Ontario Court of Justice

Date: June 6, 2022 Court File No.: Newmarket 2100731

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TARIQ HANSRAJ

Before: Justice David S. Rose

Heard on: May 10, 16, 2022

Reasons for Judgment released on: June 6, 2022

Counsel: T. Hamilton, for the Crown H. Spence, for the defendant Tariq Hansraj

Rose J.:

Overview

[1] Mr. Hansraj is charged with 80 plus operation from 20 January 2021. The trial raises Charter Issues under ss. 8, 9, 10(b). He also argues that the Crown has not proven care or control of his car that night. My ruling focuses on the facts which speak to those issues.

Evidence

[2] PC Ramzay was on duty the night of January 20, 2021 in his police car. Just after 9pm he was in the area of Weston Road and Highway #7. He had picked up something to eat and saw two cars parked in an alley nearby. They were in a parking lot which serviced some restaurants and couple of bars.

[3] He thought it unusual. One had the lights off. He drove his car up to one and parked behind it, blocking it in so that it could not drive away. The blocked vehicle therefore had PC Ramzay’s car behind it and a parking curb in front. One of the cars had two occupants, and the other was unoccupied. He walked up to speak to the driver of the occupied car, as he testified “to confirm if he was ok to drive and there was no impairment. Maybe he was passed out?”. The vehicle lights were on and the car was running. He was pressed about why he approached the car and said he wanted to look into two parked vehicles to see if there was alcohol or cannabis involved. He agreed that no one in the vehicle had done anything illegal by then. As he testified, two cars parked suspiciously in a parking lot drew his attention. At that point it was roughly 9:11. In his evidence PC Ramzay said that he could stop drivers because they were in a car. The location and circumstances supported this. When asked about his authority he said it was a common law general authority.

[4] He approached the drive and asked if he had anything to drink and Mr. Hansraj said no. After that he said thank you and looked into the back seat where he saw an open 6 pack of beer. A couple of cans were open. They were tall boys. PC Ramzay spoke again to the driver and told him that he could see stuff in the back seat. PC Ramzay decided to proceed further. Ramzay told him about the beer cans he could see and asked him if he had anything drink in the last 15 minutes because he was going to have to provide a breath sample. Ramzay testified that he told Mr. Hansraj that it wasn’t a trick question because recent consumption of alcohol could affect the breath test reading. Mr. Hansraj told him that he had something to drink in the last 15 minutes. Ramzay told him that he didn’t read the formal demand at that time, but he was sure that Mr. Hansraj knew he was going to be tested for alcohol 15 minutes after his last drink.

[5] PC Ramzay testified that it was at 9:15 Mr. Hansraj said he had been drinking in the last 15 minutes. Ramzay didn’t have an ASD with him, so he asked his dispatcher to send another officer with an ASD. Ramzay didn’t know when the ASD would arrive, but PC Brennan arrived on scene at 9:29. At 9:30 PC Ramzay read Mr. Hansraj a formal ASD demand. Nothing had happened between 9:15 and 9:29. As Ramzay testified, he had to wait for the device. During this period Mr. Hansraj continued to sit in the driver seat. At 9:30 the ASD process started and Mr. Hansraj failed the test. He was arrested at 9:32. Rights to counsel were not read to Mr. Hansraj until later. Immediately after arrest Mr. Hansraj was given a pat down search and put into the back seat of PC Ramzay’s car.

[6] The dash cam from PC Ramzay’s car shows the officers on scene to be speaking with the passenger in front of his car. That took until 9:43 when PC Ramzay read rights to counsel to Mr. Hansraj. They left the scene at 9:46, arriving at 4 District Police station at 22:04. There was a delay entering the police sally port. PC Hansraj called duty counsel for Mr. Hansraj at 22:24, who called back at 22:56.

[7] The breath readings were introduced by PC Brownlee the Qualified Breath Technician. PC Brownlee did fairly routine set up, simulator, and calibration checks on the Intoxilyzer 8000C and received breath samples of Mr. Hansraj’ breath at 23:12 and 23:33. His BAC was 174 and 165 mg in 100 ml of blood at those times.

