ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR121000014300AP
DATE: 20131022
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NEIL WILLIAMS
Defendant/Appellant
Dan Guttman, for the Crown/Respondent
Philip B. Norton, for the Defendant/Appellant
HEARD: September 16, 2013
B. P. O’marra j
judgment
overview
[1] On February 26, 2011, the appellant was charged with Impaired and Over 80 Care and Control of a Motor Vehicle. On September 5, 2012, an application for a stay based on s. 11(b) of the Charter was dismissed. On October 24, 2012, the appellant was found guilty of Impaired and Over 80 Care and Control of a motor vehicle.
grounds of appeal
[2] The appellant submits that the trial judge erred in law in dismissing the motion under s. 11(b) of the Charter. He also submits there was an error of law on the findings of guilt based on the Supreme Court of Canada decision in R. v. Boudreault 2012 SCC 56. That decision was released two days after the trial judge found Mr. Williams guilty.
i The 11(b) Motion
[3] On February 26, 2011, the appellant was charged with the two offences. On March 3, 2011, the Information was sworn. On June 28, 2011, counsel for the appellant made a disclosure request that included reference to an in-car DVD.
[4] On July 21, 2011, an agent on behalf of the appellant attended at the Crown’s office to pick up the DVD and was advised that it was not available. On that same day the first trial date was set for January 16, 2012, marked “with or without counsel”. The appellant had been represented by counsel but the trial date was set on the basis that the full retainer for trial had not been completed. Unfortunately, there was no follow up request for the DVD by the accused or anyone on his behalf until the eve of the first trial date. This was the source of the critical period of delay in this case.
[5] On January 16, 2012, counsel for both Crown and the accused realized that neither of them had the DVD that was part of the police investigation in this case. Counsel who attended for trial had been retained only two weeks before and there had been no follow up for the DVD.
[6] Everyone did everything they could to save the first trial date or at least commence the trial. The Crown tried to find its copy of the DVD to share with the defence but was unsuccessful. The Defence requested an adjournment which was granted. When the DVD was later found it was of no relevance to the substantive charges. A new trial date was set for September 5, 2012. Counsel for the Applicant advised that he had “plenty” of earlier dates but did not specify any such dates.
[7] At trial and on appeal the parties have properly focused on the time between the first and second trial dates as the critical period of time for the 11(b) analysis. Counsel agreed that the intake period up to and including July 21, 2011 was a reasonable inherent time period. The time from July 21, 2011 to the first trial date was a reasonable time to trial in the busy Ontario Court of Justice and no complaint is made about that period of time.
[8] On the new trial date of September 5, 2012, counsel for the accused brought a motion for a stay pursuant to s. 11(b) of the Charter. The motion was dismissed and the trial proceeded on its merits that day. It was set to continue on October 24, 2012. On September 11, 2012, the trial judge released his reasons for dismissing the 11(b) motion. On October 24, 2012, the trial was completed and the accused was found guilty of both counts. A judicial stay was entered on one of the counts.
[9] On the 11(b) motion the trial judge found that: (a) there should have been some follow up by the accused or his counsel for the DVD after it was not available for pick up on July 21, 2011; and (b) the Crown should have provided the DVD in a timely fashion.
[10] Counsel for the appellant at trial conceded that some of the time between the first and second trial dates would have to be deducted from institutional or Crown delay. However, he suggested that the bulk of the time should be attributed to the Crown.
[11] The trial judge found that both Crown and Defence shared responsibility for the adjournment of the first trial date. He characterized the entire period from January 16, 2012 to September 5, 2012 as neutral time required to get the case back on track. There was no evidence tendered of actual prejudice. The court was not prepared to infer any prejudice in the circumstances.
[12] The appellant submits that the bulk of the time between the first and second trial dates should have been assessed against the Crown. On that basis he submits that the total institutional/Crown delay would be 11.5 months and that the charges should have been stayed.
analysis
[13] The trial judge found as a fact that there was shared responsibility for the necessity of adjourning the first trial date. That finding is not palpably wrong and I would not interfere with it. However, the assessment that the entire time between the first and second trial date was neutral time, in my view, was incorrect. The starting point is the obligation of the Crown to provide disclosure and for the system to get the accused to trial without unreasonable delay. While there is properly some responsibility on the defence in this case for the failure to follow up on the disclosure of the DVD, in my view, the majority of the time between the first and second trial should be attributed to Crown and institutional delay. I would apportion that as four months out of a total seven months and 20 days between the first and second trial dates.
