ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
A. Khoorshed, for the Respondent
Respondent
- and -
ELVIS DOJCINOVIC
M. Wendell, for the Appellant
Appellant
HEARD: April 8, 2015 at Milton
REASONS FOR JUDGMENT
[On appeal from the judgment of Forsythe J.
dated March 5, 2014]
André J.
1The Appellant appeals his conviction of having care or control of a motor vehicle while impaired by the consumption of alcohol. He submits that the trial judge committed the following errors of law:
(1) He applied an improper legal test for the assessment of circumstantial evidence.
(2) He applied the wrong legal test in his conclusion that the evidence called by the defence during the trial did not create a reasonable doubt in the Crown’s case.
(3) He improperly reversed the burden of proof and improperly considered whether the evidence called by the defence gave rise to a reasonable doubt.
2For the reasons outlined below the appeal is dismissed.
Background Facts
3On May 28, 2011, on the on-ramp leading from the 403 highway, eastbound, to Waterdown Road, in the City of Burlington, P.C. Adam Dunlop, of the Ontario Provincial Police, came upon two stopped vehicles, one of which had been involved in a single-vehicle collision.
4The Appellant’s vehicle had damage consistent with a collision, and was stopped against the guard rail at the side of the ramp off Highway 403.
5P.C. Dunlop discovered the Appellant passed out in the vehicle, slumped over the centre console with the lower part of his body in the driver’s seat and his hand on the passenger seat.
6P.C. Dunlop eventually managed to wake up the Appellant. He was only capable of mumbling incoherently. The Appellant was incapable of standing or walking unassisted. He smelt of alcohol. Based upon the foregoing, he was arrested.
7At trial, there were five witnesses who testified: three police officers and two defence witnesses. The credibility of the police witnesses was not challenged during the trial.
8The Appellant called his friend Mr. Delaney as a witness. Mr. Delaney testified that he had driven the vehicle to the location where it was found and, after colliding with the guardrail, deserted Mr. Dojcinovic, leaving him drunk and asleep at the side of the road. The Appellant had no memory of the event or how he got into the driver’s seat of the motor vehicle.
Trial Judge’s Decision
9The trial judge convicted the Appellant of impaired care and control of a motor vehicle. He concluded that:
Even if I were to be satisfied that the accused was initially placed involuntarily by Mr. Delaney into the passenger seat of his vehicle in an intoxicated condition, I find that the position in which he was found by P.C. Dunlop establishes on a circumstantial inference basis that he must have awakened at some point after the collision at least sufficiently to be able to move himself from the passenger seat into the position with his buttocks on the driver’s seat curled up in a fetal position with his torso hanging over the console and his head facing the passenger door. In other words, I can only conclude that in that scenario his movement from the passenger seat to the portion of the driver’s seat on which he was found would have been voluntary.
That fact, coupled with the accessibility of the keys on the console and absolutely no plan whatsoever in evidence available to this Court by the accused for how he would get home from the location of the collision with the guardrail without operating his motor vehicle, in my view, results in the Crown having established beyond a reasonable doubt that the accused was in the de facto care or control of his motor vehicle when found by the officers. Specifically, I find that there would be a realistic risk to society that the accused would at some point awaken and consider driving his vehicle the very short distance from the point of the collision to his home while still in an intoxicated condition.
On the other hand, if I were to find that the accused drover his own vehicle to the point of the collision with Mr. Delaney riding as a passenger in the front passenger, then it would seem that the only way Mr. Delaney could have exited the motor vehicle would have been to either crawl over the accused and out the driver’s door while leaving the accused in the driver’s seat of the motor vehicle, or that the accused, after the collision, exited his motor vehicle by the driver’s door and allowed Mr. Delaney to crawl out the driver’s door from the passenger side because, of course, there is no dispute that the passenger door could not be opened in its position of being up against the guardrail. In the former scenario, the accused would never have relinquished care or control of the motor vehicle having driven it to the scene, and even though he was found in a position partially on the driver’s seat without his feet on the floor which did not engage in s. 258(1)(a) presumption, nevertheless I find that he would be in the de facto care or control of the motor vehicle at the time when the police found him for the same reasons that I have expressed above.
