ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN
A. E. O’Marra, for the Appellant
Appellant
- and -
GRAHAM TEASDALE
R.W. Browne, for the Respondent
Respondent
HEARD: November 18, 2015 in Milton
REASONS FOR JUDGMENT
[on appeal from acquittal by
Justice A.D. Cooper on February 10, 2015]
HILL J.
INTRODUCTION
[1] At trial, the Respondent was acquitted of having care or control of a motor vehicle while having a proscribed blood/alcohol concentration in his system.
[2] The Crown appeal of the dismissal of the charge is allowed for the following reasons.
FACTUAL BACKGROUND
[3] Halton Regional Police Service Constable Stephane Verreault, on uniform patrol on February 23, 2014, received a radio dispatch passing along information that an unidentified person who had been consuming alcohol in the Royal Windsor Pub and Eatery (the Royal Windsor) in Oakville was intoxicated and about to drive. The only other available information was that the individual was believed to be driving a gold Buick Rendezvous. There was no information about the identity of the caller.
[4] At about 5:36 p.m., the officer arrived at the pub parking lot and located a vehicle matching the broadcast description. On checking the car’s licence plate, the constable learned that the vehicle was registered to the Respondent.
[5] At 5:44 p.m., Const. Verreault observed the Respondent walking from the pub to his car. He opened the trunk of his vehicle and placed a bag in the trunk.
[6] By the time the constable reached the driver’s door of the Rendezvous, the Respondent was seated in the driver’s seat and the vehicle engine had been turned on. The officer saw the Respondent smoking a freshly lit cigarette. At trial, the witness could not recall if the driver’s window was partly down. In speaking with the driver, Const. Verreault detected an odour of cigarette smoke and a slight odour of alcohol. In his testimony, the constable could not recall whether the Respondent had engaged his seatbelt.
[7] The constable formed a reasonable suspicion that the Respondent had consumed alcohol and was in care or control of his motor vehicle. At 5:51 p.m., the officer read the approved screening device (ASD) demand to the Respondent. A breath sample provided into an ASD registered a “Fail” reading. The Respondent was arrested for having care or control of a motor vehicle while having a blood alcohol concentration in excess of 80 mg. alcohol per 100 ml. of blood. At trial, Const. Verreault had no recall as to whether the Respondent had a cellphone in his possession.
[8] A breath demand for an intoxilyzer test was made. The two intoxilyzer test results were respectively 110 and 100 mg. alcohol/100 ml. blood.
[9] The Respondent testified that on February 23, 2014, he got up early and was at the Royal Windsor by 7:10 a.m. to watch a Canada/Russia Olympic hockey game. He had a fever and heavy cold and took mediation before leaving home – he felt “awful”.
[10] The Respondent testified that he drove his wife’s car as she was off to Kitchener to see her sister and it was agreed that she would take his 4-wheel-drive vehicle with snow tires in the event that there was inclement weather.
[11] On the Respondent’s evidence, he left the pub at about 10:30 a.m. He made the 5 to 10 minute drive home to feed his cats and to take more medicine including Dayquil. By 11:00 a.m., he was back at the pub where he ordered a Shandy (a beer and 7-Up mixture).
[12] The Respondent was cross-examined about the liquid Dayquil medication he consumed before returning to the pub at 11:00 a.m.:
Q. Okay. And how long is that supposed to last?
A. I don’t know.
Q. All right. But would you dispute if I were to suggest to you that it says “do not take this with alcohol”?
A. I suppose, yeah.
Q. And if I were to suggest to you it also says “this may cause dizziness or drowsiness”, do you agree with me on that as well?
A. Yes. I think all pills do.
Q. So taking that with alcohol was also a bad plan, right?
A. I suppose so, yeah.
Q. Okay. Is it fair to say that you’re, you’re relatively inebriated at this point?
A. I, I didn’t think I was, and I’m used to taking Dayquil. It’s not heavy duty. I only had a small amount, so.
In re-examination, with a leading question, the accused gave this evidence:
Q. Do you understand that Dayquil does not contain antihistamine? Is that your understanding?
A. I, I don’t, didn’t know that.
Q. But it’s designed to take during the day as opposed to at night, right?
A. It’s supposed to be non-drowsy is my impression.
[13] According to the Respondent, he exchanged text messages with his wife during the day. In one communication, he asked her to phone him before she left Kitchener. In his in-chief testimony, the Respondent stated:
A. …and then we were to make arrangements for meeting up later.
A. I figured she’d be thirsty. She’d be able to come to the bar, have a drink, maybe even dinner.
Q. At that time what was your plan to get home?
A. My plan was to have my wife pick me up.
Q. And with the phone calls and texts, was that discussed during the phone calls and texts?
A. I don’t really recall. Our normal MO would be she would join me there and we’d go from, from there.
Q. What was your plan that night, or that day?
A. With regards to?
Q. Getting home.
A. I hadn’t made any decision.
Q. At what time? What time are we talking about, sorry.
A. At the end because I knew, I knew how much I’d drank. I knew the police were in the parking lot, or had been seen in the parking lot.
Q. Yes.
A. So my plan was either to either get my wife to pick me up, or find, find another ride home.
Q. Did your plan consist of driving the Buick Rendezvous home?
A. No.
[14] According to the Respondent, in a phonecall with his wife at about 3:30 to 4:00 p.m., he learned that she had left Kitchener.
[15] Under cross-examination, the Respondent stated that before leaving the pub he had five (5) bottles of beer in the form of Shandys and “finished off” with a vodka and orange juice within 10 minutes of going outside. In re-examination, the Respondent maintained that the first three beers he drank “in fairly quick succession” before “slowing down”. When he went to his car, he did not feel the effects of the alcohol:
Q. No, but with, with all those drinks and also in a short – well, I guess not that short, but daytime for the time. You’re feeling pretty good? You’re feeling the alcohol?
A. No. I – no, no.
Q. Well, there was a reason why you said that you had a plan and you weren’t intending to drive, right?
A. Yes.
Q. It’s because you were, you knew that you’d be feeling the alcohol, and, in fact, you were?
A. I didn’t feel the alcohol, but I knew that I shouldn’t be driving.
Q. Okay. Well, you made a, a number of bad choices that day. Would you agree with me?
A. Yes.
[16] Teresa Hawkins was called as a defence witness at trial. She was a long-time employee of the Royal Windsor pub. As of February 2014, she had known the Respondent for 13 to 14 years as a regular customer. She would see him at the pub on average two to four times a week.
[17] Ms. Hawkins testified that she had known the Respondent to leave his vehicle at the pub parking lot and to get a ride home with his wife. It was “usual” for him to get home in this way. To the witness’ recall, the Respondent had also taken a cab or had someone in the bar drive him home.
[18] In Ms. Hawkins’ in-chief testimony, the witness stated that she was the only person to serve alcohol to the Respondent on February 23, 2014 and that he “cashed out” with her at about 4:45 p.m. before her 5:00 quitting time. At trial, the witness was unable to recall the details of the Respondent’s bill – it “wasn’t overly big”. Her impression was that he had paced himself very well and that she had served him about a bottle an hour. There may have been one other 1-ounce drink like a Caesar.
[19] In cross-examination, the witness acknowledged that it was possible that another server had also sold alcohol to the Respondent.
[20] Teresa Hawkins testified that when she left the pub at 5:00 p.m., the Respondent had gone out for a smoke. She had the “impression” that he might be waiting for his wife.
[21] The Respondent’s wife, Halina Teasdale, testified that she exchanged text messages with the Respondent during the day on February 23, 2014. She knew he was the Royal Windsor. To the witness’ recall, she spoke to her husband on the phone just before 4:00 to tell him she was leaving her sister’s home. There was a brief discussion regarding her picking him up at the pub:
Q. All right. And as a result afterwards was there anything else in that call that you can recall?
A. Yes, that he would let me know when he was ready because I was tired. This time I was saying I didn’t think I was, wanted to drop in there, and just to let me know when he’s ready so that I just drive by.
Q. As opposed to going into the restaurant?
A. Correct.
Q. All right. Was there any communication after the – well, was there anything else in that call that you can recall?
A. Not that I can recall.
Q. All right. Do you recall any further conversations or texts, calls or texts from your husband?
A. No.
[22] Ms. Teasdale’s recall was that she arrived back in Oakville about 5:15 p.m. She unloaded her vehicle and waited for a call or text. She had no further communication from her husband. In cross-examination, the witness provided this evidence:
Q. Also, I’m sure it occurred to you that maybe he didn’t drink that much and maybe he’s going to drive home himself, he’s fine, he doesn’t need me, right?