[8] Mr. Hansraj testified on the trial but not the Charter Application. He testified that he had been working the day of his arrest. He works as a mechanic at a car dealership near where he was arrested that night. His shift ended at 6pm and after that he and his co-worker Ejaaz Osman went to the beer store, bought some beer and returned to the parking lot with some tall boys around 6:30. It had been a rough day at work and everything was closed because of the pandemic. They had done that several times during the pandemic – get beers and then sit in a parking lot and drink them. He lives with his mother, aunt and uncle and his plan was to get home by either calling his uncle or an Uber. Mr. Hansraj doesn’t permit smoking or drinking in his car so he had to get out to have a smoke, which he did. From 6:30 until the police arrived at 9:15 he spent about 40 minutes outside the car, with the rest inside. He drank 7 tall boys, and testified that he wouldn’t drive with that much beer in him.

[9] Mr. Hansraj’s car was a Subaru WRX with a manual transmission. He agreed that the engine was turning over when PC Ramzay arrived. The car has a manual transmission and a hand controlled emergency brake which was engaged at the time of the incident. In order to put the car in motion the driver would have to engage the clutch, put the car in gear and release the parking brake. When the police arrived he had not decided to stay or leave. He and Mr. Osman were still deciding whether to drink more or call it a night.

[10] Mr. Hansraj agreed that drinking in a car was wrong, but he didn’t expect to get arrested. He was in no rush to get home even if he had to work the next morning at 8 am. 9:30 pm was not that late. Mr. Hansraj agreed that his decisions were impaired by alcohol and he was feeling drunk but was insistent that he never would have driven home. He agreed that his plan was to drink a couple of beers after work that day but as he got started the plan changed.

[11] Mr. Osman also testified at the trial. He confirmed much of what Mr. Hansraj testified to. He lives about a 15 minute walk from the parking lot. He parked his vehicle beside Mr. Hansraj and was sitting in Mr. Hansraj’ car drinking when the police arrived. He didn’t count the number of beers Mr. Hansraj had drank, and said that Mr. Hansraj was “a little buzzed” but not drunk.

[12] In oral and written submissions a number of issues, were identified. Many are related or overlapping:

i) Was there a detention when PC Ramzay parked his police car behind Mr. Hansraj’s at 9:15 pm? ii) Was the detention unlawful, and therefor in contravention of his rights under s. 9.10(a) of the Charter? iii) Was the demand for breath samples at the roadside made forthwith, or was the timing of the breath demand in contravention of ss. 9, 10(a) of the Charter. iv) The breath demand for Intoxilyzer samples was made without reasonable grounds, and therefore in contravention of s. 8 of the Charter; v) The failure to read rights to counsel at the roadside at 9:30 was a violation of Mr. Hansraj’s rights to counsel; vi) The failure to provide access to counsel before 22:56 was a violation of Mr. Hansraj’s rights to counsel; vii) Mr. Hansraj was in the driver seat of the Subaru when arrested but he was not in care or control, per s. 320.35, and therefore is not guilty of the charge, regardless of the admissibility of the breath readings.

First Charter Issue – Was there a detention when PC Ramzay parked his police car behind Mr. Hansraj’s at 9:15 pm?

[13] The Crown conceded that Mr. Hansraj was detained when PC Ramzay parked his car behind Mr. Hansraj. In the wake of R. v. Thompson, 2020 ONCA 264, R. v. Tutu, 2021 ONCA 805, 407 C.C.C. (3d) 137, this is a reasonable concession.

Second Charter Issue – Was the detention unlawful, and therefore in contravention of his rights under s. 9, 10(a) of the Charter?

[14] Ms. Spence argues that PC Ramzay had no individualized, or reasonable grounds to suspect that Mr. Hansraj was doing anything illegal when he detained him at 9:15. His evidence was that at 9:15 he wanted to know if Mr. Hansraj was ok to drive and there was no impairment. The lights of the Subaru were on and the engine was turning over. He said that his authority to do so was a general one under the common law. The defence argument is that there is no authority, statutory or otherwise, for the police to detain Mr. Hansraj on these facts. Mr. Hamilton argues that the detention was authorized by common law, and so there is no s. 9 violation.

[15] As a first sub-issue, I have no difficulty in finding that there is no legislative authority for the detention. Although there is only a minimal amount of evidence about the nature of the lot where initial detention occurred, I have no difficulty in finding that it was private property. Who owned it, and the basis upon which cars were permitted to park there was not established, but it is clear that the lot was neither a “Highway” under the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA), nor a private dwelling.

[16] In R. v. McColman, 2021 ONCA 382, leave to appeal allowed 2022 CarswellOnt 1159 (SCC), the Court of Appeal recently found that if the area of the detention is on private property then the random stop provision for sobriety in s. 48 of the HTA does not apply. The Court of Appeal was not unanimous on the point. In his dissent Hourigan JA disagreed with the majority on their interpretation of the scope of s. 48. He found that s. 48 does extend to private property. Nonetheless, the majority finding is binding on me, and I therefore find that the detention of Mr. Hansraj at 9:15 pm was not authorized by the HTA.

