Court File and Parties

Ontario Court of Justice

Date: March 11, 2020

Court File No.: Toronto 19-15001798

Between:

Her Majesty the Queen

— and —

Melissa Pankovcin

Before: Justice D.M. Porter

Heard on: February 3, 4, 26, 2020

Reasons for Judgment released on: March 11, 2020

Counsel:

• Andrew Gibbons, counsel for the Crown
• Amedeo DiCarlo, counsel for the Defendant

PORTER J.:

Overview

[1] The defendant Melissa Pankovcin ("the defendant") was found in the driver's seat of a motor vehicle which had been involved in a collision on Dundas St. W., in the City of Toronto on March 10, 2019.

[2] After a police investigation, she provided samples of her breath into an approved instrument resulting in readings of 150 mg of alcohol in 100 mL of blood and 130 mg of alcohol in 100 mL of blood.

[3] She was charged with the following offence:

[That she] on or about the 10th day of March in the year 2019 at the City of Toronto in the Toronto Region did, within two hours after ceasing to operate a conveyance, have a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 mL of blood contrary to Section 320.14(1)(b) of the Criminal Code.

[4] The fundamental issues in the case were whether the Crown has proven beyond a reasonable doubt that

(i) the defendant operated the conveyance, and

(ii) whether, within two hours after ceasing to operate the conveyance, she had a blood-alcohol concentration of at least 80 mg of alcohol in 100 mL of blood.

Summary of the Evidence at Trial

[5] On March 10, 2019 a Chief Supervisor for the TTC Timothy O'Brien attended a motor vehicle collision on Dundas St. West just east of Dufferin Street after he was advised by TTC control that TTC buses were blocked due to a collision at that location.

[6] When he arrived at the scene of the collision, he saw a black automobile in the centre lane of the two westbound lanes on Dundas Street at a 45° angle pointed to the northwest blocking the traffic in that lane.

[7] The black auto was in contact with 2 parked cars parked in the curb lane of Dundas Street. They appeared to have sustained damage from the collision with the black auto. He described major damage to the first parked car, and minor damage to the second parked car.

[8] He testified that there was generally a heavy volume of traffic at that time, and that the black auto was blocking the westbound lane of Dundas Street and in particular TTC bus traffic.

[9] Mr. O'Brien testified that he placed his TTC vehicle behind the black automobile and put on his safety lights. It was his opinion that the position of the black automobile in the westbound lane created a dangerous situation for the persons in the car as it was completely blocking the westbound lane.

[10] He approached the vehicle and saw a female on her cell phone seated in the front driver's seat. This person was subsequently identified as the defendant Melissa Pankovcin. Mr. O'Brien observed that the motor vehicle engine was shut off, but the car had one headlight on, and the other was off due to damage from the collision.

[11] He asked the female driver if she needed medical attention and was told to go away. He observed that her eyes were glassy and red and her speech was slurred. He suspected that she might be under the influence of alcohol. The driver side window was down when he made these observations.

[12] He contacted TTC control and requested that police officers be sent to the accident since he suspected that the driver may be impaired.

[13] While waiting for the police to arrive, Mr. O'Brien saw the woman in the driver's seat trying to start the car. He contacted TTC control to ask them to have the police hurry up, as it was his impression that she was attempting to drive away. The police arrived about seven or eight minutes after O'Brien first arrived at the scene of the accident.

[14] While waiting for the police to arrive, Mr. O'Brien assisted the westbound traffic on Dundas Street to get past the defendant's car, using the eastbound lanes to proceed westbound.

[15] The woman in the driver's seat remained in the car until the police arrived.

The Arrival of the Police

[16] Police Officer Ajazi testified that he was dispatched to attend the accident at 1:17 a.m. and arrived at the scene at 1:19 a.m. He saw a Dodge car blocking the westbound lane, in which he later saw the defendant located in the driver's seat, and a man, he later identified as TTC Supervisor O'Brien, in a fluorescent vest directing traffic around the accident scene with a flashlight. He noted damage to both the Dodge and the 2 parked cars parked in the curb lane.

[17] He went to the Dodge and saw the defendant seated in the driver's seat crying. He determined that neither she nor the male seated in the passenger seat needed medical assistance. As he was concerned about the unsafe situation of the defendant and her passenger remaining in the car which was blocking the roadway, he asked them both to get out of the car and stand on the sidewalk, which they did in the shelter of a doorway as it was raining. On the evidence I find that the defendant was seated in the driver's seat of the car involved in the accident until shortly after 1:21 a.m., several minutes after the police arrived on the scene at 1:19 am.

