ONTARIO COURT OF JUSTICE

CITATION: R. v. Panech, 2022 ONCJ 25

DATE: 2022 01 19

COURT FILE No.: Brampton 20-6700

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SUKHDEEP PANECH

Before Justice P.T. O’MARRA

Heard on November 29, 30, and December 1, 2021

Reasons for Judgment orally released on January 19, 2022.

M. Bayat................................................................................................ counsel for the Crown

S. Tadeo.................................................... counsel for the defendant Sukhdeep Panech

P.T. O’Marra, J.: (Orally)

Introduction:

[1] On July 11, 2020, Mr. Panech was charged with impaired operation and excess blood alcohol, contrary to sections 320.14(1)(a) and 320.14(1)(b) of the Criminal Code. The Crown elected summarily. Mr. Panech pleaded not guilty. The trial proceeded over three-days.

[2] The Crown called the following witnesses: Sgt. Kyle, the first officer on scene, Constable Bawa, the arresting officer, Constable Brar, the qualified breath technician and Dilraj Kaur a resident that lived close to the accident. Mr. Panech testified in his own defence. He denied that he ever drove Mr. Cheema’s vehicle that night. The defence called, his spouse’s friend, Teljinderpal Kaur, and his spouse, Gurjeet Kaur.

[3] There were three voir dires conducted in this matter. The parties agreed that the evidence would apply to the trial proper. I ruled previously that Mr. Panech’s utterances to Sgt. Kyle at the roadside and to Constable Brar inside the breath room were voluntary. I dismissed the Mr. Panech’s Charter application that alleged his right to counsel was infringed.

[4] I now turn to an overview of the evidence and the circumstances.

[5] On July 11, 2020 at approximately 2:53 am the peel police received a 911 call from Dilraj Kaur regarding a “suspicious person.” She reported to the police that an unknown east Indian male had attended her front door of her house located at 138 Benhurst Cres in Brampton. The information that was transmitted to officers was that he had a slim build wearing a white t-shirt, approximately 35 years old. He wanted her to call the police, despite holding a cellphone in his hand. He claimed that he was driving a car and fell asleep and in so doing drove into a ditch. He was described as possibly intoxicated.

[6] Sgt. Lyle arrived almost immediately. He drove north bound on Veterans drive on his way to the complainant’s house. However, just off Veterans Drive he observed a small vehicle stuck in a mud filled ditch approximately 15 feet below the road. He exited his cruiser and could see an East Indian male wearing a black shirt seated in the driver’s seat trying to get the vehicle out of the ditch. He noticed that this male was not dress as was described on the call regarding the suspicious male. The unknown male got out of the car and pointed towards Mr. Panech as he was walking towards the sergeant with two East Indian females. Mr. Panech was wearing a white t-shirt that was worn inside out and backwards with the tag located just below his chin. He was wearing blue jean shorts and covered in mud.

[7] Sgt. Lyle asked Mr. Panech what happened and if anyone was injured. Mr. Panech responded that he was the driver and that he stopped driving as he did not want to drive any further.

[8] Sgt. Lyle’s priority was to determine if anyone was injured given there was car in the ditch and multiple parties were in the vicinity.

[9] Sgt. Lyle testified that since there was conflicting description of the driver, a concern for language comprehension and understanding, at this point he was not criminally investigating Mr. Panech. His first thought was to determine the level of injuries, if any, and who were the parties involved.

[10] Sgt. Lyle advised Mr. Panech that he was being detained and investigated for impaired operation following his limited observations and interaction with Mr. Panech. He was turned over to PC Brar who had arrived on scene.

[11] Although he did not note in his notebook, Sergeant Lyle told Mr. Panech not to say anything further and that he could call a lawyer later. Sergeant Lyle did not read from his notebook any caution or the right to counsel.

[12] Sgt. Lyle testified that that Mr. Panech could speak English and seemed more comfortable to say something in English, as the two females did not say anything.

[13] PC Brar arrived at 2:56 am. She had received the same information as Sgt. Lyle regarding the description of the suspicious person.

