CITATION: R. v. Evans, 2023 ONCJ 96
DATE: January 24, 2023
COURT FILE No: 20-0302
O N T A R I O C O U R T OF J U S T I C E
B E T W E E N :
HIS MAJESTY THE KING
-AND-
SCOTT EVANS
Before Justice M. G. March
Heard on July 15, 2021, May 29 and November 14, 2022
Reasons for Judgment released on January 24, 2023
Ms. Caitlin Downing…………...………………………...…Counsel for the Provincial Crown
Mr. James Harbic……………………………………………………...Counsel for Scott Evans
March, M.G., J. :
Introduction
- The accused, Scott Evans (“Evans”), stands charged that on March 8, 2020:
a) he did operate a conveyance while his ability to operate it was impaired to any degree by alcohol, or drugs, or both, contrary to section 320.14(1)(a) of the Criminal Code of Canada (“the Code”), and
b) he did unlawfully possess MDMA, a substance included in Schedule I of the Controlled Drugs and Substances Act (“CDSA”), contrary to section 4(1) of the CDSA.
When the trial commenced on July 15, 2021, Evans was representing himself. The Crown sought to introduce Certificate of Analyst to prove the nature of the substance seized from his person at the time of his arrest on March 8, 2020. The Certificate indicated that an individual amongst the staff of Health Canada designated as an Analyst examined and analyzed a sample of a substance on March 13, 2020 delivered by Constable O’Connor of the Renfrew detachment of the Ontario Provincial Police (“OPP”). The sample contained methylenedioxyamphetamine (MDMA).
On a much earlier date, namely October 20, 2020, Evans was served with a Notice of Intention to introduce into evidence the Certificate at his trial. After I explained to Evans the nature of the documents and their legal effect, he consented to the admission of the Certificate into evidence.
On May 29, 2022, the second day of his trial, Evans was then represented by counsel, Mr. Langevin.
Later, at the conclusion of his trial on November 14, 2022, when final submissions on the evidence were heard, Evans was represented by Mr. Harbic. No issue was taken with the admission of the Certificate to prove the substance found on the person of Evans at the time of his arrest on March 8, 2020 was MDMA.
The core issue for determination at trial was whether Evans had the care or control of the motor vehicle in question. The fact that he was impaired by alcohol, or drugs, or a combination of both at the material time was admitted by him, and later confirmed as a non-issue during submissions made by his counsel.
The Relevant Evidence
Cst. Kisters:
When Constable Kisters testified on July 15, 2021, he had almost 4 years of policing experience with the OPP.
On March 8, 2020, at 1:46 AM, he observed a black Dodge Ram pickup truck having difficulty maintaining its lane on Daniel Street in the Town of Arnprior. On approximately three occasions, it crossed over the centre line of the roadway by a foot or a foot and a half. In doing so, it caused sand, which had accumulated near the middle of the road surface, to be thrown up by its wheels.
It then turned left onto McGonigal Street. It was, according to Constable Kisters, “slower than . . . expected” and not a “smooth” turn. The officer activated his emergency lights while the pickup was in the wrong lane on McGonigal Street with approximately 90% of its mass across the centre line of the roadway. The pickup did not come to an immediate stop when signaled to do so by police. It continued for roughly 50 m thereafter.
Nonetheless, from the time of first observing the pickup to then conducting a traffic stop, Constable Kisters estimated that only 20 to 30 seconds elapsed between 1:47 and 1:48 AM.
Once the pickup had come to rest, Constable Kisters called in its licence plate to the OPP Communication Centre to notify of the traffic stop. He exited his police vehicle and approached the driver’s side near the rear corner of the pickup he had pulled over.
The officer demanded that the driver’s window be rolled down. He slapped the body of the pickup to get the attention of the occupants. He was “loud”. There was no doubt in Constable Kisters’ mind that the occupants could hear him.
Constable Kisters could not hear any music playing inside the pickup. The engine was running. Its windows were “heavily tinted”. He could not see inside from his vantage point.
On the night in question, the officer recalled that the weather was “clear”. It was neither snowing, nor raining.
To the officer’s best recollection, he wrapped on the pickup numerous times and demanded the driver’s window be rolled down. Roughly 2 minutes after first making the demand, the window on the rear driver’s side descended. A young man, later identified as Noah Vincent (“Vincent”), stuck his head out. The officer continued to ask for the driver’s window to be rolled down.
Within a minute or two thereafter, the driver’s window did come down and Constable Kisters was able to see a male, later identified as Evans, in the driver’s seat of the pickup. A woman, Alyssa Hogan (“Hogan”), was also inside and seated in the rear of the pickup.
Based on prior involvement with her, Constable Kisters was able to recognize Hogan. The officer did not know Evans or Vincent.
