Court File and Parties

Ontario Court of Justice Date: 2024 02 12 Court File No.: Central West Region 998-23-21100273 & 998-23-21100050

Between: HIS MAJESTY THE KING — AND — Guy Harbec

Before: Justice J. De Filippis

Heard on: November 21 & 22, 2023 Reasons for Judgment released on: February 12, 2024

Counsel: Ms. M. Colacarro, counsel for the Crown Mr. R. Sansanwal, for the accused

De Filippis, J.:

Introduction

[1] The defendant went to trial on charges that he was in care and control of a conveyance while impaired and with a blood alcohol concentration (BAC) that exceeded the legal limit. In addition to these two criminal charges, he was issued a Provincial Offences Act summons for having open liquor in a motor vehicle. On consent, the evidence called on the Criminal Code trial will apply to the provincial offence.

[2] On January 18, 2023, police were dispatched to a shopping plaza to investigate a man in a parked car. On arrival, they found the defendant in the driver’s seat. In dealing with the defendant the police detected obvious signs of intoxication. He was arrested. Two subsequent breath tests revealed a BAC of 260 and 250 – over three times the legal limit. These facts are not in dispute at this trial. In this regard, there is no controversy about the way the defendant was arrested and the integrity and accuracy of the breath tests.

[3] It is agreed that the defendant was impaired and had a BAC that exceeded the legal limit. The issue in this trial is whether the defendant was in “care and control” of a motor vehicle. These reasons explain why the Criminal Code charges are dismissed. The defendant is guilty of the provincial offence.

Evidence

[4] Mr. Shane Patterson works at the Walmart in a shopping plaza in Niagara Falls. While outside, having a cigarette, he was approached by two people who reported that a man was asleep in a parked car. He noted that the engine was off. Mr. Patterson approached the car and saw the defendant asleep. He knocked on the window and wakened him. When asked how he was felling, the defendant said “not ok” but declined medical assistance. Mr. Patterson called the police.

[5] PC Benner, a member of the Niagara Regional Police Service, was dispatched to a shopping plaza in question. On arrival, the civilian caller pointed to a white Nissan SUV parked in the plaza lot, well away from the entrance. There were few other vehicles in this area. The subject vehicle was situated slightly “outside the parking lines”; that is, partially over one line and not fully into the parking spot.

[6] PC Benner noted that the engine was not running. A man occupied the driver’s seat. He could not recall if the seat had been reclined. There was nobody else in the vehicle. The man opened the car door as the cruiser pulled up and said he needed help. The officer noted that the man’s speech was slurred, and his eyes were watery. Other officers arrived as the man stepped out of the vehicle.

[7] PC Benner could not identify the man he saw in the driver’s seat of the car. However, he was identified by, PC Campbell, the arresting officer and there is no issue with respect to this fact. PC Benner was given a black key fob seized from the defendant. The officer discovered that the fob was not operable to access the vehicle. He removed the detachable key and was able to lock to unlock the vehicle.

[8] PC Campbell is an officer with the Niagara Parks Commission and, on the day in question, was training with the Niagara Regional Police. He arrived at 6:15 PM, soon after PC Benner. He observed that the defendant had bloodshot watery eyes, slurred speech, and was unsteady on his feet. He emitted a strong odour of alcohol from his breath and had urinated in his pants. The officer arrested the defendant. The defendant was transported to the police station. He had difficulty speaking to the booking officer and started to cry. PC Burns arrived with PC Campbell. In addition to the key fob, he seized a 1.14 litre glass bottle of rum that was open and in plain view in the defendant’s vehicle.

[9] The defendant is 65 years old. He is trained as a carpenter. About a month before his arrest for the present offences, there had been a major ice storm that caused substantial damage to his home in Crystal Beach. He testified that on day in question, he had completed a three-week repair project on his home. He purchased a bottle of rum with the intention of bringing it to the home of a friend to celebrate the birth of a daughter. In the late afternoon, he went to the Walmart store in Niagara Falls to purchase a gift for the child. He soon realized that he did not know what to buy for a three-week-old infant and deferred the purchase to another time after consulting with his partner.

