Court File and Parties

COURT FILE NO.: CR-13-00007340-00MO DATE: 20170609 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ALEKSANDR GULAK Appellant

Counsel: Bradley Juriansz, for the Crown Boris Bytensky, for the Appellant

HEARD: April 21, 2017

REASONS FOR DECISION

DI LUCA J. :

[1] On March 10, 2015, following a three-day trial before Rose J., the Appellant was found guilty of having care or control of a motor vehicle while impaired, as well as having care or control of a motor vehicle while his blood alcohol concentration was over 80 mgs. of alcohol in 100 ml. of blood. A conviction was entered on the Over 80 count and a stay of proceedings was entered on the Impaired count. The Appellant was sentenced to a fine of $1,300 with a one year driving prohibition.

[2] At trial, the only issue was whether the Appellant was in care or control of the vehicle. It was admitted that at the relevant time, he was impaired and that his blood alcohol concentration was over 80 mgs. The learned trial judge applied the presumption of care or control found in s. 258(1) of the Criminal Code . He also found, in obiter, that even in the absence of the presumption, the Appellant was in de facto care or control and that there was a realistic risk of danger in the Appellant’s conduct involving the vehicle.

[3] The Appellant appeals his conviction and finding of guilt and submits that the learned trial judge erred:

i. In finding that a “realistic risk of danger” is not a required element of the offence of care or control where the Crown relies on the presumption of care or control in s. 258(1) of the Criminal Code;

ii. In unreasonably finding, albeit in obiter, that a realistic risk of danger was nonetheless established on the evidence; and,

iii. In improperly or unfairly assessing the Appellant’s evidence.

[4] The Appellant seeks an acquittal or in the alternative, a new trial.

[5] For the reasons that follow, I am not satisfied that the learned trial judge erred in law, reached an unreasonable finding or erred in his assessment of the Appellant’s evidence.

OVERVIEW OF THE FACTS

[6] Jagmeet Dhinsa testified that on September 22, 2013, he was driving his vehicle eastbound on Freedom Trail in Maple. At approximately 7:00 a.m., he observed a silver BMW car lodged on a tree on the boulevard. The Appellant and another man, Vladimir Prihodko also known as Vova, were standing outside of the car. Mr. Dhinsa stopped and asked the men if they were okay. In response, they asked whether Mr. Dhinsa had cables, to which he responded no. Mr. Dhinsa then continued driving but stopped his car approximately 100 metres down the road and called 911.

[7] Mr. Dhinsa testified that, looking westbound from his car, he witnessed the Appellant get into the driver’s seat of the BMW. The reverse lights subsequently went on and off about two to three times. He saw no other lights, no keys and no exhaust. Mr. Dhinsa did not see the car move and no one else entered the vehicle. The Appellant remained in the vehicle for a couple of minutes but exited the vehicle before the police arrived.

[8] Four officers attended at the scene, including PC Brodhagen who testified that she spoke with the Appellant and noticed signs of impairment, including a strong odour of alcohol on the Appellant’s breath, swaying, unsteadiness, incoherent speech and bloodshot eyes. Later that morning, the Appellant provided breath samples to a Qualified Breath Technician who obtained readings of 180 and 170 mgs. alcohol in 100 mls. of blood. The blood alcohol concentration readings were admitted to be between 170 and 220 mgs. of alcohol in 100 mls. of blood between 6:33 a.m. and 7:03 a.m., the time of the alleged offence.

[9] PC Brodhagen testified that both driver side wheels of the BMW were flat and the car was stuck, leading her to initially believe it could not be driven. However, she later came to believe that if the BMW was extricated from the tree, it could be put in motion. PC Brodhagen made no attempt to put the car in motion. She was present when a tow truck was used to extricate the vehicle.

[10] The Appellant testified that the BMW belonged to his father, with whom he shared a residence in the Town of Georgina. He explained that, on September 21, 2013, he drove to a wedding reception being held at Mr. Prihodko’s parents’ house located a few blocks from where the silver BMW was found by police. At or around 1:00 a.m., a friend named Andre Kramarov or Kramarovsky borrowed the keys to the BMW. The Appellant, who was admittedly drunk, later got a call from Andre explaining that the car was stuck on a tree nearby and that he was leaving the scene. After attending at the scene but unable to locate the keys, the Appellant returned to Mr. Prihodko’s parents’ house to seek help. Mr. Prihodko then drove to the scene in his blue Subaru.

