ONTARIO COURT OF JUSTICE

DATE: 2023·03·07

COURT FILE No.: Lindsay 21-0377

BETWEEN:

HIS MAJESTY THE KING

— AND —

DENNIS LEONARD

Before Justice S. W. Konyer

Heard on December 5, 2022

Reasons for Judgment released on March 7, 2023

Counsel: K. Saliwonchyk ...................................................................................... counsel for the Crown B. Fox ................................................................... counsel for the defendant Dennis Leonard

KONYER J.:

[1] Dennis Leonard is charged with having a blood alcohol concentration exceeding the legal limit within two hours of operating a conveyance, and with operating a conveyance while his ability to do so was impaired by alcohol, on August 3, 2021. I heard evidence at his trial on December 5, 2022. The matter was then adjourned at the request of his counsel in order to provide written submissions. What follows are my reasons for judgment.

[2] The Crown alleges that Mr. Leonard he was in care or control of his truck while impaired by alcohol and with a blood alcohol concentration that exceeded the legal limit. There is no dispute that Mr. Leonard was issued proper demands to provide samples of his breath for analysis by an approved screening device (ASD) and an approved instrument. There is no dispute that the device and instrument were in proper working order and were operated properly by duly qualified officers. Mr. Leonard’s identity was admitted, as were the voluntariness of several statements he made to police.

[3] Mr. Leonard raises numerous arguments, including several Charter claims. He is, of course, presumed innocent of both charges, and the onus is on the Crown to prove his guilt beyond reasonable doubt. As a Charter claimant, the onus is on Mr. Leonard to prove that his rights as guaranteed by the Canadian Charter of Rights and Freedoms were infringed. It is undisputed, however, that he was the subject of warrantless searches including the roadside ASD and subsequent analysis of his breath by an approved instrument. In those instances, the onus is on the Crown to establish the reasonableness of the searches.

[4] Mr. Leonard argues that his statements to police and the results of the breath analysis ought to be excluded as a result of numerous infringements of his Charter rights. Specifically, he claims that the police failed to inform him promptly of the reason for his detention and of his right to counsel, an infringement of his s.10(a) and (b) rights. As a remedy for these infringements, he seeks an exclusion of statements made by him to the police during this period of time – that is while he was detained and had not been informed of the reason for the detention or of his right to counsel. The statement in question, an admission of consumption of alcohol, formed the grounds for the ASD demand. Without that statement, the Crown cannot discharge its onus to prove that this warrantless search was reasonable, meaning that the roadside search of his breath samples constituted an infringement of his s.8 Charter right to be secure from unreasonable search and seizure. This unreasonable search led to his arrest, which was therefore arbitrary within the meaning of s.9 of the Charter. If the results of the ASD are excluded, then the Crown also cannot discharge its onus to prove that the subsequent warrantless search of his breath samples by way of the approved instrument was reasonable.

[5] As a result of these cascading infringements of his Charter rights, he seeks an exclusion of the results of his breath tests by the approved instrument as well as his statements to the qualified technician. If he is successful and this evidence is excluded, then the Crown will be left with no evidence on the exceed count.

[6] In the alternative, on the exceed count he argues that the breath samples analyzed by the approved instrument were not taken as soon as practicable, which is fatal to their admissibility. If he is correct, then he must be found not guilty on this count.

[7] On the impaired driving count, he makes two arguments: first, that the evidence as a whole fails to establish that his ability to safely operate his vehicle was impaired by alcohol. Second, if impairment is proven, he argues that the Crown has not proven he was in care or control of his vehicle, an essential element of the impaired driving charge.

[8] In the further alternative, if the breath test results are not excluded, he repeats his argument that the Crown has failed to prove that he was in care or control of his truck. Since this is an essential element of both counts, he must be found not guilty.

