ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: 7/12
DATE: 20130125
B E T W E E N:
HER MAJESTY THE QUEEN
Harutyun Apel, for the Crown
Respondent
- and -
THOMAS MASON
Boris Bytensky, for the Appellant
Appellant
HEARD: August 8, 2012
REASONS FOR JUDGMENT
[On appeal from the judgment of Honourable Justice F.L. Forsyth of the Ontario Court of Justice at Halton, Ontario on December 19, 2011]
Fragomeni J.
[1] The appellant was charged with care and control of a motor vehicle while impaired and blowing over the legal limit contrary to s. 253(1)(a) and s. 253(1)(b) respectively of the Criminal Code arising out of an incident that took place on September 4, 2010.
[2] On September 4, 2010 the appellant was found asleep in his parked motor vehicle when he was stirred and awakened by a police officer. There is no issue that he was impaired by the consumption of alcohol at the time and that his blood alcohol content was over the legal limit.
[3] The trial was held on September 19, 2011. At trial the primary issue was whether or not the appellant was in “care or control” of his vehicle at the time.
[4] The appellant testified about his lack of intention to drive and that he had a plan to get home later that morning. The appellant also called other evidence to support and corroborate his testimony.
[5] The appellant sets out the following grounds of appeal:
That the learned trial judge erred in law, or alternatively, in mixed fact and law, in finding the appellant had the care or control of his motor vehicle;
That the learned trial judge erred in law in finding a real and significant risk of the appellant attempting to operate his motor vehicle at some later point while still impaired by alcohol or in the alternative, this finding is unreasonable, amounts to speculation and/or is unsupported by the evidence;
That the learned trial judge failed to apply the three stage analysis in W.D. and by doing so reversed the burden of proof;
That the learned trial judge gave inadequate reasons ignoring the main argument advanced by the defence.
THE EVIDENCE
[6] The Crown agrees with the following summary of the evidence set out by the appellant in his factum.
Laurie Blyskis
[7] Ms. Blyskis resided at a detached home at 1301 Blanshard Drive in Burlington, Ontario. Sometime after 3:00 a.m. she was awakened by someone trying to get in the front door of her house first, then the garage door, and finally the door on the side of the house. Ms. Blyskis then looked out the front window and saw a man leave the front porch, go down the driveway and look both to the left and to the right before getting in a silver car. The silver car appeared to be properly parked in front of her house on the road.
[8] The male went into the driver’s seat. She did not see the vehicle turn on and this concerned her because he was not leaving. In fact, Ms. Blyskis had already called the police, before the male entered the vehicle.
[9] Ms. Blyskis at some point had gone down to her front porch and observed what she suspected was urine on the porch and urine on one of the walls enclosing the porch.
[10] In cross-examination Ms. Blyskis acknowledged the following:
That the homes on Blanshard were somewhat uniform in appearance; stating that they are the same design. She agreed that 1293 Blanshard was located three houses to the left of her house;
She did not know when the vehicle arrived on her street nor had she seen the light come on or the car starting as she watched the man leave her porch;
That when she observed the individual walking away from the front door, his walking appeared normal.
P.C. Catherine Anne Robertson
[11] P.C. Robertson arrived at 1301 Blanshard Drive shortly after 4:00 a.m. on September 4, 2010. She described what she observed as follows:
A. The communicator, the dispatcher over the radio said that the male had gone to a small silver car at the roadway, parked in the roadway, which was in front of the house.
Q. Okay. And did you find such a vehicle matching that description?
A. Yes, we did.
Q. And where was it located?
A. It was parked at the curb on the roadway, in front of 1301 Blanshard Drive.
Q. Okay, and what type of vehicle was it? Can you describe it?
A. It’s a silver compact type car. I believe it was four doors.
Q. I understand you noted its licence plate number?
A. Yes. ATWZ 582.
Q. And was there anyone inside that motor vehicle?
A. Yes, there was. When we approached from the passenger side we could see that there was a male. He was seated in the driver’s seat, but he was slumped over into the passenger seat.
Q. Can you - when you say that what do you - where was the seat of his pants?
A. The seat of his pants, his bottom, his - was sitting, was in the driver’s seat.
Q. Okay, and when you say he was “slumped over” can you describe how you mean by that? How much of his body was slumped over and ….
A. His shoulders and head were on the seat, on the passenger seat.
Q. The vehicle itself was, was it running at all?
A. No, it was not.
Q. Did you make any observations about any - did you see any keys?
A. There were keys hanging from the ignition.
Q. Were there any elements of the motor vehicle that were operating that you, that you observed?
A. No.
[12] After several attempts at banging on the window and door to try to get the attention of the appellant inside the car, he eventually stirred and sat up.