Before the driver’s window was rolled down, Constable Kisters noticed that the vehicle was rocking as though there was some form of weight displacement inside it.
Constable Kisters explained that he was uncomfortable on his own at that time of night conducting a traffic stop where his demands to have the driver’s window rolled down were ignored for several minutes.
The officer then asked Evans to turn off the engine of the pickup on several occasions. Evans tried to do so, but appeared to have difficulty locating where the key to the ignition was exactly. He reached toward the column of the steering wheel; however, his right hand remained several inches away from the key.
Vincent intervened and offered to remove the key. Constable Kisters permitted him to do so.
Evans tried as well to activate the light near the rearview mirror of the pickup. He appeared to be in the act of pressing on it. However, Constable Kisters observed that Evans remained within 2 inches of making contact with it. Evans did not ever succeed in turning it on.
Evans had difficulty in locating his driving documents. In Constable Kisters’ opinion, Evans looked “quite impaired”. His movements were slow and deliberate. His eyes seemed to jerk involuntarily. He was having trouble finding his words.
When asked by the officer, Evans stated that he had three drinks. He was also on antidepressants.
Constable Kisters realized at this point that he had spoken with Evans previously over the phone. The officer knew that Evans and Hogan were on conditions of release not to be in contact with one another.
Constable Kisters described Evans’ manner of speech as very different on the night in question than when they had previously conversed over the phone. The officer described it as “mumbly” and “full of stutters and slurs”.
Constable Kisters noted that Constable Cranford next arrived on scene at 1:55 AM. Constable Kisters then asked Evans to step out of the pickup. He immediately noticed that Evans was only in his sock feet. His boots were in the back of the vehicle. They were handed out to Constable Kisters by one of the rear occupants. Constable Kisters helped Evans put his boots on.
Constable Kisters described Evans’ movements while exiting his vehicle again as very slow and deliberate. The accused required the officer’s assistance.
Constable Kisters brought Evans to the back of the pickup to arrest him. The officer noticed that Evans’ balance was “severely hindered”. Constable Kisters held onto him because the officer was concerned Evans would fall otherwise.
Constable Kisters arrested Evans at 3:05 AM. The officer was careful to point out that Eastern Standard Time had changed to Eastern Daylight Time over the course of his interactions with Evans.
The officer went on to explain that he had difficulty having Evans follow his directions. Evans’ head would nod periodically as though he were falling asleep or losing consciousness. Constable Kisters would repeat his name, “Scott”, to try to snap him out of it. To the officer, Evans appeared to be suffering from shakes and tremors as well.
Upon his arrest, Constable Kisters read to Evans his rights to counsel. Evans appeared to understand that he was being asked if he wished to speak to a lawyer. In response, the officer was able to make out that the accused wished to speak to a “Ralfa” or “Ralph”.
At 3:07 AM, Constable Kisters read to Evans the standard police caution regarding what use anything he said could be put to in evidence by the Crown.
Constable Kisters noted that Evans continued to have difficulty keeping his focus.
At 3:10 AM, Constable Kisters read to Evans a Drug Recognition Evaluation (“DRE”) demand. When asked if he understood and would comply, Evans responded, “Okay”. Evans’ answer was weak. The officer had to put his ear closer to Evans to hear his response.
At 3:14 AM, Constable Kisters left the scene of the traffic stop to transport Evans to the Renfrew detachment of the OPP. The officer knew that Constable O’Connor was on duty in Renfrew to perform the DRE. Constable O’Connor was the closest officer with the qualifications to carry out that task. Constable Cranford remained on scene to deal with Vincent and Hogan.
To Constable Kisters, Vincent seemed sober. The officer pointed out that he did not make many specific observations of Hogan.
During the drive to Renfrew, Constable Kisters stopped on Highway 17 to check on Evans. The accused appeared to have fallen asleep. The officer wished to verify his well-being. He shook Evans. The accused’s fingers moved. He was breathing normally. The officer was thus satisfied that Evans was just sleeping.
At 3:28 AM, Kisters arrived with Evans at the Renfrew OPP detachment. The officer entered the sallyport and brought the accused to the lodging area. Evans was able to walk with the officer’s assistance.
Before being placed in a holding cell, Constable’s Kisters searched Evans and found 8 pills with “S93” stamped on them in the accused’s left pocket.
Constable Kisters also noticed a crystalline substance fall to the floor when Evans’ pockets were being searched.
The accused was lodged in the cell while awaiting the opportunity to speak to his lawyer of choice.
At 4:09 AM, Evans spoke to duty counsel. According to Constable Kisters, the call lasted only a few minutes. The accused later explained to the officer that he did not speak to anyone.
