DATE: 20050516

DOCKET: C42202

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant/Appellant) -and- JOHN MacMILLAN (Respondent)

BEFORE:

McMURTRY C.J.O., LASKIN and MacPHERSON JJ.A.

COUNSEL:

David Finley

for the appellant

David North

for the respondent

HEARD AND ENDORSED:

May 2, 2005

On appeal from the July 12, 2004 order of Justice Harry J. Keenan of the Superior Court of Justice, sitting as a summary conviction appeal court judge, setting aside the conviction entered by Justice Leonard T. Montgomery of the Ontario Court of Justice on October 28, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] In our view, the summary conviction appeal court judge erred in law in concluding that because the respondent did not enter the car with the intention of setting it in motion, the conviction could not stand.

[2] The mens rea of the offence is the assumption of care and control of the car after the voluntary consumption of alcohol. On the findings of the trial judge, the Crown had proved the mens rea.

[3] The real issue in this case turns on the actus reus of the offence. The respondent’s car was half in the ditch, and half on the road. The respondent testified that he had called a tow truck. On this evidence, the trial judge essentially found that the respondent had created a risk of danger. The summary conviction appeal court judge must have concluded that this was an unreasonable finding. We disagree with that conclusion.

[4] In our view, the trial judge could reasonably find a risk of danger. This risk was the possibility that after the tow truck operator arrived and extricated the car, the respondent could have changed his mind and driven off, or inadvertently could have set the car in motion.

[5] Accordingly, the appeal is allowed, the decision of the summary conviction appeal court judge is set aside and the conviction is restored.