff Detained When PC Deane First Arrived at 730 Cedar Street and Questioned Him?

[41] In my view R. v. Grant is applicable to the circumstances presented in this case, where police are dispatched to investigate a possible impaired driver and the officer ends up driving to the address of the registered owner of the vehicle to see whether the vehicle has arrived there. This was not a vehicle stop on a street or highway where the officer was investigating the sobriety of the driver. In this case PC Deane was attempting to catch up to a possible impaired driver on Highway 401 that had exited at the Simcoe Street exit in Oshawa. He observed the vehicle in question southbound on Simcoe Street driving at a high rate of speed turn suddenly onto a side street. By the time the officer got to the turn the vehicle was no longer in sight. PC Deane had the license number CAWD293 of the black BMW and knew the registered owner's address, which he drove to. He drove to that address to conduct further investigation as to who the driver of the vehicle was. The comments of McLachlin C.J.C. and Charron J. in R. v. Grant, in my view apply to these early investigative steps of PC Deane when he first arrived on scene:

38 In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation. Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel.

41 As discussed earlier, general inquiries by a patrolling officer present no threat to freedom of choice. On the other hand, such inquiries can escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particular individual. Focused suspicion, in and of itself, does not turn the encounter into a detention. What matters is how the police, based on that suspicion, interacted with the subject. The language of the Charter does not confine detention to situations where a person is in potential jeopardy of arrest. However, this is a factor that may help to determine whether, in a particular circumstance, a reasonable person would conclude he or she had no choice but to comply with a police officer's request. The police must be mindful that, depending on how they act and what they say, the point may be reached where a reasonable person, in the position of that individual, would conclude he or she is not free to choose to walk away or decline to answer questions. [Emphasis added]

[42] PC Deane would be under an obligation to advise Mr. Huff of what he was investigating Mr. Huff for, pursuant to s. 10(a) of the Charter, if Mr. Huff was under arrest or detained. Mr. Huff testified on the blended hearing he felt like he could not leave when PC Deane first approached him. However, at no time did PC Deane physically restrain Mr. Huff and Mr. Huff was under no legal obligation to answer any of PC Deane's questions. It was only in cross-examination that Mr. Huff testified he actually asked PC Deane if he could leave and PC Deane told him he could not. This was not put to PC Deane by Mr. Willschick in cross-examination and was not led as part of Mr. Huff's evidence in-chief. In my view this was something Mr. Huff made up as he was being cross-examined and I do not accept it as being credible.

[43] Mr. Huff was asked by his counsel what PC Deane first said to him when PC Deane approached Mr. Huff standing beside his car. Mr. Huff testified he could not recall the first thing said to him by PC Deane. The only evidence on this issue comes from PC Deane, who testified he told Mr. Huff he had been dispatched to investigate a possible impaired driver of a black BMW on the 401 Highway who struck the centre median. Mr. Huff testified he told the officer he was outside waxing his BMW. PC Deane was speaking to Mr. Huff around 3:51 a.m. It is interesting to note Mr. Huff also testified he was "actually waxing" his BMW when PC Deane walked up to him and that he pointed to the spray bottle of wax, which was on the curb behind his car. PC Deane testified he did not see any wax or cloths and when he first arrived he saw Mr. Huff standing beside the BMW with the driver's door open. As the officer walked towards Mr. Huff, Mr. Huff closed the driver's door.

[44] In my view the interaction between PC Deane and Mr. Huff was one of those interactions between police and members of the public "even for investigative purposes" that does not constitute a detention within the meaning of the Charter (see R. v. Suberu). Further, based on PC Deane's evidence and Mr. Huff's lack of recall as to what PC Deane first said to him, I find PC Deane did advise Mr. Huff why he was questioning him and PC Deane advised him what the questions related to. Further, it is my view that Mr. Huff's response only makes sense if PC Deane first advised him of what he was investigating. Mr. Huff's response was an explanation for why he was outside by his black BMW but he was telling the officer he was not the person the officer was looking for, as he was waxing his car – it had to be another or different black BMW.

[45] In his evidence in-chief Mr. Huff testified about a feeling he had that he had to do what the officer told him to do but he did not indicate anything was said by the officer that caused this feeling. Yet in cross-examination, he testified for the first time that he asked the officer if he could go and the officer said, "No, stay here." According to Mr. Huff, the officer was saying things like "where's your license, come here, stay here, don't move." When he was asked: "When did the officer say this to you?" Mr. Huff initially said he did not know but later in cross-examination he testified the officer said this to him when he first walked up to the BMW. As I already indicated, it is my view Mr. Huff was making this up as he was testifying, as he would have said this in-chief if in fact PC Deane had told him not to leave when he asked if he could go, particularly in light of his allegation of the ss. 9 and 10a Charter breaches. I do not accept the entirety of Mr. Huff's evidence on this issue for this reason and others which follow.

