Ontario Court of Justice

Date: 2019-12-10 Location: Newmarket

Between:

Her Majesty the Queen

— AND —

Kirill Boudko

Judgment

Evidence and Submissions Heard: December 9, 10, 2019

Delivered: December 10, 2019

Counsel:

• Mr. Anthonie Vanden Ende — counsel for the Crown
• Mr. David Laikie — counsel for the defendant

KENKEL J.:

Introduction

[1] Constable Aboudi responded to a radio call just before 5 a.m. in Richmond Hill. He found Mr. Boudko in the driver's seat of a Toyota Corolla parked on the side of the road. The driver's door was open. Mr. Boudko was asleep with his head slumped forward. The keys to the car were later found on the passenger side floor of the vehicle. Subsequent investigation by multiple officers led to the accused's arrest for being in care or control of the vehicle while his ability to operate the vehicle was impaired by alcohol. Testing via approved instrument much later resulted in two truncated readings of 70mgs. The report of the toxicologist Mr. Palmentier stated that the accused's projected blood alcohol level at the time he occupied the driver's seat of the vehicle would have been between 70 to 125mgs/100ml. The defence evidence did not undermine any of the assumptions on which that projection was based. The report explained that impairment in faculties necessary for driving in all persons becomes significant at blood alcohol levels of 50mgs/100ml and above. Considering the toxicology evidence and the officers' observations at the roadside, the defence concedes that Mr. Boudko's ability to operate a vehicle was impaired by alcohol as alleged.

[2] The only remaining issue in this case is whether the Crown has proved the accused was in care or control of the vehicle. Mr. Boudko occupied the driver's seat so the presumption of care or control then in s 258(1)(a) of the Criminal Code is engaged. The burden is on the accused to establish that he did not occupy that seat for the purpose of setting the vehicle in motion (s 258(1)(a)). The circumstances must not otherwise pose a realistic risk of danger to persons or property (R v Boudreault 2012 SCC 56 at para 39).

Care or Control

[3] Mr. Boudko testified that he worked the previous day helping an elderly couple who live in the same apartment building vacate a cottage they were selling and move furniture to Richmond Hill. They left early in the morning and didn't return until evening. He then went to a nearby pub, the King Henry's Arms. He stayed there until closing time. When he returned to the apartment he shares with his mother, he found she was up waiting for him. They argued over an ongoing family issue. She told him she could call the police as he was not on the lease for the apartment. He decided to de-escalate the matter by leaving. He grabbed keys from the hook that they both used and ended up taking her keys along with his. He decided to go to her car to wait until she fell asleep and to smoke. He sat in the driver's seat of the car but kept the door open for ventilation as he didn't want to have to use the keys to engage the electrical system and lower the window. He fell asleep in that position with the door open.

[4] Mr. Boudko produced a Google Map to show the path he took to the pub and back. He produced documents showing data from his Polar fitness watch that show heart rate and movement metrics over time that were generally consistent with his account.

[5] The Crown showed Mr. Boudko several Google Street View images showing that there was a park bench nearby and another bench near his building. There were several parks in the area. The Google images were taken in daytime, but Mr. Boudko agreed he was aware of the park and the fact of benches nearby. It's plain he had other options to smoke and wait. He explained that he knew he would be waiting for his mother to fall asleep for a while and he thought the cushioned car seat would be more comfortable. Even on that explanation, the other seats in the vehicle would have been a better choice.

[6] The Crown submits that in considering all of the factors set out at paragraph 93 in R v Szymanski, [2009] OJ No 3623 (SCJ), the choice to sit in the driver's seat of the vehicle and the level of impairment of the accused created a risk that he could decide to drive at any time and had the means to do so as the keys were in the vehicle. I agree with the Crown that the accused had better options to wait that August morning. However, even though the accused's choice was not the best one he could have made, I find it was reasonably explained in his evidence. His choice wasn't illogical or incredible. He was right to leave the apartment to defuse the argument. His explanation that he chose a car seat as more comfortable than a park bench for that wait is logical. The fact that he left the driver's door open is consistent with his testimony that he was smoking while waiting. He didn't want to leave smoke in the vehicle but he also didn't want to have to use the key to engage the car's electrical system to lower the window. The fact that the keys were on the passenger side floor amongst some bags is consistent with the stated intention not to drive. The time of the morning, his activity the previous day and the effects of alcohol together explain why he fell asleep in that position and had trouble staying awake even after arrest. He didn't go to his own car in the parking garage because smoking is not allowed in that area.

[7] Mr. Boudko's testimony was logical and consistent with the circumstantial evidence on the central points. I accept his evidence on that basis. His testimony is further supported by the evidence downloaded from his Polar watch that showed heart rate and other metrics consistent with his account. There's no evidence of an intention to set the vehicle in motion. The vehicle was safely parked. The fact that the driver's door was not closed did not pose a risk of danger to other persons or property in the circumstances that morning. The evidence in this case does not support an inference that the accused may have changed his mind and decided to drive. He had nowhere to go and was simply waiting to walk back across the street to his apartment. I find the defence has rebutted the presumption and otherwise there was no risk of danger in the circumstances.

Conclusion

[8] The Crown has failed to prove the charge alleged beyond a reasonable doubt. The charge will be dismissed.

[9] I would like to add one observation. It's plain why Parliament added the "care or control" offence in 1925, but as discussed in R v Whyte [1988] SCJ at para 29, the offence was difficult to define from the outset. Whether a "risk of danger" was an element of the offence was only recently decided by the Supreme Court in Boudreault cited above. The application of the Boudreault framework at the trial level remains difficult and potentially inconsistent.

[10] Perhaps Parliament may wish to consider whether a "bright line rule" could be added to the definition of "care or control" to provide certainty in application and, more importantly, to instruct citizens as to what to do when they've been drinking to avoid creating a risk of danger in relation to their vehicle. A "care or control" law that prohibited occupation of the driver's seat for any purpose by a person 80 and over or impaired by alcohol or drug would direct those not intending to drive to occupy any other seat in the vehicle. A person sleeping in one of the other seats would not pose a risk of danger. The risk they may change their mind would not be a matter of inference or conjecture but one of fact as the person would become liable once they moved and chose to occupy the driver's seat.

[11] There is already a presumption of care or control in the Criminal Code that applies when the driver's seat is occupied, but that presumption is subject to rebuttal, leaving uncertainty and falling short of a plain direction. A bright line rule would address the majority of care or control cases, but would not apply to that subset where a driver crashed their car into a ditch or an object rendering the vehicle immobile. Those incidents are typically investigated based on the circumstances at the moment witnesses or police arrive, but perhaps are better viewed as instances of driving based on the circumstances that led to the crash. Even though the bright line rule identified may not resolve every potential issue related to care or control, Parliament is well placed to consider whether such an approach might better convey their intention and assist citizens to avoid creating a risk of danger in these circumstances.

Delivered: December 10, 2019

Justice Joseph F. Kenkel