Court Information
Ontario Court of Justice
Central East Region
Date: 2020-01-28
Parties
Between:
Her Majesty the Queen
— AND —
Cynthia Lemay
Judicial Officer and Counsel
Before: Justice J. Bliss
Heard on: January 14 and 15, 2020
Reasons for Judgment released on: January 28, 2020
Counsel:
- S. Brown, for the Crown
- G. Pickard, for the accused Cynthia Lemay
Judgment
BLISS J.:
Facts
[1] Just past 11:30 p.m. on June 8, 2017, police responded to a complaint of loud music coming from the area of 5 Ashdale Court. The defendant, Cynthia Lemay, resides at that address. Music was blaring from the radio in a van parked in the driveway. Ms. Lemay had been drinking. She had gone through two beers and was on her third; the proof of which was one empty can and a second can one-third full sitting in the centre console of the van. There was another unopened tall can of Corona in a cooler on the front passenger seat beside her. When the first police officer arrived on the scene, Ms. Lemay was sitting in the driver seat of the van, her left foot was outside the open door, the keys were in the ignition, and depending on who was being asked, the vehicle's engine was either on, or the radio was being powered by the auxiliary power with just the dome light on. Ms. Lemay was not happy to see police. She was rude and abrasive and difficult. When she was arrested for impaired care or control, she was combative. When she was read her rights to counsel, cautioned and read the breath demand, she demanded to speak to her counsel of choice. Her chosen lawyer never returned the messages left by the arresting officer, and Ms. Lemay did not provide any breath samples to the qualified breath technician. When she left the police station in the early morning of June 9, 2017, she was facing charges that included that she:
- [had] care or control of a motor vehicle while her ability to operate it was impaired by alcohol, contrary to Section 253(1)(a) of the Criminal Code;
and further that…she did without reasonable excuse, failed or refused to comply with a demand made to her by a peace officer under subsection 254(2) of the Criminal Code in the circumstances therein mentioned, to provide forthwith such sample of her breath, as in the opinion of the police officer is necessary to enable a proper analysis of her breath to be made by means of an intoxilyzer device and to accompany the peace officer for the purpose of enabling such a sample of her breath to be taken, contrary to Section 254(5) of the Criminal Code.
[2] There was no real issue that Ms. Lemay had been drinking, was in the driver's seat of the van and that, at minimum, the keys were in the ignition and the radio on. Evidence that the engine was on was disputed by the defence. Ms. Lemay admitted in her evidence that she had been drinking in the van and was "not completely sober". Video evidence of Ms. Lemay being booked into the police station became relevant to assess how impaired by alcohol she was, and the credibility of the police and the defendant in their disputed claims of the indicia of impairment she exhibited at the scene.
[3] The three issues to be decided are whether the defendant was in care or control of the van, whether she refused or failed to comply with the demand to provide breath samples, and whether she was denied her s.10(b) Charter right to counsel.
Events at the Scene
[4] Jocelyn Siemens lived at 13 Ashdale Court in Barrie. Cynthia Lemay lived directly across from Ms. Siemens. Around 11:00 p.m. on June 8, 2017, Ms. Siemens was going to bed. There was really loud music playing outside. The music was coming from a van parked in the driveway of 5 Ashdale Court. It was at maximum volume. She had seen Ms. Lemay gardening earlier and heard music playing coming from either the garage or the van. It was a common occurrence. While dark out, the area was illuminated by two or three street lights and Ms. Siemens could make out figures outside the residence. Ms. Siemens waited, hoping that the music would soon turn off. At 11:30 p.m., when it had not, she called the police and asked them to attend to ask whoever it was to turn the music down.
[5] Ms. Siemens saw two vans parked in the driveway. One was closer to the garage. The vehicle she heard the music coming from was about two feet from the road at the end of the driveway. She could not tell if the vehicle was running, but would not have been able to hear the engine over the music. She testified that she did not hear the engine running. She did not recall seeing a cabin or dome light on in the van. If the headlights were on, they would have been visible as they would have shone on the van parked closer to the garage. She did not recall seeing any of the vehicle's exterior lights on. She thought the auxiliary power was on. The two front windows were down. No doors were open. Ms. Siemens saw Cynthia Lemay inside the vehicle. She had seen her numerous times to know it was her. There is no issue that it was the defendant who was in the van.
[6] At the time, Ms. Siemens had lived on Ashdale Court for about a year. Ms. Lemay was already living there when she moved in. From time to time Ms. Siemens also saw a male at that residence. She never saw the defendant drive during the time she lived there, but believed she saw the man who lived at the residence drive.
[7] Cst. Singh was dispatched to the noise complaint at 11:36 p.m.. As he drove near the area, he put his windows down, heard loud music and determined that it was coming from a van parked in the driveway of 5 Ashdale Court. He parked his cruiser on the street outside the residence and turned a spotlight on and aimed it towards the van. The officer testified that the driver side door was open, and loud music was coming from the van. The cabin light and ignition was on. The engine was running. Ms. Lemay's leg was hanging out of the door while the rest of her was seated in the driver seat. He did not recall the headlights being on, but maintained that the vehicle was running and Ms. Lemay was in the front seat of the van.