[14] PC Brar was briefed by Sergeant Lyle. Mr. Panech was identified, and she identified the registered owner of the inoperable vehicle as Mr. Cheema. She made observations that Mr. Panech wore a white t-shirt, and blue jean shorts. She was told that he admitted to being the driver. She observed that he was covered in mud, had the strong smell of alcohol on his breath. He had difficulty standing and needed to support himself on a cruiser. He stuttered his words and had glossy eyes.

[15] At 3:12 am, he was arrested for impaired operation by Constable Brar.

[16] At 3:14 am, she read to Mr. Panech his right to counsel which he understood. Mr. Panech indicated that he wished to speak to a lawyer.

[17] At 3:17 am, PC Brar read the criminal caution to Mr. Panech, which he understood.

[18] During this time Mr. Panech complained that an officer had struck him in his neck area and that he was being discriminated against by the police. He repeatedly swore at the officer telling her to “fuck off” especially when she was advising Mr. Panech what the next steps were.

[19] PC Brar did not observe any injury to Mr. Panech’s neck.

[20] They left the scene at 3:27 am and arrived at 22 division at 3:44 am.

[21] At 3:49 am, duty counsel was called.

[22] At 4:11 am, duty counsel called back.

[23] At 4:16 am, Mr. Panech finished speaking to duty counsel.

[24] At 4:18 am, Mr. Panech was turned over to PC Bawa, the qualified Intoxilyzer technician.

[25] Mr. Panech was provided with the primary and secondary cautions, which he confirmed that he understood.

[26] While waiting to perform the tests Mr Panech made the following statements to Constable Bawa:

“I was travelling with a friend”

“I was driving and no problem”

“We drink a couple of beers”

“I drank a lot of beer, two or three”.

“I went next door and asked them to call the cops”

“Cheema and he is the owner”

“We came to Niagara Falls”

[27] During this conversation, Mr. Panech thoughts were jumbled and confused. At times he would cry. He stated at other times that Mr. Cheema was driving but did not want to get involved as he was not a Canadian citizen. When asked who was in the car he responded: “Balpreet (Mr. Cheema) and a female.” He repeated that he was not the driver but wanted to take responsibility. After the vehicle went into the ditch it was stuck in the mud. Mr. Panech told the police that he entered the driver’s seat and tried to drive the car out as Mr. Cheema pushed, but the tires just kept spinning.

[28] At 4:44 am the first sample of Mr. Panech’s breath was taken and registered a reading of 150 milligrams of alcohol in 100 millilitres of blood. The second sample was obtained at 5:07 am and registered a reading of 160 milligrams of alcohol in 100 millilitres of blood.

[29] Mr. Cheema’s vehicle needed to be towed from the ditch.

[30] Dilraj Kaur lived near the location of the accident at 138 Benhurst Crescent in Brampton. She testified that during the early morning hours on July 11, 2020, Mr. Panech rang her doorbell. He told her that his car was in the ditch and asked her to call 911 even though he was holding a phone in his hand.

[31] Ms. Kaur testified that she called 911. She recalled that Mr. Panech wore a white t-shirt and jeans.

[32] In cross-examination, she testified that Mr. Panech never admitted that he was the driver. She could not see the vehicle from her house.

[33] Tajinderpal Kaur testified on behalf of Mr. Panech. She is married to Davinder Singh. She is also a friend of Mr. Panech’s wife, Gurjeet Kaur.

[34] Ms. Tajinderpal Kaur testified that at approximately 2:10 am she received a call from her friend, Gurjeet Kaur advising her that Mr. Panech’s vehicle was stuck and asked if she could she get a ride to the location. They arrived at 2:50 am. They found Mr. Panech on the road speaking to a male seated in another car. She could see two other persons looking at the unoccupied stuck car. Approximately 3 or 4 minutes later the police showed up and arrested Mr. Panech.

[35] Ms. Tajinderpal Kaur did not speak to Mr. Panech. She testified that the men near the car and Mr. Panech wore a white shirt. She identified the two men as her husband and Mr. Cheema.

[36] In cross-examination, Ms. Tajinderpal Kaur testified that two of the three men wore white shirts with long sleeves, and one was wearing a white undershirt.

[37] She also claimed that even though her husband was present she did not talk to him.

[38] Mr. Panech’s wife, Gurjeet Kaur testified that once her husband called her, she immediately called Tajinderpal Kaur for help. She confirmed that upon their arrival she saw her husband conversing with another man through his car window. She did not know who he was. She witnessed her husband’s arrest.