In the latter scenario, Mr. Dojcinovic would have broken the chain of his care or control of the motor vehicle if he exited the vehicle by the driver’s door to allow Mr. Delaney to also crawl across the vehicle and exited it. However, given the position in which he was found by the police when they arrived, I could only conclude that he voluntarily re-entered the motor vehicle, and even if he were to be given the benefit of the doubt that he did not re-enter it at that moment with the intention of setting it in motion and fell asleep, to be found in that condition by the police, nevertheless with the accessibility of the keys on the console and the lack of any plan for how he would get home if he did awaken from his intoxicated slumber, I find that he would still be in the care or control of his motor vehicle within the meaning of that term in the common law beyond a reasonable doubt. Specifically, I find that there would be a realistic danger that he would awaken and decide to operate his motor vehicle while still impaired.
Therefore, I find that the Crown has satisfied me beyond a reasonable doubt that the position in which Mr. Dojcinovic was found, partially in the driver’s seat of his motor vehicle, although not engaging the s. 258(1)(a) presumption, with the accessibility of the keys and the lack of evidence of any plan to get home without having to operate his motor vehicle allows me to conclude that the Crown has established beyond a reasonable doubt that he was in the de facto care or control of his motor vehicle on the date in question at the time when he was found by P.C. Dunlop. I, therefore, find him guilty of the charge contrary to s. 253(1)(a) of the Criminal Code.
Legal Principles
10Section 258(1)(a) of the Criminal Code provides that:
258(1) In any proceedings under subsection 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, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;
11Where an accused successfully rebuts the presumption in s. 258(1)(a) of the Code, he or she may nevertheless be convicted of the offence of impaired care and control where the Crown proves beyond a reasonable doubt that the accused had care and control of the motor vehicle.
12An accused may be convicted of care and control of a motor vehicle where he or she performs some act or series of acts involving the use of a car, its fittings or equipment, whereby the vehicle may unintentionally be set in motion. R. v. Ford 1982 CanLII 16 (SCC), [1982], 1 S.C.R. 231, 65 C.C.C. (2d) 392, R. v. Toews, 1985 CanLII 46 (SCC), [1985], 2 S.C.R. 119, 21 C.C.C. (3d) 24 (S.C.C.).
Standard of Review
13The standard of review on a summary conviction appeal is that the appellate court must manifest a considerable degree of deference with respect to the trial judge’s findings of fact and the weight given to the evidence. In this regard, the Supreme Court of Canada has cautioned in R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9 that:
Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well-established norm: see Stein v. The Ship "Kathy K", 1975 CanLII 146 (SCC), [1976] 2 S.C.R. 802; Lensen v. Lensen, 1987 CanLII 4 (SCC), [1987] 2 S.C.R. 672; Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353; Hodgkinson v. Simms, 1994 CanLII 70 (SCC), [1994] 3 S.C.R. 377; Toneguzzo-Norvell (Guardian [page11] ad litem of) v. Burnaby Hospital, 1994 CanLII 106 (SCC), [1994] 1 S.C.R. 114; Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.
14A verdict may not be unreasonable even if the trial judge misapprehended the evidence. Conversely, a verdict may well be unreasonable even if the trial judge did not misapprehend the evidence. R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at page 220.
15In R. v. R.P., 2012 SCC 22, the Supreme Court of Canada enunciated the relevant principles in a determination whether or not a verdict is unreasonable:
9 To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190).
10 Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appeal that reviews a trial court's assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they "cannot be supported on any reasonable view of the evidence" (R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at para. 7).
16What is the standard of unreasonableness of a vehicle in the context of the legal offence of care and control pursuant to section 258(1)(a) of the Code?
