Court of Appeal for Ontario
Date: November 9, 2017 Docket: C63368
Judges: Doherty, LaForme and Paciocco JJ.A.
Parties
Between
Her Majesty the Queen Appellant
and
Wayne Pawluk Respondent
Counsel
For the Appellant: Andrew Hotke
For the Respondent: Patrick J. Ducharme
Hearing
Heard: October 20, 2017
Background
On appeal from the judgment of Justice Steven Rogin of the Superior Court of Justice, dated January 18, 2017, with reasons reported at 2017 ONSC 386, dismissing an appeal from the acquittals entered on November 16, 2015, by Justice Ronald A. Marion of the Ontario Court of Justice.
Decision
Paciocco J.A.:
Overview
[1] After being involved in a motor vehicle accident, Wayne Pawluk was charged with operating a motor vehicle while his ability to do so was impaired by alcohol contrary to s. 253(1)(a) of the Criminal Code ("impaired driving"). He was also charged with operating a motor vehicle with a blood alcohol concentration over 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1)(b) of the Criminal Code ("driving over 80").
[2] The trial judge held that the Crown proved neither offence. In the trial judge's view, the Crown failed to prove beyond a reasonable doubt that Mr. Pawluk's ability to operate a motor vehicle was impaired. Nor could the Crown prove that Mr. Pawluk's blood alcohol level was over 80 at the time of driving. The Crown had attempted to rely on the "presumption of identity" in s. 258(1)(c) to do so, but the Crown could not prove that Mr. Pawluk drove within two hours of providing his first breath sample, as s. 258(1)(c) requires. This prevented the Crown from using the presumption to show Mr. Pawluk's blood alcohol level when he was driving his car.
[3] The Crown did, however, present evidence that Mr. Pawluk had been in care or control of his car within two hours of providing his first breath sample. The Crown therefore sought to rely on the presumption of identity to prove that Mr. Pawluk had care or control of a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood ("care or control over 80"), an "included offence" of driving over 80. The trial judge held that the Crown could not prove that included offence either, after taking a narrow view of the proper interpretation of s. 258(1)(c).
[4] The Crown brought a summary conviction appeal from both the impaired driving acquittal and the included offence acquittal. The appeal judge dismissed the appeal. He held that the trial judge committed no errors in his findings relating to impairment, and that it was not fair for the Crown to attempt to convict Mr. Pawluk on the included offence of care or control over 80 when the charge and trial were about Mr. Pawluk's driving at the time of the motor vehicle accident.
[5] The Crown seeks leave to appeal both of the appeal judge's holdings to this court. For the reasons that follow, I would deny leave on the impaired driving issue, but grant leave and allow the appeal on the included offence question. I would set aside the acquittal on the driving over 80 count, and substitute a finding of guilt on the included offence of care and control over 80. I would remit the matter back to the trial judge for sentencing.
The Material Facts
[6] The charges against Mr. Pawluk arose after he was involved in a motor vehicle accident on November 28, 2013. He was on his way home from a Detroit Lion's football game, where he admitted to having consumed a modest amount of beer. After investigation, he was charged with impaired driving, and with driving over 80.
[7] The trial judge accepted evidence that was consistent with Mr. Pawluk's impairment. Mr. Pawluk's vehicle had rear-ended another car. He smelled of alcohol and discouraged the other driver from calling the police. Then he chewed gum and sucked on a candy. An attending police officer, Cst. Miles, said Mr. Pawluk spoke slowly and steadily, and his eyes were red and watery.
[8] The trial judge had a reasonable doubt about impairment, even in the face of this evidence. He reasoned that testimony about erratic driving leading to the collision could not confidently be linked to Mr. Pawluk's vehicle, weather conditions could explain the accident, Mr. Pawluk may have wanted to avoid reporting the accident for insurance purposes, and the more definitive signs of impairment were absent.
[9] Although the Intoxilyzer readings showed Mr. Pawluk to have more than the legal amount of alcohol in his system, the trial judge held that the Crown could not rely on the presumption of identity in s. 258(1)(c) of the Criminal Code to establish that Mr. Pawluk's blood alcohol level was "over 80" at the time of driving. The presumption of identity in s. 258(1)(c) is available only if the first breath sample is taken within two hours of "the time when the offence was alleged to have been committed". The Crown could not establish this as it was unable to prove that the traffic accident - Mr. Pawluk's last known act of driving - occurred within the two hour window before the first breath sample at 7:24 p.m. Since the Crown could not otherwise establish Mr. Pawluk's blood alcohol at the time of driving, the charged offence of driving over 80 could not be proved.