[11] The Appellant admitted that he entered the vehicle via the driver’s seat to search for the keys but did not find them. He denied putting the car in reverse. Both the Appellant and Mr. Prihodko tried to remove the BMW from the tree by hand. They also tried to remove the BMW by using Mr. Prihodko’s Subaru to push it off the tree. The Appellant testified that none of these options worked and he was therefore going to call a tow truck. However, he did not have the opportunity to do so before the police arrived.

[12] The police did not find keys on the Appellant or in the vehicle. The Appellant testified that a few days after his arrest, he met with Andre to retrieve the keys to the BMW. During the exchange, there was only discussion of the arrest and money for damage to the car. The Appellant claimed that this meeting was the last time he saw Andre, who had thereafter left the country.

OVERVIEW OF THE TRIAL JUDGE’S DECISION

[13] At trial, it was conceded that during the relevant time the Appellant’s blood alcohol level exceeded the legal limit and he was impaired. The only issue was whether Mr. Gulak was in care or control of the silver BMW between 6:33 and 7:03 a.m. on September 22, 2013. In addressing this issue, the trial judge provided the following overview of the relevant legal principles at paras. 19 – 20 of his Reasons:

Where the accused is occupying the driver's seat of a motor vehicle, s. 258(1)(a) of the Criminal Code creates a legal presumption that the accused is in care or control of that vehicle. That presumption is rebuttable where the accused can prove on a balance of probabilities that he or she did not occupy the driver's seat for the purpose of setting the vehicle in motion (see R. v. Smits, 2012 ONCA 524 at para. 47). That much is straightforward. Mr. Bytensky's argument is that, even if the accused does not rebut the presumption in s. 258(1)(a) of the Criminal Code, the Crown must still go further to prove a risk of harm. That argument stems from R. v. Boudreault, 2012 SCC 56, where Fish J. commented at paragraphs 38-39 regarding whether a conviction for impaired care or control necessarily follows when there is no realistic risk of danger in a particular case. In R. v. Blair, 2014 ONSC 5327, Trotter J. quoted (at para. 13) from those paragraphs and said,

However, this passage must be considered in context. The majority in Boudreault was merely describing the operation of the presumption in the light of its holding in Whyte. There is nothing in the language of Boudreault that suggests that the Court modified or altered the operation of the presumption by requiring the Crown to go further and prove a realistic risk of danger when the presumption stands rebutted. When the presumption is not rebutted, all elements of "care or control" (both the mens rea and actus reus components, as described in Smith, paras 49 to 51) are deemed to exist.

Notwithstanding Mr. Bytensky's able argument that I should not follow Blair, I do follow Blair. Clearly Blair is a Summary Conviction Appeal decision which is binding on me qua Summary Conviction trial judge. Subject to my comments below, as a matter of stare decisis I am not at liberty to ignore it. I would also add that Justice Trotter's explanation makes sense. Parliament could have added a 'realistic risk of danger' requirement to the language of s. 258(1)(a) of the Criminal Code but didn't. Surely the reason why is that the very presence of an impaired or Over 80 person in the driver's seat of a motor vehicle, airplane, or train, with the intention of setting it in motion etc., is itself a societal harm requiring the sanction of criminal law. As Trotter J. said in Blair, where the presumption under s. 258(1)(a) of the Criminal Code is not rebutted, the Crown is not required to prove a realistic risk of danger because "... That risk is embedded in the presumption." (Blair at para. 15). Reading the Criminal Code as a coherent whole, any additional risk requirement in s. 258(1)(a) of the Criminal Code simply doesn't fit. Put another way, adding an additional risk component to s. 258(1)(a) of the Criminal Code renders the presumption of care or control quite meaningless. See also R. v. Mackenzie, [2013] A.J. No. 899 (Alta. Q.B.), and from this Court R. v. Tharumakulasingam, 2014 ONCJ 362, R. v. Coomansingh, 2014 ONCJ 560 at para. 32, and R. v. Arulrasan [2015 CarswellOnt 2704 (Ont. C.J.)] West J. Feb. 24, 2015. Where the vehicle is inoperable, this may speak to rebutting the presumption under s. 258(1)(a) of the Criminal Code depending on the individual case, see R. v. Amyotte, [2009] O.J. No. 5122 (Ont. S.C.J.).

