Her Majesty the Queen v. Samantha Tripp, 2021 ONCJ 153

DATE: March 16, 2021 COURT FILE No: 19-0709

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

-AND-

SAMANTHA TRIPP

Before: Justice Michael G. March

Heard on: December 17, 2020 and January 19, 2021 Reasons for Judgment released on: March 16, 2021

Counsel: Caitlin Downing, Counsel for the Crown Chandler Thomas, Counsel for the Accused

March, M.G., J. :

Introduction

[1] The accused, Samantha Tripp (“Tripp”), stands charged that on May 26, 2019 she operated a conveyance:

a) while her ability to do so was impaired to any degree by alcohol or a drug or a combination of both contrary to section 320.14(1)(a) of the Criminal Code (“the Code”), and

b) while her blood alcohol concentration was equivalent to or exceeded 80 mg of alcohol in 100 mL of blood contrary to section 320.14(1)(b) of the Code.

[2] At the outset of trial, Tripp’s counsel admitted the date of the alleged offence and her client’s identity as the accused before the court. As well, defence counsel admitted the court’s jurisdiction over the accused, and the accuracy of the breath samples taken from Tripp by police.

[3] Crown and defence counsel agreed to a blended voir dire/trial for the hearing of an Application brought by the defence under the Canadian Charter of Rights and Freedoms (“the Charter”) alleging violations of Tripp’s sections 8 and 10(b) Charter rights. Ultimately, the defence abandoned its contention that Tripp’s s. 8 Charter right had been infringed or denied. In my view, it was proper to do so given the way the evidence unfolded. There was no question that the arresting officer had reasonable grounds to make demands for samples of Tripp’s breath under sections 320.27 and 320.28 respectively of the Code.

[4] Under section 24(2) of the Charter, the defence sought under s. 10(b) of the Charter alone an exclusion of the analysis of Tripp’s breath samples and any other evidence obtained as a result of a purported violation of her rights to counsel.

Relevant Evidence

[5] Jeffrey Ashikawa (“Ashikawa”) testified that between roughly 1:30 and 2:00 AM on May 26, 2019, he came across two women near a vehicle at the side of the road in a merge lane approaching Highway 17.

[6] Ashikawa specified that most of the vehicle was off the paved portion of the highway.

[7] The women flagged him down.

[8] Ashikawa rolled down his window to speak to them as he approached in the merge lane. Upon speaking to them, he smelled alcohol. He could not discern from which individual the smell of alcohol was emanating. He understood that their vehicle had run out of gas.

[9] Both women appeared to him to be in the 20 to 30 year age bracket.

[10] They were standing at the front of the vehicle. On occasion, they stumbled. Possibly one of the women caused the other to lose her balance. Their speech was slurred as they spoke.

[11] In Ashikawa’s view, they appeared intoxicated. They were giggling and laughing.

[12] As he drove away, he believed he saw other vehicles slowing down, turning in and stopping where they were.

[13] Ashikawa explained that his wife, who was a passenger in his vehicle with him, pressured him into calling 911. They were concerned that it was nighttime. The women, he ventured, were in a hazardous situation.

[14] He clarified that he did not see anyone inside the vehicle. The women were standing outside.

[15] He could not say for sure whether all four tires of their vehicle were off the paved portion of the roadway.

[16] Ashikawa estimated that he was on scene with the women for approximately five minutes. It could have been a shorter period of time. However, he was sure that it was longer than two minutes.

[17] About 10 or 15 minutes after he left the scene, he contacted police.

[18] Constable Golds of the Ontario Provincial Police (“the OPP”), a peace officer for just over five years at the time of the alleged offence, received a call from his dispatcher at 2:15 AM advising of a traffic hazard on Haley Road near Highway 17.

[19] The 911 caller reported that two females were outside a disabled four-door Nissan Sentra.

[20] Constable Golds patrolled the area and discovered a white Chevrolet Cruze partially blocking the on-ramp to Highway 17 on Chenaux Road. Half of the vehicle’s width remained on the paved portion of the merge lane while the other half was on the shoulder; however, Cst. Golds made no note in his duty book of that detail.