[10] The defendant decided to leave his car at the Walmart parking because there is limited parking at his friend’s home. He parked well away from the entrance to the lot and Walmart store. It is a 75-minute walk to his friend’s home. This did not trouble him as he walks every day, and he could achieve his “steps objective” for that day. It was his plan to spend the night at his friend’s home. He decided to “have a few drinks” before departing. He opened the rum bottle and drank from it while he scrolled through his phone.

[11] The defendant testified that “from the moment I opened the bottle I knew I would not set the car in motion”. He added that he follows the law and his “driving record is clean”. The defendant had not started the car engine on his return from the Walmart store. He reclined his seat and lay there in his winter clothing, without his seatbelt. He added that the key fob had been causing problems. To start the car, the key had to be removed from the fob and inserted in the ignition.

[12] The defendant consumed a significant amount of rum and fell asleep. He recalled that a man knocked on his window. After speaking with him, he went back to sleep. Afterwards there was another knock on the window. This time, it was a policeman. The defendant testified he was startled. This fact, plus a “large prostrate problem” caused him to urinate. He was embarrassed by the wet stain on his pants.

[13] The defendant said this incident has been “devastating”. He has a high tolerance for alcohol and realized he is better without it. He testified he stopped drinking alcohol entirely after this arrest.

[14] When asked why he would drink from a bottle to be brought to dinner, the defendant explained that it was not a gift. It was “something Daniel and I would share to celebrate birth of his daughter”. He said he did not move to the passenger seat because his plan was to have a couple of drinks, have a short nap, and walk to his friend’s home. He added that he was emotionally drained by damage to his home and the extensive repairs done to it. However, drank too much and fell into a deep sleep in the driver’s seat.

[15] The defendant resisted the suggestion that his vehicle was badly parked. He acknowledged it was not properly within the lines and noted he parked well away from the entrance and was far from other vehicles and traffic. He agreed it was not a good idea to be drinking alcohol in his car. He also agreed he was highly intoxicated and that this impairs judgement. He did not agree it was possible he would change his mind and drive in this state. He said, “I have been an advocate against drinking and driving all my live – this car was not going to be moved”.

[16] The defendant was challenged about his assertion that he has a clean driving record. Crown counsel produced a document that shows nine prior infractions, most of which are for speeding. The defendant acknowledged this and explained that he meant he has no record for “this type of offence”.

Legal Framework

[17] In R. v. Duff, 2017 ONCJ 886, I held as follows (at paragraphs 13 – 15):

There are three means of establishing care or control:

i) Evidence of driving because impaired operation is an included offence.

ii) Statutory presumption of care or control set out in section 258(1) (a) of the Criminal Code [now 320.25?]

iii) De facto or actual care or control.

The statutory presumption applies when a person occupies the driver’s seat of a motor vehicle. Where a charge is laid in such a case, the accused must establish on a balance of probabilities that the purpose of occupying the driver’s seat was not to set the vehicle in motion. The risk of danger is not an element of the offence of care or control where the Crown relies on the statutory presumption: R. v. Amyotte, [2009] O.J. No. 5122 (Ont. S.C.), para. 127. However, this risk is relevant to actual care or control.

The mens rea for the offence is the intent to assume care or control after the voluntary consumption of alcohol. In the case of actual care and control, the Crown must establish that there is a realistic probability of a risk of danger. This harm arises in three ways: (i) unintentionally setting a vehicle in motion, (ii) a stationary or inoperable vehicle that may endanger the individual or others, and (iii) an individual who has decided not to drive will change his mind. Cases of actual care or control are fact specific, reflecting the variety of conduct that may come within the definition. See: R. v. Sandhu, [2008] O.J. No. 4584 (Ont. S.C.).

[18] Counsel agree that this is an accurate statement of the law.

