ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCA 157/15
DATE: 20150928
CORRECTED: 20160602
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MATTHEW WREN
Defendant/Appellant
E. O’Marra for the Crown
C. Wagman for Mr. Burko
HEARD: September 23, 2015
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable A. Cooper,
dated October 27, 2014]
Correction Notice
June 2, 2016: Please note the PARAGRAPH NUMBERS HAVE BEEN CORRECTED
Ricchetti, J.:
THE APPEAL
[1] On October 27, 2014 the trial judge, Justice Cooper, found the Appellant guilty of impaired driving under s. 253(1) (a) of the Criminal Code and not guilty of refusing to supply a breath sample.
[2] The Appellant appeals his conviction.
SUMMARY OF THE EVIDENCE AT TRIAL
[3] On March 3, 2013 Ms. Frayssignes, returned home to her apartment building. When she went to park in her parking spot, she found a vehicle blocking the entrance. The vehicle was in the laneway used by cars to go to and from their parking spots to the outside. The engine was running. The windshield wipers were on. Mr. Wren was in the driver's seat. He was unresponsive. Mr. Wren reeked of alcohol. Ms. Frayssignes called her stepfather, Mr. Zuk, on the cell phone. He came downstairs. Mr. Zuk opened the driver's door. Mr Wren started to fall out so he pushed him back in. He turned off the wipers, removed the car keys and put them on the passenger's side.
[4] Several police officers arrived. Mr. Wren, now awake, was yelling and screaming. Mr. Wren's speech was slurred. The police smelled alcohol. Mr. Wren was disoriented and unaware of his surroundings. His speech was incoherent to the police officers. Mr. Wren was unsteady, his eyes were glossy and seemed unable to focus. When asked for his identification, he gave the police his wallet. Mr. Wren was uncooperative with the police and as a result had to subdue him and handcuff him.
[5] At the police station, Mr. Wren tested 180 milligrams of alcohol in 100 millilitres of blood. He only gave one sample. The issue was whether he refused or was unable to provide a second sample. This was the subject of a blowing over charge on which Mr. Wren was acquitted. There is no appeal with respect to this acquittal.
[6] Mr. Wren testified. He went downstairs to his car to listen to the radio. He moved the car to the location it was found. At about 8:30 p.m., Mr. Wren testified he returned upstairs and consumed alcohol. He then returned downstairs to his car at about 9:30 p.m. He denied he started the engine when he got to his car because he knew it was an offence to drive while impaired.
THE REASONS OF THE TRIAL JUDGE
[7] The trial judge recognized the application of W.D.
[8] The trial judge found as a fact that Mr. Wren was impaired when found in the car. The Appellant does not challenge that finding of fact on appeal.
[9] The Crown relied on the presumption of care and control and further submitted that, if necessary, the court should find actual control and that there was a risk that Mr. Wren could have unintentionally put his car in motion in his impaired state.
[10] One of the issues to be decided by the trial judge was whether Mr. Wren had care and control of the vehicle.
[11] The trial judge stated:
It seems possible that Mr. Wren was actually driving his car in the underground when he passed out in a live lane of traffic due to his advanced level of intoxication.
The Criminal Code provides as follows:
- (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;
The defendant was in the driver's seat with the car engine on, when first observed by Ms. Frayssignes. That puts him in care and control as defined by the Criminal Code. Even assuming he intended to drive no further, his car was in the pathway of other vehicles and he could easily set his car in motion.
THE GROUNDS OF APPEAL
[12] The Appellant submits that the trial judge erred in finding that Mr. Wren was in care and control of the vehicle based on his presence in the driver's seat with the car running. The Appellant submits that this only raised a presumption of care and control and the trial judge failed to deal with the evidence of Mr. Wren rebutting that presumption. Further, even if there was actual care and control, then there was no risk analysis done by the trial judge.
[13] As a result, the Appellant submits that the conviction be set aside and this matter should be referred back for a new trial.
THE LAW ON APPELLATE REVIEW
Appellate Review in Summary Convictions Appeals
[14] By virtue of s. 822(1) of the Criminal Code, the statutory grounds of appeal set out in s. 686 apply to summary conviction appeals. Under that section, there are three statutory grounds of allowing an appeal where it finds a:
a) Unreasonable decision (s. 686(1)(a)(i));
b) Wrong decision (s. 686(1)(a)(ii)); and
c) Miscarriage of justice: (s. 686(1)(a)(iii)).
