An Ontario Court judge has convicted Erin Medakovic (“Medakovic”) of impaired driving when she was found asleep in a parked vehicle with the engine running and the driver’s door open.
Justice Vanessa Christie ruled that the Crown prosecutor had demonstrated “there was a realistic risk that Ms. Medakovic, who admittedly was impaired behind the wheel, may unintentionally set the vehicle in motion”.
On April 24, 2017, in the Town of Northeastern Manitoulin, the police were contacted by a man returning from working the night shift who noticed a car driver’s door open, the engine running and a woman in the driver’s seat. Officers attended at 1:50 a.m. and found a woman in a deep sleep in the reclined driver’s seat, with the door open and the engine running. The woman woke up after the officers tapped on the car window for 30 seconds. She sat up, had slow, slurred and laboured speech.
Inside the car, the officers found an LCBO bag with six empty cans and inside a purse they found Medakovic’s identification.
The officers administered a breath sample test which showed readings of 195 and 193, which were double the legal allowable level.
Medakovic told the officers she had eight beers and had been drinking since 2 p.m. She informed the officers that her last drink was at 11 p.m. and she had been asleep in her car for an hour. Medakovic told officers she thought it was ridiculous that she could not remain in her car and “sleep it off”.
At trial, Medakovic gave evidence that she had driven to Little Current from Sudbury on April 22 and was visiting friends. She parked in her male friend’s driveway, but her friend needed access to his driveway so he moved her car to the grass shoulder in front of his home. She told her male friend that she was trying to stay the night with a couple of friends and if that did not work out, she would sleep in her car. Medakovic gave evidence that her plans did not work out, so she decided to sleep in her car and turned the vehicle on to keep her warm. She could not comment on how or why the driver’s door was ajar.
Medakovic was charged with impaired driving and having more than the legal allowable level of alcohol in her system while driving.
CARE OR CONTROL OF A MOTOR VEHICLE
Medakovic was charged and convicted under Section 253 of the Criminal Code (“CC”), which reads as follows:
253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railways equipment, whether it is in motion or not,
(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred mililitres of blood.
In her judgment, Justice Christie relied upon the Supreme Court of Canada decision of R. v. Boudreault, which outlined the essential elements of “care or control” as it applies to section 253(1) of the CC. The elements are as follows:
- an intentional course of conduct associated with a motor vehicle;
- by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;
- in circumstances that create a realistic risk of danger to persons or property.
Justice Christie applied the facts of the case and found that Medakovic did not have an intention to drive that evening after she had consumed alcohol. She also found that the evidence at trial established that the stationary vehicle was positioned in a way that would not cause any safety concern and therefore not a realistic risk of danger. However, Justice Christie did find that the Crown had proven, based upon the evidence, that there was a realistic risk that Medakovic may unintentionally set the vehicle in motion.
Justice Christie found that Medakovic had care or control of a vehicle while impaired based upon the following facts that came out of the trial:
- Medakovic was seated in the driver’s seat;
- Medakovic locked the doors of the vehicle after she got in;
- Medakovic became cold after she entered the vehicle and put the key in the ignition, turned the car on and put the heat on high;
- Medakovic admitted she was impaired while in the driver’s seat and she was confused when she was awakened by the officers;
- The officers testified that it took longer than usual to wake Medakovic up and she was initially disoriented and confused;
- Medakovic’s feet were approximately one foot away from the car pedals;
- Medakovic admitted she thrashes in her sleep and does not know what she is doing;
- Medakovic admitted she is a deep sleeper and has slept walked in the past;
- Medakovic admitted she has done things in her sleep that she is not aware of;
- Medakovic admitted she could easily sit up and grip the steering wheel;
- Medakovic had no explanation as to how the driver’s door became open and did not recall opening it; and
- The vehicle was parked on a residential street, which could cause an immediate safety hazard.
Based on this evidence, Justice Christie found that the Crown had established that there was a realistic risk that Medakovic may unintentionally set the vehicle in motion while she was impaired and therefore Medakovic had the care and control of the vehicle contrary to section 253(1)(a) of the CC.
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