COURT FILE: SCA 35/16 DATE: 2017 04 11 ONTARIO SUPERIOR COURT OF JUSTICE (Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN A. A. Khoorshed, for the Appellant Appellant
- and -
RYAN TOYOTA F. Genesee, for the Respondent Respondent
HEARD: April 5, 2017, at Brampton
REASONS FOR JUDGMENT
[on appeal from acquittal by Cooper J. on March 1, 2016]
HILL J.
INTRODUCTION
[1] At trial, Ryan Toyota was acquitted of a charge of having care or control of a motor vehicle while having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams in 100 millilitres of blood, and acquitted of a charge of having care or control of a motor vehicle while impaired by alcohol.
[2] In this Crown appeal, it was submitted that the trial judge erred in formulation and application of the test for care or control.
FACTUAL BACKGROUND
Police Discovery of the Respondent
[3] On Sunday, February 8, 2015, at about 5:15 a.m., Halton Regional Police Service (HRPS) Constable Mark Urie was radioed to attend the visitors’ parking lot of a townhouse apartment building complex at 1440 Tyandaga Park Drive in Burlington. A bylaw officer had phoned for police attendance. The weather was cold with the temperature below zero.
[4] On arrival, Const. Urie found an SUV stationary in a parking space. The vehicle was properly parked with its engine running and lights on. The vehicle was undamaged and drivable. The officer observed the respondent slumped over in the driver’s seat of the vehicle as though he was sleeping. The respondent was not wearing a seatbelt.
[5] Const. Urie opened the unlocked driver’s door of the SUV. The keys were in the ignition and the heat was turned on. The officer shut the ignition off and removed the keys. There was “a very strong smell of an alcoholic beverage” coming from the vehicle and the respondent.
[6] The officer waited a minute and a half to two minutes for the arrival of a second officer before attempting to wake the respondent. As cold air entered the respondent’s vehicle, he began to wake on his own. He was “very groggy”. Asked questions by Const. Urie, the respondent “said several things that were very slurred, completely undecipherable” – the respondent’s speech was “extremely” slurred. After a delay, the respondent exited his vehicle only after being instructed to do so “several times”.
[7] As the respondent stepped onto the pavement, Const. Urie held him steady – “he was extremely unsteady on his feet” continuously making an effort to correct his balance. At this point, the constable noted the respondent to have glossy eyes, very slurred speech, and a strong smell of an alcoholic beverage coming from his mouth.
[8] In his trial evidence, the respondent agreed that he was asleep in his automatic-transmission vehicle with the doors unlocked and the vehicle’s engine on. The witness also agreed that when he was awakened by Const. Urie, he was unaware of what was going on around him and had no idea how long he had been asleep in an intoxicated condition.
[9] At 5:20 a.m., the respondent was arrested for having care or control of a motor vehicle while his ability was impaired by alcohol. Following administration of rights to counsel, caution and a breath demand, the respondent was transported to the Burlington Police station for breath-testing.
[10] In Const. Urie’s view, the respondent’s speech became more normal by the time of his attendance at the police facility. HRPS Const. Pam Douglas, a qualified intoxilizer technician, found the respondent to be talkative and cooperative. She was aware of the smell of alcohol emanating from the respondent’s breath and observed the respondent to have slurred speech and bloodshot eyes with dilated pupils. There was an “obvious” effect of alcohol consumption upon the respondent.
[11] The intoxilizer test results of the respondent’s breath samples, taken at 6:44 a.m. and 7:07 a.m., were respectively 162 and 164 mg. alcohol/100 ml blood.
The Defence Evidence
[12] On February 8, 2015, the respondent was 27 years of age. At trial, he testified on his own behalf and called two witnesses, his good friends Devin Morao and Patrick Moskwa, both of whom found out about the trial only days before it was held.
[13] Mr. Moskwa testified that he moved into a new residence at 1497 Ester Drive in Burlington in December 2014. On Saturday, February 7, 2015, the respondent and Morao came over to help him celebrate his move.
[14] Mr. Morao testified that he was dropped off by his girlfriend at about 9:00 p.m. at Moskwa’s home. He was a resident of Waterdown. The respondent, then resident in Oakville, drove himself to the get-together also arriving at 9:00 p.m. He parked his Acura MDX in the visitors’ parking lot. Moskwa described the lot as down the street from his residence. The three friends drank and watched sports on TV.
