COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Smits, 2012 ONCA 524
DATE: 20120801
DOCKET: C53404
Laskin and Blair JJ.A. and Brown R.S.J. (Ad Hoc)
BETWEEN
Her Majesty the Queen
Appellant
and
Jody Smits
Respondent
Benita Wassenaar, for the appellant
Diana Lumba, for the respondent
Heard: February 16, 2012
On appeal from the decision of the summary conviction appeal court dated February 4, 2011 by Justice Patrick J. Flynn of the Superior Court of Justice, allowing the appeal from the conviction entered on January 7, 2010 by Justice Margaret F. Woolcott of the Ontario Court of Justice.
Brown R.S.J. (ad hoc):
I. INTRODUCTION
[1] This is a Crown appeal from a successful defence summary conviction appeal. The respondent, Jody Smits, was found guilty at trial of having care or control of a motor vehicle while impaired and “over 80” contrary to s. 253(1)(a) and s. 253(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46, respectively. The trial judge entered a conviction on the impaired charge and stayed the finding of guilt on the “over 80” charge. On appeal, the summary conviction appeal judge reversed the trial judge on the impaired charge and entered an acquittal.
[2] The Crown seeks leave to appeal, and if leave is granted, appeals from the summary conviction appeal court judgment and asks this court to restore the conviction and sentence.
[3] For the following reasons, I would grant leave to appeal, allow the appeal and restore the conviction and sentence.
II. BACKGROUND
[4] This was not an unusual fact situation seen by judges in the criminal courts of our province. It involved the often litigated issue of whether an impaired occupant of a motor vehicle, who is found asleep or passed out in the vehicle, is nevertheless in care or control of that vehicle.
[5] In this case, the respondent was found passed out in the rear seat of a minivan. The van, which was not owned by the respondent, was parked on the side of a country road. The key was in the ignition, but the engine was not running. Impairment was conceded at trial. The respondent provided two breath samples that well exceeded the legal limit. Although certain of his statements to the police were admitted into evidence, the respondent did not testify nor did he call any evidence in his defence.
[6] The respondent was convicted pursuant to s. 253(1)(a) of the Criminal Code of having care or control of a motor vehicle while impaired. He received a sentence of four months imprisonment in addition to credit given for pre-trial custody. The incarceration was to be followed by two years probation and a three year driving prohibition. The respondent also pleaded guilty to breaching his probation by consuming alcohol.
[7] In overturning the respondent’s conviction, the summary conviction appeal judge held that the trial judge had erred in concluding the respondent had care or control of the motor vehicle. He found that it was mere speculation to say that the respondent would still be impaired at the time he awoke in the motor vehicle and decided to drive.
[8] It may be helpful to briefly summarize the facts and the decisions in the trial court and the summary conviction appeal court below.
(i) The Facts
[9] The respondent was found passed out in the back of a van on the morning of August 22, 2009. The van was parked on the side of Studiman Road, a county road in a rural area near Cambridge. The roadway was narrow, with no shoulder, and the van was parked with its passenger side wheels on the grass and the left rear corner was still on the road.
[10] A nearby resident woke up that morning, looked out his window and saw a minivan parked in the ditch. It was around 7:15 a.m. He went to get dressed for work. When he came back to the window, the van was still there. It was unusual to see a vehicle parked there. As the resident pulled out of the driveway on his way to work, he stopped beside the van and walked over to it. He looked through the van’s front window and saw a pair of legs and shoes on the back seat. A cell phone was lying open on the otherwise empty driver’s seat. He banged on the window. When there was no movement, he began to worry that the van’s occupant might be dead. He called the police on his way to work at 8:26 a.m.
[11] Three police officers arrived on scene just before 8:45 a.m. The van was not running, but one of the officers touched the hood and observed that it was warm. The officers looked into the van and saw the respondent passed out on the rear seat. They knocked on the window in an attempt to rouse the respondent, but he did not awaken. One of the officers entered the van through the unlocked driver’s side door. He saw the cell phone flipped open on the driver’s seat and noted that the keys were in the ignition. He tried to rouse the respondent by calling out to him. After several attempts, the respondent awoke. He appeared to be disoriented and was directed to exit the van.
[12] The respondent stumbled as he got out of the van. He looked “haggard”. His eyes were bloodshot and glassy, his breath smelled of alcohol, and he swayed. He was described as “obviously intoxicated”. He had scabbed cuts around his right eye and on his nose, and his jeans were torn. The respondent was placed under arrest at 9:00 a.m. for impaired care or control of a motor vehicle.