[9] The Crown’s position can be summarized as follows: Mr. Leonard was not detained within the meaning of the Charter prior to the ASD demand. In the alternative, if he was detained, his 10(a) and (b) rights were temporarily suspended as the police were making legitimate inquiries about his health or taking legitimate steps to determine whether a breath demand could be made. On the other hand, if I find that Mr. Leonard was detained and that his 10(a) and (b) rights were not suspended prior to the ASD test, the Crown concedes that the s.8 and 9 breaches claimed by Mr. Leonard are made out. However, the Crown argues that the breath test results and statements made by Mr. Leonard should not be excluded because any Charter-infringing state conduct was done without malice, the impact on Mr. Leonard’s Charter-protected interests were minimal, while exclusion of the evidence would gut the prosecution of a serious case.

[10] If the breath results and statements are not excluded, the Crown says that care and control is proven by the observations of the police coupled with Mr. Leonard’s admissions to the qualified technician that he had been driving. Impairment is proven by the physical observations of the officers together with the readings, which compel a conclusion that his impairment was caused by alcohol.

[11] Therefore, the issues I need to decide in this case are:

• Was Mr. Leonard detained by the police prior to the ASD demand?
• If he was detained, were his 10(a) and 10(b) Charter rights temporarily suspended until the ASD was administered?
• If his Charter rights were not suspended such that infringements of his s.8, 9, 10(a) and 10(b) rights did occur, should his statements to the police and the results of the analysis of his breath samples by an approved instrument be excluded from evidence?
• If the evidence is not excluded, has the Crown proven that the breath samples were taken as soon as practicable?
• If the evidence is not excluded, has the Crown proven that Mr. Leonard’s ability to drive was impaired by alcohol?
• If the Crown has proven that Mr. Leonard’s blood alcohol concentration exceeded the legal limit or that he was impaired by alcohol, was he in care or control of his truck?

In order to decide these issues, I will first review the relevant evidence. I will then return to address each issue, applying the law to the facts as I find them to be.

Summary of the evidence

[12] DC Whitefield of the OPP responded to a call of a suspected impaired driver operating a pickup truck eastbound on Highway 7 traveling towards the village of Omemee. On entering the village, he observed a vehicle matching the description of the suspect truck parked in a convenience store parking lot. The truck was backed into a parking spot and parked appropriately. He received information from witnesses confirming the identity of the truck as the one driven by the suspected impaired driver. At this point the truck was unoccupied and not running.

[13] DC Whitefield pulled his cruiser into the lot and blocked the truck in order to prevent it from leaving. He then saw Mr. Leonard leave the convenience store, approach the truck and open the driver’s door. The time was 9:27 pm. DC Whitefield was operating an unmarked cruiser and was in plainclothes, though he was wearing an OPP vest with the word POLICE embossed across the front in yellow lettering. He exited his cruiser and told Mr. Leonard to stop in order to prevent him from “proceeding away in the vehicle. He was entering in through the driver’s side, so logic would suggest that he was preparing to depart, so I just asked him to stop”: trial transcript, at p.14.

[14] DC Whitefield agreed with the suggestion that Mr. Leonard was not free to leave at this point. He intended to detain Mr. Leonard while he investigated the traffic complaint. He noted that Mr. Leonard’s movements were slow, that his eyes were unfocussed, had the appearance of an unfixed stare and were bloodshot. His skin was pale and waxlike. On speaking with him, he did not detect any odour of alcohol emanating from Mr. Leonard’s breath. Based on experience, he believed that Mr. Leonard could be experiencing a diabetic reaction to low blood sugar. He asked Mr. Leonard if he was okay, and received a response which confirmed his suspicion that he might be dealing with someone suffering a diabetic episode. Although he believed Mr. Leonard’s ability to safely operate his truck was impaired, he did not have any reason to think that alcohol was the cause of the impairment. He offered to call paramedics to check his blood sugar levels. Although he was initially reluctant, Mr. Leonard accepted this offer.