17In R. v. Rennison, 2007 BCCA 594, the British Columbia Court of Appeal noted that:
8 The test for actual care or control is well established by the Supreme Court of Canada and particularly in Ford and Toews. It focuses on the accused's actions in relation to a motor vehicle, rather than the accused's intention to drive. Proof of an intent to drive or to set the vehicle in motion is not an essential element of proof in a charge of care or control.
9 The application of the criteria for determining care or control involves an assessment of the facts of each case and it is "... impossible to set down an exhaustive list of acts which could qualify as acts of care or control ...": Toews, at para. 9.
10 As Rice J. understood, it is not necessary to prove that an accused poses an immediate danger to the public. "It is the possibility that the vehicle may be put in motion, intentionally or unintentionally, by a person who is intoxicated, that poses the problem of public safety.": R. v. Clarke (1997), 1997 CanLII 23206 (NB CA), 27 M.V.R. (3d) 91 (N.B.C.A.), [1997] N.B.J. No. 154 (N.B.C.A.) at para. 9.
11 The focus of the trial judge must be on the risk of danger. As Bayda C.J.N.S. observed in R. v. Shuparski, 2003 SKCA 22, [2003] S.J. No. 147 at paras. 46-47:
46 The trial judge, again in obiter, laid considerable emphasis on the "danger" created by the defendant's being "in a position to resume driving at any time and his intention was to resume driving". She went on to say:
44... He had already exercised poor judgment in leaving his friend's girlfriend's home to drive to his residence. There is no guarantee that his judgment after sleeping for a time would be better, or that his condition would necessarily be unimpaired, despite the fact that I have not found the evidence presented to be sufficient to convict him of the offence of impaired care or control.
In my respectful view, the defendant's "position to resume driving the vehicle at any time" is not an "act" let alone one capable of constituting the actus reus. It is axiomatic that a person cannot be convicted for something he has not done. The fact he is in a "position" to do something wrong that he may or may not do, does not create some sort of inchoate form of culpability for which he must answer. Conjecture has no role to play in a criminal offence. I note that in Toews the defendant was in a "position" to drive the vehicle he was sleeping in "at any time", but that "position" played no role in the Court's determination of finding no actus reus.
47 I conclude this issue of "position" by this observation. As many cases have noted, including the cases cited earlier, the element of dangerousness arising from the risk of putting a vehicle in motion while a person is under the influence of alcohol is at the centre of these care or control cases. The elimination of that element of dangerousness is what Parliament had in mind when it passed the legislation in question. Whether a potential for dangerousness should be a cause for concern where a person is in a "position" to set a vehicle in motion depends not so much on the physical "position" the person happens to be in as it does on his attitude or disposition towards potential dangerous situations. If it is nonchalant, non-caring or reckless, that is one thing. If the attitude is to specifically address the situation with a view to eliminating it, that is quite another thing. In the present case, the defendant's deliberate rational decision, after he realized his driving may be creating a dangerous situation, to stop his driving in order to sleep is strong evidence of his attitude to potential dangerous situations: It is an attitude towards eliminating those situations after a realization takes hold. Given that attitude, it is unlikely that after eliminating one potential dangerous situation, he would be apt to create a new dangerous situation by driving after he awoke if he was unfit to drive. In other words, when the facts of the case are viewed from an "overall" perspective that element of dangerousness that is central to all of these care or control cases was not present in this case, which is to say the Crown failed to prove this element of the offence beyond a reasonable doubt.
Analysis
18The trial judge commenced his analysis by determining whether the crown could rely on the presumption in s. 258(1)(a).
19He concluded that he was not prepared to find beyond a reasonable doubt that “the position in which the police found the accused in his vehicle would satisfy the requirements of the s. 258(1)(a) presumption in favour of the Crown”.
20That however, does not conclude the analysis. As the Supreme Court of Canada noted in Ford, “the only result of the accused having established that he did not mount the vehicle for the purpose of setting it in motion, is that the Crown is seized with the burden of proof without the aid of the presumption.” Ford, at page 246.
