ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 737
DATE: 20140304
B E T W E E N:
Her Majesty The Queen
J. P. Perfetto, for the Crown
Respondent
- and -
Hugh O’Neill
F. Miller, for the Appellant
Appellant
HEARD: December 19, 2013
On appeal from the conviction of Pockele J. dated March 24, 2011.
LEITCH J.
[1] This is an appeal of a conviction in the Ontario Court of Justice for the summary conviction offences of impaired operation of a motor vehicle, contrary to s. 253(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, and consuming alcohol in such a quantity that the concentration thereof in the blood exceeded 80 mgs of alcohol in 100 mls of blood while having the care or control of a motor vehicle, contrary to s. 253(1)(b) of the Criminal Code.
[2] Section 258(1)(a) of the Criminal Code states the following:
[W]here it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle … the accused shall be deemed to have had the care or control of the vehicle … unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle … in motion[.]
The Proceedings in the Ontario Court of Justice
[3] The appellant was found asleep in the driver’s seat of his truck parked in a parking lot at around 1:30 a.m. on December 12, 2008.
[4] The appellant’s evidence in-chief with respect to his intentions at p. 29 of the transcript of the proceedings was the following:
Ah, to sleep in my truck and to ah, get up the next morning and go have a coffee and some ah, you know, a bagel or whatever, my usual routine and to meet him in St. Thomas.
[5] The appellant stated the following on cross-examination as noted at p. 32:
A. I had no intention of operating the truck on that night.
Q. What were you going to do?
A. I was just going to – my plan was to sleep – I mean obviously sleep and get up and go for coffee and a bagel or whatever in the morning and then return to work.
[6] The appellant argued that he had not planned to drive until much later in the morning, after he had sobered up. He argued he had rebutted the statutory presumption in s. 258(1)(a) of the Criminal Code that presumes he had the intent to set the vehicle in motion when found in the driver’s seat, and he argued that he did not have “care or control” of his vehicle at the time he was found.
[7] Pockele J. found that the appellant’s intention to drive the motor vehicle at some later time was legally insufficient to rebut the statutory presumption found in s. 258(1)(a), as the provision renders the appellant’s intention not to drive at the time he was found irrelevant. He found that the appellant still had the intention to drive the truck in the morning, and even if the presumption had been rebutted, the appellant was still in the care and control of his vehicle at the at the time he was found.
The Arguments on Appeal
[8] Mr. Miller, counsel for the appellant, indicated at the hearing of this appeal that he would focus on what he described as Issue #1 in his amended factum.
[9] Mr. Miller noted that it was not explored on cross-examination if the appellant would have walked to obtain breakfast the next morning. He submitted that the trial judge made no explicit credibility findings against the appellant, and he further submitted that the trial judge seriously misapprehended the evidence in concluding that the appellant had a compelling reason to go to Port Franks. Although the appellant’s common-law spouse, who gave birth to the appellant’s child on December 12, 2007, had at first expected the appellant to return home the evening of December 11, her evidence was that she made alternate arrangements to get to the hospital, and did not expect the appellant to return home to take her after he called her shortly after midnight and advised that he had been drinking and was unable to drive.
[10] The trial judge relied upon R. v. Pilon, 1998 4717 (ON CA), [1998] O.J. No. 4755 (C.A.) for the proposition that the statutory presumption in s. 258(1)(a) cannot be rebutted by a person who has deferred the intention of setting the vehicle in motion until some later time. The appellant, however, argues that Pilon does not address this issue and that it is not binding authority for that proposition. Accordingly, reliance upon Pilon for that proposition was an error of law.
[11] Instead, the appellant argues that R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 is determinative in the current appeal.
[12] In light of Boudreault, the appellant seeks a new trial. Mr. Miller submitted that the appellant’s evidence respecting his intentions to drive was not addressed because of the trial judge’s erroneous view of the law, and that such evidence is capable of being interpreted to conclude that the appellant was going to exit the vehicle the next morning and not drive.
[13] Mr. Miller’s position was that a contemporaneous intention to drive later creates no danger and thus is sufficient to rebut the statutory presumption. Putting it another way, Mr. Miller submitted that the offence can only be made out against the appellant if he has a contemporaneous intention to drive contemporaneously.
[14] On the other hand, the Crown’s position was that the presumption applies, and it submitted that there was no evidence that the appellant’s intention was to exit the vehicle to obtain breakfast; instead, his evidence was that he intended to operate the vehicle.
[15] The Crown emphasized that the onus was on the appellant to rebut the presumption on a balance of probabilities and that there is no evidence that he was going to exit the vehicle and walk somewhere. It submitted that on this appeal, the appellant is asking me to read something else into the evidence.
[16] The Crown’s position was that according to the appellant’s evidence, he had no intention to exit the motor vehicle, and as a result, the factual underpinnings for the legal argument made on the appellant’s behalf on appeal do not exist. Furthermore, the Crown’s position was that there was no error in law and that the presumption cannot be rebutted by evidence indicating the appellant only intended to drive later, once, in his view, he was no longer impaired. There is also no evidence indicating that when found in the vehicle, the appellant had no intention to drive. The Crown referred to the comment of Morden A.C.J.O. in Pilon at para. 19:
At its best, as far as the appellant was concerned, this showed that he did intend to drive the car, or in his subjective and potentially impaired opinion, he had “slept it off”.