[46] Mr. Huff testified during the blended hearing on the issue of the s. 9 Charter violation. His evidence as to events that occurred in the parking lot, which led to his arrest for impaired care or control are diametrically contrary to the evidence given by PC Deane. It became evident during the evidence in-chief of Mr. Huff that defence counsel had not put a number of the assertions later testified to by Mr. Huff in his evidence in-chief, which were directly related to the alleged Charter violations, during Mr. Willschick's cross-examination of PC Deane, contrary to the rule in Browne and Dunn. Examples of this are as follows: The Crown objected when Mr. Huff testified in his evidence in-chief concerning PC Deane's interactions with Mr. Huff after arriving on scene in respect of the s. 9 Charter violation, none of which were put to PC Deane. Initially defence counsel argued this evidence only went to the detention issue so there was no problem. Ultimately defence counsel conceded this had not been put to PC Deane and it would be my decision as to what impact this had on Mr. Huff's evidence. A further example was when Mr. Huff testified he entered his residence and retrieved his wallet and the keys for the BMW from a shelf inside the townhouse, which was not put to PC Deane. Further, Mr. Huff testified he pointed out the spray bottle of wax he was using to PC Deane and was "actually waxing" the BMW when the officer was approaching him. This was also not put to PC Deane in cross-examination.

[47] Recently in R. v. Quansah, the Ontario Court of Appeal dealt with the Brown and Dunn rule:

75 In Browne v. Dunn, Lord Herschell, L.C., explained that if a party intended to impeach a witness called by an opposite party, the party who seeks to impeach must give the witness an opportunity, while the witness is in the witness box, to provide any explanation the witness may have for the contradictory evidence: Browne v. Dunn, pp. 70-71; R. v. Henderson (1999), 134 C.C.C. (3d) 131 (Ont. C.A.), at p. 141; and R. v. McNeill (2000), 144 C.C.C. (3d) 551 (Ont. C.A.), at para. 44.

76 The rule in Browne v. Dunn, as it has come to be known, reflects a confrontation principle in the context of cross-examination of a witness for a party opposed in interest on disputed factual issues. In some jurisdictions, for example in Australia, practitioners describe it as a "puttage" rule because it requires a cross-examiner to "put" to the opposing witness in cross-examination the substance of contradictory evidence to be adduced through the cross-examiner's own witness or witnesses.

(See also paragraphs 77 to 86 for a full discussion of the considerations and how to deal with the situation where a witness' evidence is not put to an opposing witness.)

[48] It is my view this was an unfortunate situation as the trial was scheduled for only one day. The evidence, which was called and the submissions made by counsel were not completed until the conclusion of the one day for trial that had been set. My reasons for judgment had to be adjourned to another day. PC Deane left the courthouse at the conclusion of his evidence and two further Crown witnesses were called. Mr. Huff did not testify until the afternoon after the luncheon recess. To further delay the trial, given when the charge was laid and the fact that a continuation date to recall PC Deane would have put this matter well beyond the 18 month upper limit set in R. v. Jordan, in my view would have been unacceptable. As a result, PC Deane was not recalled and it is my view the failure by defence counsel to cross-examine on these areas relating to the defence allegations of Charter violations will be considered during my assessment of whether Mr. Huff has met his onus to establish the Charter violations on a balance of probabilities.

[49] I do not accept Mr. Huff's evidence that he went inside his residence to retrieve his wallet to get his driver's license and to retrieve the BMW's keys. As I will discuss in my reasons there were a multitude of reasons why I found Mr. Huff's evidence to be unreliable, incredible, self-serving and untruthful. On this issue in his evidence in-chief, Mr. Huff testified the officer asked him for his driver's licence and they walked to the back door of his townhouse, which was a short distance from where the BMW was parked. Mr. Huff said they were standing by the door. The officer was asking him questions about where he was that night, how long he had lived at the address. The officer was right beside him. Mr. Huff testified he did not feel he could go into his house and then stay inside. Mr. Huff testified he felt he had to do what the officer said for him to do. At some point Mr. Huff testified in-chief they went back to the BMW because the officer said "Let's go back to the car," so they did. Mr. Huff never testified in-chief that he went into the townhouse and retrieved his driver's license and keys and then gave them to the officer before going back to car. This was only volunteered by Mr. Huff in his cross-examination. Initially Mr. Huff's evidence in chief was very close to PC Deane's evidence of walking to the house, standing outside, Mr. Huff not opening the door to retrieve his driver's licence and then going back to the car and the officer cautioning him about the fact he may be charged with impaired driving, then asking Mr. Huff to be honest and where was his driver's licence. According to PC Deane, this was when Mr. Huff reached into his right front pocket pulled it out. I accept the evidence of PC Deane on this issue. Mr. Huff did not go into his house to retrieve his driver's licence and the keys. I find he had his driver's licence in his possession when he was standing by the car originally and he retrieved it from his right front pocket as testified to by PC Deane.