Constable Kisters then understood Evans to say that he wished to speak to a “Ralph Lee”, whereupon the officer attempted to locate a telephone number for Mr. Lee. Constable Kisters conducted an Internet search. The officer succeeded in finding a number for Mr. Lee. The officer then placed a call to Mr. Lee and left a voicemail message for him to call police back.
Mr. Lee did not respond. After waiting for some time, Constable Kisters asked Evans if he would like to speak to duty counsel again. The accused agreed. At 4:23 AM, Constable Kisters called duty counsel once more.
At 5:20 AM, Evans was put in touch with duty counsel, a Mr. Murphy. When Constable Kisters went off shift at 9 AM, Mr. Lee had not called back to speak with Evans.
Following Evans’ conversation with duty counsel, Constable Kisters escorted him to Constable Chaplin to have breath tests conducted.
Under cross-examination, Constable Kisters confirmed that it was the driving exhibited by the operator of the pickup that drew his attention as a police officer. It was weaving. There was very sudden, jerky left turn. Thereafter, there was the failure to come to a complete stop. The truck would move slowly forward, then it would accelerate briefly. Its wheels had earlier hit the centre line of the roadway throwing up sand and dust as well.
When Constable Kisters first conducted the traffic stop of the pickup, he could not see inside the vehicle due to the tint of its windows. Even as he approached the driver’s side, he still could not make out what was happening inside the truck.
Upon finally seeing Evans and engaging with him, the officer quickly formed the opinion that the accused was grossly impaired. Evans’ driving, the officer ventured, was affected by his condition.
Constable Kisters acknowledged as well that he knew something was going on inside the vehicle before any of its windows were rolled down. He could see the suspension tilting, and the vehicle’s chassis shifting. He attributed this to the occupants moving around within the pickup. He was unnerved by it.
As a result, Constable Kisters banged quite hard on the truck’s quarter panel by the taillight. He demanded that the driver roll down his window. He repeated the command to do so several times.
After the jostling about inside the truck, the driver’s side rear window did descend and the blonde head of a male, Vincent, did emerge. Hogan was beside Vincent in the backseat. Evans was the only one in the front of the vehicle.
When Constable Kisters opened the driver’s door of the truck to have Evans exit, the officer had to use the electric powered seat adjustment to move him further away from the steering wheel. Otherwise, Evans would have had difficulty getting out. Constable Kisters agreed that Hogan was a woman roughly 5’4” in height, whereas Evans is approximately 6’2”. The driver’s seat, the officer conceded, could have been configured for a person other than Evans.
The officer did nevertheless confirm that Evans was seated behind the steering wheel with his legs and arms facing forward. Evans’ distance to the steering wheel did not stand out for Constable Kisters. However, he noticed that when he tried to move Evans’ legs out past the door panel, the driver’s seat was too far forward, requiring the officer to move it backward several inches to allow Evans to exit.
Constable Kisters acknowledged that he would not expect someone normally to drive in as forward a position as the officer found Evans behind the wheel of the pickup. Evans’ legs were too close to the pedals.
In terms of time estimations, Constable Kisters believed that he was at the rear of the pickup for approximately two minutes trying to get the driver to roll down his window. The officer then spent another 2 to 3 minutes interacting with the occupants.
When Constable Kisters asked Evans for his identification, the accused reached up for the light next to the rearview mirror of his vehicle. He appeared to be trying to turn it on but was unable to reach the switch. He would repeatedly stop short of pressing the button to activate the light. All the while, the engine of the pickup was running until Vincent offered to turn it off. Constable Kisters requested that he do so. Vincent complied.
Constable Kisters had been asking Evans to turn off the engine and remove the key, but he did not or could not.
As Evans emerged from the driver’s seat of the pickup, Constable Kisters noticed that he was in his “sock feet”. Evans’ shoes were in the rear passenger area of the truck.
Following Evans’ arrest, Constable Kisters located in the left pocket of the accused’s pants eight pills, which were later analyzed and determined to be MDMA. The officer could not recall whether they were in a plastic bag or loose.
While transporting Evans to the Renfrew OPP detachment, Constable Kisters confirmed that he noticed the accused was slowly starting to slump over. The officer was very much concerned for Evans’ well-being. He pulled over to check on the accused.
In looking Evans over, Constable Kisters was able to see that the accused was breathing. His hands were moving. He appeared semiconscious. He was just laying on the backseat of the cruiser. The officer was relieved to discover that Evans was still alive.
Under re-examination, Constable Kisters confirmed that Evans was not able to remove the keys from the ignition of the pickup at the officer’s request. The accused’s hands were moving, but he was never able to reach and place his hand on the key to take it out. Spontaneously while doing so, he uttered “I’m just on my way home. I’m going home.”
