ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 17/13
DATE: 20140916
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
GARFIELD BLAIR
Respondent
Rick Nathanson, for the Crown/Appellant
No one appearing on the Respondent
HEARD: April 25, 2014
REASONS FOR JUDGMENT
trotter J.
INTRODUCTION
[1] Garfield Blair was charged with impaired driving and “over 80.” In the middle of a trial conducted by the Honourable Justice Thomas Cleary of the Ontario Court of Justice, the Crown chose not to pursue the “over 80” charge. Also, although the trial started out with a charge of impaired driving, the focus shifted to the issue of “care or control” of the vehicle. At the conclusion of the trial, the learned trial judge found Mr. Blair not guilty.
[2] Mr. Blair was personally served with the Crown’s Notice of Appeal. Since that time, all further attempts to contact him have failed. And this is despite considerable efforts by the Crown on appeal, Mr. Nathanson. On February 7, 2014, based on a fulsome record, MacDonnell J. listed this case for argument on an ex parte basis. As he said: “It appears that the Respondent does not wish to participate in the appeal.” I agree with this conclusion and I heard the appeal in Mr. Blair’s absence.
THE FACTS
[3] Because the legal issue raised on this appeal is narrow, the facts may be stated briefly. Mr. Blair was in his van in the middle of the night on Kennedy Road near Danforth Avenue in Toronto. At some point, the van left the road and ended up facing in the wrong direction, with its back wheels on the grassy area between the curb and the sidewalk. A witness heard Mr. Blair attempting to start the van half a dozen times.
[4] The police arrived shortly afterwards and observed that the van appeared to have collided with a fire hydrant, which was completely broken off of its base. Mr. Blair was in the driver’s seat and was trying to start the car, but without success. The car made a “clicking” sound as Mr. Blair turned the key. None of the police officers could determine why the van would not start. When Mr. Blair got out of his van, he was intoxicated. He was arrested for impaired driving.
THE TRIAL JUDGE’S REASONS
[5] The trial judge had no doubt that Mr. Blair’s ability to drive was impaired by alcohol. There was no dispute that Mr. Blair was found in the driver’s seat of the van and that he attempted to start the vehicle at least eight times. The trial judge then made the following findings:
In Mr. Blair’s situation before me, I find that there was no direct evidence, nor any evidence from which I could reasonably infer that he could put the vehicle in motion, either accidentally or intentionally. I find he clearly had the intention to do so. The motor was not operable because the starter motor was not functioning, thereby, the gasoline motor, necessary to move the vehicle, was not functioning. There was at least eight occasions where he was making an attempt, with mens rea, but there was no possibility for the actus reus to happen.
[6] The trial judge then referred to the decision of the Supreme Court of Canada in R. v. Boudreault (2012), 2012 SCC 56, 290 C.C.C. (3d) 222 (S.C.C.) and concluded that, notwithstanding the operation of the presumption of “care or control” in s. 258(1)(a) of the Criminal Code, the Crown was still required to prove a realistic risk of danger to persons or property. He concluded that the Crown had failed to prove this element and dismissed the charge.
[7] The Crown appeals, arguing that the learned trial judge erred in his application of the presumption in s. 258(1)(a). With respect, I agree.
ANALYSIS
[8] The concept of “care or control” is found in s. 253(1) of the Criminal Code. The Crown may prove “de facto or actual care or control” of a motor vehicle: R. v. Smits (2012), 36 M.V.R. (6h) 212 (Ont. C.A.), at para. 48. Alternatively, the Crown may rely on the presumption of “care or control” in s. 258(1)(a), which provides:
258(1) In any proceedings under 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),(a) where 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…
[9] This provision, which survived a constitutional challenge in R. v. Whyte (1999), 1988 47 (SCC), 42 C.C.C. (3d) 97 (S.C.C.), was clearly engaged in this case. The presumption was not rebutted because the evidence proved Mr. Blair’s intention to set the vehicle in motion.
[10] In Boudreault, the Court addressed the question of what constitutes “care or control” within the meaning of s. 253(1). Writing for the majority, Fish J. held, at p. 228, that the concept contains the following elements: (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; and (3) in circumstances that create a realistic risk, as opposed to a mere possibility, of danger to persons or property. Framing the issue on appeal in that case, Fish J. said at p. 228:
Only the third element – risk of danger – is in issue on this appeal. The Crown submits that risk of danger is not an element of “care or control” under s. 253(1) of the Code. The trial judge found that it is. With respect, I agree with the trial judge.