Submissions

[19] Defence counsel argues that there is no evidence the defendant consumed alcohol before he parked his vehicle. Counsel also submits that there is no reason not to accept the defendant’s assertion that in occupying the driver’s seat, he did not intend to drive. As such the statutory presumption has been rebutted.

[20] With respect to actual care and control, the Defence asserts that a vehicle partially protruding from a parking spot in a large lot and far from the entrance does not present the required risk of danger. Moreover, counsel suggests these factors show there was not a realistic risk the defendant would change his mind about not driving: He was not parked on the side of a road. He was not wearing his seatbelt and was using his car as a lounge. He is a fit man who had planned to walk to his destination. He had a cell phone with him if he needed a ride.

[21] The Crown concedes there is no evidence the defendant consumed alcohol before parking his vehicle. Counsel notes that it is not enough for the defendant to raise a reasonable doubt with respect to the statutory presumption and adds that he has failed to rebut it on a balance of probabilities.

[22] The Crown argues that the improperly parked car presented a realistic risk of danger to others. In any event, it is submitted that there was a realistic risk the defendant would change his mind about driving. In this regard, counsel points to these factors: The defendant was highly intoxicated. He had ignition keys readily available and occupied the driver’s seat. He parked in a place that was not his final destination. In assessing the credibility of the defendant, counsel added that it is not believable that the defendant would park a 75-minute walk from his final destination. She also suggested the defendant was not truthful about his clean driving record.

Analysis

[23] The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal where the testimony is believed or where the testimony is not believed but raises a reasonable doubt. An acquittal will follow even if the defence evidence is rejected, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty (R. v. W.(D.)).

[24] Probable guilt is not the criminal law standard of proof – it is closer to certainty. A reasonable doubt is a doubt based on reason and common sense which must be logically based on the evidence or lack of evidence (R. v. Villaroman, 2016 SCC 33). In applying the standard, I can accept some, part, or none of what a witness states. The testimony of a witness is assessed based on the person’s sincerity and accuracy.

[25] However, the statutory presumption places a burden of proof on the defendant. I accept his evidence about his original plan and how he came to be so intoxicated. The reality is that he drank far too much and passed out. He has persuaded me that it is more probable than not that, in doing so while occupying the driver’s seat, he did not intend to drive. Since there is no evidence that the defendant consumed alcohol prior to parking his car, the only pathway to conviction is actual care and control. The focus here is on the risk of danger to the public. As noted, this can arise in three ways.

[26] I accept the Defence position that the slight error in parking at the spot in question did not create a risk of danger to others. Moreover, there is nothing to suggest the car would unintentionally be put in motion. The keys were no in the ignition and the key fob was defective. The key had to be removed from the fob to start the engine. Accordingly, the question is whether the Crown has proven that the defendant would change his mind about his intention not to drive.

[27] Counsel referenced the relevant factors to be considered in answering this question. These references are taken from Justice Durno’s helpful guide in R. v. Szymanski, 2009 ONSC 45328 at para 92:

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. 4026 (C.A.), R. v. Ferguson, 15 M.V.R. (5th) 74 (S.C.J.), R. v. Ross, 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 ONCA 700

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 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.

[28] I have thought carefully whether the defendant has been honest with me. In this regard, I note, as his lawyer did, that the defendant is a physically fit man. I do not doubt that he walks regularly and could easily manage a 75-minute walk. While there is no direct evidence before me about how long the defendant has been a licensed driver, given his age and the dates of the driving infractions, I can safely assume it is a long time. In these circumstances, his erroneous assertion that his driving record is clean has been satisfactorily explained; I accept that he meant to convey that he does not have a record of serious infractions.

[29] Cases, such as this one, involving the question of care and control, are almost always fact specific and often determined by the credibility of the defendant. On the record before me, a declaration of innocence might not be warranted. However, the Crown has not met the high burden of proving the defendant guilty because he has raised a reasonable doubt.

[30] It is not controversial that the defendant had an open bottle of alcohol in his vehicle. He is guilty of that offence.

Released: February 12, 2024 Signed: Justice J. De Filippis