Noah Vincent:
When Noah Vincent (“Vincent”) testified for the defence on March 29, 2022, he was 21 years of age.
He explained that on the night in question, when Evans was arrested, it was his first time meeting the accused, whereas Vincent had known Hogan since high school.
Earlier that evening, Hogan had shown up at Vincent’s sister’s place, where he had been housesitting.
Before Vincent, Evans and Hogan were pulled over by police, they were all on their way to Hogan’s house.
Vincent offered that at all material times, he was under the influence of a drug called Xanax. He described the effect of the drug as making you “high”. As he put it, “It just makes you not care about anything.” He reckoned that he could make poor decisions when he took it.
Vincent was able to classify Xanax as a benzodiazepine. In terms of its effect on others, he stated that the drug could cause memory loss.
Vincent believed that the truck in which Evans, Hogan and he were stopped by police on the night in question belonged to Evans. However, he added that Hogan was initially driving the vehicle.
He sat behind the driver’s seat in the rear of the pickup. Evans, Hogan and he had only travelled some seven or eight blocks before being pulled over by police. Evans was at that point in the front passenger seat.
Vincent described Evans’ truck as being “all tinted out”. It had a lifted suspension. Music was playing loudly prior to the traffic stop. Vincent reckoned police would have “more than enough reason in the middle of the night to pull [that] vehicle over”.
Vincent recounted that Hogan was driving. Evans was in the passenger seat “absolutely out of his mind-like, barely conscious.”
When Hogan realized that police wished to pull her over, she “freaked out.” She began smacking Evans trying to wake him up. The police cruiser was behind them with its lights activated.
Vincent elaborated that when Hogan was hitting Evans, she was not punching him. She was simply trying to awaken him while she was in a panic.
She then jumped into the back seat with Vincent to his right. Meanwhile, Vincent described Evans as trying to get over to the driver’s seat. He was not quick. He was “sloppy” in doing so. Vincent believed Evans had to climb over the centre console to get there. He then assumed a “slouched” position while in the driver seat. Vincent could not see where Evans’ feet ended up.
Vincent estimated that the “old switcheroo” - the act of Hogan moving into the backseat and Evans into the driver seat - took place within the span of two minutes. Vincent speculated that perhaps Hogan did not have a license, whereas Evans did.
Outside the pickup, Constable Kisters was demanding all the while to know, “What’s going on?” Vincent reckoned that the officer did not know if there were guns, or if the occupants of the vehicle were trying to do something.
Vincent then rolled down his rear passenger window on the driver’s side. He held out his driver’s license between his fingers. He explained to Constable Kisters, “He’s fucked up. He doesn’t understand you.”
Vincent then volunteered to turn the truck off, because it was still running. With the officer’s approval, he did so.
Over the course of Evans and Hogan changing their positions within the pickup and Constable Kisters presenting himself at the driver’s window, only a minute or two had elapsed by Vincent’s estimation.
Shortly thereafter, both Evans and Hogan were arrested.
While speaking with Constable Kisters, Vincent became aware that the officer could see that the truck was rocking back and forth while Evans and Hogan were shifting positions.
Roughly 6 months after the night in question, Vincent was asked to provide a written statement to police. He agreed.
Under cross-examination, Vincent indicated that he used “more [Xanax] then anyone probably should’ve” over the course of the day or two leading up to March 8, 2022.
Vincent explained that when a person takes Xanax, “You think… you’re perfect, but it’s other people that really see you for how impaired you are.” He surmised that Constable Kisters believed him not to be impaired. In Vincent’s own mind, he did not feel “overly impaired, compared to looking at [Evans], who was absolutely impaired”.
When questioned about his mental state owing to Xanax consumption, Vincent confirmed that he was “probably impaired”.
Notwithstanding, Vincent believed he had a “pretty good memory of the situation”. He acknowledged though that Xanax does affect his memory as well.
Vincent, in describing the route taken from his sister’s house on the way to Hogan’s, remembered the truck taking “like maybe one turn” to the left along the way. He did not make any other observations regarding her driving other than that she was blaring the music. To his mind, there was no indication of any bad driving on the part of Hogan. Nothing appeared odd to him about the turn she took.
He offered just the same time that he was not worried about watching the road. He was seated directly behind her.
Vincent clarified that Hogan did not immediately move into the back seat with him after the police stopped them. First, she leaned over the truck’s centre console and started smacking Evans on his shoulders to get him to move over into the driver seat. Then she jumped into the back with Vincent.
When pressed, Vincent conceded that it would be difficult logistically for Hogan to be able to slap Evans on his left and right shoulders, in an alternating rhythm, if she were leaning over the console. Evans’ right shoulder would be too close to the passenger door.
