ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-125

DATE: 20140325

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

KEVIN WILLIS
Appellant

K. Hull, for the Crown

N.A. Xynnis, for the Appellant

HEARD: March 24, 2014

ON APPEAL FROM THE DECISION OF THE HON. MR. JUSTICE J.J. DOUGLAS
DATED JUNE 4, 2013

DiTOMASO J.

THE APPEAL

[1] This is a summary conviction appeal wherein the appellant Kevin Willis appeals against his conviction for the offence Over 80, contrary to s. 253(1)(b) of the Criminal Code, imposed upon him by The Honourable Mr. Justice J.J. Douglas of the Ontario Court of Justice in Bradford, Ontario, on June 4, 2013.

[2] The critical issue at trial was whether Mr. Willis was in care or control of his vehicle at the relevant time.

[3] Both the appellant and respondent agree that the sole issue on appeal is the following:

(a) Was it reasonable for the learned trial judge to conclude that there was sufficient evidence of the appellant being in care or control of the vehicle at the time in question?

POSITION OF THE PARTIES

Position of the Appellant Kevin Willis

[4] On behalf of Mr. Willis, it is submitted that the trial judge’s reasons are unsupported by the evidence. Rather, the trial judge made an unreasonable finding in concluding that Mr. Willis’ initial plan was “voided” by an intervening event i.e., his meeting with a lady friend at a pub and afterwards, sitting with her in his motor vehicle which was running with headlights on for about an hour and a half. It is submitted that Mr. Willis’ intention to return to the home of his friend to spend the night was not displaced by this intervening event. Rather, Mr. Willis demonstrated a concrete plan to return to Mr. MacNeil’s home on foot and his intention to do so was not displaced by his meeting with a female friend. Accordingly, Mr. Willis was not in care and control of his motor vehicle. The trial judge’s conclusion that by contacting a female friend for a drink “voided” Mr. Willis’ plan not to drive that evening was unreasonable.

Position of the Crown

[5] The Crown submits that the trial judge’s verdict was not unreasonable. His finding that the “plan” was vague, variable and interrupted by subsequent events was reasonable based on the evidence. Indeed, the trial judge could and made the finding he did on the evidence. It is submitted that the trial judge’s finding that Mr. Willis posed a realistic risk to the safety of the public was firmly grounded in the evidence and ought not to be disturbed.

THE FACTS

[6] There was no major disagreement in respect of the facts. The facts are as set out in the appellant’s factum supplemented by those facts set out in the respondent’s factum.

Crown’s case

Warren Harris

[7] Mr. Harris, a police office, testified that at about 2:00 a.m. on December 9, 2012, he was on general patrol near the Ironhorse Bar and Grill in Cookstown, at the southeast corner of Highway 89 and Highway 27. While in the parking lot of the Ironhorse, he saw a black Ford Escape parked, facing east with the engine running and the head lights on. The appellant, Kevin Willis, was in the drivers’ seat while a female was in the front passenger seat. Harris spoke with the appellant, who told him he had two drinks that evening. From the driver’s licence, the officer discerned that the appellant lived 10 minutes away walking, three to four driving. Harris noted Willis’ speech was slurred and that he was unsteady on his feet. He also had a moderate smell of alcohol on his breath. At 2:02 a.m., the officer arrested the appellant. Upon being arrested, the appellant told the offer that he was not going to drive and was just sitting in the car getting warm. The officer also spoke with the passenger, Amber Dickson, who told him that she had seen Willis only drink one beer. She left to walk home. In due course, the appellant was transported to a police station where he provided samples of his breath for analysis. He twice registered truncated readings of 120 milligrams of alcohol per 100 millilitres of blood.

[8] Under cross-examination, the officer agreed that Mr. Willis was at all times polite and co-operative with the police. Also, the officer agreed that he did not note any indicia of impairment after arresting the appellant.

