ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-0085

B E T W E E N:

Jeffrey Langevin, for the Respondent

JAMES MILNE

Respondent

• and -

HER MAJESTY THE QUEEN

John Semenoff, for the Applicant

Appellant

HEARD: July 25, 2012

SUMMARY CONVICTION APPEAL

On Appeal from the decision of the Honourable Justice J.F.R. Levesque of the Ontario Court of Justice on June 3, 2011, at Ottawa, Ontario

McMunagle J.

Introduction

[ 1 ] On May 7, 2010, the Respondent, James Milne, was charged with Impaired Driving and Operating a Motor Vehicle Over 80 Milligrams of Alcohol in 100 milliliters of blood, contrary to sections 253(1)(a) and 253(1)(b) of the Criminal of Code , R.S.C. 1985, c. C-46 [ Code ].

[ 2 ] The Respondent was tried in the Ontario Court of Justice in Ottawa, Ontario, on April 29 and June 3, 2011.

[ 3 ] At the commencement of the trial, both the Crown and defence advised the Court that the only issue for trial was whether the Respondent was operating or in care or control of a motor vehicle within the statutory two hour presumption period, before the taking of the first breath sample at 2:04 a.m. As stated by the Respondent, the case essentially came down to the question of whether or not the Crown could prove that the Respondent was either operating or in care or control of his motor vehicle after 12:04 a.m.? At trial, the Crown properly conceded that there was no reasonable prospect of conviction with respect to the impaired driving charge, contrary to s. 253(1) (a) of the Code , and accordingly, that charge was dismissed.

[ 4 ] Levesque J. acquitted the Respondent on the charge of Impaired Driving and Operating a Motor Vehicle Over 80 Milligrams of Alcohol in 100 milliliters of blood contrary to ss. 253(1) (a) and 253(1)(b) of the Code . The Respondent was acquitted on the basis that he was neither in care nor control of the motor vehicle during the requisite period of time.

Summary of the Facts

[ 5 ] Two witnesses were called at trial: Mr. Gilbert Larabie, a tow truck driver, who came upon the Respondent, seated in the driver’s seat of his motor vehicle on Highway 417, and Constable John Armit, the arresting officer.

[ 6 ] The evidence of these two witnesses established the following uncontested facts:

1. Mr. Larabie was operating his tow truck during the late evening of May 6, 2010, into the early morning hours of May 7, 2010 (See Trial Transcript, dated April 29, 2011 [ hereinafter referred to as“ Evidence at Trial” ], at p. 8).

2. Mr. Larabie, while travelling eastbound on Highway 417, came upon a black car, stopped in the second (middle) lane, just past the split with Highway 416 (See Evidence at Trial, pp. 9-10).

3. Mr. Larabie further testified that when he came upon the black car, it was a little after midnight on May 7, 2010, and that the car had no lights on (no hazards) (See Evidence at Trial, pp. 10-11).

4. Mr. Larabie parked his tow truck and walked up to the Respondent, who was seated in the driver’s seat of the black motor vehicle (See Evidence at Trial, pp. 11-12).

5. Mr. Larabie asked the Respondent if he was okay and the Respondent stated words to the effect that his car had stalled on him (See Evidence at Trial, p. 11).

6. Mr. Larabie told the Respondent that he had two flat tires and that it looked like he had hit the wall because of the scrap marks on the side of his car and the Respondent stated that he thought somebody cut him off (See Evidence at Trial, p. 11).

7. During this initial interaction between Mr. Larabie and the Respondent, the Respondent exited the motor vehicle to examine the damage and agreed to have Mr. Larabie tow his vehicle (See Evidence at Trial, p. 11).

8. Mr. Larabie called on his cellular telephone for an OPP Officer to attend. Mr. Larabie believes that he made this call at 12:15 a.m. (See Evidence at Trial, p. 16).

9. Mr. Larabie also testified that it was his opinion that the Respondent’s vehicle needed a tow truck at that time, as it was not “drivable” (See Evidence at Trial, p. 13).

10. Further, Mr. Larabie testified that he did not know if the vehicle could be started again. The Respondent had told him that the car “stalled out.” Mr. Larabie did not attempt to start the car (See Evidence at Trial, p. 13).