[39] She was aware that her husband was out that evening with Mr. Singh and Mr. Cheema. She saw Mr. Cheema and Mr. Singh walking around the stuck vehicle.

[40] Ms. Gurjeet Kaur testified that all three men wore white t-shirts. Mr. Cheema was wearing an undershirt and a vest.

[41] She confirmed that she never saw her husband occupy the driver’s seat.

[42] Mr. Panech testified in his own defence. He claimed that evening at approximately 6 or 7 o’clock he was picked up from his house by Balpreet Cheema and Davinder Singh. All three went to Mr Cheema’s house to drink. He drank a few beers and then speculated that one of his friends gave him “some hard drink.” He did not remember very much about the evening other than waking up in the back seat of Mr. Cheema’s car stuck in a ditch.

[43] After he woke up, he left the car and went to get help. When he left Mr. Cheema and Mr. Singh tried to get the car out of the ditch. He confirmed that he attended Ms. Dilraj Kaur’s house and asked to call the police. Upon his return to the scene he encountered a man that had stopped in his car. He asked the stranger for assistance. At the point his wife and Ms. Taljinderpal Kaur arrived. A few minutes after that the police arrived and arrested him.

[44] Mr. Panech recalled that Mr. Cheema was driving and that “maybe we were going to Niagara Falls or he was going to drop me at my home.”

[45] Mr. Panech testified that he after he woke up, he called his wife. But he could not call 911 as his phone had either fallen in the mud or had “frozen.”

[46] When he was arrested, he claimed that Sgt. Kyle only asked him if he had called 911.

[47] Mr. Panech maintained that he did not drive Mr. Cheema’s vehicle that night nor did he ever possess the car keys. He confirmed that after his release from custody later that morning the car keys were not given to him.

[48] Mr. Panech was cross-examined extensively on his statements to Constable Bawa in the breath room. If there were any discrepancies between his testimony and his statements to the police, he often claimed that he was confused, nervous, intoxicated or not in his full senses, his mind was not working properly, when he spoke to Constable Bawa. But he was not confused about the fact that he never drove the car.

[49] Mr. Panech disagreed that he was in the car with Mr. Cheema and another female that evening despite what he told Constable Bawa.

[50] In cross-examination, Mr. Panech was adamant that he never occupied the driver’s seat to get the vehicle out of the mud. However, in his statement to the police he told Constable Bawa that at first, he pushed the car, then he and Mr. Cheema switched positions and then he jumped into the driver’s seat and Mr. Cheema started to push the vehicle. But the rear wheels just kept spinning and slipping.

Analysis:

Findings of Credibility:

[51] The principles in R. v. W (D) are applicable in this case.

[52] If, I believe Mr. Panech’s evidence, I must find him not guilty.

[53] Even if his evidence leaves me with a reasonable doubt regarding any essential element of the alleged offences, I must find him not guilty.

[54] Finally, even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.

[55] In determining this, I must keep in mind that Mr. Panech, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely, it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities."

[56] This is a tough standard and it is so tough for very good reason. As Cory J. said in R. v Lifchus:

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted.

[57] The case against Mr. Panech depends on my assessment of his evidence, his witnesses, and the Crown witnesses.

[58] In that regard I note the differences between credibility and reliability. Credibility relates to a witness's sincerity, whether he or she is speaking the truth as he believes it to be. Reliability relates to the actual accuracy of his testimony. In determining this, I must consider his or her ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.

[59] Mr. Panech’s evidence did not leave me in a state of reasonable doubt. I found his testimony in direct conflict with the many statements that he made to Constable Bawa. His responses in cross-examination were tantamount to a complete disavowment of anything that he said to the police unless it hurt his defence. For example, he denied several times that he did not drive and remembered telling the officer that several times. However, when he was confronted over his statement that he was with Mr. Cheema and a female that evening and that they drove to Niagara Falls, he said that he was confused and nervous. But I found his testimony incredulous when he added a third male to the scene, Mr. Singh. Sgt. Kyle only observed two males and a female which included Mr. Panech. Furthermore, it was speculative that Mr. Panech simply forgot or mixed up pronouns when he told Constable Bawa that he was with Mr. Cheema and a female that evening, and left out Mr. Singh.