[8] As the spotlight was pointed at the vehicle, Ms. Lemay exited from the driver's seat. Cst. Singh then got out of his cruiser. He watched as Ms. Lemay walked towards him. He described her as staggering and unsteady on her feet asking "why the fuck are you shining the light at me". She continued to walk toward him and, as she got close, was trying to read the letters spelling out "POLICE" on the body armour he was wearing. She then turned around and walked at a faster pace back towards the van, put her knees on the driver seat, took the keys out of the vehicle's ignition, turned the engine off, and put the keys in her right jacket pocket.
[9] Cst. Singh approached the van and saw two tall cans in the centre console. The defendant immediately closed the driver's door and walked towards the house. The officer testified that he formed the grounds to arrest the defendant for care or control when he saw her in the driver seat and then observed the beer can in the centre console. These observations were before she started walking away from him.
[10] The officer said that he tried to stop Ms. Lemay by grabbing her jacket, but she pulled away and continued walking to the house. Cst. Singh asked her to stop and identify herself but Ms. Lemay's response was to tell him to "fuck off" and that she didn't need to tell him anything. He believed he told her, at that point, that he was there to investigate a noise complaint. Cst. Singh's repeated commands to stop were met with profanities. He had not told Ms. Lemay of his intent to arrest her for impaired care and control of the vehicle, but had formed his grounds to do so.
[11] The officer testified that Ms. Lemay entered her house and tried to close the door on him. He wedged his foot in the doorway to prevent her doing so. It was then that he testified the second officer, Cst. Harris arrived. Cst. Singh's repeated attempts to have Ms. Lemay step out of her house and identify herself was met with her telling him "you can't enter my house you motherfucker". Ultimately, she went into a bag at the front door and threw her identification, an Ontario Health card, at him.
[12] Cst. Singh made no note that he advised Ms. Lemay what she was being investigated for. He knew he was at the address for a noise complaint and was aware that the set fine for a city of Barrie by-law violation was $490. He believed that he might have mentioned the by-law and the fine to the defendant. He denied asking Ms. Lemay to get her identification. The defendant, however, testified that he did, and Cst. Harris testified that Cst. Singh told her that he told the defendant to get her identification.
[13] At the doorway of the residence, Cst. Singh testified that he had already formed the grounds to arrest the defendant for impaired care or control although he had not advised her of that or that she was under investigation for that offence. Up to that point, Ms. Lemay believed she was being investigated for a noise complaint and was about to get a ticket for that. The officer then opened the front door and arrested Ms. Lemay for impaired care and control. He described her as being belligerent and rude and then combative at the doorway. She remained resistant and he ended up pushing her to the ground. With the assistance of Cst. Harris, Ms. Lemay was handcuffed and escorted to a police cruiser. At 11:45 p.m., the defendant was arrested, read her rights to counsel, and cautioned. Ms. Lemay wanted to speak with her counsel of choice, Gary Pickard. The officer made a breath demand requiring that she accompany him to provide samples of her breath. Cst. Harris conducted a search of Ms. Lemay incident to arrest and located a car key with a fob from her right jacket pocket and another set of keys.
[14] Cst. Harris testified that she was on scene at 11:41 p.m. She initially testified that when she arrived, Cst. Singh was at the residence asking Ms. Lemay for identification. Her preliminary hearing evidence was put to her in which she testified that when she arrived she saw Cst. Singh and a female walking towards the side door of the residence and not that they were already at the front door when she arrived. She conceded that while her memory now was of first seeing the two of them at the doorway, her memory was probably better closer to the event. Cst. Harris testified that Cst. Singh told her that he had requested the defendant go back into her house to get her identification as she had advised him that her identification was in her purse in the foyer of the residence.
[15] Cst. Harris saw Cst. Singh with his foot in the doorway and holding the door open with his left arm. The defendant was belligerent, not complying with Cst. Singh's requests to exit the residence, and yelling profanities. Cst. Harris described Ms. Lemay as extremely unsteady on her feet, having to hold the wall to keep herself up, and struggling to stand on her own without falling. As she yelled profanities, her speech was slurred. Ms. Lemay grabbed her identification and threw it on the ground near her feet. The defendant told the officers that "they need[ed] a fucking warrant to come in, motherfuckers" and tried to close the door on them. Cst. Singh opened the door and grabbed the defendant's left arm. Ms. Lemay was extremely uncooperative and Cst. Harris needed to assist by grabbing her right arm and putting it behind her back and putting her to the ground. She continued to scream profanities and call the police "motherfuckers". Cst. Harris testified that Ms. Lemay needed assistance walking and pulled away as she was escorted to the police cruiser. In close proximity, Cst. Harris detected a strong odour of alcohol coming from the defendant and observed her to have red, bloodshot eyes.
[16] Cst. Harris searched Ms. Lemay and found keys, a lighter and cigarettes in her right jacket pocket. The keys unlocked the van and started the ignition. She did not touch the hood of the van to see if it had been recently operated or warm. She testified that it was not necessary as she had been told by Cst. Singh that he had seen the vehicle running.
[17] At 11:57 p.m., Cst. Singh requested a tow truck to attend. When the two officers walked towards the van that Ms. Lemay had been in, they saw the two extra tall cans of Corona sitting on a hard cooler that was between the passenger and driver seat. On inspection, one was empty and another had 1/3 left. Inside the cooler was another unopened can.
