R. v. Currie, 2015 ONSC 6107

CITATION: R. v. Currie, 2015 ONSC 6107

COURT FILE NO.: 135/13 SCA

DATE: 20151002

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Appellant

• and -

Raymond Currie Respondent

Mr. Darren J. Hogan, for the Appellant

Ms. Anne Marie Morphew, for the Respondent

HEARD: September 29, 2015

M. Forestell J.

REASONS FOR JUDGMENT

Overview and Issues

1The Respondent was charged with having care and control of a motor vehicle while his blood alcohol level exceeded the legal limit and while his ability to operate a motor vehicle was impaired. The trial judge granted the Respondent’s application for a directed verdict of acquittal at the close of the Crown’s case.

2The Crown appeals the acquittal.

3The Appellant raises two grounds of appeal:

1. The trial judge misapprehended the decision of the Supreme Court of Canada in R.v. Boudreault¹ as displacing the presumption in s. 258(1)(a) of the Criminal Code² and requiring the Crown to prove a realistic risk of danger in all cases of care and control; or

2. If the trial judge was correct in requiring the Crown to prove a realistic risk of danger, there was evidence of a realistic risk of danger based on the location of the vehicle and the actions of the Respondents. The trial judge therefore erred in granting a directed verdict.

Misapprehension of Boudreault in relation to the presumption in s. 258(1)(a)

4The first ground of appeal is that the trial judge misinterpreted the decision of the Supreme Court of Canada in R. v. Boudreault³ as requiring that the Crown to prove that there was a realistic risk of danger to persons or property in order to prove ‘care and control’ even where the statutory presumption is relied upon and not rebutted.

5The Crown submits that the requirement of proving a realistic risk of danger only arises when the accused has rebutted the statutory presumption by satisfying the court that s/he had no intention of setting the vehicle in motion or by satisfying the court that the vehicle was immovable.

6In this case, there is no issue that there was evidence before the trial court that the Respondent accused was in the driver’s seat of the vehicle and there was evidence that he was inebriated. At its highest, the evidence shows that the Respondent believed that the vehicle was not operable because it was out of gas. He was taking steps to obtain gas for the vehicle and he was continuing to attempt to start the vehicle. This is not a case where the vehicle was immovable.

7The Crown relied on the presumption and it could not be said on this record that the accused had rebutted the presumption in s. 258(1)(a).

8I agree that the trial judge misinterpreted Boudreault as requiring the Crown to prove realistic risk of danger even where the statutory presumption was not rebutted. I note that the argument advanced on appeal as to the appropriate interpretation of Boudreault was not advanced before the trial judge nor were the decisions in R. v. Blair,⁴ R. v. Brzozowski⁵ or R. v. Tharumakilasingam⁶ yet decided when the trial judge granted the directed verdict.

9I adopt the reasoning in those decisions with respect to the interpretation of Boudreault. On that reasoning, the presumption of care and control was not rebutted and the directed verdict should not have been granted.

1. The legal test for realistic risk of danger when the presumption does not apply

10In light of my conclusion on the first ground of appeal, it is not necessary for me to consider the other ground raised by the Appellant. However, I find that there is also merit to the Appellant’s argument that even without the presumption it was an error to grant the directed verdict of acquittal. There was some evidence upon which a reasonable jury, properly instructed, could find a realistic risk of danger to persons or property based on the location of the vehicle and the conduct of the Respondent.

Conclusion

11The appeal is allowed, the acquittal set aside and a new trial ordered in the Ontario Court of Justice.

Forestell J.

Footnotes

1. 12012 SCC 56
2. 2R.S.C., 1985, c. C-46
3. 32012 SCC 56
4. 4[2014] O.J. No. 4296 (S.C.J.)
5. 5[2013]O.J. No. 2483 (S.C.J.)
6. 62014 ONCJ 362