[21] Cst. Golds pulled up behind the Cruze at approximately 2:30 AM. He offered that it would have been difficult for another vehicle to go around the Cruze. Any other vehicle would perhaps have to mount the traffic island to the left of the merge lane in order to do so.

[22] As he approached the vehicle, he noticed a Budweiser beer can under the rear bumper.

[23] He exited his police cruiser and spoke with a female in the driver’s seat of the Cruze. Her driver’s side window was open.

[24] She spoke loudly to him and explained that she had run out of gas approximately 20 minutes ago. Cst. Golds made no note of where the keys to the vehicle were located.

[25] The female was staring blankly and slurring her words. He did not note any specific words she slurred. Through conversation, he detected the odour of alcohol.

[26] Constable Golds then formed a reasonable suspicion that she had alcohol in her body. He appreciated that he had to suspect that she had been operating her vehicle within the previous two to three hours in order to make a demand for samples of her breath to be supplied into an approved screening device (“ASD”).

[27] He deduced as well that other police officers had travelled the Chenaux Road at 12:37 AM and made no mention of a vehicle parked at the side of the road with two females in or about it. He therefore believed the female had been operating her vehicle within the last two hours.

[28] Shortly thereafter, at 2:31 AM, he read to her the ASD demand from his OPP issued LE 200 card. She understood and stated she would comply.

[29] The woman occupying the driver’s seat of the Cruze went on to explain that she was at a bar called Minnesota’s. She then related that she had been waiting in her vehicle for an hour or an hour and a half.

[30] Constable Golds inquired about when she had her last alcoholic beverage. She told him that it had been an hour ago.

[31] He then asked her if she had recently been smoking. She told him she had not.

[32] While questioning the woman, Constable Golds was again able to smell alcohol emanating from her breath.

[33] Constable Golds returned to his cruiser and retrieved the ASD. He demonstrated its use to the woman and at 2:34 AM, he conducted a self-test of the ASD. It registered a reading of zero thus satisfying Constable Golds that it was in proper working order.

[34] He testified that at 2:36 AM the driver of the Cruze, Tripp, blew into the ASD whereupon he received an error message.

[35] He reset the ASD. She blew again and this time it registered a “fail”.

[36] Constable Golds then arrested Tripp for driving “over 80”. He handcuffed her to the rear.

[37] At 2:37 AM, he read her rights to counsel. She stated she understood. When asked if she wished to call a lawyer now, she responded “I don’t know, I think I should, yes.” Constable Golds did not turn his mind to facilitating Tripp’s rights to counsel at the roadside. He thought it would be better to allow her to contact counsel at the police detachment.

[38] He explained that if he allowed her to use her own phone, he would have no control over who she called. He would be concerned if she called a family member, or if someone showed up at the scene and interfered with his investigation. He conceded that he could have looked at her telephone to see who she was calling. In short, it simply did not seem to be a good option to the officer to allow Tripp to talk to a lawyer inside her own vehicle with her passenger present.

[39] If Constable Golds were to facilitate Tripp’s contact with counsel inside his cruiser, he could not offer her privacy without creating some distance between himself and it. Nor did it seem safe to the officer to move her outside near the road. It was raining heavily. It was dark. His cruiser was blocking a live lane of traffic with its emergency lights activated.

[40] Constable Golds went on to make a further demand for samples of Tripp’s breath to be provided into an approved instrument.

[41] At 2:41 AM he made a radio call seeking the closest available breath technician, following which he understood there was one at the Renfrew OPP detachment.

[42] Next, he requested of his radio dispatcher to call Dwayne’s Towing. He waited for the tow truck driver to arrive. He explained that there were no other officers available to assist with seeing to the towing of the Cruze. They were all occupied on other service calls. He had checked “MPS”, an onboard computer program available to him in his cruiser, to verify the whereabouts of his fellow officers.

[43] He went on to clarify that the Cruze was in a live lane of traffic on a curve, specifically the Chenaux Road on ramp to Highway 17. Although not noted in his duty book, Constable Golds recalled that two of the Cruze’s wheels were on the road while two were off. In the officer’s mind, Tripp’s vehicle posed a safety risk.