[15] There are three statutory grounds to dismiss an appeal and uphold a conviction:
a) No grounds or no substantial wrong (ss. 686(1)(b)(ii) or (iii));
b) Proper conviction on one count (s. 686(1)(b)(ii) and s. 686(3));
c) No prejudice – procedural irregularity (s. 686(1)(b)(iv)).
[16] The standard of review on a summary conviction appeal is whether, based upon the evidence, the decision made by a trial judge is a finding that could have been reasonably reached. As a result, a court sitting on appeal should only allow an appeal of the decision, if:
a) it cannot be supported by the evidence; or
b) it is clearly wrong in law; or
c) it is clearly unreasonable; or
d) there was a miscarriage of justice.
DEFERENCE TO A Trial Judge`s Factual findings
[17] A trial judge’s assessment of the evidence and findings of fact must be accorded substantial deference by the reviewing court. It is not the role of the appellate court to retry the case and reverse findings of fact that were not favourable to the Appellant. In R. v. Cornell, 2010 SCC 31, [2010] S.C.J. No. 31 (S.C.C.) the Court set out that “the trial judge’s assessment of the evidence and findings of fact must be accorded substantial deference on appellant review.”
Trial Judge`s Reasons to be read as a whole
[18] The trial judge’s reasons must be read as a whole and should explain how the judge arrived at the particular decision. In R. v. G.W., 1996 427 (ON CA), [1996] O.J. No. 3075 (O.C.A.) the Court stated at para. 66:
In addition, I see nothing in the trial judge's reasons that would suggest that she reversed the burden of proof. As Doherty J.A. observed in R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 at p. 525 when he considered a similar argument:
In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she has made that decision. The reasons should be responsive to issues raised at trial and must be read in the context of the entire trial ... In cases like this, when the result turns on fact-finding and not on the application of contested legal principles, it is appropriate that the reasons should focus on telling the parties what evidence was believed and why it was believed. ... Reasons for judgment are given after the trial judge has reached the end of that journey and explain why he or she has arrived at a particular conclusion. They are not intended to be, and should not be read, as a verbalization of the entire process engaged by the trial judge in reaching a verdict. [Emphasis added]
[19] The Supreme Court in R. v. G.(L.) 2006 SCC 17, 207 C.C.C. (3d) 353 (S.C.C.) made the following comment on a review of a trial judge’s reasons:
[19] This Court has consistently admonished trial judges to explain their reasons on credibility and reasonable doubt in a way that permits adequate review by an appellate court. Having encouraged these expanded reasons, it would be counterproductive to dissect them minutely in a way that undermines the trial judge's responsibility for weighing all of the evidence. A trial judge's language must be reviewed not only with care, but also in context. Most language is amenable to multiple interpretations and characterizations. But appellate review does not call for a word-by-word analysis; rather, it calls for an examination to determine whether the reasons, taken as a whole, reflect reversible error. The task is to assess the overall, common sense meaning, not to parse the individual linguistic components. In re-examining the evidence piece by piece, the Court of Appeal in this case confused the need for sufficiency of reasons with the examination of sufficiency of the evidence, the latter being central to the disposition of the case in Burke, Burns and R. (D.) on which it relied. In our view the reasons were sufficient. In any event, any consideration of the sufficiency of the evidence had to be founded on consideration of all of the evidence and especially the justifications for all findings of credibility, including those referable to the child and witnesses who testified in support of her, not just referable to the accused and those supporting him.
THE LAW ON CARE AND CONTROL
[20] As impaired care or control is a separate offence from operating a motor vehicle while one’s ability to do so is impaired by the consumption of alcohol, care or control refers to an element of care or control other than driving. In the result, proof of an intention to drive or set the vehicle in motion is not an essential element of the offence. R. v. Toews, 1985 46 (SCC), [1985] 2 S.C.R. 119, at p. 123.
[21] The mens rea for care or control is the intention to assume care or control after the voluntary consumption of alcohol or a drug. In that context, an accused’s intentions may contribute to or exclude the requisite mens rea. The actus reus is the act of the assumption of care or control of the vehicle when the voluntary consumption of alcohol has impaired the ability to do so or having consumed excess alcohol. Toews, at p. 123-4.
