Court File and Parties

Ontario Court of Justice

Date: 2019-07-15

Court File No.: Brampton 008837

Between:

Her Majesty the Queen

— and —

Kamar Brightly

Before: Justice P.T. O'Marra

Heard on: June 13, 2019

Reasons for Judgment released on: July 15, 2019

Counsel

Tyler Powell — counsel for the Crown

Andrew Edgar — counsel for the Defendant Kamar Brightly

Introduction

[1] The Defendant, Kamar Brightly was charged on Sunday, July 16, 2017 with having care or control of a motor vehicle while having a concentration of alcohol in his blood exceeding the legal limit, contrary to section 253(1)(b) of the Criminal Code.

[2] At approximately 3:31 am, Constable Mukhi found the Defendant asleep in his car located in a plaza parking lot in Brampton. The Defendant was arrested after he failed a road side breath test. The Defendant was taken to a police division. He provided two samples of his breath at 5:22 am and 5:45 am which yielded 143 and 148 milligrams of alcohol in 100 milligrams of blood, respectively.

[3] The singular issue in this case, is whether or not the Crown has established beyond a reasonable doubt the Defendant was in care or control of his motor vehicle.

[4] This was a short trial in which the Crown called one witness, Police Constable Mukhi. The Defendant testified on his own behalf.

The Evidence of Police Constable Mukhi

[5] Much of Constable Mukhi's testimony was not in dispute.

[6] On Sunday, July 16, 2017, at approximately 3:31 am, Constable Mukhi was called to attend a plaza parking lot located at 50 Kennedy Road, Brampton. The original call was in regards to a fight in the parking lot in front of the Palm Palace, a restaurant/bar.

[7] The Defendant did not have any connection to the original call. However, at 3:34 am, the Defendant was located in his parked car, asleep in the driver's seat. The engine was not running and no exterior lights were on. Constable Mukhi found the Defendant slumped over to his right with his eyes closed. His head was resting on his right shoulder which was extended over the middle console of the car. He conceded in cross examination, that it was possible that the Defendant's head was resting over the passenger seat and that his upper body was into the passenger area. The Constable conceded that his notes indicated that the male was "leaning into the passenger seat". However, his legs were underneath the steering wheel, and his rear end was in the driver's seat.

[8] Constable Mukhi knocked on the window several times and called out to the Defendant but he continued to sleep. Finally, the Constable opened up the driver's door and poked the Defendant's shoulder. The Defendant was not wearing his shoes. They were in front of the driver's seat near the brake pedal. The car keys were clipped to the Defendant's belt buckle. The car had a push button ignition. The Constable seized the car keys. Due to his familiarity with BMW 5 Series cars, the Constable was fairly certain that the car had an automatic transmission. He was uncertain that the Defendant was wearing his seatbelt.

[9] Constable Mukhi observed obvious signs that the Defendant had consumed alcohol and as such, he formed a reasonable suspicion that the Defendant had alcohol in his body. Constable Mukhi made a demand for a breath sample. The Defendant was asked to exit the car. He put on his shoes with little to no difficulty in order to perform the test. The Defendant registered a 'fail' on the Alcohol Screening Device. At 3:42 am, the Defendant was arrested, given a formal breath demand, cautioned and provided with his rights to counsel. He was taken to a police division for formal breath testing.

[10] Constable Mukhi testified that the Defendant was coherent and understood the Constable's directions. The Constable agreed that the Defendant was one of the most cooperative detainees that he has ever dealt with during an investigation.

[11] Constable Mukhi confirmed that the Defendant had a cellphone in his car. As well, he had $200.00 cash in his possession.

The Evidence of the Defendant

[12] The Defendant is 31 years old. He is single with no dependants. For the last eleven (11) years, the Defendant has operated a transport truck that delivers cars to dealerships, throughout Canada and the U.S. He testified that he normally works six (6) consecutive days and then he would remain off the road for the next 37 hours.

[13] In July, 2017 the Defendant did not have a residence. When he was off work he stayed in various hotels and truck stops. But more often than not, he stayed in the Brampton area either at his girlfriend, Taja Smith's apartment or at his friend, Vijay Ramarose's house. The Defendant testified that if he was staying at one of these addresses, he would park his transport truck in a rented parking spot in Bolton and drive his BMW.