[13] At that point she attempted to communicate with the appellant and was asking him questions. She described her exchange with the appellant as follows:
Q. Okay. What type of questions about your questions that you were asking at that point?
A. I was asking him where he lived. I was asking him his name; I was asking him what he was doing here, in that area.
Q. And as best you can, do you recall his responses?
A. His responses were incoherent to me, initially, through the - with a closed door. I know that I couldn’t understand what he was saying. His words were slurred. He was very slow. He didn’t answer some of the questions; it’s he, he seemed to be unable to focus on what was being asked. He was starry eyed, not comprehending perhaps, I don’t know, it was just - he wasn’t responding as a normal person would when asked their name and what they were doing there.
Q. In your communication at some point, was there, was there always a window up and a door closed between you or did that, at some point, did you - were you, were you more direct, able to more directly communicate with him?
A. At some point the door was opened. He remained seated in the vehicle, but the door was opened, and I was able to smell alcohol.
[14] As she continued speaking with the appellant, she noted a stronger odour of alcohol emanating from his breath. When he eventually stepped out of the vehicle he was unsteady on his feet.
[15] Based on all of these observations the appellant was arrested for care and control of a motor vehicle.
[16] P.C. Robertson testified that the keys were in the ignition and confirmed that these keys operated the vehicle.
[17] In cross-examination P.C. Robertson admitted she did not check the hood of the engine to see if the engine was warm.
[18] The Crown admitted as a fact that the key was three-quarters of the way in the ignition.
P.C. Ross Amore
[19] P.C. Amore was the qualified intoxilyzer technician who dealt with the appellant. P.C. Amore made the following observations of the appellant:
- His eyes were bloodshot
- His speech was slightly slurred;
- There was an odour of alcohol emanating from his breath;
- He was drowsy but very co-operative;
- The actual effect of alcohol was slight.
[20] The appellant admitted to having consumed a 12-13 ounce bottle of Jagermeister and that he had been drinking from 8:00 p.m. to 12:30 a.m.
Evidence of the Appellant
[21] The Appellant testified that on the night of September 3rd, 2010 he had plans to go out with some friends and decided to park his car at the house of Natasha Jones (another friend), located at 1293 Blanshard. He specified that at approximately 4:00 p.m. that afternoon, he made arrangements with Ms. Jones to drive him home later that night. Ultimately, he “parked just a few houses down from Natasha’s residence” as there was a car already parked in front of her house at the time.
[22] After parking his vehicle, he walked to a friend’s house, about 10 minutes away. After spending some time there, he went with friends to a bar, JT Pluckers, located on the corner of Upper Middle and Walkers Line. The Appellant drank Jagermeister mixed with Red Bull at the friend’s house. He stayed at the bar from approximately 12:30 to 2:00 a.m. and had one or two beers there.
[23] Although he made arrangements to meet Ms. Jones at around 1:00 a.m. for his ride home, he arrived back at his car only after 2:00 a.m. He went to her house, called her on the cell phone, and woke her up. She came outside, and they got into an argument because he was very late. While Ms. Jones initially continued to offer to drive him home, as the arguing continued in the car, she changed her mind, got out of the car and went inside her house. The Appellant then “went for a short walk before going to [his] car and falling asleep in the back seat.”
[24] Having slept for approximately an hour to an hour-and-a-half, the Appellant awoke. He testified that he “realized I still needed a ride home so I decided that I would try to reach Natasha again...I decided to go to her house and knock on the door.” He then approached a house similar in appearance to Ms. Jones’ house, believing it to be hers. He acknowledged that, as it turned out, he knocked on the wrong door. He accepted that he made a bad choice in urinating on the front porch.
[25] Having failed to reach Ms. Jones, the Appellant went back to the car; this time to the front seat, intending to roll down the widow (sic) in order to let in the cold air so that he “could fall asleep easier.” Because he wanted to roll down the power windows, he tried to insert the key in the ignition but could not get it in due to a sticky ignition slot and fell asleep again.
[26] Specifically, the Appellant testified that “I had no place to go so I needed - I, I, I, slept in my car.” He specifically explained that upon waking up, he intended to call either Ms. Jones or someone at his home to come pick him up. He explained that his brother has picked him up on prior occasions and under similar circumstances. He indicated that someone would have been available to pick him up between 6 and 7 a.m.
[27] Lastly, the Appellant testified that despite the falling through in the arrangements previously made with Ms. Jones, there was no chance that he might have driven under those circumstances because of an incident that occurred with his uncle in a similar situation (driving in the morning after drinking the night before, which led to a “drinking and driving conviction and its associated consequences). He indicated that this incident had a profound impact on him and he has (sic) very conscious about not driving on any morning after he had been drinking.