[15] Prior to calling for a paramedic, DC Whitefield asked Mr. Leonard to provide him with his truck keys because “I didn’t want him driving into my vehicle or trying to drive away”: transcript at 16. Mr. Leonard entered the driver’s seat of his truck to retrieve the keys, and initially handed a set of what appeared to be house keys to the officer. He was also asked for his driver’s licence and provided the officer with his health card. DC Whitefield testified that he wanted the licence to confirm Mr. Leonard’s identity and to see what information was available about him on police databases. At this point Mr. Leonard asked DC Whitefield why he was there. When the officer explained that he was responding to a complaint of a possible impaired driver, Mr. Leonard denied consuming any alcohol.

[16] DC Whitefield told Mr. Leonard to remain in the driver’s seat of his truck while he called for a paramedic. He did so out of concern that he might otherwise fall. DC Whitefield then returned to his cruiser, made a radio call to request an ambulance, and conducted background checks on Mr. Leonard and his truck. The time was now 9:30.

[17] At approx. 9:37, PC Lynch arrived on scene. He was the duty officer responsible for the area. He had been involved in other duties at the time of the initial traffic complaint, which was why DC Whitefield responded to the call in the first instance. On his arrival, PC Lynch took over the investigation. He received a briefing from DC Whitefield and approached Mr. Leonard, who was still seated in his driver’s seat. PC Lynch observed that he had yellow, glossy and bloodshot eyes, and that his speech was slurred. As a result, he asked Mr. Leonard if he had consumed any alcohol. Mr. Leonard told him that he had “one or two” around 2:00 pm.

[18] PC Lynch then formed a suspicion that Mr. Leonard had alcohol in his body, and that he had been operating a conveyance in the preceding 3 hours. Accordingly, he made a demand that Mr. Leonard provide a sample of his breath into an approved screening device at 9:40 pm. Mr. Leonard complied with this demand, and a fail reading was registered at 9:42. He was then arrested for an offence contrary to s.320.14(1)(b) of the Criminal Code, cautioned, and informed of his right to counsel, which Mr. Leonard understood and declined.

[19] The arrest was completed at 9:44 and he was lodged in PC Lynch’s cruiser. PC Lynch spent 10 minutes searching Mr. Leonard’s vehicle, and then left the scene with Mr. Leonard at 9:54. They travelled directly to the City of Kawartha Lakes OPP detachment, arriving at 10:09. He was lodged in the detachment cell block between 10:09 and 10:22, a process that included parading him before the cell block officer, completing forms, searching him, reiterating his right to counsel, which Mr. Leonard again declined, and placing him in a holding cell. PC Lynch then spent the time between 10:22 and 10:38 readying an approved instrument to receive breath samples from Mr. Leonard.

[20] At 10:38, Mr. Leonard was brought to the breath room. He provided two samples of his breath for analysis by the approved instrument at 10:44 and 11:07, producing results of 203 and 207 mgs of alcohol per 100ml of blood respectively. In between the two tests, he was interviewed by PC Lynch. The voluntariness of Mr. Leonard’s statement was conceded. He admitted that he had been driving prior to stopping at the convenience store to buy a pop, that he had been driving for about an hour before encountering DC Whitefield, and that his plan had been to drive to his trailer in Coboconk. It is noteworthy that the village of Coboconk is about a 30 minute drive north of the town of Lindsay on Highway 35, while Mr. Leonard was located in the village of Omemee, a 15 minute drive east of Lindsay.

[21] After the breath readings were obtained from Mr. Leonard, he was charged and released. The police assisted him in finding a ride home. No issue was taken with the propriety of any of the demands made of Mr. Leonard, nor is there any issue taken with the functioning or operation of the ASD or approved instrument. Mr. Leonard did not testify on either the Charter voir dire or the trial proper. This completes my review of the evidence, and I move on to consider the issues raised by counsel.

Issue 1: Was Mr. Leonard detained prior to the ASD test?