[44] Equally, Constable Golds did not wish to leave Tripp’s female passenger alone in the Cruze. It was apparent to him the passenger had been drinking as well.

[45] At 2:57 AM, the tow truck driver arrived on scene approximately twenty minutes after he read to Tripp her rights to counsel. Constable Golds arranged with the driver to take Tripp’s passenger in accordance with her wish to the Renfrew OPP detachment in his tow truck.

[46] At 2:59 AM, Constable Golds departed the scene with Tripp in his cruiser en route to the Renfrew OPP detachment.

[47] Constable Golds reiterated that he did not turn his mind to facilitating rights to counsel at the scene.

[48] In Constable Golds’ view, it made more sense to allow Tripp to speak to legal counsel at the police detachment rather than at the side of the road from his cruiser, even though his police vehicle had its emergency lights activated to warn oncoming motorists of its presence.

[49] At 3:10 AM, he arrived at the Renfrew detachment with Tripp.

[50] Constable Bochek, a female officer and qualified technician who could operate the approved instrument for analyzing breath for alcohol concentration, searched Tripp.

[51] At 3:14 AM, Constable Golds then called Legal Aid Ontario on Tripp’s behalf. He left a voicemail message asking for a return call to police in Renfrew.

[52] At 3:23 AM, duty counsel returned his call.

[53] At 3:24 AM, Tripp was placed in a booth in order to consult legal counsel.

[54] At 3:27 AM, Tripp concluded her conversation with duty counsel. She indicated to police she was satisfied with the call. Constable Golds then turned Tripp over to Constable Bochek, a qualified breath technician.

[55] Constable Bochek gave evidence that she was first gazetted as a qualified technician in July 2009. She remained so qualified on May 26, 2019, the night of Tripp’s arrest.

[56] At 2:46 AM that night, she received notice that her services as a qualified technician would be required.

[57] At 2:53 AM, she arrived at the police detachment and performed her “set up”. The approved instrument was readied by her at 3:04 AM.

[58] She recalled Constable Golds arriving at the detachment at 3:10 AM. He needed some assistance in lodging Tripp into a cell.

[59] At 3:27 AM, Constable Golds turned custody of Tripp over to Constable Bochek.

[60] At 3:31 AM, Constable Bochek issued a breath demand to Tripp.

[61] At 3:39 AM, Tripp provided her first sample of breath, which when analyzed, registered 151 mg of alcohol in 100 mL of blood.

[62] At 4:02 AM, Tripp provided her second sample of breath, which when analyzed, registered 155 mg of alcohol in 100 mL of blood.

[63] Constable Bochek noted the following signs of impairment in her dealings with Tripp:

a) her flushed face, b) she was tearful and emotional, c) she was swaying and unsteady, d) her slurred speech, e) her watery, red rimmed eyes, and f) a strong odour of alcohol on her breath.

[64] Billy Jean Martin (“Martin”) described what she did with her friend Tripp on May 26, 2019 as “dumb and stupid”.

[65] Martin recalled that she had a drink or two of vodka at her place in Braeside before Tripp picked her up. Tripp lived close by. Martin did not have a driver’s license. She took some vodka with her in Tripp’s car, specifically a 26 ounce bottle, which was under half full, and which she mixed with a “slushy”. Martin alone was drinking the vodka.

[66] She described how Tripp and she first attended at an Eastside Mario’s restaurant in Kanata, where Martin had two vodka drinks and a beer. Tripp did not have any alcohol to drink at the Eastside Mario’s. The women then attended a second establishment where they could play pool. Martin drank a further three or four more beer.

[67] Martin recounted how she was drinking the whole time and smoking marijuana too. She was very intoxicated. She explained she does not get out often. She does not remember much of the evening. It was the first time Martin had ever been out with Tripp for a “girls’ night”.

[68] She did see Tripp drink a beer while playing pool. Martin believed Tripp only had one.

[69] On the drive home, Martin continued to drink. Tripp did not.