[28] In cross-examination by the Crown, the appellant admitted that he did not follow through with his original plan of getting a ride home with Jones due to his level of impairment.
Q. You’d made arrangements with her, you’d made a plan that despite the fact that she had to get up early and go off to university, she was going to be kind enough to drive you home so that you could go out and have a night of drinking, right?
A. Yes
Q. And then you didn’t stick to the plan, presumably because you were drunk...
A. Yes
Q. ...and you didn’t show up at the appointed time of one o’clock; you left the bar after two and showed up at her place drunk sometime thereafter, right?
A. Yes.
Q. So you had a plan that you didn’t follow through with because of your level of impairment, right? Or drunkenness?
A. Yes.
Q. And once you realized, sir, that you weren’t getting a ride from Natasha Jones, not only did you not call a cab or call your brother or call your father, you didn’t even walk back to Brant’s house to crash there for the night, right?
A. That’s right.
Q. And all of those things would have been far more appropriate than what you did, right?
A. Yes
Ms. Stevenson: Q. And that is far from what you planned when you earlier on in the evening made your plans about getting a ride home, right?
A. Yes.
Q. Far from what you planned even at the time you’re curled up in the back seat of your car to go to sleep, right?
A. I think it’s far from any of the plans I’ve ever made.
Q. Right. And the reason you strayed so far from those plans is because you were drunk?
A. Yes.
Q. And so, you characterized it, sir, as you had made a bad choice. It’s a little more extreme than that, you’d agree, right?
A. Sure.
[29] In further cross-examination the appellant acknowledged that due to his level of impairment he was not making safe or rational choices. The following exchange is relevant on this point:
Q. And you had lots of choices at that point in time, including calling a taxi, calling your brother, calling your father, going back to Brant’s house or perhaps even sleeping in the back seat of your car …
A. Which I did.
Q. … which you did at that point in time, right?
A. Yes
Q. That obviously wasn’t the, the best of the choices that you had, but ….
A. I was drunk, and as you said, I wasn’t being rational.
Q. Right. And that’s my point, sir. My point is that on this night, early morning, you were not capable of making safe, rational choices because you were hammered, right?
A. I’m not arguing that. I’m not disputing whether I was drunk.
[30] In further cross-examination by the Crown, the appellant indicated that after his original plan had fallen through, it was not his secondary plan to stay and sleep in the back seat and sleep in the back seat of his car until the next morning. He stated he still wanted to find a way home.
[31] Finally, in further cross-examination, the appellant admitted this:
Q. And I’m going to suggest to you, sir, that it was just as equally plausible that you would sleep again for a little while, wake up and exercise some more bad judgment?
A. Perhaps, yes.
Evidence of Bryan Mason
[32] Crown counsel conceded the evidence of Bryan Mason, the appellant’s brother, that he would have been in a position to come and pick him up and that he has previously offered such assistance to his brother and vice versa.
Reasons for Judgment of the Trial Judge
[33] The trial judge articulated the position of the defence at trial at page 8 of his written reasons as follows at paras. 38 and 39, in part:
Mr. Stillman conceded the intoxication of the accused in conformity with the accused’s own evidence. He submitted that the court should find that Mr. Mason has rebutted the presumption of care or control by his evidence that he never re-entered his car with the intention of operating his vehicle after he parked and exited it and partied and drank at his friend’s house. Mr. Stillman commends all of the accused’s actions, especially his attempt to attract the attention of Natasha by knocking on what he mistakenly thought to have been her residence’s front door, to the Court to support the inference that he was being truthful when he testified about his original plan to have Natasha drive him home after he had become intoxicated.
Assuming that the Court accepts that argument, Mr. Stillman submits that there was no objectively sustainable risk that the accused could have accidentally set his vehicle in motion. He argues that mere speculation, absent surrounding factors which would objectively support an inference that the accused might change his mind and decide to drive, is insufficient to sustain a finding that he had the de facto care or control of his vehicle within the meaning of the common law at the point when he was found by the police asleep in his driver’s seat.
[34] The position of the Crown at trial is set out at paras. 43 to 46 as follows in part:
The Crown asks the Court to find that the accused hasn’t even rebutted the s. 258 (1) (a) presumption of care or control on the required standard of a balance of probabilities because of the frailties of his evidence when the Court assesses it in the context of the totality of the evidence.
Assuming that the Court finds that the accused has rebutted the presumption, the Crown argues that his de facto care or control has been established beyond a reasonable doubt. The Crown refers the Court to the accused’s own evidence that he had exercised bad judgment on multiple occasions during that evening, such as being careless and selfish about returning to Natasha’s home for his ride to his own home so late, and then proceeding to act so obnoxiously that she finally decided not to drive him home.