[14] The Defendant testified that during the weekend of his arrest, he was not working. He had a just finished work that Friday evening. He dropped off his transport truck in Bolton and drove to Ms. Smith's residence. He stayed that evening and remained at her residence most of the following day. However, the Defendant got into an argument with Ms. Smith later that day and left. The Defendant drove to Mr. Ramarose's house and watched a movie. The Defendant asked if he could stay over that Saturday evening. The Defendant testified that he returned to Ms. Smith's to see if he could patch things up. However, they argued and the Defendant left again. But, this time rather than driving back to his friend's home, the Defendant drove to the Palm Place for dinner and drinks. The Defendant estimated that his time of arrival at the Palm Place was at "six or seven or eight o'clock" that evening. He ate dinner and consumed alcohol to the extent that he described his level of intoxication as "drunk".

[15] Before the Defendant became heavily intoxicated, he recalled texting his friend after he ordered his dinner about his plan to stay over at his house. According to the Defendant, his friend responded that he was in Toronto, and that the Defendant would have to wait before coming over to Mr. Ramarose's home. The Defendant testified that even though his friend's house was only a ten (10) minute walk, he felt uncomfortable to just "barge" into his home when his friend was not present. The problem was that Mr. Ramarose had a family. He lived with his "baby mom" and his child. Although the Defendant had testified that he had stayed there many times and slept in the basement, nevertheless, he felt that it was inappropriate to just show up.

[16] The Defendant recollected that he impatiently texted his friend about when he was leaving Toronto. As the Defendant waited, more and more people attended the restaurant. The restaurant develop into a bar and as such, the Defendant left. He entered his car and waited for Mr. Ramarose to text him upon his arrival at his house. The Defendant testified that he took off his shoes and texted his friend. The Defendant testified that the next memory that he had was the police at his driver's side door. The Defendant testified that he must have fallen asleep while he waited for his friend to return home.

[17] The Defendant testified that had the police not arrived, before he woke up, his plan was to text his friend again, and if he did not respond he would have walked to a nearby hotel, The Marigold. He conceded that although he had money for a hotel he never made any enquiries regarding room availability. In his experience, many of the nearby hotels have many vacancies and a reservation is not required.

[18] The Defendant testified that he did not require his car until Monday. Since he had left his car in the same parking lot on several occasions, his plan was to just leave the car in the plaza parking lot.

[19] The Defendant testified that in order to start the car, he has to place his foot on the brake pedal, push the ignition button, release the parking brake and push the gear shift button in order to put the car in motion. He testified that when he was found by the police sleeping, he was leaning from the driver's seat to his right, but his entire upper body was positioned over the passenger seat.

[20] The Defendant testified that when he entered the car, he did not put on his seatbelt nor did he activate the car or its fittings.

[21] In cross examination, the Defendant testified that he had stayed at his friend's house on more than 25 occasions per year. He knew his friend's wife's name but hesitated in recalling their child's first name or his friend's wife's last name.

[22] The Defendant was asked why his friend had not testified and he asserted that they have had a falling out and were no longer friends. He also stated that he had lost the phone that contained the text messages between him and his friend. He also did not have a dinner receipt.

[23] In cross examination, the Defendant maintained that it was not possible to just call his friend's wife from the restaurant, or from his car and ask for her permission to stay the night. Nor did the Defendant think that it was appropriate to have gone over and knocked on the door and asked her for permission to stay the night, since he had never done that before. The Defendant said that his friend would not have approved of that plan.

[24] The Defendant testified that his last text to his friend before he fell asleep was at approximately 9:00 pm or 10:00 pm. However, later in his cross examination he testified that his last text to his friend was at 11:00 pm.

[25] In cross-examination, the Defendant conceded that he never asked his friend nor did his friend tell him when he was returning to Brampton. Since the Defendant had no idea when his friend was returning, he claimed that his alternative plan was to go to a hotel, but unfortunately, he fell asleep.