[17] In McColman the Respondent had driven onto his driveway, and thereupon been subjected to a fairly standard drinking and driving investigation including arrest and breath testing at a police station. The police had no individualized suspicion before he entered his driveway. Once he left his car he was seen to have classic indicia of impairment, but not before then. The majority in McColman found that the HTA did not authorize the police entry onto the driveway to gather evidence and then arrest him for two principal reasons. The first was because the HTA did not permit such a randomized stop, because a private driveway is not a highway in that statute, and s. 48 of the HTA was not available to the Crown. The second was that the common law furnished no authority for the detention.

[18] In argument Ms. Spence asked that I read the majority in McColman as covering not just private driveways, but all private property. The defence argument is therefore that whenever a motorist is on any private property the police must have an individualized, reasonable suspicion before detaining the motorist. In other words, there is no common law authority to detain motorists randomly on all private property. I do not agree.

[19] In McColman the majority framed the issue (at par. 48) as:

The question at issue in this appeal is whether the common law authorizes the police to conduct a random sobriety check on a private driveway, in circumstances not authorized by the HTA, where the person exited the highway after the officer decided to conduct the stop but before the officer initiated the stop, and there are no grounds to suspect that an offence has been or is about to be committed.

Emphasis added

[20] Much of the following discussion by the majority in McColman responds to that very issue, namely the police power to detain on a person’s own property. Confining the question about the common law authority to detain a motorist without individualized suspicion on their own private property is repeated throughout the ruling, see McColman at paras 60, 61, 62, 66, 76, 78 & 90. The majority finds (at par. 68) that,

Considered in light of the powers the police already have at their disposal to combat impaired driving, and the greater intrusion on liberty posed by stops on private property, I cannot conclude that the power to conduct a groundless stop on private property is reasonably necessary.

But the omission of the word “own” in paragraph 68 does not alter the question asked by the majority nor their discussion which precedes par. 68, and carries on afterwards.

[21] The basis for that finding – that an individualized suspicion is necessary to detain on a person’s own property – is grounded in the heightened privacy interest in a person’s own home going back hundreds of years and followed ever since, See McColman at par. 61. The majority concern for territorial privacy of one’s own home reflects a long standing concern by senior appellate courts. As Binnie J said in R. v. Tessling, 2004 SCC 67 at par. 14, “The midnight knock on the door is the nightmare image of the police State”. It is the heightened liberty interest in a persons own private property which drives that result, see McColman at par. 62. That outweighs society’s interest in random stops of motorists on their own land.

[22] That heightened privacy interest does not extend to parking lots which are available to the public, connected to highways which are within the jurisdiction of the HTA. In this case there is no evidence that the parking lot occupied by Mr. Hansraj as he sat in his Subaru was anything other than an open piece of pavement attached to a commercial property for which there is no effort to exclude anyone choosing to use it. Put bluntly, it was a public space, apparently owned by a private entity.

[23] There is a plethora of summary conviction appeal rulings which stand for the proposition that when the police investigate a motorist in a parking lot for sobriety concerns individualized suspicion is not required. This is grounded in the common law authority to detain. Many follow Molloy J.’s decision R. v. Dillon, 32 M.V.R. (5th) 13, in which she found that the common law power to detain extends to officers doing random sobriety checks on motorists in private parking lots available to the public. Notably, the facts in Dillon are similar, if not on all fours, with the case at Bar. Officers on general patrol stopped to investigate a car parked there and ended up arresting the driver for impaired driving. Dillon has been consistently followed, see R. v. Vander Griendt, 2015 ONSC 6644, R. v. Ndaye, 2019 ONSC 4967, R. v. Nield, 2015 ONSC 5730. In his dissent Justice Hourigan found that Dillon remained good law, see McColman (supra) at par. 138 – 142. Notably, given the prominence of Dillon in his dissent, the majority in McColman did not disagree with Hourigan JA on that point. There is simply no mention of Dillon in the majority opinion. For these reasons I find that, in law, Dillon is still binding on me.