[70] Martin remembered that they ran out of gas and did not make it back. Tripp pulled over nicely. For a while they were both out of the vehicle. Martin could only recall one car going by. She did not believe Tripp’s vehicle posed any safety risk.

[71] They had not been at the roadside for very long, perhaps half an hour before the police officer showed up.

[72] Before the police officer’s arrival, a man and woman in a vehicle stopped for them and said they would get them gas. Both Martin’s and Tripp’s telephones were out of battery.

[73] In Martin’s view, Tripp appeared fairly sober. Martin knew she had one drink. Tripp was able to play pool, walk and talk, whereas Martin described herself as “messed up” and a 6 out of 10 on an intoxication scale.

[74] Martin denied ever driving a vehicle herself that night.

[75] She described being afraid for her friend Tripp because of the way the police officer was yelling at her and talking to her.

[76] Martin did not know how long the officer was yelling for. He told Tripp to get out of her car. He took her to the back of his vehicle. Then the yelling started. The officer did not permit Martin to get into the back of his police cruiser with Tripp.

Issues

[77] The defence raises essentially three issues for determination, namely:

a) Was there a breach of Tripp’s rights to counsel under section 10(b) of the Charter, and if so, should there be an exclusion of her breath readings, and any statements she made to police regarding her driving and whereabouts in the night in question?

b) Were the samples of breath taken from Tripp “as soon as practicable” in accordance with section 320.28(1) of the Code?

c) Has the Crown proven beyond a reasonable doubt Tripp’s ability to operate a conveyance was impaired by alcohol?

Analysis

The Obligation of the Police to Provide Rights to Counsel Immediately upon Arrest or Detention and to Provide a Reasonable Opportunity to Exercise Them Once Asserted

[78] Over a decade ago in R. v. Suberu, 2009 SCC 33, the Supreme Court of Canada emphasized the importance of the provision of rights to counsel to an accused “immediately” upon arrest or detention.

[79] However, the immediacy requirement permits of an exception where a police officer is dealing with a situation of public safety during an arrest. (See R. v. Al-Qa’ood, 2019 ONSC 4809, Parfett J. at para. 16)

[80] In this case, Constable Golds satisfied his constitutional obligation to Tripp by reading to her within a minute or two of her arrest her rights to counsel. The impugned delay arises following her assertion, albeit tentative, of her desire to speak to counsel. Constable Golds took no immediate steps to facilitate her wish. He did not turn his mind to it.

[81] He conceded that in his five years as a police officer when he embarked upon this investigation, and up to the time he testified on December 17, 2020, he had never permitted an accused in his custody at the roadside to communicate with a lawyer. After today, I expect his attitude will change.

[82] However, I accept Constable Golds’ evidence that Tripp’s vehicle was partially situated in a live lane of traffic, out of gas and temporarily immovable. It was dark and it was pouring rain. Through experience, he knew that a tow truck could arrive on scene to remove the vehicle from its precarious position in roughly 20 minutes.

[83] Constable Golds held off and did nothing to elicit evidence from Tripp during those 20 minutes.

[84] He also had to concern himself with the safety of Tripp’s intoxicated passenger, Martin.

[85] In R. v. Taylor, 2014 SCC 50, the Supreme Court of Canada held that a police officer is under no legal duty to provide his or her own cell phone to a detained individual in order to facilitate contact with counsel.

[86] According to Martin, both Tripp’s cell and hers were out of battery. Neither woman had an operable telephone with which to call a lawyer.

[87] Tripp’s ability to contact counsel was theoretical; however, it was wholly impractical. It assumed a willingness on the part of Constable Golds to:

a) remove the handcuffs he had placed on Tripp, b) hand over his personal cell phone to her on the night in question, c) either call for her or allow Tripp herself to dial a number for her lawyer of choice or the 1-800 number to contact duty counsel, d) distance himself from her to afford her privacy, and e) return periodically to where she was situated to determine if her call was successful, was completed and was satisfactory in her view.