[14] The time between the original set date and the first trial date was approximately five months and 23 days. Allowing one month for preparation and scheduling for defence counsel that would leave approximately four months and 23 days up to the first trial date as institutional delay. Apportioning four months Crown and institutional delay between the first and second trial dates puts the total figure at less than nine months. That amount of institutional or Crown delay is not beyond the permissible range for such charges. Therefore, even though I disagree with the allotment by the trial judge of entirely neutral time between the first and second trial dates, in my view, his conclusion that the 11(b) motion should be dismissed was correct.
[15] The appeal in regard to the 11(b) issue is therefore dismissed.
ii the care and control issue
[16] The appellant submits that the trial judge erred in law in failing to consider whether the Crown had proven a realistic risk of danger to persons or property. He relies on R. v. Boudreault 2012 SCC 56.
[17] Counsel at trial narrowed the issue to whether or not the Crown had proven the appellant had care and control as defined in the Criminal Code. The Crown relied on the presumption in s. 258(1)(a) of the Criminal Code. The accused testified to rebut the presumption and said he had no intention of operating the car in the time leading up to his arrest.
[18] The facts at trial were largely not in dispute. Between 2 a.m. and 2:30 a.m. on February 26, 2011, the appellant left a nightclub. He had consumed alcohol and was intoxicated. He returned to his car which was legally parked at the intersection of King Street and Yonge Street in Toronto. When he arrived at his vehicle he vomited. He entered his vehicle, sat in the driver’s seat, turned on the ignition and passed out. At 3:40 a.m. the appellant was discovered by police who observed him to be passed out in the driver’s seat with the engine running and the rear window down. He exhibited obvious signs of intoxication. He was arrested for having care and control of his vehicle while impaired and subsequently provided samples of his breath in the amount of 211 and 208 mg.
[19] The accused testified that when he was in his car he phoned his girlfriend and told her he was feeling ill. He told her that she would have to pick him up if he did not feel better. He also told her that if he did feel better he would take a cab home. He said his intention was to rest and see how he felt before deciding whether to take a cab or have his girlfriend pick him up. He knew he was intoxicated and had no intention to drive the vehicle. He said he did not take a cab right away because he did not want to throw up in it and he did not want to be taken advantage of by a cab driver by running up the fare. He claimed that he sat in the driver’s seat, turned on the ignition and heater, put down the rear window for fresh air and fell asleep.
[20] At 3:40 a.m. the police found the accused in the driver’s seat. The engine was running. The accused was incoherent and covered with vomit.
[21] On October 24, 2012 the trial judge delivered his judgment which covered 11 pages of transcript. The Court made the following observations and findings:
He referred to the Ontario Court of Appeal decision in R. v. Smits 2012 ONCA 524, [2012] O.J. No. 3629. That case identified the three risks of danger where an intoxicated individual uses a motor vehicle for a non-driving purpose. They are: (1) the vehicle will unintentionally be set in motion; (2) through negligence, a stationary or inoperable vehicle may endanger the individual or others; and (3) the individual who has decided not to drive will change his/her mind and drive while still impaired.
The Crown in this case relied on the presumption in s. 258(1)(a).
Where the presumption applies the onus is on the accused to establish that he did not occupy the driver’s seat for the purpose of setting the vehicle in motion. The Court must consider all of the evidence in determining whether the presumption has been rebutted. A significant part of that would be the testimony of Mr. Williams.
The accused testified that it was not his intention to drive the vehicle as he could not safely operate the vehicle due to his intoxication. That is why he made the call to his girlfriend and discussed either her picking him up or him taking a cab home. The Court found as a fact that Mr. Williams was intoxicated. The accused agreed that he was too impaired to drive and that his judgment was off that night. He did not have a good recall of all of the events due to his intoxication. The Court found that he vomited due to his intoxication.
The police officers confirmed in their evidence that Mr. Williams was significantly intoxicated and incoherent.
[22] The trial judge specifically dealt with the credibility of Mr. Williams in the context of all of the evidence presented. This included the following:
The Court did not find Mr. Williams credible on the issue of his stated intention or purpose for sitting in the driver’s seat.
The accused claimed he reclined with his head back in the driver’s seat. The officer testified that the accused was passed out with his head slumped forward. The Court found as a fact that Mr. Williams was not reclined in his driver’s seat.
