Ontario Court of Justice

DATE: August 18, 2021 COURT FILE No: 19-1286

B E T W E E N :

HER MAJESTY THE QUEEN

-AND-

SARAH LOCHEAD

Before: Justice Michael G. March

Heard on: February 11 and May 21, 2021 Reasons for Judgment released on: August 18, 2021 Amended Reasons released on: September 27, 2021

Counsel: Richard Morris, for the Crown Mellington Godoy, for the Accused

March, M.G., J. :

Introduction

[1] Sarah Lochead (“Lochead”) stands charged that on September 7, 2019, within two hours after ceasing to operate a conveyance, she 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 (the “Code”).

[2] The Crown’s case against Lochead was essentially admitted. The issue for determination upon the trial was whether she could invoke in her defence section 320.14(5) of the Code.

[3] Lochead contended that she consumed alcohol on the night in question:

a) only after ceasing to operate her conveyance (i.e. a motor vehicle),

b) when she had no reasonable expectation that she would be required to provide a sample of her breath, and

c) her blood alcohol concentration was less than 80 mg of alcohol in 100 mL of blood when she was last operating her motor vehicle.

The Relevant Evidence

[4] On September 7, 2019 at 2:19 AM, Constable Cranford of the Renfrew OPP was dispatched to investigate a suspicious person on Highway 132 near Whelan Rd. in the Township of Greater Madawaska, Ontario.

[5] After searching the area, Constable Cranford located Lochead in the driver’s seat of her vehicle in a ditch on the south side of the road. The vehicle appeared to have been involved in a collision.

[6] Upon speaking with Lochead, the officer learned that she had swerved to avoid an animal and went off the road. Her vehicle came to rest some 50 feet into a field.

[7] When Constable Cranford approached Lochead’s vehicle, he noticed an empty bottle of wine in the back. She admitted to consuming alcohol after her vehicle crashed, which occurred, she said, approximately one hour ago.

[8] The officer noted that Lochead was hesitant with her answers to his questions. She was also slurring her speech.

[9] Constable Cranford questioned Lochead further about when she had last consumed an alcoholic beverage. In reply, she stated “I’m going to be honest. I had some wine after I crashed.”

[10] At 2:59 AM, the officer read to Lochead an approved screening device demand. She understood.

[11] At 3:00 AM, she failed the test. The officer then arrested her for impaired driving.

[12] At 3:04 AM, Constable Cranford read to Lochhead an approved instrument demand. He brought her to the Renfrew OPP detachment in order for her to be able to supply samples of her breath there.

[13] At 3:52 AM, Lochead’s first suitable sample of breath, when analyzed, registered 125 mg of alcohol in 100 mL of blood.

[14] At 4:15 AM, her second suitable sample of breath, when analyzed, registered 113 mg of alcohol in 100 mL of blood.

[15] On February 11, 2021 when Lochead testified, she was 29 years of age.

[16] She stated that she was born and raised in the Ottawa area, but for the last 10 years, she has been living in Toronto.

[17] She works as an aircraft tow driver for Jazz Aviation at Pearson International Airport. Through the winter months, she is employed also as an aircraft de-icer with the Greater Toronto Airport Authority.

[18] In order to perform her work duties, she explained, she must have a valid driver’s licence.

[19] Lochead recalled that in September 2019, she weighed between 125 and 130 pounds. She is 5’5” tall.

[20] She described herself as a “social, casual drinker”. Her main focus was her work.

[21] On the day in question, September 6, 2019, she reckoned that she had a later start to her morning than normal, as she had worked a shift from 5 PM till 1 AM, September 5-6, 2019.

[22] She believed she probably had a regular breakfast with her boyfriend. She specifically recalled doing her laundry afterwards during the day.

[23] Through Air BNB, she booked a cottage in Western Québec for some of her family members to spend the weekend with her.

[24] As a result of procrastination on her part, Lochead did not leave her residence to head to the cottage until roughly 8:00 PM on September 6, 2019.