Paul Catling

[9] Mr. Catling, a police officer, was the qualified technician in this case. In dealing with Mr. Willis, he noted that he had a “slight” odour of an alcoholic beverage emanating from his breath, that his face colour was normal, that his eyes were watery, that his pupils were dilated, that his clothing was casual and orderly, that he was co-operative, that his speech was “good” and that he was “very calm, agitated but co-operative”. Under cross-examination, the officer stated that he meant agitated in that “from reviewing the video this morning, just more moving hands and moving around kind of an agitated state”.

Defence Case

Kevin Willis

[10] The appellant, 36, has been living common law with Jennifer Harker for 10 years and they have two children together, seven and five years old. He works as a plumbing and HVAC wholesaler and has done so for some 14 years. On the evening of December 8, 2012, he met some friends at the Ironhorse to watch the fights. Even though the Ironhorse is only a four or five minute walk from his home, he drove there because he and his wife were “having some issues” and he did not want to park at home and have to rehash the day with her. Additionally, because street parking is not allowed in Cookstown, he was going to leave his car in the parking lot and walk to a friend, Paul MacNeil’s house. The car he was driving is registered to his wife. He arrived at the Ironhorse at about 5:30 p.m. He entered, had a beer, paid for it and left, then walked across the street to his friend’s place. Mr. MacNeil’s house is about 100 feet from the bar. He did not park at MacNeil’s because his driveway was already full of cars of their other friends. At MacNeil’s house they watched the UFC fights until about 11:30 p.m. – midnight. At MacNeil’s, Mr. Willis had six or seven Coors light beers. Then he went back to the Ironhorse for a pre-arranged meeting with his friend, Ms. Dickson. With Ms. Dickson he drank two more beers and they left the bar together a little after midnight.

[11] They stood outside for some 10 minutes smoking. Then, they decided to sit in his car to get warm. They sat in his car for about one hour and a half before Officer Harris arrived. Eventually, Mr. Willis planned on walking back to Mr. MacNeil’s house. He and Ms. Dickson did not sit in her car because she does not smoke in her car and they were smoking in his car. Mr. Willis was not going to go home that night because of the “ongoing issues” between he and his wife. Mr. Willis added that he had often slept at Mr. MacNeil’s home, either because he was there late watching the fights and did not feel like going home or in situations like that day when he simply did not want to deal with his wife at home.

[12] Under cross-examination, Mr. Willis testified that his wife picked him up from the police station and that he went home with her. He did not go to Mr. MacNeil’s because one of the police officers had already telephoned his wife to tell her that her car had been impounded, so she attended at the police station to take him home. Their previous “issue” had now been replaced by the new “issues” of his arrest and the impoundment of her car.

Paul MacNeil

[13] Mr. MacNeil, 37, is married and lives at 8 King Street North in Cookstown, about 100 feet from the Ironhorse Bar and Grill. On the evening of December 8, 2012, from his home he could see the Ironhorse Bar and the appellant’s car in the parking lot of the bar. That night Mr. Willis visited Mr. MacNeil’s home to watch the Ultimate Fighting Championships. His neighbour Mike and Mike’s father Bernie also attended. Mr. Willis left after the fights ended around 11:30 p.m. Asked when he expected to see the appellant next, Mr. MacNeil said he had arranged with the appellant to come over if and whenever he needed to. Mr. Willis, whom he has known for six or seven years, had stayed over at his place dozens of times in the past, sleeping on the couch. If Mr. MacNeil had gone to bed before Mr. Willis arriving, he would have left the front door open for Mr. Willis.

[14] Under cross-examination, Mr. MacNeil agreed that “it wasn’t a done deal” that Mr. Willis would be spending the night at his house. Instead, it was something they had talked about, but Mr. MacNeil was expecting him.

[15] The respondent adds that Mr. Willis was, according to PC Harris “not just unsteady on his feet, he was very unsteady on his feet. His face was flushed, and his actions slow”.

[16] PC Harris’s evidence was also that the appellant minimized his drinking, and asked the officer for a break.