[10] In the alternative, the Crown attempted to secure a conviction on the included offence of care and control over 80. The unchallenged evidence was that Mr. Pawluk was sitting in the driver's seat of his car at 6:03 p.m. when Cst. Miles arrived on scene. Under s. 258(1)(a) of the Criminal Code, a person found to be occupying the seat ordinarily occupied by the driver of the motor vehicle is deemed to be in care or control of the motor vehicle unless they establish that they did not occupy that seat for the purpose of putting the motor vehicle in motion. Mr. Pawluk had led no evidence to rebut this presumption. Since Mr. Pawluk was thereby presumed to be in care or control at 6:03 p.m., within two hours of the first breath sample, the Crown urged that the presumption of identity in s. 258(1)(c) applied to prove that offence.
[11] The trial judge rejected this avenue for conviction. He held that the presumption of identity in s. 258(1)(c) of the Criminal Code could not be relied upon to prove the included offence of care or control over 80 because s. 258(1)(c) had to be construed strictly. He ruled:
The wording of s. 258(1)(c)(ii) specifically states that a first sample must be taken not later than two hours after "the time when the offence was alleged to have been committed." The alleged offence in this case is driving and not "care and control." Care and control is an included offence in the offence alleged but it is not interchangeable for the purpose of the presumption. The cause of the investigation was the accident which occurred. The accident formed part of the grounds for Mr. Pawluk's arrest and for the demand for breath samples. The Crown cannot for the purposes of benefitting from the presumption alter the time of the offence by virtue of "care and control" being an included offence in "driving". [Emphasis in original.]
[12] Since the Crown could not prove Mr. Pawluk's blood alcohol content at the time of the presumed care or control without the presumption of identity, Mr. Pawluk could not be convicted of the included offence.
[13] The Crown appealed to a Summary Conviction Appeal Court, claiming that the trial judge erred by ignoring some of the evidence of impairment, and by not applying s. 258(1)(c) to convict Mr. Pawluk of care of control over 80.
[14] The appeal judge dismissed the first ground of appeal as there was no basis for assuming that the trial judge ignored evidence of impairment.
[15] The appeal judge upheld the trial judge's decision not to find Mr. Pawluk guilty of care or control over 80 on the basis that it was unfair for the Crown to seek a conviction of the included offence of care or control over 80 when Mr. Pawluk went to trial on the basis of his conduct related to the motor vehicle accident.
Leave to Appeal
[16] The Crown seeks leave to appeal to this court against both rulings.
[17] I would grant leave relating only to the care or control over 80 acquittal. The test in R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, has not been met with respect to the impaired driving charge. Neither the appeal judge's rulings nor the trial judge's findings relating to Mr. Pawluk's state of impairment raise legal issues of significance to the administration of justice that go beyond this case, and while others might disagree with the trial judge's assessment of impairment, there has been no clear error: see R.R., at para. 37.
[18] The application of s. 258(1)(c) to included offences is, however, an issue of law that has significance to the administration of justice that goes beyond this particular case. This question is apt to arise with some frequency, given the protracted time-lines often involved in responding to motor vehicle accidents, and in securing breath samples from suspected drivers.
The "Care or Control Over 80" Appeal
[19] The parties before us are in agreement that care or control over 80 is an included offence in a charge of driving over 80. By implication, this proposition has long been settled in this court, which has held that impaired care or control is an included offence in an impaired driving allegation: see R. v. Plank (1986), 28 C.C.C. (3d) 386 (Ont. C.A.). This same proposition has also received the endorsement of the Supreme Court of Canada when the court upheld the decision in R. v. Drolet, [1989] R.J.Q. 295 (Que. C.A.), for the reasons given by LeBel J.A., as he then was: , [1990] 2 S.C.R. 1107. If impaired care or control is an included offence in an impaired driving allegation, care or control over 80 is an included offence in a charge of driving over 80.
[20] The Crown argues that, this being the case, the trial judge erred in law in not convicting Mr. Pawluk. The Crown also contends that the appeal judge erred in law by treating the Crown as though it is bound by its theory, when appellate authority holds that this is not so, and that the Crown is entitled to rely on included offences shown during trial to have been committed. The Crown contends there is nothing unfair in convicting accused persons of included offences arising out of the same factual transaction as the charged offence.
[21] Finally, the Crown argues that the trial judge erred, as well. He incorrectly interpreted s. 258(1)(c) as applicable only to the charged offence, and not to included offences.
[22] Mr. Pawluk contends that the trial judge properly interpreted s. 258(1)(c) as applying solely to the offence the Crown alleges. In this case the "offence [that] was alleged to have been committed" by Mr. Pawluk is that, at the time of the accident, he operated a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. He urges that s. 258(1)(c) does not apply to the included offence the Crown came to rely upon, since that included offence was not "the offence … alleged to have been committed". Absent that presumption, he argues there was no admissible evidence to support a conviction on the included offence of care or control over 80.