[88] I disagree with defence counsel’s argument that Constable Golds exhibited a “cavalier attitude” toward facilitating rights to counsel as required by section 10 of the Charter. Either through a lack of training or experience, Constable Golds was unaware that situations may arise where the right to counsel must be implemented at the roadside. However, in the circumstances of this case, this was not one of them.

[89] In examining the relevant period of delay, the following timeline emerges:

a) time of Constable Golds’ arrival on scene – 2:30 AM, b) time of arrest – 2:36 AM, c) time at which rights to counsel were read by Constable Golds and asserted by Tripp – 2:37 AM, d) time of locating closest qualified technician and request for tow truck – 2:41 AM, e) time of arrival of tow truck – 2:57 AM f) time of departure for detachment – 2:59 AM g) time of arrival at detachment – 3:10 AM h) time at which duty counsel called – 3:14 AM i) time at which duty counsel called back – 3:23 AM j) time at which Tripp placed in contact with duty counsel – 3:24 AM k) time at which Tripp concluded her call with duty counsel – 3:27 AM l) time for analysis of the first breath reading – 3:39 AM m) time for analysis of the second breath reading – 4:02 AM

[90] Forty-seven minutes from the time at which the right to counsel is asserted by Tripp to when it is facilitated by police is less than ideal (2:37 AM – 3:24 AM). Yet when one looks at the causes for delay, any concern as to a breach of Tripp’s section 10(b) Charter rights subsides.

[91] Twenty minutes of the delay (2:37 AM – 2:57) arose as a result of Constable Golds’ decision to await a tow truck. His decision to do so was reasonable. He was clear that he believed that the Cruze Tripp was occupying upon his arrival on scene posed a danger to other motorists if it was left where it was. I accept his evidence on that point. Part of the Cruze was protruding onto the paved portion of an on-ramp to Highway 17.

[92] A further 12 minutes of delay (2:57 AM – 3:10 AM) was occasioned by arranging for the safe transport of Martin by the tow truck driver and to take Tripp to the police detachment for further breath testing.

[93] Nine minutes of delay (3:14 AM – 3:23 AM) was attributable to the wait time for duty counsel to call back.

[94] Having carefully considered the relevant timeline and the delay by police in facilitating Tripp’s contact with counsel, I am not satisfied on a balance of probabilities that a breach of her section 10(b) Charter rights to counsel to counsel has been established on the evidence.

[95] In light of my finding that there was no section 10(b) Charter violation, I need not consider the exclusion of any evidence under section 24(2) of the Charter.

As Soon As Practicable

[96] Section 320.28(1) of the Code requires a person to provide samples of breath “as soon as practicable” where a peace officer has reasonable grounds to believe that a person has operated a conveyance while impaired by alcohol to any degree or with a blood alcohol concentration equivalent to or in excess of 80 mg of alcohol in 100 mL of blood.

[97] “As soon as practicable” surely does not mean as soon as possible. In another context, specifically the application of the presumption in former section 258(1)(c)(ii) of the Code, the Court of Appeal for Ontario in R. v. Vanderbruggen at paras. 12 and 13 held that “as soon as practicable” requires the Crown to show that breath samples were taken within a reasonably prompt time in all of the circumstances.

[98] In written submissions, the defence placed great emphasis on the decision of my colleague, Cleghorn J., in R. v. Egeli, 2015 ONCJ 271. At paras. 51 – 55, Her Honour explained:

[51] In my view, the Crown’s submission that the “as soon as practicable” requirement need not be complied with when the presumption of identity [former section 258(1)(c)(ii) of the Code] is not relied upon is incorrect.

[52] Subsection 253(3)(a) clearly establishes the lawful pre-conditions for the seizure of breath samples for analysis by an approved instrument. There are two temporal requirements: the demand must be made as soon as practicable after the officer forms the required grounds AND the samples must also be taken as soon as practicable. [4] This legislative requirement has no connection to the presumption of identity as set out in the Code.