[17] The Crown submitted that the evidence is clear that the appellant was going to operate the vehicle when he was ready to do so and that there is no burden on the Crown to prove that he would have been impaired in the morning.
Disposition
[18] As the appellant suggests, Pilon does not deal with s. 258(1)(a) in any probative way. At para. 7, it is expressly stated by the Court of Appeal that:
The respondent did not argue that the trial judge erred in concluding that the appellant’s evidence that he intended to set the vehicle in motion at some later time satisfied the presumption and so I shall not deal with it.
As such, the appellant is correct in that Pilon does not address the issue on appeal.
[19] In Boudreault at para. 9, Fish J. clarified a three-part test to signify “care or control” of a motor vehicle pursuant to s. 253(1):
An intentional course of conduct associated with a motor vehicle;
By a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;
In circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property.
[20] He stated at para. 12 that:
[A] conviction will normally ensue where the accused, as in this case, 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.
[21] Fish J. went on to note at para. 14 that:
The trial judge was satisfied that Mr. Boudreault would not, in fact, have set his vehicle in motion. And this was the only risk of danger in issue at trial.
Mr. Boudreault had waited in his truck for a taxi to arrive, which had been called to take him home, so that he could escape the harsh winter elements. He turned on the truck to generate heat and fell asleep while waiting for the taxi.
[22] Boudreault speaks considerably to the presumption found in s. 258(1)(a) and the intention to drive while impaired, which are directly pertinent to the issue on appeal:
- It is settled law that an intention to set the vehicle in motion is not an essential element of the offence: Ford v. The Queen, 1982 16 (SCC), [1982] 1 S.C.R. 231. This may appear anomalous in view of the presumption set out at s. 258(1)(a) of the Criminal Code, which provides that an accused who was found in the driver’s seat of a motor vehicle
shall be deemed to have had the care or control of the vehicle … unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle … in motion …;
At a minimum, the wording of the presumption signifies that a person who was 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 or she had no intention to set the vehicle in motion. Dickson C.J. made this plain in R. v. Whyte, 1988 47 (SCC), [1988] 2 S.C.R. 3, at p. 19: “It cannot be said that proof of occupancy of the driver’s seat leads inexorably to the conclusion that the essential element of care or control exists … .”
Put differently, s. 258(1)(a) indicates that proof of voluntary inebriation and voluntary occupancy of the 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, in my view, the “something more” is a realistic risk of danger to persons or property.
I agree with Justice Cromwell [writing in dissent] that Parliament’s purpose in enacting the care or control provision was preventive, and directed at the inherent danger that normally arises from the mere “combination of alcohol and automobile”: Saunders, at p. 290. With respect, however, I believe this supports my 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 or 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 or 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.
I need hardly reiterate that “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. To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending 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. As Lamer C.J. observed in Penno, “The law … is not deprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to drive is impaired in a motor vehicle” (p. 877).
The existence or not of a realistic risk of danger is a finding of fact: see R. v. Lockerby, 1999 NSCA 122, 180 N.S.R. (2d) 115, at para. 13; Smits, at para. 61. The trial judge must examine all of the relevant evidence to this end and may consider a number of factors: see e.g. R. v. Szymanski (2009), 2009 45328 (ON SC), 88 M.V.R. (5th) 182 (Ont. S.C.J.), at para. 93, per Durno J.; R. v. Ross, 2007 ONCJ 59, 44 M.V.R. (5th) 275, at para. 14, per Duncan J.
[23] In my view, contrary to the appellant’s arguments, Boudreault does not stand for the proposition that an impaired person behind the wheel of a car simply stating that they plan to drive “later”, and therefore indicating that they did not possess a “contemporaneous intention to drive”, automatically rebuts the presumption in s. 258(1)(a) that the appellant had “care or control” of the vehicle for the purpose of setting it in motion when found in the driver’s seat.
[24] A lack of a “contemporaneous intention to drive” is not enough on its face to alleviate a finding of “care or control” and therefore rebut the presumption found in s. 258(1)(a) of the Criminal Code.
[25] As set out at para. 42, Fish J. essentially anticipates arguments like those made by the appellant on appeal here, by stating that even in the absence of a “contemporaneous intention to drive”, a realistic risk of danger may still arise in at least three ways: e.g. an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; an inebriated person behind the wheel may unintentionally set the vehicle in motion; or through negligence, bad judgment, or otherwise, a stationery or inoperable vehicle may endanger persons or property.
[26] At para. 46 in Boudreault, Fish J. stated:
The care or control offence captures a wide ambit of dangerous conduct: Anyone who is intoxicated and in a position to immediately set the vehicle in motion faces conviction on those facts alone.
[27] As such, even if the appellant as he stated did not have an intention to drive at the time he was found by the police in an inebriated state, if there still existed, inter alia, a realistic risk of danger at that time, then a finding of “care or control” is still at least possible and consequently, the presumption has not been rebutted.
[28] Accordingly, the appeal is dismissed.
“Justice L. C. Leitch”
Justice L. C. Leitch
Released: March 4, 2014