ONTARIO COURT OF JUSTICE DATE: 2022·04·15 NEWMARKET

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KENDRA ELLISON

JUDGMENT

Evidence and Submissions Heard: 14,15 April, 2022 Delivered: 15 April, 2022

Ms. Alice Pan .......................................................................................... counsel for the Crown Mr. Dan Lemaire ............................................................................... counsel for the defendant

KENKEL J.:

Introduction

[1] Police were called to a conservation area by a citizen concerned about a potential impaired driver. PC Vig attended and spoke to the accused who was parked on the side of the entrance road. An odour of alcohol from the vehicle led to an Approved Screening Device (ASD) test. The “fail” result led to approved instrument tests at the police station which showed that the driver Ms. Ellison had truncated blood alcohol readings of 140 mgs and 130 mgs/100ml.

[2] The submissions of counsel identify one remaining issue for decision – whether the Crown has proved operation via care or control beyond a reasonable doubt. For the reasons set out below, I find that the defence has rebutted the presumption of operation on the balance of probabilities and that the Crown has failed to prove a realistic risk of danger beyond a reasonable doubt.

Analysis

[3] Ms. Ellison testified that she drove to the conservation area with her friend Ms. Stock-Ritchie and they decided to drink wine while on a hike. She parked her car on the outside of the gates so she could drive away later after the gates closed. Her friend lived in Toronto and Ms. Ellison lived in Peterborough. Ms. Ellison couldn’t remember who suggested that they drink wine while hiking, but she happened to have wine in her car trunk. She testified that they planned to split the bottle as they knew their 7km hike would take a couple of hours. Drinking would be, “a way to de-stress” on their hike. By the time they got back to the car, “… a bottle of wine between two people, we felt that that would be ok” she explained, referring to her plan to drive Ms. Stock-Ritchie home then drive back to Peterborough.

[4] Ms. Ellison’s plan to drink and drive was plainly a dangerous one. Her blood alcohol level as measured at the station almost two hours after police found her and more than three hours after she said she stopped drinking was still 75% higher than the criminal limit. She would not have been “ok” to drive after her hike.

[5] Ms. Ellison testified that she abandoned her plan to drive during the hike as she wasn’t feeling well. They stopped the hike early to return to the car. She attributed that more to anxiety than alcohol, but her testimony as to being unwell and unfit to drive is consistent with the testimony of her friend Ms. Stock-Ritchie.

[6] Ms. Ellison occupied the driver’s seat thus engaging the s 320.35 presumption of operation. The burden is on the defence to show on the balance of probabilities that she did not occupy that seat for the purpose of setting the conveyance in motion – R. v. Whyte, [1988] SCJ No 63.

[7] Ms. Ellison testified that she entered the vehicle after the walk to call Ms. Stock-Ritchie’s aunt so the aunt could take them home. Ms. Ellison chose to sit in the driver’s seat because that was her usual seat in the car. She started the engine in order to charge her cellphone to contact the aunt. She had her seatbelt on because she does that automatically when she gets in a car.

[8] Given the amount of wine she consumed as described by Ms. Stock-Ritchie (75% of a bottle during a short time), and Ms. Stock-Ritchie’s observations of Ms. Ellison’s condition as she described at trial and set out in the text messages, I have concerns about the reliability of Ms. Ellison’s recollection. In her evidence she often referred to things she “would have” done indicating a lack of direct memory. She wasn’t able to recall the discussion about drinking wine on the hike even though it related to the central issue at trial. She plainly minimized her drinking given the evidence of Ms. Stock-Ritchie who said that Ms. Ellison consumed 75% of the bottle during an abbreviated hike. Her evidence that her condition afterwards could have been attributable as much to anxiety as alcohol wasn’t credible and appeared to be another attempt to minimize the role her drinking played in her condition.

[9] Ms. Stock-Ritchie’s text to her aunt to hurry as she was worried someone might notice Ms. Ellison’s condition and “call someone” makes no sense if anxiety or a “panic attack” were the issue. In that case presumably any help would be welcome. The whole of Ms. Stock-Ritchie’s evidence showed that what she was worried about is what eventually happened – that someone would see Ms. Ellison’s condition and her position in the car and call the police about a possible impaired driver.

