COURT FILE NO.: 96/13

DATE: 20140915

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

JAFFAR BALOGUN-JUBRIL

Megan Petrie,

for the Crown, appellant

Michael W. Caroline,

for the accused, respondent

HEARD: May 13, 2014

K.L. Campbell J:

I

Introduction

[1] The respondent, Jaffar Balogun-Jubril, was tried by Madam Justice C. Mocha of the Ontario Court of Justice on charges of having the “care or control” of a motor vehicle while: (1) his ability to operate a motor vehicle was impaired by alcohol; and (2) while he had a blood-alcohol concentration in excess of 80 mgs. of alcohol in 100 mls. of blood. These offences were alleged to have taken place in Toronto, in the early morning hours of July 29, 2012, in a live lane of traffic on a highway exit ramp. The trial judge acquitted the respondent of both of these charges on the basis that he was not in “care or control” of his inoperable vehicle.

[2] The Crown appeals against this decision. The appeal turns on whether, in acquitting the respondent, the trial judge properly interpreted and applied the low legal threshold for “care or control” outlined most recently by the Supreme Court of Canada in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157. The Crown contends that the trial judge erred in concluding that, in all of the circumstances of this case, there was no “realistic risk of danger” to persons or property. The Crown argues that, given the presence of a realistic risk of danger, the trial judge should have concluded that the respondent was in “care or control” of his vehicle and was therefore guilty of these offences. The respondent, on the other hand, argues that the trial judge did not err in any way in her analysis of this case, or in her critical conclusion that he was not in “care or control” of his motor vehicle.

[3] In my view, for the reasons that follow, the decision of the trial judge must be reversed. Notwithstanding the deference properly owed to the decision of the trial judge on this issue, in my opinion, Mocha J. committed a palpable and overriding error in concluding that, when the police arrived on the scene, there was no realistic risk of danger to persons or property. As the realistic risk of danger to public safety was, in my view, clearly evident in all of the circumstances, the respondent was indeed in “care or control” of his motor vehicle and must, accordingly, be found guilty of these offences.

II

The Background Facts

A. The Police Evidence

[4] At approximately 5:05 a.m. on July 29, 2012, Csts. John Desousa and Hermano Clerigo of the Ontario Provincial Police (OPP) were dispatched to deal with a male who was sleeping behind the wheel of his “disabled” motor vehicle on the exit ramp leading from Highway 409 (westbound) to Martin Grove Road. A radio call had been placed to the OPP from the driver of an Ontario Ministry of Transportation (MTO) vehicle that was, at that time, already on the scene. The police officers arrived at the location at approximately 5:15 or 5:20 a.m. Cst. Desousa took the investigative lead as the more experienced officer.

[5] Upon their arrival, the officers observed the respondent’s silver Nissan Altima motor vehicle parked in the middle of the off-ramp, in a live lane of traffic, approximately 20-30 meters before the T-intersection where the ramp lanes connected to Martin Grove Road. According to the evidence, the off-ramp leading from the westbound Highway 409 had four lanes, all heading in the same direction. Two of these ramp lanes were for traffic turning left on Martin Grove Road, and the other two ramp lanes were for traffic turning right on Martin Grove Road. The respondent’s vehicle was stopped in “lane number two,” the second lane of left-turn traffic. Accordingly, the respondent’s vehicle was stopped in the second of the four lanes of live traffic, with other lanes of live traffic proceeding on both sides. As Cst. Desousa explained, this was not a “good place” to stop a vehicle as it was on the “driven portion of the highway [ramp].”

[6] When the police officers arrived, the MTO truck and a fire truck were parked directly behind the respondent’s vehicle. The respondent was asleep in the driver’s seat of his vehicle, which was reclined. The doors of the respondent’s vehicle were open and paramedics, who were already on the scene, were talking to the respondent and trying to rouse him. They were having a “hard time” waking him up.

[7] With respect to the respondent’s vehicle, the police officers observed that the keys were still in the ignition, but the engine was off and the transmission of the vehicle was in park. There was no apparent physical damage to the vehicle. The respondent’s wallet was on the passenger seat of the vehicle, and it contained the respondent’s driver’s licence, identifying him as 23-year-old Jaffar Balogun-Jubril.

[8] When the respondent first woke up, he was “very groggy and sleepy” and he was unable to speak. The officers watched as the respondent tried to speak. He moved his lips and his hands, but there were no sounds being emitted from his mouth. The officers assumed that the respondent must have been in a “deep sleep.” Once he seemed able to speak, Cst. Desousa asked the respondent: “Sir, do you know where you are?” The respondent did not answer this question. However, when he was next asked: “Have you had any alcohol today?” the respondent replied “yeah.” The respondent replied negatively, however, to the further inquiry as to whether he had consumed any drugs that day. During this exchange, Cst. Desousa detected an odour of alcohol on the respondent’s breath.

[9] The respondent was then arrested and advised of his right to counsel. Cst. Desousa also made a demand that the respondent provide samples of his breath suitable for Intoxilyzer analysis. After arrangements were made for a tow truck to attend at the scene and have the respondent’s vehicle removed from the off-ramp, the respondent was taken to the OPP detachment near the intersection of Highway 401 and Keele Street in Toronto. They left the scene at approximately 5:31 a.m., and arrived at the police detachment at approximately 5:44 a.m. As he was lodging the respondent in the cells, Cst. Desousa noticed that the respondent was “slurring his speech” and “holding himself up against the cell wall.” By 6:17 a.m. the respondent had consulted privately with his lawyer, and was delivered to the “breath room,” where he was placed in the custody of Cst. Clerigo, a qualified technician.

