Court File and Parties

COURT FILE NO.: 13-A10542 DATE: 2016/05/04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JENNIFER SADAKA-ALBERTI Appellant

Counsel: Moiz Karimjee, for the Crown Howard L. Krongold, for the Appellant

HEARD: April 13, 2016

REASONS FOR DECISION Sheard J.

Overview

[1] This is an appeal from the decision of Nadelle, J. of November 26, 2014, convicting the Appellant, Jennifer Sadaka-Alberti, of having the care or control of a motor vehicle while having in excess of 80 milligrams of alcohol in 100 millilitres of blood, thereby committing an offence contrary to section 253(1)(a) and (b) of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (“CCC”).

[2] At the time of her arrest, the Appellant was found asleep in the driver’s seat of her car at the side of the road. Her car tire had blown and she had called a tow truck. The Appellant argues that the trial judge failed to correctly apprehend or consider the totality of the evidence, which led to a miscarriage of justice when the trial judge convicted the appellant of care and control of her vehicle.

[3] The essential facts are summarized below:

(a) At around 4:00 a.m. on April 27, 2013 the Appellant left her friend Angie’s house. The Appellant admitted to having had three glasses of wine over the course of the prior evening and that morning. She had planned to stay the night but when Angie asked the Appellant to go home because a male friend was coming over, the Appellant left and set out in her car for home.

(b) The Appellant had not driven far before her tire blew out. She pulled over to the shoulder and got out to look at the tire. She saw the tire was blown and that the rim and the flap behind the tire were damaged. She walked up the road to try to determine where she was. She returned to her car and called Angie. She got Angie’s voicemail. She left Angie a long message saying what had happened and if Angie could come pick her up.

(c) The Appellant then tried unsuccessfully to reach roadside assistance. She then Googled “Dan’s Towing” and called to ask for a tow. She spoke with the tow truck driver, David Cormack (“Cormack”).

(d) The Appellant spoke again with Cormack, who could not locate her. She got out of her car a second time, walked the other direction and found a landmark, which allowed Cormack to guess her location. Cormack told her he was on his way. The Appellant returned to her car, sat in the driver’s seat, put the key into the ignition, which allowed her phone to be charged, and fell asleep.

(e) Cormack arrived about ten minutes after his last call with the Appellant. He found her asleep in the driver’s seat. He knocked on her window and woke her up. Cormack said that they talked about the flat tire and that the Appellant asked him if he could change the tire. The Appellant denied that: she said she knew the tire and the wheel were too damaged to be driven, even with a spare, and that she did not expect or intend to drive the car that morning. The Appellant said that it was Cormack who insisted that he change the tire.

(f) Cormack’s trial evidence was that when he spoke with the Appellant upon his arrival he noticed the smell of alcohol and that she was slurring her speech. Cormack says that he “agreed” to change the tire, returned to his truck to get his tools and to call police.

(g) Cormack says that he returned to the car and asked the Appellant to help him get at the spare tire. He said the Appellant got out of her car and opened the trunk for him so he could get out the spare tire. The Appellant returned to the car and again fell asleep.

(h) The Appellant disputes that she opened her trunk or helped Cormack access the spare tire. She disputed that the spare was removed from the trunk.

(i) The Appellant and Cormack agree that they spoke more than once by phone before Cormack arrived. Cormack says that when he spoke to the Appellant, she had him listen to the sound that the car made while being driven on the blown tire. The Appellant denied saying that. Cormack said that he heard a “grinding sound” and told her to stop driving.

(j) Both Cormack and the first police officer on the scene, Office Monroe (“Monroe”) agreed that the damage to the rim led them to conclude that the car had been driven on its rim for some time.

(k) Cormack said that he did not do any work on the vehicle but “just stalled and took up his tools slowly” waiting for the police to arrive.

(l) Cormack agreed that the car could “probably” have been driven with a spare but, also, that it might not have been possible to get the spare onto the car because of the damage to the wheel.

(m) The Appellant received a text from Angie before Cormack arrived. She told Angie that she had blown out her tire and that the car was car was “broken”. In that text, the Appellant did not ask Angie to come and get her. The Appellant explained that she did not think Angie would agree to come.

(n) Monroe arrived at 5:26 a.m. He found the Appellant asleep behind the wheel of her car, with the keys in the ignition, engine off. He woke her up. He smelled alcohol on her breath and administered a roadside screening test, which the Appellant failed. Monroe arrested the Appellant and subsequently took her to the police station for a Breathalyzer.