[53] In order to make a determination of whether the tests were taken as soon as practicable, it is necessary to assess if the police conduct resulting in any delay in collecting the breath samples was reasonable, under the specific circumstances in each case. [5]

[54] From the time of the arrest until the time that Constable Mauceri left the scene, a total of 45 minutes elapsed. The explanation of Constable Mauceri for the delay consists of his inexperience in inputting data as required by the new system, incorrectly sending the data to the wrong recipient, completing an inventory of SUV’s contents and completing the tow truck card. In my view, the forty-five minute delay at the roadside occasioned by attending to these various administrative tasks was unreasonable. I think it especially problematic that much of the time at the roadside resulted from Constable Mauceri lack of familiarity with a new system for inputting information regarding those arrested, a task that Toronto Police Service policy apparently required him to complete before transporting Mr. Egeli to a police division for breath testing. Such a policy would appear to be at odds with Parliament’s clear direction that breath samples be taken “as soon as practicable”.

[55] In my view, it is incumbent on a police to ensure that officers are properly trained and ready to implement any new procedural changes it chooses to put in place, keeping at the forefront what is required by the legislation when a police officer is exercising his/her duties.

[99] In endnote 5 of Egeli, Cleghorn J. specifically refers to Vanderbruggen to interpret the meaning of “as soon as practicable” in assessing the two temporal requirements she refers to in para. 52.

[100] Specifically at para. 58, Her Honour was concerned with the lack of any explanation as to why one of the two officers on scene dealing with the accused could not have left more promptly to bring him to a police detachment to ensure that his breath samples were collected as soon as practicable. She went on to find that the delay in not doing so was “not reasonable”.

[101] The defence drew my attention as well to the decision of Scurfield J. in R. v. McCorriston, 2009 MBQB 7. At paras. 35 – 38, the Court stated the following about a police officer’s decision to delay transport of an accused to the detachment to provide samples of his breath:

[35] Was it reasonable for the police officer to wait 41 minutes for a tow truck before transporting Mr. McCorriston to the R.C.M.P. detachment? The officer conceded that Mr. McCorriston’s vehicle had been pulled off the road and did not pose a hazard to other motor vehicles. Consequently, this is not a case where the scene had to be guarded to protect the public from a hazard. (my italics) The vehicle was capable of being locked. There was no evidence that its contents were exposed to a specific risk of theft or vandalism. Once the tow truck was called, it was reasonable to assume that the vehicle would only be left unattended for a short period of time.

[36] In this factual situation, was it reasonable to keep Mr. McCorriston sitting for 41 minutes at a roadside after the breathalyzer demand had been made? That question must be addressed in the context of the statutory imperative to administer the test “as soon as practicable”. In this case, the police officer testified that his decision to remain at the scene was based on a general police policy. That policy requires him to wait until a tow truck, or another police officer, arrives at the scene to take charge of an accused’s vehicle. Moreover, the policy does not permit the police officer to call for the first available tow truck. Rather, he must wait for a tow truck approved by the Manitoba Public Insurance Corporation. Reasonableness is not established by following a “police policy”. A policy cannot supersede a legislated requirement. The application of the policy may be reasonable in a particular situation, but the policy must be supported by the individual facts of the case.

[37] In R. v. Keddy (M.G.) (1995), 147 N.S.R. (2d) 171 (S.C.), on appeal, Carver J. supported the trial judge’s decision to reject a breathalyzer test based on the requirement that it be conducted as soon as practicable. The trial judge held that it was unreasonable to delay the test for 33 or 36 minutes because of a policy of waiting for a tow truck. The trial judge had concluded:

… if the policy in relation to the security of the vehicle in question is interfering with the statutory directive to get the individual before the breathalyzer as soon as reasonable practicable, then the police better take another look at their policy because their policy in relation to protection of the vehicle is interfering with their directive under the Criminal Code to provide that sample as soon as practicable.

[38] Although the appeal was resolved by giving deference to the trial judge’s fact-finding, Carver J. supported the logic underpinning the acquittal:

[14] Here, the parked vehicle posed no threat to any other vehicle. (my italics) Once it was secured as the officer and Mr. Keddy secured it, there was no risk to the parked vehicle where a tow truck was on the way. Once the truck had been secured there was no reason to remain to wait for the tow truck.

