COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnston, 2016 ONCA 834

DATE: 20161108

DOCKET: C61557

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Michael Johnston

Respondent

Katherine Beaudoin, for the appellant

Solomon Friedman, for the respondent

Heard: November 4, 2016

On appeal from the decision of the Summary Conviction Appeal Court dated December 9, 2015 by Justice Kevin B. Phillips of the Superior Court of Justice, allowing the appeal from the conviction entered on April 23, 2015 by Justice J.D. Waugh of the Ontario Court of Justice.

ENDORSEMENT

[1] The Crown seeks leave to appeal and, if leave be granted, appeals the summary conviction appeal court’s (the “SCAC’s”) ruling allowing the respondent’s appeal from his conviction for having care or control of his vehicle while impaired, under s. 253(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The Crown contends that the SCAC impermissibly substituted its own view of the evidence about whether the respondent was in de facto care or control of his vehicle for that of the trial judge. In particular, the SCAC unjustifiably interfered with the trial judge’s factual finding that, in all the circumstances, the respondent posed a realistic risk of danger to persons or property because, in his highly inebriated state, he may have changed his mind and decided to drive his vehicle. In so doing, the Crown says, the SCAC committed a clear error of law and exceeded its jurisdiction.

[3] Further, the Crown argues, the SCAC judge essentially allowed the respondent’s appeal on a ground neither advanced nor argued by either of the parties – the insufficiency of the trial judge’s reasons.

[4] The Crown submits that, in light of these clear errors and given the binding nature of the SCAC’s decision on lower courts, the test for leave to appeal to this court is met on either or both branches of the test set out in R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641.

[5] We agree that the test for leave is met in this case. Leave to appeal to this court may be granted where there is a clear error in the decision sought to be appealed, even if it cannot be said that the error has significance to the administration of justice beyond the specific case before the court: R. v. R.R., at para. 32. Here, as we will explain, the SCAC did make clear errors of law. Moreover, unless corrected on appeal, the SCAC’s decision may well have impact, as a binding precedent, on care or control driving cases litigated in the provincial court, where hundreds, if not thousands, of such cases are routinely prosecuted. The granting of leave to appeal is therefore warranted.

[6] We are also persuaded that, on the merits, the SCAC’s decision cannot stand.

[7] On the trial judge’s uncontested findings: i) the respondent was inebriated; ii) he had repeatedly called a tow truck to come and fix the lock on his car so that he could gain entry to the car using his keys; iii) although the respondent planned to have his wife come and pick him up, and had called his wife in that regard, he did not tell his wife where or when to pick him up; and iv) the respondent continued to drink in a bar while awaiting the arrival of the tow truck.

[8] In these circumstances, the trial judge found that the respondent had “left his options open” as to how to get home from the bar, his stated plan to have his wife drive him home was not implemented, and there was a realistic risk of danger because the respondent could change his mind and decide to drive himself home in his inebriated state.

[9] There is no suggestion that these key findings are tainted by palpable and overriding error. To the contrary, they are fully supported by the evidentiary record. As a result, it was not open to the SCAC to interfere with these findings and to substitute its own findings and assessment of the evidence for those of the trial judge.

[10] However, that is precisely what the SCAC did in at least two material respects. First, the SCAC did not accept the trial judge’s factual finding that the respondent’s alternate plan to get home had not been implemented, instead observing that it was “an error to assume that a plan for alternatives to driving must be fully implemented before it is entitled to be considered as possibly raising a reasonable doubt with respect to risk”.

[11] With respect, this is an inaccurate reading of the trial judge’s reasons. The trial judge made no finding that the respondent’s alternate plan had not been “fully” implemented. Rather, for reasons he clearly explained, he found, in effect, that the plan had not been meaningfully implemented at all. There was no basis for appellate interference with this factual finding.

[12] Second, the SCAC also did not accept the trial judge’s finding of a realistic existing risk that the respondent could change his mind and drive. It appears that the SCAC concluded that this finding was based only on the respondent’s state of intoxication.

[13] This, too, reflects a misapprehension of the trial judge’s reasons. The trial judge’s reasons make it clear that his risk assessment was based on his consideration of several relevant factors including, but not limited to, the appellant’s state of intoxication. His factual finding of a realistic, clear and present risk was open to him on the record. It was also reasonable on the facts of this case.

[14] Finally, on multiple occasions in its reasons, the SCAC questioned the adequacy of the trial judge’s reasons, as support for interfering with his ruling. However, the parties did not challenge the sufficiency of the trial judge’s reasons on the appeal before the SCAC. Nor were they invited to make submissions on this issue.

[15] In any event, apart from these procedural fairness concerns, when the trial judge’s reasons are read in the context of the record, as they must be, it is apparent why he decided as he did. This is all that is required to meet the sufficiency of reasons standard.

[16] Accordingly, there was no room for appellate interference with the trial judge’s decision based on any perceived material deficiency in his reasons.

[17] For the reasons given, the appeal is allowed, the order of the SCAC is set aside, and the conviction entered by the trial judge is restored.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“David Watt J.A.”