[22] Detention has a different meaning in the context of the Charter than in everyday usage. Not every interaction with the police that results in an individual being delayed or kept waiting will constitute a “detention” within the meaning of the Charter. As the Supreme Court of Canada held in R. v. Mann, 2004 SCC 52, [2004] SCJ No 49, at para 19: “the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint”. The issue, therefore, is whether, in all of the circumstances, Mr. Leonard was subject to significant physical or psychological restraint from the perspective of a reasonable person standing in his shoes.

[23] The Crown says that he was not detained because DC Whitefield was engaged in providing him with medical assistance. It points to the following passage from the Supreme Court decision in R. v. Grant, 2009 SCC 32, [2009] SCJ No 32, at para. 36, where the court discussed what constitutes a detention for Charter purposes:

We may rule out at the outset situations where the police are acting in a non-adversarial role and assisting members of the public in circumstances commonly accepted as lacking the essential character of a detention. In many common situations, reasonable people understand that the police are not constraining individual choices, but rather helping people or gathering information. For instance, the reasonable person would understand that a police officer who attends at a medical emergency on a 911 call is not detaining the individuals he or she encounters. This is so even if the police in taking control of the situation, effectively interfere with an individual's freedom of movement. Such deprivations of liberty will not be significant enough to attract Charter scrutiny because they do not attract legal consequences for the concerned individuals.

[24] At the end of the day, the determination of whether Mr. Leonard was detained by DC Whitefield is fact specific. The question to be answered is whether a reasonable person in Mr. Leonard’s circumstances would conclude that they had no choice but to comply with the officer’s requests, or that they had been deprived of the right to choose to simply leave: see Grant, supra, at paras. 41-43. All of the circumstances matter.

[25] In Mr. Leonard’s case, his truck was blocked by DC Whitefield’s cruiser. He was directed by the officer to stop as he was about to enter his truck. He was asked questions related to his ability to drive, and told to wait for medical assistance when he told the officer he had diabetes. His truck keys were taken from him while he waited. He was directed to turn over identification and to wait in the driver’s seat of his truck. DC Whitefield said that in his mind Mr. Leonard was detained. While not determinative, his evidence on this point is part of the circumstances I must consider. DC Whitefield was responding to a complaint of a suspected impaired driver. He formed a belief that Mr. Leonard was impaired and could not safely operate his vehicle, and clearly Mr. Leonard was not free to simply leave until the investigation into the cause of his impairment was resolved to the officer’s satisfaction.

[26] Mr. Leonard’s ability to choose to leave was effectively removed, and he was told by the officer that he needed to remain. In my view, the totality of the circumstances lead to only one reasonable conclusion: that Mr. Leonard was not free to choose to walk away, and that he had no realistic option but to cooperate with the police. I find that he was detained within the meaning of the Charter prior to the ASD test later administered by PC Lynch.

Issue 2: Were Mr. Leonard’s 10(a) and (b) rights temporarily suspended during the initial phase of the investigation prior to the ASD test?

[27] Police in Ontario are empowered under the Highway Traffic Act to conduct sobriety checks on motorists. They are also empowered, by virtue of s.320.27 of the Criminal Code, to investigate whether drivers are impaired by alcohol or a drug. In the usual course, such investigations will require a brief detention of the motorist. The Supreme Court has held that there is an implied limit on the right to counsel in circumstances where the police are conducting screening measures in order to determine whether grounds exist to arrest a motorist for alcohol-related driving offences: R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] SCJ No 37, at paras. 52-60. Those cases involved motorists who were detained while the police conducted roadside sobriety tests and asked questions concerning alcohol consumption without being informed of their right to counsel. The Court held that this limitation on the right to counsel was justifiable under s.1 of the Charter, so long as their detention was related to the investigation into their sobriety. Once that investigation was concluded and grounds to arrest were formed, the police were required to comply with s.10(b).