[50] Mr. Huff initially testified he was outside cleaning his wife's car because he woke up and could not get back to sleep. This evidence changed in cross-examination when he testified he had watched the hockey games had a few beers to drink and then could not get to sleep, so he went outside at 2 a.m. to wax the BMW. Mr. Huff then added he had a sort of addiction in keeping her car pristine and clean. His testimony that he cleaned his wife's car twice a week between 3 and 4 a.m. in my view was completely ludicrous and unbelievable. Also, Ms. Roberts testified her husband did not drink any alcohol and she went to bed to sleep at 2 a.m. Ms. Roberts never talked about them watching the hockey games and she was clearly inaccurate as to whether Mr. Huff had been drinking.

[51] Mr. Huff said he cleaned his car in the earlier morning hours because it was cool outside and he was able to see what he was doing because the area around the car is well lit at night. This was as a result of an overhead light he parked the BMW underneath. However, when pressed about the officer's evidence of not seeing wax or cloths he then said the officer might have missed the spray bottle of wax because it was dark in the area of the curb behind the BMW, which was completely inconsistent with his earlier evidence of the car being well lit by the overhead light.

[52] Further, Mr. Huff originally testified he pointed to the spray bottle of wax when he told officer he was cleaning the BMW. Later in cross-examination he testified he was "actually putting wax on the car" when the officer came up to him, which would mean the officer would have seen Mr. Huff with a cloth in his hand waxing the car using the spray bottle. This was not PC Deane's evidence. When Mr. Huff said he was outside waxing his BMW PC Deane testified he looked for wax and cloths but did not see any. I find the fact Mr. Huff's evidence on this issue was not put to PC Deane further diminishes Mr. Huff's credibility. In addition, most of this evidence from Mr. Huff arose during cross-examination and was not brought out during Mr. Huff's examination in-chief. This leads to what I believe is a reasonable inference that Mr. Huff was making up his evidence as he was being cross-examined. I do not accept Mr. Huff's evidence concerning his waxing his wife's car as it is nonsensical and does not accord with logic or everyday human experience.

[53] It was Mr. Huff's position that the BMW was in the parking lot from 2:30 a.m. onwards. He was not driving it. Yet, Brad Hyndman, the tow truck operator who called 911 several times (Exhibit 1) provided the black BMW's licence number on two occasions over an extended period of time between 3:31:40 and 3:43:15 on the 911 calls. He first saw the black BMW at approximately 3:15 a.m. by Whites Road. I found Mr. Hyndman's evidence to be internally consistent, detailed and completely consistent with the observations he related to the different 911 operators. I find his evidence to be credible and reliable and I accept it in its entirety. He did not see the driver. He did not know if the driver was a man or a woman. He had no interest in these proceedings and provided unbiased, independent observations of the black BMW's driving. In my view he did not embellish his evidence. He was not challenged in cross-examination. No issue was taken as to his recording of the black BMW's license plate number. Mr. Hyndman's evidence is completely inconsistent with Mr. Huff's evidence that the BMW never left the parking lot of his townhouse after 2:30 a.m. In my view Mr. Hyndman's evidence puts a lie to Mr. Huff's evidence of the BMW not leaving the parking lot.