(o) A second police officer arrived approximately 10 minutes after Monroe to arrange to tow the Appellant’s car.

(p) Prior to taking the Appellant to the police station, Monroe turned on the Appellant’s car and drove it for a few feet. He wanted to confirm, which he did, that the car could be driven in its damaged state.

(q) The Breathalyzer test administered on the Appellant at the police station registered readings of .13 and .14. Based on the evidence of Dr. Langille, the Appellant was found to have had a blood alcohol reading in excess of .08 at the relevant time.

[4] The Appellant appeals from her finding of guilt on these main grounds:

1. that at the time she was found in her vehicle, she had no intention of driving the motor vehicle: she had called a tow truck and her evidence was that she expected to be transported home as a passenger in the tow truck;

2. that she had no realistic belief that the motor vehicle could be operated;

3. that the trial judge failed to consider the Appellant’s evidence, which contradicted the evidence of Cormack, that the Appellant had assisted him in accessing the spare tire.

[5] In his Reasons for Judgment (the “Reasons”), the trial judge:

(1) preferred the evidence of the Appellant to that of Cormack on whether he had been dispatched to change a tire or to remove a vehicle. He found the Appellant’s evidence was consistent with that of Monroe that she was seeking a tow, rather than a tire change (Reasons, p. 2);

(2) preferred the evidence of Monroe and Cormack over that of the Appellant and concluded that the car had been driven on the rim for a considerable time (Reasons, p. 3);

(3) accepted the evidence of Cormack that during a telephone call with the Appellant she told him there was something wrong with the tire; asked him to listen to the grinding sound; and that Cormack told her to stop driving, convinced that she was driving on the rim. The trial judge found this conflicted with the Appellant’s testimony that “she pulled into a safe spot rather expeditiously once she blew the tire.” (Reasons, p. 3);

(4) found that Cormack, with the help of the Appellant, got the spare tire from the trunk and that Cormack stalled until the police arrived (Reasons, p. 3). Cormack’s evidence conflicted with that of the Appellant, who denied assisting Cormack accessing the spare tire; and

(5) found that, other than for the phone call (voicemail message) she made to Angie shortly after 4 a.m., the Appellant did not ask Cormack to drive her home, or call anyone else for a ride home. Further, when Angie texted the Appellant in response to the Appellant’s voicemail message, the Appellant did not ask Angie for a drive home (Reasons, p. 4);

[6] After he made his factual findings, the trial judge determined that, as she was sitting in the driver’s seat, the Appellant was deemed to be in care and control of the motor vehicle. He correctly stated that the presumption could be rebutted if the Appellant could satisfy the Court on a balance of probabilities “that her intent was not to set the vehicle in motion” (Reasons, p. 4);

[7] The judge concluded that the appellant had not met that burden. He found “the weight of the evidence” indicated an intention to continue driving once the tire was changed.

[8] The trial judge further found that, even without resort to the section 258 CCC presumption, the appellant was in de facto care and control of the vehicle.

[9] The trial judge further concluded that there existed a realistic risk of danger to persons or property. He found that the car was still drivable as proven by the evidence of Cormack that the Appellant urged him to listen to the “grinding noise the tire rim was making”.

[10] At page 5 of the Reasons, the trail judge specifically found:

The evidence of Cormack also reflects negatively on the accused’s credibility, as she claims not to have driven after the tire blew. Cormack and Constable Monroe’s (ph) evidence as to the extent of damage to the rim also makes the accused’s claim to have pulled over expeditiously very hard to believe. Constable Monroe, while at the scene, was able to drive the car a short distance.”

Position of the Appellant

[11] The Appellant does not allege an unreasonable verdict and acknowledges that this case could have gone either way. The Appellant also does not allege that there was no evidence upon which a judge could convict. Rather, the Appellant pursues this appeal on the grounds that the trial judge erred in law, as evident from the Reasons, by failing to consider all relevant evidence and that the trial judge erred in his assessment of the facts. Stated differently, the Appellant argues that the Reasons contain errors that justify appellate review and that the trial judge misapprehended the evidence which led to a miscarriage of justice.

Standard of Review

[12] An appellate court may allow an appeal and overturn a conviction if the decision:

(a) is clearly unreasonable;

(b) cannot be supported by the evidence;

(c) is wrong in law; or

(d) results in a miscarriage of justice.