[28] Further, a brief delay in informing a detainee of their right to counsel may also be justified where the delay is for the purpose of attending to the detainee’s medical needs: see R. v. Bernard, [2018] O.J. No. 4580, a summary conviction appeal decision. In that case, the defendant was arrested following an investigation into a motor vehicle collision and after failing an ASD. Before he was informed of his right to counsel, the defendant began complaining of a sore arm. The investigating officer delayed informing the defendant of his right to counsel for a period of 8 minutes while he sought direction from paramedics on scene. The Court found that the delay was justifiable, relying on the public safety exception to the immediacy requirement for the 10(b) informational requirement set out by the Supreme Court in R. v. Suberu, 2009 SCC 33, at para. 42.

[29] In Mr. Leonard’s case, he was detained by DC Whitefield at 9:27. He was arrested after failing an ASD test at 9:44, some 17 minutes later. During the period in between, DC Whitefield conducted an investigation into his sobriety and was in the process of obtaining medical treatment for what he honesty and reasonably believed was impairment brought about by diabetes. He was also detained briefly during this period by PC Lynch, who conducted his own investigation into Mr. Leonard’s sobriety. He was informed of his right to counsel immediately after his arrest. In my view, the delay by the police in informing Mr. Leonard of his right to counsel was reasonable and justified in the circumstances as they attended to his medical needs and carried out their investigative duties in relation to the traffic complaint received. Mr. Leonard has not proven a breach of his 10(b) rights.

[30] I reach a different conclusion with respect to the 10(a) infringement claimed by Mr. Leonard. He was detained when DC Whitefield arrived on scene, blocked his truck and ordered him to stop as he was about to enter the driver’s door. This occurred at 9:27. He did not immediately inform Mr. Leonard of the reason for his detention, as he was required to do by s.10(a) of the Charter. At some point Mr. Leonard asked DC Whitefield why the officer was there, and was informed of the traffic complaint. At that point it would have been apparent to Mr. Leonard why he was being detained. It was not clear from the evidence when this exchange occurred, but it would have been before the arrival of PC Lynch at 9:37.

[31] One of the reasons why the Supreme Court held that a brief limit on the right to counsel was warranted in the context of roadside sobriety screening is a recognition of the need that such testing be completed promptly – both for public safety reasons and to limit the detention of motorists who are determined to be sober. As a practical matter, it makes no sense to inform the detained motorist that they have the right to consult counsel immediately unless they are also provided an opportunity to do so before the police continue their investigation. Such a requirement would frustrate effective law enforcement, exacerbate what might otherwise be a fleeting detention, and was found by the Supreme Court to be a justifiable limit on the right to counsel. In my view, no similar justification exists for not immediately informing a motorist of the reason for their detention.

[32] While I find that there was a breach of Mr. Leonard’s right to be informed of the reasons for his detention, the breach was brief and lasted less than 10 minutes until Mr. Leonard himself questioned DC Whitefield as to the reason for his detention. I now go on to consider the impact of this breach and the appropriate remedy.

Issue 3: Should Mr. Leonard’s statements to the police and the results of the analysis of his breath samples by an approved instrument be excluded from evidence?

[33] There were no statements elicited from Mr. Leonard during the period spanned by the 10(a) breach that were tendered by the Crown at his trial. Nor were any statements elicited during this period that provided the police with grounds for the ASD demand. By the time PC Lynch arrived on scene and questioned Mr. Leonard about his consumption of alcohol, he understood the reason for his detention. I now go on to consider the s.24(2) factors set out by the Supreme Court in R. v. Grant, supra.

[34] In my view, the breach here was at the less serious end of the spectrum. DC Whitefield did not act with malice or deliberate disregard for Mr. Leonard’s Charter-protected interests. He acted in good faith with a focus on Mr. Leonard’s health and well-being. Though unfortunate, his failure to inform Mr. Leonard of the reason for his detention was inadvertent and fleeting. This factor favours inclusion of the evidence.