[10] At approximately 7:40 a.m. Cst. Clerigo returned the respondent to the custody of Cst. Desousa. Thereafter, the respondent was served with a Certificate of a Qualified Technician, recording that the respondent had provided two suitable samples of his breath into an Intoxilyzer 8000C, an approved instrument. The Certificate also recorded that the respondent had 150 and 160 mgs. of alcohol per 100 mls. of blood at 6:41 a.m. and 7:27 a.m. respectively. Cst. Clerigo testified that the more precise (non-truncated) Intoxilyzer readings were 153 and 163 mgs. of alcohol per 100 mls. of blood respectively at those times.

[11] Cst. Clerigo also testified that, while he was preparing for the second breath sample, the respondent fell asleep leaning against the wall in the breath room. According to Cst. Clerigo, during his interactions with the respondent, he could smell a strong odour of alcohol on the respondent’s breath, and he had a hard time understanding the respondent because his speech was “very mumbled.”

[12] The respondent was released from custody at approximately 8:50 a.m. on a promise to appear. Prior to his release, Cst. Desousa had a brief conversation with the respondent, during which the respondent advised him that his vehicle was “dead,” that it “wouldn’t move,” and that there had been “an oil leak on the ground.” When the respondent was removed from his cell, Cst. Desousa observed that he had “thrown up in the toilet in the cell area.”

[13] In his testimony, Cst. Desousa expressed the opinion that, based upon his observations of the respondent, he thought that the respondent’s ability to operate a motor vehicle was impaired by alcohol. Similarly, during his evidence, Cst. Clerigo expressed the view that the respondent was intoxicated and was “in no condition to drive” a motor vehicle.

[14] The report of Inger Buyra, a forensic toxicologist with the Centre of Forensic Sciences, admitted pursuant to s. 657.3 of the Criminal Code, explained that, based upon the Intoxilyzer results of the respondent’s breath samples, his “projected” blood-alcohol concentration between approximately 4:13 and 5:13 a.m. was 150 to 200 mgs. of alcohol in 100 mls. of blood. This report also indicated that, in the expert scientific opinion of the forensic toxicologist, “an individual would be impaired in their ability to operate a motor vehicle” with a blood-alcohol concentration within this projected range.

B. The Defence Evidence

[15] The respondent testified that in the early morning hours of July 29, 2012, he was driving westbound on Highway 401, but the highway was closed and all of the traffic was being routed to Highway 409 and the ramp towards Martin Grove Road. The respondent testified that the two ramp lanes on the left were closed, and he was travelling in the left lane of the two remaining open ramp lanes.

[16] According to the respondent, all of a sudden, at approximately 2:45 a.m., he heard a sound from his engine. His vehicle began to slow down, and then just stopped. The respondent did nothing to stop the vehicle. He did not apply the brakes. The vehicle simply stopped operating on its own. It came to a complete halt within five or ten seconds. At that point, the vehicle was still positioned on the “main road.” The respondent tried to start the vehicle again by turning the ignition key, but the vehicle would not start, even though there was gas in the tank. The respondent then turned on the hazard lights of his vehicle, opened the hood, and examined the engine compartment. The respondent is not a mechanic, but he noticed that there was a lot of oil leaking onto the ground under the vehicle.

[17] When the respondent got back inside the vehicle, he tried to start it again, but the engine would still not start. The respondent testified that he did not know what he would have done if the vehicle had started again. He would not agree with the Crown’s suggestion that he would have continued to drive the vehicle if he had been able to get it started again.

[18] When he realized that he could not get the vehicle started again, the respondent phoned a friend and asked him to arrange for a tow truck to attend at the scene. The respondent’s phone showed that he placed this call to his friend at 2:49 a.m. His friend called back a few minutes later and told the respondent that a tow truck was on the way. According to the respondent, he was still waiting for the tow truck when the police arrived on the scene.

[19] In cross-examination, the respondent testified that when he first started talking to Cst. Desousa, the officer asked him “what’s wrong with the car?” and he told the officer that his vehicle was “leaking engine oil.”

[20] In cross-examination, the respondent testified that while he saw other vehicles passing by his parked vehicle, “nobody pulled over” to offer him any assistance. More particularly, the respondent testified that he did not see “any ambulance or fire” personnel, and he never saw “the tow truck guy.” The only individuals the respondent saw at the scene were the two police officers.

[21] The respondent testified that, a week later, he retrieved his vehicle from a storage facility. It cost him approximately $1,300 to secure the vehicle as a result of the towing and storage costs that had been incurred. The vehicle was still “not drivable,” so he had it towed home. After it was dropped off in his driveway, the respondent still could not get the vehicle started. In the result, the respondent had the vehicle towed to his mechanic’s shop. After examining the vehicle, the respondent’s mechanic provided him with a written estimate for the necessary repairs, dated August 8, 2012, indicating that the engine was “seized” as a result of “no oil,” and that the vehicle needed a “new engine” at an estimated cost of $3,164. The respondent could not afford to pay for this repair, however, and the vehicle remained at the mechanic’s shop, unrepaired, until the respondent had it towed back home to his driveway.

[22] In cross-examination, the respondent agreed that he had spent the evening at a friend’s house, where he had consumed a number of mixed alcoholic drinks containing brandy. The respondent could not recall how many drinks he had consumed. He testified that he was sure that he had a number of drinks before midnight, but he could not recall if he had any drinks after midnight. The respondent did not agree that he was drunk or intoxicated, but he agreed that he had eventually fallen asleep in his vehicle while waiting for the tow truck to arrive. He thought that he had been waiting in his vehicle for a “couple of hours” before anyone arrived. The respondent testified that he thought it was safer to wait in his vehicle than to wait on the side of the highway.