11. Mr. Larabie also testified that he was on the scene “probably five minutes, seven minutes”, before he phoned the police (See Evidence at Trial, p. 14). It should be noted that Mr. Larabie did not have an exact time for when he came upon the scene (See Evidence at Trial, p. 17).

12. Mr. Larabie further testified that he thought the vehicle was leaking radiator fluid (See Evidence at Trial, p. 18).

13. Mr. Larabie testified that he called the police within five minutes of arriving on the scene (See Evidence at Trial, pp. 7 and 24).

14. Mr. Larabie further testified that he believed that Constable Armit arrived within eight minutes of the call to dispatch (See Evidence at Trial, pp. 23-24).

15. However, Mr. Larabie also conceded that he could be wrong about the time it took Constable Armit to arrive. It has been awhile since the time of the incident (See Evidence at Trial, p. 24).

16. Constable Armit, the arresting officer, testified that he was dispatched to the scene of the collision at 12:24 a.m. and arrived at the scene at 12:42 a.m. on May 7, 2010 (See Evidence at Trial, p. 28).

17. Constable Armit testified that, while at the scene, he observed that there was considerable damage to the black vehicle (See Evidence at Trial, p. 28).

18. The front and rear left tires were off the rim. The rear tire was also partially shredded (See Evidence at Trial, pp. 34 and 40).

19. Constable Armit noted fluid coming from the car, which had a greenish tinge and an odor similar to radiator fluid (See Evidence at Trial, p. 36).

20. At no time did the Respondent ever try to start his vehicle (See Evidence at Trial, p. 40).

21. Neither the Crown, nor the defence led any evidence as to the operability of the motor vehicle.

22. Lastly, the Respondent did not testify at trial.

[ 7 ] At the conclusion of the evidence and, in argument, the Crown properly conceded that it could not prove that the Respondent was “operating” the motor vehicle after 12:04 a.m. on May 7, 2010. The Crown’s case rested solely on the Respondent being in the care or control of his motor vehicle when Mr. Larabie arrived on the scene sometime after 12:04 a.m.

Reasons for Trial Decision

[ 8 ] The learned trial judge found that he was not satisfied beyond a reasonable doubt that, “the Crown has failed to show during the critical period of the two hours leading to the taking of the first sample, that the vehicle was operable and, therefore, I find the accused not guilty.”

[ 9 ] In acquitting the Respondent, Levesque J. stated, at pp. 3-4 of his Oral Reasons for Judgment, the following with respect to the s. 258(1)(a) presumption:

It seems to me that it is the point in time of the occupancy by the accused at the scene that is significant. Although the Crown initially stated in argument that it was when the accused first entered the vehicle, he cannot have it both ways: that is, limiting his evidence to the time the tow truck driver intervened during the course of the trial, but wanting the analysis to go back to a pre-accident time.

The amendment to the Criminal Code with reference to this section removed the time of entry as the point of analysis of an accused’s intent to drive, indicative that Parliament’s intent was for the analysis of intent to drive was to take place at the time of occupancy.

I am proceeding on that basis.

[ 10 ] Levesque J. also stated on pp. 4- 6 of his reasons:

Mr. Milne is charged with operating a motor vehicle initially while impaired by alcohol and while his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 milliliters of blood, contrary to s. 253(1) (a) and (b).

The Crown limited its prosecution to the second count with respect to the accused’s blood alcohol concentration having exceeded 80 milligrams of alcohol in 100 milliliters of blood and abandoned the impairment-based charge.

The Crown also proceeded to limit its prosecution of the over 80 charge to the included offence of having care or control of a motor vehicle. That care or control is an included offence and that was conceded by the accused.

As a result, the sole issue is to determine whether the Crown has established beyond a reasonable doubt that the accused had the control of an operable vehicle within the two hours of the taking of the accused’s first blood sample at 2:04:40; that is, subsequent to 12:04:40, in order to rely on the s. 258 presumption, that the blood alcohol concentration at the time of his care or control was the same as tested.