[35] The impact on Mr. Leonard’s Charter-protected interests was also minimal. He was uninformed of the reason for his detention for a brief period, and no evidence was gathered against him during this period. This factor also favours inclusion of the evidence.

[36] An exclusion of the evidence sought by Mr. Leonard would gut the prosecution case on a serious allegation of drinking and driving, a plague on this community. Exclusion of the evidence would deprive the public of a trial on the merits of these allegations. This factor pulls strongly towards inclusion of the evidence.

[37] A balancing of the Grant factors leads to the conclusion that the evidence obtained prior to the ASD should not be excluded. Accordingly, there is no basis for the other Charter claims that Mr. Leonard’s arrest was arbitrary or that the subsequent breath testing constituted an unreasonable search.

Issue 4: Has the Crown proven that the breath samples were taken as soon as practicable?

[38] Section 320.28(1)(a)(i) of the Criminal Code provides that an officer who has reasonable grounds to believe that a person’s blood alcohol concentration exceeds the legal limit may demand that the person provide samples of their breath for analysis by an approved instrument “as soon as practicable”. If the requirements of this section and s.320.31(1) are met, the results of the analysis are presumed to be an accurate reflection of the person’s blood alcohol concentration at the time the samples were taken. In order to avail itself of this evidentiary shortcut, the Crown must establish that the samples were taken as soon as practicable. This phrase has been interpreted to mean as soon as reasonably possible in the circumstances. An assessment of the entire time frame is required from a bird’s eye view, not a minute by minute accounting of any delay.

[39] Here, the demand was made by PC Lynch at 9:44 and the first sample was taken one hour later at 10:44. In the intervening period, 10 minutes were spent searching Mr. Leonard’s truck for evidence, 15 minutes were spent traveling from Omemee to the nearest detachment in Lindsay, 13 minutes were spent lodging him in the cell block and another 16 minutes were spent by PC Lynch, the qualified technician, in readying the approved instrument to receive breath samples from Mr. Leonard. These periods of delay were all reasonable and lasted until 10:38, when Mr. Leonard was brought into the breath room. A further brief delay occurred prior to the taking of the first sample as PC Lynch reviewed the process and provided relevant instructions to Mr. Leonard. I find that the Crown has established that the samples were taken as soon as practicable.

Issue 5: Has the Crown proven that Mr. Leonard’s ability to drive was impaired by alcohol?

[40] The defence concedes that DC Whitefield was a credible and reliable witness. I agree. I accept his evidence about Mr. Leonard’s physical condition. Mr. Leonard had glossy eyes, a glazed and fixed stare and appeared disoriented. He provided the incorrect set of keys and identification card to DC Whitefield. The officer was concerned about his ability to safely remain standing while he called for a paramedic. DC Whitefield was convinced that Mr. Leonard could not safely drive, though he had no reason to believe alcohol was the cause of the impairment. I agree with his conclusion that Mr. Leonard’s ability to safely operate his truck was impaired to at least some degree. The only real issue is whether alcohol was the cause of that impairment.

[41] The analysis of his breath samples proves that Mr. Leonard had a significant amount of alcohol in his blood. In totality, the circumstantial evidence leads to only one rational conclusion: that alcohol was the cause of Mr. Leonard’s impaired ability to operate his truck.

Issue 6: Has the Crown proven that Mr. Leonard was in care or control of his truck?

[42] Mr. Leonard is charged with impaired operation of his truck and with having a blood alcohol concentration exceeding the legal limit within two hours of operating it. While there is no admissible evidence before me of operation, having the care or control of a conveyance is included within the meaning of operate: s.320.11 of the Criminal Code. This is an essential element of either offence which the Crown must prove beyond reasonable doubt. If I am left in a reasonable doubt that Mr. Leonard had the care or control of his truck, I must find him not guilty on both counts.

[43] The Crown does not seek to rely on the presumption of care and control by virtue of the fact that Mr. Leonard was seen by the officers occupying the driver’s seat of his truck. This is fair, since he only occupied that seat at the request of DC Whitefield. There is no other admissible evidence before me placing Mr. Leonard behind the wheel of his truck.