[23] In his submissions before this court Mr. Pawluk's position is that the appeal judge came to the correct decision. By acknowledging that it is not generally unfair to convict individuals of included offences, however, Mr. Pawluk gives less emphasis to the unfairness theory relied upon by the appeal judge than to the trial judge's basis for acquittal. Still, the fairness theory remains a live issue on this appeal since Mr. Pawluk stopped short of conceding that the appeal judge's reasoning was in error.
[24] I agree with the arguments advanced by the Crown. The appeal judge erred in law in his application of the doctrine of included offences, and in finding it unfair for the Crown to rely on the included offence of care or control over 80. The trial judge erred in law, as well, in his interpretation of s. 258(1)(c). The Crown should have been entitled to rely on the presumption of identity to establish the included offence of care or control over 80.
[25] I will address the appeal judge's decision first, and then the trial judge's decision.
A. Fairness in Relying on the Included Offence
[26] In finding it unfair for the Crown to rely on the included offence of care or control over 80 the appeal judge said, at paras. 17-19:
On a fairness basis, the respondent went into the trial facing an allegation that at the time he was driving his motor vehicle – that is, the time of the accident – he was breaking the law.
It is totally unfair for the Crown to change the case after the evidence has been heard and force the respondent to face a totally different charge, namely the charge that he was driving or in care or control at a time much later than originally alleged.
This does not detract from the fact that care or control can be included in impaired driving. It simply says that the Crown must prove the charge it originally laid.
[27] With respect, this passage reflects a misunderstanding of the law of included offences. An included offence is a distinct offence that arises from the same facts and is necessarily committed where the charged offence has been committed: R. v. Ovcaric (1973), 11 C.C.C. (2d) 565 (Ont. C.A.). It is "embraced" by the charged offence: R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371, at para. 25. It is not, therefore, a "totally different charge", as described by the appeal judge.
[28] Moreover, the very concept of an included offence is predicated on the fact that it is not unfair to try the accused on an included offence since the charge laid alerts the accused person that they are alleged to have satisfied all of the elements of the included offence, as well as the charged offence. As indicated, this court recognized in Plank, at p. 395, that a person charged with impaired driving is sufficiently informed that they also face the included offence of impaired care or control. For this reason, LeBel J.A., as he then was, made clear in Drolet, at p. 299, that there is no surprise or injustice in finding a person charged with impaired driving guilty of impaired care or control. The same principle applies to "over 80" charges. A person charged with driving over 80 is sufficiently informed that they also face the included offence of care or control over 80. Given this, there is no unfairness or injustice in finding a person charged with driving over 80 to be guilty of care or control over 80.
[29] The appeal judge's decision is also impossible to square with R. v. Khawaja, 2010 ONCA 862, 103 O.R. (3d) 321, aff'd 2012 SCC 69, [2012] 3 S.C.R. 555, in which this court held, at para. 145, that "in the absence of formal particulars … it [is] unobjectionable for the Crown to adjust the theory of its case in response to the evidence at trial as it evolved." Other decisions of this court affirming the same general proposition are cited in Khawaja: R. v. Groot (1998), 41 O.R. (3d) 280 (C.A.), aff'd , [1999] 3 S.C.R. 664; and R. v. Ranger (2003), 67 O.R. (3d) 1 (C.A.).
[30] None of this is to say that it can never be unfair for the Crown to rely on an included offence. For example, where particulars have been given that limit the allegation to the charged offence, or where the Crown has actively induced the accused, to their detriment, into believing that the Crown is proceeding only on the theory of the charged offence, it may well be unfair for the Crown to rely on an included offence, and for a trial judge to convict on one. There may be other examples. In this case, however, there is no basis on the trial record for a finding of unfairness. The fact that Mr. Pawluk's care or control was not a central issue during trial does not change this. The law alerts an accused to their jeopardy for included offences, and in this case, questions were asked of Cst. Miles that could only be relevant to the issue of Mr. Pawluk's care or control. It should not have come as a surprise when the Crown sought a care or control over 80 conviction.
B. The Application of s. 258(1)(c) to Included Offences
[31] I also agree with the Crown that the trial judge erred in concluding that the words, "the offence … alleged to have been committed", found in s. 258(1)(c), prevent the presumption of identity from applying to included offences. Properly interpreted, the phrase, "the offence … alleged to have been committed", relates to the criminal allegation being prosecuted before the court. As a matter of law this includes not only the charged offence but also included offences.