[23] Mr. Fatai Olokodana, the licensed automobile mechanic who examined the respondent’s Nissan Altima, confirmed in his trial testimony that the respondent’s vehicle had been towed into his workshop, and he determined that the engine of the vehicle was “seized” and “broken.” There was a piston coming out of the side of the cracked engine block and there was no oil inside the engine. He concluded that the vehicle needed a new engine.

III

The Positions of the Parties at Trial

Regarding “Care or Control”

[24] At trial, defence counsel argued that because the vehicle was “clearly inoperable” due to the seized engine, the respondent could not be convicted of either of the alleged offences as he was simply not in “care or control” of the vehicle. According to defence counsel, as the vehicle was mechanically incapable of being operated by the respondent, it created no realistic risk of danger. In advancing this argument, defence counsel also relied upon the evidence that, at some point, an MTO truck was parked behind the respondent’s vehicle, so that it was safe and other motorists would be alerted to the respondent’s disabled vehicle and be able to drive around it.

[25] At trial, the Crown argued that even if the respondent’s vehicle was inoperable as a result of a seized engine, the respondent was still guilty of the alleged offences as he remained in “care or control” of the vehicle in circumstances that created a realistic risk of danger to persons or property. In this regard, the Crown noted that the vehicle remained parked in a lane of live traffic for hours, while the respondent did nothing but go to sleep in the vehicle. The Crown argued that the respondent should have done far more to try to reduce the risk to the public created by the position of his vehicle. The Crown suggested that the respondent should have called the 911 emergency number, repeatedly followed-up with the summoned tow truck operator, tried to flag down passing motorists for help, tried to push the vehicle off the roadway, or at least exited the vehicle. In advancing this argument, the Crown also relied upon the evidence of Cst. Desousa that a live lane of traffic was a “dangerous location” to leave a vehicle, and that others had tried to reduce the risk of danger by parking a truck behind the respondent’s vehicle. The Crown argued that the arrival of the MTO truck behind the respondent’s vehicle did not let the respondent “off the hook” for creating the hazard in the first place and allowing it to continue. Further, the Crown argued that the arrival of the MTO truck did not entirely eliminate the danger, but only made the existing hazard more visible to others.

IV

The Reasons for Judgment of the Trial Judge

[26] After hearing the submissions of counsel, Mocha J. delivered lengthy oral reasons for judgment. The trial judge thoroughly reviewed the evidence that had been adduced by the parties. During the course of these reasons for judgment, the trial judge drew a number of factual conclusions.

[27] The trial judge accepted the evidence of the police officers as to their observations of the indicia of impairment exhibited by the respondent and his blood-alcohol concentration readings that were obtained by the Intoxilyzer. Further, the trial judge accepted that, at the time of the police officers’ dealings with the respondent, his ability to operate a motor vehicle was impaired by alcohol. Indeed, the trial judge concluded that, from the observations of the police officers, not only was the respondent drunk, “he seemed to be extremely drunk.” It was apparent that the respondent “had been drinking and driving” earlier that night. The trial judge stated that there was really “no issue” that the respondent was “impaired” and that his blood-alcohol level was “over 80.”

[28] The trial judge also accepted the respondent’s evidence as to the steps he took when his vehicle came to a sudden stop on the exit ramp, namely, that he turned on the vehicle hazard lights, checked the gas gauge for fuel, opened the hood of the vehicle (and saw the oil leak), unsuccessfully tried to restart the vehicle, and then called his friend and asked him to summon a tow truck (which he believed was on the way).

[29] The trial judge concluded that the respondent’s motor vehicle was, in fact, “inoperable” and simply did not work at the time the police arrested the respondent at the roadside. As the trial judge noted, the evidence of the respondent in this regard was consistent with the expert evidence from the mechanic as to how a car would behave when its engine has seized. More specifically, Mocha J. accepted the fact that “the engine became inoperable” at 2:49 a.m., and that “from that point on that motor vehicle was incapable of being moved and [was] inoperable in that sense, incapable of being moved by the engine.”

[30] As to whether the respondent was in “care or control” of his vehicle when he was impaired and “over 80,” the trial judge noted that the presence of the MTO truck behind the respondent’s vehicle, permitting passing traffic to see the respondent’s vehicle and drive safely around it, was something that “would have reduced any risk of danger.” The trial judge also noted that the respondent had turned on his hazard “emergency signal.” The trial judge indicated that these circumstances were all relevant to “whether or not there was an intentional course of conduct” on the part of the respondent “that created a realistic risk of danger.” The trial judge found that, when the police arrived on the scene, it was “just the opposite.”

[31] In her reasons for judgment, the trial judge reviewed some of the judicial authorities on the topic of “care or control,” including the Supreme Court of Canada decision in Boudreault. Mocha J. indicated that there was still some uncertainty in the law regarding “an inoperable motor vehicle,” which was “left up in the air” by the decision in Boudreault. More particularly, after quoting from Boudreault, at paras. 48-49, Mocha J. stated that the Supreme Court seemed to be saying that if the accused adduced evidence that “the motor vehicle was inoperable,” or that because of the vehicles “location or placement” there was no reasonably conceivable circumstance that would pose a risk of danger, this was “sufficient” to escape conviction. However, the trial judge acknowledged that the law remained “unclear” in this regard. While the court in Boudreault seemed to conclude, at para. 49, that evidence of “an inoperable vehicle” would “appear to lead to an acquittal,” it also indicated, at para. 87, that beyond R. v. Saunders, [1967] S.C.R. 284, the court had not resolved whether “care or control” can be established where the only acts of the accused in relation to the vehicle, that may potentially pose some risk of danger, occurred while the vehicle was inoperable.[^1]

[32] Ultimately, Mocha J. drew the following conclusion:

… we are dealing with an inoperable motor vehicle that there were, I am finding, no actions done on the part of the [respondent] that caused a risk of that motor vehicle [being] put into motion or where it was going to cause a danger. In fact, the only actions really taken on the part of the [respondent]: phoning the tow truck, putting on his emergency signals, that those actions reduced any risk that may have been posed as a result of the inoperable motor vehicle sitting there.

