R v Soto

R. v. Soto

2009 ONCJ 326
Ontario Court of Justice — Justice K.N. Barnes | June 29, 2009

Background

At 3:07 a.m. on November 16, 2007, police were called to a single-vehicle collision on the Fred Gardiner Expressway ramp in Toronto. When Constable Saunders arrived four minutes later, he found Francisco Soto's vehicle had crashed into a concrete barrier with substantial damage. Soto was standing ten feet away from the car, and tow trucks were already on scene.

The officer smelled alcohol on Soto's breath, observed red eyes, and learned that Soto had lost control while driving at 100 km/hr. Breathalyzer tests later showed readings of 115 and 108 mg of alcohol in 100 ml of blood — both over the legal limit of 80. Soto was charged with impaired driving and driving over 80, plus driving with an expired licence under the Highway Traffic Act.

Issues

1. Did the officer have reasonable and probable grounds to demand a breath sample under s. 254(3) of the Criminal Code?
2. Was Soto in "care and control" of his vehicle when not found in the driver's seat?

The Breath Demand

The defence argued the officer "jumped the gun" and only had reasonable suspicion, not the higher standard of reasonable and probable grounds required for a breathalyzer demand. They claimed the officer should have used a roadside screening device first under s. 254(2).

Justice Barnes disagreed, finding that the cumulative factors were enough: the accident itself, alcohol odour, red eyes, Soto's admission about losing control at high speed, plus normal road conditions. The court emphasized that you look at the "totality of circumstances" — not each factor in isolation. The defence also tried to argue the officer never explicitly considered whether the offence occurred "within the preceding three hours," but the judge said officers don't need to recite "magic words" — the court can infer they turned their mind to the timing requirement.

Care and Control

This was the critical issue. Since Soto wasn't found in the driver's seat, the usual presumption under s. 258(1)(a) didn't apply. The court had to determine if he had "de facto" care and control using a risk analysis: was there actual or potential conduct by Soto that could create danger?

The judge found two potential risks: First, Soto could have used the tow truck operators to check if his car was driveable, then declined towing and driven off if it worked. Second, with keys still in the ignition and the car on an inclined ramp, he could have caused it to roll downhill. But here's the crucial gap: nobody asked who called the tow trucks. The judge found this was "significant because it helps inform the analysis of whether the risk of the potential conduct by Mr. Soto in relation to his vehicle is a realistic one." Without knowing if Soto called for help, the court couldn't determine his intentions or actions regarding the vehicle.

Key Takeaway

Gaps in the Crown's evidence can create reasonable doubt, even when other elements of the offence seem strong.

The prosecution proved Soto was impaired and had driven the car, but failed to establish the crucial link showing he maintained a realistic risk of danger with the vehicle. Sometimes what the Crown doesn't ask witnesses is just as important as what they do ask.