[24] In order to make a finding in law in the circumstances, namely where there is potential ambiguity by an appellate court, a trial court must make sense of the existing lines of authority, looking for what fits best. I therefore find that when the police randomly detain a motorist in a parking lot accessible to the public no individualized suspicion is required. The common law power to detain for purposes of sobriety checks applies. If the motorist is on his or own property then the heightened liberty interest in that space elevates the situation such that the police must then have an individualized suspicion before detaining the motorist. Based on this finding, PC Ramzay had a common law authority to detain Mr. Hansraj at 9:15. His initial conversation with Mr. Hansraj was quite brief and confined to sobriety investigation of a person behind the wheel of a car whose engine was running. Once PC Hansraj was on his way back to his police car and saw the open beer in the car he had reasonable grounds to suspect that Mr. Hansraj had alcohol in his system and the detention had the legislative authority under the Criminal Code, s. 320.27.

[25] For these reasons there is no s. 9 violation when PC Hansraj blocked Mr. Hansraj in at 9:15. That limb of the Charter Application is dismissed.

Third and Fourth Charter Issues – Was the demand for breath samples at the roadside made forthwith, or was the timing of the breath demand in contravention of ss. 9, 10(a) of the Charter?

[26] Factually I accept PC Ramzay’s evidence that when he spoke with Mr. Hansraj about his alcohol consumption he told him that he was questioning him, not to trick him, but because he was going to have to provide a breath sample so he wanted to time the breath tests 15 minutes after his last drink to ensure accuracy. From that point forward Mr. Hansraj would have understood exactly what was going on, and when. There was going to be breath testing, but it had to wait until his last drink had dissipated. Given the circumstances, namely a parked car with two individuals and open beer in the back the concern about recent consumption was well founded. Everything about the scene would have suggested that Mr. Hansraj had been sitting in his car with Mr. Osman drinking beer before the police arrived.

[27] In R. v. Mastromartino, 70 O.R. (3d) 540 Durno R.S.J. outlined several factors helpful in determining the lawfulness of a delayed ASD for mouth alcohol concerns. Those factors include (at par 23): the context of the stop; what is known to the officer about the possibility of residual mouth alcohol; and the anticipated accuracy of the ASD test result. Applying those factors I have no difficulty in finding that PC Ramzay was fully justified in delaying the ASD test by 15 minutes to eliminate the possibility of residual mouth alcohol. PC Ramzay saw beer cans in the car and had an admission from Mr. Hansraj of recent consumption. Those indicia of recent consumption were sufficient.

[28] There is no statutory requirement that an ASD demand under s. 320.27(1) of the Code be made forthwith upon the officer developing a reasonable suspicion that the person has alcohol in his or her body. Nonetheless, Courts have inferred an immediacy requirement to the demand. In R. v. Quansah, 2012 ONCA 123 La Forme JA emphasised that a lawful demand under s. 254 (2), which was the predecessor to 320.27, need only comply with the language of the section. He put it this way:

28 For years this court has recognized that "forthwith", or the immediacy requirement, called for some flexibility in its interpretation. For example, s. 254(2)(b) mandates that "a proper analysis" be made and thereby "incorporates an element of accuracy": see Pierman, at para. 21. Consequently, if the circumstances dictate that a "short delay" is necessary for the officer to obtain an accurate result, the officer is justified in delaying either the making of the demand or the administration of the test after the demand: see Pierman, at para. 21.

Emphasis added

[29] I therefore find that PC Ramzay was entitled to delay giving the ASD demand until 9:30, which was 15 minutes after Mr. Hansraj admitted to recent consumption and was informed that there would be a delay in doing the ASD test. I have considered the fact that PC Ramzay did not have the ASD with him and had to call for one to be brought to the parking lot. I find that the unavailability of the ASD was immaterial to the roadside testing. If it had been there at 9:15 it would not have been used until 9:30 when the residual mouth alcohol concern had been eliminated from the procedure. The availability of the device was necessary but not sufficient for the ASD test, which could only proceed after the 15 minute wait. The arrival of the ASD caused no delay in the testing procedure.

[30] The third Charter argument is rejected. There is no Charter violation flowing from the delay in breath testing. Accordingly, I find that when Mr. Hansraj failed the ASD test PC Ramzay had reasonable and probable grounds to arrest him. It follows that the fourth Charter argument is also rejected.

Fifth Charter Argument – The failure to read rights to counsel at the roadside at 9:30 was a violation of Mr. Hansraj’s rights to counsel

[31] Factually I find that Mr. Hansraj was arrested at 9:32, but not read his rights to counsel until 9:43 a delay of 11 minutes. On the evidence before me all that happened in that time was PC Ramzay speaking with his fellow officers in front of his police car about what to do with Mr. Hansraj’ passenger Mr. Osman. Notably, Mr. Osman was not under arrest, and I accept PC Ramzay’s evidence that the police were undecided about what to do with him. None of that furnishes a justification for the delay in reading Mr. Hansraj his rights to counsel. I am therefore prepared to find that the 11 minute delay in reading Mr. Hansraj his informational component of rights to counsel resulted in a s. 10(b) violation. That limb of the Charter application is granted.