[15] Once the officer secured the truck he did not act reasonably sitting there making notes and just waiting for the tow truck.

[102] The obvious distinction on the facts of this case as opposed to those as found at trial in McCorriston and Keddy is the danger posed to other motorists by the presence on the roadway of the Cruze Tripp was operating. No other officers were available to position themselves with emergency lights activated in front of the Cruze to warn of its presence on the roadway until it was removed.

[103] I reject Martin’s evidence that in her opinion, her presence at the roadside posed no safety risk. She was Tripp’s intoxicated passenger now stranded in the middle of the night without the means to arrive home. Constable Golds was completely justified in taking her safety into account.

[104] Ashikawa testified that to his recollection, most of the Cruze was off the roadway. However, he could not say whether all four tires of the paved portion of the road. Constable Golds’ evidence was clear that two of the wheels of the Cruze remained on the road.

[105] Given my examination of the relevant timeline above, and my findings as to reasons for delay, I am satisfied that the Crown has demonstrated, as it is obliged to under section 320.28(1) of the Code, that Tripp’s samples of breath were provided “as soon as practicable”. Under the conditions prevailing at the material time, Constable Golds acted prudently and with good cause in awaiting the arrival of the tow truck.

[106] Section 320.11 of the Code defines “conveyance” to mean a motor vehicle, and “operate” to mean in respect of a motor vehicle, “to drive it or to have the care or control of it”.

[107] Further, section 320.35 of the Code provides that the accused who occupies the seat ordinarily occupied by a person who operates a conveyance is presumed to have been operating the conveyance unless the accused did not occupy that seat or position for the purpose of setting the conveyance and motion.

[108] When Constable Golds arrived on scene, he found Tripp in the driver’s seat of the Cruze. She is thus presumed to have been operating this conveyance.

[109] The undisputed evidence establishes as well that the Cruze had run out of gas. It was temporarily immovable.

[110] Martin gave evidence that once Tripp and she were on their way home, they ran out of gas. Someone had stopped to assist by offering to go get gas for Tripp. If Martin’s memory can be relied on for anything it is this – while stranded on the side of the road, they were assisted by seemingly good Samaritans. I find both women were simply waiting for those persons to return with gas in order to resume their journey home.

[111] Accordingly, no evidence exists to show that Tripp has rebutted the presumption set out in section 320.25 of the Code.

[112] In R. v. Ablack, 2016 ONCJ 290, Javed J. wrote at para. 69 and 75 in a case factually similar to this one the following:

[69] In this case, I find that it’s reasonable to infer that Mr. Ablack drove his car to the location where he ran out of gas while impaired. There’s no evidence of any change in his intention. He was seated in the driver’s seat waiting for gas and it’s reasonable to infer that he would drive home, impaired, once he re-fueled. Mr. Aitken argued in his written reply submissions that Tharumakulasingam, supra appears to be inconsistent with Durno J. in Amyotte, supra, who said “[w]hile the appellant argued it is illogical to have a case determined on whether or not the accused got out of the car and returned not intending to drive and one who never leaves the seat but abandons the intention to drive, that is the law in Ontario”. In my view, there is no inconsistency as Durno J. adopted the principle in Hatfield, supra, which was also cited by Code J. that intention to drive is to be assessed at the time the accused enters the driver’s seat. The difference here is that Mr. Ablack left his car and returned with a continued intention to drive. See also R. v. Miller; R. v. Hudson (1989), 1989 ABCA 75, 23 M.V.R. (2d) 284 (Alta. C.A.); R. v. Decker (2002), 2002 NFCA 9, 162 C.C.C. (3d) 503 (Nfld. C.A.). I agree with Mr. Connolly that by merely exiting his vehicle to get his bearings and obtain his location for the tow truck does not amount to a change of intention. As such, Mr. Ablack has not rebutted the presumption.