His irrational act of ‘pissing’ on Ms. Blyskis’s porch, while at the same time mistaking it for the porch of Natasha’s home, only serves to demonstrate the extent of his unpredictability due to his admitted drunkenness, argues the Crown. The Crown suggests that the accused may well have awakened later in the morning in his car and realized that he had urinated on someone else’s porch and then decided that he had better make a quick getaway before the resident awoke and came out to find evidence of his misdeed on the porch with him in his car right outside of the residence.
Mr. Coppolino also submits that the accused himself testified that he wanted very much to get home and yet he was reluctant to call his home for assistance because of the hour of the morning. The keys were in the ignition and therefore the means to set his vehicle in motion were readily available to him.
[35] The learned trial judge’s analysis commences at paragraph 48 with reference to Justice Durno’s decision in R. v. Szymanski, 2009 45328 (ON SC), [2009] O.J. No. 3623. After reviewing portions of the trial testimony the learned trial judge concluded that the appellant had rebutted the presumption of care or control. At paragraph 52 of his reasons the trial judge states:
For these reasons, I respectfully disagree with the Crown’s argument that the accused has not even managed to rebut the presumption of care or control under s. 258(1) (a) of the Criminal Code, given that he was found in the driver’s seat of his motor vehicle with the keys in the ignition by the police when they arrived. In conclusion on this issue, I find that he has satisfied me on the balance of probabilities that he has rebutted the presumption of care or control.
[36] The trial judge also concluded, on the totality of the evidence that there was no risk of the appellant accidently putting his vehicle in motion.
[37] The trial judge then dealt with the issue relating to whether there was a risk of the appellant changing his mind and deciding to drive while still impaired by alcohol. The trial judge refers at length to the decision in Szymanski. He also distinguishes the Weishar decision from the facts of the case at bar. At para. 64 the learned trial judge sets out the following:
Most certainly, I find that the factual foundation for the Weishar decision by Justice Thomas is significantly distinguishable from the facts of the case at bar. I refer to the evidence of Mr. Mason himself, when he testified that he still had a desire to get home even after his frustrated attempt to attract the attention of Natasha by knocking on the front door of what he thought to be her home, even after she had gone back into her house earlier and refused to drive him home after his obnoxious behaviour. In addition, although he put forward the testimony that, if necessary, he could have called his brother or his father to pick him up as had been done on previous occasions by his brother, nevertheless he also testified that he did not want to disturb them at that hour of the morning. I also agree with the Crown’s argument that it is a reasonable inference to draw that he might well have awakened at a later point in time and realized that he had urinated on the wrong porch, so to speak, and decided that he had better extricate himself from being parked in front of the house whose porch he had urinated upon as quickly as possible.
[38] The learned trial judge also found that the appellant’s plan was anything but firm after Natasha finally decided not to drive him home and after he attempted later to attract her attention at the wrong front door and realized that he was not going to receive any assistance from her. The trial judge noted that the best that could be said for the appellant is that his brother would have and has picked him up on prior occasions and vice versa. But, the trial judge noted further, the appellant himself was reluctant to call his family on this occasion. The trial judge concluded there was a significant and real risk that he would change his mind and decide to try and operate his vehicle to get home.
[39] On December 19, 2011, when giving oral reasons for sentence, the trial judge again stated the following:
My point being, that it was, in my opinion, a very litigious argument on care or control. The finding of this Court was that he was found guilty only by reason of, in the court’s view, not a speculative, but a, shall we say, real risk that he could change his mind and decide to drive, finding himself there, waking up later, realizing perhaps at that point that he’d urinated on the wrong porch, and not only that, but that he testified he wanted to get home, didn’t want to disturb his family. All of that I felt - better articulated in my written judgment that I’m doing now; I’m just doing this for sentence - justified the finding of guilt.
ANALYSIS AND CONCLUSION
[40] The appellant, in his factum, accepts that the actus reus of the offence of “care or control” can be committed in a number of ways. The appellant states that in the case at bar, the learned trial judge found that the appellant had rebutted the presumption of care or control under section 258(1) (a) of the Criminal Code and further, the learned trial judge found that there was no risk of him unintentionally putting his vehicle in motion.
[41] The appellant submits that despite these findings, the trial judge found and concluded guilt on the basis that there was a real risk that the appellant would change his mind at a later time and drive while impaired. The appellant argues that in doing so the learned trial judge erred.