[14] The trial judge found that Mr. Dhinsa was a credible witness and accepted his testimony that after the Appellant entered the driver’s seat of the vehicle, the reverse lights came on two to three times.

[15] The trial judge rejected the Appellant’s evidence noting the following frailties:

i. The Appellant failed to provide a reason for Andre’s presence at the party, a small wedding party where the only person Andre knew was the Appellant, or Andre’s inability to leave by the same means that he attended the party;

ii. It was implausible that the Appellant would lend his father’s car keys to a person he does not seem to know very much about or even lend the keys when his residence is quite a distance away;

iii. The Appellant failed to request assistance from Andre regarding the charges during their meeting to exchange the keys;

iv. It was implausible that the Appellant would try to move the car with Mr. Prihodko before first trying to find the key; and

v. The unexplained Tim Hortons’ tea cups suggested a missing factual component to the Appellant’s narrative.

[16] Based on these frailties, the trial judge rejected the Appellant’s explanation for why he entered the car and occupied the driver’s seat. As a result, he found that the presumption of care or control had not been rebutted.

[17] Though unnecessary in light of the findings regarding the presumption, the trial judge proceeded to consider whether the Appellant was also in de facto care or control. In this regard, the trial judge noted the three recognized risks as set out in R. v. Smits, 2012 ONCA 524 at para. 53:

…danger can come in many forms. It would appear that three risks of danger have been identified in the cases where an intoxicated individual uses a motor vehicle for a non-driving purpose:

(i) The risk that the vehicle will unintentionally be set in motion: see R. v. Ford, [1982] 1 S.C.R. 231;

(ii) The risk that through negligence a stationary or inoperable vehicle may endanger the individual or others: see R. v. Vansickle, [1990] O.J. No. 3235 (Ont. C.A.), aff'g [1988] O.J. No. 2935 (Ont. Dist. Ct.);

(iii) The risk that the individual who has decided not to drive will change his or her mind and drive while still impaired: see R. v. Pelletier (2000), 6 M.V.R. (4th) 152 (Ont. C.A.).

[18] In assessing whether the evidence supported a finding that these risks had been proven, the trial judge applied the factors set out in R. v. Szymanski 2009 CarswellOnt 5150. The trial judge found that all three risks had been established. He found that the Appellant’s attempts to push the car off the tree were risky and posed a potential hazard to passers-by. He based this finding on the evidence that the Appellant attempted to move the BMW with Mr. Prihodko’s Subaru and intended to move the BMW with a tow truck.

[19] The trial judge found that the danger presented was not affected by the availability of the key, though he implicitly found that the key was in or near the car. He also found that the vehicle’s apparent immovability was not a defence to de facto care or control, and further that no evidence was presented as to the vehicle’s inoperability. On the whole, the trial judge was satisfied beyond a reasonable doubt that the Appellant was in de facto care or control of the vehicle at the relevant time and that there was a realistic risk of danger to his actions.

ARGUMENTS ON APPEAL

(i) Realistic Risk of Danger in Presumption Cases

[20] The Appellant submits that the “realistic risk of danger” analysis should be applied to all care or control cases, including cases where the presumption applies. He bases this submission on Fish J.’s comments in R. v. Boudreault, 2012 SCC 56 at paras. 38-39. In the Appellant’s submission, the realistic risk of danger is an element of the offence that must be proven by the Crown in all cases of care or control. In the vast majority of cases where the presumption applies, the realistic risk of danger will be obvious given the accused’s presence in the driver’s seat with a presumed intention to set the vehicle in motion. Nonetheless, the Appellant submits that there may be rare cases where the presumption applies but there is no realistic risk of danger. In those cases, the accused should be entitled to an acquittal.