Sixth Charter Argument – The failure to provide access to counsel before 22:56 was a violation of Mr. Hansraj’s rights to counsel

[32] On the evidence before me, once Mr. Hansraj was read his rights to counsel he was taken in a police car to a police station where there was a short, 4 minute delay in the police car moving into the sally port. Once Mr. Hansraj was booked into the station PC Ramzay called Duty Counsel at 22:24, which was 20 minutes after Mr. Hansraj arrived at the police station. That was 20 minutes after PC Ramzay and Mr. Hansraj drove into the sally port at the police station. 20 minutes was therefore occupied with the booking procedure and lodging Mr. Hansraj in his cell. With those facts established there is no delay in PC Ramzay calling duty counsel at 22:24, nor is there any delay attributable to the state when Duty Counsel called back at 22:56. That 32 minute period was beyond the control of the police. There is nothing in that part of the factual narrative on which I could find a delay in implementing rights to counsel. Once Mr. Hansraj was arrested things proceeded promptly. The sixth Charter Argument is rejected.

Should the evidence of the breath tests be excluded under s. 24(2) of the Charter?

[33] Having found a violation of Mr. Hansraj’s Charter rights the question is whether the breath tests should be excluded from evidence. Applying the 3 part test from R. v. Grant, 2009 SCC 32 in parts I would find that this is not a serious Charter violation. PC Ramzay was perfectly credible in his evidence. This is an 11 minute delay in reading rights to counsel. The police conduct which attracts Charter scrutiny is his decision to participate in the decision about what to do with Mr. Osman instead of reading Mr. Hansraj the informational component. That period was brief, but PC Ramzay should have done it before the discussion in front of his police car with his fellow officers. The brevity of the delay leads me to find that this is a technical violation.

[34] In other cases I have found a pattern of Charter violations when police in York Region fail to implement rights to counsel of choice. See R. v. Nguyen, 2021 ONCJ 142 and the cases referred to at paragraph 39. I would not extend that finding to this situation. PC Ramzay failed to read Rights to Counsel until 11 minutes after arrest. That is different from the implementation failure shown in Nguyen. The first limb of the test from Grant (supra) does not pull toward exclusion of the breath tests, but rather inclusion of that evidence.

[35] The effect on Mr. Hansraj’ Charter protected interests was that for 11 minutes he did not know that he had the right to speak to a lawyer, see R. v. Rover, 2018 ONCA 745. It had no other effect on his Charter protected interests. Mr. Hansraj spoke with a lawyer before he provided his breath samples. The effect on Mr. Hansraj’ Charter protected interests was minimal. The second limb of the test from Grant (supra) also pulls in favour of admission of the breath evidence.

[36] The third limb of Grant asks what society’s interest is in the adjudication of the case on its merits. Society always has an interest in adjudication of a trial on its merits. The question is by how much? In this case the evidence is reliable breath tests in a jurisdiction which has a problem with drinking and driving. Under the circumstances the third prong of the Grant test strongly favours admission of the evidence.

[37] Based on the application of the three part test from Grant (supra) I would not exclude the breath evidence based on a 11 minute delay in reading rights to counsel at the roadside. Rather, I find that exclusion of the breath evidence would bring the administration of justice into disrepute. The breath evidence is not excluded.

Seventh Issue – Care or Control

[38] Did Mr. Hansraj get into the driver seat of his Subaru for the purposes of setting the car in motion? His evidence is that he occupied the seat for the purposes of drinking beer with Mr. Osman, and never intended to drive the car. He may have driven the car to the parking lot, but after he parked the car he got out a number of times to smoke and then re-enter the car to drink beer. As such, his evidence is that the statutory presumption of care or control does not apply.

[39] For purposes of this decision I am prepared to find that Mr. Hansraj has rebutted the statutory presumption of care or control, and the question is whether his occupancy of the driver seat presented a realistic risk of danger to public safety according to the Supreme Court’s ruling in R. v. Boudreault, 2012 SCC 56.

