ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 37/12
DATE: 20151029

RE: Her Majesty The Queen v. Holly Lawlor

BEFORE: K.L. Campbell J.

COUNSEL:
Megan Petrie, for the Crown, respondent
Bryn Gray, for the accused, appellant

HEARD: September 21, 2015

REASONS FOR DECISION

[Summary Conviction Appeal]

A. Overview

[1] The appellant, Holly Lawlor, was tried by the Honourable Mr. Justice R. Boivin of the Ontario Court of Justice on charges of having the care or control of a motor vehicle (1) while her ability to operate a motor vehicle was impaired by alcohol or a drug; and (2) after having consumed alcohol in such quantity that her blood-alcohol concentration exceeded 80 mgs. of alcohol in 100 mls. of blood. These offences were allegedly committed in Toronto in the early morning hours of May 23, 2009.

[2] The evidence clearly established that, at all material times, the appellant was extremely intoxicated by alcohol. She had spent the night “clubbing” and drinking with her female friend and two male companions. The Intoxilyzer results of her breath samples revealed that, at both 6:57 a.m. and 7:15 a.m. on May 23, 2009, the appellant had 170 mgs. of alcohol per 100 mls. of her blood. Accordingly, she had more than twice the legal limit of alcohol in her blood. Defence counsel expressly conceded that the appellant was “falling down drunk.” The only issue at trial was whether the appellant was in care or control of her vehicle while in this highly intoxicated condition.

[3] On March 14, 2012, at the conclusion of a multi-day trial, the trial judge delivered reasons for judgment finding the appellant guilty of having care or control of her vehicle while her ability to operate the vehicle was impaired by alcohol. In reaching this conclusion, the trial judge provided three alternative grounds of liability. First, the trial judge concluded that the evidence established that the appellant had actually been driving the vehicle at 5:20 a.m., at the time that her friend placed a 911 emergency call, and just six minutes prior to the attendance of the police. The trial judge held that this act of driving the vehicle fell within the definition of having “care or control” of the vehicle. Second, the trial judge held that the statutory presumption of “care or control” outlined in s. 258(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, flowing from the fact that the police found the appellant in the driver’s seat of the vehicle, legally deemed the appellant to be in “care or control” of her vehicle, as the appellant had not established that she had not entered the driver’s seat for the purpose of setting the vehicle in motion. Third, the trial judge concluded that, having regard to all of the circumstances of this case, and all of the legally relevant considerations, the appellant was, in fact, in “care or control” of her vehicle as there was a real risk of danger arising from her involvement with her motor vehicle.

[4] The trial judge also found the appellant guilty of the offence of having the care or control of a motor vehicle while having a blood-alcohol concentration in excess of 80 mgs. of alcohol in 100 mls. of blood, but stayed that charge due to the rule against multiple convictions for the same delict.

[5] In the result, the appellant was sentenced to a fine of $1,200 (with 12 months to pay) and prohibited from driving a motor vehicle for a period of 15 months.

[6] The appellant now appeals against her conviction. For the following reasons, I see no basis to interfere with the appellant’s conviction. Accordingly, the appeal must be dismissed.

B. The Relevant Factual Background

1. The Evening of Drinking and Clubbing

[7] The appellant and her friend, Crystal Jenkinson, spent the night of May 22-23, 2009, drinking and “clubbing” with two men, Jeffrey Joseph and Terrance Mack, who were from New York and visiting Toronto on business.

[8] The appellant had picked up Ms. Jenkinson earlier in the evening, and had driven them both downtown to the Sheraton Hotel where the two men were staying. Originally, the appellant was to be the “designated driver” for the night, but she quickly abandoned that plan. The appellant was drinking vodka that night and consumed “quite a bit.” She started to “pre-drink” when they first arrived at the hotel, while the men were still getting ready to go out, and she continued to drink when they went out to the clubs. Eventually, after they had been to three different clubs in the downtown area, they all returned to the Sheraton Hotel, where the drinking continued for another two or three hours. The appellant estimated that she likely consumed eight or nine vodka drinks by the time they returned to the hotel, but explained that “once you go out, you can’t count after a certain point.” Further, the appellant testified that, after she returned to the hotel, she “chugged” half of a 26 ounce bottle of vodka. The appellant admitted that, thereafter, she was “drunk.”

2. The Decision to Go Home – Arguing With the Valet

[9] Eventually, Ms. Jenkinson wanted to go home. One of the men offered to call a taxi, but the appellant did not want to leave her mother’s car, a silver 1999 Mercedes-Benz, behind at the hotel. Ms. Jenkinson realized that the appellant was too intoxicated to drive. Indeed, it was “clear to all” that the appellant was “clearly intoxicated.” When Ms. Jenkinson explained this to the appellant, one of the males offered to drive them home.