[18] Before Ms. Lemay left for the police station, a male came out of the house. That was Ms. Lemay's roommate, Elton Newell, the registered owner of the van. Ms. Lemay was yelling at him to "close the garage door and lock the vehicle". Cst. Singh testified that the male exited the home yelling and screaming and had to be cautioned to stay away from the van after which he turned and walked back into the home.
[19] The neighbour, Jocelyn Siemens, watched what was going on from her bedroom window. When the police arrived and shone a light on the vehicle in the driveway, the music turned off. She saw the defendant get out of the vehicle and ask "who is that", then, "oh, it's the fucking pigs". To Ms. Siemens, Ms. Lemay seemed to be very angry, yelling and swearing, and appeared to be intoxicated. She watched as Ms. Lemay walked towards her residence. She heard the officer ask Ms. Lemay to stop, but she continued and the officer got out of his vehicle and followed the defendant to her residence.
[20] Ms. Siemens continued watching. About 10 or 15 minutes later, a female officer arrived. There appeared to be an argument in the doorway and then a struggle. From her bedroom window, Ms. Siemens could see Ms. Lemay's doorway which was at the side of the house and inside a few feet. Her view of the lower half of the door was obstructed by hedges. She could not make out what the officers were saying but there seemed to be commands from the police and yelling and arguing. She could not see the struggle in the doorway, but it appeared as if the officer and Ms. Lemay went to the ground. When they did, she lost sight of them. When she next saw Ms. Lemay, she had been placed in handcuffs and put in the rear of a police cruiser.
[21] At 12:07 a.m., Cynthia Lemay was transported to the station. They arrived at 12:08 a.m.. The video of the booking process was played. Police described Ms. Lemay as aggressive, confrontational and non-compliant. She had an odour of alcohol. In his evidence, Cst. Singh described her demeanour and speech in the booking video as pretty similar to what he had experienced at Ashdale Court. In the driveway, her speech was slurred and he claimed to hear the same slurring in the video. While he testified that Ms. Lemay was unsteady on her feet at the residence, he conceded that in the video she was not moving a lot and, even with flip-flops on, was not swaying.
[22] At 12:24 a.m., Cst. Singh located a telephone number for the defendant's counsel of choice, Mr. Pickard. Not surprisingly, at that time of night, no one was at the law office to answer the call. The officer left a voicemail and called the emergency number that was provided. Although the officer did not ask the defendant if she wished to speak with duty counsel, at 12:25 a.m., he also called duty counsel as he surmised, correctly it turns out, that counsel of choice may not call back and if Ms. Lemay wanted legal advice then the option was available to her. He described his attempts to converse with the defendant as difficult from the outset.
[23] S/Cst. Hutchinson was the booking officer on duty. He testified that at 12:13 a.m., Ms. Lemay was brought into the station by the arresting officer. She understood why she was at the station, but was upset. The booking video has her exclaiming that she did not know why she was at the station or that it had been explained to her. The officer described Ms. Lemay as being a little annoyed and uncooperative when she first came in. When duty counsel called the station at 12:46 a.m., he took the call. Officer Hutchinson can be seen on the video going to the cell area and asking the defendant if she wanted to speak with duty counsel and explaining that attempts to reach her counsel of choice had been unsuccessful. Ms. Lemay insisted on speaking with her counsel of choice and was upset and difficult to speak with. She would talk over the officer as if she was not listening to him or what he was trying to convey. Ms. Lemay did not ask to speak to any other lawyer but wanted to speak to Mr. Pickard.
[24] At 12:47 a.m., Cst. Singh provided his grounds to the qualified breath technician, Cst. He. After making the initial call to duty counsel, Cst. Singh did not call duty counsel back again, nor offer duty counsel to Ms. Lemay while she was in the cells waiting for her counsel of choice. At 2:50 a.m., Cst. Singh called Mr. Pickard's office emergency number again and again left a message. At 2:51 a.m., Cst. He advised Cst. Singh that Ms. Lemay had refused to provide a breath sample after having been provided with multiple opportunities to do so, and so was charged accordingly.
[25] At 11:50 p.m., Cst. He was contacted by dispatch and advised of a person in custody for impaired care or control. He was at the station at the time. Between 12:08 a.m. and 12:19 a.m., he was in the breath room preparing the instrument for the breath testing. At 12:47 a.m., he received Cst. Singh's grounds to make the breath demand. There was no issue with the propriety of the breath demand made by Cst. Singh, nor with the grounds provided to the breath technician, nor that the instrument was in proper working order.
[26] At 1:45 a.m., Cst. He entered the cell area to speak with the defendant. At that point, he had waited almost an hour after receiving the grounds from Cst. Singh. The delay was to allow her counsel of choice to call the station. Cst. He identified himself to Ms. Lemay and asked her if she wished to provide breath samples. She indicated that she knew the law and asked what sample needed to be provided. His evidence was that he explained to Ms. Lemay that she needed to provide a suitable breath sample. Her response was that she had not hurt anyone and did not do anything wrong. Cst. He's immediate thought was that she was not being cooperative. He then left the cell area.