[13] The officers made notes of what they observed in the van: a glass of orange juice in the centre cupholder, a partially empty unsealed bottle of vodka between the two front seats, an open can of Budweiser on the floor in the rear passenger area, an empty Budweiser can underneath the driver’s seat, and a red duffle bag on the floor with another can of beer on top of it. One of the officers also found an envelope containing a birth certificate and social insurance card, both in the name of Jody Smits, and a printed resume with the name Jody Smits on it. The officers noted that the van had an opening between the back seat and the front seats where a middle seat may have been removed. A person could move up to the driver’s seat from the back seat area with no obstruction.
[14] After taking an inventory of the van, one of the officers called a towing company to remove the vehicle. The respondent asked the officers to take his cell phone out of the van first. An officer did so, and noted that the phone’s battery was almost dead. When the tow truck arrived, the driver was able to start the van with one turn of the key, and drove it off the grass onto the roadway without any difficulty. The van had an automatic transmission.
[15] At 9:10 a.m. the respondent was transported to the nearest available police station, where he provided two breath samples. The first, administered at 10:24 a.m., registered a reading of 147mg of alcohol in 100ml of blood and the second, administered at 10:49 a.m., registered 138mg. The respondent told the police he had also taken two Percocets. In a statement recorded on DVD, the respondent denied having driven the van, but admitted to sitting in the driver’s seat just before he passed out. He said that a friend had driven him to where the van was parked, but the friend had left. He would not provide his friend’s name to the police. He said he did not own the van but would not say who did own the van. He insisted that he was just a passenger passed out in the van.
(ii) The Trial Decision
[16] At trial, the Crown sought to establish that the respondent had care or control of his vehicle by relying on the risk that a person might change his or her mind and drive while impaired. In the Crown’s submission, there was sufficient evidence to prove beyond a reasonable doubt that there was a risk the respondent would have awoken and attempted to drive his van while still impaired.
[17] As noted, the respondent conceded impairment at trial. Counsel for the respondent argued that the Crown’s position was based on speculation, and that there was no evidence of a risk that the respondent would have set the vehicle in motion.
[18] The trial judge instructed herself that she could only find care or control based on the change of mind argument if she were satisfied there was a “concrete and tangible likelihood” that the respondent would have decided to drive while still impaired. In assessing whether the respondent had presented such a likelihood, the trial judge emphasized the following findings of fact:
• The respondent’s ability to operate a motor vehicle was impaired by both a drug and alcohol;
• The respondent was the sole occupant of the van at the time in question;
• The keys were in the van’s ignition;
• There was nothing to suggest that any other person was associated with the van at any time after 7:00 a.m. and nothing to suggest other than the “rantings” of the respondent, that any other person had been associated with the van prior to the point in time when it had arrived at that location;
• The respondent had entered the van with the intention of returning to his residence in Barrie and had no alternate plan for getting home;
• In the rural area where the van was found, it would have been difficult, if not impossible, for the respondent to arrange for alternate transportation absent calling someone to come pick him up;
• After the van was parked at the roadside, the respondent sat in the driver’s seat and contemplated driving, but decided against it;
• The respondent’s attitude was volatile and changeable as recorded on a DVD filed in evidence; his judgment was clearly impaired.
[19] In addition to the above-noted findings of fact, the trial judge also noted that the respondent had ready access to additional alcohol, there being more open beer and open vodka in the van. There was no basis for supposing that the respondent had decided to simply wait out the impairment before he drove again.
[20] Even if the respondent had been trying to wait out the impairment, the trial judge held that “[m]erely because he was difficult to rouse does not support an inference that he would have remained passed out until he had achieved a state of sobriety and thus not pose a risk to set the motor vehicle in motion while impaired”.
[21] The trial judge held, on an analysis of all the circumstances, that there was a concrete and tangible likelihood the respondent would have woken up and decided he was going to move the van, and that this would occur while he was still impaired. She found that the circumstances represented exactly the kind of danger that was contemplated by the framers of the care or control legislation.
(iii) Summary Conviction Appeal Decision
[22] The respondent appealed his conviction. At the summary conviction appeal court the respondent submitted the trial judge had erred in finding that he was in care or control of his motor vehicle. Specifically, he argued that an individual found asleep in the back seat of a vehicle does not create the public risk that s. 253(1) was designed to prevent and there was no more than a mere possibility that he would have changed his mind and endangered society by choosing to drive while impaired.