[25] She made a few stops before heading to Highway 401 to begin her journey to the cottage. She went to a gas station to fill her vehicle with fuel. She then proceeded to a grocery store to pick up snacks. Lastly, she attended at an LCBO in order to purchase two 1.5 litre bottles of wine to share with her family over the course of the weekend.

[26] She recalled that on this particular Friday evening, September 6, 2019, the traffic was very heavy on Highway 401. It remained so for the first 45 minutes to an hour of her journey.

[27] The congestion started to clear around the Pickering/Ajax area. Thereafter, Lochead stuck to the innermost left lane of Highway 401 and drove at a speed of roughly 130 to 140 km/h trying to make up for lost time. She testified that she tried to maintain that pace throughout.

[28] During the drive, Lochead was communicating with her family quite frequently.

[29] She was also speaking with her boyfriend, who was working a night shift.

[30] Her telephone records indicated that she was still in the Ajax Pickering area at 10:14 PM, when she placed a call to her mother.

[31] Between 11:14 and 11:20 PM, Lochhead was in the proximity of Trenton.

[32] By 11:41 PM, she was closer to Belleville. She then began to head north off Highway 401.

[33] At 11:48 PM, Lochead received a call from her boyfriend somewhere between Tweed and Kaladar, which lasted some 23 minutes. This call was transmitted through a Rogers cell tower located in Tweed.

[34] She believed that 20 to 25 minutes after her conversation with her boyfriend concluded (i.e. between 12:31 and 12:36 AM on September 7, 2019), she approached an S-curve on the road. She caught a glimpse of some movement ahead in her headlights. It looked to Lochead as though there was an animal on the roadway in the distance.

[35] Her impulse reaction was to brake. It had been raining on and off throughout the night. Lochead explained that the asphalt was wet and slick at the time. Her car skidded. She swerved to try to correct and ended up over steering. She lost control. She tried to pull over, but instead hit a culvert. She closed her eyes and braced for impact.

[36] Lochead remembered that her seatbelt locked. It felt to her as though her vehicle rolled, spun or flipped. When it came to rest, it was facing in the direction from which she had just been travelling.

[37] For a time following the accident, she was in shock. She was confused by the fact that everything in her vehicle appeared to have stayed in place.

[38] When she calmed down, she tried to call her boyfriend. There was no cell service.

[39] She then got out of her vehicle to assess the damage. Her airbags did not deploy. She could see no major visible damage. There was no smoke. There was no hissing or spewing of liquids.

[40] She did note, however, that the back window of her hatchback was smashed in completely.

[41] She attempted to drive the car out of the ditch. It was stuck. She tried driving forward and backward to free it to no avail.

[42] She knew she had traction pads in the trunk. When she went to retrieve them, the hatchback came crashing down. As a result, she cut her hand. She was able to treat it with the first-aid kit she had in her center console. She placed a Band-Aid on the wound and put on mechanic’s gloves thereafter that she had in her glovebox.

[43] She used the traction pads by wedging them in as best she could against her tires. Again, she tried to drive out of the ditch. She was unsuccessful.

[44] She explained that she was panicky. She was in the pitch black in a ditch in a disabled car.

[45] She described the ground where her car came to rest as muddy, wet and weedy. She tried to remove as much of the weeds around her car’s wheels to see if that may assist in dislodging her vehicle. It did not. It moved maybe a couple of inches. She did not know if her tires were simply spinning, or if they were actually catching and moving.

[46] After about an hour of trying to get her car out of the ditch, waiting inside it and thinking, she decided to pack a bag and set out to find help for herself. She wanted to regain cell reception.

[47] She held out hope as well that someone would drive by, see her and stop. She had left the headlights on in her car for that reason. However, no one had happened by to offer assistance.

[48] She related that she did not know how long she would be walking. She was not sure what kind of strange encounters she would have if she were to run into wild animals. As a result, she grabbed one of the wine bottles, opened it and filled her water bottle with wine. She took one swig out of the water bottle before heading up to the road.

[49] She turned off her vehicle and locked it. She grabbed her bag and sprinted out of the ditch. She continued in the direction where the cottage was located.

[50] She had her phone in one hand. She had her water bottle in the other.