Vincent surmised that perhaps Hogan only hit Evans with one hand and not two. Vincent validly pointed out that over two years had gone by since the incident occurred. He acknowledged that he was quite impaired by his use of Xanax on the night in question as well. He agreed with Crown counsel that his memory would “… not be the greatest”.
Hogan repeated to Evans, “Wake up!” However, Evans did not respond because he was “absolutely impaired”. Vincent did not see for himself what Evans had been consuming to cause his impairment. Vincent believed that Hogan only had one or two drinks.
Vincent could not remember how many slaps were administered by Hogan to Evans. They were multiple. Vincent did not count them
The striking, he estimated, occurred over the span of 40 seconds to two minutes.
Before Hogan scampered over the console into the backseat, Vincent testified that Evans was halfway over into the driver’s seat. He was able to pass over the centre console and take his position there on his own without being assisted by anyone.
Vincent could not say whether Evans had started moving towards the driver’s seat before Hogan had climbed into the back. Nor could Vincent say which one of them began changing position first.
Vincent could not remember whether Evans put on a seatbelt in the driver seat, or whether he took one off to shift over from the passenger seat. Nor could Vincent recall how Evans was sitting or positioned.
Vincent was sure that Evans, at the time he exited the pickup, did not have footwear. Vincent knew this because he remembered that the officer had to put Evans steel toe work boots on for him as he was being arrested. Vincent did not know where those boots came from.
Vincent explained that he was distracted. He had his hands out the window trying to make sure that Constable Kisters felt safe. He was trying to talk to the officer. Evans’ vehicle was still running. There was a “standstill” between the officer and them as the occupants of the truck.
According to Vincent, it was possible that Evans was sitting properly in the driver’s seat. He had no specific recall of Evans’ feet being still on the passenger side. Vincent did not look to see where Evans’ feet or hands were. Nor did Vincent know what Evans was doing.
Vincent estimated that at the time he turned the ignition off, Constable Kisters was still 5 to 10 feet behind him. When challenged that the officer was actually at the driver’s window when Vincent stopped the engine, Vincent conceded that he did not know how close Constable Kisters was.
Vincent explained that he could hear the officer shouting. Vincent was just trying to comply. He wanted to get out of the situation altogether. He was trying to be peaceful and helpful. He did not remember the officer asking Evans to hand over the keys to the police.
Vincent could not recall the officer banging on the pickup. Vincent maintained that Constable Kisters did not need to. Vincent rolled down his window and was complying with the officer’s demands. In fact, Vincent believed that he rolled his window down prior to Constable Kisters even getting out of his cruiser. Vincent wanted to have his identification ready to present to the officer.
Vincent explained that even though he was not the driver, his driver’s license was the only photo ID he had to offer to police.
He did not recall the officer asking Evans for any identification or registration for the pickup. Nor did Vincent ever see Evans attempt to get any such documentation for Constable Kisters.
Additionally, Vincent did not see Evans try to turn any lights on in the truck during the traffic stop.
Vincent estimated that Evans was in the driver seat for probably a minute and a half before he was arrested. Constable Kisters had asked Evans, “Where are you going?” Evans pointed straight ahead. Vincent described Evans condition at that moment as being, “So out of it”. Evans had been in the driver seat by this point for perhaps a minute or a minute and a half.
When cross-examined on his Youth Court record, Vincent acknowledged having been found guilty on May 2, 2018, for obstructing a peace officer.
The Position of the Defence
Counsel for the defence conceded that the evidence adduced at Evans’s trial plainly made out the impairment of his ability to operate a motor vehicle.
The issue for determination was whether Evans occupied the driver’s seat of the pickup for the purpose of setting it in motion. He was coaxed into occupying it by Hogan after she knew she was being pulled over by police.
She woke Evans up. She moved into the backseat of the truck while persuading Evans in his semi-conscious state to get into the driver’s seat. It was almost an “involuntary” transfer by him from the front passenger seat to the driver’s seat. Hogan “coerced” him into assuming the position of its operator. She “enabled” him into it. But for Hogan’s conduct, Evans would not be before the Court.
Vincent gave credible and reliable evidence, the defence submits, on the “switcheroo” pulled off by Hogan on an unwitting, “absolutely impaired” Evans.
Constable Kisters himself could see that there was movement within the vehicle as a result of the suspension of the pickup shifting about.
When the officer opened the truck door, Evans did not have his shoes on. They were in the backseat. The officer had to help him put them on at the time of his arrest.
Further, Evans was found in a compromised manner. He was very close to the steering wheel of the pickup. In essence, the evidence established that Evans was an involuntary driver.
Evans’ shoes were retrieved for Cst. Kisters from the backseat.