[54] I do accept PC Deane's evidence that when he approached the BMW he saw Mr. Huff standing beside an open driver's door and then observed Mr. Huff close the door as PC Deane walked up to him. This is also consistent with Mr. Huff having just recently arrived in the parking lot and exiting his car after backing it into a parking spot. As I have already found, the officer advised Mr. Huff of the reason for his attendance in the parking lot, a 911 call concerning a possible impaired driver who struck the centre median on the 401 Highway. Mr. Huff gave his explanation of waxing the car at 3:51 a.m. PC Deane asked for Mr. Huff's driver's licence and Mr. Huff told him it was in his house. PC Deane asked if Mr. Huff could get it and Mr. Huff said he could and walked toward the door to Unit 17. PC Deane observed Mr. Huff to be very unsteady on his feet as he walked to the door, swaying to the left as he walked. The door to Unit 17 was a short distance from the BMW and PC Deane followed Mr. Huff to the door. PC Deane described Mr. Huff stopping at the door and making no attempt to enter the townhouse. PC Deane testified Mr. Huff tried the door and it was locked. PC Deane asked if he had a key to get in. Instead Mr. Huff told the officer his wife was inside the house asleep and she was going to be upset with him. He asked the officer since he was home if he could just let him go inside. They ended up walking back to the car and PC Deane cautioned Mr. Huff he may be charged with impaired care or control and anything he said would be taken down and might be used in court. He asked Mr. Huff to be honest and asked again for his driver's license. Mr. Huff reached into his front right pocket and provided his driver's license. I accept the evidence of PC Deane as to what transpired outside the townhouse.

[55] It is my view based on the totality of the evidence and circumstances surrounding this case PC Deane was entitled to investigate Mr. Huff to determine if he was the driver of the black BMW with license number CAWD293 or whether Mr. Huff had care or control of that BMW in the parking lot. Further, PC Deane was entitled to investigate whether there were reasonable grounds to believe Mr. Huff's ability to operate a motor vehicle was impaired by the consumption of alcohol or whether there was a reasonable suspicion Mr. Huff had alcohol in his body when he was operating the vehicle or was in care or control of it. I find Mr. Huff was not detained by the officer when he was approached by the officer and questioned by the officer.

[56] As I have already indicated above it is my view on the evidence in this case that Mr. Huff was not detained until he was arrested by PC Deane for impaired care or control. At that point he was advised of the charge he was arrested for, PC Deane advised him of his right to counsel under s. 10(b), he cautioned him a second time and read the formal breath demand.

[57] In addition, it is my view there was no breach of s. 10(a) of the Charter as Mr. Huff was not detained although PC Deane did advise Mr. Huff why he was there and what he was investigating. This was not a typical traffic stop on a highway or street where there is a detention and the officer must advise of the reason for the stop. I accept the evidence of PC Deane that he did advise Mr. Huff why he was there and began asking Mr. Huff questions. There is no magic in the words spoken by the officer in terms of advising an individual of what the officer is investigating (see R. v. Roberts). Mr. Huff could not recall what the officer first said to him. Mr. Huff testified he knew at some point that PC Deane had been dispatched concerning a possible impaired driver on the 401 Highway. Further, on the evidence I find there was no breach of Mr. Huff's s. 9 Charter rights as he was not detained until he was arrested. After the arrest PC Deane advised Mr. Huff of the charge he was under arrest for, his right to counsel, he cautioned Mr. Huff for a second time and read him a formal breath demand.

Did PC Deane Have Reasonable and Probable Grounds to Arrest Mr. Huff for Impaired Care or Control?

[58] The defence also argued PC Deane breached Mr. Huff's s. 8 Charter rights as he did not have reasonable grounds to arrest Mr. Huff for impaired care or control. Consequently, the arrest of Mr. Huff was illegal and the breath demand and the obtaining of breath samples was a breach of Mr. Tyson's ss. 8 and 9 Charter rights.

[59] The taking of the Intoxilyzer breath samples was a warrantless search and consequently, the onus is on the Crown to establish the seizure was reasonable on a balance of probabilities, R. v. Collins. Section 254(3) authorizes an officer to make an Intoxilyzer breath demand if he or she has reasonable grounds to believe that a person is committing or has committed at any time within the preceding three hours the offence of having care or control of a motor vehicle while impaired or having consumed excess alcohol. When the demand is made the officer must subjectively have an honest belief based on reasonable and probable grounds. In addition, that belief must be objectively reasonable on the basis of the information known to the officer at the time of the demand. R. v. Bernshaw; R. v. Bush.

[60] Mr. Willschick also argued as part of his s. 8 Charter application that I should reject PC Deane's evidence that he observed the keys in the ignition of the BMW. Mr. Willschick argued this was impossible because the black BMW, based on the two photographs (Exhibit 5) and the evidence of Nicolai Roberts, the registered owner of the BMW, was a push button start vehicle and not a vehicle with an ignition. It was Mr. Willschick's position PC Deane lied in his evidence when he testified he found the keys for the BMW in the ignition. Mr. Willschick submitted I should not accept any of PC Deane's evidence respecting the observations he testified he made of Mr. Huff because of this lie. Further, I should not accept PC Deane's evidence of Mr. Huff's admission that he drove the BMW on Highway 401. Mr. Willschick submitted without Mr. Huff's admission there was no evidence he was the driver of the BMW.