[27] At 2:30 a.m., Cst. He returned. He testified that he tried to speak with the defendant again, and again asked her if she wished to provide breath samples. He had taken her earlier response to him to be a refusal but wanted to provide her with an opportunity to change her mind. Her response was that she had done nothing wrong. Cst. He asked Ms. Lemay if she was refusing, which she denied. The officer then inquired if there were any medical conditions that could explain why she did not want to provide a breath sample. Ms. Lemay then said that they were going to have to take her to the hospital, but when Cst. He asked why, she simply laid down on the bench in her cell, but did not appear to be in medical distress. Ms. Lemay did not request access to counsel and the officer did not offer. At 2:36 a.m., the defendant was no longer answering any of his questions.
[28] At 2:53 a.m., Cst. He was aware that Ms. Lemay's lawyer of choice had been called again without a response. While he could not recall the exact words he used, he advised the defendant that this was her last chance to provide a suitable sample. When she did not respond, he interpreted that as a refusal. Based on his communications with Ms. Lemay at 1:45 a.m., 2:30 a.m. and 2:53 a.m., he believed he had provided her with ample opportunities to provide a suitable sample. While she had not outright refused, her body language suggested that she was not cooperating. At that point she was charged with refusing to provide a breath sample.
[29] In cross-examination, Cst. He's evidence of his demands that Cynthia Lemay provide a sample of her breath were that on his first approach, he asked her if she wished to provide a sample into the instrument. On his second visit, he asked her again if she wished to provide breath samples. On his last contact, the words he used were that this was her "last chance" to provide samples. When she did not respond, it was then that the officer told Cst. Singh that she had refused to provide a sample.
[30] Cynthia Lemay cannot claim ignorance of process individuals subject to breath demands are required to comply with. Between 1993 and 2007, she was convicted of impaired driving four times, impaired care or control once, over 80 once, refusing to provide a breath sample four times, and driving while disqualified six times. Since 2007 she has been subject to a lifetime driving prohibition. That was her last conviction. Ms. Lemay testified that she has not driven since 2005.
[31] Ms. Lemay lives at 5 Ashdale Court with Elton Newell. The vans in the driveway were Mr. Newell's. On June 8, 2017 she had been doing some gardening. By 10:00 p.m., it was not yet pitch black and she was cleaning up and putting tools away. Mr. Newell does landscaping and Ms. Lemay had borrowed some of his tools to do her gardening. She turned the radio on in the van. She also consumed two beers and part of a third. Ms. Lemay testified that when the police showed up she had not had the radio on for a long time. She was changing the radio station so was half in and half out of the vehicle and the driver side door was open. She denied that she was ever seated in the van with the door closed.
[32] When she saw the cruiser's spotlight shining at her, she stepped out of the van and moved towards the officer who was coming toward her. She described saying something like "oh it's the cops" and he told her that he was giving her a $500 fine so she turned the music off and closed the driver door. She denied saying "oh it's the fucking pigs" at first, but admitted that she did "after he assaulted me". She maintained that the engine was never on, but the music was playing on the vehicle's auxiliary power. Ms. Lemay said that the officer asked her to identify herself. She told him that her purse was inside and she would get her identification. As she walked to the house, the officer grabbed hold of her arm very hard and she asked him to let go several times. She conceded that he might have told her to stop but grabbed her at the same time. She denied using profanity at first but when he did not let go, told him to "get your hands off me, you fucking pig".
[33] Ms. Lemay testified that she told the police officer that her purse was at the door and he walked with her. She said that as they were walking the female officer arrived. When she went in the door, the officer put his foot in the door. Ms. Lemay grabbed her identification and handed it to the officer but he dropped it. They ran her name and the next thing she knew they were telling her she was under arrest. She was not sure why and then she was on the ground. She admitted she was upset but resisted describing her attitude as "difficult". She denied being combative or resistant.
[34] Ms. Lemay admitted she was not completely sober but was not, in her words, "sloshed out of her brain". It was never her intention to move the van. It was Elton's van. It was her beer in the centre console and in the cooler. She had consumed another beer before she put the radio on and had put the empty can in the recycling bin.
[35] Elton Newell, who has had his own issues with drinking and driving offences and driving while disqualified, testified that he has known the defendant for fifteen years and he rents 5 Ashdale Court with her from her parents. He has never known the defendant to drive and he does all the driving. He uses the van for landscaping jobs and keeps rakes and shovels and a lawnmower in the vehicle. He said that that day she wanted to borrow some of his gardening tools, and gave her his key. He was in his room watching television when he heard a noise at the front door. When he opened his door, he saw two police officers who had the defendant on her knees. He came out the front and encountered the two police officers. One shoved him away from the van and told him "it was [his] van now". When he asked about his tools, he was told he would have to wait. He did recall the defendant telling him to lock the van.
[36] Cynthia Lemay testified that after she had been handcuffed, she was escorted, without assistance, into the cruiser. She denied staggering or needing to hold herself up. When she was read her rights to counsel she wanted to speak to her lawyer. She did not recall hearing the breath demand. At the police station she was upset because the handcuffs were hurting her. The video from the booking room showed her to have been argumentative, rude, vulgar and demanding. Her view was that she walked and talked no differently than she had at the house. If she used vulgar language, it was language she would sometimes use even when sober. Each police officer who dealt with her testified that she was not compliant. Ms. Lemay claimed that she complied with all of the police demands. The video showed that her compliance was a qualified compliance. Asked to take a seat, she said she preferred to stand. Told to turn around, she said she would as long as her handcuffs were loosened. Told to put her head against the wall to remove her handcuffs, she refused to do so. She was demanding and challenging and fit the definition of a difficult detainee.