[15] In describing the plans for the evening, the respondent informed the trial court that they would “pre-drink”, go downtown to the bars by taxi, and return to Moskwa’s home to spend the night. According to the respondent:
Q. And was there a plan that you were going to stay at his house all night or was the plan – was there a plan in terms of how the night was going to unfold? Share that with us if you remember.
A. Well, yeah, the plan was originally to stay at his house that night because we were – I was going to be drinking and it’s too far for me to go from Burlington all the way to Trafalgar and Dundas.
Q. Okay. So, now what – that’s one part of the plan. Was there any plan with respect to whether you were going to spend the whole evening once you arrived at Pat’s house at Pat’s house or whether you were going to stay there a while, drink there and then go to these other places you went to?
A. Yeah. Like we always – it’s typically how we always do it when we go out, we’ll pre-drink or, you know, like, pre-get-together at someone’s house, go to the bars and then you know, either people go home in their cabs or stay the night at [a] friend’s house.
Q. And you had formulated a plan at that time as to where you were going to spend the night after the night out on the town?
A. I told Patrick even prior to even going to that, like, at the pre-drink, I said, “Is it cool if I – these are – is it cool if I crash at your house?” You know like, “If this is okay if I stay here?” And he said, “Yeah, of course”, so ….
[16] Mr. Moskwa’s initial evidence was to the same effect that early in the evening at his place it was agreed that cabs would be used and then everyone would “sleep over” at his house “at the end of the night”. The witness subsequently expressed some doubt as to whether Morao was part of this plan.
[17] Mr. Morao testified that he was under the “impression” that a plan had been discussed at the outset of the evening that the respondent would stay over at Mr. Moskwa’s home – it was “talked about just in conversation”. The witness testified that he understood that the respondent would then go home in the morning. Mr. Morao intended to go home by cab.
[18] Mr. Morao testified that the respondent had previously, a number of times, stayed over at his house rather than drive home under the influence of alcohol. He had also stayed over at the respondent’s home in similar circumstances when under the influence of alcohol.
[19] The witnesses gave these estimates of the alcohol consumed at the residence: Morao – 5 or 6 beers; the respondent – drinking but quantity unknown; Moskwa – 3 drinks.
[20] After drinking at Mr. Moskwa’s home, the respondent and his friends proceeded by taxi to Italia, a bar in downtown Burlington. According to Mr. Morao, there were a number of hours of drinking and having a good time. Mr. Moskwa recalled that he indulged in more drinking than he should have. He became drunk as did his two friends. According to Mr. Morao’s testimony, they all became impaired by alcohol – he was “[m]ore or less” “drunk”. The respondent testified at trial that he too consumed alcohol to the point of being drunk.
[21] Late in the evening, Mr. Moskwa began to feel ill – he felt nauseated and highly intoxicated. The witness has no recall of any conversation he may have had with the respondent and Morao before leaving Italia to go home in a taxi – the witness appeared unsure whether he spoke to his friends before leaving, “[t]he plan was for them to come over”. In cross-examination, Mr. Moskwa gave this evidence:
Q. … well, you would’ve probably said, “Ryan and Devin”, but, “Mr. Toyota, Mr. Morao …”
A. Mm-hmm.
Q. “…here’s what we’re going to do. I’m gonna leave the key in the mailbox. Knock three times I’ll come down.” There’s no sort of discussion like that. More of a, “I don’t feel good, I’m going home, see you later.”
A. Right.
Q. If anything.
A. Right.
[22] Mr. Morao recalled his friend leaving early as he felt unwell. The respondent too recalled Moskwa leaving separately, either because he felt unwell or was intoxicated. There was no specific discussion about when or how the respondent was to get into his friend’s home – Moskwa just said, “I don’t feel well, I’m going home”. In cross-examination, the respondent gave this evidence:
A. I just remembered him leaving.
Q. So you actually don’t remember discussing why he was leaving.
A. Well, no because he said he was ill so he left.
Q. Did he just say to you, “I’m ill, I’m out”?
A. He said, “I don’t feel well, I’m going home”.
Q. Is that all he said to you?
A. Yes.
Q. So there was an opportunity for you to discuss how you’d get into his place, correct?
A. Correct.
Q. And you did not seize that opportunity?
A. No.
Q. You agree with me that if you had been thinking clearly and wanted a sure definite plan that was the moment to make sure it would work out; correct?
A. Correct.
[23] According to Mr. Moskwa’s evidence, once he arrived home, he locked the front door of his dwelling and made it to a couch in his livingroom where he passed out falling asleep fully dressed.
