DATE: 20030220

DOCKET: C38633

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) – and – JAYNE MAGAGNA (Respondent)

BEFORE: WEILER, ABELLA and CHARRON JJ.A.

COUNSEL: Joan Barrett, for the appellant No one appearing for the respondent

HEARD: January 10, 2003

On appeal from the judgment of Justice J. Jenkins dated July 8, 2002, sitting as a summary conviction appeal court judge, allowing a summary conviction appeal from the decision of Justice R.P. Main dated March 20, 2002.

E N D O R S E M E N T

[1] This is a Crown appeal from an acquittal entered by Jenkins J. of the Superior Court of Justice, sitting on appeal from the decision of Main J. convicting the respondent of the offence of "over 80" while having care or control of a motor vehicle contrary to s. 253(b) Criminal Code.

[2] On May 20, 2001, the respondent had been at her uncle's home for dinner. Shortly before 8 p.m., she drove her vehicle to a nearby store. On the way back, the respondent drove off the road and her vehicle became lodged on a log fence. Two witnesses observed the respondent reversing her vehicle in an unsuccessful attempt to extricate it from the fence. She then walked back to her uncle's house, and a small group of people returned with her to the vehicle. The respondent sat in the driver's seat and, in a further attempt to extricate the vehicle, attempted to reverse the car while her uncle pushed it.

[3] The police arrived at 8:22 p.m., about 20 minutes after the accident. The officer noted an odour of alcohol on the respondent and that her eyes were red and bloodshot. The officer administered a roadside screening test, which the respondent failed. She was arrested and two Intoxilyzer tests were administered at 9:38 p.m. and 10:01 p.m. The readings were 138 and 126 milligrams of alcohol in 100 millilitres of blood, respectively.

[4] The theory of the defence at trial was that the two readings did not accurately represent the respondent's blood alcohol level at the time of the accident due to the further amounts of alcohol she consumed after the accident had occurred. The respondent testified that prior to the accident, she had consumed two glasses of wine. She testified that upon returning from the accident, she quickly drank two shot glasses full of a strong liqueur (Zambucca) and then returned to the accident site.

[5] The respondent called her uncle and three other dinner guests as witnesses to corroborate her testimony. All witnesses testified that the respondent drank wine at dinner and Zambucca after the accident, though the witnesses' testimony varied as to the quantity she was observed to have consumed. The respondent also called an expert toxicologist in support of her version of her pattern of drinking on the evening in question.

[6] In his reasons for conviction, the trial judge rejected the respondent's evidence about the amount of alcohol she had consumed prior to the accident, finding that she had consumed more wine at dinner than she had acknowledged. He also rejected her testimony regarding the subsequent alcohol consumption as an attempt to obscure the evidence, and found it was done in an attempt to "obstruct the police" and "perpetrate a fraud."

[7] The trial judge further found that inconsistencies in the corroborating evidence of the other people present at dinner were irreconcilable. In this regard, he noted that a large bottle of wine shared among three or four adults made the inconsistencies in the corroborating witnesses' testimony particularly difficult to reconcile. The trial judge rejected the expert's evidence, finding that it contained "clear and obvious weaknesses" in methodology and content.

[8] With respect to the issue of care or control of the vehicle, the trial judge found as follows:

There was care and control. It continued until the police arrived. If that is an issue, I find that she was engaged in extracting the very motor vehicle that she drove into that ditch. Clearly, it was drivable. It was apparent to everyone that all that had to be done is lift it away from the fence and it could have been driven back to [her uncle's] cottage. She clearly consumed alcohol and put herself in care and control of a motor vehicle.

[9] The summary conviction appeal court judge allowed the respondent's appeal from conviction on the basis that care or control was not proven at trial. The appeal judge held that the car "could not be moved" and that the trial judge made "no findings on that issue." He also stated that he had "misgivings" about the trial judge's findings regarding the respondent's post-accident alcohol consumption and that the trial judge erred in failing to apply the test set out in R. v. W.D. (1991), 63 C.C.C. (3d) 397 (S.C.C.) in convicting the respondent.

[10] We agree with the appellant that the summary conviction appeal judge erred by reversing the respondent's conviction on the basis of his own assessment of the evidence.

[11] With respect to the issue of care or control, the appeal judge stated that "the evidence is quite clear that the car could not be moved, except for some extraordinary, unusual – either by a forklift truck or by some kind of tow truck." The appeal judge further held that the trial judge had "made no findings" on this issue. On the contrary, the trial judge's reasons for conviction set out explicitly that the car was "drivable" and could be moved, citing the appellant's two attempts to extricate her car from the fence and finding that it was "apparent to everyone" present that the car could be lifted away from the fence and driven home.

[12] We agree with the respondent that these findings regarding the operability of the vehicle and the respondent's actions meet the test for the actus reus of care or control set out in R. v. Wren (2000), 47 O.R. (3d) 544 (3d) 544 (C.A.). The appeal judge ignored these findings of fact and substituted his own interpretation of the evidence regarding care or control in their place. In proceeding as he did, the appeal judge erred in law.

[13] We are also of the view that the summary conviction appeal judge erred by reversing the trial judge's rejection of the respondent's evidence about her alcohol consumption. The trial judge had found that the respondent's actions were consistent with a person who knew her sobriety was compromised and therefore decided to obstruct the police. This finding was relevant to the trial judge's assessment of the respondent's credibility with respect to her pattern of drinking on the evening in question.

[14] The evidence supports this finding and the appeal judge ought not to have substituted his own finding with respect to the respondent's intention in consuming further alcohol. The appeal judge stated that these were "the actions of an impaired person … so there is no reason to suggest that she knew what to do to avoid the charge by drinking after the fact." In so doing, rather than showing deference to the trial judge's findings of credibility, he conducted an independent analysis of the respondent's evidence, overturned its rejection by the trial judge and simply substituted his own view of the evidence.

[15] Finally, the appeal judge erred in faulting the trial judge for failing to instruct himself in accordance with the principles set out in R. v. W.D. Although the trial judge did not invoke the precise language of R. v. W.D., his reasons indicate that he carefully considered all of the evidence – including that of the corroborating witnesses and the expert toxicologist – before concluding that he was satisfied of the respondent's guilt beyond a reasonable doubt. Again, there was no basis for interfering with the trial judge's finding that a reasonable doubt had not been raised.

[16] Accordingly, leave to appeal is granted, the appeal is allowed, and the conviction and sentence are restored.

"K.M. Weiler J.A."

"R.S. Abella J.A."

"Louise Charron J.A."