[26] In cross-examination, initially the Defendant could not recall how much he had to drink. However, he later recalled that he had "a couple of shots and a beer" and then testified he had "five (5) or six (6) shots" or more. Notwithstanding the Defendant conceded that he was "drunk", he maintained that he had a good memory of the events that evening.

The Position of the Parties

The Crown

[27] The Crown argues that the presumption set out in section 258(1)(a) of the Criminal Code applies in this case, and that the Defendant has not rebutted the presumption on a balance of probabilities. Specifically, the Crown points to the Defendant's sleeping body position when he was located by Constable Mukhi. He was found in the driver's seat with his feet underneath the steering wheel. The Defendant occupied the seat that was ordinarily occupied by the driver. The fact that the Defendant was slumped over and his torso was leaning to the right met the definition of "occupied".

[28] The Defendant failed to rebut the presumption that he did not have an intention to drive when he entered the car after he left the Palm Palace. The Crown argues that the Defendant's plan to wait for his friend, Mr. Ramarose to return from Toronto and text the Defendant that it was agreeable for the Defendant to walk over to his house and stay the night was specious and unsound.

[29] Finally, the Crown argues if the court found that the presumption does not apply, there were a number of factors and circumstances that made the Defendant a realistic risk of danger to the public. The Crown contends that since the Defendant was found inebriated in the driver's seat with no concrete plan in place, and in possession of the car keys, he posed a danger to the public.

The Defendant

[30] The Defendant argues that the Crown cannot rely on the presumption in section 258(1)(a) of the Criminal Code, as there is no evidence to support that the Defendant's body position was in the location normally occupied by the driver. The Defence cites the decisions of R. v. Toews and R. v. Volk, [1985] S.J. No. 842 (Q.B.) which had similar facts to the case at bar, in support of the argument where an accused is found sleeping across the front seats, the Crown is not entitled to rely on the presumption.

[31] If, on the other hand, the court rules that the facts of this case engaged the presumption, the Defendant has rebutted the presumption, by his testimony that he never intended to drive his car that night and had a plan in place to spend the night at Mr. Ramarose's home.

[32] Finally, if the presumption does not apply, the Defendant argues that when all of the factors are examined in this case, the Crown has not proved beyond a reasonable doubt the Defendant posed a realistic risk to the public that evening.

General Principles and Analysis

[33] The presumption in section 258(1)(a) of the Criminal Code reads as follows:

258(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253...

where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle ... the accused 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...

[34] The essential elements of "care or control" under s. 253(1) of the Criminal Code are:

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: R v Boudreault, 2012 SCC 56 at para 33.

[35] The Crown may prove "care or control" three ways:

1. Prove that the accused was driving and thus necessarily in care or control.
2. Prove that the accused occupied the driver's seat of the vehicle triggering the s. 258(1)(a) presumption of care or control subject to rebuttal by the defence.
3. Prove that the accused had care or control of the vehicle in circumstances that posed a risk of danger.

[36] The first step in assessing care or control is to determine whether the accused occupied the driver's seat. Where a person occupies the driver's seat, s. 258(1)(a) of the Criminal Code presumes that he or she is in care or control of the motor vehicle. The accused may rebut the presumption in s. 258(1)(a) by calling evidence that shows on a balance of probabilities that he or she did not occupy the driver's seat for the purpose of putting the vehicle in motion. R v Whyte

[37] In my view, on the Defendant's own evidence, he admitted that he occupied the driver's seat the moment he entered the car, sat in the driver's seat, and began to text his friend. Constable Mukhi found the Defendant asleep and slouched over to his right. His feet were directly underneath the steering wheel, near the brake pedal. Although he contended that the top half of his torso extended into the passenger seat domain, there is a common sense inference that his rear end remained in the driver's seat.