[61] The issue raised by the defence s. 8 Charter violation related to whether PC Deane had a subjective belief there were reasonable grounds that Mr. Huff had committed the offence of impaired care or control. The reasonable and probable grounds standard is "not an onerous test." It must not be "inflated to the context of testing trial evidence," but neither must it be "so diluted as to threaten individual freedom" (see Bush, supra, at para. 46). There is no necessity that the accused be in a state of "extreme intoxication," indeed, impairment may be established where the Crown proves "any degree of impairment from slight to great" (see R. v. Stellato). The police officers' grounds are to be considered in their totality and not each ground in isolation. There is no "impaired driver scorecard" where a list of "all the usual indicia of impairment" must be checked off. There is "no mathematical formula" whereby the officer needs to have a minimum number of indicia of impairment (see Bush, supra, at para. 55-56). The issue is whether a reasonable person standing in the shoes of the police officer could conclude there were reasonable and probable grounds to believe that the individual who had care or control was impaired by the consumption of alcohol (see R. v. Storrey and R. v. Suntharalingham).

[62] In the present case PC Deane relied on the following information known to him from the police dispatch as to the driving exhibited by the driver of a black BMW licence number CAWD293 on Highway 401 and his own observations in forming his subjective belief he had reasonable and probable grounds.

1. PC Deane was advised by dispatch of a 911 call concerning a possible impaired driver on Highway 401.

2. The 911 caller observed the BMW strike the centre median on Highway 401 and indicated the BMW did not stop, followed by fluctuating speeds, and the BMW weaving within the lanes and crossing all three lanes for no reason. The BMW was travelling eastbound driving past Brock Street in Whitby and ultimately exited on Simcoe Street, Oshawa.

3. When PC Deane first saw the BMW on Simcoe Street South he observed it to be travelling at a high rate of speed. He observed the vehicle turn onto Conant Street and saw it was followed by a tow truck. When PC Deane turned onto Conant Street the black BMW was nowhere to be seen.

4. When PC Deane located the BMW in the parking lot of 730 Cedar Street, Oshawa, the address of registered owner (Nicholai Roberts), Mr. Huff (later identified by his Ontario Driver's Licence) was standing outside the vehicle beside the open driver's door. As the officer walked towards Mr. Huff, Mr. Huff closed this door, exercising some measure of control over the vehicle. PC Deane found the BMW, license CAWD293, a very short time after seeing it turn on Conant Street.

5. When PC Deane advised why he was there Mr. Huff's response was to suggest he was outside waxing the BMW. PC Deane did not observe any wax or cloths but he did observe fresh damage to both the passenger side and the driver's side of the BMW, which was consistent with the BMW striking a median as observed by the 911 caller. PC Deane took into account the nonsensical explanation for why Mr. Huff was outside with the driver's door open at 3:51 a.m.

6. PC Deane asked Mr. Huff for his driver's license and Mr. Huff indicated it was inside his residence, Unit 17, which was a short distance from where the car was parked. PC Deane observed Mr. Huff to be very unsteady on his feet, swaying to the left heavily, as he walked to the door of Unit 17 to get his driver's license. His unsteadiness was noticeable.

7. When they arrived at the door Mr. Huff did not open the door and enter to retrieve his driver's licence, instead he stood at the door with his head down. PC Deane asked if Mr. Huff had a key to get into the townhouse. Mr. Huff said to the officer his wife was inside and she would be really mad with him. PC Deane asked if he had just arrived home and this was the reason he could not get inside. Mr. Huff said he was home so couldn't the officer just let him go inside. Mr. Huff did not enter the townhouse and they walked back to the BMW. After cautioning Mr. Huff, PC Deane observed the dash of the BMW was lit up. He opened the driver's door and saw the keys in the BMW's ignition. PC Deane retrieved the keys from the ignition. The BMW was not running. PC Deane then asked Mr. Huff to be honest and provide his driver's licence. Mr. Huff provided his driver's licence from his right front pocket.

8. After finding the keys in the ignition, Mr. Huff hung his head and apologized saying, "I just took it for a spin." PC Deane asked him where he went. Mr. Huff said, "I just went and flipped around. I woke up and had a couple of drinks and took it for a spin. My wife's going to kill me, I have 5 kids. Please let me go.

9. PC Deane also observed a strong odour of alcohol on Mr. Huff's breath as he spoke with him and he noted that Mr. Huff's eyes were glossy, with a kind of glazed over look.