[10] The Crown is correct that the text messages from Ms. Stock-Ritchie do not explicitly say that Ms. Ellison had been drinking, and do not explicitly say that the two needed to be driven home. However, the texts also mention needing a “get out of jail free card” explained as needing “little to no judgment” from the aunt and also the fear that someone observing Ms. Ellison will call “someone”. The evidence overall including those signals in the texts conveys the message that Ms. Ellison was no longer able to drive home, with Ms. Stock-Ritchie not wanting to say it was due to drinking as she was using Ms. Ellison’s phone. The aunt plainly understood that message and that’s why Ms. Stock waited for her boyfriend so he could drive Ms. Ellison’s car home from the conservation area.

[11] Ms. Stock-Ritchie consumed little alcohol that day and I find her evidence was reliable. Her testimony was credible and supported by the evidence of consistent contemporaneous messages which rebut any suggestion of recent fabrication. I accept her testimony that Ms. Ellison was unfit to drive after drinking a large amount of alcohol in a short time. I also accept her evidence that Ms. Ellison entered the car to charge her phone so that Ms. Stock-Ritchie could contact her aunt for help.

[12] The fact that the Ms. Stock arrived at the scene with her boyfriend as shown in the in-car camera video some time after 6:48 p.m. is a further circumstance consistent with the testimony of Ms. Stock-Ritchie that there was an existing plan for pickup before the police arrived. The aunt lived in Toronto and given her address she had to have left well before PC Vig first spoke to Ms. Ellison. The concrete plan not to drive was in place and acted upon by all parties before the officer arrived.

[13] As the defence has rebutted the presumption on the balance of probabilities, the court must determine whether the Crown has proved beyond a reasonable doubt that there was a realistic risk of danger in the circumstances – R. v. Boudreault, 2012 SCC 56. A realistic risk of danger is a low threshold and typically will be the only inference in cases like this one where an unfit driver occupies the driver’s seat with the engine running. See: Boudreault at para 48.

[14] The facts in this case show why relying on a driver’s estimate of when they might be fit to drive poses a risk of danger. Where a person occupies the driver’s seat and engages the engine, one of the only circumstances where that does not pose an ongoing risk to public safety is where the evidence establishes an existing, concrete plan not to drive and not to engage the fittings of the conveyance in any other way that could create a risk of danger. I’ve accepted the credible evidence of Ms. Stock-Ritchie and the credible evidence of her aunt Ms. Stock that there was such a plan in this case. Their evidence supports Ms. Ellison’s testimony on this point – that she did not plan to drive or otherwise operate the conveyance in any way that could pose a risk when she entered the vehicle after drinking.

[15] Was there a risk that Ms. Ellison might change her mind? On this point I agree with the defence that the presence of a sober passenger is relevant – R. v. Levy, 2015 ONCJ 269 at para 43. Ms. Stock-Ritchie was raised by her grandmother and her aunt because her parents were addicts. I accept her evidence as credible that as a sober person she would have prevented the person she described in the texts as being “sooooooo sicky” from attempting to drive or move the vehicle if she became impatient.

[16] The other important circumstance is that despite choosing to occupy the driver’s seat and start the engine, Ms. Ellison did in fact wait for help to arrive. She waited from 5:27 p.m. when the aunt was first contacted to 6:25 p.m. when PC Vig spoke to her. She adhered to the plan despite the delay. There was no risk of a change of mind in all of those circumstances.

[17] Ms. Ellison’s vehicle was on the side of the roadway in a space used for parking and did not otherwise pose a risk to any of the other persons in the area that day. The evidence shows it could not have unintentionally been set in motion.

Conclusion

[18] I find that the Crown has failed to prove the charge beyond a reasonable doubt. Ms. Ellison is found not guilty and the charge is dismissed.

Delivered: 14 April, 2022. Justice Joseph F. Kenkel