[60] His assertion that he never occupied the driver’s seat was in stark contrast to his statement Constable Bawa that he jumped into the driver’s seat to in order to drive the car out of the ditch while Mr. Cheema pushed. He admitted that his foot was on the gas pedal, and the wheels were spinning.

[61] Overall, I found Mr. Panech a dishonest and untruthful witness. His repeated assertions did not make sense regarding his confusion and nervousness over his conversation with Constable Bawa. During his testimony he claimed that he did not know what he was saying to Constable Bawa. However, Mr. Panech spoke in English to Constable Bawa for approximately 70 minutes and not once did I observe Mr. Panech state that he was confused during his interaction. He was asked several times by Constable Bawa if he needed an interpreter. He responded “no” each time.

[62] I can accept that Mr. Panech may have not remembered small details regarding the evening, but his memory lapses as to what he said to Constable Bawa were over significant and important details.

[63] I accept Sgt. Kyle’s testimony that when he was approached by Mr. Cheema that he admitted to driving the vehicle but became tired and pulled over. I have no reason to disbeliever Sgt. Kyle’s evidence.

[64] I found Ms. Taljinderpal Kaur and Gurpreet Kaur’s testimony quite unhelpful. They were not direct witnesses of anything relevant to the index offences. They both arrived after just before Mr. Panech’s arrest. Their evidence added only confusion regarding the number of people that were in the vicinity by the time the police arrived. I accept Mr. Panech’s original statement to the police that he was with Mr. Cheema and a female party that evening. Both witnesses added Mr. Singh and the stranger in a car to the equation. Two people that Mr. Panech never mentioned to Constable Bawa.

[65] Both witnesses claimed that the Mr. Panech, Mr. Cheema, and Mr. Singh wore white shirts that night. In my view, this was suggestive that any one of the men that wore a white shirt could have been the person that attended Mr. Kaur’s house and asked her to call 911. However, Mr. Panech admitted that he was the person that attended Ms. Kaur’s residence. I am not clear what purpose was served with the clothing evidence.

[66] As a finding of fact, I am satisfied that Mr. Panech did at one point occupy the driver’s seat to extricate the car from the ditch. Counsel acknowledge that Mr. Panech was impaired by alcohol. The question then becomes whether or not Mr. Panech by occupying the driver’s seat engaged the presumption set out in section 320.35 of the Code.

[67] The defence submitted that the Crown had not proven beyond a reasonable doubt that Mr. Panech was the driver at any point. Alternatively, if I find that he was the driver, at any point, or that he had care or control of the vehicle, the vehicle was inoperable.

Did the Crown prove beyond a reasonable doubt that while his ability was impaired by alcohol Mr. Panech was operating or had care or control, of the vehicle?

[68] Since I raised the issue in submissions of the Crown not establishing a specific time of driving, I feel a need to address it.

[69] The s. 254(3) three-hour limit, “a person … at any time within the preceding three hours has committed an offence …” has been removed from the current demand section. The section now requires reasonable grounds to believe a person has operated a conveyance while impaired by alcohol or drug or over the prescribed BAC/BDC.

[70] Under the new regime, the Crown is no longer required to prove a driver's blood alcohol level at the time of driving. What the Crown must now prove is that the driver's blood alcohol level is equal to or over .08 within two hours of driving. This change made the presumption of identity redundant.

[71] The Crown can rely on section 320.31(4) if the first sample was taken more than two hours after the person has ceased to operate the vehicle. In order to rely upon this section, the time of driving has to be established. In the case here, the first sample was taken at 4:44 am. The call for service due to the 911 call from Ms. Kaur came over Sgt. Kyle’s on board terminal at 2:53. From Mr. Panech’s evidence after he woke up he either started to occupy the driver seat to remove the car and or he left to call for help.

[72] I have concluded based on the evidence that the accident or the cessation of operation of the vehicle occurred that I cannot be certain that it occurred within the two-hour limit. However, I am satisfied that it occurred just before 2:10 or 2:15 am. I base my conclusion on the evidence of the officers being dispatched at 2:53 am. Ms. Kaur confirmed that she made that call shortly after her interaction with Mr. Panech. Furthermore, Tajinderpal Kaur testified that Gurpreet Kaur called her at 2:10 or 2:15 am to advise that her husband was with a vehicle that was stuck in the ditch. Gurpreet Kaur confirmed that she was contacted at 2:10 or 2:15 am.

