COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Balogun-Jubril, 2016 ONCA 199

DATE: 20160309

DOCKET: C59594

Cronk, Juriansz and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jaffar Balogun-Jubril

Appellant

Michael W. Caroline, for the appellant

Christopher Chorney, for the respondent

Heard: February 12, 2016

On appeal from the decision of the Summary Convictions Appeal Court dated September 15, 2014 by Justice Kenneth L. Campbell of the Superior Court of Justice, allowing the appeal from the acquittals entered on June 20, 2013 by Justice Cathy Mocha of the Ontario Court of Justice.

Juriansz J.A.:

[1] The appellant seeks leave to appeal his convictions of having care or control of a motor vehicle while impaired and having a blood alcohol level that exceeded 80 mg of alcohol in 100 mL of blood, pursuant to ss. 253(1)(a) and (b) of the Criminal Code, R.C.S. 1985, c. C-46. He was acquitted at trial. The Crown appealed and the appeal judge found him guilty of both offences.

A. Background

[2] On July 29, 2012, at about 5:20 in the morning, the appellant was found in a deep sleep in the driver’s seat of his car, which was stopped in a driving lane of the exit ramp from Highway 409 at Martin Grove Road. The engine was off and the vehicle’s transmission was in park, but the key was in the ignition. The emergency lights of the vehicle were flashing and there was a Ministry of Transportation truck parked behind the appellant’s vehicle. The appellant showed significant signs of impairment and was taken to the police station. He registered blood-alcohol readings of 150 and 160 at 6:41 a.m. and 7:27 a.m.

[3] The appellant testified that his car ceased to operate at about 2:45 a.m. as he was driving. A mechanic testified that the appellant’s car was completely inoperable because it had leaked oil and the engine had seized.

[4] The trial judge found that the appellant was not “operating” a vehicle while impaired because there was no evidence of his condition at the time the car ceased operating around 2:45 a.m. The trial judge then considered whether the appellant had “care or control” of the vehicle while impaired or with a blood alcohol reading of over .08. The trial judge concluded that the appellant had not engaged in an intentional course of conduct that had created a realistic risk of danger. She found him not guilty.

[5] The appeal judge found that the trial judge committed a palpable and overriding factual error in concluding that there was no realistic risk of danger to persons or property when the police arrived on the scene. Noting the “low threshold” of establishing that the conduct of the accused in relation to his motor vehicle created a realistic risk of danger to public safety, the appeal judge set aside the trial judge’s decision and registered convictions on both counts against the appellant.

B. Issues

[6] The appellant proposes to advance two arguments on appeal. First, he would argue that the appeal judge was not entitled to interfere with the trial judge’s finding that there was no realistic risk of danger to the public, as deference is owed to findings of fact. In R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157, at para. 11, the Supreme Court of Canada makes clear that whether a realistic risk is created is a question of fact. Second, he would argue that the risk identified by the appeal judge is properly characterized as “theoretical” and not as “realistic”.

C. leave To Appeal To This court

[7] As s. 839 of the Criminal Code provides, the appellant can appeal to this court only with leave and only on a ground that involves a question of law alone.

[8] There is no right to appeal factual findings or questions of mixed fact and law. Further, even where the appealing party identifies a question of law, leave is not automatic: not all questions of law merit a second appeal: R. v. R.R. (2008), 2008 ONCA 497, 90 O.R. (3d) 641,at para. 24. The significance of the issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal must also be considered: para. 37.

D. the appellant’s proposed grounds of appeal

(1) Standard of review before the appeal judge

[9] Section 813(b)(i) of the Criminal Code allows the Crown to appeal the trial judge’s decision to the summary conviction appeal court upon questions of law alone, questions of mixed fact and law, or questions of fact: R. v. Labadie, 2011 ONCA 227, 275 C.C.C. (3d) 75, at para. 50. Despite the breadth of the statutory appeal, deference is owed to the findings of fact of a trial judge. Here, the appeal judge relied on errors in the trial judge’s analysis in interfering with her conclusion the appellant had not created a realistic risk of danger.

[10] The appeal judge concluded that the trial judge focused, wrongly, on the inoperable nature of the respondent's vehicle. I agree. The trial judge seems to have proceeded on the basis that an inoperable vehicle could only cause a realistic risk of danger by somehow being placed in motion other than under its own power. Indeed, while recognizing that the Supreme Court’s reasons in Boudreault left open the possibility that an inoperable motor vehicle could create a realistic risk of danger, she conceived this happening by “releas[ing] the parking brake”, “trying to roll the vehicle” or “some situation such as that”. She concluded that was not what she was dealing with in this particular case. She accepted that the appellant was “simply sitting in an inoperable motor vehicle waiting for a tow truck to arrive.”

[11] This is not a correct reading of Boudreault. The Court, at para. 42, clearly contemplates that a stationary vehicle may endanger persons or property through “negligence, bad judgment or otherwise”. The appeal judge correctly noted that this court has taken an approach consistent with this reading of Boudreault in R. v. Vansickle, [1990] O.J. No. 3235 (C.A.), aff’g [1988] O.J. No. 2935 (Dist. Ct.), R. v. Wren (2000), 2000 CanLII 5674 (ON CA), 47 O.R. (3d) 544 (C.A.), leave to appeal refused, [2000] S.C.C.A. No. 235, and R. v. Smits, 2012 ONCA 524, 294 O.A.C. 355.

[12] Moreover, in reaching her conclusion there was no realistic risk, the trial judge found the appellant had done “all that could be done to reduce the risk”. That is not the pertinent inquiry. The question the court must determine is whether any realistic risk of danger was created.

[13] Given the incorrect analysis of the trial judge, the appeal judge was entitled to interfere with her conclusion and to find that the risk was realistic, and not merely theoretical. On the facts found by the trial judge, I would conclude that he was correct in doing so.

[14] While the application of the standard of review is a question of law, this proposed argument has no merit and cannot provide a basis for leave to appeal.

(2) Proper characterization of the risk

[15] The main focus of the appellant’s oral argument was that the identified risk should be characterized as theoretical, and not realistic.

[16] This is not an argument the appellant could advance on appeal. The appellant’s right to seek leave to appeal is restricted to questions of law. The appellant’s argument that the appeal judge was wrong to find the risk of danger was “realistic” and not merely “theoretical” does not raise a pure question of law.

E. Conclusion

[17] I would refuse the application for leave to appeal to this court.

Released: March 9, 2016 (EAC)

“R.G. Juriansz J.A.”

“I agree E.A. Cronk J.A.”

“I agree L.B. Roberts J.A.”