[23] In response, the Crown argued that the trial judge’s finding of guilt was fully supported by the evidence adduced at trial and that it was not the role of the summary conviction appeal court to retry the case.
[24] In reversing the trial judge, the summary conviction appeal judge found the Crown had failed to prove that the respondent had been in care or control of his vehicle. He held that the findings of the trial judge were based on speculation. The key portions of the summary conviction appeal judge’s reasons are as follows:
The difficulty for this court is that a careful analysis of Justice Woolcott’s core reasoning, the ratio of her decision to which I have referred earlier, does show a certain measure of speculation. That speculation comes when she says there was a concrete and tangible likelihood that Mr. Smits would cease to be passed out and would decide that he was going to move the van. And importantly, that that would occur at a time when his ability to do so, that is to say to operate the van, was impaired by the consumption of alcohol and that represents the danger that is considered.
There is no judicial notice taking by Justice Woolcott of [the] rate of elimination. We know not when the van got in that position. We know when it was discovered. And accordingly, it is mere speculation to say that the alcohol could not have been eliminated from his system by the time he drove the car because none of us knows when any of that would happen.
[25] The summary conviction appeal judge allowed the appeal.
III. ISSUES
[26] The Crown advances two arguments on this appeal and submits that:
(i) This is a proper case for leave to appeal to this court on summary conviction proceedings pursuant to s. 839 of the Criminal Code; and,
(ii) The summary conviction appeal judge erred in law by applying an incorrect standard of review and substituting his opinion for that of the trial judge on the issue of whether the respondent had care or control of a motor vehicle in this case.
IV. ANALYSIS
Issue No. 1: Leave to Appeal
(i) Crown Application for Leave
[27] This court established in R. v. R.(R.), 2008 ONCA 497, 90 O.R. (3d) 641, and has repeated numerous times since then, that leave to appeal pursuant to s. 839 should only be granted in two distinct categories of cases:
(i) Where the merits of the proposed question of law are arguable, even if not strong, and the proposed question of law has significance to the administration of justice that goes beyond the particular case.
(ii) Where there appears to be a “clear” error even if it cannot be said that the error has significance to the administration of justice beyond the particular case.
[28] Moreover, at para. 27 of R.(R.), Doherty J.A. emphasized that access to this court for a second appeal “should be limited to those cases in which the applicant can demonstrate some exceptional circumstance justifying a further appeal.”
[29] The Crown submits that several factors favour leave to appeal in this case. To begin with, the Crown submits that its arguments for error are strong. As well, the Crown submits that although the issues raised on this care or control case are highly fact specific, it is also an area of law that is highly litigated in the lower courts. Many of the frequently cited cases are lower court decisions. The Crown submits that it would be beneficial to have guidance from this court on the scope of the “change of mind” aspect of the risk of danger concept that underpins the care or control jurisprudence.
[30] In response, the respondent argues that the present case cannot be brought under either of the two permissible categories to warrant granting leave to appeal to this court. That is, its issues are not sufficiently meritorious, nor does it raise a significant question for the administration of the justice system.
[31] In particular, the respondent submits that the question of law posed by the Crown is not one that transcends the peculiar facts of this case. The respondent argues that while the factual matrix of any case is of significance to the individual person or persons charged, in this case the legal soil of the care or control jurisprudence has been well-tilled. The respondent submits that no new principle is advanced here, rather, only the application of well established principles to the singular circumstances of this case.
[32] I am persuaded that the issues raised in this appeal have significance to the administration of justice beyond the facts of this case. How the courts have interpreted the issue of care or control has generated significant jurisprudence at the lower court level in this province. Not all of this jurisprudence has been consistent when dealing with the situation, as in this case, of an impaired occupant of a motor vehicle. I am of the view that the summary conviction appeal judge erred in holding that the finding of the trial judge that the respondent was in care or control of the vehicle was based on speculation. I am satisfied that, if left uncorrected, this error would have the potential to negatively affect many other care or control cases.
[33] For these reasons, I would grant leave to appeal on the issues raised by the Crown.
(ii) Additional issue
[34] As an additional issue, the respondent seeks leave to argue that there was a fundamental flaw in the reasoning of the trial judge by her failure to analyze the exculpatory statements of the respondent in accordance with R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. This legal argument was not raised at trial nor does it appear in the respondent’s Notice of Appeal or either of the parties’ factums filed before the summary conviction appeal court. The summary conviction appeal judge himself only makes a brief reference to W.(D.) in his reasons on appeal and the W.(D.) issue is not the basis upon which the appeal was granted.