[37] Ms. Lemay was placed in a cell and hoped to speak to Mr. Pickard or someone from his office. About 15 minutes after being put into the cell, she testified that she was told that duty counsel was on the telephone. Her evidence was that she had not asked, and did not want, to speak to duty counsel.
[38] Some time later Cst. He came to speak with her. He spoke about having a breath sample if she wanted. She admitted that she knew that she was obligated to provide a sample of breath. Ms. Lemay said that she told the officer that she wanted to speak to her lawyer. The officer came in twice more. Each time she told him that she was waiting to speak to Mr. Pickard. She knew police were waiting to take samples of her breath. She testified that she found out she was being charged with refusing to provide a breath sample when Cst. Singh came to the cell with paperwork.
Care or Control
[39] The defendant put herself in Mr. Newell's van in the driveway of her home. She admitted that the key was in the ignition, the ignition was turned on auxiliary power and the radio was playing. She was in the driver seat of the van, although she claims that the driver door was always open and that when the police arrived she was in the middle of changing radio stations with one foot in and one foot out. She had been drinking and the evidence of her consuming alcohol in the van was clear from the empty and partially empty cans in the centre console. She denied that the engine was turned on and testified that she had no intention to drive, and that she had not driven since 2005 since she was subject to a lifetime driving prohibition. She denied the police evidence of the scene that had her grossly intoxicated being unable to support herself, slurring her speech, and needing assistance to walk. She said she was not completely sober but not "sloshed out of her brain". The evidence of Cst. Singh was that the engine was running and Ms. Lemay was seated in the driver's seat with one foot out the door.
[40] I am not convinced that the engine was running as the officer testified. The neighbour who had called the police did not hear an engine running over the music, but more significantly only ever saw the dome light on in the interior of the van and did not see any other exterior lights on which would include headlights, running lights or rear lights. That gives credence to Ms. Lemay's position that the engine was never on and that only the power needed to play the radio, which had been on from 11:00 p.m. until Cst. Singh arrived almost 40 minutes later, was on. I do accept that at times Ms. Lemay, who had been drinking, was in the driver's seat of the van, but I also accept that she had no intention to drive. While she has an abysmal record of not complying with driving prohibitions up to 2007, there was no evidence of her having driven since. Mr. Newell denied that she drove, Ms. Siemens who had been her neighbour for a year had never seen her drive, and the van was in the driveway of her home. Her story of having been gardening and using Mr. Newell's gardening tools to explain what she was even doing with the van was not undermined in cross-examination and, in fact, was corroborated by Mr. Newell whose evidence I accept on that point. What I must then consider is whether Cynthia Lemay was in care or control of the motor vehicle on the basis of facts that I accept of her admitted alcohol consumption and its impact on her, her being in the driver seat of the vehicle, the keys being in the ignition, and the ignition turned on to provide auxiliary power to play the radio and cause the dome light to turn on.
[41] The prosecution referred me to Durno J.'s decision in R. v. Szymanski, [2009] O.J. No. 3623 (S.C.J.). That decision sets out a summary of the purposes and principles behind the offence of care or control of a motor vehicle. In it, Durno J. reminds us, at paragraphs 24 and 25, that the purpose of the legislation was to "discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion, while at the same time providing a way for a person to avoid liability when there was a reason for entering the vehicle other than to set it in motion" (R. v. Whyte (1988), 42 C.C.C. (3d) 97 at p. 115), and that the Court of Appeal reiterated that purpose of "discouraging intoxicated persons from even occupying the driver's seat" in R. v. Hatfield (1997), 115 C.C.C. (3d) 47 at p. 51.
[42] Proof of an intention to drive or set the vehicle in motion is not, however, an essential element of care or control. (R. v. Toews, [1985] 2 S.C.R. 119, at p. 123).
[43] In being in the driver's seat, as I found, the statutory presumption in s.258(1) of the Criminal Code applies. The presumption deems those who occupy the seat or position ordinarily occupied by a person who operates a motor vehicle to have had the care or control of the vehicle. In order to rebut the presumption, the accused must establish on the balance of probabilities that he or she did not occupy the seat ordinarily occupied by the driver for the purpose of setting the vehicle in motion. (R. v. Appleby (1971), 3 C.C.C. (2d) 354 (S.C.C.)). As I set out, I accept Ms. Lemay's evidence that she did not intend to drive and which established on a balance of probabilities that she did not occupy the driver's seat for the purpose of setting the vehicle in motion.
[44] Rebutting the presumption does not afford a complete defence to the charge. Where the presumption is rebutted, the burden of proof shifts back to the prosecution to establish actual care or control beyond a reasonable doubt without the evidentiary aid. (Szymanski, supra, para 33). The Crown seeks to establish care or control by evidence of de facto or actual care or control which involves the risk of danger as an essential element.