[17] The respondent also adds the full excerpt of Mr. MacNeil’s evidence showing that the “plan” was a bit leaky:

If he needed to come to my place he was to come. We’d made arrangements he’d let me know that he was going to pop by.

[18] In his reasons for Judgment, the trial judge cited the Supreme Court of Canada decision in R. v. Boudreault, 2012 SCC 56, [2012] S.C.J. No. 56 (SCC) specifically the test for risk; “the risk of danger must be realistic and not just theoretically possible but nor need the risk be probable or even serious or substantial”.

REASONS FOR JUDGMENT

[19] In his reasons for judgment, the trial judge found the appellant was in care or control of the vehicle in question. In doing so, he stated in part:

In my view, the accused took certain steps here that might have avoided the finding of care or control, I now make. That is, he parked where he parked. He made arrangements with his friend, so as to avoid ultimate driving either home or back to his friend’s.

If he had stuck to his plan, in my view, I would be disinclined to make the finding of care or control. However, here, in my view, the evidence is deficient as to what his intentions were in that hour or so that he sat in that motor vehicle with that the girl who he had, at a late hour, decided to meet in the bar.

There was some subtly in the evidence given that the accused had a common law relationship of some long standing that was in some difficulty, perhaps because of the relationship with the one Amber, although that is not in evidence. Nonetheless, under the influence, of some substantial amount of alcohol, at approximately 11:00 or 11:30 at night, he phoned this Amber woman to meet him at the bar. This action, in my view, voided the plan that was in place up until that point in time as to exactly what he would be doing on that night.

On his testimony and on the testimony of his friend, it was they had some variability in it in the sense that he would either stay at the friend’s after the game and the beer, or perhaps walk home to the wife with whom he was having some dispute.

In any event, at that point in time, the plan clearly involved no access to the motor vehicle. What changed was that at 11 or 11:30 at night, he introduced the variable of Amber, and that put him, not walking home staying where he was, but walking back to the bar.

As the bar was closing, shortly after he and Amber met at it, that led to the circumstances of them leaving the bar together and then getting in the motor vehicle, whether for a short time or a long time. Getting into the motor vehicle involved him, in my view, exercising, a factual degree of care or control over it, unlocking it, getting into it, starting it, turning the heater on, etcetera. In my view, at that point in time, he had no definitive plan as to what he was going to do by way of where he went from that point on.

His friend says the door was still open. He was welcome to come back, but he really had no idea whether he was coming back. He was certainly vague in his evidence as to what was the circumstances then. It seems to me that, in all likelihood, the accused had no idea what he was doing at the time he was sitting in the motor vehicle. Walking home to his wife was one option. Walking home to his friend was another or staying with Amber or driving off with Amber is another. In my view, that risk of danger was realistic and not just theoretically possible in the circumstances.

Given that plan he had put in place had, perhaps under the influence of alcohol, then changed as an exercise of bad judgement on his part. Accordingly, in my view, the Crown has proven its case beyond a reasonable doubt. The accused will be found guilty.[^1]

Standard of Review and the Reasonable Verdict

[20] 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. A trial judge’s findings of fact ought not to be lightly interfered with.[^2]

ANALYSIS

[21] The existence or not of a realistic risk of danger is a finding of fact.[^3]

[22] The position of Mr. Willis is that the trial judge should not have decided as he did and in coming to convicting Mr. Willis the trial judge erred by rendering an unreasonable verdict. It is argued on behalf of Mr. Willis the finding that Mr. Willis’ “plan” was vague, variable and interrupted by subsequent events was unreasonable. Serious issue is taken with the trial judge’s finding that Mr. Willis’ meeting with his female friend was the intervening event which voided Mr. Willis’ intention not to drive his vehicle but rather go back to Mr. MacNeil’s house on foot to stay for the night.