[73] Thus, the Crown can rely on the provision in section 320.31(4) which provides that where samples of breath or blood are taken more than two hours after the person ceased operating the conveyance, and the person’s BAC was ≥ 20mgs, the persons BAC is conclusively presumed to be that BAC plus an additional 5mg of alcohol per 100ml of blood for every interval of 30 minutes in excess of the two hours.

[74] Now turning to the issue of whether the Crown has established proof beyond a reasonable doubt that Mr. Panech was the driver.

[75] In this case, there was no direct witness that the Crown called to testify that Mr. Panech was the driver of the vehicle that crashed into the ditch. Mr. Panech testified that he was not the driver. However, I have rejected most if not all his evidence as he was an untruthful witness. Alternatively, he was untruthful to Constable Bawa. In his statement to Constable Bawa, he admitted he was driving, but later maintained that Mr Cheema was the driver. I prefer the evidence of Sgt. Kyle, who was told by Mr. Panech that he was the driver, and that he stopped driving as he did not want to drive any further.

[76] Counsel raised the possibility that quite likely Mr. Cheema was the driver since he was the registered owner and the keys were never located on Mr. Panech. She is correct that those are factors but, in my view, those were not strong factors that detract from Mr. Panech being the driver. The owner of the car and the absence of keys in Mr. Panech’s possession is not dispositive of the issue. There are several explanations to account for the keys not being found in his possession or perhaps the registered owner Mr. Cheema relinquished the driver seat that evening to Mr. Panech. However, this is to engage in speculation and conjecture which is prohibited. Finally, the seven self-serving proclamations that he was not the driver and Mr. Cheema was, did not bolster Mr. Panech's credibility or make his story more believable. I did not believe Mr. Panech’s evidence and I was not left in reasonable doubt by other evidence.

[77] If I am incorrect in my analysis that the Crown has proven beyond a reasonable doubt that Mr. Panech was the driver, in the alternative, I am satisfied beyond a reasonable doubt that he was in care or control of the vehicle based on his own admission to Constable Bawa that he occupied the driver’s seat in order to extricate the vehicle from the ditch. Thus, I find that the presumption of operation is engaged.

[78] Section 320.35, sets out the presumption of operation 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.

2018, c. 21, s. 15

[79] The presumption is engaged when the accused first occupies the driver's seat, not when the police arrive later. The mens rea and actus reus of the offence are complete at that time. The purpose of the legislation is to discourage intoxicated persons from even occupying the driver's seat. See: R. v. Szymanski, 2009 45328 (ON SC), [2009] O.J. No. 3623, at paras. 35-42 (S.C.J.).

[80] The presumption may be rebutted by showing on the balance of probabilities that the accused had no intention of setting the vehicle in motion. The accused is not required to rebut all other potential risks at that stage. The risk of danger remains relevant, not for the purpose of rebutting the presumption but for determining whether the accused was in actual care or control. See: R. v. O'Neill, [2016] O.J. No. 2180, 2016 ONCA 307.

[81] The essential elements of “care or control” are:

• an intentional course of conduct associated with a conveyance;

• by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;

• in circumstances that create a realistic risk of danger to persons or property. See: R. v. Boudreault, [2012] S.C.J. No. 56, at para. 33, 2012 SCC 56.

[82] The Crown may prove operation via “care or control” three ways:

(1) Prove that the accused was driving and thus in care or control.

(2) Prove that the accused occupied the driver's seat of the vehicle triggering the presumption of operation by care or control subject to rebuttal by the defence.

(3) Prove that the accused had care or control of the vehicle in circumstances that posed a risk of danger. See: R. v. Agyemang, [2014] O.J. No. 5047, at para. 40, 2014 ONSC 4232.

[83] The risk of danger must be realistic and not just theoretically possible, but nor need the risk be probable, or even serious or substantial. To require that the risk be “realistic” is to establish a low threshold consistent with Parliament's intention to prevent a danger to public safety. To require only that the risk be “theoretically possible” is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct. See: Boudreault, at paras. 34-35.