It seems to me that the case of Boudreault leaves open the possibility, for example, of someone who is in an inoperable motor vehicle but for example releases the parking brake, puts it in drive and is trying to roll the vehicle or some situation such as that. That is not what we are dealing with in this particular case. I accept that the [respondent] was simply sitting in an inoperable motor vehicle waiting for a tow truck to arrive.

In the circumstances and the fact situation that I have found before me I find that care or control has not been established beyond a reasonable doubt and that consequently the [respondent] will be found not guilty of both counts one and two.

V

Analysis

A. The Governing Legal Principles – Proving “Care or Control” of a Vehicle

1. The Supreme Court of Canada Decision in R. v. Boudreault

[33] The governing legal principles surrounding proof of an individual being in “care or control” of a motor vehicle were most recently discussed by the Supreme Court of Canada in 2012 in Boudreault. After becoming intoxicated, the accused in that case was asked to leave the apartment of a woman he had met earlier that night in a bar. She summoned him a taxi – twice. The accused went outside to await the arrival of the taxi. It was a bitterly cold and windy night, and the accused decided to wait for the taxi in his truck. He started the engine of the truck and turned on the heater. He did not attempt to set the vehicle in motion. Later, when the taxi driver arrived to find the manifestly inebriated accused asleep inside his truck, he summoned the police. After breathalyzer tests revealed that the accused had blood-alcohol concentrations of 250 and 242 mgs. of alcohol per 100 mls. of blood, the police charged the accused with having the “care or control” of a vehicle while his ability to operate the vehicle was impaired by alcohol, and while he had a blood-alcohol concentration in excess of the legal limit.

[34] The trial judge, after concluding that there was no risk that the accused would put the vehicle in motion, acquitted the accused on both charges. The Quebec Court of Appeal set aside these acquittals and entered convictions. On further appeal to the Supreme Court of Canada, the acquittals were restored. The majority of the Supreme Court, in a judgment delivered by Fish J., concluded that the trial judge had not erred in relation to any question of law alone in finding that the accused was not in “care or control” of the vehicle.

[35] Fish J. held, at paras. 25-32, that the trial judge had not legally erred in concluding that “risk of danger” was an essential element of “care or control” under s. 253(1) of the Criminal Code. Prior to Boudreault, there had been some controversy over whether these offences required proof of a risk of danger. In Boudreault, the Supreme Court resolved that controversy, concluding that the Crown was required to prove the existence of such a risk of danger – more particularly, a realistic risk of danger to persons or property. Indeed, Fish J. expressed his agreement with the view that this concept of “danger” provided the “unifying thread” which “promotes certainty in the law while balancing the rights of the accused with the objectives of the legislation.” See also R. v. Toews, [1985] 2 S.C.R. 119, at p. 126; R. v. Penno, [1990] 2 S.C.R. 865, at p. 877; R. v. Wren (2000), 47 O.R. (3d) 544, 144 C.C.C. (3d) 374 (C.A.), at para. 16, leave refused, [2000] 2 S.C.R. xii; R. v. Decker, 2002 NFCA 9, 209 Nfld. & P.E.I.R. 44, at paras. 25-31, leave refused: [2002] 4 S.C.R. vii; R. v. Burbella, 2002 MBCA 105, 166 Man.R. (2d) 199, at para. 22; R. v. Shuparski, 2003 SKCA 22, [2003] 6 W.W.R. 428, at paras. 46-47, leave refused: [2003] 2 S.C.R. x; R. v. Mallery, 2008 NBCA 18, 327 N.B.R. (2d) 130, at para. 4; R. v. Smits, 2012 ONCA 524, 294 O.A.C. 355, at paras. 29, 51-66.

[36] More particularly, Fish J. held, at paras. 9 and 33-39, that s. 253(1) offences concerning the unlawful “care or control” of a motor vehicle require three elements, namely: (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.”

[37] Fish J. emphasized, at paras. 34-35, that while the necessary risk of danger had to be “realistic and not just theoretically possible,” there was no need that the risk of danger “be probable, or even serious or substantial.” This “low threshold” was said to be consistent with Parliament’s intention to “prevent a danger to public safety,” while not unnecessarily criminalizing “a broad range of benign and inconsequential conduct.”

[38] As to the kinds of circumstances in which a realistic risk of danger might arise, Fish J. noted, at paras. 41-42, that a “realistic risk that the motor vehicle will be set in motion obviously constitutes a realistic risk of danger.” Accordingly, an intention on the part of the accused to set the vehicle in motion, while not itself an element of the offence, certainly suffices to create the risk of danger required for the offence. Fish J. also concluded, however, that even in the absence of a contemporaneous intention to drive, a realistic risk of danger may still arise in at least three circumstances, namely: (1) where an inebriated person, who does not initially intend to drive, changes his or her mind and, while still impaired, proceeds to intentionally set the vehicle in motion; (2) where an inebriated person behind the wheel may unintentionally set the vehicle in motion; and (3) where a stationary or inoperable vehicle, through negligence, bad judgment or otherwise, endangers persons or property.

[39] As to the practical impact of this conclusion, Fish J. explained, at paras. 12-13 and 48, 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. 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. Given that the required “realistic risk of danger” is a “low threshold,” in order to avoid conviction, the accused would have to, practically speaking, as a matter of tactical necessity, adduce “credible and reliable evidence” tending to prove that there was “no realistic risk of danger in the particular circumstances of the case.” Importantly, in this latter regard, Fish J. stated, at para. 49, that an accused may escape conviction by, for example, 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.”