[63] The defence submitted if I accepted the evidence of Nicholai Roberts, together with Exhibit 5, that the black BMW, licence plate CAWD293 had a push button start, I should find PC Deane lied about the keys being in the ignition of the BMW, which should result in a general rejection of any of the observations of PC Deane respecting Mr. Huff. In order to determine whether I should accept Ms. Roberts' evidence it is my opinion I need to first address the relationship between Exhibit 5 and the remaining photograph in Exhibit B, as well as Exhibit 4.

[64] The only area of PC Deane's evidence that the defence sought to impeach him during cross-examination was with respect to whether the BMW had a push button start or whether it was a BMW with an ignition where a key or the key fob had to be inserted into the dash. In support of this position Mr. Willschick produced three 8 X 10 glossy photographs, which were stapled together as one document, leading, in my view, to the reasonable inference they were all related to each other. Mr. Willschick showed these three documents to PC Deane and suggested to him that the first two photographs were pictures of the dash of the black BMW, licence # CAWD293. PC Deane testified he saw and noted the BMW's keys were in the ignition of the vehicle and he opened the driver's door and reached in to remove them. He ultimately provided that key to the tow truck driver who towed the BMW from the parking lot. PC Deane disagreed with defence counsel's suggestion and maintained the BMW's key was in the ignition when he removed it.

[65] Mr. Willschick also showed PC Deane the third photograph in the package of photographs and asked if he had noted the VIN number from the dash in his notebook. In my view this leads to a further reasonable inference that Mr. Willschick believed the VIN number displayed in the third photograph was the VIN number for the black BMW, license # CAWD293. Mr. Willschick requested all three photographs be marked collectively as a lettered exhibit, Exhibit B, subject to his providing further proof.

[66] Mr. Willschick did not question Mr. Huff about these three photographs and the Crown also did not question Mr. Huff about these three photographs. Mr. Huff testified on the blended hearing and neither counsel questioned him about the type of key the BMW had. It is my view from examining the three photographs that they were all taken at the same time and in respect of the same BMW. On one of the photographs showing a push button start and the key fob the front windshield can be seen and it has rain droplets on it. The photograph of the VIN # shows a front windshield with rain droplets. Ms. Roberts testified she was not present when the photographs were taken. She identified the person who took the photographs as being her brother-in-law, Mr. Huff's brother. She did not know when the photographs were taken.

[67] When Ms. Roberts was shown the three photographs collectively and asked if this was her BMW she answered, "This [short pause] no." Mr. Willschick then said, "What do you mean?" Ms. Roberts said, "Umm" and then Mr. Willschick asked, "Is that your BMW [pause] not the last one," which clearly was referring to the photograph of a VIN number. Ms. Roberts said, "Not the last picture, but yes." I then tried to clarify Ms. Roberts' answers because it was my understanding from Mr. Willschick's cross-examination of PC Deane that the three photographs originally stapled together and marked collectively as Exhibit B were from the same BMW vehicle. Ms. Roberts testified the first two photographs were her vehicle, "Yes, absolutely." However, in cross-examination she conceded the two photographs might not be of her vehicle because she was not present when they were taken. She did maintain her BMW had a push button start.

[68] The three photographs initially filed collectively as one exhibit leads me to believe they are from a different BMW and are not photographs of the 2013 535i black BMW, licence CAWD293 involved in this case. Mr. Willschick advised he received the three photographs in an email. This conclusion raises a serious concern that the filing of these three photographs as a lettered Exhibit and then showing them to Ms. Roberts was an attempt by Mr. Huff or someone connected to him to obstruct justice respecting the issue of whether Ms. Roberts' BMW was a push start or had an ignition with a key or fob to insert. It is my view, considering the totality of the evidence of this issue that the evidence led by the defence deliberately attempted to mislead the Court. I do not accept these photographs as being photographs of Ms. Roberts' BMW and I do not accept Ms. Roberts' evidence as to whether her BMW had a push button start. From her answers in-chief she was clearly aware the photograph of the VIN number did not relate to her 2013 535i black BMW, yet she initially testified the first two photographs were "absolutely" photographs of her BMW. In cross-examination she conceded she could not be sure they were photographs of her BMW as she was not present when the photographs were taken. A further circumstantial piece of evidence is Exhibit 4, which is a specification sheet for Ms. Roberts' BMW. This document does not indicate Ms. Roberts' BMW had a push button start. In my view this is a very serious issue and it greatly affects the veracity and credibility of Mr. Huff's evidence as well as Nicholai Roberts' evidence.

