ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 0854/13
DATE: 20141003
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Matthew Topfer
Appellant
Andrew Midwood, for the Respondent
Nathan Baker, for the Appellant
HEARD: September 29, 2014
Gunsolus, J.
The Appeal
[1] The appellant, Matthew Topfer, appeals his conviction made by the judgment of His Honour, Justice L. E. Chester on November 27, 2013. Mr. Topfer was convicted of impaired care and control of a motor vehicle contrary to s. 253(1) (a) of the Criminal Code of Canada[^1].
[2] The appellant submits that the trial judge erred in two respects: 1) In using inadmissible statements in convicting Mr. Topfer; 2) In his application of the law regarding care or control of a motor vehicle.
[3] The Crown’s position is that the roadside statement of Mr. Topfer was indeed properly admitted, as Mr. Topfer was not detained physically or psychologically at the time he gave the statement. Rather, the Crown argues that the police were simply conducting a “well-being check” and, thus, Mr. Topfer was not detained. Further, the Crown argues that the trial judge did not err by misinterpreting and wrongly applying the ratio of the Boudreault[^2] case. Further, the Crown argues, as the appellant occupied the driver’s seat of his motor vehicle and was impaired, the presumption of care and control found in s. 258(1) (a) of the Criminal Code of Canada[^3] applied. Therefore, in order to avoid conviction, the appellant bears the burden of establishing (on a balance of probabilities) that he had no intention to drive and that there was no other “realistic risk of danger” in the circumstances of this case.
Statement of Facts
[4] The facts in this case are not disputed. On March 18, 2013, Mr. Topfer attended a soccer tournament and then a bar, known as The Junction. He consumed alcohol to the point of impairment. He had arranged a designated driver (Mr. Danny Robinson) and they were together at the bar until Mr. Topfer returned to his vehicle between 1:30 to 1:45 a.m. Mr. Topfer left the bar to wait in his motor vehicle until his designated driver was ready to drive him home.
[5] At approximately 2:38 a.m., Constable Mussington, of the O.P.P., was in the city and saw Mr. Topfer’s vehicle running and parked in a parking lot. Officer Mussington attended and found Mr. Topfer “covered up with a jacket over his upper body and his head occupying the driver’s seat”.
[6] Constable Mussington woke Mr. Topfer who said that he was “sleeping it off”. He was subsequently arrested.
[7] It was Mr. Topfer’s evidence that his original plan was for the designated driver to drive him home, and that he was in the vehicle simply to pass the time and wait for his designated driver. While Mr. Topfer’s original stated intention was to wait in the motor vehicle, smoke and listen to the radio, he fell asleep sitting in the passenger seat with the motor running.
Trial Judge’s Decision
[8] The trial judge found that the Crown was entitled to rely upon the presumptions set out in s. 258(1) (a) of the Criminal Code of Canada[^4] in that, Mr. Topfer was found in the driver’s seat. He found that Mr. Topfer had not rebutted this presumption, notwithstanding that the onus was upon him to do so. The trial judge went on further to find, in the alternative, that even had he found the presumption to have been rebutted, he still would have found him guilty on the basis that the Crown had proven all the elements were present that would present a realistic risk that he would set the vehicle in motion or change his intention to drive. Accordingly, a conviction was entered.
First Ground of Appeal
[9] In relation to the first ground of appeal concerning the pre-cautioned statement made by the appellant, I agree with the trial judge that Mr. Topfer was not detained. Rather, the investigating officer was merely conducting a “well-being check”, and there was no evidence, whatsoever, that he was either physically or substantially psychologically detained by the investigating officer. Mr. Baker, for the appellant, acknowledged that this was not his primary ground in pursuing the appeal.
Second Ground of Appeal
[10] This appeal really turns on whether, in acquitting the appellant, the trial judge properly interpreted and applied the low legal threshold for “care or control” outlined in R. v. Boudreault[^5].
[11] In Boudreault[^6], the Supreme Court concluded that the Crown is required to prove the existence of a risk of danger to persons or property. Specifically, Justice Fish held that s. 253(1) offences concerning the unlawful “care or control” of a motor vehicle require three elements: 1) An intentional course of conduct associated with the motor vehicle; 2) By a person whose ability to drive is impaired or whose blood alcohol exceeds the legal limit; and 3) In circumstances that “create a realistic risk as opposed to a remote possibility of danger to persons or property”. Justice Fish emphasized that while the necessary risk of danger had to be “realistic and not just theoretically possible” there is no need that the risk of danger be “probable or even serious or substantial”. This “threshold” he said was consistent with Parliament`s intention to “prevent a danger to public safety”, while not unnecessarily criminalizing “a broad range of benign and inconsequential conduct”.