[38] Counsel referred to the two decisions in Volk and Toews. The Toews case is distinguishable on its respective facts. It was noted by McIntyre J. in Toews that each case is dependent on its own facts. In both cases, the accused were found in their respective pick-up trucks asleep and stretched out on the front seats. In Toews, the accused was found lying on the front seat, his head by the passenger door, his lower body encased in sleeping bag extending onto the steering wheel with his feet resting, or pointing, toward the floor. The Defendant in our case was not found in a sleeping bag across the two seats. His body was slumped over and towards the passenger seat. I agree with counsel, the facts in Volk are similar to the case at bar. Mr. Volk was lying down on the front seat, his upper torso of his body was lying toward the passenger side of the vehicle, his feet and legs were off the seat, and behind the pedals. His shoes were off. However, it is almost impossible to rationalize the acquittal in Volk, in view of the conclusion in R v Ford. Mr. Ford's truck was parked in an open field. There was a drinking party going on in his truck. At various times, Mr. Ford entered the driver's seat to turn on the heater as the party progressed. He was found by police seated in the driver's seat with the dome light on in the interior of the truck. He was impaired by alcohol. The only factual difference in Volk, was that the accused had fallen sideways towards the passenger seat, from the sitting position in the driver's seat.

[39] There appears to have been no factual basis in Volk which brought it within the ambit of Toews. The evidence in Volk permitted no other conclusion but that Volk had inserted the keys in the ignition, turned on the ignition, thereby resulting in the motor running when Volk was apprehended. There was a total lack of evidence as to Volk's intentions upon entering the vehicle, as opposed to the intentions of the accused in Ford and Toews as expressed by the accused themselves. See: R. v. Holtslag (Sask. Q.B.)

[40] I agree with Justice Kastner in R v Singh, [2008] O.J. No. 2614 at para. 48 when she stated:

In my view, the fact that one's body slumps over, or one's head is not in vertical alignment with one's torso which remains in the driver's seat, does not remove the applicability of the presumption. The person still occupies the seat ordinarily occupied by the driver of the motor vehicle.

[41] In my view, the Defendant was not lying across both seats. He was slumped over and passed out while he occupied the seat by taking up space upon the driver's seat.

[42] Therefore, on the plain language in the section, the presumption is triggered and is applicable based on the facts of this case.

Has the Defendant rebutted the presumption that when he entered the car that he did not have the intention to drive that night?

[43] The Defendant testified that he had made arrangements to spend the evening at Mr. Ramarose's house. He did not have any intention to drive to his house when he entered his car. His plan was to sit and wait for Mr. Ramarose to contact him by text to give him the green light to walk to his home.

[44] In this case, the credibility of the Defendant is critical in my analysis of whether the Defendant has rebutted the presumption on a balance of probabilities. The leading case on assessing credibility and the standard of proof is R. v. W.D. (1991), 63 CCC (3d) 397 (S.C.C.). I must apply the following test: First, if I accept the defence evidence then the defendant must be acquitted. Secondly, if I do not believe the defendant's testimony or that of his witnesses, I could still be left with a reasonable doubt, and again I must acquit the defendant. Thirdly, even if the defence evidence does not raise a reasonable doubt, I have to consider all of the evidence including the evidence adduced by the Crown to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offences against the defendant.

[45] I found the Defendant's evidence at times to be vague and confusing. He often changed his story and his testimony was internally inconsistent. He paused a number of times on relatively easy topics.

[46] For example, in his direct examination, the Defendant stated that he was uncertain about how much alcohol he consumed at the Palm Palace. However, in cross examination, he testified that he consumed a "couple of shots and a beer" and then added he had "five or six shots" and possibly more. In my view, the Defendant increased his alcohol consumption to bring it closer in line to his high degree of intoxication. There is a common sense inference that a couple of shots and one beer would not have impaired the Defendant to such a degree.

[47] I also do not accept the Defendant's assertion that notwithstanding that he described his level of intoxication, even by his standard, as "drunk", he still had a good memory of the evening.