[21] The Appellant skilfully argues that adopting the “realistic risk of danger” analysis in all cases of care or control will add consistency and clarity to the law. He points to the jurisprudential gymnastics that arise in the lines of case law assessing the distinction between “immovable” and “inoperable” vehicles, and suggests that these lines of authority can be rationalized by simply adopting and applying the “realistic risk of danger” analysis in all cases.

[22] The Respondent’s position is that the “realistic risk of danger” analysis is only required in cases where the presumption does not apply. The Respondent argues that the application of the presumption results in a complete finding of care or control, without the need of proving any additional element of risk. To require the additional proof of a “realistic risk of danger” would render the presumption redundant. In effect, the application of the presumption results in a deemed “realistic risk of danger.” The Crown also submits that the case law since Boudreault has largely supported this interpretation.

[23] In R. v. Tharumakulasingam, 2016 ONSC 2008 at paras. 13-17, Code J. addressed this issue as follows:

The second ground of appeal alleges that the recent decision of the Supreme Court in R. v. Boudreault (2012), 2012 SCC 56, 290 C.C.C. (3d) 222 (S.C.C.) holds that even when the presumption of “care or control” applies and has not been rebutted, the Crown must still go on and prove an additional element of “risk of danger”. The trial judge rejected this argument. I agree with the trial judge. Furthermore, two decisions of this Court have already rejected the Appellant’s argument on this point and there is no basis on which I could or should depart from these decisions of coordinate authority. See: R. v. Blair, 2014 ONSC 5327, per Trotter J.; R. v. Brzozowski, 2013 ONSC 2271, per Fragomeni J. Nevertheless, this second ground of appeal was the one that was pressed most forcefully by the Appellant.

There is admittedly one paragraph in Fish J.’s reasons for the majority in Boudreault, supra at para. 39, which could possibly be read as supporting the Appellant’s argument, provided that paragraph is read in isolation. It reads as follows:

Put differently, s.258(1)(a) of the Criminal Code indicates that proof of voluntary inebriation and voluntary occupancy of the driver’s seat do not by their coexistence alone conclusively establish “care or control” under s.253(1) of the Criminal Code. Something more is required and, in my view, the “something more” is a realistic risk of danger to persons or property.

In my view, this paragraph is simply addressing a case where the presumption is rebutted by proof of no intent to drive, which is what happened at trial in Boudreault. It is significant that Fish J. began the paragraph with the phrase, “Put differently …” In other words, he was simply trying to re-phrase what he had already said in earlier paragraphs. Those immediately preceding paragraphs, namely paras. 36-38, make it clear that in cases where the presumption of “care or control” applies, “an accused found in the driver’s seat will be presumed, as a matter of law, to have care or control of the vehicle, unless the accused satisfies the court that he or she had no intention to drive” [emphasis added]. Subsequent paragraphs in the judgement, in particular, paras. 41, 44, 46, 47 and 67, make it clear that the Boudreault decision has nothing to do with cases where the Crown successfully resorts to the presumption in s. 258(1)(a) of the Criminal Code in order to prove “care or control”. In particular, Fish J. stated (Boudreault, supra at para. 41):

A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control. On the other hand, an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion – without intending at that moment to do so – may nevertheless present a realistic risk of danger. [italics of Fish J. in the original; under-lining added].

In other words, the Boudreault “risk of danger” analysis is subsumed by and included within the Crown’s successful resort to the presumption.

Finally, it should be noted that Fish J. approved of a line of appellate authority (Boudreault, supra at para. 27) which holds that, “the presence or absence of danger will have no effect when the statutory presumption applies and is not rebutted”, per Scott C.J.M. in R. v. Burbella (2002) 2002 MBCA 106, 167 C.C.C. (3d) 495 at para. 16 (Man. C.A.) and that, “danger is not … an essential element of the offence … in cases where the Crown invokes the statutory presumption and the accused is unable to rebut it”, per Robertson J.A. in R. v. Mallery (2008) 2008 NBCA 18, 231 C.C.C. (3d) 203 at para. 46 (N.B.C.A.).