[ 11 ] Levesque J. essentially concluded that the Crown had failed to meet its evidentiary burden in these somewhat unique circumstances. Specifically, at pp. 7-9 of his reasons, the trial judge made the following finding:

It is impossible to establish a time of the accident;

Although Mr. Larabie, the tow truck operator, has it that he called the police after having verified with the accused in the driver’s side as to his condition, his testimony with respect to time is unreliable . Initially he had the time of the call to the police at 12:15, on the basis that he looked at his cell phone when he was asked the time by the dispatcher. On listening to the recording of the call, there is no such reference. He has himself stopping some five minutes before the call because he conversed with the driver before the call; yet, his estimate of five to eight minutes for the police to arrive is proven to be largely inaccurate. The officer testified having received the call from dispatch at 12:24 and arriving at the scene at 12:42, some 18 minutes later;

When Mr. Larabie conversed with the accused while in his car, the accused told him that the car had stalled. When advised that he had hit the wall, the accused responded that he had been cut off;

During the conversation that Mr. Larabie was having with the police, the accused is overhead stating that he had hit his head and given permission to remove the vehicle when asked if he wanted to do so. [Emphasis added.]

[ 12 ] The Crown had argued that the accused was exercising a degree of care and control merely by occupying the driver’s seat of the vehicle, and further that the Respondent, by not activating his emergency lights, was creating a danger. Both of which established care or control of the motor vehicle.

[ 13 ] The learned trial judge, at pp. 9-11, of his reasons, specifically rejected this argument on the following grounds:

(a) As is well established, care or control is defined as a series of acts involving the use of a car, its fittings or equipment whereby the vehicle may unintentionally be set in motion, creating the danger the section is designed to prevent or create some other danger;

(b) With respect to the risk of creating danger by setting it in motion, the evidence is that:

i) the vehicle’s two driver’s side wheels were flat; that is, the tires were flat and on its rims and could not be driven safely;

ii) the vehicle had stalled at one point;

iii) radiator fluid had drained;

iv) there is no evidence from either the tow truck operator nor the officer that the vehicle could actually be started.

(c) With respect to the failing to activate the lights to forewarn the potential motorists on the roadway, there is no evidence that the vehicle was operational to allow the lighting system to be activated. The evidence seems to be to the contrary; that is, no lights were on in circumstances where the vehicle had stalled, according to the statement of the accused and the radiator part of the motor had been damaged.

[ 14 ] Based on the foregoing analysis, the learned trial judge came to the conclusion that he was not satisfied beyond a reasonable doubt that during the critical period of the two hours leading to the taking of the first sample, that the vehicle was operable, and therefore, he found the accused not guilty of Impaired Driving and Operating a Motor Vehicle Over 80 milligrams of Alcohol in 100 Milliliters of Blood, contrary to ss. 253 (a) and 253(b) of the Code .

Position of the Parties

Crown’s Position

[ 15 ] It is the Crown’s position that in acquitting the Respondent, the trial judge erred: in law in applying the presumption under s. 258(1) (a) of the Code ; in providing any reasons as to how the presumption in s. 258(1)(a) was rebutted and; in law in failing to conduct a proper de facto care or control analysis.

Further, the Crown argued that there was no evidence at trial capable of rebutting the s. 258(1) (a) presumption and as the Respondent was in the driver’s seat of his motor vehicle within the two hour presumption period , the appropriate disposition on appeal is for a conviction to register on the s. 253(1)(b) count and a stay pursuant to the Kienapple principle ( R. v. Kienapple , 1974 14 (SCC) , [1975] 1 S.C.R. 729 ), to register on the s. 2531(a) count.

Respondent’s Position

[ 16 ] It is the Respondent’s position that the trial judge did not err in finding that the Crown could not rely on the presumption of accuracy (to allow the certificate of the results to be relied upon in evidence), as set out in s. 258(1) (a) of the Code , that the first sample must be taken no later than two hours after the time of the alleged offence (see s. 258(1)(c)(ii)). Therefore, if the Crown has not proven beyond a reasonable doubt that the care or control of the motor vehicle occurred after 12:04 a.m., then the presumption will not apply and the certificate cannot be used to prove the Respondent’s blood alcohol level. Further, the Respondent argued that even if the learned trial judge erred in finding that the Respondent rebutted the presumption as set out in s. 258(1)(a), the Respondent argues that the acquittal would still stand as the Crown failed to prove beyond a reasonable doubt when the actual time of care or control of the vehicle occurred.