[12] Justice Fish stated that normally, where an accused is found inebriated behind the wheel of a motor vehicle, with nothing to stop the accused from setting it in motion, either intentionally or accidentally, the accused will be convicted. In other words, the ability of the accused to set the vehicle in motion, while impaired or with an excessive blood alcohol concentration would create the required inherent risk of danger.
[13] Given that the required “realistic risk of danger” is a “low threshold” in order to avoid conviction, an accused would have to adduce “credible and reliable evidence” tending to prove that there was “no realistic risk of danger in the particular circumstances of the case”. Specifically, at paragraph 49 of Boudreault[^7], Justice Fish stated that:
An 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.” Similarly, the “use of the vehicle for a manifestly innocent purpose should not attract the stigma of a criminal conviction.”
[14] In Summary Conviction Appeals, necessary deference is to be accorded to the verdicts of trial courts, such that findings of fact may only be set aside if the reasons of the trial judge reveal the presence of palpable and overriding error.
[15] In the Ontario Court of Appeal decision of R. v. Smits[^8], the Court of Appeal cited the Vansickle[^9] decision with approval as an example of a situation where the prohibited risk of danger necessary to demonstrate “care or control” can be evident. At paragraph 63, the Court of Appeal cited with approval a non-exhautive list of factors from R. v. Szymanski[^10] which the court might examine “when engaging in a risk of danger analysis” on the basis of circumstantial evidence.
[16] Applying such factors to this case reveals the following:
a) Level of impairment. It was acknowledged by the appellant and the respondent in this matter that the level of the appellant’s impairment was low to mid-range. Accordingly, given the appellant’s impairment, there was a risk that he could make an unwise decision and change his mind about waiting for his designated driver and drive himself home.
b) The keys in the ignition. It is acknowledged that the keys were in the ignition. The evidence that was accepted by the trial judge was that the appellant was running the motor vehicle in order to keep warm. It is noted that the events surrounding this matter occurred in March of 2013. The trial judge appeared to accept this evidence.
c) The location of the vehicle was such that it was on its own in the parking lot of a grocery store. There was no evidence that the location of the vehicle in and of itself posed any danger to the public.
d) Whether the accused had reached his or her destination or if the accused was still required to travel to his or his destination. The evidence accepted by the trial judge was that the accused’s initial intention was to wait in the motor vehicle and not to drive. This evidence appears to have been accepted by the trial judge.
e) The accused’s disposition and attitude was acknowledged to be one of polite cooperation.
f) Whether the accused drove the vehicle to the location where it was found. The facts were such that the accused’s designated driver had driven the vehicle and parked it in the spot where the appellant was waiting for him.
g) Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving. The trial judge found that the accused did not drive the vehicle to the location where it was parked. He accepted that the appellant was sitting in the vehicle in order to smoke and listen to music. He found that his plan changed “slightly” when he fell asleep. It appears that the trial judge’s concern was that upon awakening, the appellant might have changed his mind and driven the vehicle home.
h) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit. The trial judge found that, indeed, the appellant had a plan which involved a designated driver. The trial judge accepted that plan as follows: “So if Mr. Topfer had a concrete plan at the beginning to go to his vehicle, have a cigarette and listen to music, it changed slightly because he decided to go to sleep and that he was going to wait however long it was necessary to wait for his designated driver to drive him home. That changed from just waiting to sleeping. So, it was not concrete and reliable. It changed or was altered. It was not watertight. By his own actions, and from what he has told the officer that he was “sleeping it off” he knew that he was impaired and was going to sleep it off. Well, he should have done that in the passenger seat or the back seat. So, those are the principles that flow from the case of Boudreault[^11].”
i) Whether the accused had a stated intention to resume driving. The trial judge appears to have accepted the appellant’s evidence that he did not intend to resume driving, rather, his concern appeared to revolve around the fact that he might awaken and change his mind, such that he would drive the vehicle from the parking lot.
j) Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption. Indeed, in this case, the appellant was seated in the driver’s seat of the motor vehicle. The evidence was that the seat was reclined and that he had pulled his coat over himself and was sleeping.
k) Whether the accused was wearing his or her seatbelt. There was no evidence that the accused was wearing his seatbelt.
l) Whether the accused failed to take advantage of alternative means of leaving the scene. At the time that the appellant was discovered by the investigating officer, the appellant was asleep, allegedly awaiting for his designated driver to arrive in order to drive him home.
m) Whether the accused had a cell phone with which to make other arrangements and failed to do so. This was not a factor, as the evidence was that the designated driver plan had been put in motion even before the appellant and his designated driver arrived at the bar.