A. At that point, no, I, I didn’t – I can’t recall thinking that.
[23] Ms. Teasdale described the Royal Windsor as “our local” where the Respondent would go a few times a week. There were quite a few times, if he “had a few drinks”, that her husband left his vehicle at the pub. She or a friend would drive him home. The witness gave this evidence in-chief:
Q. Would he ever drive drunk?
A. I don’t think so, no.
Q. And sometimes, I mean am I right that he’s a pretty seasoned drinker if he’s at the bar two to four times, same bar two to three to four times a week? He can handle his liquor?
A. I would guess so, yeah.
Q. I’m asking you about him being able to handle his liquor. He, he can drink a fair bit without, without being overtly drunk. Is that fair?
A. That’s fair.
[24] The Respondent testified that when he exited the pub it was very cold and windy. He got in his car to have a cigarette and to call his wife on his cellphone. Because his fingers “were frozen”, he started the car engine “[t]o get warm”, not to drive away. The Rendezvous, with its automatic transmission, was in Park.
[25] The Respondent testified that when Const. Verreault approached his vehicle, he had the driver’s window partially down, smoking a cigarette and “trying to make a phonecall” which he did not have the opportunity to complete. It was a new phone and he had "great difficulty” with it. Asked in-chief if he had his seatbelt on, the Respondent answered: “I don’t believe I did”. The Respondent informed the trial court that he “was having a cigarette in the car and calling my wife”.
[26] The Respondent testified that if his wife drove to the pub, they would leave his wife’s car overnight in the parking lot. He would retrieve from that vehicle a little attaché case with pills and keys and the gift he had purchased for his wife and placed in the trunk – a hockey sweater. He would do this, as in his words, “I didn’t want to leave it overnight. I’ve had trouble leaving cars there before, and I didn’t want to leave anything exposed”. The Respondent did acknowledge that the lot had become more secure with the installation of security cameras.
[27] In cross-examination, the Respondent acknowledged that there was no firm plan with his wife:
Q. …It wasn’t a firm plan. It was sort of a fluid idea that you figured your wife would be able to, to get you because that’s what she’s done in the past?
A. Yes.
Q. All right. Not a firm plan, fair?
A. Yes.
Q. Okay. And the fluid idea that you had in your mind was that you had assumed, without actually having this conversation with your wife, you had assumed that she would come and maybe have drinks and maybe have dinner with you at the bar and then you would return home together?
A. Yes.
Q. But that wasn’t a, a sure thing at any, at all, right?
A. Correct.
Q. Right. So if she’d stayed late you would have really had no – she would have offered you no way to get home. Is that fair? You’d have to figure out some other way?
A. Correct, yeah.
Q. You didn’t know she was going to come in the bar?
A. I didn’t know if she was going to come in the bar or just pick me up in the car.
Q. Or not pick you up at all?
A. Or not pick me up at all, correct.
Q. And that’s part of the reason why you had the car because if she wasn’t picking you up you might have to drive home?
A. Not after drinking I wouldn’t.
Q. So then there was really no plan because there was, there was always the possibility that you were going to gauge basically at the end of your drinking, can I drive or can I not drive?
A. Yes.
Q. Right. And that’s effectively what you did?
A. Yes.
A. She said she was on the way to Oakville and I wanted her to give me a call when she got to Oakville to find out what we were going to do, what the plan was.
Q. But then you went to the car and turned it on and started it?
A. Yes. That was a lot later, yet.
Q. At the time when you started the car, had you at that point made your decision as to whether you were going to drive or not?
A. No.
(emphasis added)
ADMISSIBILITY ISSUES RELATING TO QUESTIONING OF WITNESSES
[28] During Const. Verreault’s in-chief examination, trial counsel for the Crown, not Ms. O’Marra, sought an indication on the record whether there was “any issue with….utterances” made by the Respondent to the officer and the constable’s “grounds”. Defence counsel replied: “There’s certainly an issue with both”. In light of this, the prosecutor stated that he would lead evidence of the conversation “only…for grounds”.
[29] After leading evidence of some exchanges between Verreault and the Respondent, Crown counsel raised the issue of there being no Charter application:
CROWN COUNSEL: Your Honour, I note, I just realize my friend has indicated there’s a problem with grounds, but there’s no Section 8 before the court.
THE COURT: No.
CROWN COUNSEL: From my understanding, pursuant to Rilling, Bernshaw…
THE COURT: Yes.