Analysis

[ 17 ] The parties agree that the scope of reviewing the present appeal is limited to examining whether the acquittal is unreasonable and not supported by the evidence (See R. v. Burns , [1994] 1 S.C.R.; R. v. Biniaris , 2000 SCC 15 , 184 D.L.R. (4th) 193 ).

[ 18 ] In the court’s view, this appeal can be disposed of by reference to the principle expressed by the Court of Appeal in R. v. Hatfield , 1997 2938 (ON CA) , [1997] O.J. No. 1327 , 33 O.R. (3d) 350 (C.A.) , which was affirmed by the Court of Appeal in R. v. Miller , [2004] O.J. No. 1464 (C.A.) . As was stated by Tulloch J. in R. v. Chernywech, 2010 ONSC 2115 (S.C.J.), at para. 39 :

The principle, stated simply, is that the appellant, where found in a seat ordinarily occupied by the driver, can only rebut the presumption under s. 258(1)(a) where the appellant can demonstrate that his or her occupancy of the vehicle began without the purpose of setting the vehicle in motion.

[ 19 ] And, further, at paras. 40-41, Tulloch J. stated:

The relevant time period for addressing the appellant’s purpose in occupying the driver’s seat, in other words, is not the time period in which the police officers arrive on scene.

[ 20 ] Rather, as the Court of Appeal held, at para. 19, of Hatfield :

[W]here an intoxicated person is discovered occupying the driver’s seat of a vehicle, the presumption will apply unless the person can demonstrate that his or her occupancy began (emphasis added) without the purpose of setting the vehicle in motion.

[ 21 ] The learned trial judge has correctly stated the aforementioned law on page 4 of his reasons, where he stated:

The amendment to the Criminal Code with reference to this section removed the time of entry as the point of analysis of an accused’ intent to drive indicative that Parliament’s intent was for the analysis of intent to drive was to take place at the time of occupancy.

I am proceeding on that basis.

[ 22 ] I agree with the Respondent’s argument that the offence for which the Respondent had been arrested and charged related to the Respondent’s blood alcohol level when he was observed behind the steering wheel of the vehicle on Highway 417. It does not relate to any time prior to that point. The court also agrees with the Respondent that the learned trial judge properly focused his presumption analysis at the time the Respondent was discovered in his vehicle and not before that.

[ 23 ] It should be noted that the evidence before the court in Hatfield was that the Appellant’s intention to occupy the driver’s seat of the motor vehicle did not change from the time he entered the vehicle, to the time he was found asleep. This is distinguishable from the case at bar, and R. v. Wren (2000), 2000 5674 (ON CA) , 47 O.R. (3d) 544 , 144 C.C.C. (3d) 374 (Ont. C.A.) , leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 235, where the intention for occupying the driver’s seat of the motor vehicle changed. Moreover, at the time of being found, the occupation of that vehicle had changed and it was no longer for the purpose of setting the vehicle in motion.

[ 24 ] The learned trial judge found that the occupation of the driver’s seat of the motor vehicle at the time of the arrival of the tow truck operator was not for the purpose of setting the vehicle in motion, and therefore, the presumption, as set out in s. 258(1) (a) of the Code , was rebutted by the Respondent.

[ 25 ] The court further agrees with the Respondent’s submission that, “the learned trial judge’s conclusion was supported by the evidence and he made no error in applying the law to the facts.” All of the circumstances of the case on the evidence properly before the court were considered in determining the issue of whether the presumption of s. 258(1) (a) was rebutted. It was, therefore, open to the trial judge to conclude, at the point in time that the Respondent was in the vehicle waiting for the tow truck, that he was not there for the purpose of setting the vehicle in motion.

[ 26 ] With respect to the issue of de facto care and control, the court also finds that the learned trial judge fully addressed the issue and that his findings of fact were available to him on the evidence. Specifically, at para. 7 of the learned trial judge’s reasons, he stated:

That argument fails on the following grounds :

(a) As is well established, care or control is defined as a series of acts involving the use of a car, its fillings or equipment whereby the vehicle may unintentionally be set in motion creating the danger the section is designed to prevent or create some other danger;

(b) With respect to the risk of creating danger by setting it in motion, the evidence is that:

(i) the vehicle’s two driver’s side wheels were flat; that is, the tires were flat and on its rims and could not be driven safely;

(ii) the vehicle had stalled at one point;

(iii) radiator fluid had drained;

(iv) there is no evidence from either the tow truck operator nor the officer that the vehicle could actually be started.