The defence contended therefore that Evans had rebutted the presumption set out in section 320.35 of the Code by demonstrating, on a balance of probabilities, that he did not occupy the driver’s seat for the purpose of setting the pickup in motion.
The Position of the Crown
The Crown submitted that Vincent was neither a reliable nor a credible witness. He was heavily under the influence of Xanax.
Contrary to Constable Kisters’ evidence, Vincent did not see Evans make any attempt to turn off the pickup. Vincent testified that Evans was “absolutely impaired”. Constable Kisters, on the other hand, gave evidence of an accused who was capable of understanding the requests made by police, and able to walk. Vincent did not see Evans try to turn on the pickup’s cabin lighting. Constable Kisters clearly did observe Evans’ attempts to do so. Vincent did not remember the officer banging on the rear panel of the pickup. Constable Kisters was clear that he had repeatedly done so in trying to get the attention of the occupants of the truck.
Crown counsel queried, as a matter of logistics, how Hogan could possibly have moved Evans into the driver’s seat prior to her moving into the backseat.
The Crown invited the Court to conclude that Constable Kisters was a far more reliable historian of the events of the night in question, and decidedly more believable than Vincent.
Furthermore, Evans stated his intention after Constable Kisters asked him where he was going. He pointed down the street directly ahead of him. He answered, “I’m just going home”. Vincent, in his testimony, confirmed the accused’s stated intention.
The Crown contended that it has proven beyond a reasonable doubt that Evans was in the driver’s seat of a conveyance in an impaired by drug and alcohol state when Constable Kisters spoke to him at his driver’s window. However, his level of impairment was not so elevated as to be capable of availing himself of an ‘automatism’ or ‘involuntariness’ defence.
The Crown argues that the presumption in section 320.35 of the Code applies. As a matter of law, Evans, by virtue of the fact he occupied the seat ordinarily occupied by a person who operates a conveyance, is presumed to have been operating it when Constable Kisters appeared at the driver’s window to speak to him. The truck’s engine was still running. If the presumption applies, the Crown does not have to prove there was a risk that Evans could either intentionally or accidentally set the pickup in motion.
The relevant time for determining whether the presumption applies is when Evans began to occupy the driver’s seat. Evans was not required to testify, of course, but the evidence must defeat the presumption by showing on a balance of probabilities that he did not occupy the driver’s seat of the pickup for the purpose of setting it in motion. The evidence considered in its totality fell decidedly short of displacing the presumption.
Even if the Court were to find the presumption in section 320.35 of the Code has been rebutted, there remained a realistic risk of danger to persons or property. To meet the test of realistic risk is a low threshold consistent with Parliament’s intention to prevent a danger to public safety.
The realistic risk countenanced in this case was what Evans stated was his very intention (i.e. to drive the vehicle home). No other occupant of the vehicle was inclined to assume its care or control or to operate it.
Analysis
Does the presumption set out in section 320.35 of the Code apply, or has it been rebutted by the defence?
Counsel for the defence and Crown counsel drew my attention to copious authorities. I need only refer to a few to assist me in deciding this case.
In a recent decision rendered by my colleague, Silverstein J., and cited as R. v. Osbourne, 2021 ONCJ 58, his Honour succinctly and correctly, in my view, articulated the law surrounding the presumption created by section 320.35 of the Code. He wrote:
(b) Is Mr. Osbourne presumed to have been operating the Kia?
[19] Because the accused was found in the driver’s seat that morning, pursuant to s. 320.35 of the Criminal Code the law creates a rebuttable presumption that he was operating his vehicle. That section reads 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.
[20] Where there is evidence that satisfies me on a balance of probability that Mr. Osbourne did not occupy the driver’s seat with the intention of putting the Kia in motion, the presumption is rebutted. R. v. Boudreault, 2012 SCC 56, [2012] S.C.J. No. 56; R. v. Whyte, 1988 CanLII 47 (SCC), [1988] S.C.J. No. 63; R. v. Hatfield, 1997 CanLII 2938 (ON CA), [1997] O.J. No. 1327 (C.A.) at paras. 19, 27.
Justice Silverstein went on to find that the presumption had been rebutted. He did so on the basis that he believed on a balance of probabilities that Mr. Osbourne entered his vehicle without intending to set it in motion. He was using it as a sleeping cabin. He was awaiting the return of his drinking companion.
Of course, the factual scenario made out on the evidence before me is distinctly different than the one which played out in Osbourne. It is more akin to what was before Green J. in R. v. Stoll, 2009 SKPC 119. In that case, the accused was found in a significantly impaired state asleep and hunched over the steering wheel of his truck.
A Ms. Ross testified at Mr. Stoll’s trial that she had initially been operating the accused’s vehicle. She was intending to drive a very drunk Mr. Stoll some 25 miles from where she picked him up at a bar with her husband. However, the accused became belligerent and abusive toward her. Having had enough, she slammed on the brakes of his truck, exited his vehicle and walked towards the coffee shop where her husband was waiting for her.