[75] While the case at bar is clearly different in that Mr. Ablack took some additional steps to mitigate the risk by pulling off the roadway, in many ways, the risk is even more real because there is an absence of evidence that he abandoned his intention to drive home while inebriated. In other words, the only reasonable inference before me is that he was intent on driving home while intoxicated once gas arrived. (Pelletier, supra) Unlike Balogun-Jubril, Mr. Ablack could drive home whereas Mr. Balogun-Jubril couldn’t because the engine had seized. The law criminalizes conduct which arises through “negligence, bad judgment or otherwise”. In my view, his decision to drive home as opposed to having his car towed or finding a ride home clearly fits within this rubric of bad judgment. It would frustrate the intent of Parliament to not criminalize this type of poor decision making. The brief period of time that he got out of the vehicle to ascertain his location for the tow truck does not interrupt the sequence of events such that the presumption in favour of care and control no longer applies. See also R. v. Chernywech, 2010 ONSC 1638.

[113] On the evidence adduced at the blended voir dire/trial, I find that Tripp and Martin exited the Cruze to flag down assistance. Their cell phones were out of charge. They were stranded on the roadway. They needed someone to either drive them home or get them more gas. When the man and woman happened across them, they either asked to be driven home or to have gas delivered back to them. Tripp clearly accepted the latter.

[114] When Constable Golds arrived on scene at 2:30 AM to find Tripp in the driver’s seat of the Cruze, she had not abandoned care or control of her vehicle. She intended to drive the rest of the way home.

[115] At 3:39 AM, Tripp’s breath reading registered 151 milligrams of alcohol in 100 mL of blood.

[116] At 4:02 AM, her second breath reading registered 155 mg of alcohol in 100 mL of blood.

[117] On my assessment of the evidence called at Tripp’s trial, I am satisfied beyond a reasonable doubt that she operated a conveyance when her blood alcohol concentration was equivalent to or exceeded 80 mg of alcohol in 100 mL of blood contrary to section 320(10(b) of the Code.

Impaired Ability to Operate a Conveyance

[118] In order to secure a conviction for impaired operation of a conveyance contrary to section 320.14(1)(a) of the Code, the Crown must prove beyond a reasonable doubt that the accused’s ability to operate was impaired by alcohol to any degree. Even slight impairment of the ability to operate will be sufficient. (see R. v. Stellato, O.J. No. 18 (C.A.), affirmed on appeal to the Supreme Court of Canada at , [1994] 2 SCR 478).

[119] The Crown points me to the following aspects of the evidence adduced at Tripp’s trial as establishing beyond a reasonable doubt that her ability to operate a conveyance, when assessed in their totality, was impaired by alcohol:

a) Ashikawa observed both Tripp and Martin to be giggling and laughing a lot during his conversation with them, and slurring their speech, b) he noticed both of them to be stumbling, c) Constable Golds saw that Tripp was staring blankly straight ahead when he approached and found her in the driver seat of the Cruze, d) Constables Gold and Bochek smelled a strong odour of an alcoholic beverage on Tripp’s breath, e) Constable Bochek observed that: (i) Tripp’s face was flushed, (ii) her speech was slurred, (iii) she was swaying and unsteady, (iv) she was emotional and crying, and (v) her eyes were watery and red rimmed.

[120] In Constable Bochek’s opinion, the effects of alcohol on Tripp were obvious.

[121] Contrary to the observations made by Ashikawa and Constables Golds and Bochek, Martin’s view was that Tripp was fairly sober.

[122] Martin was hardly an independent witness. Tripp and she were friends. I find that Martin, virtually wherever possible, attempted to assist Tripp by casting her in the most favourable light possible. For this reason and due to Martin’s own self-assessment of herself as “heavily intoxicated”, I place no reliance on Martin’s opinion as to Tripp’s level of sobriety.

[123] Based on my collective review of the evidence of Ashikawa and Constables Gold and Bochek, I can safely conclude beyond a reasonable doubt that Tripp was significantly impaired by alcohol on the night in question while she continued to have care or control over the Cruze she had been operating.

Conclusion

[124] Having carefully weighed all of the admissible evidence at Tripp’s trial, I must find her guilty of both offences under section 320.14 of the Code. The Crown can advise me as to which one of the offences upon which I should enter a conditional stay.

DATED: March 16, 2021 March, M.G., J.