[45] Where the Crown does not rely on the statutory presumption, or the accused rebuts it, the prosecution can rely on de facto or actual care or control. Those acts of actual care or control include: 1) actions that create the risk that the vehicle will unintentionally be placed in motion, 2) actions that create a risk of danger because of the location of the motor vehicle, even if it is immovable, and 3) other acts of care or control short of driving. (Szymanski, supra, para 70)
[46] Care or control can be established if there is a risk that the vehicle will unintentionally be placed in motion. In R. v. Ford, [1982] 1 S.C.R. 231, referred to in Szymanski at para 74, Ritchie J. for the majority wrote:
... Care or control may be exercised without such intent [to drive the motor vehicle] where an accused performs some act or series of acts involving the use of the car, its fittings or equipment, such as occurred in this case, whereby the vehicle may unintentionally be set in motion creating the danger the section is designed to prevent.
[47] In R. v. Toews, [1985] 2 S.C.R. 119, McIntyre J. wrote for the majority:
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 the 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.
[48] Durno J. provided a non-exhaustive list of considerations to assess the risk of putting a vehicle in motion (Szymanski, supra, para 93):
a) The level of impairment. R. v. Daines, [2005] O.J. No. 4046 (C.A.), R. v. Ferguson (2005), 15 M.V.R. (5th) 74 (S.C.J.), R. v. Ross (2007), 2007 ONCJ 59, 44 M.V.R. (5th) 275 (O.C.J.) In Ogrodnick, Wittman A.C.J. qualified his comments about speculation and conjecture by accepting that it was an appropriate basis to find care or control because the level of intoxication demonstrates unpredictability or a risky pattern of behaviour. Para. 54. In Ross, the trial judge found that this consideration might relate to the likelihood of the accused exercising bad judgment, the time it would take to become fit and the likelihood that he or she would be presented with an opportunity to change their mind during that time.
b) Whether the keys were in the ignition or readily available to be placed in the ignition. Pelletier, supra.
c) Whether the vehicle was running. R. v. Cadieux, [2004] O.J. No. 197 (C.A.)
d) The location of the vehicle, whether it was on the side of a major highway or in a parking lot. Cadieux, R. v. Grover, [2000] A.J. No. 1272 (Q.B.)
e) Whether the accused had reached his or her destination or if they were still required to travel to their destination. Ross, supra.
f) The accused's disposition and attitude R. v. Smeda (2007), 51 M.V.R. (5th) 226 (Ont. C.A.)
g) Whether the accused drove the vehicle to the location of drinking. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)
h) Whether the accused started driving after drinking and pulled over to "sleep it off" or started out using the vehicle for purposes other than driving. If the accused drove while impaired it might show both continuing care or control, bad judgment regarding fitness to drive and willingness to break the law. Ross, supra.
i) Whether the accused had a plan to get home that did not involve driving while he or she was impaired or not over the legal limit. Cadieux, Ross, R. v. Friesen, [1991] A.J. No. 811 (C.A.), R. v. Gill (2002), 33 M.V.R. (4th) 297 (S.C.J.) para. 21, Ross, supra.
j) Whether the accused had a stated intention to resume driving. In Cadieux, supra, where the accused testified he was not driving and was waiting to sober up. The Court of Appeal held that his evidence that he would not drive until he was sober only went to weight.
k) Whether the accused was seated in the driver's seat regardless of the applicability of the presumption. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)
l) Whether the accused was wearing his or her seatbelt. Pelletier, supra.
m) Whether the accused failed to take advantage of alternate means of leaving the scene. Pelletier, supra.
n) Whether the accused had a cell phone with which to make other arrangements and failed to do so. Cadieux, supra.
[49] However described, Ms. Lemay's level of intoxication or impairment from her consumption of alcohol must be addressed. If the attending officers' description of Ms. Lemay's level of intoxication is to be believed, she was impaired and displayed the indicia of being so: Extreme unsteadiness on her feet, needing support to stand and struggling to stand on her own without assistance, slurred speech, combative behaviour, and an odour of alcohol on her breath. That would make the risk of her setting the vehicle in motion very real. Twenty-eight minutes after her arrest, she was at the police station and being video recorded. She is belligerent, angry, argumentative, and rude, but she also stands without assistance, does not sway, and talks without any discernible slur. She asserts her rights and displays conduct that did not endear to anyone who had to encounter her that night. Her odour of alcohol can speak only of her consumption of alcohol, which she admitted. While it is possible that the arrest process had a sobering effect, I am not convinced that her display at her residence was markedly different than it was at the station. She was verbally abusive and combative, but that was a product of her admitted anger and incredulity at the police having been called, and then being forcibly removed from her house and arrested. In no way am I suggesting that the police did not have grounds to arrest the defendant, nor does it excuse Ms. Lemay's disgraceful conduct, but I do not think it would be safe to infer that her behaviour could only be explained because she was impaired by alcohol as opposed to it being her general attitude towards the police and her view of the law and her rights.
[50] In R. v. Boudreault 2012 SCC 56, [2012] S.C.J. No. 56 at para 9-10, Fish J. wrote:
…I have concluded that "care or control", within the meaning of s. 253(1) of the Criminal Code, signifies (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, as opposed to a remote possibility, of danger to persons or property.
Only the third element -- realistic risk of danger -- is in issue on this appeal. The Crown submits that risk of danger is not an element of "care or control" under s. 253(1) of the Code. The trial judge found that it is. With respect, I agree with the trial judge.