2. The “Care or Control” Jurisprudence From Ontario

[40] The decision in Boudreault, adopting the “low threshold” of a “realistic risk of danger” as an essential element of “care or control” charges, did not change the law in Ontario. Rather, the decision in Boudreault confirmed the validity of the legal position regarding the meaning of the phrase “care or control” that had been employed in the courts of Ontario for many years. See also R. v. Poncelet, 2014 SKCA 30, 433 Sask.R. 237, at paras. 42-44; R. v. Steuart, 2014 MBCA 7, 303 Man.R. (2d) 87, at paras. 38-52. Accordingly, that existing jurisprudence remains helpful in understanding the application of the “realistic risk of danger” standard. More particularly, in relation to inoperable vehicles, there are a number of important decisions to consider.

[41] First, in R. v. Vansickle, [1990] O.J. No. 3235, affirming, [1988] O.J. No. 2935 (Dist.Ct.), the accused was charged with having the “care or control” of a motor vehicle while his ability to operate the vehicle was impaired by alcohol. The accused had been driving his truck home at night in the company of a friend. They were caught in a snow storm with “white-out” conditions. At one point, the vehicle left the highway. They managed to push the truck back onto the roadway, but in so doing they burned out the clutch of the truck, rendering it immobile under its own power. The two men then decided to wait out the snow storm in the truck, with the accused in the driver’s seat, listening to music and drinking beer. When the police arrived on the scene, the accused’s truck was straddling the center line of the highway.

[42] The trial judge acquitted the accused on the basis that he was not in “care or control” of the truck as it could not, due to its mechanical problems with the clutch, be set in motion, even accidentally. Subsequently, on appeal by the Crown, the summary conviction appeal court judge set aside the acquittal and convicted the accused. The court held that the necessary risk of danger was present in the factual circumstances of the case notwithstanding the inoperable nature of the truck. More particularly, the court concluded, at para. 6, that the necessary risk of danger was created by the fact that the accused, in his alcohol-impaired condition, might have accidentally switched off the vehicle headlights and, in the dark, his vehicle, which was stationary in the middle of the roadway, might have posed a “grave danger to the travelling public.” In a brief endorsement, the Court of Appeal confirmed this decision, holding that the summary conviction appeal court judge had correctly determined that the “danger involved in the case” and the accused’s “control of this immobile vehicle” was a “danger the section was designed to prevent.” The Court of Appeal also concluded that the accused was “clearly in care and control of the vehicle” and, by his actions, created a situation of danger, or permitted “a situation of danger to persist.”

[43] In R. v. Wren, the accused was charged with having the “care or control” of a motor vehicle while his ability to operate the vehicle was impaired by alcohol, and while he had a blood-alcohol concentration beyond the legal limit. The accused was discovered by the police at approximately 3:15 a.m. in the driver’s seat of his motor vehicle, which was stranded in a deep ditch at the side of a county road. The keys were in the ignition. He had a blood-alcohol concentration more than twice the legal limit. On his way home from a party, the accused had fallen asleep and driven his vehicle into the ditch. The airbag of the vehicle had deployed. While the accused had tried, with the assistance of a nearby farmer, to extricate his vehicle from the ditch, these efforts had not only been unsuccessful, but they had served to extensively damage the vehicle, rendering it immobile without the assistance of a tow truck. Indeed, the farmer told the accused that he would call for a tow truck, and later confirmed that a tow truck had been called. The accused then returned to his vehicle and, eventually, took refuge inside to avoid the cold of the night and to wait for the tow truck.

[44] The trial judge acquitted the accused, and both the summary conviction appeal court and the Court of Appeal for Ontario dismissed Crown appeals against this decision. Feldman J.A., delivering the judgment of the Court of Appeal, confirmed, at paras. 15-16, that to establish “care or control” of a motor vehicle, the conduct of the accused in relation to the vehicle must be such as to create “a risk of danger, whether from putting the car in motion or in some other way.” In holding that putting the vehicle in motion was but an “example” of how the necessary “risk of danger” might be established by reason of the combination of an impaired person and a motor vehicle, Feldman J.A. cited the decision in Vansickle with approval. See also R. v. Szymanski, [2009] O.J. No. 3623, 88 M.V.R. (5th) 182, at para. 81.

[45] Importantly, in Wren the Crown sought to rely upon Vansickle on the appeal, only as an alternative argument, suggesting that the accused’s vehicle, even being stuck in the ditch and immobile, may still have represented a potential danger to passing motorists and to the accused himself. In rejecting this argument, Feldman J.A., at paras. 23 and 27, concluded that this case was not a situation where the trial judge had erred in failing to consider the “broader range of potential danger beyond putting the vehicle in motion as described in Vansickle,” as there was “no factual basis for applying that case,” especially as this was not the case that was “presented to the trial court” by the Crown. As Feldman J.A. noted, at para. 30, as the case was presented to the trial judge, the “only potential danger” that was suggested was the danger of “putting the vehicle in motion.”

