ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-5930
DATE: 2013/09/05
BETWEEN:
Her Majesty The Queen
Respondent
– and –
Sergio Morrone
Appellant
Hart T. Shouldice, Counsel for the Respondent
Gerry White, Counsel for the Appellant
HEARD: August 21, 2013 (Ottawa)
summary conviction appeal
Beaudoin J.
[1] The Appellant appeals his conviction and sentence on an offence contrary to section 253(a) of the Criminal Code of Canada (“Criminal Code”) as decided and imposed by Her Honour Justice A.E.L. Earle‑Renton of the Ontario Court of Justice at Ottawa, Ontario, on January 14, 2013. Further, the Appellant asks in the event that the appeal is allowed, that the conviction and the sentence be set aside. The grounds for the appeal are that the conviction was not supported by the evidence and is therefore unreasonable.
Background
[2] On or about October 11, 2011, the Appellant was observed entering a Shell convenience store located at 2498 Bank Street, Ottawa, Ontario, and collapsing. This action was observed by the store clerk, Mr. A. Jaber, who immediately called 911 at the request of the Appellant.
[3] Police attended and found the Appellant on the floor in distress. Paramedics attended and conducted tests on the Appellant. The Appellant was uncooperative and was subsequently brought to the hospital by the police. The Appellant had told paramedics and the police attending the scene that he had been taking crack cocaine all day. Before being transported to the hospital, the Appellant asked a police officer to take care of his vehicle while he went to the hospital and he gave the keys to the officer.
[4] Ultimately, the police charged the Appellant with impaired operation of a motor vehicle, contrary to section 255(1) of the Criminal Code.
[5] After a one‑day trial on January 14, 2013, the trial judge found the Appellant not guilty of impaired driving but guilty of the “lesser and included offence of care and control of a motor vehicle while his ability to do so was impaired by a drug.” The trial judge’s conclusions can be found at pages 82 and 83 of the transcript. They are repeated here:
If you take that one step farther, I think it is quite reasonable to conclude that even if the other person was there and operated the motor vehicle, he did it at Mr. Morrone’s request, and that would lead me reasonably to conclude that Mr. Morrone still had the care of the motor vehicle – and, indeed, ended up with the keys at his own request, if I believe his explanation. What does that all come down to, then?
As the charge is laid in the Information, as I indicated, it is an impaired operation charge. Apart from Mr. Morrone’s statement to the officers at the time that he was driving, I am not satisfied that there is sufficient evidence to establish operation when I look at the other evidence that I have – and that evidence, of course, is the evidence of Mr. Jaber. However, if I deal with, as I must, care or control, then I must follow the principles as set out in W.D. by Mr. Justice Cory, as he then was, and I do consider those principles.
At the end of the day, even though I do not accept the evidence of Mr. Morrone which was given today, am I satisfied that all of the other elements have been made out beyond a reasonable doubt?
In this situation, I am, indeed, satisfied that the test has been met with respect to care or control of the motor vehicle while impaired by the consumption of drugs. Having said that, then I am satisfied that a conviction should be entered, and that would be on the included offence.
[6] The trial judge’s decision is problematic. There are two separate periods of time that are under consideration. First, there is the period in time when the Appellant was travelling to the gas station when there was his evidence that somebody else had been driving. Indeed, the trial judge seems to have been satisfied that the Crown had not proven beyond a reasonable doubt that the Appellant had been operating the vehicle at that point in time. Some of the trial judge’s comments refer to that period of time. The second period of time covers the period when the Appellant was outside of the vehicle and inside the Shell convenience store. The evidence is clear that the Appellant asked Mr. Jaber to call an ambulance; he fell over a display of items and collapsed to the floor. He did have his keys in his hands but he then surrendered the keys to a police officer and collapsed again while exiting the store.
[7] In this case, the Crown submits that I should infer that the trial judge was not referring to the first period in time when the vehicle may have been operated by someone else. Nevertheless, the trial judge’s reasons do not make that as clear as one would have hoped.
[8] Having regard to that test referred to by the trial judge, one can only assume that is the test set out in R. v. Wren, 144 C.C.C (3) 374 at para. 16:
16 I am satisfied that the result of these cases and others that have followed them, is that in order to establish care or control of a motor vehicle, the act or conduct of the accused in relation to that motor vehicle must be such that there is created a risk of danger, whether from putting the car in motion or in some other way.
[9] The Supreme Court of Canada articulated the test this way in R. v. Toews, 1985 46 (SCC), [1985] 2 S.C.R. 119 where it stated:
- There are, of course, other authorities dealing with the question. 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. Each case will depend on its own facts and the circumstances in which acts of care or control may be found will vary widely.
[10] In this case, there was no evidence of any act or conduct attributable to the Appellant after he collapsed inside the Shell convenience store that would have allowed the Court to conclude that there was a risk of danger in any way.
[11] The Crown relies on the decision of Justice Kane in R. v. Donnelly, 2010 ONSC 612, [2010] O.J. No. 4831. The issue on appeal before Justice Kane was whether or not the arresting officer had authority to demand the breath sample, pursuant to section 254(2) of the Criminal Code. The facts are quite distinct – the accused had been found asleep behind the wheel of the motor vehicle with the keys in his hand. The paramedics took him to an ambulance to examine him and found no medical reason to delay him. In the meantime, the police had arrived and entered the ambulance to speak to paramedics to determine what would be done with the vehicle. Given that the trial judge found there was a strong possibility that the accused’s keys would be returned to him, the trial judge had concluded that it was reasonable to conclude there was a potential for the accused to resume care and control of the vehicle prior to the issuance of the roadside demand. The facts are widely different in this case. There was no evidence before the trial judge to support a finding that there was any risk of danger that the Appellant was about to resume control of his vehicle. The Appellant had collapsed on the floor and asked that an ambulance be called. He surrendered his keys to a police officer in attendance.
[12] In this case, there is no evidentiary basis for the finding of guilt made by the trial judge. Moreover, she seems to have made an error in law in not applying the test as set out in R. v. Toews. For these reasons, the conviction and sentence are set aside and an acquittal will be entered.
Mr. Justice Robert N. Beaudoin
Released: September 5, 2013
COURT FILE NO.: 11-5930
DATE: 2013/09/05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
Respondent
– and –
Sergio Morrone
Appellant
summary conviction appeal
Beaudoin J.
Released: September 5, 2013