[35] This court has stated in R.R., at para. 38, that generally speaking it will not entertain legal arguments that are not advanced at the first level of appeal. In this case, however, I would exercise the court’s discretion in favour of permitting the respondent to raise this supplementary argument. It appears that this issue was raised in oral argument, at least, at the first level of appeal; there was no tactical reason for not raising it initially; and the trial record is sufficient: see R. v. Sweeney (2000), 2000 CanLII 16878 (ON CA), 50 O.R. (3d) 321 (C.A.), at paras. 31-40.
[36] Essentially, the respondent’s argument is that although the respondent did not testify and called no evidence, there were certain exculpatory statements of the respondent introduced into evidence by the Crown that were capable of supporting a reasonable doubt on the central issue of care or control. Accordingly, the respondent submits that the failure of the trial judge to consider those statements in accordance with W.(D.) is a fatal error on the part of the trial judge and also fatal to the Crown’s success on this appeal.
[37] There is now no doubt that in light of this court’s decision in R. v. D.(B.), 2011 ONCA 51, at para. 114, that, even if an accused does not testify or call any evidence, where there are credibility findings on a vital issue to be made between conflicting evidence arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear that it is not necessary for the trier of fact to believe the evidence favourable to the defence on that trial issue. Rather, it is sufficient if, viewed in the context of all the evidence, the conflicting evidence leaves the trier of fact in a state of reasonable doubt as to the accused’s guilt. In that event, the trier of fact must acquit.
[38] In fairness to the trial judge, D.(B.) had not been decided when she released her reasons for judgment. This may account for why she did not refer to W.(D.) in this case where the accused did not testify nor call evidence.
[39] Trial judges in a judge alone trial do not need to adhere slavishly to the W.(D.) formula. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W.(D.) instruction: see R. v. Minuskin (2000), 2003 CanLII 11604 (ON CA), 68 O.R. (3d) 577 (C.A.), at para. 22.
[40] The respondent argues that his statements to the police that another person had driven him to the location where the van was found and left him in the van (a person whom he would not identify) were capable of supporting a reasonable doubt on the vital issue of care or control.
[41] An examination of the trial judge’s reasons makes it very clear that at no time could it be said that any adverse findings of credibility that the trial judge made in connection with the exculpatory statements of the respondent led her inescapably to a finding of guilt.
[42] Indeed the opposite is true. Her very careful reasons demonstrate a detailed consideration of all the evidence in the case, including the exculpatory statements of the respondent, from which she concluded she was not left in a state of reasonable doubt that the respondent had care or control of the motor vehicle.
[43] Nor do her reasons in any way support the view that the Crown was in some way relieved of the burden of proving the case against the respondent beyond a reasonable doubt.
[44] In my view, the reasons of the trial judge do not reveal any errors of law. I am satisfied her reasons have regard for the principles articulated in W.(D.). Accordingly, although I would grant the respondent leave to raise this supplementary argument, for the reasons I have expressed, I would not give effect to it.
Issue No. 2: Did the summary conviction appeal judge err in applying an incorrect standard of review and substituting his opinion for that of the trial judge on the issue of whether the respondent had care or control of the motor vehicle?
[45] In order to answer this question, I think it is necessary to review the law regarding the care or control of a motor vehicle as it relates to the facts of this case briefly.
(i) Care or Control of a Motor Vehicle
[46] Section 253 of the Criminal Code states:
(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 railway 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 a 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 millilitres of blood.
[47] The Crown can establish care or control of a motor vehicle in a variety of ways. The first is by relying on the statutory presumption found in s. 258(1)(a) of the Criminal Code. Where an accused is found in the driver’s seat, the accused must establish on a balance of probabilities that he or she did not occupy the driver’s seat for the purpose of setting the vehicle in motion.
[48] Where the statutory presumption is rebutted or is not available on the evidence, as in this case, the Crown can rely on what is commonly referred to as de facto or actual care or control.
[49] The mens rea for having the care or control of a motor vehicle is the intent to assume care or control after the voluntary consumption of alcohol or a drug. The actus reus is the act of assumption of care or control when the voluntary assumption of alcohol or a drug has impaired the ability to drive: see R. v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119, at pp. 123-124.
[50] The real issue in this case turns on the actus reus of the offence of care or control.
[51] In R. v. Wren (2000), 2000 CanLII 5674 (ON CA), 144 C.C.C. (3d) 374, at para. 16, this court considered the prior jurisprudence, including Toews and other leading decisions from the Supreme Court of Canada and described the actus reus of the offence of care or control in this way:
[I]n order to establish care or control of a motor vehicle, the act or conduct of the accused in relation to that motor vehicle must be such that there is created a risk of danger, whether from putting the car in motion or in some other way.