[24] While I am inclined to agree with Code J.’s analysis, I only need to determine this issue if I find that the trial judge erred in his findings in relation to de facto care or control. If the findings in relation to de facto care or control are unassailable, the legal issue presented, while compelling, is moot for the purpose of this appeal.

(ii) Errors in Determining De Facto Care or Control

[25] I turn then to the arguments raised in relation to the finding of de facto care or control. The Appellant argues that the trial judge used the wrong legal framework and further that he reached an unreasonable conclusion on the issue of care or control.

[26] In relation to the legal framework, the Appellant argues that the trial judge erred by using the “risk” analysis from Smits instead of the “reasonable risk of danger” analysis from Boudreault. The Appellant submits that the distinction between the two is nuanced but nonetheless important.

[27] I disagree. In my view, the three types of “risk” noted in Smits are risks that amount to a “reasonable risk of danger” as discussed in Boudreault where those risks are realistic and not just theoretically possible.

[28] The trial judge concluded that the Appellant wanted to move his vehicle off of the tree and onto the roadway. He further found that the Appellant and his friend used a second car in an attempt to accomplish this task. This finding was supported by evidence of the muddy tire tracks and damage to both vehicles. As well, he found that a tow ring had been inserted into the bumper of the car, further supporting the existence of an intention to move the vehicle onto the roadway. The trial judge concluded that this conduct was very risky and could have resulted in the vehicle entering the roadway and posing a hazard to passing motorists. This finding is, in effect, a finding that the risk of danger posed by the vehicle was not merely theoretical, but rather realistic or reasonable. There is no legal error in this analysis.

[29] Turning to the reasonableness of the finding of de facto care or control, I note at the outset that my role in this regard is not to re-try the case. The trial judge made a number of factual findings that I am only entitled to revisit if I find that they are clearly or manifestly unreasonable.

[30] One main area of concern relates to the presence or absence of the key for the BMW. An agreed statement of fact tendered at trial indicated that both the Appellant and the vehicle were searched and no key was found by police. However, the Appellant’s evidence that the key was given to the driver of the vehicle, Andre, was rejected by the trial judge. In view of this rejection and in view of the accepted evidence that the independent civilian witness observed the reverse lights come on two to three times when the Appellant was in the driver’s seat of the BMW, the trial judge was clearly entitled to make the following finding at para. 31 of his Reasons:

There was no evidence that the keys were present at the scene or even on Mr. Gulak when he was arrested. I heard argument that the BMW was inoperable because of the lack of a key. In my view it is one thing to say that there is no evidence of a key – which is the evidence from the trial - and something quite different to say that the key is so far away as to render the BMW inoperable. I have rejected Mr. Gulak’s evidence about Andre, and I do not find that there is positive evidence that the unavailability of the key made the BMW inoperable. Mr. Dhinsa’s evidence that the BMW was put into reverse 2 – 3 times gives me great concern that the BMW key was present at the scene but simply did not turn up. I heard no evidence that the police looked for the key and never found it in the vicinity.

[31] There is no basis to interfere with this finding.

[32] The Appellant also challenges the finding that the there was a risk that the vehicle could be unintentionally set in motion. He argues that this finding was unreasonable as the Appellant had unsuccessfully engaged in intentional efforts to set the vehicle in motion and a tow truck was ultimately required to extract the vehicle from the tree. In my view, the trial judge was entitled to make the finding that the vehicle could be unintentionally set in motion. The intention was to dislodge the vehicle from the tree and ostensibly park it on the side of the road. It was clearly foreseeable that in attempting to do so, especially using another car, there would a risk of an unintended movement of the vehicle. To state but one realistic possibility, it was readily foreseeable that in attempting to dislodge the vehicle in the manner chosen, the vehicle might roll into the middle of the roadway or down the roadway, both unintentional though foreseeable and risky movements.