[17] In summary, it is apparent that some of the foregoing Szymanski[^12] factors suggest that the appellant was in “care or control of his vehicle” and some do not. The Appellant was in the driver’s seat; his keys were in the ignition; he was impaired; the vehicle was in a parking lot accessible to the public; and he fell asleep or passed out while waiting for this designated driver. On the other hand, the appellant had a designated driver in place and, although, he fell asleep awaiting his driver, there was no evidence that he ever contemplated driving his vehicle. In fact, the trial judge found that the appellant intended to wait “as long as it took”. The appellant was polite and courteous and the effects of alcohol were apparently in the mild to mid-range. The location of his vehicle in and of itself did not create a risk of harm as it was in a vacant parking lot. He did not drive the vehicle to that parking lot in order to sleep off the effects of alcohol. His plan never changed. The only thing that did change was that he fell asleep while waiting for his designated driver who did, indeed, attend that night as was originally planned. The Appellant had reached his destination because there was no finding that he intended to leave the parking lot without his designated driver. His stated intention not to drive was accepted by the trial judge. The trial judge also accepted the fact that it was unlikely that he could put his motor vehicle into motion “accidently”. He would have had to purposefully put his foot on the brake in order to be able to then shift the vehicle into gear.
[18] According to Boudreault[^13] the necessary risk of danger need only be realistic as opposed to merely theoretically possible. The risk of danger need not be probable or even serious or substantial. Indeed, it is a very low threshold that is designed to prevent danger to public safety, while not rendering criminal conduct that is benign and inconsequential.
[19] In R. v. Smits[^14], the Ontario Court of Appeal noted that three risks of danger had been identified in cases where an intoxicated individual uses a motor vehicle for a non-driving purpose:
- The risk that the vehicle will be intentionally be set in motion.
In the case before me, the evidence, according to the trial judge, was such that it was highly unlikely that the vehicle could have been unintentionally set in motion.
- The risk that through negligence a stationary or inoperable vehicle may endanger the individual or others.
Again, the evidence in this case would indicate that the vehicle was parked on its own in an empty parking lot, such that there was little or no evidence of such risk.
- The risk that the individual, who has decided not to drive, will change his or her mind and drive while still impaired.
[20] This appeal deals with this third aspect of a risk of danger. The Crown has argued that there was a realistic risk that Mr. Topfer, who had decided not to drive, would change his mind and drive while impaired.
[21] In R. v. Smits[^15], at paragraph 60, the Court of Appeal noted that, in order to establish that an accused has created a risk of danger in change of mind cases, the Crown must demonstrate a risk that an accused, while impaired, would change his or her mind and put the vehicle in motion. That risk must be based on more than speculation or conjecture. Finding that any person whose ability to operate a motor vehicle is impaired to any degree might change his or her mind is not sufficient, rather the trier of fact must examine the facts and determine if there is an evidentiary foundation that such risk of danger exists.
[22] In Smits[^16], the court went on to note that whether a risk of danger arises on the facts is determined by assessing circumstantial evidence. The court noted, at paragraph 63, that in Szymanski[^17], at paragraph 93, Justice Dyrno provided an excellent, although non-exhaustive, list of factors a court might look at when engaging in a risk of danger analysis on the basis of circumstantial evidence. I have already reviewed the Szymanski[^18] factors above.
[23] Adapting the foregoing to the facts of this case, the question then becomes, did the conduct of the appellant in relation to his motor vehicle create a risk that the appellant, while impaired, would put the vehicle in motion and thereby create a danger?
[24] Pursuant to s. 686(1) (a)(i) and s. 822(1) of the Criminal Code[^19], my jurisdiction as a summary conviction appeal judge, to review the finding as to sufficiency of the evidence is limited. I am not entitled to re-try the case or to submit my own view of the evidence for that of the trial judge. I have no basis upon which to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence[^20].