[51] After walking for roughly 10 or 12 minutes, she noticed she had some cell service again. She immediately called her boyfriend.

[52] She was able to connect with him. Her cell phone records confirmed that that call was made at 2:04 AM on September 7, 2019. The Rogers transmission tower, which carried the call, was in the Renfrew area.

[53] For a period spanning approximately two hours, Lochead agreed that she must have been en route past Tweed, but not quite to Renfrew.

[54] While she was speaking with her boyfriend at 2:04 AM, she received a text via WhatsApp from her sister asking where she was. She replied that she got into an accident. Her sister offered to drive to her to pick her up.

[55] At approximately 2:18 AM, while speaking with her sister’s boyfriend, Lochead finally saw a car approach her on the road. She tried to flag it down, but it did not stop.

[56] Lochead was on the phone with her boyfriend for 51 minutes. He persuaded her not to continue to wander down the road. She returned to her car where she believed she would be safe until help arrived.

[57] She recalled that she was swigging the wine fairly quickly because her nerves were going crazy.

[58] She returned to the car. She was wet and cold. She restarted the car for some heat and to put the headlights on again.

[59] She kept her boyfriend on the phone with her. She felt somewhat relieved. She began to settle in realizing that it would be some time before anyone showed up to help her.

[60] She changed out of her wet pants into more comfortable ones. She continued to converse with her boyfriend, eat cookies and sip wine.

[61] She called her sister’s boyfriend to get an update on whether he was able to add her to his CAA membership and to have a tow truck dispatched to assist. The estimate she was given was 1 to 3 hours before a truck could get to her.

[62] Due to her rear window having been broken, she noticed a lot of bugs were getting into her car. They were irritating her.

[63] She retrieved a blanket from the rear of her vehicle and used it to cover the opening where the bugs had been entering.

[64] She swished the wine around in her water bottle. It was not completely empty. Since she had nothing else or better to do, she refilled it with wine and took one or two sips from it. There was no wine left in the 1.5 L bottle after she did so.

[65] A matter of moments later, a car stopped up on the road. She was not sure who exactly it was.

[66] She thought to herself that the fact of her drinking wine may give the wrong impression. She thus opened her car door and poured the rest of the wine out of her water bottle onto the ground. She did not want anyone to think that she had unsealed containers of alcohol in her car.

[67] In total, Lochead estimated that she drank around 600 to 650 mL of wine. She denied drinking any wine during the drive before she ended up in the ditch.

[68] The person who stopped on the roadway was an OPP officer. He was shouting to her asking if she was okay. She yelled back that she was.

[69] He came down to check on her situation. He then asked if she had anything to drink. She admitted she had had some wine.

[70] As a result, he told her he needed to see her up at his police vehicle.

[71] She believed she left her car running. She complied with the officer’s request.

[72] The officer made her do a “breathalyzer”. She failed.

[73] He then arrested her and read her rights to counsel. She did not really feel that she had done anything wrong. She told him she did not need a lawyer.

[74] The officer’s notes indicated that the location where Lochhead’s vehicle exited the roadway and came to rest was close to Tom’s Road between Dacre and Renfrew on Highway 132.

[75] En route to the police detachment, the officer asked her what had happened. She told him she had swerved to avoid hitting something on the road.

[76] She did not feel that the officer was trying to help her in any way. She felt a little worried for her job.

[77] At the detachment, even though she had not asked to speak to a lawyer, the officer told her he had contacted one. She spoke with duty counsel, she recalled, between the breathalyzer tests.

[78] Following her release from police custody, Lochead returned to the accident scene roughly a week later and took photographs. She was able to identify a dent in the middle of the roof of her car as well as on its hood. She thought that partly explained why her vehicle became embedded the night of the collision.

[79] She confirmed that there was no wine left in the 1.5 L bottle after she filled her water bottle with it a second time.

[80] Dr. Daryl Mayers (“Mayers”), a forensic scientist, provided a toxicology letter of opinion dated March 5, 2020, which was filed as an exhibit at trial on consent of the Crown.