[10] When the appellant asked the valet at the hotel for the keys to her car, the valet refused to give her the keys because she was too drunk to drive. The appellant then aggressively argued with the valet about getting the keys to her vehicle. Eventually, when the appellant assured the valet that she was not going to be driving the vehicle, her vehicle was retrieved. While she eventually told the valet she would not be driving her vehicle, the appellant testified that, at the time, she believed she was able to drive, and she was still intending to drive. She explained that her mind was “not straight” at the time, and she believed she “could do anything.”

3. Driving Along the Highway – The Flat Tire

[11] According to Ms. Jenkinson, when they left the hotel, she and the appellant were in the back seats of the vehicle, while the two men occupied the front seats of the vehicle. Mr. Joseph was driving the vehicle. Ms. Jenkinson thought that she was seated in the rear seat on the passenger side, with the appellant in the rear seat on the driver’s side. The appellant testified, however, that when they left the hotel, one of the men was driving, she was seated in the front passenger seat, and Ms. Jenkinson was seated behind her in the rear passenger seat.

[12] The plan was that Ms. Jenkinson, who lived in Scarborough, would be dropped off first, and then the appellant. The two men would then get a taxi back to the hotel.

[13] As they were heading eastbound in the Mercedes, in the express lanes of Highway 401, the vehicle suffered a flat tire, and stopped on the south shoulder of the highway, just west of Brimley Road and north of the Scarborough Town Center. When the two men realized that there was no spare tire to fix the problem, Ms. Jenkinson called the emergency 911 number for assistance. This call was recorded in its entirety.

4. The 911 Emergency Call by the Appellant’s Friend

[14] During the initial part of the 911 call, Ms. Jenkinson told the operator that they were stuck on the highway with a flat tire, and she explained that trucks were going by and that she was “terrified.” She also tried to advise the operator as to their specific geographic location on the highway. She was clearly seeking some type of road-side assistance. During this first part of the call, Ms. Jenkinson spoke calmly in a normal tone of voice. However, at one point during this call, Ms. Jenkinson became very excited and started yelling. The audio recording of this part of the 911 call revealed that the following conversation took place involving Ms. Jenkinson and the appellant:

Crystal Jenkinson: You’re insane. You’re going to get us killed. Get me out of the car. Get me out of the car. Pull over. Pull over and get me out – pull over right now. Pull over right now. Thank you. Just let me out here. Just let me out before I die. Holly, just let me out. I’m so sorry, but I’m terrified right now. I’m terrified. Let me out, okay”

Holly Lawlor: We’re all fucking terrified; so just shut the fuck up, okay?

Crystal Jenkinson: Holly, you’re a dumb cunt and you deserve to die. Let me out.

[15] At that point, the 911 operator was able to successfully intervene in the conversation, and she asked Ms. Jenkinson whether the car was on the right or left shoulder of the highway. In responding “the right” Ms. Jenkinson seemed relatively calm again. When the operator asked Ms. Jenkinson, “why are you yelling,” Ms. Jenkinson ended the call.

5. The Evidence of Crystal Jenkinson

[16] Initially in her evidence, Ms. Jenkinson testified that the two men were in the front seats of the vehicle (one of the men was driving), and she and the appellant were in the back seats of the vehicle. She denied that the appellant was ever driving. More specifically, she denied that the appellant drove the vehicle anytime after they had the flat tire. However, after she heard the audio recording of her 911 call, Ms. Jenkinson testified that the events were “all a blur now” in her memory. She explained that “the driver must have continued to drive or something, thinking that the tire’s not that flat,” and that was when she started to “freak out” and started to yell at the appellant to let her out. Ms. Jenkinson did not recall who she was speaking to, but surmised that it was someone who was “blocking [her] way out of the car.” She noted that the vehicle only had two doors, so “someone has to get out” to allow her to get out of the back seat area. Ms. Jenkinson maintained that the appellant was not the person driving the vehicle at the time of the 911 emergency call. Ms. Jenkinson agreed that she called the appellant a name, and said that she “deserved to die,” but explained that she said this because it was the appellant who got them into the situation because it was her vehicle. Ms. Jenkinson denied that she had just invented this new explanation for what she said on the 911 call, but she agreed that her “clear purpose” in testifying was “not necessarily” to be “entirely truthful,” but to make sure that “[her] friend was not convicted of any offence as a result of [her] testimony.”

[17] In his reasons for judgment, the trial judge described the evidence of Ms. Jenkinson as “argumentative” and at times “unresponsive” when confronted with her “irreconcilable testimony.” The trial judge concluded that Ms. Jenkinson was “unable to explain the content of the 911 tape” and that her testimony that the appellant was not driving when the 911 call was made was “not believable.” The trial judge concluded that the audiotape of the 911 call “makes it clear that the vehicle is moving” at the time of the call, and that the appellant “is driving” and Ms. Jenkinson is making the call “because she feared for her safety, because the [appellant] was driving in such a manner or with the vehicle in such a condition that she feared for her safety.”

6. The Appellant’s Evidence – Rejected by the Trial Judge

[18] The appellant testified in her defence, and provided different and inconsistent versions of the key events concerning the highway drive on the way home, experiencing the flat tire, the 911 call by her friend, and someone else attempting to drive the vehicle with a flat tire to a safer location.