[69] As a result I find the black BMW, licence number CAWD293 did not have a push button start where the key fob only needed to be in the car. I accept the evidence of PC Deane on this issue that as a result of seeing the dash lit up when he returned with Mr. Huff to the BMW, he opened the driver's door and observed a key in the ignition, which he removed and later provided to the tow truck operator when the BMW was impounded under the Ontario Highway Traffic Act. I find PC Deane did not lie about finding the key in the ignition.

[70] I have no doubt PC Deane subjectively believed he had reasonable grounds to arrest Mr. Huff for impaired care or control. As I indicated above, I have serious concerns as to Mr. Huff's credibility and reliability. I do not believe he went into his residence and retrieved his wallet and the keys to the BMW. I do not believe Mr. Huff was outside his residence at 3:51 a.m. waxing and cleaning his wife's car. I do not believe the BMW, licence # CAWD293, was in the parking lot of 730 Cedar Street from 2:30 a.m. onwards. I accept the evidence of Brad Hyndman respecting his observations of this vehicle on Highway 401. I find Mr. Huff lied and was untruthful in his evidence about all of these issues.

[71] PC Deane's evidence of his interactions with Mr. Huff are chronologically consistent and accord with common sense and everyday human experience. There was no reason, on the evidence, to support the defence contention that PC Deane lied about his observations. I found him to be a truthful, credible and reliable witness. A reasonable person standing in the shoes of PC Deane would have no difficulty concluding that there were reasonable and probable grounds to believe that Mr. Huff's ability to operate a motor vehicle was impaired by alcohol when he was seen outside the BMW. Consequently, the Charter applications pursuant to ss. 8 and 9 are dismissed.

Has the Crown Proven Beyond a Reasonable Doubt It Was Riley Huff Who Was the Driver of the BMW?

[72] Nicholai Roberts testified only she, Riley Huff and her mother drive her car. Her mother was not there at 730 Cedar Street, Unit 17 on October 22, 2017 and Ms. Roberts testified she was sleeping. As I indicated I do not believe Mr. Huff when he testified the BMW never left the parking lot. As I have already indicated I accept the evidence of Brad Hyndman that he copied down the licence plate number, CAWD293, for a black BMW 535i he observed travelling on Highway 401 between 3:15 and 3:43 a.m. In my view this leads to an irresistible reasonable inference that the vehicle he saw was Ms. Roberts BMW. I accept Ms. Roberts' evidence that she was asleep between those times and her mother was not visiting and was not driving Ms. Roberts' BMW during those early morning hours. As I have indicated above I do not accept Mr. Huff's evidence he was outside waxing and cleaning his wife's BMW. I also do not accept his evidence that the BMW never left the townhouse complex parking lot from after 2:30 a.m. This evidence is completely inconsistent and contradictory with Brad Hyndman's evidence, which I do accept. I also accept PC Deane's evidence that Mr. Huff told him on two occasions before he arrested Mr. Huff for impaired care or control that he woke up, drank some beer, could not sleep and took the BMW for a spin. These are admissions by Mr. Huff, which I find were voluntarily made, that he drove in the early morning hours of October 22, 2017. The defence also conceded at the start of the trial all statements made by Mr. Huff were voluntarily made and could be used for grounds and for their truth. Again, there was no attempt to impeach PC Deane's evidence respecting Mr. Huff's admission except to argue if he lied about the key and there being an ignition in the BMW, I should not believe any of the officer's observations. Given my findings of fact respecting the evidence surrounding the BMW's key and the three photographs, and my belief that there was an attempt to obstruct, pervert or defeat the course of justice in a judicial proceeding by attempting to mislead the Court, I reject the defence argument and find Mr. Huff admitted to driving earlier that morning.

[73] As PC Deane walked towards the BMW, Mr. Huff was standing beside the open driver's door and he closed the door as the officer got close. As I indicated, in my view this demonstrated Mr. Huff exercising control over the BMW. In addition, the timing of all of the observations by Mr. Hyndman of the BMW until he lost track of it (3:15 a.m. to 3:43 a.m.) and PC Deane's arrival at 3:51 a.m. at the parking lot of the registered owner's address provides circumstantial proof beyond a reasonable doubt that Mr. Huff was the driver of the black BMW, license number CAWD293 when that vehicle was observed by Mr. Hyndman driving on Highway 401 and on Simcoe Street South when observed by PC Deane. Further I accept PC Deane's evidence that Mr. Huff admitted that he had driven the vehicle after consuming alcohol because he could not sleep, which is direct evidence Mr. Huff was the driver of the BMW.