[13] Absent an error of law and the Crown cannot demonstrate beyond a reasonable doubt that there was no miscarriage of justice as a result, the onus is on the Appellant to show that the verdict was unreasonable or that there was a miscarriage of justice. (See R. v. Morrissey, [1995] OJ No 639 (Ont. CA), at para. 87 and R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para 82.)

1. Did the Trial Judge Err in concluding that the Appellant failed to rebut the presumption that she had the care and control of her motor vehicle?

Intention to Drive

[14] The Appellant argues that the trial judge misapprehended the evidence concerning whether the Appellant intended to drive. She argues that the Judgment does not review the Appellant’s evidence concerning her belief that the car could not be driven, even with a spare and failed to consider the totality of the Appellant’s evidence that she sought a tow, not a tire change.

[15] The essential elements of ‘care or control” under section 253(1) of the CCC are:

(1) an intentional course of conduct associated with the 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 of danger to persons or property. R. v. Boudreault, 2012 SCC 56, [2012] S.C.J. No. 56 (SCC), at para 33.

[16] The presumption of care and control can be rebutted if the person satisfies the court that he or she had no intention to set the vehicle in motion.

Rebutting the Presumption

[17] The Appellant argues that the evidence was sufficient to rebut the presumption of care and control:

(1) the evidence of Monroe corroborated that of the Appellant that she called for a tow. The Court specifically found: “this evidence seems to be consistent with the accused’s assertion that she was seeking a tow, rather than a tire change”;

(2) the Appellant believed the vehicle was inoperable and did not believe that putting on the spare tire would render the vehicle drivable;

(3) the Appellant’s evidence was that she did not ask Cormack to change the tire and she did not participate or assist in his accessing the spare tire;

(4) the evidence of Cormack that he removed the spare tire uncorroborated;

[18] Cormack, in his testimony, stated that at the scene, the Appellant wanted the tire changed. He also testified he was called to change a tire, which evidence was not accepted by the trial judge.

[19] Notwithstanding the foregoing factual findings, the trial judge stated at page 3 of the Reasons: “Cormack, with the help of the accused, got the spare tire from the trunk.”

[20] The trial judge concluded that the Appellant did not rebut the presumption set out in s. 258 and did not satisfy him on the balance of probabilities that her intent was not to set the vehicle in motion. At pages 4-5 of the Reasons he states:

On the evidence before me, I find that the accused has not – not met that burden. In fact, the weight of the evidence indicates to me an intention to continue driving once the tire was changed. Even without resort to the section 258 presumption, the accused was in de facto care and control…In Ms. Sadaka-Alberti’s case there did exist a realistic risk of danger to persons or property. The car was still drivable, the evidence of Cormack of the accused urging him to listen to the grinding noise the tire rim was making, is proof of that.

[21] The Reasons lead to the clear conclusion that the trial judge accepted the evidence of Cormack that the Appellant changed her mind after he arrived and decided to have the spare tire put on her car so that she could drive it.

[22] This finding is not inconsistent with the evidence of Cormack that the car could likely not be driven with a spare tire. The conclusion reached by the trial judge was not that the car could be driven with the spare tire on it or that the Appellant was correct in believing that it was operable with the spare tire, it was that the Appellant intended to drive the vehicle once the spare tire was put on. The Record shows that there was evidence upon which the trial judge could reasonably have reached that conclusion. Clearly, he accepted the evidence of Cormack on the spare tire issue.

[23] Boudreault’s clear analysis of the offence of care and control is most helpful and has direct application to the facts here. Beginning at the end of paragraph 40:

… Parliament’s intention in enacting s. 253 (1) of the Criminal Code was to criminalize only conduct that creates a realistic risk of danger.

[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 offense of care or control. On the other hand, an accused to 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 in at least three ways. First, 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.

[24] Further, at paragraph 46:

The care or control offence captures a wide ambit of dangerous conduct: Anyone who is intoxicated and in a position to immediately set the vehicle in motion faces conviction on those facts alone.

[25] And finally, at paragraph 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.