CROWN COUNSEL: …various other cases, that if there’s no Section 8 brought I don’t have to prove any of this stuff. I’m happy to do it. So if my friend’s telling me that he now wants to bring a Section 8, I’d rather know before I call the evidence than after.
THE COURT: Oh, there has been no Charter application yet and I think disclosure is pretty clear. You are not bringing any Charter motions?
DEFENCE COUNSEL: No, sir.
THE COURT: Okay.
CROWN COUNSEL Okay.
THE COURT: I agree with you on, on what you said as to the law. We can’t really knock out the, the readings if there’s no Charter application.
[30] In light of the stated positions, the prosecutor stated to Const. Verreault, “I’m not going to take you to the wording of grounds and all that stuff given that there’s no challenge to any of it”. Despite this statement, for reasons which are not apparent, Crown counsel then led evidence about the contents of rights to counsel and a police caution as well as responses by the Respondent. In addition, the prosecutor elicited from the officer that the Respondent told him that he had consumed three beers during the course of the day and that when asked how he had intended to get home, the Respondent answered, “My car”.
[31] When during defence counsel’s cross-examination of the constable, the witness was questioned about observations of the Respondent’s gait and walking ability in the Royal Windsor parking lot, Crown counsel queried the relevance of the line of examination given that grounds were not in issue and the charge before the court was “over .80”, not impaired care or control. In response, defence counsel informed the Court that he was pursuing a point but did not articulate what the point was.
[32] Subsequently, defence counsel cross-examined Const. Verreault about conversations between himself and the Respondent outside the Royal Windsor.
[33] In his evidence in-chief, the Respondent was questioned about discussion with Const. Verreault including that he was “pretty sure” he told the officer that he was getting home from the pub “by car”.
[34] In cross-examination of the Respondent, the prosecutor questioned the witness about differences between his trial evidence and the amount he told the investigating officer he had had to drink on February 23, 2014, including not having told the officer about consuming a vodka and orange juice. When the Respondent stated that his arrest was some time ago and he had been under pressure at the time when approached by Verreault, Crown counsel asked, “Is it instinctive for you to lie when you’re under stress?”
[35] Also during cross-examination, Crown counsel raised this subject with the Respondent:
Q. Did you have a discussion with anybody in the bar about you driving home?
A. I think I did, yes.
Q. Okay, and who was that?
A. It was the lady I was sitting next to.
Q. Okay.
A. Because she was – sorry, go ahead.
Q. No, go ahead.
A. She saw me trying to make the telephone call.
Q. But she, I take it, was…
A. And I was….
Q. …adamant that you shouldn’t drive home?
A. Pardon me?
Q. She was telling you not to drive?
A. No.
[36] Subsequently, this exchange occurred during defence counsel’s in-chief questioning of Teresa Hawkins:
DEFENCE COUNSEL: So, so my question then in response to [Crown counsel’s] concern, did you have any conversations with Graham to, to come up with that…
CROWN COUNSEL: Again, that’s a self-serving statement. That’s not admissible either.
THE COURT: I think we better stay away from that, okay.
DEFENCE COUNSEL: Sure, thank you.
THE COURT: I don’t remember your client testifying that he told this witness about his plan either.
DEFENCE COUNSEL: All right, thank you.
TRIAL SUBMISSIONS
The Defence
[37] At trial, it was submitted on behalf of the Respondent that there was evidence rebutting, on a balance of probabilities, the s. 258(1)(a) Code presumption that once discovered occupying the driver’s seat of a motor vehicle, an accused is deemed to be in care or control of that vehicle. It was submitted that there was an “alternate plan”. The Respondent was seated in his running vehicle to smoke, stay warm and contact his wife to arrange a pick-up. He was not wearing a seatbelt. He had no intention of driving. There was no risk of a change of mind on the Respondent’s part – he “had a cellphone and…was making arrangements”. The trial record included evidence from more than one witness that the Respondent routinely used other means to get home from the Royal Windsor.
[38] Defence counsel informed the trial judge that the Respondent’s statement to the officer of “by my car” or “my car” should be taken as a reference to his vehicle being driven by his wife.
The Prosecution
[39] Crown counsel submitted to the trial judge that the s. 258(1)(a) presumption had not been rebutted by the Respondent. It was argued that the Respondent returned to the pub in the Rendezvous by 11:00 a.m. with an intention to drive home after an afternoon of drinking and socializing. There had been problems leaving a vehicle overnight at the pub.
