Ontario Court of Justice

Date: 2022-09-07 Court File No.: Windsor 19-2825

Between:

His Majesty the King

— And —

Lowhya Lako

Before: Justice S. G. Pratt

Heard on: June 14, 16, 2022 Reasons for Judgment released on: September 7, 2022

Counsel: Christina Eid, for the Crown Julie Santarossa, for the Defendant

Pratt J.:

[1] Lowhya Lako, hereinafter the Defendant, is charged with two offences: impaired operation of a conveyance and operation of a conveyance with a blood alcohol concentration equal to or greater than the legal limit. The defence argues that the Defendant’s Charter rights were violated in the conduct of this investigation and that I should exclude the evidence against him as a result. The Crown disputes the Charter violations and says the evidence obtained supports findings of guilt on both counts. These reasons explain why the Defendant will be found not guilty of both charges.

Admissions

[2] At the outset of trial, the issues of date, time, jurisdiction, identity, and the qualifications of the Intoxilyzer technician were admitted by the Defendant.

Issues

[3] There are multiple issues to be resolved in this case. They are:

1. Was the Defendant operating a conveyance when discovered by police?
2. Were any of the Defendant’s Charter rights violated in the ensuing investigation?
3. If the answer to Issue 2 is yes, what is the appropriate remedy?

Issue 1: Was the Defendant operating a conveyance when discovered by police?

[4] The Defendant was first seen by police at approximately 3:20 a.m. on the morning of November 8, 2019. Sgt. Andrew Drouillard saw a vehicle stopped on College Avenue east of that road’s intersection with Campbell Avenue. The driver’s door was open, the lights were on, and the vehicle was idling. Sgt. Drouillard drove up to the vehicle in his cruiser and honked his vehicle’s horn to get the driver’s attention. That didn’t work. He approached the vehicle on foot and saw that the driver was slouched over. He tried nudging him and calling out to him in an effort to rouse him. Eventually, the driver mumbled some slurred words and in so doing exhibited a moderate odour of alcohol on his breath. He confirmed the vehicle was his but did not respond when Sgt. Drouillard asked him to turn off the engine. Sgt. Drouillard ultimately went around to the passenger side, opened the door and turned off the engine himself. He instructed the driver to exit the vehicle. When the driver did so, he vomited 2-3 times on the ground and on himself. He said, “you don’t have to report this”. He had trouble standing and had to be assisted by Sgt. Drouillard. He was placed under arrest for impaired operation of a conveyance at 3:25 a.m.

[5] The driver was identified as the Defendant. He was cooperative but confused. Sgt. Drouillard made an extra effort to ensure he understood both his right to counsel and the breath demand. A police transport vehicle arrived to take the Defendant to the police station while Sgt. Drouillard remained behind with the Defendant’s vehicle. He spoke by telephone to a qualified Intoxilyzer technician, PC Robert Briscoe, and relayed his grounds for the demand. After the Defendant’s vehicle was towed, he returned to the police station to complete his paperwork.

[6] Impairment was not argued by the Defendant. In my view, impairment is clear. The Defendant was difficult to rouse, had a moderate odour of alcohol on his breath, slurred speech, and could barely stand without assistance. He also vomited on being awakened. When he was asked to exit the vehicle, he told the officer that he should turn off then engine first, not knowing that had already been done. I find as a fact that he was impaired by alcohol.

[7] That does not, however, end the matter. As he was not driving when found by police, the Crown must prove that he had care or control of the vehicle. The prior drinking and driving sections of the Criminal Code differentiated between “operation” and “care or control”. The current law does not. Section 320.11 defines “operate” as follows:

(a) in respect of a motor vehicle, to drive it or to have care or control of it;

[8] Section 320.35 further states:

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.

[9] It is undisputed that the Defendant was found in the driver’s seat of his vehicle. The Crown may therefore avail itself of the presumption in s. 320.35. It falls to the Defendant to establish that he did not occupy that seat for the purpose of setting the vehicle in motion. If he is able to do that, the onus shifts back to the Crown to prove he had actual care or control of the vehicle.

[10] The Defendant testified about how he came to be in the driver’s seat of his vehicle when Sgt. Drouillard found him. He said he had driven to a party at a residence on College Avenue that night. There, he drank until he was, in his words, drunk.

[11] At one point in the party his friend wanted to discuss relationship issues he was having. Not wanting to have that conversation in front of everyone, the Defendant suggested they go sit in his car and speak privately. They did. After the conversation, the Defendant fell asleep. When he woke up his friend was gone and Sgt. Drouillard was trying to rouse him.

[12] He testified to the plan he had in place that night. His primary plan was for his girlfriend to come to the party to pick him up. They would leave his car on College and pick it up in the morning. He had no intention of driving himself home that night. Had his girlfriend not shown up, he would have gone back inside his friend’s house to charge his phone and call her. Had she been unable to attend, he would have asked if he could stay over at his friend’s house and leave in the morning.

[13] He acknowledged turning the vehicle’s engine on but said it was only to keep warm.

[14] In cross-examination, the Defendant acknowledged that the party had largely wrapped up when he left but said he would still have gone back inside if he’d needed to.

[15] I find that the Defendant has rebutted the presumption found in s. 320.35. When he entered the car, it was not with the intention to set it in motion. It was a place for a private conversation with his friend, and a place to await the arrival of his girlfriend. He did not enter the vehicle with the intention of setting it in motion.