[22] In Toews, McIntyre J. concluded it was impossible to set down an exhaustive list of acts that would constitute care or control short of driving although the following cases provided illustrations that were of assistance. R. v. Thompson (1940), 1940 292 (NB CA), 75 C.C.C. 141 (N.S.C.A.), R. v. Henley, 1962 586 (NS SC), [1963] 3 C.C.C. 360 (N.S.Co.Ct.); R. v. Price (1978), 1978 2288 (NB CA), 40 C.C.C. (2d) 378 (N.B.C.A.) These cases addressed the meaning of care or control as follows
i) ‘Care’ included where an intoxicated driver places his vehicle in a location where it might run away and occasion danger to the public. ‘Care’ also implies at least physical possession with an element of control. A person in a car may have the care of the vehicle. In jurisprudence ‘care’ is generally used in the sense of attention, heed, vigilance as opposed to carelessness, negligence or heedlessness. ‘Care’ may also mean custody, charge, safekeeping, preservation, oversight or attention. ‘Care’ has been defined as “having in charge or protection.”
ii) ‘Control’ was established where a person is in a car and has within his or her reach the means of operating it. It has been defined as “the fact of controlling or checking and directing action.”
[23] One route to establish care or control is applying the rebuttable presumption in s. 258(1)(a) where the accused was in the seat normally occupied by the driver, or through evidence of de facto or actual control which involves the risk of danger as an essential element. R. v. Szymanski, 2009 45328 (ON SC), [2009] O.J. No. 3623 (S.C.J.) at para. 29.
[24] Whether a finding of risk of danger is required was settled in Ontario in R. v. Wren (2000), 2000 5674 (ON CA), 144 C.C.C. (3d) 374 (Ont. C.A.), leave to appeal refused, [2000] S.C.C.A. No. 235, where Feldman J.A. held that the act or conduct in relation to the motor vehicle must be such that there is created a risk of danger, whether from putting the vehicle in motion or in some other way. Feldman J.A. held that actual or de facto care or control involves:
Performance of some act or series of acts which involve some use of the car or its fittings or equipment, or some course of conduct associated with the vehicle which would involve the risk of putting the vehicle in motion or in some other way to become dangerous, which is what the section is designed to prevent. at par. 28.
[25] The Supreme Court of Canada agreed with Wren in R. v. Bouchard, 2012 SCC 56, [2012] 3 S.C.R. 157 finding that the risk of danger is an essential element of care or control. Fish J., for the majority, concluded care or control signified:
an intentional course of conduct associated with a motor vehicle;
by a person whose ability to drive or whose blood alcohol level exceeds the legal limit;
in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property.
[26] Fish J. provided the following assistance in further defining the offence:
i. Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger. In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case. para. 13;
ii. The concept of danger provides a unifying thread which promotes certainty in the law while balancing the rights of an accused with the objectives of the legislation, citing R. v. Mallery (2008), 2008 NBCA 18, 327 N.B.R. (2d) 130 (C.A.);
iii. The law … is not deprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to drive is impaired in a motor vehicle. In fact, Toews stands for the proposition that when a person uses a vehicle in a way that involves no risk of putting it in motion so that it could become dangerous, the courts should find that the actus reus is not present, citing R. v. Penno, 1990 88 (SCC), [1990] 2 S.C.R. 865;
iv. Parliament’s objective in enacting s. 253 of the Code was to prevent a risk of danger to public safety. Accordingly, conduct that presents no risk falls outside the intended reach of the offence. Boudreault, para. 32;
v. The risk of danger must be realistic, not just theoretically possible. It need not be probable or even serious or substantial, para. 34. The realistic risk is a low threshold and absent evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion, para. 48. The accused may escape conviction by showing the vehicle was inoperable, or on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger, Boudreault, para. 49;
vi. As a realistic risk the vehicle will be set in motion constitutes a realistic risk of danger, an intention to set the vehicle in motion suffices in itself to create a risk of danger, para. 41;
vii. Absent a contemporaneous intention to drive, a realistic danger may arise in at least three ways: first, an inebriated person who does not intend to drive may later change his or her mind; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property, para. 42;
[27] The Supreme Court agreed with the New Brunswick Court of Appeal’s conclusion in R. v. Mallery (2008), 2008 NBCA 18, 327 N.B.R. (2d) 130 that a risk of danger was an element of care or control. In Mallery, the Court held that where the presumption applies it is a presumption of care or control, implicitly including the risk of danger. Where the accused rebuts the presumption of care or control, the Crown can still establish de facto care or control and would have to establish a realistic risk of danger. at paras. 46 and 52.