[42] In R. v. Szymanski, 2009 45328 (ON SC), [2009] O.J. No. 3623, Justice Durno deals with this issue starting at paras. 84 and 85:
The final basis upon which to find actual care or control is the second reason the trial judge convicted the appellant - that while he had no intention to drive at the time he occupied the driver's seat that there was a realistic risk that he would change his mind and drive while impaired. As note earlier, this criterion must be clarified to include that he would also not drive while his blood alcohol concentration was over the legal limit.
There is a legitimate concern that intoxicated persons in motor vehicles with the means available to drive would change their minds about staying and sleeping or sleeping for some period of time and deciding to drive, subjectively, but inaccurately, believing that their impairment had subsided, no longer existed and that their blood alcohol level was below the legal limit. As noted earlier, in Toews the Supreme Court of Canada quoted with approval the comments in Price, supra- "Even if he has no immediate intention of setting it in motion he can at any instant determine to do so, because his judgment may be so impaired that he cannot foresee the possible consequences of his actions." There is no binding authority since Toews that qualifies or diminishes those concerns.
[43] Justice Durno states that the Court of Appeal for Ontario has characterized the test as whether or not there was a “real risk” that the accused would change his or her mind and drive while impaired, in R. v. MacMillan, 2005 16073 (ON CA), [2005] O.J. No. 1905, as a “real and obvious risk” in R. v. Quidley, [2000] O.J. No. 3963, and as a “risk” in R. v. Pelletier, [2000] O.J. No. 848 as a risk. Thomas J. has applied the real risk criteria concluding that speculative changes of mind were insufficient to establish care or control (See R. v. Sandhu, [2008] O.J. No. 4584 (S.C.J.) and R. v. Kim (2003), 44 M.V.R. (4th) 247 (S.C.J.)).
[44] In his written reasons the learned trial judge referred to Szymanski and set out the various factors courts have considered in assessing whether a “real risk” exists. In Szymanski Justice Durno sets out these factors at para. 93 as follows:
While perhaps easily defined, what evidence will establish or refute that real risk is not as clear. However, as recommended in Toews, cases that have dealt with the issue provide valuable assistance in determining the criteria. The following non-exhaustive list illustrates areas that have been relied upon in determining if the real risk arises.
a) The level of impairment. R. v. Daines, [2005] O.J. No. 4046 (C.A.), R. v. Ferguson (2005), 2005 1060 (ON SC), 15 M.V.R. (5th) 74 (S.C.J.), R. v. Ross (2007), 2007 ONCJ 59, 44 M.V.R. (5th) 275 (O.C.J.) In Ogrodnick, Wittman A.C.J. qualified his comments about speculation and conjecture by accepting that it was an appropriate basis to find care or control because the level of intoxication demonstrates unpredictability or a risky pattern of behaviour. Para. 54. In Ross, the trial judge found that this consideration might relate to the likelihood of the accused exercising bad judgment, the time it would take to become fit and the likelihood that he or she would be presented with an opportunity to change their mind during that time.
b) Whether the keys were in the ignition or readily available to be placed in the ignition. Pelletier, supra.
c) Whether the vehicle was running. R. v. Cadieux, [2004] O.J. No. 197 (C.A.)
d) The location of the vehicle, whether it was on the side of a major highway or in a parking lot. Cadieux, R. v. Grover, [2000] A.J. No. 1272 (Q.B.)
e) Whether the accused had reached his or her destination or if they were still required to travel to their destination. Ross, supra.
f) The accused's disposition and attitude R. v. Smeda (2007), 51 M.V.R. (5th) 226 (Ont. C.A.)
g) Whether the accused drove the vehicle to the location of drinking. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)
h) Whether the accused started driving after drinking and pulled over to "sleep it off" or started out using the vehicle for purposes other than driving. If the accused drove while impaired it might show both continuing care or control, bad judgment regarding fitness to drive and willingness to break the law. Ross, supra.
i) Whether the accused had a plan to get home that did not involve driving while he or she was impaired or not over the legal limit. Cadieux, Ross, R. v. Friesen, [1991] A.J. No. 811 (C.A.), R. v. Gill (2002), 33 M.V.R. (4th) 297 (S.C.J.) para. 21, Ross, supra.
j) Whether the accused had a stated intention to resume driving. In Cadieux, supra, where the accused testified he was not driving and was waiting to sober up. The Court of Appeal held that his evidence that he would not drive until he was sober only went to weight.
k) Whether the accused was seated in the driver's seat regardless of the applicability of the presumption. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)
l) Whether the accused was wearing his or her seatbelt. Pelletier, supra.
m) Whether the accused failed to take advantage of alternate means of leaving the scene. Pelletier, supra.
n) Whether the accused had a cell phone with which to make other arrangements and failed to do so. Cadieux, supra.
