ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-0019-AP
DATE: 2013/02/26

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ERIC GORDON DEVRIES

Appellant

Adam G. Zegouras, for the Respondent

Michael J. Pretsell, for the Appellant

HEARD: January 24, 2013

ON APPEAL FROM THE DECISION OF THE HONOURABLE JUSTICE j.p. COULSON of the

ontario court of justice ON june 27, 2012, at belleville, ontario

SUMMARY CONVICTION APPEAL

mcnamara j.

1This is an appeal by Eric Gordon Devries of his conviction by Mr. Justice J.P. Coulson of the Ontario Court of Justice on June 27, 2012 of one count of having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, and did have care and control of a motor vehicle contrary to s. 253(1)(b) of the Criminal Code.

Background and Facts

2On December 31, 2011 at 13:18 hours Constable Terry Smith of the Belleville Police Service received a call that an impaired driver was leaving 251 Sidney Street in Belleville, Ontario. It was an anonymous tip. The information was that the driver was going to one of the two Beer Stores in Belleville.

3The officer attended at 91 South Front Street, the location of a Beer Store in Belleville, and observed a vehicle matching the description from the call, a dark green Dodge pickup truck although no license plate had been provided.

4When the officer arrived, the vehicle was parked and unoccupied. She remained in her fully marked police cruiser for several minutes watching the vehicle. A check of the license plate determined that the vehicle was registered to the Appellant.

5After some minutes the Appellant left the Beer Store with a case of Budweiser and placed it in the tailgate area of the truck closer to the driver’s side. The officer testified that the Appellant turned and moved up the driver’s side of the vehicle. There is no evidence that he opened the door. The officer said she assumed or believed that the vehicle belonged to this individual so she approached the person.

6In obtaining information from the Appellant the Constable was told, amongst other things, he had come from 251 Sidney Street, that he had last had something to drink 4 hours previously, and when she asked him where the keys to the vehicle were he pulled them out of his right jacket pocket. After several minutes a second Officer, Sergeant Doucette, arrived on the scene. After he interacted with the Appellant for several more minutes, the Appellant was arrested for care and control.

7There was evidence that the usual signs of alcohol impairment were observed including the smell of alcohol, bloodshot eyes and slurred speech. At the time of the arrest the evidence suggested that the Appellant had been speaking to the police officers for approximately 13 minutes.

8The Appellant eventually provided two suitable samples of breath into an approved instrument and it was acknowledged by the defence that the results were, at 14:12 hours, 263 milligrams of alcohol in 100 millilitres of blood, and that at 14:35 hours, 255 milligrams in 100 millilitres of blood. The Appellant acknowledged after being provided with his rights to counsel that he had driven the vehicle to the Beer Store.

Issues

9The following legal issues are raised on this appeal:

(1) Is the decision that the Appellant was in care and control of the automobile correct in law and supported by the evidence?

(2) (a) Were the Appellant’s right pursuant to sections 8 and 9 of the Charter violated, and if so;

(b) Should the evidence be excluded pursuant to s. 24(2) of the Charter?

Standard of Review

10The parties agree that the jurisdiction of a summary conviction appeal judge to review the findings as to the sufficiency of the evidence is limited. As the Ontario Court of Appeal recently stated in R. v. Smits 2012 ONCA 524 at para. 67:

Under s. 686(1)(a)(i) and s. 822(1) of the Criminal Code, the jurisdiction of the summary conviction appeal judge to review the finding as to sufficiency of the evidence is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence: see R. v. Grosse (1996), 1996 6643 (ON CA), 29 O.R. (3d) 785 (C.A.), at pp. 791-92.

Care and Control

11The first issue is whether the decision that the Appellant was in care and control of the automobile was correct in law and supported by the evidence.

12The test for determining whether someone is in care and control was set out most recently by the Supreme Court of Canada in R. v. Boudreault 2012 SCC 56, [2012] S.C.J. No. 56 at para. 9:

For the reasons that follow, I have concluded that “care and control”, within the meaning of s. 253(1) of the Criminal Code, signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property.

13The thrust of the Appellant’s argument on this issue is that the Crown must prove beyond a reasonable doubt both an intent to assume care and control of the vehicle after the voluntary consumption of alcohol (the mens rea component), and that the accused performed some act or series of acts involving the use of the car, or some course of conduct associated with the vehicle which would involve a realistic risk of putting the vehicle in motion so that it could become dangerous (the actus reus component).

14They submit that in this case there is insufficient evidence of the required actus reus. They argue this section of the Code does not seek to criminalize the mere presence of keys, alcohol and an automobile. The Court must consider actual use of the vehicle where a risk would be present. In their submission, the trial judge never analysed that issue and in any event there is insufficient evidence to satisfy the actus reus requirement beyond a reasonable doubt.

15I disagree.

16Starting at page 65 of the transcript of the Reasons the following appears:

So that leaves one question to be decided. Am I convinced beyond a reasonable doubt that you had the care and control of the automobile? …

Now, I get paid to settle that issue. I am of the view that you did not relinquish the care and control of your automobile when you went into the beer store. You took the keys with you, parking your car there, and it would be an entirely reasonable supposition to conclude that you drove it there and you were going to drive it away. That is what happens in beer store parking lots. Cars are not parked there overnight. They are not left there in the middle of the afternoon for tomorrow. They are stopped while one gets out and goes in for the beer. You came out, keys in pocket, put your beer in the truck box and you were moving up the driver’s side of the car and the police interfered and stopped you. Just because the police stepped in and stopped you, I am not about to conclude that they made a mistake, that they should have sat back and let you climb behind the wheel of the car and then try to get you stopped. There is no other rational conclusion, in the face of the evidence that I have heard, and I am confined to the evidence I have heard and ought not to speculate, that you, sir, would have driven away but for the police interference. You, certainly were asserting your intention to drive away to the objective observer hovering overhead watching what is going on. Further, the vehicle did not float from the clouds to the beer store parking lot. You told the breathalyser operator you put it there. Taking into account all the evidence, I am convinced beyond a reasonable doubt that you had the care and control of the vehicle, even though the police did not see you driving it, you clearly had an intention to drive it, and it is an entirely rational inference that you did drive it there. Taken together, all of this leads inexorably to the conclusion that you had the care and control of the automobile.