[24] The respondent and Mr. Morao left Italia and went to Montfort’s, a restaurant, where they ate some food but did not consume alcohol. They stayed 30 to 45 minutes before taking a taxi to Mr. Moskwa’s townhouse.
[25] According to Mr. Morao, he next travelled in a cab with the respondent dropping him at Moskwa’s home before going on to his home in Waterdown in the taxi.
[26] The respondent testified in-chief that after the taxi left with Mr. Morao, at 2:00 to 2:30 a.m., he began “pounding” on the locked front door of Mr. Moskwa’s townhouse. There was no response. His cellphone had lost its charge earlier in the evening and he had no phone charger in his vehicle. The plan to stay the night had unexpectedly changed.
[27] The respondent explained his next decision:
A. … so I figured my car is there, I’m just going to start my car.
A. I just started the car just so you could activate the heat and then I was just going to go to sleep there, like, using it as a bedroom.
Q. Okay. So what was your plan – what was your plan even at that time? We know the earlier plans; what was your plan at that time?
A. Yeah, so basically it was to go to sleep and then I was going to wake up in the morning and then when Patrick, you know, when it’s morning time and he’s up I can knock on his door and we can go for breakfast, and you know.
A. … I couldn’t get into his house so I figured I’ll just go to my car and sleep.
Q. And that it wouldn’t have taken much effort to move the car if you had made a conscious decision to do so.
A. Well, no, it would because I mean, I – again, I had no intentions of ever driving that vehicle. If I wanted to drive that vehicle I would have drove that vehicle; right. I was conscious enough to get into the car, to start the car, turn on the heat – if I wanted to drive I think I could have drove but I had no intentions of driving.
[28] The respondent testified that he expected that when he woke up Sunday morning at “seven, eight, nine o’clock, whenever”, he would again knock on Moskwa’s door. If necessary, he could then make a little more noise at the door. In cross-examination, the respondent conceded that he had no idea when his friend would wake up – it was not “certain” that Moskwa would answer his door knocks. Questioned further as to what he would have done had there been no response, the respondent suggested that he could have borrowed someone’s cellphone to phone a taxi or his girlfriend. Pressed about this answer, the respondent gave this evidence:
A. I can borrow people’s cellphones. People are awake, right?
Q. So, you’re telling me, Sir, that if you had woken up – if you had woken up, knocked on the door, he didn’t answer, you felt find that you wouldn’t have just gotten in your car and driven for breakfast?
A. No, because we had plans that morning, we were going to go for breakfast. Like, that’s what we always do, like the night – you know, after the night we go out we always go for breakfast the next morning and like hang out for a bit, and like talk about the night and you know.
Q. What time would you have been prepared to get behind the wheel of your car?
A. Probably by 12 o’clock, like at noon.
Q. You were going to make a judgment call that you were sober enough to drive; correct?
A. If I was sober enough at that point, yes, I would drive.
Q. You were going to make that call on your own and then get behind the wheel.
A. Well, if I was sober at that point.
Q. Right. You were, you were – you didn’t have a breathalyzer, you would have to see how you felt and make that decision, correct?
A. Possibly, yes. But I would imagine after eating breakfast, after a full night sleep, you know typically most people would so the same judgment as that.
Q. Right. You’d be assuming that your blood alcohol concentration was at a legal limit to drive and then you’d get behind the wheel is what you just said.
A. Sure, correct.
Q. Well, we’ve already agreed your intention was to drive the next day, the question was at what time; correct?
A. Sure, when I’m sober.
Q. Based on your determination of when you were sober, correct?
A. Correct.
[29] In cross-examination, the respondent maintained that he did not pass out in his vehicle – he fell asleep. The witness conceded that he did not consider sleeping in the rear seat lying down.
[30] The respondent variously testified about whether the driver’s seat was reclined:
I would imagine it was …
… it was reclined a bit … slightly.
Under further questioning, the respondent acknowledged that he was “guessing”.
[31] Mr. Moskwa testified that when he awoke on Sunday morning, he tried to phone the respondent. This was unsuccessful. He “assumed” that his friend had taken a cab “or found some other transportation with [Morao] to get home” and was at home “sleeping it off”.
TRIAL SUBMISSIONS
Crown/Appellant
[32] At trial, the prosecutor submitted that the evidence was not credibly consistent that the respondent and his friends intended to stay the night at Moskwa’s residence. In any event, such as that plan may have been, it unexpectedly fell apart once Moskwa separated from his friends, went home early, locked his door, and passed out.