21The trial judge then turned his mind to the issue of whether the Crown had proven beyond a reasonable doubt that the Appellant had de facto care and control of the motor vehicle when the police officers came upon it. He analyzed the evidence of the Appellant and Mr. Delaney and applied the legal principles enunciated in the case of R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) to reject the evidence of the latter.
22The Appellant makes two submissions regarding the trial judge’s analysis of the defence’s evidence. He submits that the trial judge improperly applied the W.(D.) test and failed to consider whether Mr. Delaney’s evidence, even if found to be untrue, was capable of raising a reasonable doubt in the Crown’s case. He also submits that the trial judge misapprehended the evidence and also misconstrued the test for a finding of guilt based on circumstantial evidence.
23Regarding the first submission, the trial judge provided reasons why he disbelieved Mr. Delaney’s testimony that he had driven the vehicle and had fled the scene of the incident leaving the Appellant in the front passenger seat. He did not believe that Mr. Delaney would have simply left the vehicle with the Appellant still within it rather than drive the very short distance to the Appellant’s residence. He found that it made no sense that the Appellant would instead have walked a considerable distance to a convenience store to make a telephone call despite the fact that the vehicle was operable.
24The trial judge also considered the second step of the W.(D.) analysis, contrary to the submission of the Appellant. The trial judge noted in paragraph 15 of his decision that he had considered “whether [Mr. Delaney’s evidence] in the context of the totality of the evidence, still raise a reasonable doubt in my mind on the issue of whether the accused had voluntarily entered his motor vehicle in the first place and thus assumed the care or control of it ab initio.”
25The trial judge resolved this issue in favour of the Appellant thereby rendering the issue moot. He concluded at paragraph 120 of his decision that he could not find beyond a reasonable doubt that the Appellant had voluntarily entered his motor vehicle in the driver’s seat and drove it to the point of collision with the guardrail.
26The Appellant submits that with his conclusion at paragraph 120 of his decision, the trial judge should have dismissed the charge against the Appellant since his analysis was then complete.
27With great respect, I disagree. The intention to drive which the trial judge considered when assessing Mr. Delaney’s testimony is not an element of the offence of impaired care and control. The trial judge was required to consider whether, based on the evidence he accepted, the Appellant was in de facto control of his vehicle.
28He then proceeded to consider the evidence which was necessary to establish actual care or control. He relied on the decision of Justice Durno in R. v. Szymanski, 2009 CanLII 45328 (ON SC), [2009] O.J. No. 3623 who noted at paras. 90 to 91 that:
90 The Court of Appeal for Ontario has characterized the test as whether or not there was a "real risk" that the accused would change his or her mind and drive while impaired in R. v. MacMillan, 2005 CanLII 16073 (ON CA), [2005] O.J. No. 1905, as a "real and obvious risk" in R. v. Quidley, [2000] O.J. No. 3963 and as a "risk" in R. v. Pelletier, [2000] O.J. No. 848 as a risk. In two thorough analyses of the issue, Thomas J. has applied the real risk criteria concluding that speculative changes of mind were insufficient to establish care or control. R. v. Sandhu, [2008] O.J. No. 4584 (S.C.J.) and R. v. Kim (2003), 44 M.V.R. (4th) 247 (S.C.J.).
91 These authorities support the conclusion that what must be shown is a real risk that the particular accused would change his or her mind and intentionally set the vehicle in motion. While phrased differently, I am also persuaded that in many ways there is not that great a gap between the various criteria set out above. Simply put, the trial judge has to conduct a case-specific analysis and determine if there is a real risk. Saying that any person whose ability to operate a motor vehicle is impaired to any degree might change their mind is not sufficient. The trier of fact must examine the facts and determine if the real risk exists.
