Crown only has to prove ‘realistic risk’

The bar for the Crown to meet to prove that there was a “realistic risk” to the public by someone found intoxicated inside a parked car is a low one, an Ontario Superior Court judge stressed in a recent ruling.

Justice Casey Hill also noted in R. v. Pukas that individuals charged with “care or control” of a vehicle while impaired must show that they took credible steps to ensure they were not going to drive while impaired for any chance of an acquittal.

“Given that drunk-driving has remained a major social problem, and in light of the potential harm to innocent persons represented by a moving vehicle in the hands of a drunk driver, the realistic risk of harm of concern to the criminal law must be assessed on a low threshold,” wrote Hill in his judgment issued Oct. 30.

“An unarranged, aborted or partial or unexecuted plan may reasonably and justifiably result in a trier of fact concluding that the inherent risk posed by a drunk driver in the driver’s seat of a vehicle, in possession of the vehicle keys, remains a realistic risk of danger to the public,” the Superior Court judge added.

The ruling in Pukas followed the law as set out by the Supreme Court of Canada in 2012 in R. v. Boudreault. Given the stature of Hill in the criminal law community, his analysis of how to apply the law at the trial level will likely be followed by other judges, says defence lawyer Michael Kruse.

“Justice Hill always does an excellent job of synthesizing the law. This ruling provides further clarity to Boudreault,” says Kruse, who heads Kruse Law, a firm with multiple offices in southern Ontario.

Brett McGarry, an Ottawa-based defence lawyer, says the decision sets out clearly what the Crown must prove in a care or control offence and also what the evidentiary burden is on a defendant to raise a reasonable doubt.

“This ruling reminds everyone that the Crown does not have to prove a probable risk, but just a risk,” says McGarry.

The case before Hill was an appeal of a decision by provincial court Justice Paul Currie, who convicted Dariusz Pukas of care or control of a motor vehicle with a concentration of alcohol in his system above the legal limit.

Police found Pukas passed out in the front seat of his car in a parking lot behind a business in Mississauga, Ont. The driver’s door was open and his car keys were in his pocket. He was found to have a blood alcohol level nearly three times the legal limit.

The trial judge heard that Pukas admitted he drank a lot of vodka at a bar that night, to “numb the pain” of some personal issues, but that he never had any intention of driving home and does not drink and drive. He testified that he went back to his car to get his mobile phone but felt dizzy, sat down on the driver’s seat and then his memory “finished” until he was roused by a police officer.

The relevant Criminal Code provisions for the offence include a presumption that someone in the driver’s seat of a vehicle has care or control over it, although this can be rebutted.

The trial judge found that Pukas had rebutted this presumption because the car door was open. However, based on the level of intoxication and lack of a credible alternative plan to get home, he was convicted of the offence.

In the appeal before the Superior Court, defence lawyer Richard Posner argued that once the driver’s seat presumption was rebutted, the trial judge had effectively reversed the onus on whether there was a realistic risk. This argument was rejected by Hill.

Posner could not be reached for comment.

“The trial judge’s employ of the language of being far from ‘satisfied’ of the existence of a “concrete and reliable plan” must be understood, not as a reversal of the burden of proof, but rather recognition of the tactical burden of the appellant to adduce evidence that the inherent risk of danger (consumption of alcohol plus present ability to drive while impaired) did not pose a realistic risk in the particular circumstances of this case,” wrote Hill.

“Stepping back for a moment, within the context of whether the reasoning and verdict of the trial court was reasonable and supported by the evidence, the appellant’s version of events, presented as a sober witness at trial, was essentially: ‘I don’t drink and drive,’” the Superior Court judge wrote.

“There was no evidence of an objectively tangible and definite implemented plan remotely reaching the level of an arrangement to reduce the inherent risk presented by the inebriated appellant seated in his vehicle with the vehicle key,” said Hill.

The specifics of any plan and the level of impairment are always key factors in these types of cases, Kruse says.

“It is difficult to achieve an acquittal if you do not have a concrete plan that has been implemented, such as having called for a taxi,” he notes.

As well, he says, courts are less likely to accept the evidence of an individual who was found in their car and had a high level of impairment.

“You may not have had any intention to drive, but there is a risk you will change your mind,” Kruse says.

In rural areas where taxis are not as readily available, deciding to “sleep it off” in your car is not necessarily going to be a valid defence, he says.

“You may wake up and think you are sober, but you are still over the legal limit,” Kruse explains.

Even if you truly don’t intend to drive, says McGarry, a care or control case is difficult to defend.

“If you are in the driver’s seat, you are running a very high risk of being convicted. This especially applies if you are found in a parking lot or a bar. Judges will not have a lot of sympathy,” he says.

The chances of an acquittal may be better, he suggests, if you are found in your car at home.

“Being at your final destination is a key factor,” McGarry says.

He adds that a list of circumstances to consider in the risk analysis was outlined in 2012 by the Ontario Court of Appeal in its decision in R. v. Smits. They included the location of the vehicle, whether the keys were in the ignition or readily available, the level of impairment and any alternative plans to get home.