Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
ELAHE SALEHI Appellant
COUNSEL:
Melissa Mandel, for the Crown, Respondent
Kim Schofield, for Ms. Salehi, Appellant
HEARD: October 19, 2016
BEFORE: R. F. GOLDSTEIN J.
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
[1]
Background
The police found Ms. Salehi asleep in her car at 2:46 am on August 3, 2014. She was in the driver’s seat. There was a passenger in the car. He was also asleep. The officers noted that there was a smell of alcohol in the car and arrested her. She was taken to the police station. She provided two samples of her breath. There was no question that she was well over the legal limit. A toxicologist provided an opinion that between 2:30 am and 2:40 am that night her blood alcohol concentration would have been between 120 and 170 mg of alcohol in 100 millilitres of blood.
2Section 258(1)(a) of the Criminal Code sets out a presumption where a person is found occupying the driver’s seat of a car. A person is deemed to have care and control unless she establishes that she did not occupy the driver’s seat for the purpose of setting the car in motion. The person must satisfy the court on a balance of probabilities that she had no intention of driving: R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 at para. 37; R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3 at para. 28.
[3]
Analysis
The sole issue in the case was whether Ms. Salehi had rebutted that presumption. The Appellant concedes that the trial judge set out the test correctly but argues on appeal that he misapprehended the evidence. The Appellant argues that the theme of the trial judge’s reasons was this: a reasonable person would not have done what she did, and therefore she was not credible. In other words, she says, the trial judge assessed credibility against a reasonable person standard.
4I respectfully disagree. The trial judge’s findings of credibility are obviously entitled to deference from this court. If there has been a misapprehension of the evidence it must be material to the reasoning of the trial judge that resulted in a conviction: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R 732.
5The trial judge was faced with a story from Ms. Salehi about how she got to the music concert and how she got back to her car. The trial judge found that her story was convoluted, implausible, and inconsistent. The Appellant identified only one real factual error made by the trial judge. It was an error regarding the Appellant’s testimony about the location of the music concert. It was clearly not a significant error. It played no role in the reasoning process. The trial judge’s other findings of fact were amply supported by the evidence. He properly instructed himself on the law and identified the key issue in the case. He then analyzed the evidence. His reasons for rejecting the evidence of the Appellant and finding that she had not rebutted the presumption were cogent and clear. I see no error.
[6]
Disposition
The appeal is dismissed.
R.F. Goldstein J.
Released: October 21, 2016
CITATION: R. v. Salehi, 2016 ONSC 6539
COURT FILE NO.: 31/16
DATE: 20161021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
ELAHE SALEHI Appellant
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
R.F. Goldstein J.