[32] The trial judge's reasoning to the contrary reflects two distinct errors, one related to the application of s. 258(1)(c) to the particular facts of this case, and the other related to the general interpretation of s. 258(1)(c) and the use of the doctrine of strict construction.
[33] In making the first of these errors the trial judge reasoned that "care and control" is not "the offence … alleged to have been committed" in this case because "the investigation was the accident which occurred" and it was the "accident [that] formed part of the grounds for Mr. Pawluk's arrest and for the demand for breath samples." This reasoning led the trial judge to the conclusion that "[t]he Crown cannot for the purposes of benefiting from the presumption alter the time of the offence by virtue of 'care and control' being an included offence in 'driving.'"
[34] With respect, this reasoning confuses the criminal investigation with the criminal allegation, the proper subject of s. 258(1)(c). On a natural or plain reading the phrase "the offence … alleged to have been committed" cannot refer to the offence being investigated or the grounds for arrest since neither an investigation nor an arrest allege offences in any meaningful sense. The charge in a criminal information does. The reason for the investigation or the arrest therefore has nothing to do with the application of s. 258(1)(c), nor does the theory of the Crown. The "offence … alleged to have been committed" is the criminal allegation that is being prosecuted.
[35] For this reason, it is not possible to accept either Mr. Pawluk's attempt to argue before us that the criminal allegation related only to driving over 80 at the time of the accident, or the trial judge's critique that by relying on the included offence the Crown was altering the time of the offence. The criminal allegation being prosecuted against Mr. Pawluk of driving over 80 is not particularized in a way that prevents the Crown from relying on continued care or control by Mr. Pawluk in the immediate aftermath of the accident.
[36] The trial judge's second error, related to the general interpretation of s. 258(1)(c), arises from his improper reliance on the doctrine of strict construction to impose an arbitrary meaning on the phrase "the offence … alleged to have been committed". We take no issue with the application of strict construction to s. 258(1)(c), a provision that offers the Crown an evidentiary short-cut that should not be given an expansive interpretation. Still, the doctrine of strict interpretation supports only sensible interpretations: R. v. Paré, [1987] 2 S.C.R. 618, at p. 631. There is nothing in the language of s. 258(1)(c), or the purpose underlying the provision, that could support limiting the application of the presumption of identity to the offence that is expressly spelled out in the charge. Why would Parliament have extended the presumption only to expressly charged offences, and not included offences? Adopting such a doctrine would not only produce arbitrary results inconsistent with the theory of included offences, it would encourage superfluous charging practices in which included offences have to be alleged expressly.
[37] The trial judge therefore erred in law in interpreting the presumption of identity in s. 258(1)(c) as unavailable for included offences generally, or in this case. Given the evidence before the Court, the Crown should have been entitled to rely on this presumption to prove Mr. Pawluk's blood alcohol content at the time he was alleged to have been in care or control of his motor vehicle.
Conclusion
[38] I would therefore allow the appeal, in part. I would deny leave to appeal from the order affirming the acquittal on the impaired driving charge. I would allow leave to appeal from the order affirming the acquittal on the included offence of care or control over 80, and allow the appeal.
[39] The Crown has asked us to substitute a conviction of care or control over 80 and to remit the matter back to the trial judge for sentencing, rather than ordering a new trial on this included offence. Its position is that it is entitled to the benefit of both the presumption of identity under s. 258(1)(c), and the presumption of care or control under s. 258(1)(a), as Mr. Pawluk was observed at 6:03 p.m. in "the seat or position ordinarily occupied by a person who operates a motor vehicle". Since Mr. Pawluk has done nothing to discharge his onus to rebut the latter presumption, the Crown contends that this court should substitute a finding that he was in care or control.
[40] I agree. This is an appropriate case for substituting a conviction. It was uncontested at trial that Mr. Pawluk was in the seat normally occupied by the driver at 6:03 p.m., and no evidence has been led to rebut the presumption of care or control triggered by s. 258(1)(a). Nor is it in dispute that Mr. Pawluk's blood alcohol level at the time of testing produced a truncated reading of 120 milligrams of alcohol in 100 millilitres of blood. Since the presumption of identity under s. 258(1)(c) applies, the offence of having care or control of a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b), has been made out.
[41] I would therefore allow the appeal, set aside the verdict of acquittal under s. 253(1)(b) that Mr. Pawluk received, and substitute a finding of not guilty of the offence as charged, but guilty of the included offence of having care or control of a motor vehicle while having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code. I would remit the matter to the trial judge for sentencing.
Released: November 9, 2017 ("D.D.")
"David M. Paciocco J.A."
"I agree. Doherty J.A."
"I agree. H.S. LaForme J.A."