[46] In R. v. Ahunu-Kumi, [2006] O.J. No. 2285 (S.C.J.) the accused was convicted of having the “care or control” of a motor vehicle while his ability to operate the vehicle was impaired by alcohol, and while he had a blood-alcohol concentration beyond the legal limit. The accused was found by the police seated in the driver’s seat of his motor vehicle, parked in a lane of traffic just outside a restaurant where he had earlier been drinking. According to the accused, he only intended to drive the vehicle once he was no longer impaired. Moreover, the accused maintained that problems with the fuel pump of the vehicle rendered the vehicle inoperable. In dismissing the appeal against conviction, Ducharme J., applying the decision in Wren, explained, at para. 25, that an accused “will have care or control of an inoperable vehicle if that vehicle in the hands of an impaired person has the potential to create some danger.” Ducharme J. concluded, at para. 9:

On the facts of this case, there can be no question that the positioning of the vehicle in blocking the lane that it was in did create a danger. Moreover, unlike the situation in Wren, this was a matter that was canvassed in the evidence so there would be no unfairness in supporting the conviction for care or control on that basis. Therefore the first ground of appeal must fail.

[47] In R. v. Smits, at para. 53, the Court of Appeal for Ontario again cited the decision in Vansickle with approval as an example of a situation where the prohibited risk of danger necessary to demonstrate “care or control” can be evident “through negligence” in relation to a “stationary or inoperable vehicle.” In addition, in Smits, at para. 63, the Court of Appeal cited, with approval, the following “excellent,” non-exhaustive list of factors, from R. v. Szymanski, at para. 93, which the court might examine “when engaging in a risk of danger analysis” on the basis of circumstantial evidence:

(a) The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive;

(b) Whether the keys were in the ignition or readily available to be placed in the ignition;

(c) Whether the vehicle was running;

(d) The location of the vehicle;

(e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination;

(f) The accused’s disposition and attitude;

(g) Whether the accused drove the vehicle to the location where it was found;

(h) Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving;

(i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit;

(j) Whether the accused had a stated intention to resume driving;

(k) Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption;

(l) Whether the accused was wearing his or her seatbelt;

(m) Whether the accused failed to take advantage of alternate means of leaving the scene;

(n) Whether the accused had a cell phone with which to make other arrangements and failed to do so.

B. The Governing Scope of Appellate Review in the Present Case

[48] In Boudreault, the Supreme Court of Canada confirmed, at paras. 11-16, that in any particular case, whether the course of conduct associated with a motor vehicle, by an individual whose ability to operate a motor vehicle is impaired or whose blood-alcohol level exceeds the legal limit, creates a “realistic risk of danger” to public safety, is a “matter of fact” to be determined by a trial judge, applying the correct legal test, and considering all of the relevant factors. See also R. v. Toews, at p. 126; R. v. Lockerby, 1999 NSCA 122, 180 N.S.R. (2d) 115, at para. 13; R. v. Smits, at para. 61; R. v. Szymanski, at para. 93; R. v. Ross, 2007 ONCJ 59, 44 M.V.R. (5th) 275, at para. 14. Of course, in Boudreault, the Crown had elected to proceed by indictment, and the Crown’s appeal was limited, by s. 676(1)(a) of the Criminal Code, to grounds involving a “question of law alone.”

[49] In summary conviction matters like the present case, however, the Crown may appeal against any order that “dismisses an information,” pursuant to s. 813(b)(i) of the Criminal Code, upon questions of law alone, questions of mixed fact and law, or even questions of pure fact. See R. v. Century 21 Ramos Realty Inc. and Ramos (1987), 58 O.R. (2d) 737 (C.A.), at pp. 768-769; R. v. Multitech Warehouse (Manitoba) Direct Inc. (1995), 102 Man.R. (2d) 141 (C.A.), at p. 149; R. v. Ash (1990), 81 Nfld. & P.E.I.R. 1 (Nfld.C.A.), at para. 51; R. v. Medicine Hat Greenhouses Ltd. and German (1981), 1981 ABCA 114, 26 A.R. 617 (C.A.), at para. 30; R. v. Labadie, 2011 ONCA 227, 105 O.R. (3d) 98, at paras. 49-51. Nevertheless, this broad right of appeal by the Crown does not permit summary conviction appeal courts to retry the case and simply substitute their own findings of fact for those made by the trial judge. Rather, to reflect the necessary deference to be accorded to the verdicts of trial courts, findings of fact may only be set aside if the reasons of the trial judge reveal the presence of “palpable and overriding error.” See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-37; R. v. Tiffin, 2008 ONCA 306, 232 C.C.C. (3d) 303, at paras. 22, 36, 41-43; R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at paras. 71-72; R. v. Carrano, 2011 ONSC 7718, [2011] O.J. No. 603, at para. 4; R. v. Beharry, 2014 ONSC 848, [2014] O.J. No. 603, at paras. 15-19; R. v. David, 2014 ONSC 5049, at paras. 14-15.

C. The Present Case – Applying the Governing Legal Principles

[50] As I have already indicated, I am satisfied that the trial judge committed a palpable and overriding factual error in concluding that, when the police arrived on the scene in the early morning hours of July 29, 2012, there was no realistic risk of danger to persons or property. I am also satisfied that this error requires the reversal of the verdict reached at trial. Giving the decision of Mocha J. the appropriate degree of deference on this factual issue, I am driven to the conclusion that the Crown clearly met the “low threshold” of establishing that the conduct of the accused, in relation to his motor vehicle, created a realistic risk of danger to public safety, justifying his conviction for having the “care or control” of a motor vehicle in contravention of s. 253(1) of the Criminal Code.

[51] This compelling factual conclusion flows from a consideration of the various Szymanski factors. More particularly:

(a) High Level of Impairment: According to the uncontested report of the forensic toxicologist, the respondent’s Intoxilyzer breath sample readings indicated that, between approximately 4:13 and 5:13 a.m., the respondent had a blood-alcohol concentration of 150 to 200 mgs. of alcohol in 100 mls. of blood. This is far in excess of the legal limit of 80 mgs. The undisputed expert opinion of the forensic toxicologist was that this blood-alcohol concentration would result in the individual having an impaired ability to operate a motor vehicle. This high level of alcohol impairment would render the conduct of the respondent risky and unpredictable, and increase the likelihood he would exercise bad judgment.