[33] The Appellant also challenges the trial judge’s finding that if the Appellant had succeeded in pushing his car off of the boulevard into oncoming traffic, it would have posed a hazard to passing motorists. He argues that in the circumstances of this case, the movement of the car onto the roadway could have posed no risk of danger as the road was wide and clear and any car sitting on the roadway would have been visible and avoidable by others. The trial judge made clear and supportable factual findings that the Appellant, while impaired, was engaged in a number of efforts to get his car off the boulevard and onto the roadway. He further found that the act of moving the car onto the roadway would pose a hazard. The hazard posed does not need to be a manifest hazard. Indeed, it does not even need to be probable or likely. It just needs to be a realistic hazard. Viewed in that context, it was open to the trial judge to conclude that moving the vehicle in the manner chosen would realistically create a hazard. That finding is amply supported in the record.

[34] The Appellant argues that the Appellant’s intention to call a tow truck to remove the vehicle would not lead to a finding of a realistic risk of danger because the tow truck could have towed the vehicle to a garage, to Mr. Prihodko’s home or simply parked it on the side of the street. The trial judge, however, found that even if the Appellant had chosen not to drive the car, there was a risk that the Appellant might change his mind and drive or attempt to drive while impaired. The Appellant points to the absence of the car key as a fact that supports his argument that this finding was unreasonable. In my view, the trial judge was entitled to make the findings he made. He did not find that there was no car key present. Indeed, he only found that the car key was not found on the Appellant or in the car. Implicit in his acceptance of the reverse light evidence is that the key must have been in or close to the car. In view of this implicit finding and in view of the efforts undertaken to move the car, the trial judge’s findings on this issue were not unreasonable.

[35] As a result, I find that the trial judge committed no legal error in his analysis of de facto care or control. I further find that his determination of the issue was not unreasonable. Therefore, even assuming that the “realistic risk of danger” analysis from Boudreault is required in cases where the presumption of care or control applies, the trial judge’s findings on the realistic risk of danger in this case foreclose the availability of any appellate remedy.

(iii) Credibility Analysis

[36] The Appellant lastly submits that the learned trial judge improperly or unfairly assessed the Appellant’s evidence. Specifically, he asserts that the trial judge erred in making negative credibility findings related to the Appellant’s failure to recall the circumstances of how the Tim Hortons cup arrived at the scene. According to the Appellant, this could not have reasonably formed the basis for a negative credibility assessment as it was not a significant factor in the overall narrative.

[37] The Appellant also argues that the Crown failed to cross-examine the Appellant on key assertions it later argued undermined his credibility. In particular, the Appellant notes that the Crown never suggested in cross-examination that there was no “Andre”, that the Appellant had the car key in his possession, and the Appellant was operating the vehicle at the time of the accident. In the absence of cross-examination on these issues, it was unfair for the trial judge to simply accept the Crown’s submissions and make negative findings of credibility against the Appellant.

[38] In my view, these arguments are essentially an invitation to re-assess the evidence at trial. The trial judge was in the best position to assess the credibility of the parties, including the Appellant. The trial judge gave reasons supporting his various credibility findings. While I might have had a different view of the import of the Tim Hortons cup in the context of the evidence as a whole, my role is not to merely substitute what I might have found for the findings made by the trial judge. My role is to assess whether those findings were reasonably available and, in my view, they were.

[39] In relation to the absence of cross-examination by the Crown on certain aspects of the Appellant’s evidence, I agree that it would have been preferable for the Crown to challenge each key aspect of the Appellant’s testimony. However, the failure to do so did not result in an unfairness. This was not a Browne v. Dunn scenario where contradictory evidence was called. Moreover, the Appellant was challenged on a number of aspects of his testimony and the Crown’s general position on his version of events as a whole was made clear to him.

[40] Ultimately, the Appellant’s version of events lacked credibility and it was open to the trial judge to make that finding. There is no merit to the suggestion that the trial judge’s credibility assessment was flawed.

[41] The appeal is dismissed and the order staying the driving prohibition is vacated.

Justice J. Di Luca

Released: June 9, 2017

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ALEKSANDR GULAK Appellant REASONS FOR DECISION Justice J. Di Luca

Released: June 9, 2017