[16] The Crown must prove care or control beyond a reasonable doubt. In the case of R. v. Boudreault 2012 SCC 56, [2012] 3 S.C.R. 157 (hereinafter “Boudreault”) Justice Fish stated clearly what that means at paragraph 9:

For the reasons that follow, I have concluded that "care or control", within the meaning [page163] 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.

[17] While Justice Fish was dealing with the prior legislation, his statement has been cited with approval in cases under the new law (see: R. v. Rodriguez-Garcia [2022] O.J. No. 1226 (S.C.J.); R. v. Panech [2022] O.J. No. 281 (C.J.))

[18] The first two parts of the definition have been satisfied by the Crown. I find that the Defendant did set about an intentional course of conduct in relation to his vehicle and that when he did so he was impaired by alcohol. It is the third part of the definition that attracts my attention. Was there a “realistic risk” of danger to persons or property on the basis of the Defendant’s actions?

[19] Given that I have found he did not initially enter the vehicle with the intention of putting it in motion, the question is whether there is a realistic risk he would have changed his mind and done so. Answering this question requires an analysis of all surrounding factors (see Boudreault, supra, paragraph 50). In R. v. Ross 2007 ONCJ 59, [2007] O.J. No. 619 (C.J.), my brother Justice Duncan offered this list of relevant circumstances at paragraph 14:

• Whether the accused had been driving after becoming impaired or did he only use the vehicle as a place to sleep or wait? Earlier impaired driving might show both his continuing care and control over the vehicle, his bad judgment regarding his fitness and his willingness to break the law.
• Whether the accused had reached his ultimate destination or did he still have to get somewhere, somehow, sometime?
• Whether the accused was slightly, moderately or highly impaired? This might relate to the likelihood of his exercising bad judgment, the time it would take to become fit and the likelihood that he would be presented with an opportunity to change his mind in that period.
• Whether the accused had in place a plan that would enable him to get home without driving?

[20] Justice Durno, sitting as a Summary Conviction Appeal Court in the case of R. v. Szymanski, [2009] O.J. No. 3623 (S.C.J.) offered the following at paragraph 93:

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, [2005] O.J. No. 4046 (C.A.), R. v. Ferguson (2005), R. v. Ross (2007), 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.

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, [2004] O.J. No. 197 (C.A.)

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] A.J. No. 1272 (Q.B.)

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), 51 M.V.R. (5th) 226 (Ont. C.A.)

g) Whether the accused drove the vehicle to the location of drinking. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)

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] A.J. No. 811 (C.A.), R. v. Gill (2002), 33 M.V.R. (4th) 297 (S.C.J.) 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, [2000] O.J. No. 848 (C.A.)

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.

n) Whether the accused had a cell phone with which to make other arrangements and failed to do so. Cadieux, supra.

[21] I note the following from the Defendant’s evidence:

1. He did not start drinking until after he arrived at the party;
2. He had a plan that his girlfriend would pick him up and they would retrieve his car the next day;
3. When he entered his car after drinking, it was to have a private conversation with his friend;
4. He turned the engine on only to keep warm;
5. Had his girlfriend not shown up, he had a backup plan to go back into the residence where he’d been, charge his phone, and call her;
6. Had she turned out to be entirely unavailable, he would have asked the residents if he could stay the night.

[22] Further, there is no evidence that he ever moved the vehicle after he started drinking. There is likewise no evidence that he was wearing his seatbelt when found by Sgt. Drouillard. Given the plan he had in place, he had reached his destination when he arrived at the party; he was not looking to drive anywhere else that night.

[23] I have assessed the Defendant’s credibility. I find him to be a candid, polite witness. That he would have what is effectively a multi-pronged plan to deal with his intoxication that night suggests strongly that he was unlikely to abandon responsible thinking and drive himself home.

[24] Without question, there is the possibility that if he had awakened in the vehicle he might have chosen to drive. That, however, is not the test. Is there a realistic risk that he posed a danger to persons or property? Is there a realistic risk he would have driven?

[25] Based on all the evidence, I find there was no such realistic risk. The Defendant had a clear plan in place to be picked up that night. But for the need for privacy with his friend, there’s no indication he would have returned to his vehicle at all after drinking. Despite his obvious impairment, I find that the risk of him changing his mind and driving does not rise beyond the level of possibility. At the relevant time, the Defendant was not in care or control of his vehicle as defined in Boudreault, supra.

[26] The answer to Issue 1 is no.

Remaining Issues

[27] The remaining issues in this case deal with the Charter application and its effect on the evidence admitted at trial. Given my finding that the Defendant was not operating a conveyance when discovered by police, it is not necessary for me to address them. The charges before me are all predicated on the Defendant operating a conveyance. As he was not, the charges must be dismissed.

[28] I have considered that the wording of s. 320.14(b) allows for the possibility of a conviction when a person’s blood alcohol concentration is in excess of the legal limit “within two hours after ceasing to operate a conveyance”. The evidence is that he arrived at the party at approximately 7:00 p.m. He was discovered by Sgt. Drouillard at 3:20 a.m. While simply getting into the driver’s seat might trigger a reasonable expectation that he may have to provide a sample of his breath, he was well outside the two-hour limit set by Parliament.

[29] The Defendant will be found not guilty of both charges.

Released: September 7, 2022 Signed: Justice S. G. Pratt