(b) Keys in the Ignition: When the police arrived on the scene they observed that the keys to the respondent’s vehicle were in the ignition. The respondent admitted that, after his vehicle had stopped on the exit ramp, he had tried to restart the vehicle.

(c) Vehicle Engine Not Running: When the police arrived on the scene, the engine of the respondent’s vehicle was not running, and the transmission of the vehicle was in “park.” Indeed, since the vehicle stopped running at approximately 2:49 a.m., the engine of the respondent’s vehicle was mechanically incapable of running.

(d) Vehicle Located in a Live Lane of Traffic: For a period of close to two-and-a-half hours (i.e. from 2:49 a.m., when the vehicle stopped running, to 5:15 a.m., when the police arrived on the scene), the respondent’s vehicle remained parked in a lane of live traffic on a ramp leading off Highway 409. This unfortunate location of the respondent’s vehicle, over such an extended period of time, could only have caused a realistic risk of danger to other motorists using the ramp and to the respondent himself, who remained inside the vehicle while it was stationary in this lane of traffic.

(e) Respondent Had Not Reached His Destination: When the respondent’s vehicle became inoperable on the off ramp, he was on his way home, after having spent the evening drinking at a friend’s house. The respondent had not yet reached his final destination, and still needed to get home.

(f) Respondent Was in a Deep Sleep: With respect to his “disposition and attitude,” the respondent was in a deep sleep, no doubt due to his consumption of alcohol earlier in the evening, when the police arrived on the scene. Emergency personnel had great difficulty rousing the respondent and getting him to wake-up.

(g) Drove Vehicle to Location After Consuming Alcohol: There was no evidence that the respondent consumed any alcohol in his vehicle after it stopped running. Indeed, the evidence established that the respondent consumed all of his alcohol while he was at his friend’s house earlier in the evening. It was only after he had consumed this alcohol that the respondent elected to get behind the wheel of his vehicle and drive to the location where the vehicle was ultimately located by the police.

(h) Respondent Was Drinking and Driving: The respondent was clearly involved in “drinking and driving.” After consuming a significant quantity of alcohol over the course of the evening at his friend’s house (there was no evidence of bolus drinking), he elected to drive his vehicle home. Further, the respondent did not voluntarily pull over his vehicle, recognizing his impairment, in order to “sleep it off.” This suggests a willingness on the part of the respondent to engage in criminal conduct in relation to his vehicle, and a continuing “care or control” of his vehicle.

(i) Respondent Had No Legitimate Plan to Get Home: The respondent did not have any legitimate plan to get home that did not involve him driving his vehicle while his ability to do so was impaired by alcohol and while his blood-alcohol was over the legal limit. The respondent was by himself that night, and he was “drinking and driving” his way home.

(j) Respondent Would Have Resumed Driving: While the respondent would not expressly concede in his testimony that he would have continued to drive his vehicle home had he been able to restart the vehicle, this was clearly his intention. He was on his way home when his vehicle experienced its mechanical failure. Moreover, the respondent agreed that, when the engine of the vehicle stopped, he tried to get it started again. His only conceivable purpose in so doing would have been to continue on his way home.

(k) Respondent was in the Driver’s Seat: Regardless of the potential operation of the presumption of “care or control” provided by s. 258(1)(a) of the Criminal Code, when the police arrived on the scene, the respondent was sitting in the driver’s seat of his vehicle.

(l) No Evidence of Seatbelt Use: There is no evidence as to whether the respondent was wearing his seatbelt or not at any point on the night of July 29, 2012.

(m) Respondent Failed to Adopt Alternative Means of Travel: The respondent failed to take advantage of alternate means of leaving the scene. Both at his friend’s house, and at the roadside of the exit ramp where his motor vehicle stopped working, the respondent could have employed the services of a taxi to get him home. He was in the city of Toronto, where such taxi services are readily available on a 24-hour-a-day basis. The respondent simply declined to use them, choosing instead to remain with his vehicle.

(n) Respondent Had Cell Phone: The respondent had his cell phone with him on the night of July 29, 2012, and could easily have used it to make other arrangements to get home. He did not. The respondent used his cell phone to make arrangements with a friend to call a tow truck for his vehicle, but did not use the phone to make arrangements to get home.

[52] In summary, it is apparent that all but one of these 14 Szymanski factors suggest that the respondent was in “care or control” of his vehicle. The only factor that suggests otherwise is the third factor, namely, that the engine of the respondent’s vehicle was not running as it was inoperable.

[53] In my view, had the trial judge examined the 14 Szymanski factors, which she did not, she could not have failed to similarly conclude that the respondent was in “care or control” of his vehicle. Instead, the trial judge focused, in my view wrongly, on the inoperable nature of the respondent’s vehicle. Indeed, at points in her reasons for judgment, Mocha J. stated that aspects of the Boudreault decision suggested that “an inoperable motor vehicle,” in and of itself, could lead to an acquittal. In my view, Boudreault does not suggest such an outcome. Rather, Boudreault, just like the earlier Ontario jurisprudence, held only that “care or control” required proof of a “realistic risk” of danger to persons or property. Indeed, at para. 42 of the Boudreault judgment, Fish J. expressly indicated that the necessary realistic risk of danger to persons or property may arise, in relation to a “stationary or inoperable vehicle,” through “negligence, bad judgment or otherwise.” This position is consistent with the trilogy of decisions from the Court of Appeal for Ontario – Vansickle, Wren and Smits – all effectively holding to the same effect.

