ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: CR12-341-0000AP
DATE: 20131002
B E T W E E N:
HER MAJESTY THE QUEEN
Andrew C. Shatto, for the Respondent
Respondent
- and -
SEAN SUMMERS
Stephen Menzies, for the Applicant
Applicant
HEARD: September 26, 2013
REASONS FOR JUDGMENT
[On appeal from the judgment of Morneau J.
dated December 12, 2012]
M.J. Donohue J.
[1] This summary conviction appeal is brought by the applicant on the basis of that at trial, there was a miscarriage of justice (s.686 (1)(a)(iii) of the Criminal Code).
[2] Mr. Summers was convicted under s.253 of the Criminal Code for having care and control of a motor vehicle, with a blood alcohol concentration of over 80 ml.
[3] It is the position of the defendant that he is factually innocent.
[4] The defence argued there was no evidentiary basis to prove care and control based on intention to operate the motor vehicle.
Background
[5] The police investigated a noise complaint in Dundalk, shortly after 1:00 a.m., where there was a house party.
[6] The 18 year-old defendant was seated in the driver’s seat of his car, properly parked on the road. Fifteen year-old Kayla Finch was in the front passenger seat. She admitted she was drunk on vodka.
[7] In the backseat was Brock Smith, sober, who had just arrived. Travis Marshall was also in the backseat. He was intoxicated after 10 beers.
[8] The testimony of the defendant, Ms Finch and Mr. Marshall was that they were in the vehicle after avoiding an altercation between Mr. Marshall and several other partiers some time earlier.
[9] The testimony of the applicant and Ms. Burlack (a 16 year-old who had six beers and one whiskey) was that a neighbour had called the police.
[10] The applicant’s evidence is that a neighbour/complainant told him that the police had been called due to vandalism of the neighbour’s car.
[11] The applicant testified that his engine was not running and that he was waiting for the police to arrive. He had the key turned to accessory to listen to the radio.
[12] The officer arrived and observed the applicant to have red, glazed eyes. She detected alcohol on his breath. She described that he was slow to respond to questions and it took him some time to find his documents. He was however co-operative and polite.
Law and Analysis
[13] The trial judge set out the reasons for her assessment of credibility of each of the witnesses. She then made findings of fact based on the evidence.
[14] She did not accept the testimony of the other young persons as being credible or reliable particularly as all, except Mr. Smith, had been intoxicated that night.
[15] She accepted the officer’s testimony that the applicant was found seated in the driver’s seat with the key in the ignition and the engine running. The officer testified that she wrote in her notebook that she “observed key in ignition, and turned on.” The next note was “turned off, and removed”.
[16] The officer testified under cross-examination that when she used the phrase, “turned on”, that she was referring to the vehicle engine running.
[17] I am satisfied that she had evidence on which to make those findings of fact.
[18] The trial judge did not believe the applicant’s evidence that he spoke with a neighbour complainant and decided to wait for police.
[19] Part of the test set out in R. v. Boudreault, 2012 SCC 56, 2012 S.C.C. 56; [2102] 3 S.C.R. 157 para. 34 (S.C.C.) for care and control under s.253(1) is the circumstances create a realistic risk of danger to persons or property. The risk must be realistic and not just theoretically possible.
[20] The key in the ignition with the motor running is one factor that can be considered as posing a realistic risk of danger. R. v. Szymanski (2009), 2009 45328 (ON SC), 88 M.V.R. (5th) 182; [2009] O.J. No. 3623 (S.C.J.) para. 93.
[21] I am not satisfied that there has been a miscarriage of justice. There was an evidentiary basis on which the justice could make the findings she did. She detailed her reasons for not accepting the defence witnesses as being credible or reliable.
[22] I find no error.
[23] Appeal dismissed.
M.J.Donohue J.
Released: October 2, 2013
COURT FILE NO.: CR12-341-0000AP
DATE: 20131002
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
SEAN SUMMERS
Applicant
REASONS FOR JUDGMENT
M.J.Donohue J.
Released: October 2, 2013