[45] The appellant argues that the learned trial judge did not separately or expressly set out his analysis of this critical route to liability. The appellant submits that, as correctly noted by the learned trial judge, speculative changes of mind are insufficient.
[46] In Szymanski Justice Durno stated at para. 92 that whether the real risk arises on the facts is determined by applying circumstantial evidence. Justice Durno references the following comments from Watt J.A. in his text Watt’s Manual of Criminal Evidence, Thomson Carswell, Toronto, 2010:
Where evidence is circumstantial, it is critical to distinguish between inferences and speculation. Inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. There can be no inference without objective facts from which to infer the fact that a party seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture.
[47] The Crown submits that although the learned trial judge may not have specifically set out a separate analysis in his written judgment with respect to “real risk”, he pointed to several factors throughout his judgment that allowed him to properly conclude that there was a “real risk” that the appellant would have woken up and operated his vehicle while impaired.
[48] I agree with the Crown. It was open to the learned trial judge on the testimony he heard, to make the factual findings he did. Absent palpable and overriding error, those findings of fact should not be disturbed.
[49] The standard of review on a summary conviction appeal is whether, based on the evidence, the decision made by a trial judge is a finding that could have been reasonably reached. As a result, a court sitting on appeal should only allow an appeal of the decision if:
(a) it cannot be supported by the evidence or
(b) it is clearly wrong in law or
(c) it is clearly unreasonable or
(d) there was a miscarriage of justice.
[50] A trier of fact may accept all, some or none of any witnesses testimony. Findings of fact are entitled to deference and cannot be set aside unless the trial judge committed palpable and overriding error or made findings of fact, including inferences that are clearly wrong, unreasonable or unsupported by the evidence. (See R. v. Pham (2005) 2005 44671 (ON CA), 203 C.C.C. (3d) 326 (Ont. C.A.) para. 31).
[51] On all of the evidence heard, it was a reasonable inference to draw that the appellant may have awoken at a later point in time and operated the vehicle. The admissions and agreements of the appellant as elicited by the Crown in cross-examination support that view. The appellant admitted that due to his level of impairment he was not making safe or rational choices. The appellant acknowledged that it was plausible that he may have awoken while in the driver’s seat of his car and exercised some more bad judgment. It is not an unreasonable inference to draw that a bad judgment would have been to drive home while still impaired.
[52] The evidentiary record before the trial judge must be considered as a whole and in its entirety when assessing the numerous factors set out by Justice Durno at para. 93 in Szymanski.
[53] In R. v. Sandhu, [2008] O.J. No. 4584 R.G. Thomas J. set out the following at paras. 70 to 72:
The trial judge was entitled to conclude on the evidence that there was a realistic risk that the defendant would change his mind. He intended to sleep one or two hours and then walk home. The danger is that, after sleeping for a period of time, the defendant may be too intoxicated and misjudge his level of impairment or to remember or adhere to his previous determination not to drive and intentionally set the vehicle in motion at a time when his condition continues to pose a risk. He claimed he intended to walk home after sleeping for a couple of hours. It was not too far if he drove but it was certainly several kilometres, perhaps even ten kilometres, from home if he decided to walk the distance. It was a cold morning. That is why he turned on the engine to get heat in the car.
In essence, the risk of danger prevailed. It was realistic and tangible, not speculative or fanciful. Parliament intended to penalize risks of danger to persons or property from a motor vehicle in the hands of an impaired person or a person whose blood alcohol concentration exceeded the permissible maximum limit. The trial judge found as a fact that the risk of danger had not been eliminated having regard to all of the circumstances and he made findings of guilt on both charges.
It is my opinion that the findings of guilt are supported by the evidence and are reasonable. Accordingly, the conviction registered by the trial judge on the charge of care or control of a motor vehicle while impaired is affirmed and the stay of the finding of guilt on the charge of care or control over 80 will remain in place. The appeal is dismissed.
[54] In a recent decision of our Court of Appeal in R. v. Smits, released August 1, 2012, Brown R.S.J. (ad hoc) stated the following at paras. 55 and 56:
The Supreme Court addressed the rationale behind the "change of mind" ground for care or control in Toews. In Toews, at p. 126, McIntyre J. quoted the following passage from R. v. Price (1978), 1978 2288 (NB CA), 40 C.C.C. (2d) 378 (N.B.C.A.), at pp. 383-84:
The mischief sought to be prohibited by the section as expressed by the wording is that an intoxicated person who is in the immediate presence of a motor vehicle with the means of controlling it or setting it in motion is or may be a danger to the public. Even if he has no immediate intention of setting it in motion he can at any instant determine to do so, because his judgment may be so impaired that he cannot foresee the possible consequences of his actions. (emphasis added)
In order to find care or control based on the change of mind ground, the Crown must prove there was risk that the respondent would have decided to drive while still impaired. The risk does not have to rise to the level of probability. The risk of danger stated by this court in R. v. MacMillan, [2005] O.J. No. 1905, 2005 16073, at para. 4, was "the possibility that after the tow truck operator arrived and extricated the car, the respondent could have changed his mind and driven off, or inadvertently could have set the car in motion."