[54] Indeed, in my view, this trilogy of judgments from the Court of Appeal for Ontario also compels the reversal of the decision of the trial judge. These cases collectively hold that in cases where the motor vehicle is inoperable, the necessary realistic risk of danger may well be created by an inherently dangerous location of a stationary, incapacitated vehicle on or near a roadway, in combination with an alcohol-impaired accused who might realistically escalate that inherent risk of danger by his or her negligent or accidental conduct in relation to the vehicle (e.g. accidentally switching off headlights or hazard lights).

[55] Applying this principle in the circumstances of the present case demonstrates that the trial judge erred in failing to conclude that the necessary risk of danger to public safety was clearly evident. The respondent’s inoperable motor vehicle was left stationary in a lane of live traffic for close to two-and-a-half hours. Meanwhile, the extremely inebriated respondent remained inside the vehicle patiently awaiting the arrival of a tow truck. Apart from arranging to have the tow truck summoned, the respondent took no positive steps to remedy the risk of danger inherent in that troubling situation. Moreover, by remaining seated in the driver’s seat of his inoperable vehicle, and being asleep (at least for a time), the respondent ran the risk of accidentally turning off his hazard lights, which would have increased the level of danger to public safety posed by the location of his inoperable vehicle. In my view, the decision in Vansickle is simply indistinguishable from the present case, and its application effectively requires that the respondent be found guilty.

[56] Importantly, as I have already indicated, at trial the Crown expressly advanced this very argument in support of its position that the accused remained in “care or control” of his inoperable motor vehicle. In support of this argument, the Crown relied upon the evidence of Cst. Desousa that a live lane of traffic was a “dangerous location” for the accused to leave his vehicle and that the driver of the MTO truck had sought to reduce the risk of danger by parking behind the respondent’s vehicle. In rejecting this argument, the trial judge relied heavily upon the fact that (1) the presence of the MTO truck would have itself reduced any risk of danger; and (2) the respondent had turned on his vehicle’s hazard lights. I disagree with the trial judge that these steps eliminated the realistic risk of danger to public safety that was present in these circumstances.

[57] First, in my view the trial judge misconceived the significance of the presence of the MTO truck being parked behind the respondent’s vehicle. The MTO truck may well have made the road hazard, caused by the respondent’s stationary vehicle in a live lane of traffic, easier to see and thereby avoid. However, its presence did not eliminate the risk of danger caused by the respondent’s vehicle. Indeed, the parking of the MTO truck simply showed that the driver of that truck was so concerned about the risk of danger inherent in the location of the respondent’s vehicle that he or she tried to assist other motorists in avoiding that road hazard. Moreover, the helpful presence of the MTO truck had nothing to do with the conduct of the respondent. The respondent was not even aware of the eventual arrival of the MTO truck, as he was in a deep sleep by then. Further, as there is no evidence as to when the MTO truck arrived on the scene, and the respondent was still asleep in his vehicle when the police arrived, it is entirely likely that the respondent’s vehicle was alone on the live lane of the exit ramp, without the gratuitous protection of the MTO truck, for a very significant time period.

[58] Second, contrary to the dictates of the Vansickle decision, the trial judge failed to thoroughly and realistically examine the risks inherent in having an intoxicated accused remain inside the inoperable vehicle in its dangerous location for a significant period of time. Instead of considering whether the heavily intoxicated accused might negligently or accidentally turn off the hazard lights of his vehicle while he sat in the driver’s seat, as the court reasoned in Vansickle, the trial judge relied only on the fact that the accused had turned on these lights in the first place.

[59] Finally, it is important to recall that, as Boudreault confirmed, 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.” It is a “low threshold” that is designed to prevent danger to public safety, while not rendering criminal conduct that is “benign and inconsequential.” The trial judge did not, in my opinion, apply this low threshold standard appropriately in the circumstances of this case. Indeed, as I have indicated, in my view, in concluding that the respondent was not in “care or control” of his vehicle as there was no realistic risk of danger to public safety, the trial judge committed a palpable and overriding error requiring appellate interference.

[60] As to the remedy for this error, in my view, this is not a case where there needs to be new trial. Given the realistic risk of danger to public safety clearly evident in all of the circumstances of this case, and the palpable and overriding error of the trial judge, the appropriate result in this case is that the accused be found guilty of both offences, and the matter remitted to the trial judge for purposes of sentencing. This result is appropriately ordered in this case pursuant to s. 686(4)(b)(ii) of the Criminal Code, which is applicable on summary conviction appeals by virtue of s. 822(1) of the Code. As was the case in Vansickle, apart from the erroneous conclusion of the trial judge regarding proof of the necessary realistic risk of danger to persons or property, the trial judge had made all of the other necessary factual findings to justify the respondent being found guilty of both of the alleged offences beyond a reasonable doubt. See R. v. Cassidy, [1989] 2 S.C.R. 345, at p. 355; R. v. Katigbak, 2011 SCC 48, [2011] 3 S.C.R. 326, at paras. 8, 77-79.

VI

Conclusion

[61] In the result, the Crown appeal is allowed, the order of the trial judge dismissing the information and acquitting the respondent is set aside, and findings of guilt are made in relation to both of the alleged offences. The matter is remitted to the trial judge for purposes of sentencing. An order shall issue accordingly.

___________________________

Kenneth L. Campbell J.

Released: September 15, 2014

COURT FILE NO.: 96/13

DATE: 20140915

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

- and -

JAFFAR BALOGUN-JUBRIL

REASONS FOR JUDGMENT

K.L. Campbell J.

Released: September 15, 2014

[^1]: While the trial judge referred to the comments made at para. 87 of Boudreault as being a statement “by the Court,” in fact this passage is from the dissenting judgment of Cromwell J. in Boudreault.