DATE : February 3, 2021 ONTARIO COURT OF JUSTICE Old City Hall - Toronto

BETWEEN: HER MAJESTY THE QUEEN — AND — LEIGHTON OSBOURNE

For the Crown: L. Karademir For the Defendant: A. Zaitsev Heard: December 29, 2020

REASONS for JUDGMENT

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] Mr. Osbourne was arraigned on a single count of operating a conveyance while impaired by alcohol on February 6, 2019. He pleaded not guilty.

[2] Mr. Osbourne was found asleep in the driver’s seat of a Kia motor vehicle in the late morning of February 6, 2019. Mr. Osbourne concedes that he was impaired by alcohol at the time. The only issue that needs to be decided is whether the Crown has proven beyond a reasonable doubt that Mr. Osbourne was in care or control of the Kia at the time.

B. THE EVIDENCE

(a) Introduction

[3] The Crown called three witnesses, all of whom saw Mr. Osbourne passed out in the driver’s seat of the Kia. Mr. Osbourne testified and called no other witnesses.

(b) The testimony of James Ince

[4] Mr. Ince was shoveling snow on the west side of Spadina Avenue just south of College Street at around 9 am on the morning in question. Mr. Osbourne approached him and asked if he had seen a woman asking about his car. Mr. Osbourne went into a nearby after-hours club and emerged about 10 minutes later. Mr. Osbourne was quite inebriated. He staggered and his speech was slurred. Mr. Osbourne went back to his car and got in. According to Mr. Ince, Mr. Osbourne started the car, revved it for a few minutes, then put it into reverse (which he deduced from seeing white reverse lights come on). The car did not move, and Mr. Osbourne promptly fell asleep. The car remained stationary, in reverse, with Mr. Osbourne asleep behind the wheel for approximately two hours, which is when the police arrived after Mr. Ince told a parking enforcement officer what he had witnessed.

(c) The testimony of Mario Sipione

[5] Mr. Sipione was the parking enforcement officer whom Mr. Ince informed about Mr. Osbourne being drunk and asleep in the Kia at 1130 am. Mr. Sipione knocked hard on both the driver’s window and the passenger’s window for at least 30 seconds but couldn’t rouse Mr. Osbourne. The car’s engine was on, but Mr. Sipione did not note that it was in gear. He called police.

(d) The testimony of P.C. Peters

[6] P.C. Peters arrived at around 11:48 am and saw that Mr. Osbourne’s car was properly occupying a parking space on Spadina Avenue. The engine of the Kia was on. He opened one of the doors and put the car into park and turned it off. He testified to being certain that the car was in drive when he came upon it. He could not explain, however, why the car was nonetheless not moving. He woke Mr. Osbourne and arrested him. Mr. Osbourne smelled of alcohol and stumbled slightly after the officer removed him from the car.

[7] P.C. Peters did not recall whether Mr. Osbourne had his seatbelt on. The driver’s seat was in a reclined position.

[8] Upon doing an inventory of the contents of the trunk of the Kia P.C. Peters found a bag of woman’s clothing.

(e) The testimony of Mr. Osbourne

[9] According to Mr. Osbourne he was on his way home late in the evening of February 5, 2019 when he decided to drop by a strip club where he met an exotic dancer, whose name he does not recall, and decided to leave the club with her. After spending approximately three hours there, and after drinking only one bottle of Heineken beer, they left together with him at the wheel.

[10] At her suggestion they went to an after-hours club on Spadina Avenue. It was decided that they would continue their date at the after-hours club and that she would drive them somewhere when they were done. He assumed that they would be going to a hotel.

[11] They arrived at the after-hours club a short time before 3 am. He parked the Kia on Spadina Avenue. While at the club they both played pool and poker. He drank a fair amount of whiskey. He did not see his date drinking.

[12] At approximately 9 am he went to warm up the car, assuming she would soon join him to drive them away. Realizing he had left his phone inside the club, he tried to return to get it, but he was refused entry. He returned to the Kia. Having no phone, he could not call his date, so he got in the driver’s seat, started the car, reclined the driver’s seat and went to sleep while waiting for her to arrive. He did not put his seatbelt on. Next thing he knew, he was awoken by P.C. Peters.

[13] Mr. Osbourne admits he started the car’s engine but denies having put the car in gear. He said he had no intention of driving the Kia because he realized he was too drunk to drive.

C. ANALYSIS

(a) Introduction

[14] Counsel agree that the legal analysis in this case involves two distinct steps.

[15] First, I must determine whether Mr. Osbourne has convinced me, on at least a balance of probabilities, that when he stepped into the Kia it was not for the purpose of setting the car in motion.

[16] Defence and Crown agree that if Mr. Osbourne has failed to do so, he must be convicted.

[17] If Mr. Osbourne has met that burden, I must then decide whether the Crown has proved beyond a reasonable doubt that Mr. Osbourne was operating the Kia by virtue of being in care or control of the vehicle.

[18] I shall set out my findings of fact and my assessment of the credibility and reliability of the witnesses’ testimony as I deal with the legal issues.

(b) Is Mr. Osbourne presumed to have been operating the Kia?

[19] Because the accused was found in the driver’s seat that morning, pursuant to s. 320.35 of the Criminal Code the law creates a rebuttable presumption that he was operating his vehicle. That section reads as follows:

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

[20] Where there is evidence that satisfies me on a balance of probability that Mr. Osbourne did not occupy the driver’s seat with the intention of putting the Kia in motion, the presumption is rebutted. R. v. Boudreault, 2012 SCC 56, [2012] S.C.J. No. 56; R. v. Whyte, [1988] S.C.J. No. 63; R. v. Hatfield, [1997] O.J. No. 1327 (C.A.) at paras. 19, 27.