[40] It was submitted that if the Respondent was awaiting a pick-up, he would not have placed the hockey sweater in the trunk as opposed to in the car interior.
[41] It was further submitted that apart from the care or control presumption, the evidence supported proof of the criminal allegation – after drinking alcohol to the point of a proscribed blood/alcohol level, the Respondent was in the driver’s seat of a running vehicle posing a realistic risk of danger of setting the vehicle in motion. There was an absence of credible and reliable evidence of an alternate plan implemented by the Respondent. The plan described by the defence “was not remotely concrete”.
TRIAL COURT’S REASONS FOR JUDGMENT
[42] Without taking a recess following the submissions of counsel, the trial judge delivered these reasons dismissing the charge:
[1] I found all the witnesses to be very good. Officer Verreault, I thought gave exceptionally good evidence, and he did not try to gild the lily in any way. He said though that there were no signs of alcoholic consumption or inebriation, even though he did not use that word, apart from the odour of alcohol.
[2] Now, the readings were 110 and 100, which are not really very high even though he is over the legal limit. But I find as a fact that he was not impaired in the classic sense of the word even though he was over 80. So, I do not think he would be a person as in the Boudreault case described in paragraph 41 as an “inebriated person”, in my view. So I do not think there was any real risk of danger here of setting the car in motion.
[3] Now, Mr. Khoorshed says well what about later on, and so forth, but we are dealing with this particular moment. It was left open by Mr. Teasdale that he might have his wife pick him up, or he might have a friend. He has taken a cab before, or if he was apparently of the view that he was fine to drive then he might have driven himself. He was quite honest about that.
[4] I could not find any major inconsistencies in the defence evidence even though there were some minor ones. I found that his wife sounded honest; he sounded honest. And Ms. Hawkins has known this man for 13, 14 years. She served him that night. She had her eye on him. She is trained in Smart Serve. She is aware of the liability that pubs have to let drunken patrons leave.
[5] What happened here, in my view, is that somebody did not like Mr. Teasdale, and there were animosities and they called the police. And what is Officer Verreault to do and Officer Bingham but just to go and investigate. That is their job, and they did it, and they did it thorough[ly]. But the question comes down to intent. Now, why would he put the sweater in the car? Well, these people might steal the sweater, I suppose, although there is no evidence of that, but if there are animosities in the pub then one would think one would want to protect one’s property somehow.
[6] Whether he was [using] the words “my car” or “by car”, his wife said it was too far to walk to the pub, so one way or the other it would be by car. If he meant “my car”, it could have been the Subaru, which his wife was going to drive. So it is not clear, it is not crystal clear as one might think. I am not sure a definite plan had to be in place as long as there was no risk. I find that I am relying on Section 258(1) (a) of the Criminal Code with the presumption that he, the defendant, then gets behind the wheel and has the care and control, he is presumed “to have care and control”, and here the motor was on. Then he has to rebut that presumption on the balance of probabilities. His explanation, that is Mr. Teasdale’s explanation, was, and Officer Verreault said it was very cold outside, his explanation was that he went outside to smoke because he could not smoke inside the club, Mrs. Hawkins said that. He wanted to call his wife, and because it was cold he got in the car and turned on the engine to warm up. That is the explanation. So based on that, that is a reasonable excuse in my view, and in my view meets the test on a balance of probabilities.
[7] I find in all the circumstances he is not guilty as charged. That is the judgment of the court. Thank you.
APPELLATE POSITIONS
Appellant
[43] The Appellant/Crown advanced these grounds of appeal:
(1) the trial court’s finding that the s. 258(1)(a) presumption had been rebutted was unreasonable and against the weight of the credible evidence
(2) apart from the presumption, the trial judge’s conclusion that an alternate plan existed, capable of overcoming the realistic risk of danger presented on the facts of the case by an accused with an over .80 blood/alcohol concentration in a running vehicle, was unreasonable and against the weight of the credible evidence
(3) the trial judge erred in taking into consideration irrelevant facts and in relying upon facts not found in the evidence – that the Respondent put the hockey sweater gift in the vehicle trunk to protect that property from persons in the pub who did not like him.
Respondent
[44] The Respondent submitted that the appeal should be dismissed because the Crown failed to raise a question of law as required by s. 686(1) (a)(i) of the Criminal Code.