[18] PC Ajazi requested the assistance of the police traffic service and in response another officer arrived with an approved screening device at 1:30 a.m.

[19] At 1:33 a.m. PC Ajazi and his partner questioned the female driver and she was asked whether she had had anything to drink. She said no. PC Ajazi could smell alcohol on her breath and suspected that she had consumed alcohol and operated the motor vehicle.

[20] P.C. Ajazi received an Approved Screening Device, a Draeger Alcotest 6810.

[21] At 1:35 a.m. PC Ajazi read a demand for a sample of breath for the Approved Screening Device from his memo book.

[22] At 1:38 a.m. the defendant provided a suitable sample of her breath into the Approved Screening Device which registered a fail. P.C. Ajazi placed the defendant under arrest for operating a motor vehicle with over 80 mg of alcohol in 100 mL of blood.

[23] He read her her rights to counsel from his memo book, asked if she understood and she said no. He explained to her that it was her right to speak to a lawyer and she initially said she did not understand. He asked her again if she understood she had a right to speak to a lawyer and she replied yes. He asked if she had a lawyer and she said she did not. He told her that she could speak to duty counsel, who was a free lawyer, at the police station.

[24] At 1:39 a.m. he cautioned her from his memo book, asked her if she understood and she nodded yes.

[25] At 1:40 a.m. he read to her the demand for a breath sample into an approved instrument and asked her if she understood and she said yes. He told her that she would be transported to the station to obtain a proper sample to analyze the level of alcohol in her blood.

[26] He identified the female driver as Melissa Pankovcin who he identified as the defendant present in court.

[27] At 2 a.m. the clocks advanced one hour as it was daylight savings time. All times thereafter were recorded pursuant to Daylight Savings Time.

[28] P.C Ajazi left the scene of the accident at 3:09 a.m. with the defendant and at 3:28 a.m. she was paraded before the Staff Sgt. at Traffic Services Division and received her right to counsel again.

[29] At 3:50 a.m. PC Ajazi contacted duty counsel for the defendant, and at 3:58 a.m. duty counsel called and spoke to the defendant.

[30] The defendant completed her call with duty counsel at 4:09 a.m. and she subsequently provided two samples of her breath to the qualified breath technician PC Ramsay.

[31] The Certificate of a Qualified Breath Technician showed that the defendant provided her first sample of breath into the approved instrument at 4:17 a.m. The result of the analysis, rounded down to the nearest 10, showed a blood alcohol concentration of 150 mg of alcohol in 100 mL of blood.

[32] The defendant provided her second sample of breath into the approved instrument at 4:41 a.m. The result of the analysis rounded down to the nearest 10 showed a blood-alcohol concentration of 130 mg of alcohol in 100 mL of blood.

[33] It is agreed by counsel these results reflect the time change and the test times would have been 3:17 a.m. and 3:41 a.m. respectively had the clocks not moved forward one hour at 2 a.m.

[34] The Certificate of a Qualified Breath Technician was admitted into evidence, and marked as Exhibit 2, with the consent of the defence.

The Applicable Law

[35] Section 320.11 of the Criminal Code defines "conveyance" and "operate" as follows:

"conveyance" means "a motor vehicle, a vessel, an aircraft or railway equipment"

"operate" means

(a) in respect of a motor vehicle, to drive it or to have care or control of it".

[36] Based on the statutory definition of the offence in s 320.14(1)(b), the Crown must prove beyond a reasonable doubt:

1. The defendant operated a conveyance by driving or being in care or control of it; and

2. Within 2 hours after ceasing to operate the conveyance, the defendant had a blood alcohol concentration of 80 mg of alcohol or more in 100 ml of blood.

The Requirements of Care or Control

[37] The current presumption of operation in s. 320.35 (formerly the presumption of care or control in s. 258(1)(a)) states:

"In proceedings in respect of an offence under section 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that that they did not occupy that seat or position for the purpose of setting the conveyance in motion."

[38] As summarized by Justice Durno in R. v. Agyemang, 2014 ONSC 4232, at para. 40, referring to the predecessor presumption of care or control:

"The Crown has three routes for establishing care or control: evidence of driving, applying the rebuttable presumption in section 258(1)(a) [now section 320.35] where the accused was in the seat normally occupied by the driver, or through evidence of de facto or actual control which involves the risk of danger as an essential element. R. v. Szymanski, [2009] O.J. No. 3623 (Ont. S.C.J.) at para 29."