[48] I have difficulty accepting the Defendant's evidence that when he entered his car he had a concrete plan to stay at Mr. Ramarose's house and was in a position to implement that plan. In fact, on the Defendant's own evidence the plan had not been finalized as Mr. Ramarose had not contacted the Defendant to tell him that he could make the 10 minute walk to his house. The Defendant indicated that he entered his car at 10:00 pm and that he fell asleep. Counsel argues that the plan was interrupted by the police presence at 3:30 am. However, even the Defendant testified that if he did not hear from Mr. Ramarose by midnight that he would have walked to a nearby hotel. There was no evidence before the court that Mr. Ramarose ever contacted the Defendant and provided his consent to come over before midnight. The only evidence before the court was from the Defendant that the last text he received from Mr. Ramarose was shortly after the Defendant had ordered his dinner at "7:00 or 8:00 pm". According to the Defendant, the last text from Mr. Ramarose did not give him consent to walk over to his house. He was told by Mr. Ramarose that he would text him when he left Toronto. There was no evidence before the court that Mr. Ramarose ever texted the Defendant. Therefore, there was no concrete plan that had been formulated.

[49] The Defendant's failure to consider or avail himself to other alternatives, undermined his credibility. For example, the Defendant claimed that he could not just show up at Mr. Ramarose's residence and surprise his common law spouse. I see some validity to this argument. It would be presumptuous and even morally unacceptable to presume that the Defendant could just show up in the middle of the night heavily intoxicated, knock on the door and not offend and upset Mr. Ramarose's common law spouse. In my view, the logic to this argument breaks down. The Defendant never attempted to text or call either Mr. Ramarose and or his common law spouse to ask for his or her permission to stay over. The failure of the Defendant to do so, makes even less sense in light of the Defendant's claim that he had stayed at Mr. Ramarose's residence more than "25 times". It was also worth noting that the Defendant struggled to recall the names of Mr. Ramarose's common law spouse and their children, which seems hard to imagine given his alleged frequent overnight stays.

[50] Even if, there was a plan for the Defendant to stay the night, I find that it was incomprehensible that once he found out that Mr. Ramarose was in Toronto, the Defendant never asked Mr. Ramarose when he was returning from Toronto. The Defendant claimed that if Mr. Ramarose did not contact him by midnight, he would have walked to a hotel. I also find that it was peculiar that the Defendant did not call any nearby hotels to check room availability.

[51] Finally, although not dispositive of the issue of credibility, but it is a factor in my analysis of not being satisfied that the Defendant had a concrete and reliable plan, there was a lack of corroboration of his version of the events. When I assess the Defendant's evidence, in the context of all the other evidence, there was a lack of evidence regarding his interactions with Mr. Ramarose. See R. v. Chhina, 2016 ONCA 663.

[52] That being the case, none of the Defendant's evidence leaves me in a state of reasonable doubt.

[53] However, when I examine the third prong in WD, I am left in a state of reasonable doubt based on all the evidence regarding the Defendant's initial intentions when he entered the car and sat in the driver's seat. The facts support, and rebut, the statutory presumption that the Defendant entered the car with the intention of putting it in motion. I based my conclusion on the following factors:

1. The Defendant was asleep.
2. The Defendant was not wearing a seatbelt.
3. The engine was not running.
4. The head lights were not on.
5. The gear shift was in park.
6. No interior lights were activated.
7. The radio was not on.
8. The Defendant's shoes were off.
9. The car was located in a parking lot and properly positioned.
10. There was no evidence of recent driving.

[54] In conclusion, I find that where the statutory presumption does apply, it has been rebutted by the evidence on a balance of probabilities that when the Defendant entered the car he did not have an intention to drive but rather to sleep.

Since the statutory presumption has been rebutted, did the Defendant present as a realistic risk of danger to the public?

[55] Justice Hill in R v Pukas, [2018] O.J. No. 5684, commented that the law is such that not every drunk person found in the driver's seat of a car will be found in fact and law in care or control but the realistic risk of danger element of crime can be ordinarily and reasonably inferred upon proof of the basic facts as observed in Boudreault at paras. 12, 45-46, 48:

12 I recognize, as the trial judge did, that a conviction will normally ensue where the accused, as in this case, was found inebriated behind the wheel of a motor vehicle with nothing to stop the accused from setting it in motion, either intentionally or accidentally

45 As I mentioned at the outset, anyone found inebriated and behind the wheel with a present ability to drive will - and should - almost invariably be convicted. ..

46 The care or control offence captures a wide ambit of dangerous conduct: Anyone who is intoxicated and in a position to immediately set the vehicle in motion faces conviction on those facts alone.