[45] Specifically, it was also argued that:
This Honourable court is not entitled to review any finding of fact on an appeal from an acquittal wherein the Crown had elected to proceed summarily at trial.
[46] It was submitted that the trial judge applied the correct law and correctly applied that law to the facts. The trial court made no error of law in finding that the Respondent had rebutted the s. 258(1)(a)(i) presumption of care or control. It was further submitted in the Respondent’s Factum that:
- The learned trial judge committed no error of principle in outlining the applicable law. He correctly applied the law to the evidence by finding that the case of Boudreault can be distinguished from the specific facts of the case-at-bar in that there is “evidence to the contrary”, namely that the respondent was not an inebriated individual and therefore did not pose a realistic risk of danger to set the vehicle in motion in the particular circumstances of this case.
R. v. Boudreault 2012 SCC 56, [2012] S.C.J. No. 56 at paragraphs 41 and 48
Transcript, page 101, lines 15-3; page 110, lines 14-24
- The learned trial judge correctly found on the evidence that the appellant failed to establish impairment and a present ability to set the vehicle in motion.
R. v. Boudreault 2012 SCC 56, [2012] S.C.J. No. 56 at paragraphs 41 and 48
Transcript, page 110, lines 14-24
- In any event, the learned trial judge correctly held that the respondent adduced credible and reliable evidence tending to prove that no reliable risk of danger existed that the respondent would at any point intentionally set the vehicle in motion. This finding of fact is not reviewable on an appeal by the Crown, and no question of law exists that could give the Crown ground to appeal the respondent’s acquittal.
R. v. Boudreault 2012 SCC 56, [2012] S.C.J. No. 56 at paragraphs 50 and 54
Transcript, page 110, lines 14-24
ANALYSIS
[47] Before turning to the core issues in this appeal, some observations are warranted on aspects of areas of examination in the summary conviction trial.
[48] Unfortunately, there was some confusion relating to the need for the trial prosecutor to elicit from Const. Verreault evidence as to grounds of belief and communication of rights to counsel and cautions. The defence had not filed a Charter application prior to trial. It is not clear why verbal exchanges between the constable and the Respondent were explored in-depth during examination in-chief and cross-examination of the officer. Be that as it may, Crown counsel’s subsequent cross-examination of the Respondent, designed to impeach credibility by comparing utterances attributed to the Respondent at the scene of arrest with his trial testimony, breached the prohibition against such use of constitutionally-protected pre-trial statements to the police as described in R. v. Rivera, 2011 ONCA 225, at paras. 105-6, 124, (leave to appeal refused [2011] S.C.C.A. No. 234) and similar authorities.
[49] After an objection by Crown counsel, trial counsel for the Respondent was improperly prevented from questioning Teresa Hawkins as to discussions the Respondent may have had with the witness relating to a plan to get home. In earlier cross-examination of the Respondent, Crown counsel was the one who had opened up the subject as to whether the Respondent had spoken to anyone at the pub about how he was getting home. The approach of the trial judge in preventing defence counsel from questioning Hawkins further, by reliance on the rule in Browne v. Dunn, was misplaced – the rule, as a general principle, relates to weight and is not a fixed rule of admissibility of evidence: R. v. Quansah, 2015 ONCA 237, at paras. 79-81; R. v. Poole, 2015 BCCA 464, at paras. 40-47.
[50] Leaving these observations to the side for the moment, because they do not materially factor into the result of the appeal, and turning to this court’s jurisdiction in a Part XXVII Code summary conviction appeal, the Respondent submitted that the Crown was limited to a question of law alone. In oral argument, Ms. O’Marra agreed with this proposition. That is not a correct interpretation of this court’s jurisdiction. Consistent with an unbroken line of authority on the point, in R. v. Kendall (2005), 2005 21349 (ON CA), 75 O.R. (3d) 565 (C.A.) (leave to appeal refused [2005] S.C.C.A. No. 387), the court stated at paras. 45-46:
The appellant argues that a different standard applies to the assessment of the adequacy of reasons for an acquittal. She asserts that the sufficiency of reasons for an acquittal must be determined in the context of the Crown's limited rights of appeal from an acquittal, in contrast to an accused's broader rights of appeal against a conviction. She also submits that the assessment of the adequacy of reasons for an acquittal is informed by considerations that arise from the presumption of innocence and the Crown's obligation to prove an accused's guilt of the crime charged beyond a reasonable doubt.