[33] In a highly inebriated state, the respondent assumed care or control of his motor vehicle occupying the driver’s seat and activating its fittings including a running engine. The evidence established that the respondent passed out once in his vehicle.
[34] There was no concrete plan to meet Moskwa the next morning for breakfast. On the evidence, there was a realistic risk that the respondent would awaken, attempt self-assessment as to his sobriety, change his mind about not driving, and then drive off home. This is precisely the risk of danger to public safety which the ‘care or control’ proscription is designed to deter.
Defence/Respondent
[35] At trial, the defence emphasized that broad context was important – the respondent and his friends had a history of not drinking and driving, of taking taxis, and sleeping over at one another’s homes – a profile of responsibility. On February 7/8, 2015, this was again to be the case. Taxis were used to and from downtown Burlington.
[36] There was “a plan” for the respondent to stay over at Moskwa’s residence. This plan then unexpectedly changed resulting in the respondent using his vehicle as a bedroom without an intention to drive – he was not wearing a seatbelt and the engine was running to allow operation of the car’s heater on a cold morning.
[37] The plan to stay at Moskwa’s was implemented “to the extent it could be” – it was “the next best thing”. It was “unlikely that he [the respondent] was going to change his mind” and drive – he was to spend the next morning with his friend, Moskwa. He had no intention to drive away. There need not be “a perfect plan” – here it was “concrete enough” with no realistic risk of danger. It was submitted that, in any event, “You don’t need a plan. If the evidence is credible from the accused, you don’t need a plan”.
REASONS FOR JUDGMENT OF TRIAL COURT
[38] The trial judge’s brief reasons addressed the two charges before the court contrary to ss. 253(1)(a) and 253(1)(b) resulting in not guilty findings on both counts.
[39] The trial court’s reasons for judgment were organized as follows: Facts/Case History (paras. 1-19, 30-31), The Law (paras. 20-23, 29), Credibility (paras. 24-5), The Presumption of Care or Control (para. 26), Risk Inquiry (paras. 27-28, 30, 32-33), and Conclusion (para. 34).
[40] At para. 24, the trial judge appears to have accepted that there had been a plan for the respondent to sleep over at Mr. Moskwa’s residence on February 8, 2015. At para. 28, the court stated:
It is necessary to consider whether a realistic risk of danger still existed because Mr. Toyota, in his inebriated state, might have changed his mind and driven somewhere …
[41] In this appeal, counsel agreed that the trial judge’s analysis relating to this issue was confined to these passages at paras. 32 and 33 of the reasons:
[32] Although the defendant’s blood-alcohol readings were 160 and 160 milligrams of alcohol in 100 millilitres of blood, it is my view that once awake, it is very unlikely that he would have changed his mind and driven home.
[33] I find as a fact that the Crown has not proven beyond a reasonable doubt that the defendant presented a realistic risk of danger in the particular circumstances which are before me. Therefore, I find that he was not in care or control of his vehicle at the time in question.
ANALYSIS
[42] It is not the function of this court on a Part XXVII summary conviction appeal to retry the case. A trial court is deserving of deference in its fact-finding given its advantage of seeing and hearing the witnesses.
[43] On appeal, the appellant submitted that the trial court erred in law in its articulation of the ‘realistic risk of danger’ test and the application of the governing authority of R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 to a case of alleged actual care or control of a motor vehicle while having a proscribed blood/alcohol level and while being impaired by alcohol.
[44] If successful in prosecuting this ground of appeal, Mr. Khoorshed seeks to have a new trial ordered for the s. 253(1)(a) and (b) offences. In other words, the appellant accepts that, although the verdicts would not have been the same but for the alleged errors on the part of the trial court, there was a basis for a properly instructed trier of fact in a new trial, depending on his or her view of the facts, to find the respondent not guilty.
[45] To a degree, Crown counsel’s submissions also implicated criticism of the trial court’s reasons for judgment insofar as maintaining that that court’s path of reasoning was overly conclusory without transparent analysis of the relevant evidence.
[46] In the Boudreault case, at paras. 41, 42, 45-46, 48, and 50-52 the court stated:
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 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 …
45 As I mentioned at the outset, anyone found inebriated and behind the wheel with a present ability to drive will - and should - almost invariably be convicted. It hardly follows, however, that a conviction in these circumstances is, or should be, "automatic". A conviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case.
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.
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.