[51] The risk of danger must be realistic and not just theoretically possible, but it does not have to be probable, or even serious or substantial. (Boudreault, supra, para 34)
[52] 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. (Boudreault, supra, para 42)
[53] Fish J. went on to write: "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. To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case." (Boudreault, supra, para 48)
[54] "The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger. Likewise, use of the vehicle for a manifestly innocent purpose should not attract the stigma of a criminal conviction. As Lamer C.J. observed in Penno (, [1990] S.C.J. No. 96, citation added): "The law ... is not deprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to drive is impaired in a motor vehicle" (p. 877). (Boudreault, supra, para 49).
[55] Impaired operation of a motor vehicle is found where the degree of impairment from slight to great is made out. (R. v. Stellato, [1993] O.J. No. 18 (C.A.), aff'd, [1994] S.C.J. 51). 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, or regard for the rules of the road. (R. v. Censoni, [2001] O.J. No. 5189 at para. 47 (S.C.J. per Hill J., cited with approval in R. v. Bush 2010 ONCA 554, [2010] O.J. No. 3453 at par. 47 (C.A.))
[56] The prosecution is required to prove the charge of impaired care or control beyond a reasonable doubt. The prosecution has not met that burden. As I have explained, I am unable to accept the gross unsteadiness and inability of Ms. Lemay to stand without assistance that the police purported to observe at the scene when contrasted with how she appeared in the booking room video. The evidence did not establish that the defendant was impaired by her consumption of alcohol or that she was "inebriated" to even the low standard needed to demonstrate that her intention not to drive would change or that the risk of her putting the vehicle in motion was a realistic one. The vehicle was in her driveway, and the key was put in the ignition, but only to enable the radio to play under auxiliary power. The music played for at least 40 minutes. The sole purpose of her use of any equipment in the van was to listen to music in the driveway of her residence. I accept that Ms. Lemay had no intention to drive. I also accept that she had not driven since her last criminal conviction over ten years previously and there was no evidence or reasonable inference proffered that she would change her mind and decide to drive. The risk that the defendant would set the vehicle in motion was not, on the facts of this case, a realistic one. I find, therefore, that the prosecution has not established beyond a reasonable doubt that the defendant was in care or control of the motor vehicle while her ability to operate it was impaired by alcohol, and so she will be found not guilty of that charge.
Refuse Breath Sample
[57] The defendant did not provide a breath sample. A valid breath demand had been made at the scene upon her arrest. The demand required that the defendant accompany the officer for the purpose of providing a sample of her breath into an approved instrument to determine the concentration, if any, of alcohol in her blood. The accused does not get a choice to provide a sample nor negotiate providing the sample. The consequence for failing to do so, is the very charge the defendant faces. Her defence to the charge is that the demand made by the qualified breath technician, Cst. He, for her to provide a sample of her breath was not a demand but an invitation.
[58] In R. v. Boucher [1986] N.B.J. 761 (Q.B.), the Court wrote:
13 Although the demand is read in statutory form the accused is then told he can call a lawyer as soon as they get to a telephone. On at least three occasions he is asked in gentle but ambiguous language "Do you want" or "Do you wish" to take a breathalyzer test. And each time the response was "I don't think so."
14 Gentility and good manners should be neither condemned nor criticized but section 235 of the Criminal Code refers to the making of a demand and not the issuance of an invitation or a request. The offence is committed when a demand is refused - not when an invitation is declined. The demand must be unequivocal; there must be no doubt left in the mind of the accused that he must respond affirmatively to that demand or he will be charged with a failure or refusal of that demand.
[59] Boucher has been followed in a number of cases including R. v. Daigle [2017] O.J. 3177 (C.J.) In that case, Blouin J. referred to the decision of Bovard J. in R. v. Hawkins, [2013] O.J. No. 1103 which chronicled the law in this area at paragraphs 67 to 76 which, put succinctly, there must be a demand, not an invitation.
[60] Blouin J. followed the reasoning in R. v. Palanacki, [2001] O.J. 6254 (C.J.), where Blacklock J. said the following:
I accept that there is no standard formula for a valid breath demand and the authorities support the notion, however, that language must be used which conveys to the accused the notion that the samples of breath are being demanded, in the sense that the accused has to provide them, or perhaps to put the matter another way, what is being asked is more than a request or an invitation. See in that regard, R. v. Boucher (1986), 47 M.V.R. 173, and R. v. Nicholson, (1970), 8 C.C.C. (2d) 170. (Emphasis added)
[61] I agree. The prosecution submits that the defendant was well aware of her obligation to provide a breath sample. She knew that from her criminal history of repeated convictions for impaired driving, refusing to provide breath samples, over 80 and driving while disqualified from 1993 to 2007. The defendant also acknowledged in her evidence that she knew she had to provide a breath sample. She also knew that she had the right to speak with counsel of choice, and had decided, in keeping with her attitude of setting conditions before complying with police requests, that she would only speak with Mr. Pickard and until that was facilitated, was not receptive to what the police were seeking.