[81] Mayers’ opinion rested upon four presumed facts:

a) Lochead was involved in an incident at approximately 12:34 AM,

b) police arrived on scene to investigate at approximately 2:52 AM,

c) truncated Intoxilyzer 8000C results of 120 and 110 mgs of alcohol in 100 mL of blood were obtained at approximately 3:52 AM and 4:52 AM respectively, and

d) Lochead, who was 5’5” tall and weighs 130 pounds, consumed 600 to 650 mL of wine at 12.1% alcohol per volume between approximately 1:45 and 2:50 AM.

[82] Based on those facts, Mayers projected that the blood alcohol concentration of Lockheed at 12:34 AM would have been 0 mgs of alcohol in 100 mL of blood.

[83] Mayers’ projection was reliant upon two additional factors:

a) a rate of elimination of alcohol from the blood ranging from 10 to 20 mg per 100 mL per hour, and

b) Lochead’s consumption of alcohol occurred after the incident and before the breath tests.

The Issues

[84] No issue is taken by the defence that Lochead’s blood alcohol concentration exceeded the legal limit within two hours after she was found by police in the driver’s seat of her vehicle where it went off the road on Highway 132 in Greater Madawaska Township.

[85] Central for determination on this trial is whether:

a) under s. 320.14(5) of the Code, Lochead is credible and reliable in her assertion that she consumed alcohol only after she ceased to operate her motor vehicle,

b) she had no reasonable expectation she would be called upon to provide a sample of her breath after she ceased to operate her vehicle, and

c) her blood alcohol concentration was less than 80 mg of alcohol in 100 mL of blood at the time she last operated her vehicle.

[86] In my view, in order to successfully invoke section 320.14(5) of the Code, an accused must demonstrate a) through c) above on a balance of probabilities.

The Law

[87] Section 320.11 of the Code defines “operate” to mean:

“ . . . in respect of a motor vehicle, to drive it or to have care or control of it”.

[88] Under section 320.35 of the Code, if an accused occupies 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 they did not occupy that seat or position for the purpose of setting the conveyance in motion.

[89] In R. v. Wren (2000), Feldman J.A., speaking for a unanimous panel of the Court of Appeal for Ontario, held at para. 20:

The requirement of some risk of danger in order to establish the actus reus of "care or control" is consistent with the basis for a finding of criminal liability under the impaired driving/care or control offences. As the Supreme Court stated in Saunders, supra, the object of the offence is to protect persons and property from danger. When the presumption has been rebutted and it has been shown that there is no potential danger either to any person or any property from the combination of the impaired person and the motor vehicle, there is no need for the protection which is the object of the offence.

[90] Feldman J.A. went on to conclude at para. 29:

In my view, the cases from the Supreme Court of Canada and from this court can be reconciled on the issue of the actus reus of care or control. The issue to be determined on the facts of each case is whether any acts by the accused could cause the vehicle to become a danger whether by putting it in motion or in some other way.

[91] Some twelve years later in R. v. Boudreault, 2012 SCC 56, Fish J., speaking for the majority of the Supreme Court of Canada, set out the elements of the offence of care or control at para. 33 as follows:

(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.

[92] At paragraphs 41 and 42 of Boudreault, Fish J. elaborated upon the meaning of a realistic risk. He stated:

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. On the other hand, an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion — without intending at that moment to do so — may nevertheless present a realistic risk of danger.

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.

[93] With the amendments to Part VIII.1 of the Code (Offences Relating To Conveyances) in 2018, the nature of the offence of operation of a motor vehicle while ‘equal to or over 80 mgs of alcohol in 100 mls of blood’ changed significantly. It is at present a crime to be equivalent to or over the legal limit for alcohol consumption within two hours after ceasing to operate. Previously, the focus was on the accused’s blood alcohol concentration at the time they last operated or had the care or control of a motor vehicle. The yardsticks for determining criminal liability have moved to demand an examination of the accused’s post driving conduct.

[94] Parliament amended the Code to proscribe the acts of an accused intended to obstruct or defeat a police investigation into possible alcohol impaired driving. In R. v. Molinari, 2020 ONSC 1725, Coroza J., presiding over a summary conviction appeal, was dealing with an appellant who had been convicted of impaired driving and driving over 80 by the trial judge. The over 80 offence was conditionally stayed.