[26] The evidence that the Appellant asserts was relevant and that the trial judge failed to consider included:

(a) the Appellant’s evidence that she did not believe the vehicle could be operated, or driven home, on a spare tire. The Appellant’s evidence was she thought the damage was too extensive for the car to be driven without repairs;

(b) that she called for a tow and never changed her mind from that to having a spare tire put on; and

(c) that she expected Cormack to tow her car home and to drive her there in his tow truck and for that reason she did not feel the need to call anyone else to drive her home.

[27] Again, the Reasons show that the trial judge preferred the evidence of Cormack that, after he arrived on the scene, the Appellant asked him to put the spare tire.

[28] The trial judge found as a fact, that other than for her voicemail message to Angie, the Appellant did not ask any other person to drive her home. She did not ask Cormack to drive her home and she did not telephone any other friends or family members to pick her up from the side of the road. Angie texted the Appellant, to ask if she was “ok” and the Appellant replied that the car was “broken”. However, in her text message, the Appellant did not ask Angie to pick her up.

[29] On that evidence it was open to the trial judge to reasonably conclude that the Appellant intended to drive when the spare tire was on.

[30] The Appellant argues that the trial judge neglected to correctly consider the totality of the evidence. Specifically the Appellant asserts that the trial judge failed to consider her evidence, that she did not help access the spare tire or that it was removed from the car, or the absence of any evidence from Monroe about the spare.

[31] I disagree. It is clear from the judgment that the trial judge accepted some, but not all, of the evidence given by the Appellant and by Cormack. There was no evidence from Monroe about the spare – he was not asked about it in Examination in Chief or Cross-Examination. The trial judge was entitled to, and did, weigh credibility as between the Appellant and Cormack. On that basis he reached a conclusion different from that urged upon him by the Appellant.

[32] The Appellant does not argue this appeal on the basis of insufficiency of reasons and accepts that:

…trial judges are “not obliged to discuss all of the evidence on any given point or answer each and every argument of counsel.” While the failure to consider all of the evidence is an error of law, “unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was an error of law in this respect.”: R. v. Morin, [1992] 3 S.C.R. 286, at p. 296. (R. v. Tippett, [2015] O.J. No. 5413 (Ont. C.A.), at para. 27)

[33] Based on the evidence in the Record and the trial judge’s findings of credibility, it cannot be said that the facts found by the judge reveal a “palpable and overriding error”, or one which is “clear to the mind or plain to see” which is required in order to justify or entitle an appellate court to reverse those factual findings. (Houssen v. Nikolaisen, 2002 SCC 33 (SCC)).

[34] It is clear that the trial judge accepted the evidence of Cormack that the Appellant did change her mind; she did ask for or agreed to have a spare tire put on her vehicle; and did intend to drive the vehicle when the spare tire had been put on.

2. Did the trial judge err in concluding De Facto Care and Control?

[35] In addition to concluding that the Appellant had failed to rebut the presumption that she did not intend to operate the motor vehicle, the trial judge also found that the Appellant had de facto care and control of the vehicle which could be driven even in its damaged state.

[36] The Appellant argues that even if the car was operable, in the sense that it could be driven on its rim, that is not enough for a finding of guilt: there must be a realistic risk of danger, the third of the three-part test under section 253(1) of the CCC as set out in Boudreault.

[37] Beginning at para 33, Boudreault, explains the essential elements of “care and control” under section 253(1) of the CCC:

[38] (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 of danger to persons or property.

[34] The risk of danger must be realistic and not just theoretically possible: Smits, at para 60. 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.

[39] Further, at para. 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.

[40] The risk can be a potential danger. In the case of R. v. Vansickle, [1988] O.J. No. 2935 (Ont. Superior Court) at para 7, the court found a potential danger in the case of an inoperable motor vehicle that was stopped in the middle of the road, should the accused have inadvertently or accidently turned off the headlights, which would have created a danger for others travelling on the road.

[41] The evidence was undisputed that the vehicle could be operated: the evidence of both Monroe and Cormack was that the car was still drivable. The Appellant was sitting in the driver’s seat with the keys in the ignition. Therefore, it was open to the trial judge to reasonably conclude, as he did, that there was a realistic risk of danger to persons or property.

Conclusion

[42] For the reasons set out above, I dismiss the appeal.

Madam Justice L. Sheard

Released: May 04, 2016

COURT FILE NO.: 13-A10542 DATE: 2016/05/04 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – JENNIFER SADAKA-ALBERTI Appellant REASONS FOR JUDGMENT Sheard J.

Released: May 4, 2016