The Court did not find Mr. Williams credible on the issue of his plans for the evening. He testified that he drove to the club but his intention was not to drive home. He said he was going to leave the car where he left it. He was going to get home with friend, or get a cab or contact his girlfriend. He said he was going to leave his car on King Street. He admitted, however, in cross-examination that he really had no plans when he decided to go out for the evening. He would as he said “see how it goes”. The Court found these responses shifted from a definite plan to one that was up in the air. There was an element of evasiveness regarding his testimony about his plans.
The accused gave contradictory evidence as to whether or not he was concerned that if he left his vehicle it could be towed or ticketed. The Court found his answers shifted and that he was evasive on this issue.
The Court found that the appellant’s plan for the evening, in the course of cross-examination, shifted from certain stated plans with options to ultimately no plans and that he was just playing it by ear. The Court found as a fact that it made sense that he drove the car to the club with the intention of driving it back.
The appellant made no attempt to call or hail a cab. There is no reason for him to get into his car if that was his direct and immediate intention as to a way to get home. He testified that he did not want to do that because he did not want to vomit in the cab. That was not plausible to the Court. Taking a cab is a safe and prudent way for intoxicated individuals to find their way home – even individuals who feel sick. The Court also found that the explanation about not wanting to throw up in a cab was not consistent with the fact that he was apparently not so concerned about throwing up in his rental Lexus.
The accused had a criminal record including robberies which obviously have an element of dishonesty. This was a factor that the Court was entitled to consider in assessing the credibility of the appellant. The Court did not attach significant weight to this but it certainly did not lend support to Mr. Williams’ credibility given the other factors alluded to.
[23] The Court went on to consider, on the whole of the evidence, whether the defence had rebutted the presumption in s. 258(1)(a) of the Criminal Code. That evidence would include the circumstances wherein the police found Mr. Williams. The police testified that they observed the rear driver’s window down at 3:22 a.m. They observed fresh vomit on the roadway and Mr. Williams passed out in the driver’s seat. The engine was running and the officer knocked a few times on the window without response. He opened the driver’s door and noted that Mr. Williams was incoherent and his clothes were covered with vomit. He shook Mr. Williams to awaken him. Mr. Williams was incoherent when asked for his documents and did not appear to understand. He eventually located his wallet.
[24] The Court concluded by finding that Mr. Williams was found on a downtown street where he had initially parked the car after drinking with friends at a club. He was found in the early morning hours with the engine running and the lights on. The scenario was consistent with an individual who had the intention to drive the vehicle when he got behind the wheel of the car, who became sick, vomited, and then passed out before he was able to put into action his intention to drive home.
[25] The Court rejected the testimony of Mr. Williams that when he occupied the driver’s seat he did not intend to set the car in motion. The Court found that the defence had not rebutted the presumption.
[26] As the presumption had not been rebutted, the Court found that Mr. Williams was in care and control of the motor vehicle. There was really no dispute that he in fact was in an extreme state of intoxication so findings of guilt were entered on both charges. The Over 80 charge was stayed based on the Keinapple principle.
iii risk of danger as an essential element of the offence of care or control under s. 253(1) of the criminal code
[27] The Supreme Court of Canada has recently revisited and reviewed the law applicable to cases of care and control under s. 253(1) of the Criminal Code in the case of R. v. Boudreault 2012 SCC 56. The following principles were clarified by the Court:
“Care or 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.
The existence of a realistic risk of danger is a matter of fact.
A conviction will normally ensue where the accused was found inebriated behind the wheel of a motor vehicle with nothing to stop the accused from setting it in motion, either intentionally or accidentally.
Impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol or drugs. Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood-alcohol ratio, creates an inherent risk of danger. In practice, to avoid conviction the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case.
Parliament’s objective in enacting s. 253 of the Code was to prevent a risk of danger to public safety. Accordingly, conduct that presents no such risk falls outside the intended reach of the offence.
The risk of danger must be realistic and not just theoretically possible. The risk need not be probable, or even serious or substantial.
To require that the risk be realistic is to establish a low threshold consistent with Parliament’s intention to prevent a danger to public safety. To require only that the risk be theoretically possible is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct.
An intention to set the vehicle in motion is not an essential element of the offence.
An accused found in the driver’s seat will be presumed, as a matter of law, to have care and control of the vehicle, unless the accused satisfies the Court that he/she had no intention to drive – an intention that is not an essential element of the offence.