Justice Green made a finding of fact that after Ms. Ross’s departure, the accused moved from the passenger seat to the driver seat where the police officer found him in the state in which he was.
Justice Green went on to explain, in finding that the presumption of care or control had not been rebutted, as follows:
[15] While each case depends on its unique circumstances, I do note a strong similarity between this case and R. v. Taylor (1998), 45 M.V.R. (3d) 261 (B.C. Prov. Ct.). In that case, Mr. Taylor was found by the police passed out in his vehicle on a highway, in a position Judge Smith found to constitute him occupying the driver’s seat. The defence presented evidence in an attempt to rebut the presumption of care or control. His wife said she had driven him to this spot, and abandoned him there. Mr. Taylor testified he was drunk and passed out in the passenger seat and had no idea how he got into the driver’s seat. Judge Smith, in applying the presumption, held there was no evidence as to why the accused occupied the driver’s seat, nor was there any evidence the accused did not occupy the driver’s seat for the purpose of setting the vehicle in motion.
[16] In this case, I accept the evidence of Ms. Ross described above, and that of her husband Mr. Ross, who departed Robin’s Doughnuts on Broadway Street and found an angered Ms. Ross walking west on Broadway toward him. However, while I accept that Mr. Stoll was making wild and unexpected statements to Ms. Ross and was further moving his body back and forth while seated beside her in the passenger seat of his truck, Ms. Ross clearly had no idea what Mr. Stoll did, or intended to do, once she stopped the vehicle at the light of this intersection. Mr. Stoll had no recollection of what happened after he was drinking at Boston Pizza some time on the evening of October 17th.
[18] Aside from the issue of whether the vehicle moved, I am satisfied that there is no credible evidence about what Mr. Stoll’s intent was when he moved from the passenger seat to the driver’s seat after Ms. Ross departed.
[19] I find it was as likely that Mr. Stoll entered the driver’s seat of his vehicle to put his vehicle in motion as it was to the contrary. As a result, I find the presumption of care or control has not been rebutted and applies in this case.
In the case before me, I have no clear evidence to assist me in determining why Evans decided to occupy the driver’s seat of his truck as he did. In accordance with his right not to be compelled to give evidence at his trial, he chose not to testify. I have no criticism of defence counsel’s decision not to call the accused. As a consequence however, I am left only with Vincent’s evidence to relate to me what he witnessed. It does not strictly speak to Evans’ intention.
Indeed, I accept defence counsel’s submission that Vincent was attempting to be truthful in giving his evidence. He may have been both distracted by what was transpiring because of Hogan’s decision to rouse Evans and to flee the driver seat, and because of Constable Kisters’ demands to know what was occurring inside Evans’ truck. Vincent’s evidence may be flawed in its accuracy as a result of his consumption of Xanax, but I do not believe that he was trying in any way to be dishonest.
However, his evidence merely establishes that in the spontaneous moment of being pulled over by police, Hogan quickly got out of the driver’s seat and persuaded Evans to enter it. It is therefore as likely that Evans did so to put his vehicle in motion as it is to the contrary. Consequently, the presumption of care or control set out in section 320.35 of the Code has not been displaced on the evidence put before me. It applies in this case.
Assuming the presumption in section 320.35 of the Code has been rebutted, did there remain a realistic risk of danger to persons or property?
Having found that the presumption in section 320.35 of the Code has not been rebutted by the defence, I need not consider whether there remained a “realistic risk of danger to persons or property” in accordance with the principles established in Boudreault, supra.
Nevertheless, I would employ similar reasoning to Justice Silverstein’s in Osbourne (supra).
In Osbourne, the accused was sleeping in an impaired state in a motor vehicle with the engine running. Mr. Osbourne had started the vehicle presumably to stay warm and to sleep off the effects of a night of drinking.
In addressing “realistic risk”, Silverstein J. stated:
(c) Was Mr. Osbourne in care or control of the Kia?
[28] Notwithstanding the rebuttal of the presumption, I must nonetheless inquire as to whether the Crown has proved beyond a reasonable doubt that the accused was in care or control of the Kia at the relevant time and thus, pursuant to s. 320.11, operating the vehicle.
[29] The test for care or control was articulated by Fish J. in Boudreault, supra at para. 9 as follows:
…I have concluded that "care or control", within the meaning 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.
[30] Counsel for both parties agree that the first two legs of this test have been established on the evidence. Mr. Osbourne’s ability to operate his car was impaired by alcohol and he intentionally climbed into the driver’s seat, started the car, and fell asleep. The fundamental issue in dispute is whether the Crown has proved that the circumstances created a realistic risk of danger to persons or property.