[25] In my view, not only did the trial judge commit a palpable and overriding error requiring appellant interference, but he has also attached a stigma of a criminal conviction to the use of a motor vehicle for a manifestly innocent purpose.
[26] The trial judge accepted that Mr. Topfer had a concrete plan to go to his vehicle, have a cigarette and listen to music while waiting for his driver. He determined the appellant’s plan changed slightly because he decided to go sleep and that, he was going to wait however long it was necessary to wait, for his designated driver to drive him home. It appears that the trial judge decided that, because Mr. Topfer was not “just waiting”, but “sleeping” that his plan was no longer concrete. He further states that he should have waited in the passenger seat and or the backseat and not the driver’s seat, suggesting that these are the principles that flow from the case of Boudreault[^21].
[27] It would appear from the evidence that, this was a situation where, the use of the vehicle for a manifestly innocent purpose, has attracted the stigma of a criminal conviction which Justice Fish, in Boudreault[^22], clearly stated was not the law.
[28] As counsel for the appellant argued, the trial judge erred in his application of the law by stating that the appellant’s plan must be absolute. The mere fact of a “slight” change in how he decided to pass his time, from smoking and listening to music, to sleeping, demonstrates that he did not waiver from his plan to wait for his designated driver. The plan related to the passing of time and not to an intention to drive.
[29] The facts as found by the trial judge acknowledged that the designated driver did attend in order to drive the appellant home only to discover that the appellant and his vehicle had been taken by the police.
[30] Indeed, the facts in this case are similar to those in Beaudreault[^23]. The appellant was asleep in his vehicle awaiting the completion of his safety plan, which involved a designated driver. In this case, the trial judge accepted that a plan was in place, but appears to have speculated that the appellant might change his mind and make a decision to finally drive. As found in the Spracklin[^24] case, there must be some evidence which supports the suggestion that an accused person poses a danger that is realistic and not merely speculative.
[31] The Crown must demonstrate in a matter of this nature, a risk that an accused, while impaired, would change his or her mind and put the vehicle in motion. The risk must be based on more than speculation or conjecture. As stated in Her Majesty the Queen and Jody Smits[^25], at page 21, saying that, as the trial judge did here, that any person whose ability to operate a motor vehicle is impaired to a degree, might change his or her mind, is not sufficient.
[32] In this case, there was not ample circumstantial evidence to support the trial judge’s conclusion, in considering the factors set out by Justice Durno in Szymanski[^26], to find that the respondent would have decided to drive while still impaired. There was not a “constellation of factors” relied upon by the trial judge apart from simply determining that the appellant’s concrete plan “changed slightly” because he decided to go to sleep and, at the same time acknowledging that, he was going to wait however long it was necessary to wait, for his designated driver to drive him home.
Finding
[33] Based upon the foregoing, the conviction is quashed and a new trial is ordered.
Gunsolus, J.
Released: October 3, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Matthew Topfer
REASONS FOR JUDGMENT
Gunsolus, J.
Released: October 3, 2014
[^1]: R.S.C. 1985, c. C-46
[^2]: R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 (SCC)
[^3]: Supra, n. 1
[^4]: Supra, n. 1
[^5]: Supra, n. 2
[^6]: Supra, n. 2
[^7]: Supra, n. 2
[^8]: 2012 ONCA 524
[^9]: R. v. Vansickle [1990] O.J. NO. 3235 (C.A.), aff’g [1988] O.J. No. 2935 (Dist. Ct.)
[^10]: 2009 45328 (ON SC), 88 M.V.R. (5th) 182 (S.C.)
[^11]: Supra, n. 2
[^12]: Supra, n. 10
[^13]: Supra, n. 2
[^14]: Supra, n. 8
[^15]: Supra, n. 8
[^16]: Supra, n. 8
[^17]: Supra, n. 10
[^18]: Supra, n. 10
[^19]: Supra, n. 1
[^20]: R. v. Grosse, 1996 6643 (ON CA), [1996] 29 O.R. (3d) 785 (C.A.)
[^21]: Supra, n. 2
[^22]: Supra, n. 2
[^23]: Supra, n. 2
[^24]: R. v. Spracklin [2014] A.J. No. 172
[^25]: Supra, n. 8
[^26]: Supra, n. 10