At a minimum the wording of the presumption signifies that a person who is found drunk and behind the wheel cannot, for that reason alone, be convicted of care or control if that person satisfies the Court that he/she had no intention to set the vehicle in motion.
Put differently, s. 258(1)(a) indicates that proof of voluntary inebriation and voluntary occupancy of a driver’s seat do not by their coexistence alone conclusively establish “care or control” under s. 253(1) of the Criminal Code. Something more is required and the something more is a realistic risk of danger to persons or property.
Parliament’s purpose in enacting the care or control provision was preventative, and directed at the inherent danger that normally arises from the mere “combination of alcohol and automobile”. This supports the view that Parliament’s intention in enacting s. 253(1) of the Criminal Code was to criminalize only conduct that creates a realistic risk of danger.
A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control. On the other hand an accused who satisfies the Court that he/she had no intention to set the vehicle in motion will not necessarily escape conviction. An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion without intending at that moment to do so may nevertheless present a realistic risk of danger.
In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired change his/her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.
Anyone found inebriated behind the wheel with a present ability to drive will and should almost invariably be convicted. It hardly follows, however, that a conviction in these circumstances is, or should be, “automatic”. A conviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case.
The care or control offence captures a wide ambit of dangerous conduct. Anyone who is intoxicated and in the position to immediately set the vehicle in motion faces conviction on those facts alone.
“Realistic risk” is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence aiming to prove that no realistic risk of danger existed in the particular circumstances of the case.
The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger. Likewise, use of the vehicle for a manifestly innocent purpose should not attract the stigma of a criminal conviction.
The existence or not of a realistic risk of danger is a finding of fact. The trial judge must examine all of the relevant evidence to this end and may consider a number of factors. One of the factors of particular relevance may be that the accused took care to arrange what some Courts have called an “alternate plan” to ensure safe transportation home.
The impact of an “alternate plan” on the Court’s assessment on the risk of danger depends on two considerations. First, whether the plan itself was objectively concrete and reliable. Second, whether it was in fact implemented by the accused. A plan may seem water tight, but the accused’s level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his/her intentions either then or afterward.
R. v. Boudreault (supra) paras. 9-13, 32, 34-42, 45, 46, 48-51, and 52.
[28] It is important to bear in mind that in the Boudreault decision the trial judge found as a fact that there was no risk that Mr. Boudreault would at any point intentionally set the vehicle in motion. That was a finding of fact that the Supreme Court referred to as “however unsatisfactory or unreasonable it may appear to others”.
R. v. Boudreault para. 56.
analysis
[29] The trial judge rejected the testimony of the appellant that when he occupied the driver’s seat he did not intend to set the car in motion. Specific reasons were provided for this adverse finding.
[30] The uncontested facts provide the following picture:
• the appellant is very intoxicated
• he is passed out in the driver’s seat
• the engine is running
• the vehicle is parked at a busy intersection in Toronto
• the appellant’s “alternate plan” to not drive home was shifting and inconsistent and ultimately rejected by the Court
[31] The trial judge found that the scenario was consistent with an individual who had the intention to drive the vehicle when he got behind the wheel of the car, who became sick, vomited and then passed out before he was able to put into action his intention to drive home.
Trial Judgment, p. 75, lines 7-16.
[32] The trial judge did not specifically refer to “realistic risk of danger”. However, his findings must be considered in light of the following comments in Boudreault:
(i) A conviction will normally ensue where the accused was found inebriated behind the wheel of a motor vehicle with nothing to stop the accused from setting it in motion, either intentionally or accidentally. Para. 12.
(ii) Absent evidence to the contrary, a present ability to drive while impaired, or with excessive blood alcohol ratio, creates an inherent risk of danger. In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case. Para. 13.
(iii) The risk of danger must be realistic and not just possible. The risk need not be probable, serious or substantial. Para. 34.
(iv) A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. An intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control. Para. 41.
(v) Realistic risk is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. Para. 48.
[33] The findings of the trial judge squarely come within the perimeters set for “realistic risk of danger” as set out in Boudreault. I find no error of law in the verdict at trial.
result
[34] Appeal dismissed.
[35] I am grateful to both counsel for their helpful submissions.
B. P. O’Marra J.
Released: October 22, 2013
COURT FILE NO.: CR121000014300AP
DATE: 20131022
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
NEIL WILLIAMS
Defendant/Appellant
JUDGMENT
B. P. O’Marra J.
Released: October 22, 2013