[39] Where the Crown relies on the statutory presumption of care or control, the Crown does not need to prove that the conduct of the defendant created a risk of danger: R. v. Amyotte, 2009 CarswellOnt 7469, per Durno, J. at para 127; R. v. Blair, 2014 ONSC 5327, per Trotter, J. at para 13.

[40] As stated by Justice Trotter in R. v. Blair, supra, at para 13:

"When the presumption [of care or control] is not rebutted, all elements of "care or control" (both mens rea and actus reus components, as described in Smits, paras 49 to 51) are deemed to exist."

[41] As Justice Durno states in R v. Agyemang, supra, at para 46:

"For those cases where the presumption applies, it is a presumption of care or control, implicitly including the risk of danger"

[42] Where an intoxicated person is discovered occupying the driver's seat of a vehicle, the presumption will apply unless the person can demonstrate that his or her occupancy began without the purpose of setting the vehicle in motion: R. v. Hatfield, 1997 Carswell Ont 1335, per Goudge, J.A. at paragraphs 19 and 27 (Ont. C.A.)

[43] Evidence that the person occupying the driver's seat attempted to start the conveyance is relevant in establishing that the presumption is not rebutted, as it is evidence of the driver's intention to set the conveyance in motion: R. v. Blair, supra, per Trotter, J. at paragraphs 4, 9, and 15.

De Facto Care or Control

[44] An alternative method of proving care or control of a conveyance is to prove de facto care or control without reliance on the presumption found in section 320.35.

[45] As the Supreme Court of Canada held in R. v. Boudreault, 2012 SCC 56, at paragraph 33, the essential elements of "care or control" under s. 253(1) of the Criminal Code were:

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.

[46] It is clear from the decision of the Supreme Court of Canada in R. v. Boudreault, supra, that a realistic risk of danger to persons or property is created by an intention to set the vehicle in motion.

[47] As Justice Fish states for the majority in R. v. Boudreault at paragraph 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"

[48] However, to prove de facto care or control, other circumstances may create the realistic risk of danger to persons or property required to prove the offence.

[49] As Justice Fish notes in R. v. Boudreault, supra, at paragraph 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 judgement or otherwise, a stationary or inoperable vehicle may endanger persons or property."

[50] It is clear from the jurisprudence that, even where a conveyance is inoperable, a person may have "care or control" of the inoperable vehicle if it has the potential to create some danger: R. v Wren (2000), 144 C.C.C.(3d) 374, per Feldman, J.A. at paragraph 25.

[51] Being seated in the driver's seat of a motor vehicle, while having a blood alcohol reading over the legal limit, in circumstances where the motor vehicle is blocking a lane of traffic, creates a realistic risk of danger to persons or property sufficient to support a finding of care or control: R. v Ahunu-Kum, 2006 CarswellOnt 6798, per Ducharme, J. at para 9.

[52] In R. v. Balogun-Jubril, 2014 ONSC 5308, Justice Campbell held that even when a vehicle is inoperable, the necessary realistic risk of danger to prove actual care or control is established where the defendant remained in an inoperable vehicle in the middle of the off-ramp connecting the 409 Highway to Martin Grove Rd., in circumstances where traffic proceeded around the stopped vehicle.

[53] Justice Campbell referred to the prevailing jurisprudence in Ontario and stated at para 54:

"These cases collectively hold that in cases where the motor vehicle is inoperable, the necessary realistic risk of danger may well be created by an inherently dangerous location of a stationary, incapacitated vehicle on or near a roadway, in combination with an alcohol-impaired accused who might realistically escalate that inherent risk of danger by his or her negligent or accidental conduct in relation to the vehicles (e.g. accidentally switching off headlights or hazard lights)."

The Position of the Crown

[54] It is the position of the Crown that the presumption of operation in section 320.35 applies in the circumstances of this case. The Crown submits that to rebut the presumption the defendant must establish on a balance of probabilities that she did not occupy the driver's seat for the purpose of setting the vehicle in motion. Where the presumption of operation is not rebutted all elements of care or control (both the actus reus and mens rea components) are deemed to exist.