50 The existence or not of a realistic risk of danger is a finding of fact: see R. v. Lockerby, 1999 NSCA 122, 180 N.S.R. (2d) 115, at para. 13; Smits, at para. 61. The trial judge must examine all of the relevant evidence to this end and may consider a number of factors: see, e.g., R. v. Szymanski (2009), 88 M.V.R. (5th) 182 (Ont. S.C.J.), at para. 93, per Durno J.; R. v. Ross, 2007 ONCJ 59, 44 M.V.R. (5th) 275, at para. 14, per Duncan J.
51 One of the factors of particular relevance in this case is that the accused took care to arrange what some courts have called an "alternate plan" to ensure his 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.
(italics = emphasis of original)
(bold = emphasis added)
See also R. v. O’Neill, 2016 ONCA 307, at paras. 4-10.
[47] In the present case, the trial judge considered the witnesses for the Crown and the defence to be generally “credible and trustworthy”. That said, there was little or no acknowledgement in the court’s reasons of the following:
(1) the weight to be given the respondent’s evidence where the defence called Devin Morao to testify in advance of the respondent
(2) the reliability of the evidence of Morao and Moskwa, very close friends of the respondent, when they only had cause to reflect back on the circumstances of February 7/8, 2015 over 11 months later
(3) whether Moskwa’s action of locking his front door was inconsistent with a plan for the respondent to sleep over
(4) only the respondent testified to a Sunday morning plan to go out for breakfast from Moskwa’s residence.
[48] Accepting that when the respondent entered and started his vehicle, he had no intention to set it in motion, central to the submissions of counsel for the parties at trial and on appeal was the existence or non-existence of an alternate “plan” ensuring that the respondent would not awaken and change his mind about driving his vehicle.
[49] Accepting the existence of a plan for the respondent to sleep at Mr. Moskwa’s townhouse, that plan evaporated when Moskwa left the bar early to go home, locked his residence, and did not respond to door-knocking by the respondent.
[50] Even accepting that, at 2:30 a.m., the respondent may have been sufficiently conscious and alert to have intentionally converted his vehicle to a sleeping accommodation with no intention to drive, as opposed to simply passing out in the driver’s seat, the crucial issue for analysis was the risk that this alternate plan posed to public safety. Was this an objectively concrete and reliable plan implemented in a manner capable of defeating the inference that the respondent, inebriated and in the driver’s seat of a running vehicle, was in unlawful care or control as prohibited by ss. 253(1)(a) and (b) of the Code?
[51] Mr. Genesee submitted that while the trial judge’s analysis was brief, he need not write “a treatise”. The trial court’s analytical reasons, essentially only the text reproduced at para. 41 above, do not provide an articulated basis for the conclusion that it was “very unlikely that [the respondent] would have changed his mind and driven home”. To reach such a conclusion, the court would necessarily have to consider all the circumstances, which admittedly would include the respondent’s history of avoiding drinking and driving, but which would also require the trier of fact to consider:
(1) The respondent’s blood alcohol level at 5:15 a.m., by operation of statutory presumption, was over twice the legal limit. This was 4 to 5 hours after last consuming alcohol. The respondent was inebriated.
(2) The respondent was in a running vehicle after getting drunk and a sleep-over plan falling through.
(3) There was no evidence from Morao or Moskwa to suggest any arrangement to go out for breakfast later on Sunday morning.
(4) Moskwa was unaware that the respondent was nearby. The respondent’s cellphone was inoperable. The respondent’s vehicle was down the street from the townhouse.
(5) If Moskwa remained passed out, or left home, the respondent would be alone. He would need the wherewithal to wander about and borrow a cellphone to arrange transportation or, considering himself capable of accurately self-determining when he might be sober, he could drive off when he felt it safe to do so.
[52] Assessment of the prosecution’s proof of care or control, as contemplated by the Boudreault authority, obliged the trial court to articulate a path of reasoning demonstrating appreciation of all relevant circumstances touching upon the risk of danger of the respondent changing his mind and driving in a condition prohibited by law. That is not the case on this record.
CONCLUSION
[53] The appeal is allowed and a new trial is ordered upon the s. 253(1)(a) and s. 253(1)(b) charges before a differently constituted summary conviction trial court.
[54] The respondent is ordered to appear at the Milton courthouse, 491 Steeles Avenue East, Milton, Ontario, courtroom #9, on Tuesday, April 25, 2017 in order to set a new date for trial.
[55] It is ordered that the clerk of the appeal court comply with Rule 40.23(1) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) as to distribution of these Reasons for Judgment.
Hill J.
DATE: April 11, 2017