[23] There is a high threshold for unreasonable verdict. Such a verdict must be plainly contradicted by the very evidence from which it is drawn, or demonstrably incompatible with uncontracted evidence.[^4]

[24] There was no issue that Mr. Willis had been drinking alcohol at Mr. MacNeil’s place and later at the pub where he met his female friend. There was no issue that Mr. Willis was behind the wheel of a running car with the car’s headlights in the on position. The car had been running for an hour and a half with the heater on.

[25] The key issue is whether Mr. Willis was in care or control of that vehicle. Care or control involves three elements and it is the third element that concerns us: did the circumstances in which Mr. Willis placed himself create a realistic risk, as opposed to a remote possibility, of danger to persons and property? The risk of danger must be realistic and not just theoretically possible. The risk does not need to be probable or even serious or substantial.[^5]

[26] Mr. Willis was found behind the wheel of his vehicle and it was for him to satisfy the court that there was no intention to drive and no risk of a change of mind brought on by a foggy mind.

[27] At para. 42, the court in Boudreault states:

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.

[28] At para. 52, the court also addresses the impact of an “alternate plan” as follows:

The impact of an “alternate plan” of this sort on the court’s assessment of 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 watertight, 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 or her intentions either then or afterward.

[29] It was submitted on behalf of Mr. Willis that his intention or plan not to drive was concrete and never varied. This was his evidence at trial supported by the evidence of Mr. MacNeil who testified that Mr. Willis could stay overnight at Mr. MacNeil’s house as he had done in the past.

[30] I find that trial judge was alive to the issue of Mr. Willis’ level of impairment by alcohol and the essential issue as to whether the circumstances in which Mr. Willis placed himself created a realistic risk, as opposed to a remote possibility, of danger to persons and property.

[31] The trial judge found, as he was entitled to do on the evidence, that Mr. Willis posed realistic risk to the safety of the public. He found, as he was entitled to do, that meeting with his friend Amber and sitting with her for an hour and a half in the parking lot of the pub in a running vehicle with lights and heater on “voided the plan that was in place up until that point in time as to exactly what he would doing on that night”.

[32] Mr. Willis neither walked home where his wife was located with whom he was having some dispute. Neither did he walk to Mr. MacNeil’s house. Rather, he went to the bar to meet with his female friend.

[33] The trial judge was alive to Mr. Willis’ intention or plan and in the end concluded that there was no plan beyond unlocking his car, getting into it, starting it, turning on the heater and headlights and speaking with Amber for as long as he did.

[34] The trial judge understood the evidence in coming to the conclusion that there was no plan. The trial judge also properly instructed himself on the law. This court ought not and will not interfere with those findings which are founded in the evidence. The trial judge made his findings based on the evidence and not based on speculation. The trial judge’s finding that Mr. Willis posed a realistic risk to the safety of the public was firmly grounded in the evidence and ought not to be disturbed.

[35] Ultimately, it was reasonable for the trial judge to conclude beyond a reasonable doubt that Mr. Willis was in care or control of the vehicle at the time in question. Accordingly, this appeal fails.

CONCLUSION

[36] For the foregoing reasons, the appeal against conviction is dismissed. The order of Healey, J. dated December 16, 2013 granting extension of the stay of driving prohibition until the final disposition of the appeal is hereby rescinded.

DiTOMASO J.

Released: March 25, 2014

[^1]: Transcript, June 4, 2013 Proceedings at Trial, Page 34, Line 9 to Page 36, Line 14
[^2]: R. v. Smits, 2012 ONCA 524, [2012] O.J. No. 3629 (OAC) at para. 67; R. v. Beaudry, 2007 SCC 5, [2007] S.C.J. No. 5 (SCC) at para. 98; R. v. Sinclair, 2011 SCC 40, [2011] S.C.J. No. 40 (SCC) at paras. 4 and 44
[^3]: R. v. Boudreault, 2012 SCC 56, [2012] S.C.J. No. 56 (SCC) at para. 50
[^4]: R. v. Li, 2013 ONSC 135, [2013] O.J. No. 81 (OCA) at para. 123
[^5]: R. v. Boudreault, supra, at paras. 9 and 34