[55] The Crown argues that, according to Mr. O'Brien, he observed the defendant in the driver's seat approximately 7-8 minutes before the police arrived at 1:19 a.m., thus placing the defendant in the driver's seat at approximately 1:11 a.m. to 1:12 a.m.

[56] The Crown submits that, as the defendant occupied the driver's seat until she was asked to leave the car by PC Ajazi, shortly after 1:21 a.m. (several minutes after the police arrived at 1:19 a.m.), she is presumed at law to have operated the motor vehicle (by being in care or control) from 1:11 a.m. to shortly after 1:21 a.m.

The Position of The Defence

[57] The position of the defence is that the Crown has not proven its case beyond a reasonable doubt. The defence argues that the evidence of Mr. O'Brien that the defendant attempted to start her car was not credible, that the Crown must prove a realistic risk of danger, even when relying on the presumption in s. 320.35 to prove care or control, and that there was no risk of danger on the facts of this case.

[58] Further the defence submits that, even though it consented to the filing of the Certificate of a Qualified Technician, and to it being marked as an exhibit in this trial as Exhibit 2, the certificate is inadmissible to prove the analysis of the breath samples contained in the certificate.

Analysis

[59] I find that the presumption of operation in section 320.35 has not been rebutted.

[60] I accept the evidence of Mr. O'Brien that he observed the defendant attempt to start the car after he arrived at the accident scene. I accept this is evidence of her intention to set the vehicle in motion.

[61] Accordingly, the defendant has not rebutted the presumption of operation, as the evidence has established her intention to set the vehicle in motion while seated in the driver's seat.

[62] As previously noted the decision of Justice Trotter in R. v. Blair, 2014 ONSC 5327, establishes that, when the presumption of care or control is not rebutted, the Crown is not required to prove a realistic risk of danger. As Justice Trotter states at paragraph 15:

"The learned trial judge erred in finding that, even though the presumption stood unrebutted, the Crown was required to prove a realistic risk of danger. That risk is embedded in the presumption."

[63] The evidence establishes that the defendant occupied the seat or position ordinarily occupied by a person who operates a conveyance, and the defendant has not established that she did not occupy the seat or position for the purpose of setting the conveyance in motion.

[64] Indeed, the evidence establishes that this was her intention and accordingly the presumption of operation applies for the duration of the time when she was occupying the driver's seat from approximately 1:11 a.m. or 1:12 a.m. to shortly after 1:21 a.m. when PC Ajazi asked her to exit the vehicle.

The Certificate Of A Qualified Breath Technician

[65] The Certificate of a Qualified Technician was filed on consent, and marked as an exhibit and, pursuant to section 320.32(1), is proof of the facts contained therein.

[66] I reject the defence's submission, made for the first time in final argument at the conclusion of the trial, that the Certificate of a Qualified Technician, filed as Exhibit 2, is inadmissible in this case.

[67] As the Court of Appeal has noted in R. v. Gundy, 2008 ONCA 284 at paragraph 20:

"Over 15 years ago this court explained in clear terms that objection to the admissibility of evidence should be taken at the time the evidence is tendered"

[68] And further the Court of Appeal stated at paragraph 21:

"…in the context of a drinking and driving case, the Saskatchewan Court of Appeal held that an objection to the admissibility of breath sample evidence must be taken when the evidence is tendered. Sherstobitoff, J.A. said this in R. v. Enden:

It is trite law that an objection to the admissibility of evidence must be made when the evidence is tendered. … To allow the delay [in the taking of breath samples] argument at the final argument stage of the trial would deprive the Crown of the opportunity to lead evidence relevant to the issue. …"

[69] In R. v. Gundy the Court of Appeal held that it is an error of law to permit the defence to challenge the admissibility of a certificate of a qualified technician at the conclusion of the trial. The Court stated at paragraph 23:

"In my view, the trial judge erred in permitting the defence to challenge the admissibility of the certificate and the results of the Intoxilyzer test at the completion of the trial. Allowing the argument at that stage did not serve the interests of justice. I do not agree that the Crown was not prejudiced by the manner in which the challenge to the evidence unfolded. Had timely objection been taken, Crown counsel would have had the option of calling additional evidence"

[70] The decision of the Ontario Court of Appeal in R. v Gundy is directly applicable to the defence position in this case, taken for the first time in final argument, that the Certificate of a Qualified Technician marked as Exhibit 2 is inadmissible.