[52] While Wren makes it clear that proof of a risk of danger is a necessary ingredient to establish the actus reus of care or control, the more difficult question is what kind of risk of danger is sufficient for the Crown to establish care or control.
[53] Courts have answered this question by recognizing that danger can come in many forms. It would appear that three risks of danger have been identified in the cases where an intoxicated individual uses a motor vehicle for a non-driving purpose:
(i) The risk that the vehicle will unintentionally be set in motion: see R. v. Ford, 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231;
(ii) The risk that through negligence a stationary or inoperable vehicle may endanger the individual or others: see R. v. Vansickle, [1990] O.J. No. 3235 (C.A.), aff’g [1988] O.J. No. 2935 (Dist. Ct.);
(iii) The risk that the individual who has decided not to drive will change his or her mind and drive while still impaired: see R. v. Pelletier (2000), 6 M.V.R. (4th) 152 (C.A.).
[54] This case deals with the third enumerated risk of danger: the risk that the individual who has decided not to drive will change his or her mind and drive while impaired.
[55] The Supreme Court addressed the rationale behind the “change of mind” ground for care or control in Toews. In Toews, at p. 126,McIntyre J. quoted the following passage from R. v. Price (1978), 1978 CanLII 2288 (NB CA), 40 C.C.C. (2d) 378 (N.B.C.A.), at pp. 383-84:
The mischief sought to be prohibited by the section as expressed by the wording is that an intoxicated person who is in the immediate presence of a motor vehicle with the means of controlling it or setting it in motion is or may be a danger to the public. Even if he has no immediate intention of setting it in motion he can at any instant determine to do so, because his judgment may be so impaired that he cannot foresee the possible consequences of his actions.
[56] In order to find care or control based on the change of mind ground, the Crown must prove there was risk that the respondent would have decided to drive while still impaired. The risk does not have to rise to the level of probability. The risk of danger stated by this court in R. v. MacMillan, 2005 CanLII 16073, at para. 4, 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.”
[57] That being said, what risk of danger must exist to establish actual care or control based on the change of mind ground has been the subject of much debate. The topic has generated considerable judicial attention in the courts below. While Wren continues to be binding authority in this province, Wren has spawned a number of cases with differing definitions on the required risk of danger.
[58] For example, the courts below have variously described the risk of danger in cases dealing with the change of mind ground as a “real risk” see R. v. Szymanski (2009), 2009 CanLII 45328 (ON SC), 88 M.V.R. (5th) 182 (S.C.), at para. 91; “realistic and tangible, not speculative or fanciful” see R. v. Sandhu (2008), 76 M.V.R. (5th) 305 (S.C.), at para. 71; a “realistic risk” see R. v. Ferguson (2005), 2005 CanLII 1060 (ON SC), 15 M.V.R. (5th) 74 (S.C.), at para. 24; and “going beyond mere possibility”, “more than speculative” and “concrete and tangible”, see R. v. Ross, 2007 ONCJ 59, 44 M.V.R. (5th) 275, at para. 13.
[59] However, since Wren, this court has not attempted to modify or qualify in any way the type of risk of danger required to establish care or control of a motor vehicle. Cases such as MacMillan, Pelletier, R. v. Quigley, [2000] O.J. No. 3963 (C.A.)and R. v. Cadieux (2004), 47 M.V.R. (4th) 53 (C.A.) have all followed the Wren definition of the actus reus of care or control. While the court in Quigley referred to “a real and obvious risk” it was not attempting to re-define the risk of danger set out in Wren. The court was simply observing the type of risk that existed on the particular facts of that case.
[60] Although the courts below have applied different modifiers, what all the authorities, including this court, seem to be saying is that in order to establish that an accused has created a risk of danger in change of mind cases, the Crown must demonstrate a risk that an accused, while impaired, would change his or her mind and put the vehicle in motion. That risk must be based on more than speculation or conjecture. Saying that any person whose ability to operate a motor vehicle is impaired to any degree might change his or her mind is not sufficient. The trier of fact must examine the facts and determine if there is an evidentiary foundation that such risk of danger exists.
[61] I appreciate that this task is not without its challenges because a finding of whether a risk of danger arises in circumstances where an accused is not actually driving requires the trial judge to engage in an assessment of what in all the particular circumstances may occur in the not too distant future. However, that is all part of the fact-finding process for the trier of fact.