[84] The care or control offence captures a wide ambit of dangerous conduct: Anyone who is intoxicated and, in a position, to immediately set the vehicle in motion faces conviction on those facts alone. See: Boudreault, para. 46.

[85] “Anyone found inebriated and behind the wheel with a present ability to drive will – and should – almost invariably will be convicted. It hardly follows, however, that a conviction in these circumstances is, or should be, ‘automatic'. A conviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case.” A 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 evidence tending to prove that no realistic risk of danger. See: Boudreault, paras. 45-48.

[86] The Crown argues that Mr. Panech has not rebutted the presumption. On the other, Ms. Tadeo argues that Mr. Panech did not have care or control of the vehicle as the circumstances were such that he did not pose a risk or danger. She relies on the third branch set out in the Boudreault decision. The vehicle was inoperable because it was stuck in the ditch and needed to be towed out. Specifically, counsel pointed to Sgt. Kyle’s testimony that when he observed the stranded vehicle there was “no chance that the car would be able to get out of the mud.” Furthermore, Mr. Cheema and Mr. Panech’s efforts to push the vehicle out was further evidence of vehicle’s inoperability.

[87] I agree with the Crown that Mr. Panech did not rebut the presumption through his trial testimony. He told Constable Bawa that when he entered the seat his intention was to drive the vehicle out of the ditch, while Mr. Cheema pushed. He placed his foot on the gas pedal and the vehicle was sliding and the wheels were spinning. Therefore, If the accused does not rebut the presumption, the court need not consider whether the vehicle was operable. The risk of danger is not an element of care or control the Crown must establish where the Crown relies on the statutory presumption to prove care or control. See: R. v. Hayes, [2008] N.S.J. No. 100, at para. 26, 2008 NSCA 23; R. v. Amyotte, [2009] O.J. No. 5122 (S.C.J.) and R. v. Ferguson, 2005 1060 (ON SC), [2005] O.J. No. 182, at para. 13 (S.C.J.).

[88] I also disagree with counsel’s characterization that vehicle was inoperable. The vehicle was operating, the engine worked, the tires were rotating, and accelerator was engaged. The more accurate depiction was that the vehicle was immovable since it was stuck in the ditch, but that did not render the vehicle as inoperable.

[89] In the Amyotte decision, the accused while impaired, was located in the driver’s seat talking on the cell phone. The truck was stuck on the side of a hill and wedged against a tree. The tires were dug down pretty well against the tree, leaving "the vehicle inoperable in terms of getting it out at that spot" according to the investigating officer. The engine was not running, and the keys were in the ignition with the radio on.

[90] Justice Durno wrote at para. 102 the following,

Unless an inoperable vehicle "defeats" the presumption or in itself precludes a finding of care or control, the onus was on the appellant to establish that he probably did not occupy the seat for the purpose of setting the vehicle in motion. The relevant time is when he began to occupy the seat, not when the police arrived: Hatfield, supra.

[91] He commented on the importance of the accused’s intention upon entering the driver’s seat,

I agree with the appellant that there was no direct evidence what his intention was when he began to occupy the driver's seat. However, that is of no assistance to the appellant. On his account he occupied the driver's seat after the truck became stuck. He had the burden of establishing that he probably did not occupy the seat for the purpose of setting the vehicle in motion. The trial judge found as a fact that he had occupied the seat when he tried to get the truck unstuck, intending to drive if he had succeeded. On this record that was a reasonable conclusion and his statement did not rebut the presumption. There was a real risk of his driving on the trial judge's reasonable finding.

[92] In my view, Mr. Panech’s statement to Constable Bawa was very clear as what his intention was when he occupied the driver’s seat. He wanted to put the vehicle in motion.

[93] In the final analysis, Mr. Panech did not rebut the statutory presumption found in section 320.35 of the Code. Even if I accepted his statement to Constable Bawa that he was not driving the vehicle when it became stuck, Mr. Panech assumed care or control of the vehicle when he occupied the driver's seat intending to get the vehicle unstuck.

Conclusion:

[94] Since I have rejected his evidence and accepted his statement to Sgt. Kyle upon his arrival that he was the driver of the vehicle, I find that Mr. Panech is guilty of count one and count two on the information.

Released: January 19, 2022

Signed: Justice P.T. O’Marra