(c) With respect to the failing to activate the lights to forewarn the potential motorists on the roadway, there is no evidence that the vehicle was operational to allow the lighting system to be activated. The evidence seems to be to the contrary; that is, no lights were on in circumstances where the vehicle had stalled, according to the statement of the accused, and the radiator part of the motor had been damaged.

[ 27 ] I would also agree with the Respondent’s position, at paras. 22-23, of the Respondent’s Factum, that:

The Crown, in advancing an argument that the Respondent necessarily created a danger by leaving the motor vehicle stalled in the lane of a highway without using lights to warn approaching motorists, is essentially arguing that the Respondent should have assumed care or control of the motor vehicle in order to ameliorate any danger from the position of the stalled vehicle.

In essence, the Crown’s position is that the Respondent should have committed a criminal offence by assuming care or control of the motor vehicle and using its fixtures in order to avoid committing a different criminal offence by trading a danger.

[ 28 ] The learned trial judge made specific findings, referred to above, which led him to the conclusion that the motor vehicle was not operable, and that there was no risk of the Respondent putting the motor vehicle in motion so that it could become dangerous. Furthermore, the learned trial judge found that there was no evidence before the court that the Respondent could have done anything with the inoperable vehicle in order to make it more visible.

[ 29 ] It was because of the learned trial judge’s findings that the actus reus was not present and that there was no conduct on the part of the accused in relation to the operation of the motor vehicle, which created a potential for danger, and as such, he properly acquitted the Respondent on that issue.

[ 30 ] Accordingly, and in summary, the court finds that there was no error committed by the learned trial judge. Further, the court agrees with the learned trial judge’s decision that there was more than ample evidence sufficient to allow him to conclude that the Crown had “failed to show during the critical period of the two hours leading to the taking of the first sample, that the vehicle was operable and, therefore the Court finds the accused not guilty.”

[ 31 ] In the alternative, if this court is in error, this court would uphold the acquittal on the basis that the trial judge found it “impossible to establish the time of the accident.” The learned trial judge stated, at pp. 7-8, as follows:

Although Mr. Larabie, the tow truck operator, has it that he called the police after having verified that accused in the driver’s side as to his condition, his testimony with respect to time is unreliable. Initially, he had the time of the call to the police at 12:15 on the basis that he had looked at his cell phone when he was asked the time by the dispatcher. On listening to the recording of the call, there is no such reference. He has himself stopping some five minutes before the call because he conversed with the driver before the call; yet, his estimate of five to eight minutes for the police to arrive is proven to be largely inaccurate. The officer testified having received the call from dispatch at 12:24 and arriving at the scene at 12:42, some eighteen minutes later.

[ 32 ] The court agrees with the Respondent that, it is clear from the aforementioned statement, that the learned trial judge found that he was not satisfied beyond a reasonable doubt that the alleged offence occurred after 12:04 a.m., based on his analysis of the reliability of Mr. Larabie’s evidence.

[ 33 ] The first breath sample was taken at 2:04 a.m., as per the Certificate Analysis that was filed at the commencement of the trial. The court agrees with the Respondent that, in respect to the analysis as to whether the Respondent was in care or control of the motor vehicle, the Crown failed to prove beyond a reasonable doubt that the alleged incident of care or control occurred after 12:04 a.m. The court further agrees that it was well within the learned trial judge’s authority to make findings of fact based on analysis of credibility and reliability of a witness’ evidence. In this case, the learned trial judge found that the reliability of Mr. Larabie’s evidence was such that he could not determine that the alleged incident occurred prior to 12:04 a.m. As a result of this finding, the Crown could not rely upon the certificate of analysis to prove the Respondent’s blood alcohol level was over the legal limit. Accordingly, the learned trial judge properly acquitted the Respondent of the charge.

[ 34 ] In the result, the Appeal is dismissed and the original acquittal is confirmed.

Mr. Justice John A. McMunagle

Released: October 24, 2012

COURT FILE NO.: 10-0085

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: JAMES MILNE Respondent - and – HER MAJESTY THE QUEEN Appellant SUMMARY CONVICTION APPEAL McMunagle J.

Released: October 24, 2012