48 I need hardly reiterate that "realistic risk" is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion.

[56] An intoxicated driver that satisfies the court that he or she had no intention to drive the car will not necessarily avoid a conviction. The individual that is behind the steering wheel always has the present ability to set the vehicle in motion without the intention to do so, may nevertheless present a realistic risk to the public. See Boudreault, para. 41. In the absence of the contemporaneous intention to drive, a realistic risk of danger may arise when an impaired individual who does not initially intend to drive may, while still impaired, changes his or her mind and proceeds to drive. See Boudreault, para 42.

[57] The realistic risk must be realistic "and not just theoretically possible", but the risk "need not…be probable, or even serious or substantial". See Boudreault, para. 34.

[58] The realistic risk can be reduced of the intoxicated driver changing his or her mind and driving if there is evidence of an "alternative plan" that arises out of the evidence called by the defence. The plan must have substance that demonstrates that the driver has made arrangements for his or her safe arrival to another destination without the necessity of driving the car. The plan must be reliable and objectively concrete and was in fact implemented by the accused. See Boudreault, para. 52.

[59] Justice Hill at para. 46 characterized the Supreme Court's view in Boudreault on what does not constitute an alternative plan:

Put differently, an unarranged, aborted or partial or unexecuted plan may reasonably and justifiably result in a trier of fact concluding that the inherent risk posed by a drunk driver in the driver's seat of a vehicle, in possession of the vehicle keys, remains a realistic risk of danger to the public or, as I observed in Regina v. Teasdale, 2015 ONSC 7781, at para. 58, "[w]hile constituting a danger to public safety, a thought about an alternate plan, keeping the plan open as an option, or even an attempt to arrange a plan, do not amount to a concrete implemented plan as described in Boudreault".

[60] I do not propose to review the plan that I have already rejected. Just to reiterate, I have found that a plan to get to Mr. Ramarose's house was never fully established. The plan was never capable of being implemented by the Defendant. There were several alternatives to leaving the parking lot that the Defendant ignored or was wilfully blind to.

[61] Nevertheless, I have examined the non-exhaustive list of factors in considering whether a real risk of danger was otherwise present. See R. v. Szymanski, at para. 93.

[62] The evidence at trial established that:

1. The Defendant was intoxicated. Counsel argues that Constable Mukhi emphasized in his evidence, that the Defendant was the most cooperative detainee he has ever seen. Furthermore, the Defendant understood his direction with little to no difficulty. That may be the case, but the Defendant on his own evidence admitted that by his own standards he was "drunk".

2. The Defendant left the Palm Palace and walked to his car in an intoxicated state.

3. The Defendant's BAC at 5:22 am was 143 mg and at 5:48 am was 148 mg. At an average elimination rate, the Defendant's BAC, by daylight would still be over 80 mg. The alcohol in his system would still be over 80 mg. well into the morning and not completely eliminated until the afternoon.

4. The Defendant was located passed out seated in the driver's seat in a public place at 3:30 am.

5. The car could be activated by simply a push button ignition while his foot was on the brake pedal. The keys were clipped to his belt and did not have to be inserted into the ignition. Thus, there was no need to insert the keys into the ignition. Once the parking brake was disengaged and the button was pushed on the gear shift the car could have been driven. In my view, these were rudimentary steps that take place in starting a car. I do not believe that the risk lies in accidentally starting the car but rather the dangers lie in the rather uncomplicated acts to start and move the car.

6. Defendant had driven his car to the Palm Palace from his girlfriend's home after they had argued.

7. The Defendant did not take advantage of other means to leave the scene. For example, the Defendant could have walked or taken a cab to a hotel, which was done many times in the past. He was in possession of a cellphone that evening.

[63] These circumstances constituted a real risk that the Defendant could have driven away from the parking lot after he woke up. There was no evidence of an objectively tangible and definite implemented plan remotely reaching the level of an arrangement to reduce the inherent risk presented by the Defendant seated in his seat with the car keys. See Puskas, para. 61.

Conclusion

[64] The Defendant is guilty of care or control of his car while his BAC was over 80 mg.

Released July 15, 2019

Justice P. T. O'Marra