Under s. 813 of the Criminal Code, the Crown may appeal from an order that stays proceedings on an information or dismisses an information. Unlike in indictable matters, the Crown's right of appeal in summary proceedings is not limited to questions of law alone and the Crown may appeal on questions of fact, including on the basis of an allegation that the verdict is unreasonable: see R. v. Wilke (1980), 1980 2878 (ON CA), 56 C.C.C. (2d) 61 (Ont. C.A.) at the end of the document]. As on an appeal by an accused, the summary conviction appeal court may not retry the case: see R. v. Century 21 Ramos Realty Inc. (1987), 1987 171 (ON CA), 58 O.R. (2d) 737, [1987] O.J. No. 178, 32 C.C.C. (3d) 353 (C.A.), leave to appeal to S.C.C. refused (1987), 38 C.C.C. (3d) vi.
(emphasis added)
[51] Counsel correctly submitted that the issue for the trial court, apart from certain credibility determinations, was the application of R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 to the facts of the case. The substance of that authority provides this guidance:
(1) “care or control” of a motor vehicle in the context of s. 253(1) of the Code is defined in these terms:
…"care or control", within the meaning of s. 253(1) of the Criminal Code, signifies (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.
It is settled law that an intention to set the vehicle in motion is not an essential element of the offence.
(emphasis of original)
(2) the determination of a realistic risk of danger to public safety “is a matter of fact” (paras. 11, 50) and:
34 The risk of danger must be realistic and not just theoretically possible… But nor need the risk be probable, or even serious or substantial.
35 To require that the risk be "realistic" is to establish a low threshold consistent with Parliament's intention to prevent a danger to public safety. To require only that the risk be "theoretically possible" is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct.
48 I need hardly reiterate that "realistic risk" is a low threshold and, in the absence of 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. To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case.
(emphasis of original)
(3) ordinarily, an accused with a proscribed blood/alcohol level, occupying the driver’s seat of a motor vehicle, creates an inherent risk of danger:
12 I recognize, as the trial judge did, that a conviction will normally ensue where the accused, as in this case, was found inebriated behind the wheel of a motor vehicle with nothing to stop the accused from setting it in motion, either intentionally or accidentally.
13 Impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol or drugs. 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.
37 Accordingly, an accused found in the driver's seat will be presumed, as a matter of law, to have care or control of the vehicle, unless the accused satisfies the court that he or she had no intention to drive - an intention that, pursuant to Ford, is not an essential element of the offence!
38 At a minimum, the wording of the presumption signifies that a person who was found drunk and behind the wheel cannot, for that reason alone, be convicted of care or control if that person satisfies the court that he or she had no intention to set the vehicle in motion. Dickson C.J. made this plain in R. v. Whyte, 1988 47 (SCC), [1988] 2 S.C.R. 3, at p. 19: "It cannot be said that proof of occupancy of the driver's seat leads inexorably to the conclusion that the essential element of care or control exists ... ."
39 Put differently, s. 258(1)(a) indicates that proof of voluntary inebriation and voluntary occupancy of the driver's seat do not by their coexistence alone conclusively establish "care or control" under s. 253(1) of the Criminal Code. Something more is required and, in my view, the "something more" is a realistic risk of danger to persons or property.
45 … anyone found inebriated and behind the wheel with a present ability to drive will - and should - almost invariably be convicted.
(emphasis of original)
(4) an accused found occupying the driver’s seat of a motor vehicle, with no present intention to drive, will not necessarily escape liability:
41 A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control. On the other hand, an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion - without intending at that moment to do so - may nevertheless present a realistic risk of danger.
42 In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise [when] an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; 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.
(emphasis of original)
(5) because attention to the particular circumstances of each case is essential, a trial court may be asked to consider whether an accused had arranged an “alternate plan” to ensure safe transportation home:
52 The impact of an "alternate plan" of this sort on the court's assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused. A plan may seem watertight, but the accused's level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward.
[52] In assessing whether the Respondent represented a realistic risk of danger to public safety, the trial court seized upon Justice Fish’s reference to “[a]n inebriated individual” at para. 41 of Boudreault as the standard by which to measure the danger posed by the Respondent. Relying (1) upon the absence of “signs of alcoholic consumption or inebriation”, and (2) finding the Respondent not to have been “impaired in the classic sense of the word”, and (3) finding that Ms. Hawkins did not consider the Respondent to be a drunken patron, and (4) apart from an odour of alcohol, with intoxilyzer readings described as “not really very high”, the trial court concluded that “there was [no] real risk of danger here of setting the car in motion”.