[95] The undisputed facts at trial involved an accident on Highway 401, where the appellant, Mr. Molinari, struck another vehicle. When tested later at the police detachment, Mr. Molinari’s blood alcohol concentration exceeded the legal limit. However, he contended that “ . . . the discovery of alcohol at the time of the testing was attributable to his consumption of alcohol at the scene of the incident post-collision.” (see Molinari supra, para. 8)

[96] In upholding the convictions registered against Mr. Molonari by Kastner J., the trial judge, Coroza J. commented on the inferences open to a trier of fact to draw from an accused’s claim of post-incident consumption of alcohol. He stated:

[74] Moreover, the trial judge’s remarks are consistent with the view held by other judges that as matter of common sense and logic, intervening drinking at the scene can be used to undermine the results of a breath test. The comments of Monahan J. in R. v. Tanjangco, 2017 ONCJ 591, at para. 40 provide an excellent example of this view:

The concept of "bolus drinking" normally refers to the concept of the rapid consumption of large amounts of alcohol just prior to the time of interest (see Lima, supra at para 2). The Ontario Court of Appeal has stated that a trial court can draw a "common sense inference of drinking at a normal pace" and that "people do not normally ingest large amounts of alcohol just prior to or while driving": Lima at paras. 31-32 referring to R. v. Hall (2007), 2007 ONCA 8, 83 O.R. (3d) 641 at para. 20. As I say, this was referring to the possibility of drinking just prior or right at the time of driving. In my view, a Court can also infer, depending on the circumstances, that a person will not normally drink large amounts of alcohol very quickly post-driving as well (see R. v. St. Onge Lamoureux, 2012 SCC 5, [2012] S.C.J. 5 at para. 174 (per Cromwell J. (dissenting in part but not on this point)). Of course, some people will drink large amounts of alcohol both pre and post-driving and the circumstances of each case must be considered.

Analysis

[97] The defence does not dispute that Lochead’s blood alcohol concentration exceeded 80 mg of alcohol in 100 mL of blood within two hours after ceasing to operate her motor vehicle in 100 mL of blood. Instead, the defence argues that she consumed alcohol only after she abandoned any intention to free her vehicle from the ditch. Having spoken with her boyfriend, her sister and her sister’s boyfriend, she knew help was on the way. She therefore had no reasonable expectation that she would be required to provide a sample of her breath to a peace officer.

[98] In my view, Lochead bears the onus of proving on a balance of probabilities that the three conjunctive prerequisites set out in sub-subsections 320.14(5) of the Code (i.e. sub-subsections a) to c)) have been made out on the evidence, if she is to successfully invoke the exception to being criminally liable for being equal to or over 80 mg of alcohol in 100 mL of blood within the two hours after ceasing to operate a conveyance.

[99] For several reasons, I find that Lochead has not established that she had no reasonable expectation she may be called upon to provide a sample of her breath.

[100] Firstly, she began to consume alcohol in a vehicle which had exited the highway. She knew police may happen along. She could reasonably be expected to answer questions about what had occurred to cause her vehicle to leave the road and end up some 50 feet away from the paved surface. She is statutorily obliged to answer such questions (see sections 199 to 201 of the Highway Traffic Act, R.S.O 1990, c. H.8). Furthermore, she knew that police may suspect alcohol could have played a factor. Her drinking while walking and waiting was hardly wise.

[101] Secondly, she confirmed that she was conscious of this fact by pouring out the wine in her water bottle at the time police arrived to investigate. I disbelieve her that she did not specifically know a police officer had happened upon the scene. Her own photographs established where her vehicle came to rest. It was in an open field. Her car would have been visible to a passerby. Vice versa, she would have been able to see a police vehicle upon the roadway and slowing down to investigate.

[102] Thirdly, even if I were to accept her evidence that she did not know it was a police officer who had stopped on the roadway alongside her, she readily admitted that it would give the wrong impression to anyone that she was consuming alcohol in her disabled vehicle when she should best have her wits about her.

