COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O'Neill, 2016 ONCA 307

DATE: 20160427

DOCKET: C58587

Strathy C.J.O., Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hugh O’Neill

Applicant

Frank Miller, for the applicant

Matthew Asma, for the respondent

Heard: April 22, 2016

Application for leave to appeal from the decision of Justice L.C. Leitch of the Superior Court of Justice, dated March 4, 2014, dismissing an appeal from the conviction entered on March 24, 2011, by Justice G. Pockele of the Ontario Court of Justice.

ENDORSEMENT

[1] The applicant was convicted in the Ontario Court of Justice under s. 253(1)(a) and (b) of the Criminal Code of having care and control of his vehicle while his ability to drive was impaired by alcohol and of having care or control when his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood. His appeal to the Superior Court of Justice was dismissed. He seeks leave to appeal to this court on a question of law pursuant to s. 839(1) of the Criminal Code.

[2] In the early hours of a December morning, police found the applicant asleep in the driver’s seat of his truck, parked in a lot outside an industrial building in London, Ontario. The key was in the ignition and the truck was running. It took a while for the officer to rouse him. When he awoke, he demonstrated signs of impairment and the officer formed the opinion that the applicant’s ability was impaired by alcohol. Testing detected blood alcohol levels of 137 and 136 milligrams per 100 millilitres.

[3] At issue in the courts below was the effect of the statutory presumption contained in s. 258(1)(a) of the Code, which provides that the occupant of the driver’s seat of a vehicle is deemed to have the care or control of the vehicle unless they establish on a balance of probabilities that they did not occupy that seat for the purpose of setting the vehicle in motion.

[4] The applicant’s position was that after a night of drinking he was driven back to his truck by friends and went to sleep in the driver’s seat of the truck with the intention of sleeping it off until he was sober. He testified that his plan was to get up the next morning and “go have a coffee and some, ah you know a bagel or whatever, my usual routine” and to drive to his work site in St. Thomas, Ontario. He woke up during the night to urinate, returned to the truck, got into the driver’s seat, put the key in the ignition, started the vehicle and turned on the heater for warmth. He then went to sleep in the driver’s seat with the vehicle running and the gearshift apparently in the “park” mode.

[5] The trial judge found that the Crown was entitled to the benefit of the presumption in the Code and that the applicant had failed to rebut the presumption because he occupied the driver’s seat with the intention of setting the vehicle in motion in the morning, once he had sobered up.

[6] In any event, the trial judge held that the applicant was in care and control of the vehicle with the attendant risk that it could be put in motion and could become dangerous. There was no reasonable doubt of his guilt, quite apart from the presumption.

[7] The Summary Conviction Appeal Court (SCAC) judge dismissed the appeal. The applicant argued that his evidence at trial was capable of being interpreted to support the conclusion that he was going to get out of the truck the next morning to get coffee and did not intend to immediately put the vehicle in motion. The SCAC judge, relying on R. v. Boudreault, 2012 SCC 56, held that a stated intention to drive “later” did not automatically rebut the statutory presumption. She said, at para. 24:

A lack of a “contemporaneous intention to drive” is not enough on its face to alleviate a finding of “care and control” and therefore rebut the presumption found in s. 258(1)(a) of the Criminal Code.

[8] In what the respondent describes, accurately in our view, as obiter, the SCAC judge continued, at para. 27:

… even if the appellant as he stated did not have an intention to drive at the time he was found by the police in an inebriated state, if there still existed, inter alia, a realistic risk of danger at that time, then a finding of “care or control” is still at least possible and consequently, the presumption has not been rebutted.

[9] The respondent acknowledges that this statement is problematic, because it suggests that the presumption must be rebutted by evidence of the absence of risk of danger, independent of the absence of an intention to drive.

[10] As the Supreme Court observed in Boudreault, at para. 41, the intention to set the vehicle in motion “suffices in itself to create the risk of danger contemplated by the offence of care or control.” Although the presumption may be rebutted by proof of the absence of the requisite intention, the risk of danger remains relevant, not for the purpose of rebutting the presumption, but for the purpose of determining whether the accused’s conduct in relation to the vehicle presents a realistic risk of danger to persons or property so as to establish care or control under s. 253(1) of the Code: Boudreault, at para. 41.

[11] The test for leave under s. 839 of the Code is set out in R. v. R. R., 2008 ONCA 497, and R. v. Rulli, 2011 ONCA 18. Leave is available only on a question of law and is granted sparingly. The key considerations are (a) the strength of the proposed appeal and (b) the significance of the proposed question of law to the administration of justice in the province, beyond the circumstances of the particular case.

[12] In our view, the test has not been met.

[13] First, the grounds of appeal are weak. The trial judge found that the applicant had failed to discharge the burden of proof to rebut the presumption. The applicant did not satisfy the trial judge that it was his intention to leave the vehicle and to walk to some unidentified place for breakfast. The applicant’s evidence on this point was ambiguous at best and he has identified no palpable and overriding error in the trial judge’s assessment of that evidence.

[14] Second, the issue of law is well-settled by the Supreme Court of Canada in Boudreault and in R. v. Whyte, 1988 47 (SCC), [1988] 2 S.C.R. 3, as well as in this court’s decision in R. v. Hatfield (1997), 1997 2938 (ON CA), 33 O.R. (3d) 350. The SCAC judge’s obiter comments were not necessary to her conclusion, and have not, to our knowledge, been followed in other cases. We see no issue of significance.

[15] For these reasons, the motion for leave to appeal is dismissed.

“G.R. Strathy C.J.O.”

“G. Pardu J.A.”

“M.L. Benotto J.A.”