[55] In Smits the Court also set out the following 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.
[56] The appellant submits that the trial judge never dealt with the question of when it was that the appellant would drive. On that issue as well, the judge could have but did not take judicial notice of elimination rates. As such, in light of the low readings of .110 and .103, by 6:00 a.m. or 7:00 a.m. at an elimination rate of .10 to .20 the appellant would have been below the legal limit of .08.
[57] This position put forward by the appellant ignores the evidence that Ms. Blyskis saw the appellant sometime after 3:00 a.m. and P.C. Robertson arriving at 4:00 a.m.
[58] As set out in Smits, even if he had no immediate intention of setting the vehicle in motion he could at any instant determine to do so because his judgment is so impaired. That window of opportunity could have occurred between 3:00 a.m. and 4:00 a.m.
[59] In the case at bar there was ample circumstantial evidence to support the trial judge’s conclusion that the appellant was in care or control. His finding that the appellant would have decided to drive while still impaired was supported by the evidence as a whole which included the following:
(a) the level of impairment
in cross-examination by the Crown the appellant admitted that he did not follow through with is original plan of getting a ride home due to his level of impairment
in cross-examination by the Crown the appellant acknowledged that due to the level of impairment he was not making safe or rational choices because he was hammered. The appellant did not dispute that he was drunk
the appellant agreed with the suggestion by the Crown that it was equally plausible that after he slept for a little while he could wake up and exercise more bad judgment
the appellant knocked on the wrong door and urinated on the porch
it took several bangs on the window and door of the vehicle to get his attention
he did not respond appropriately to questions put to him by P.C. Robertson at the vehicle
(b) the trial judge found that the appellant’s plan was anything but firm
(c) the keys were ¾ of the way in the ignition
(d) the appellant had not reached his destination and he stated he still waited to find a way home
(e) the appellant was seated in the driver’s seat slumped over with his shoulders and head on the passenger seat.
[60] I am satisfied that in the case at bar, the trial judge was entitled to conclude that there was a realistic risk that the appellant would change his mind. The references I made to portions of his written reasons establish how he arrived at his conclusions. Those findings are supported by the evidence and are reasonable. The inferences drawn by the learned trial judge are not conjecture or speculative. It was open for him to draw those inferences on the evidentiary record before him. For all of these reasons this ground of appeal fails.
Did the Trial Judge Reverse the Burden of Proof?
[61] The appellant submits that the learned trial judge reversed the burden of proof and did not properly apply the three step analysis set out in W.D. The appellant argues that even if the trial judge did not believe the appellant’s evidence, he failed to ask himself whether it nevertheless left him with a reasonable doubt.
[62] Further, the appellant submits that the trial judge did not consider whether or not the “real risk” of changing mind was established beyond a reasonable doubt.
[63] Although the trial judge did not articulate the exact three step formula set out in W.D., the important aspect of this issue is that it be clear from reading the reasons as a whole that the principles set out in W.D. are adhered to. I am satisfied that the trial judge did so. The Crown clearly articulated his position at trial at para. 47 as follows in the trial judges’ reasons:
For all of these reasons, the Crown argues that there is ample evidence to support an objectively formed opinion by the Court that there was a significant risk that the accused ma have awakened in the front seat and decided to drive home at some point when he may still have been impaired by alcohol. This, argues the Crown, establishes the element of de facto care or control of his motor vehicle by the accused when found by the officers. Since that is the only viable element of either charge that is in issue at this point, the Crown argues that the Court should find beyond a reasonable doubt that the accused is guilty as charged of both offences.
[64] The Crown argued that the Court should find beyond a reasonable doubt that the accused was guilty.
[65] A trial judge does not misapply the principles of W.D. by simply failing to recite the decision or by not precisely following its three step process. As I indicated the reasons must be read as a whole. As Laskin J.A. stated in R. v. Nichols 2001 5680 (ON CA), [2001] O.J. No. 3220 at para. 31:
Although the trial judge's reasons do not resolve the credibility conflict according to the three-step formula set out in W.D., taken as a whole the reasons are faithful to the substance of W.D. I am therefore not persuaded that the trial judge misapplied the onus of proof. R. v. S. (W.D.) (1994), 1994 76 (SCC), 93 C.C.C. (3d) 1 (S.C.C.).