[74] The first reading was obtained at 5:03:45 a.m. and registered a reading of 180 mg of alcohol in 100 mL of blood. The first breath reading was obtained within two hours of Mr. Hyndman's observations from approximately 3:15 a.m. until 3:43 a.m. when he lost sight of the black BMW. PC Deane saw the driving of the black BMW at 3:44 a.m. The first breath sample was taken in compliance with s. 258(1)(c)(ii).

Impairment

[75] There is no definition of "impairment" in the Criminal Code. It is a factual question that must be decided on the evidence in each case: R. v. Stellato; Graat v. The Queen. The critical question, however, is whether the requisite impairment occurred, not the degree of any impairment. As said by the Ontario Court of Appeal in R. v. Stellato, supra, at para. 10, adopting the language of the Prince Edward Island Court of Appeal in R. v. Campbell:

It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired. [Emphasis added.]

And later, at para. 14:

[B]efore convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [Emphasis added.]

[76] In R. v. Bush the Ontario Court of Appeal cited Stellato and Censoni with approval and held, "Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47."

[77] In my view the Crown has proved the charge of impaired operation or impaired care or control (operation is included in care or control) beyond a reasonable doubt. The evidence of impairment in this case is overwhelming between Mr. Hyndman's observations and the observations of PC Deane, as well as Mr. Huff's conduct and explanations to PC Deane for why he was outside by his wife's BMW. In addition, the two readings are well in excess of the legal limit set out in the Criminal Code and there will be a finding of guilt on the over 80 charge as well.

The Law of Care or Control

[78] There was no argument made by Mr. Willschick respecting whether Mr. Huff was in care or control of the BMW when he was outside in the parking lot standing beside the open driver's door. The Crown can prove a defendant's care or control of a motor vehicle by three routes. These three routes are set out in R. v. Szymanski:

i. Evidence of driving because the offence of impaired driving is included in a charge of care or control. R. v. Coultis;

ii. Relying on the statutory presumption of care or control found in s. 258(1) (a) of the Criminal Code; and

iii. De facto or actual control, which involves the risk of danger as an essential element.

[79] Mr. Huff was first observed by PC Deane standing outside the BMW beside the open driver's door. The test for establishing care or control, absent the presumption, is set out by McIntyre J. in R. v. Toews as follows:

…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. Each case will depend on its own facts and the circumstances in which acts of care or control may be found will vary widely.

[80] In R. v. Wren, Feldman J.A. concluded that acts of care or control are those which could create a "risk of danger, whether from putting the car in motion or in some other way." (paras. 16 and 29) Thus, the Crown must show a risk of danger that might result from the defendant's interaction with the car.

[81] In R. v. Boudreault, the Supreme Court of Canada dealt once again with the law of care or control. The Court held that in order for a conviction to flow from an individual's care or control of a motor vehicle under s. 253(1) of the Criminal Code, there must exist circumstances creating a realistic risk of danger to persons or property. Fish J., for the majority, summarized the essential elements of care or control, at paras. 33-34 and 41:

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. (Emphasis in original)

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, a defendant 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. [Emphasis added]

[82] Justice Fish, at para. 42 in Boudreault cites three ways in which a realistic risk of danger may arise when an intoxicated driver "uses a motor vehicle for a non-driving purpose," identified by the Ontario Court of Appeal in R. v. Smits, at para. 53:

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.

[83] It is my view that Mr. Huff demonstrated control over the BMW when he closed the driver's door as PC Deane walked towards him. As I have found above, I am satisfied beyond a reasonable doubt Mr. Huff was the person driving the black BMW, licence number CAWD293 on Highway 401, as observed by Mr. Hyndman, and seen by PC Deane driving at a high rate of speed south on Simcoe Street before the BMW turned onto Conant Street in Oshawa, just minutes before PC Deane arrived at 730 Cedar Street. I have found the keys were in the ignition of the BMW and removed by PC Deane. I find Mr. Huff was in care or control of that the black BMW when it was in the parking lot of 730 Cedar Street. He had clearly exercised control over the BMW when he closed the door and the keys were left in the ignition. There was a realistic risk of danger this BMW could be set in motion at some later time by Mr. Huff having regard to his blood alcohol concentration and his eventual admission of going for a spin earlier in the early morning of October 22, 2017. Consequently, this is another avenue available to the Crown to prove Mr. Huff guilty of the impaired care or control charge and I find the Crown has proven this offence beyond a reasonable doubt.

Released: April 23, 2019

Signed: Justice Peter C. West