[31] In the absence of an intention to put the vehicle in motion, a realistic risk of danger to persons or property can arise in several ways. As Fish J. explained in Boudreault, supra, at para. 42:
In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.
[32] In order to determine whether this test has been met I must examine all the circumstances surrounding the incident. In R. v. Szymanski, 2009 CanLII 45328 (ON SC), [2009] O.J. No. 3623 (Sup. Ct.) at para. 93, Durno J. set out a non-exhaustive list of factors to consider:
• The level of impairment. R. v. Daines, [2005] O.J. No. 4046 (C.A.), R. v. Ferguson (2005), 2005 CanLII 1060 (ON SC), 15 M.V.R. (5th) 74 (S.C.J.), 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.
• Whether the keys were in the ignition or readily available to be placed in the ignition. Pelletier, supra.
• Whether the vehicle was running. R. v. Cadieux, [2004] O.J. No. 197 (C.A.)
• 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.)
• Whether the accused had reached his or her destination or if they were still required to travel to their destination. Ross, supra.
• The accused's disposition and attitude R. v. Smeda (2007), 51 M.V.R. (5th) 226 (Ont. C.A.)
• Whether the accused drove the vehicle to the location of drinking. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)
• 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.
• 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.
• Whether the accused had a stated intention to resume driving.
• 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.)
• Whether the accused was wearing his or her seatbelt. Pelletier, supra.
• Whether the accused failed to take advantage of alternate means of leaving the scene. Pelletier, supra.
• Whether the accused had a cell phone with which to make other arrangements and failed to do so. Cadieux, supra.
See too, R. v. Smits, 2012 ONCA 524, [2012] O.J. No. 3629 (C.A.)
[33] After considering all the evidence, and the factors set out above, where relevant, it is my opinion that Mr. Osbourne’s conduct that day did indeed create a realistic risk of danger to persons or property.
[34] When examining Mr. Osbourne’s decision to sleep in the running vehicle through the lens of the test set out above, it is apparent that his conduct was dangerous. He drove to the scene, the car was running, he was considerably intoxicated, and the car was at the side of a busy travelled road and an urban sidewalk. The plan that had been put in place (for his date to drive them away) was not a reliable one, he was in the driver’s seat, was the sole occupant and had no cell phone.
[35] The fact that I accept almost all of Mr. Osbourne’s testimony does not exonerate him. Notwithstanding his good intentions, his conduct created a realistic risk of danger to the public. This risk of danger was, more particularly, a risk that he might change his mind and decide to drive while impaired, or that he might inadvertently set the car in motion.
[36] As the caselaw makes clear, a “realistic risk of danger” is a low threshold. The risk need not be probable, serious or substantial: R. v. Boudreault, supra at paras. 34 – 35, 48. To be drunk behind the wheel of a car in circumstances such as those in this case is inherently dangerous, and as a result, as Fish J. notes at para. 45, “anyone found inebriated and behind the wheel with a present ability to drive will - and should - almost invariably be convicted”.
I find that upon consideration of the totality of the admissible evidence put before me at Evan’s trial, there was a “reasonable risk of danger” proven beyond a reasonable doubt by the Crown. In an “absolutely impaired” state, Evans assumed the position ordinarily occupied by the driver of a conveyance, in this case, a motor vehicle. Hogan had abandoned its care or control.
Further, I conclude that Vincent had no intention of ever assuming control of it, given his state of impairment by drug. Evans, in my view, could well have attempted to drive his truck, but for Constable Kisters’ decision to prevent him from doing so at the time of the traffic stop. Evans was not an automaton. His conduct, notwithstanding it was spur of the moment, was voluntary. In a split second, he assumed the care or control of a running motor vehicle while in a grossly impaired state caused by his voluntary consumption of either alcohol or drugs, or both.
Evans clearly made a bad decision to participate in the “switcheroo” when his mental faculties were compromised. Nevertheless, he could have unintentionally set that vehicle in motion before Constable Kisters made his way to the driver’s window. That is exactly one of the dangers contemplated by Parliament, and one of the salient reasons for the proscription of the assumption of care or control of a motor vehicle by an inebriated individual.
Conclusion
No contest was taken with the fact that Evans was found in possession of eight pills of MDMA on his person at the time of his lawful arrest. Accordingly, I must find him guilty of possession of that substance beyond a reasonable doubt.
Equally, because Evans has not rebutted the presumption set out in section 320.35 of the Code, I must also find him guilty beyond a reasonable doubt of operating a conveyance while his ability to do so was impaired by alcohol or drug, or a combination of both, to any degree.
DATED: January 24, 2023
March, M.G., J.