ANALYSIS
[28] The analysis on this issue is not fulsome in the trial judge's reasons. What is important is whether this appellate court can review the reasons and conclude that the appropriate principles have been applied. Here, the trial judge did not expressly deal with whether the evidence rebutted the presumption. He appears to have come to a conclusion without considering whether the presumption was rebutted. The trial judge goes on to deal with the risk of danger but had not determined whether the Crown had established actual care or control.
[29] The Crown submitted that "the Crown relies on the presumption and it is not rebutted" and, if the risk analysis had to be undertaken, "there was a risk that Mr. Wren could have unintentionally put his car in motion in his impaired state."
[30] Defence counsel in his closing submissions dealt with care and control as a significant issue in the trial:
In my respectful submission I'm submitting that based on Abaza that there was no realistic danger considering all the facts of this case. And paragraph 22nd of Abaza they analyze:
A realistic risk of danger may arise in at least three ways: inebriated individual who does not intend to drive but he may change his mind; inebriated person behind a wheel unintentionally through negligence, bad judgement.
The only - the only suspect thing is what - that Your Honour has to determine what was my client going to do at the end when he woke up; that's what You Honour has to think about or consider. So there's - that's many factors that has to be - that have to be looked at. And so, in this case, it was not proven beyond a reasonable doubt.
[31] Both the presumption of care and control and, if there was a finding of actual care and control, a risk analysis was before the trial judge in this case.
[32] Mr. Wren's evidence that he did not intend to drive may or may not have been sufficient to rebut the presumption of care and control. The difficulty in this case is there is no analysis on whether the presumption was or was not rebutted because the trial judge concluded that because Mr. Wren was in the driver's seat he was in care and control of the vehicle. Being in the driver's seat only creates a presumption of care and control. The court was, in light of the evidence and submissions before him, obliged to consider the concluding words of s. 258(1)(a) of the Criminal Code: unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, ... in motion....
[33] The trial judge failed to expressly deal with this issue. He appears to apply the presumption without dealing with the possibility that the presumption was rebutted. The trial judge failed to consider Mr. Wren's evidence as to his lack of intention to drive when the trial judge said "Even assuming he intended to drive no further..." (emphasis added)
[34] Further, if the presumption was rebutted, the trial judge should have considered whether Mr. Wren had actual care and control of the vehicle which presented a risk of danger. After Wren and Boudreault, where the Crown’s case is based on de facto or actual care or control, the Crown is required to prove beyond a reasonable doubt there was a realistic risk of danger as an element of the offence. In order to find the accused guilty for actual care and control (if the presumption was rebutted), the trial judge must find actual care and control and conduct a “risk inquiry”.
[35] I am unable to conclude that the trial judge conducted the proper analysis of the care or control issue either whether the presumption was rebutted and, if it was, whether Mr. Wren was in actual care and control with a realistic risk of danger.
[36] In these circumstances, it is not appropriate for this court to make the factual determinations required to decide these issues. It is not the role of this appellate court to engage in a reassessment of the evidence in this case not resolved by the trial judge where the trial judge's reasoning is not apparent from the reasons. Put another way, this appeal court ought not to substitute its own evidentiary analysis.
CONCLUSION
[37] The appeal is allowed and a new trial ordered.
[38] The appellant is ordered to appear in Court 104 at 9:30 a.m. on October 5, 2015 to set a new trial date.
Ricchetti, J.
Released: September 28, 2015
Corrected: June 2, 2016
COURT FILE NO.: SCA 157/15
DATE: 20150928
CORRECTED: 20160602
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MATTHEW WREN
REASONS FOR JUDGMENT
On APPEAL FROM THE JUDGMENT OF THE HONOURABLE A. Cooper, DATED October 27, 2014
Ricchetti, J.
Released: September 28, 2015
Corrected: June 2, 2016