[19] The appellant admitted that, at the time, she was “knocked out” drunk and “finished for the night.” She did not think she was capable of driving at that point. She also admitted that her memory of that night only began to slowly come back to her “months later” as she began “piecing it together.”

[20] In his reasons for judgment, the trial judge reviewed the appellant’s evidence in detail, and concluded that it was “replete with vague and inconsistent statements” and, at times, the appellant appeared to be “inventing her testimony.” The trial judge concluded that her testimony provided “no assurance that her purported limited, incomplete and late-arriving memory” was not “but a fanciful reconstruction of the events in question.” The trial judge described the appellant’s explanation for her “refreshed” memory as “vague and lame” as her “purported recall is fraught with gaps, contradictions and lapses.” The trial judge noted that her initially expressed belief that “she had driven” her vehicle was “more consistent” with the evidence on the 911 audiotape. In the final analysis, the trial judge found the appellant’s testimony to be “unbelievable” and he rejected her evidence.

7. The Appellant Was Driving – The Finding of Fact by the Trial Judge

[21] The trial judge found as a fact that while Ms. Jenkinson was placing the 911 call, at 5:20 a.m., the appellant was driving the motor vehicle while one tire on the vehicle was flat. That was why Ms. Jenkinson was screaming during the 911 call for the appellant to “pull over.” In reaching this conclusion, the trial judge indicated that, on the “whole of the evidence,” he was satisfied “beyond a reasonable doubt” that the appellant “drove the vehicle while the 911 call” was taking place and “just prior to the arrival of the police.”

8. The Police Evidence

[22] At 5:26 a.m. on May 23, 2009, Cst. Darryl Myers of the Ontario Provincial Police (OPP) arrived at the scene. He found the silver Mercedes-Benz parked on the paved shoulder of the highway. All of the tires of the vehicle were “completely bald” and the front passenger side tire was flat. The appellant was the lone occupant of the vehicle, and she was sitting in the driver’s seat. Ms. Jenkinson was outside the vehicle, behind the guard rail, in the small grassy area between the express and collector lanes of the highway, just a short distance from the vehicle. The two men were approximately 500 meters east of the vehicle and walking along the highway exit ramp to Brimley Road.

[23] When Cst. Myers approached the appellant, from the passenger side of the vehicle, he observed the specialized Mercedes keys to the vehicle on the front passenger seat of the vehicle, within reach of the appellant. He detected a “strong odour of alcohol” emanating from inside the vehicle. When Cst. Myers greeted the appellant and asked her what was “going on,” she replied, “I was trying to get my friends home.” Cst. Myers inferred from this comment that the appellant was “attempting to drive her friends home,” in that the appellant was either going to drive them, or had already driven them. When Cst. Myers asked the appellant where her friends were, the appellant said “they left.”

[24] Cst. Myers asked the appellant to exit the vehicle so they could talk and, when she did, he noticed that she was “extremely unsteady on her feet,” and needed to use her right hand to steady herself against the vehicle as she walked around it. In response to further inquiries by the officer, the appellant indicated that the car was her vehicle and that she had consumed one beer that night. While speaking to the appellant, Cst. Myers could smell the odour of alcohol on her breath. The officer also observed that the appellant had slurred speech, and her eyes were red, glossy, watery and bloodshot. Cst. Myers also noticed that even though the appellant was wearing low-heeled boots and standing on the smooth paved shoulder of the highway, she continued to brace herself by leaning against the vehicle.

[25] Based upon his observations as to the appellant’s various indicia of alcohol impairment, and his belief that the appellant had driven the vehicle, or was going to drive the vehicle, Cst. Myers formed reasonable and probable grounds to arrest the appellant for having care or control of a motor vehicle while her ability to operate such a vehicle was impaired by alcohol. After arresting the appellant, and placing her in handcuffs and putting her in the rear seat of the police car, Cst. Myers advised her of her right to counsel pursuant to s. 10(b) of the Canadian Charter of Rights and Freedoms, and cautioned her about making any statements. Cst. Myers then demanded that the appellant provide samples of her breath suitable for analysis in an approved instrument.

[26] Once they arrived at the police detachment and the appellant was permitted to consult with counsel, she provided two breath samples into an approved instrument, and the Intoxilyzer revealed that both samples established that the appellant had 170 mgs. of alcohol in 100 mls. of her blood.

[27] At 8:49 a.m., after the breath tests had been completed and Cst. Myers was completing the necessary paper-work and preparing to release the appellant, Cst. Myers noted that the appellant was “still highly intoxicated,” and was “stumbling into the walls” at the police station.

C. Analysis

1. The Hearsay Issue – The Admissibility of the Statements of the Two Men

(Sections continue exactly as in the original judgment through paragraph [51].)

D. Conclusion

[51] In the result, the appeal against conviction must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: October 29, 2015