[53] This approach, with respect, not only misinterpreted the proper test for determining realistic risk of danger but was also an unreasonable finding of fact.
[54] Boudreault was a case involving an accused charged with both care or control of a motor vehicle while impaired by alcohol and while having a blood/alcohol level exceeding 80 mg alcohol/100 ml blood. In these circumstances, it is hardly surprising that Justice Fish used the expression “inebriated” as a general descriptor. He employed that same word at paras. 3, 12, 18, 42, 44 and 45 of his judgment.
[55] However, that phrasing was not definitionally limited to the driver who exhibits impairment to operate a motor vehicle, the approach taken by the trial court in the present case, but was also inclusive, as it made clear at paras. 9, 13, and 33 of the judgment, of the person whose blood/alcohol level exceeds the legal limit.
[56] There was no charge of impaired care or control in this case. There was no dispute at trial as to the accuracy of the intoxilyzer readings and accordingly it was not for the court to assess whether the Respondent was inebriated or drunk or had tested “low” on the intoxilyzer – the Respondent’s blood/alcohol level, exceeding the legal limit, constituted him a danger in the sense of a realistic risk to place his vehicle in motion.
[57] This error on the part of the trial judge impacted the court’s path of reasoning as it evident by the trial judge’s observation that, “I am not sure a definite plan had to be in place as long as there was no risk”. Put differently, it appears that the court’s erroneous and unreasonable conclusion that the Respondent posed no danger or risk to safety, though sitting in the driver’s seat of a vehicle with its engine running and with a blood/alcohol level exceeding the legal limit, made the absence of an implemented, concrete and realistic alternate plan to be of limited relevance.
[58] The evidence at trial established that, in the past, the Respondent had returned home from the Royal Windsor by driving himself home, getting a ride with his wife or a friend, or by taking a taxi. Apart from Ms. Teasdale’s evidence that she expected she would get a text or phonecall from her husband if he required a ride, the Respondent’s own evidence about a firm plan was inconsistent, contrary to the trial court’s conclusion that there existed no “major inconsistencies in the defence evidence”. While some responses of the Respondent suggested that he knew he had had too much alcohol to drink to drive himself home and would therefore require another plan, in answers to other questions he clearly left open deferring the decision until he was in his vehicle with the engine running (see para. 27 above). While constituting a danger to public safety, a thought about an alternate plan, keeping the plan open as an option, or even an attempt to arrange a plan, do not amount to a concrete implemented plan as described in Boudreault.
[59] In regard to an alternate plan, the trial judge stated in his reasons for judgment:
It was left open by Mr. Teasdale that he might have his wife pick him up, or he might have a friend. He has taken a cab before, or if he was apparently of the view that he was fine to drive then he might have driven himself.
I am not sure a definite plan had to be in place….
…Mr. Teasdale’s explanation…was…that…[h]e wanted to call his wife….
[60] On the whole of the trial record, when the Respondent, with a blood/alcohol level over the legal limit, occupied the driver’s seat of his vehicle, with the engine running, only a 5-to-10 minute drive from home, possessing a cellphone he had trouble operating, with his wife’s gift in the vehicle trunk, there was no implemented, concrete and reliable plan in existence.
[61] The trial court erred in finding that the Respondent had rebutted the presumption of care or control in s. 258(1)(a) of the Code and in any event further unreasonably concluded on the whole of the evidence that the offence had not been proven.
CONCLUSION
[62] The appeal is allowed. The acquittal is set aside and a conviction substituted. The matter will be remitted to the trial judge to impose sentence.
[63] Mr. Teasdale is ordered to appear on January 25, 2016 at 10:00 a.m. in Ontario Court of Justice courtroom #2 at 491 Steeles Avenue East in Milton to set a date for sentencing.
Hill J.
DATE: December 11, 2015
COURT FILE NO.: SCA 16/15
DATE: 2015 12 11
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
RE: R. v. GRAHAM TEASDALE
COUNSEL: E. O’Marra, for the Appellant
R.W. Browne, for the Respondent
HEARD: November 18, 2015
REASONS FOR JUDGMENT
[on appeal from acquittal by Justice A.D. Cooper on February 10, 2015]
Hill J.
DATE: December 11, 2015