[62] Whether a risk of danger arises on the facts is determined by assessing circumstantial evidence. The following comments from Watt J.A. in his text Watt’s Manual of Criminal Evidence (Toronto: Carswell, 2011), at p. 43, illustrate the approach that must be taken:
Where evidence is circumstantial, it is critical to distinguish between inference and speculation. Inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. There can be no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture.
[63] In Szymanski, at para. 93, Durno J. provides an excellent, although non-exhaustive, list of factors a court might look at when engaging in a risk of danger analysis on the basis of circumstantial evidence:
(a) The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive;
(b) Whether the keys were in the ignition or readily available to be placed in the ignition;
(c) Whether the vehicle was running;
(d) The location of the vehicle;
(e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination;
(f) The accused’s disposition and attitude;
(g) Whether the accused drove the vehicle to the location where it was found;
(h) Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving;
(i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit;
(j) Whether the accused had a stated intention to resume driving;
(k) Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption;
(l) Whether the accused was wearing his or her seatbelt;
(m) Whether the accused failed to take advantage of alternate means of leaving the scene;
(n) Whether the accused had a cell phone with which to make other arrangements and failed to do so.
[64] Adapting the language in Wren to the facts of this case, the question becomes – did the conduct of the respondent in relation to the motor vehicle create a risk that the respondent, while impaired, would put the vehicle in motion and thereby create a danger?
[65] In all the circumstances, and considering the factors set out by Durno J. in Szymanski, it was open to the trial judge in this case to conclude that the conduct of the respondent in relation to the motor vehicle created a risk that the respondent, while impaired, would put the vehicle in motion and thereby create a danger.
[66] For the reasons that follow, I am of the view that in overturning this finding of the trial judge, the summary conviction appeal judge erred.
(ii) Analysis of Grounds on Appeal
[67] Under s. 686(1)(a)(i) and s. 822(1) of the Criminal Code, the jurisdiction of the summary conviction appeal judge to review the finding as to sufficiency of the evidence is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence: see R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 29 O.R. (3d) 785 (C.A.), at pp. 791-92.
[68] The Crown submits that the summary conviction appeal judge erred in law by applying an incorrect standard of review and substituting his opinion for that of the trial judge on the issue of whether the respondent had care or control of a motor vehicle.
[69] The respondent takes a different view. He submits that the summary conviction appeal judge did not apply an incorrect standard of review. He submits that the summary conviction appeal judge correctly held that the trial judge engaged in speculation by failing to analyze when the respondent would have awoken and been in a position to change his mind about driving and his projected fitness level at the time.
[70] I agree with the comments of the summary conviction appeal judge, who is an experienced judge, that these cases are, in his words, “difficult to call”. However, the factors set out by Durno J. in Szymanski referred to above provide valuable assistance to trial judges in determining whether the requisite risk of danger has been established.
[71] In this case, there was ample circumstantial evidence to support the trial judge’s conclusion that the respondent was in care or control of the van. Her finding that the respondent would have decided to drive while still impaired was supported by the following:
• The presence of the keys in the ignition and ease with which the van could be put into motion;
• The respondent’s intention to return to his home in Barrie;
• The van’s remote location, the lack of available public transportation, and the respondent’s lack of any alternate plan to get home;
• The degree of the respondent’s intoxication, which was such that his judgment was significantly impaired;
• The respondent’s “volatility in mood and response” as evidenced in the DVD, which augmented concerns about his judgment;
• The accessibility of the driver’s seat;
• The respondent’s earlier presence in the driver’s seat when he contemplated driving.
[72] With great respect to the summary conviction appeal judge, given the factual underpinnings of the conviction outlined above, there was no basis for the summary conviction appeal judge to interfere. In this case, the findings of the trial judge were based on more than mere speculation. There were a constellation of factors that were relied upon by the trial judge, apart from simply the breathalyzer readings of the respondent, in reaching her conclusion there was a risk of danger sufficient to establish the respondent’s care or control of the motor vehicle.
[73] In my view, the summary conviction appeal judge exceeded the ambit of factual review permitted under s. 686(1)(a)(i) of the Criminal Code and thereby erred in law in overturning the findings of fact of the trial judge.
V. CONCLUSION
[74] For the foregoing reasons, I would grant leave to appeal, allow the appeal and restore the conviction and sentence.
Released: Aug. 1, 2012
“JL” “M.F. Brown R.S.J. (ad hoc)”
“I agree John Laskin J.A.”
“I agree R.A. Blair J.A.”