[40] In assessing the risk of danger analysis I find Justice Durno’s ruling in R. v. Szymanski, [2009] O.J. No. 3623 at par. 93 helpful. In that decision Justice Durno listed several factors to be examined to determine if there is a realistic risk of danger to public safety:

While perhaps easily defined, what evidence will establish or refute that real risk is not as clear. However, as recommended in Toews, cases that have dealt with the issue provide valuable assistance in determining the criteria. The following non-exhaustive list illustrates areas that have been relied upon in determining if the real risk arises.

a) The level of impairment. R. v. Daines, R. v. Ferguson, 15 M.V.R. (5th) 74 (Ont. S.C.J.), R. v. Ross, 2007 ONCJ 59, 44 M.V.R. (5th) 275 (Ont. 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.

b) Whether the keys were in the ignition or readily available to be placed in the ignition. Pelletier, supra.

c) Whether the vehicle was running. R. v. Cadieux

d) 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 ABQB 811

e) Whether the accused had reached his or her destination or if they were still required to travel to their destination. Ross, supra.

f) The accused's disposition and attitude R. v. Smeda, 2007 ONCA 496

g) Whether the accused drove the vehicle to the location of drinking. R. v. Pelletier

h) 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.

i) 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 ABCA 249, R. v. Gill para. 21, Ross, supra.

j) Whether the accused had a stated intention to resume driving. In Cadieux, supra, where the accused testified he was not driving and was waiting to sober up. The Court of Appeal held that his evidence that he would not drive until he was sober only went to weight.

k) Whether the accused was seated in the driver's seat regardless of the applicability of the presumption. R. v. Pelletier

l) Whether the accused was wearing his or her seatbelt. Pelletier, supra.

m) Whether the accused failed to take advantage of alternate means of leaving the scene. Pelletier, supra.

[41] I would consider those factors in turn:

• Mr. Hansraj admitted to drinking several beers, and to being drunk. He was buzzed, as Mr. Osman said. Even if his indicia of impairment were minimal he was drunk. That is inculpatory because his impairment impeded his higher cognitive skills, like any person impaired by alcohol.
• Here the car was on and running and it was being held immobile by two factors, the emergency brake and the fact that the surface of the pavement was level. That is inculpatory because the car needed only to have a hand parking brake released and the car put in gear to be put in motion. The car was in a state of readiness.
• The car was in a parking lot, not a highway, which is exculpatory, because it was not on a highway.
• Mr. Hansraj had not reached home. He was on his way there. This is inculpatory, because he had a general plan with three options for getting home. He might call his uncle for a ride. He might call an Uber, or if either of those didn’t work he could stay at Osman’s place. What is inculpatory is that Mr. Hansraj hadn’t reached his final destination and he had no fixed plan for getting home. What is clear to me is that he had another possibility which is his car which was there and running. He rejected that in his evidence but I would find that it was a physical possibility right in front of him.
• Mr. Hansraj was cooperative which is exculpatory. It suggests that he may not have made bad decisions. I temper this finding with another which is the very decision to use his car as a drinking spot was a bad decision. And he drove there from the beer store. This is not a case where the car was being used as a shelter from the elements, which supports a finding that the vehicle was used for an innocuous purpose. Drinking in the driver seat of a car is not innocuous.
• There is no evidence that Mr. Hansraj drove impaired. This is exculpatory.
• Mr. Hansraj had no stated intention to drive. This is exculpatory.
• There is no evidence that Mr. Hansraj failed to take the benefit of alternate means to leave the scene. This is exculpatory.
• Mr. Hansraj apparently had a cell phone with him to call his uncle or an Uber. This is exculpatory.

[42] Application of the factors from Szymanski is not a mathematical exercise. Not all are of equal weight. In this case I place more weight on the evidence that the car’s engine was running, and that Mr. Hansraj was drinking beer in the driver seat and had options for how to get home but had done nothing to implement any one of them. He had a high BAC. Those factors loom large in this trial and lead me to find, rather easily, that there was a realistic risk of danger to the public in this case his passenger Mr. Osman. It is unnecessary to identify the particular risk but I would find that there was a realistic risk that an impaired person in the driver seat of a running car with a passenger could easily have set the car in motion. All that was required was three actions: releasing the parking brake by his right hand, depressing the clutch using the pedal at his feet and putting the car in gear by means of the shifter, also at his right hand. Those are among the simplest tasks to move a car.

[43] Based on that finding I have no difficulty in finding that Mr. Hansraj was in care or control of the Subaru at 9:15 pm the night of his arrest. The Crown has proven all other elements of the offence and Mr. Hansraj is therefore convicted of the charge.

Released: June 6, 2022 Signed: Justice D. Rose