[66] I am not satisfied that when read as a whole, the reasons of the learned trial judge reversed the burden of proof on the issue of care or control. The ground of appeal fails.
Were the Reasons of the Trial Judge Inadequate
[67] The appellant argues that the reasons of the trial judge are inadequate.
[68] Again, it is my view that this ground of appeal fails. It is not necessary that the learned trial judge deal with every piece of evidence.
[69] When read as a whole, the reasons set out the trial judge’s chain of reasoning and path to finding guilt. In R. v. Tzarfin, 2005 30045 (ON CA), [2005] O.J. No. 3531 the Court set out the following at paras. 8, 9, 10, 11 and 12:
While the trial judge's reasons could have been more fulsome, it is not every case of brief reasons that will amount to reversible error. As this court stated in R. v. Maharaj (2004), 2004 39045 (ON CA), 186 C.C.C. (3d) 247 (Ont. C.A.) at para. 23 (relying on the reasons of Binnie J. in Sheppard):
Sheppard warns against conclusory reasons, that is, conclusions without explanations for them. However, as desirable as it is to give reasoned reasons, a failure to do so does not automatically amount to reversible error. In Sheppard, Binnie J. explained that inadequate reasons do not confer "a free-standing right of appeal" or "entitlement to appellate intervention" (para. 53). Instead, he adopted a functional approach. The adequacy of the judge's reasons must be assessed against the rationales for giving them. In some cases inadequate reasons do not preclude meaningful appellate review or prevent an accused from knowing why he or she was convicted. For instance, the accused's evidence may be obviously incredible, or the prosecution's evidence may be overwhelming and unchallenged, and thus the basis of the conviction may be clear from the record.
While we agree with the lucid and compelling analysis of Laskin J.A. in Maharaj, at paras. 20-29, regarding the Sheppard principles, appellate courts must not place an impossible burden on busy trial courts. An accused is entitled to adequate reasons, not perfect reasons.
Here, the trial judge's reasons, read as a whole, demonstrate - as the summary conviction appeal judge noted - that he had a firm grasp of the evidence, that he recognized the central issue in the case was credibility (an excruciatingly difficult issue to determine at times, and one which our system wisely leaves to trial judges), and that he was alert to the conflicting versions of what had happened. In arriving at his finding of guilt, the trial judge took into account not only his view of the demeanour of the witnesses, but also the inconsistencies in the evidence and the submissions of counsel regarding the credibility issues. He correctly applied the burden of proof and the three-pronged test in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 (S.C.C.), and clearly based his decision on the totality of the evidence, as required. In our view, the reasons given - although somewhat sparse - are adequate, in the circumstances of this case, to meet the functionality test set out in Sheppard.
The trial judge did explain his reasons for accepting the testimony of Mr. Edouard, but contented himself with saying only that he "completely disbelieve[d] Ms. Tzarfin." Viewing his reasons as a whole, however, we do not regard this as a case where the trial judge reversed the onus of proof and engaged in the prohibited reasoning process of saying that he disbelieved the accused because the accused's evidence differed from that of the complainant and he believed the complainant: see R. v. Maharaj at para. 30. The trial judge did not accept the testimony of Ms. Tzarfin for a number of reasons, as outlined above.
Nor is this a case like the decision of this court in R. v. Dore, [2004] O.J. No. 4009 (C.A.), relied upon by the appellant, where the trial judge's reasons demonstrated an approach that ignored the burden of proof. Here, it is clear from the reasons of the trial judge that he was at all times aware that "the burden rests solely on the Crown", and that he applied that standard.
[70] In the case at bar the learned trial judge was aware of the issue that he had to decide. In his submissions before me, counsel for the appellant acknowledges that the trial judge got the facts substantially correct. Counsel pointed to one aspect of the brother’s evidence that was agreed to by the Crown that the trial judge did not refer to in his reasons, namely that his brother would sometimes pick him up spontaneously as well as planned or pre-arranged.
[71] As I indicated the trial judge is not required to deal with every aspect of the evidence called.
[72] In the case at bar the trial judge’s reasons are 76 paragraphs in length. He reviews the evidence in detail. In reviewing the positions of the parties he identifies the issues put forward by counsel. He then reviews the relevant caselaw and analyses the evidence within those legal principles to make his findings and conclusions. I am not satisfied that when read as a whole the reasons of the trial judge are inadequate.
[73] This ground of appeal fails.
DISPOSITION
[74] For all of these reasons the appeal is dismissed.
Fragomeni J.
Released: January 25, 2013
COURT FILE NO.: 7/12
DATE: 20130125
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
THOMAS MASON
REASONS FOR JUDGMENT
Fragomeni J.
Released: January 25, 2013