[44] The meaning of care or control in the drinking and driving context was explained by the Supreme Court in R. v. Boudreault, 2012 SCC 56, [2012] SCJ No. 56 at paras. 32-35. It involves 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; and 3) in circumstances that create a realistic risk of danger to persons or property. The risk need not be probable, serious or substantial, but it must be more than theoretically possible.

[45] In Mr. Leonard’s case, the Crown argues that he was in care or control of his truck at the point he approached it and opened the driver’s door. The Crown argues, at para. 21 of its written submissions, that Mr. Leonard’s “return to the driver’s side of his vehicle, having completed his business at the store, demonstrates a clear intention to depart. The fact that he was “blockaded” by DC Whitefield does not eliminate the risk of danger […] it merely means that DC Whitefield took on the risk to himself and his cruiser, rather than letting [Mr. Leonard] carry on putting the public at risk.”

[46] As DC Whitefield put it, logic would suggest that Mr. Leonard was preparing to leave in his truck, which was parked in a temporary parking spot in a convenience store lot. He was seen leaving the store and taking steps to enter his truck. I agree with the Crown that he was engaged in a course of intentional conduct associated with the truck as he opened the driver’s door. He was clearly impaired by alcohol and had a blood alcohol level well above the legal limit. I must go on to consider whether he posed a realistic risk of danger to other persons or property.

[47] The Crown relies upon the summary conviction appeal decision in R. v. Devries, [2013] OJ No. 796, which is binding upon me. In that case, the defendant parked his vehicle at a beer store, entered the store and then exited, keys in his pocket and was in the process of re-entering his vehicle when he was stopped by the police. The trial judge held that there was no other rational conclusion that could be reached other than that the defendant intended to set his vehicle in motion. He found, and the appeal court affirmed, that the intervention of the police prior to him starting or moving the vehicle did not preclude a finding that he was in care or control. The trial judge also relied on an admission by the defendant to the qualified technician that he had driven the vehicle to the beer store. In Mr. Leonard’s case, he also told the qualified technician, in a statement conceded to be voluntary, that he had been driving his vehicle prior to the intervention by DC Whitefield, and that his intention had been to continue driving home.

[48] The law is clear that a realistic risk of danger to other persons or property can exist with respect to an intoxicated person where the evidence proves that the person had the ability to choose to drive, whether or not they were inside a vehicle. In R. v. Johnston, 2016 ONCA 834, [2016] O.J. No. 5738, a decision from the Ontario Court of Appeal, the defendant, like Mr. Leonard, was not found inside his vehicle, but had his keys with him and was in an intoxicated state. The defendant had called a tow truck to repair the lock to his vehicle and was found in a nearby bar awaiting the arrival of the tow truck. The trial judge found that a realistic risk existed that he could have chosen to set his vehicle in motion while impaired, and that he was therefore in care or control. The court of appeal upheld this finding.

[49] In Mr. Leonard’s case, he was parked in a temporary parking spot at a convenience store, and was discovered by police in an intoxicated state returning to his truck, about to enter the driver’s seat. In all of the circumstances, I reach the same conclusion here as the trial judges did in Devries and Johnston: Mr. Leonard posed a realistic risk of setting his vehicle in motion and thereby endangering persons and property due to his state of impairment. The fact that his vehicle was blocked by PC Whitefield’s cruiser mitigated, but did not eliminate, that risk. I am therefore satisfied beyond reasonable doubt that he was in care or control of his truck.

[50] Accordingly, the Crown has proven both counts beyond reasonable doubt, and Mr. Leonard is found guilty on both counts subject to the rule precluding multiple convictions.

[51] I wish to thank both counsel for the professional and focussed manner in which they dealt with this matter.

Released: March 7, 2023 Signed: “Justice S. W. Konyer”