[11] Boudreault was squarely focused on s. 253(1) of the Criminal Code. While s. 258(1)(a) was referred to in Fish J.’s reasons, the operation of the presumption was not in issue in that case because it had been rebutted by the accused. [^1]
[12] Boudreault establishes that, when the Crown seeks to establish actual or de facto “care or control”, it is required to prove a realistic risk of danger. It does not follow that, when the accused is unable to rebut the presumption, the Crown must still prove this element. Admittedly, there is language in Boudreault that suggests otherwise. As Fish J. held at p. 232:
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… 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.
[13] However, this passage must be considered in context. The majority in Boudreault was merely describing the operation of the presumption in the light of its holding in Whyte. There is nothing in the language of Boudreault that suggests that the Court modified or altered the operation of the presumption by requiring the Crown to go further and prove a realistic risk of danger when the presumption stands unrebutted. When the presumption is not rebutted, all elements of “care or control” (both the mens rea and actus reus components, as described in Smits, paras. 49 to 51) are deemed to exist.
[14] There are no provincial appellate court decisions that directly confirm this interpretation. However, the same conclusion was reached in the thoughtful decisions of Fragomeni J. in R. v. Brzozowski, [2013] O.J. No. 2483 (S.C.J.) and Oleskiw J. in R. v. Tharumakulasingam, 2014 ONCJ 362. See also the thorough analysis in R. v. MacKenzie (2013), 50 M.V.R. (6th) 1 (Alta. Q.B.), a post-Boudreault case, in which Browne J. held that the presumption in s. 258(1)(a) was left unchanged. As she said at para. 22:
If the presumption did not apply unless the Crown established a 'realistic risk of danger', the presumption would serve no purpose. The Crown would be required to prove that the accused was seated in the driver's seat of a vehicle, an intentional course of conduct associated with the vehicle, and that sitting in the driver's seat created a realistic risk of danger to persons or property. This is the same onus that the Crown would have to satisfy if the presumption did not exist. To interpret the presumption in this way would make it ineffective and essentially meaningless. [emphasis added]
I agree.
[15] In this case, Mr. Blair failed to rebut the presumption. The evidence incontrovertibly established his intention to drive. He made at least eight attempts to start the van. Therefore, he did not rebut the presumption and all aspects of s. 253(1) were deemed to exist. The learned trial judge erred in finding that, even though the presumption stood unrebutted, the Crown was required to prove a realistic risk of danger. That risk is embedded in the presumption. For this reason, the appeal should be allowed.
[16] In concluding these reasons, I make the following observations. For reasons not proven (though not difficult to figure out), Mr. Blair’s van ended up off road and pointed in the wrong direction, having taken out a fire hydrant. He tried to re-start the vehicle on many occasions. The trial judge found that the starter engine had been damaged, rendering the vehicle inoperable. With respect, this was speculative.[^2] There was no evidence as to why the van would not start. For all anyone knows, the starter engine (if that was the source of the problem) could have been temperamental, requiring multiple attempts before the van could be started. With someone so determined to start the van, as Mr. Blair was that night, and with no real evidence that the vehicle was inoperable, there was clearly a realistic risk of danger.
CONCLUSION
[17] The trial judge erred in the application of the presumption in s. 258(1)(a). All other elements of the offence having been established beyond all doubt, I allow the appeal and enter a conviction. The matter is remitted to the learned trial judge for the imposition of sentence (see s. 686(4)(a)(ii) of the Code, made applicable to Part XXVII by s. 822(1)).
[18] I wish to thank Mr. Nathanson for his diligence and his able submissions.
Trotter J.
Released: September 16, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
Appellant
– and –
GARFIELD BLAIR
Respondent
REASONS FOR JUDGMENT
Trotter J.
Released: September 16, 2014
[^1]: At p. 234, Fish J. said: “Parliament, in its wisdom, has until now seen fit to create only one reverse onus in the context of the care and control offence. It is found in s. 258 of the Code and is not in issue on this appeal.” This is confirmed in the dissenting reasons of Cromwell J. at p. 237.
[^2]: One of the officers who attended at the scene testified: “…I couldn’t tell you why it wasn’t starting.”