29The trial judge then, at para. 126, set out the following “non-exhaustive list” that emerged in the jurisprudence in determining if a real risk exists of an accused changing his or her mind and intentionally setting the vehicle in motion:
a) The level of impairment. R. v. Daines, [2005] O.J. No. 4026 (C.A.), R. v. Ferguson (2005), 2005 CanLII 1060 (ON SC), 15 M.V.R. (5th) 74 (S.C.J.), R. v. Ross (2007), 2007 ONCJ 59, 44 M.V.R. (5th) 275 (O.C.J.) In Ogrodnick, Wittman A.C.J. qualified his comments about speculation and conjecture by accepting that it was an appropriate basis to find care or control because the level of intoxication demonstrates unpredictability or a risky pattern of behaviour. Para. 54. In Ross, the trial judge found that this consideration might relate to the likelihood of the accused exercising bad judgment, the time it would take to become fit and the likelihood that he or she would be presented with an opportunity to change their mind during that time.
b) Whether the keys were in the ignition or readily available to be placed in the ignition, Pelletier, supra.
c) Whether the vehicle was running. R. v. Cadieux, [2004] O.J. No. 197 (C.A.)
d) The location of the vehicle, whether it was on the side of a major highway or in a parking lot. Cadieux, R. v. Grover, [2000] A.J. No. 1272 (Q.B.).
e) Whether the accused had reached his or her destination of if they were still required to travel to their destination. Ross, supra.
f) The accused’s disposition and attitude. R. v. Smeda (2007), 51 M.V.R. (5th) 226 (Ont. C.A.)
g) Whether the accused drove the vehicle to the location of drinking. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)
h) Whether the accused started driving after drinking and pulled over to “sleep it off” or started out using the vehicle for purposes other than driving. If the accused drove while impaired it might show both continuing care or control, bad judgment regarding fitness to drive and willingness to break the law. Ross, supra.
i) Whether the accused had a plan to get home that did not involve driving while he or she was impaired or not over the legal limit. Cadieux, Ross, R. v. Friesen, [1991] A.J. No. 811 (C.A.), R. v. Gill (2002), 33 M.V.R. (4th) 297 (S.C.J.) para. 21, Ross, supra.
j) Whether the accused had a stated intention to resume driving. In Cadieux, supra, where the accused testified he was not driving and was waiting to sober up. The Court of Appeal held that his evidence that he would not drive until he was sober only went to weight.
k) Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)
l) Whether the accused was wearing his or her seatbelt. Pelletier, supra.
m) Whether the accused failed to take advantage of alternate means of leaving the scene. Pelletier, supra.
n) Whether the accused had a cell phone with which to make other arrangements and failed to do so. Cadieux, supra.
30The trial judge then relied on the following facts to conclude that the Appellant was in de facto care and control of his vehicle when P.C. Dunlop came upon it:
(1) The facts that his buttocks was in the driver’s seat although his torso was over the console and his head faced the passenger door.
(2) The accessibility of the keys in the console.
(3) The absence of any plan regarding how the Appellant would get home without operating the vehicle.
(4) The realistic risk to society that given the vehicle’s proximity to the Appellant’s home the latter would consider driving the vehicle when he awakened.
31The trial judge concluded that irrespective of whether the Appellant had been placed into the passenger seat by Mr. Delaney or whether the Appellant had driven his vehicle to the point of collision, the evidence supported a finding that he had de facto control of the motor vehicle.
32In my view, the evidence supports the trial judge’s conclusion. I cannot conclude that the trial judge’s findings of fact and the factual inferences drawn by him are clearly wrong, unreasonable or unsupported by the evidence.
Disposition
33Accordingly, the appeal is dismissed.
André J.
Released: May 12, 2015
CITATION: R. v. Dojcinovic, 2015 ONSC 2714
COURT FILE NO.: 41/14
DATE: 20150512
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
ELVIS DOJCINOVIC
Appellant
REASONS FOR JUDGMENT
André J.
Released: May 12, 2015