Court of Appeal for Ontario

Date: 2018-06-12 Docket: C65034 Judges: Doherty, Pepall and Nordheimer JJ.A.

Between

Her Majesty the Queen Appellant

and

Jeff McClennan Respondent

Counsel

David Friesen, for the appellant Stephen Menzies, for the respondent

Heard and released orally: June 6, 2018

Background

On appeal from the decision dated May 25, 2017 by Justice Thomas Bielby of the Superior Court of Justice sitting as a Summary Convictions Appeal Court, with reasons reported at 2017 ONSC 3223, allowing an appeal from the convictions entered on April 25, 2016 by Justice Norman S. Douglas of the Ontario Court of Justice.

Reasons for Decision

[1] The Crown appeals, with leave, from the decision of the Summary Conviction Appeal Judge ("SCAJ") that allowed the respondent's appeal from conviction and ordered a new trial.

[2] The respondent was convicted after trial of impaired care or control of a motor vehicle, contrary to s. 258(1)(a) of the Criminal Code. The basic facts are that the respondent was passed out in the driver's seat of his vehicle in a stranger's farmyard. The engine was running and the respondent was wearing his seatbelt. The owner of the farm discovered the respondent and called the police. The respondent admitted at trial that he had drunk a bottle and a half of wine while sitting in the vehicle, in addition to two beers earlier in the day. At the police station, he provided two breath samples that resulted in readings of 210 and 200 milligrams of alcohol in 100 millilitres of blood – 2 ½ times the legal limit.

[3] The respondent gave evidence at his trial that it was not his intention to drive. He had pulled into the farmyard because of bad weather. Since he knew that it was unsafe to drive, he decided to drink some of the wine that he had with him. He was unclear in his evidence as to what his ultimate plan was in terms of getting home.

[4] The trial judge expressly rejected the respondent's evidence. He found the respondent to be evasive in his evidence and that his evidence overall did not make sense.

[5] On appeal, the SCAJ correctly found that the conviction was fact driven and that intervention was only warranted if the trial judge made a palpable and overriding error. The SCAJ then identified two such errors. One was the trial judge's reference to a witness' evidence and a perceived conflict between it and the respondent's evidence regarding his consumption of two beers earlier in the evening. The other was related to the trial judge's conclusion that the respondent would have driven home if the weather improved – something that the SCAJ referred to as a "possible error". The SCAJ then concluded that these errors rose to the level of palpable and overriding errors and allowed the appeal.

[6] In our view, the SCAJ erred in his characterization of the errors that he found as palpable and overriding. The first asserted error was arguably not an error but simply represented a conflation, through the wording used by the trial judge, of two separate pieces of evidence. In any event, any error regarding the consumption of the two beers had nothing to do with the central issue that the trial judge had to determine. The second asserted error was not an error at all. It was the trial judge's conclusion on the evidence regarding the respondent's intention. It was a conclusion that the trial judge was entitled to reach on the evidence that was before him.

[7] In our view, there was no proper basis for the SCAJ to interfere with the conclusion that the trial judge reached on the evidence, specifically, that there was a realistic risk, on these facts, that the respondent would have operated the motor vehicle. In any event, aside from that issue, having rejected the respondent's evidence it followed that the respondent had not rebutted the presumption of care or control of the vehicle that arises by virtue of s. 258(1)(a) and thus was properly convicted.

Conclusion

[8] We would allow the appeal, set aside the decision of the SCAJ, and restore the convictions and sentence.

"Doherty J.A."

"S.E. Pepall J.A."

"I.V.B. Nordheimer J.A."

[1] Leave to appeal was granted by endorsement dated February 26, 2018 (Docket M48003).