[21] The most significant discrepancy amongst the witnesses’ accounts arises on the issue of whether Mr. Osbourne put the car in gear.

[22] I start by noting that counsel for both parties agree that if Mr. Osbourne did put the car in gear, the presumption that Mr. Osbourne was operating the car is unrebutted. In fact, it would be confirmed.

[23] There are three distinct versions of events. Mr. Ince says that Mr. Osbourne put the car in reverse. P.C. Peters is sure it was in drive. Mr. Osbourne says he never took the car out of park.

[24] All three accounts suffer from certain weaknesses. First, Mr. Osbourne’s account is that of someone who was considerably intoxicated on the day in question. I also question the reliability of P.C. Peters’ account. If he had indeed come upon the car in drive, with its engine running, I think he would have naturally asked himself why the car wasn’t moving. Was the emergency brake engaged? Was Mr. Osbourne’s foot on the brake pedal? Yet, he testified that he didn’t turn his mind to the issue. As for Mr. Ince’s account, it is contrary to both Mr. Osbourne’s and P.C. Peters’ account. It also suffers (as does P.C. Peters’ account) from the fact that the car wasn’t moving, which one would expect, whether the car was in drive or reverse.

[25] In the end I am unable to draw any conclusion as to whether the car was in gear.

[26] Even though I do not accept Mr. Osbourne’s evidence as to the status of the transmission, I did find him to be generally credible. Notwithstanding his intoxication, and its impact on his reliability, (which he was very frank about), I am satisfied on his evidence, in the context of the rest of the evidence, that Mr. Osbourne did not enter the vehicle for the purpose of moving it. The fact that the seat was reclined, and that the car was not in fact moved supports Mr. Osbourne’s testimony that he intended to sleep in the car while waiting for his date. The presence of women’s clothing in the car, and Mr. Ince’s observations of Mr. Osbourne going into the after-hours club also lend support to Mr. Osbourne’s testimony.

[27] The presumption is rebutted.

(c) Was Mr. Osbourne in care or control of the Kia?

[28] Notwithstanding the rebuttal of the presumption, I must nonetheless inquire as to whether the Crown has proved beyond a reasonable doubt that the accused was in care or control of the Kia at the relevant time and thus, pursuant to s. 320.11, operating the vehicle.

[29] The test for care or control was articulated by Fish J. in Boudreault, supra at para. 9 as follows:

…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.

[30] Counsel for both parties agree that the first two legs of this test have been established on the evidence. Mr. Osbourne’s ability to operate his car was impaired by alcohol and he intentionally climbed into the driver’s seat, started the car, and fell asleep. The fundamental issue in dispute is whether the Crown has proved that the circumstances created a realistic risk of danger to persons or property.

[31] In the absence of an intention to put the vehicle in motion, a realistic risk of danger to persons or property can arise in several ways. As Fish J. explained in Boudreault, supra, at para. 42:

In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

[32] In order to determine whether this test has been met I must examine all the circumstances surrounding the incident. In R. v. Szymanski, [2009] O.J. No. 3623 (Sup. Ct.) at para. 93, Durno J. set out a non-exhaustive list of factors to consider:

• The level of impairment. R. v. Daines, [2005] O.J. No. 4046 (C.A.), R. v. Ferguson, 15 M.V.R. (5th) 74 (S.C.J.), R. v. Ross 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.
• Whether the keys were in the ignition or readily available to be placed in the ignition. Pelletier, supra.
• Whether the vehicle was running. R. v. Cadieux, [2004] O.J. No. 197 (C.A.)
• 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.)
• Whether the accused had reached his or her destination or if they were still required to travel to their destination. Ross, supra.
• The accused's disposition and attitude R. v. Smeda (2007), 51 M.V.R. (5th) 226 (Ont. C.A.)
• Whether the accused drove the vehicle to the location of drinking. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)
• 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.
• 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.
• Whether the accused had a stated intention to resume driving.
• 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.)
• Whether the accused was wearing his or her seatbelt. Pelletier, supra.
• Whether the accused failed to take advantage of alternate means of leaving the scene. Pelletier, supra.
• Whether the accused had a cell phone with which to make other arrangements and failed to do so. Cadieux, supra.

See too, R. v. Smits, 2012 ONCA 524

[33] After considering all the evidence, and the factors set out above, where relevant, it is my opinion that Mr. Osbourne’s conduct that day did indeed create a realistic risk of danger to persons or property.

[34] When examining Mr. Osbourne’s decision to sleep in the running vehicle through the lens of the test set out above, it is apparent that his conduct was dangerous. He drove to the scene, the car was running, he was considerably intoxicated, and the car was at the side of a busy travelled road and an urban sidewalk. The plan that had been put in place (for his date to drive them away) was not a reliable one, he was in the driver’s seat, was the sole occupant and had no cell phone.

[35] The fact that I accept almost all of Mr. Osbourne’s testimony does not exonerate him. Notwithstanding his good intentions, his conduct created a realistic risk of danger to the public. This risk of danger was, more particularly, a risk that he might change his mind and decide to drive while impaired, or that he might inadvertently set the car in motion.

[36] As the caselaw makes clear, a “realistic risk of danger” is a low threshold. The risk need not be probable, serious or substantial: R. v. Boudreault, supra at paras. 34 – 35, 48. To be drunk behind the wheel of a car in circumstances such as those in this case is inherently dangerous, and as a result, as Fish J. notes at para. 45, “anyone found inebriated and behind the wheel with a present ability to drive will - and should - almost invariably be convicted”.

D. CONCLUSION

[37] In the result I find the accused guilty of impaired operation of a conveyance.

Released on February 3, 2021

Justice Russell Silverstein