[103] Fourthly, her evidence is lacking in credibility. It would be impossible for her 1.5 L bottle of wine to be empty, assuming she filled her 750 mL water bottle with it a second time and assuming its contents had not been fully consumed after the first time she filled it. She was swishing around some wine in her water bottle before she began the second pour. I do not accept that the 1.5 L wine bottle was empty due to spillage.

[104] Fifthly, I do not believe she was without cell reception in the ditch when she first attempted to call for help. If she were out of range of a cell tower where she ended up, the call she made to her boyfriend ought to have dropped when she walked the 10 to 12 minutes back to her vehicle. It did not.

[105] Sixthly, her evidence as to the distance she travelled when she finished her 11:48 PM call to her boyfriend taken through a Tweed cell tower to when she went off the road is completely unreliable. That call lasted 23 minutes. Lochead estimated she went into the ditch 20 to 25 minutes later. That would be impossible. She could not have travelled that far from the vicinity of Tweed to near Tom’s or Whelan Road near Dacre, a distance of roughly 130 kms, in 25 minutes, even if she continued to maintain a speed of 130 to 140 kms per hour. That makes no sense.

[106] Furthermore, while I accept that Lochead’s vehicle may have been inoperable, and I have no doubt she exhausted all efforts to get herself out of the ditch, it may not have been inoperable if a tow truck succeeded in pulling it back to the highway. I cannot be sure at all that Lochead would not have attempted to drive it again if it were so freed. This is exactly one of the realistic risks envisaged by Fish J. in Boudreault.

[107] Lochead is an intelligent woman. In preparation for trial, she researched the issue of cell towers. She tried to piece together and understand the details of her journey through her cell phone records. However, her re-creation of the incident which saw her charged with a criminal offence was fundamentally flawed. She knows how important her licence is to maintain her employment. I find that Lochead’s evidence was neither credible nor reliable as a result. It was designed to escape a loss of her driving privileges. While I have great sympathy for her, I cannot see that she has met the onus upon her to be able to exculpate herself through resort to s. 320.14(5) of the Code.

[107.1] Lochead, through her counsel, admitted at the outset of her trial that the Crown could prove beyond a reasonable doubt all elements of the ‘equal to or over 80’ offence with which she was charged. The issue for resolution on the trial was squarely whether Lochead could look to and raise s. 320.14(5) of the Code in her defence.

[107.2] Neither Crown nor defence counsel clearly addressed the standard of proof required of an accused to be able to do so successfully.

[107.3] After careful consideration of the issue, I concluded that the standard required of the defence is proof on a balance of probabilities. At its root, s. 320.14(5), and ss. 320.14(6) and (7) for that matter, are statutory exemptions from criminal liability. While I appreciate that the presumption of innocence places the onus on the Crown to prove the accused’s guilt beyond a reasonable doubt, and that that burden never shifts to the defence for the entirety of a criminal trial, once the elements of the ‘equal to or over 80 offence’ have been made out, ss. 320.14(5) to (7) provide other means for an accused to excuse what would otherwise be criminal conduct. Who is better positioned to address:

a) when the operation of the conveyance ceased,

b) what the reasonable expectation of the accused was upon so doing, and

c) what his or her blood alcohol concentration would have been,

than the accused him or herself?

[107.4] Although it is hardly a perfect analogy, I draw some comfort from s. 16 of the Code in determining what the appropriate standard of proof required of the accused should be where an exemption from criminal responsibility is sought.

[107.5] If I am wrong about the standard of proof required of an accused seeking to invoke subs. 320.14(5) of the Code to avoid conviction for ‘an equal to or over 80’ offence, and instead of demonstrating on a balance of probabilities the three statutory prerequisites set out in sub-subss. 320.14(5)(a) to (c), the accused need only raise a reasonable doubt on all three, I would have entertained no such doubt for the reasons provided in paragraphs 100 to 105 above.

Conclusions

[108] For the reasons set out above, I must find Lochead guilty of having the care or control of a motor vehicle within two hours after ceasing to operate it contrary to s. 320.14(1)(b) of the Code.

AMENDED: September 27, 2021

March, M.G., J.