17In R. v. Toews 1985 46 (SCC), [1985] S.C.J. No. 48, McIntyre J. stated in para. 10 of the decision, in part, as follows:

…The cases cited, however, illustrate the point and lead to the conclusion that acts of care or control, short of driving, are acts which involve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous… [Emphasis added]

18Here the trial judge sets out why he found there was a course of conduct associated with the vehicle that led him to conclude there was a reasonable risk that the vehicle was going to be put in motion so that it could become dangerous. That was a finding of fact available on the evidence in this case and this Court should not interfere with that finding. The reasons read in the context of the record as a whole show the trial judge properly reviewed the constellation of relevant factors within the context of the evidence before him which he heard firsthand. It is common ground that considerable deference should be afforded a trial judge in their findings of fact and the proper inferences to be drawn from those facts. Trial judges are presumed to know the law with which they work day in and day out. I am unable to say the trial judge’s finding was unreasonable, or unsupported by the evidence.

Did the learned trial judge err in deciding that the accused’s rights under the Charter of Rights and Freedoms were not violated under sections 8 and 9?

19I turn first to section 9.

20It is acknowledged there was very little analysis of the Charter arguments advanced. What the trial judge in essence said was as follows:

Were your Charter rights offended by the amount of time it took for them to do this investigation? The answer to that, in my opinion, is clearly no. They moved with reasonable alacrity and you got the good service that you were entitled to and you were not short changed in the service you got from our police force.

21Unfortunately, counsel for the Appellant did not provide amongst the transcript materials, a copy of the submissions of counsel. I am advised, however, and it is not disputed, that counsel for the Crown and the defence made full argument on the Charter issues.

22While there is no detailed analysis as to whether or not the Appellant was detained, and if so, whether his rights to counsel were complied with, both counsel agree that if this Court is capable of analyzing the issue on the record before me as a whole, I can do so. I am satisfied that I have what I require in order to analyze this issue.

23The evidence indicates that approximately thirteen minutes lapsed from when the police officers first began speaking with the Appellant and his arrest. There is no evidence that there was any physical restraint and there was no legal obligation prior to arrest to comply with the request and demands being made. Where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. We are told by the Supreme Court of Canada in R. v. Suberu 2009 SCC 33, [2009] S.C.J. No. 33 that the issue for the Court is to determine whether a reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice.

24In this case we know from the evidence that after the officer saw the Appellant walk out of the Beer Store and place the case of beer in the back of the truck she approached the Appellant. There then ensued the questioning surrounding whether this was the Appellant’s vehicle, where the Appellant had come from, what address, whether he had consumed alcohol, which was initially denied but confirmed after he was confronted about the smell of alcohol on his breath, when he had his last drink, about the keys, etc. The Appellant responded to these questions. He was also asked for and produced his driver’s license, observations were made as to his eyes and speech, and he also interacted with the second officer. All of this took time. He was arrested thereafter.

25The total time involved is approximately thirteen minutes. Common sense would suggest that the vast majority of that time was spent on preliminary or exploratory matters by way of general inquiries in an attempt to determine whether this individual was the one reported in the anonymous tip as having left 251 Sidney Street in an impaired state and heading for a Beer Store driving a green Dodge pickup truck. The police, in my view, were making general inquiries regarding a particular occurrence, there is no evidence of aggressive language being used, of any physical contact, and the interaction took place in a parking lot and was not overly long. There was no evidence about the Appellant’s actual feelings about being detained.

26The onus is on the Appellant to demonstrate on a balance of probabilities that he was detained. In my view there is insufficient evidence that, on balance, a reasonable person in his circumstances would have felt detained. There was no detention until the Appellant was arrested, and as such there is no violation of his s. 9 or 10 rights under the Charter.

27With relation to s. 8 – reasonable and probable grounds - the test when the issue is a breath demand is not onerous. As stated by our Court of Appeal, in R. v. Bush 2010 ONCA 554 at para. 46:

In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, 2010 ONCA 435 at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: Censoni at para. 43.

28In this case at p. 64 of the transcript in giving his reasons the trial judge stated as follows:

In addition, they had reasonable and probable grounds to make a demand of you, for they had reasonable and probable grounds to believe that it was your car and you, having put your recent purchase of beer in the box of the truck, were about to drive off. All of that was perfectly reasonable on their part. Having detected alcohol on your breath, having detected slurred speech, having witnessed you at the time making your way to the car, it was entirely reasonable that they would have reasonable grounds to believe that you, indeed, were impaired, at least that you had alcohol in your system to make a breath demand of you.

29I am satisfied based on the record as a whole, and the reasons within the context of the test laid out in R. v. Bush, there was sufficient evidence for the trial court to conclude that there were reasonable and probable grounds for arrest and breath demand, and that the trial judge did not commit any error in that regard.

30As I have determined that there were no Charter violations, it is unnecessary to do the s. 24(2) analysis.

Mr. Justice James E. McNamara

Released: February 26, 2013

COURT FILE NO.: CR-12-0019-AP
DATE: 2013/02/26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

ERIC GORDON DEVRIES

Appellant

SUMMARY CONVICTION APPEAL

McNamara J.

Released: February 26, 2013