[62] Ms. Lemay's claim of a breach of her s.10(b) right to counsel of choice arises not because the police were not diligent in attempting to facilitate her contact with counsel of choice, but for failing to inquire of the defendant if she wished to speak with duty counsel after a reasonable time when it was clear that counsel of choice was not calling back. The evidence clearly makes out that the police were diligent in seeking to facilitate the defendant's access to counsel of choice. The error, the defendant claims, is that the offer of duty counsel was made only a short time after efforts had begun to reach Mr. Pickard, and so the resort to duty counsel was premature and should have been repeated later when it was no longer reasonable for police to "hold off" waiting for counsel to call.
[63] The prosecution counters that the defendant was not being reasonably diligent in seeking to exercise her rights but, to parrot the trial judge's language in R. v. Tremblay, [1987] 2 S.C.R. 435 at para 8, the accused "was deliberately attempting to make the investigation difficult and 'was actively obstructing it'".
[64] If a detainee is not being reasonably diligent in the exercise of her rights, the correlative duties imposed on the police where a detainee has requested the assistance of counsel are suspended and are not a bar to their continuing their investigation and calling upon her to give a sample of her breath (Tremblay, supra, para 9).
[65] The police first sought to contact Mr. Pickard at 12:24 a.m.. A call was also placed to duty counsel in case Mr. Pickard did not return the call. Ms. Lemay had not sought to speak with duty counsel or any other lawyer but Mr. Pickard or someone from his office. At 12:45 a.m., duty counsel called back and Ms. Lemay was advised duty counsel was available. She declined to speak to duty counsel as she wished to speak with counsel of choice. One hour later, Cst. He attended the cells to ask if she wished to provide a sample. She had not yet spoken with counsel. Police could arguably have reminded her of the availability of duty counsel at that point or at any point thereafter. They did not. Had Ms. Lemay expressed any desire to speak with counsel, I might have been inclined to find a s.10(b) violation, but her evidence was that she was not interested in speaking with duty counsel. The failure of the police to offer the defendant access to another lawyer or duty counsel was not an opportunity denied as Ms. Lemay's evidence was that she wanted Gary Pickard or someone from his office or no-one. Ms. Lemay had no intention of speaking with duty counsel. The right to speak with counsel of choice is not an absolute right and does not trump the police continuing their investigation including calling upon the defendant to provide samples of her breath as she is required to do. As it is the defendant's onus to prove a s.10(b) breach on a balance of probabilities, I find she has not met the onus in this case.
[66] At 1:45 a.m., Cst. He entered the cell area to speak with the defendant. The officer identified himself and asked her if she wished to provide breath samples. She indicated that she knew the law. When she asked what samples needed to be provided, he told her breath samples. Her response was that she had not hurt anyone and did not do anything wrong. At 2:30 a.m., Cst. He returned. He testified that he tried to speak with her again and asked if she wished to provide breath samples. Cst. He asked Ms. Lemay if she was refusing, which she denied, but again said she had done nothing wrong. The officer then inquired if there were any medical conditions that could explain why she did not want to provide a breath sample. Ms. Lemay's response was that the police would have to take her to the hospital and then laid down on the bench in her cell. At 2:36 a.m., she was no longer answering any of Cst. He's questions. At 2:53 a.m., Cst. He returned for a third time. While he could not recall the exact words he used, he advised her that this was her "last chance" to provide a suitable sample. When she did not respond, he interpreted that as a refusal. Based on his communications with Ms. Lemay at 1:45 a.m., 2:30 a.m. and 2:53 a.m., he believed he had provided her with ample opportunities to provide a suitable sample. While she had not outright refused, her body language suggested that she was not cooperating. At that point she was charged with refusing to provide a breath sample.
[67] Accepting that the demand must be unequivocal, I must ask what the circumstances were that left no doubt left in the mind of the defendant that she must respond affirmatively to that demand or else be charged with a failure or refusal to comply with the demand for samples of her breath?
[68] Ms. Lemay was operating on a view that she was entitled to speak to her counsel of choice. She never explicitly refused to provide breath samples but maintained she was waiting for her counsel. The police certainly waited more than a reasonable time for counsel to call back, but once that time had elapsed, they did not convey to her the obligation to then provide samples of her breath. The only time the breath demand was made was by Cst. Singh at the scene upon her arrest. No other officer repeated that demand to the defendant. She was not taken from the cells to the breath room where the breath technician could demonstrate what was expected of her. The consequences of failing to provide a sample were never told to her. The words Cst. He kept using to convey to Ms. Lemay that she was "obligated" to provide a breath sample were "do you wish" or "do you want" and then told on the third occasion that this was her "last chance". Those words did not convey explicitly that this was her last chance to comply with the demand, but referable to his early invitations, that this was her last chance should she wish to provide a breath sample.
[69] It is not enough, in my view, to rely on the defendant's experience with the criminal justice system, that ended years previously, to overcome the failure of the police to meet the requirement articulated in Boucher that the demand must be made and refused, not for an invitation to be extended and declined. The demand must be unequivocal. It was not in this case. There must be no doubt left in the mind of the defendant that she must respond affirmatively to that demand or she will be charged with a failure or refusal of that demand. The evidence did not establish that Cynthia Lemay purposely or intentionally refused or failed to comply with the demand, or that the "demand" was one that she was required to submit to. The evidence did not establish beyond a reasonable doubt that the defendant refused or failed to comply with a demand to provide samples of her breath into the intoxilyzer; accordingly, the charge will be dismissed.
Released: January 28, 2020
Signed: Justice J. Bliss