[71] In my opinion, pursuant to R. v. Gundy the Certificate of a Qualified Technician having been entered into evidence, and marked as an exhibit without objection, it is not open to the defence to now challenge its admissibility.

[72] In any event, the issue of reasonable notice and proof of service of this certificate on the defence prior to trial, raised in final argument for the first time, has no merit. It is evident from the statement of a police officer included in Exhibit 2 itself, which was admitted in evidence without objection, that the certificate was served by email on the defence on Aug 17, 2019 and contained notice of an intention to produce the certificate at the defendant's trial as required by s.320.32(2) of the Criminal Code.

[73] The Certificate of a Qualified Technician Exhibit 2 is admissible. It establishes that the results of the breath tests were 150 mg of alcohol in 100 mL of blood at 4:17 a.m. (Daylight Savings Time) and 130 mg of alcohol in 100 mL of blood at 4:41 a.m. (Daylight Savings Time).

[74] Accordingly, pursuant to section 320.31(1) the Certificate of a Qualified Technician proves conclusively that the defendant's blood alcohol concentration was 130 mg of alcohol in 100 mL of blood (the lesser of the two readings) at 4:17 a.m. Daylight Savings Time. This would correspond to 3:17 a.m. (Eastern Standard Time).

[75] This reading proves the defendant's blood alcohol concentration within 2 hours after she ceased to be in care or control of the conveyance shortly after 1:21 a.m. when the police asked her to exit the car where she was occupying the driver's seat.

De Facto Care or Control

[76] As I have found that the presumption of operation in section 320.35 applies, it is unnecessary for the Crown to prove de facto care or control in the absence of the application of the presumption.

[77] In the event that I am wrong in relying on the presumption of operation, I find that the evidence in this case establishes the actual care or control of the conveyance by the defendant for the period of time from at the very least 1:11 a.m. or 1:12 a.m. when Timothy O'Brien arrived at the accident scene, until the defendant was asked by PC Ajazi to exit her vehicle shortly after 1:21 a.m.

[78] The defendant was seated in the driver's seat of the vehicle. The headlights were on. Prior to the police arriving she tried to start the car. Based on all the evidence I find that, at least for the period of time from 1:11-1:12 a.m. to just after 1:21 a.m., the defendant was in actual care or control of the conveyance, in circumstances that created a realistic risk of danger to persons or property.

[79] I find that the position of her vehicle, blocking the lane on Dundas Street, in an area with a heavy traffic volume, in which westbound traffic had to circumvent the accident by using the eastbound lanes, created a realistic circumstance of danger: see R. v. Ahunu-Kumi, supra, at paragraph 9; and R. v. Balogun-Jubril, supra, at para 54.

[80] Each of the circumstances referred to by Justice Fish in R. v. Boudreault which potentially create a realistic risk of danger to persons or property exist in this case. The defendant, who has been shown to have a blood alcohol limit in excess of 80 mg of alcohol in 100 millilitres of blood within 2 hours of exiting the vehicle where she was seated in the driver's seat, had demonstrated her intention to drive by attempting to start the vehicle, which itself establishes a realistic risk of danger to persons or property.

[81] Furthermore, even without this contemporaneous intention to drive, a realistic risk arose because she may unintentionally have set the vehicle in motion, or through negligence, bad judgment, or otherwise may have endangered persons or property: see R v Boudreault supra, at paragraph 41.

[82] I accept the evidence of both Timothy O'Brien and PC Ajazi that the circumstances of the defendant's motor vehicle were dangerous, in light of the fact that the defendant's car was blocking a westbound lane of traffic, requiring traffic to circumvent her car by using an eastbound lane, after 1 a.m. at night, thus creating circumstances of a realistic risk of danger to persons or property.

[83] Accordingly, even without the application of the presumption of operation, I find that the Crown has established beyond a reasonable doubt the operation of the motor vehicle by the defendant by proving her actual care or control of the motor vehicle between 1:11 a.m. and shortly after 1:21 a.m. on March 10, 2019.

Conclusion

[84] Accordingly, I find the Crown has proven beyond a reasonable doubt the charge that on March 10, 2019 at the City of Toronto, the defendant, within two hours after ceasing to operate a conveyance, had a blood alcohol concentration that was equal to, or exceeded, 80 mg of alcohol in 100 mL of blood contrary to section 320.14(1)(b) of the Criminal Code. A finding of guilt is made, and a conviction is entered, on this charge.

Released: March 11, 2020

Signed: Justice David M. Porter