Court File and Parties
Court File No.: 16-06 Date: May 3, 2017 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent And: Brian White, Appellant
Counsel: Matthew Collins, for the Respondent Michael A. Crystal, for the Appellant
Heard: December 2, 2016
Appeal of the conviction of having care or control of a motor vehicle while having a blood alcohol level in excess of 80 milligrams per 100 millilitres of blood, by The Honourable Mr. Justice B. E. McPhee of the Ontario Court of Justice, dated December 8, 2015.
Reasons for Decision
Johnston J.
[1] This is an Appeal by Mr. Brian White (the Appellant) who, following a trial before McPhee J. of the Ontario Court of Justice, was convicted of having care or control of a motor vehicle while having a blood alcohol level in excess of 80 milligrams per 100 millilitres of blood, contrary to s. 253 (1) (b) of the Criminal Code. The charge of impaired driving was conditionally stayed.
Issues
[2] The Appellant argues two grounds of appeal of his conviction:
(1) The trial Judge erred in finding that the accused had not rebutted the presumption of care and control in S. 258 (1) (a) of the Code: specifically, he erred in finding the accused had intention to exercise care or control of the motor vehicle; and
(2) The trial Judge erred in finding that the motor vehicle was operable. The trial judge failed to provide adequate reasons why he accepted Constable Thompson’s evidence that the vehicle was moved by the tow truck operator, over the Appellant’s evidence that the vehicle was inoperable.
Background
[3] At 6:53 a.m. on April 20, 2014, Constable Thomas and Thompson of the Akwesasne Mohawk Police Services responded to a call about a car parked in a driveway in Akwesasne, Ontario. When Constable Thomas approached the vehicle, he observed the Appellant asleep behind the wheel with the motor running. He was arrested and transported to Cornwall Police Station. Constable Thompson remained behind at the scene to arrange for a tow truck to pick up the Appellant’s motor vehicle.
[4] The Appellant does not dispute that he was impaired at the relevant time. The Appellant submitted two breath tests and the results were that his blood alcohol level exceeded the legal permissible limit.
[5] The Appellant testified on his own behalf. He said that he was experienced in the mechanical workings of vehicles and that when he was driving his vehicle previous to consuming alcohol; he noted it was ‘slipping out of gear’. He stated that eventually the vehicle was barely moving. His opinion was that the vehicle was leaking transmission fluid and it needed more fluid. The Appellant testified he was unable to operate his vehicle; he pulled into his friend’s driveway and decided to accept an invitation to visit a nearby friend’s house. He walked to the friend’s house, had some drinks and returned to his vehicle sometime thereafter in an impaired condition. The Appellant testified that he turned the car on to keep warm and thereafter fell asleep behind the wheel, with his seatbelt on.
[6] The Appellant testified he had no intention to put the vehicle in motion and that due to the lack of transmission fluid, the vehicle was inoperable; that it could not be put into motion; either intentionally or unintentionally.
[7] Constable Thompson testified that he waited at the scene for the tow truck to arrive. He further testified that he observed the tow truck operator move the vehicle by backing it down the driveway and drive it onto the flatbed truck. The officer agreed he made no notes of his observation of the vehicle moving, but recalled the event. The accused testified that in his opinion the tow truck operator would not have been able to move the vehicle. He did not see how his vehicle was loaded onto the flatbed truck. The tow truck operator was not called as a witness.
Analysis
[8] For the following reasons, I dismiss the appeal. The trial judge found as a fact the Appellant intended to operate his motor vehicle that morning, if he found transmission fluid. Separate and distinct, the trial judge further found as a fact that the vehicle was operable.
[9] Dealing with the first issue:
- Did the trial Judge err in finding that the accused had not rebutted the presumption of care and control in S. 258 (1) (a) of the Code: specifically, did he err in finding the accused had intention to exercise care or control of the motor vehicle?
[10] The Appellant argues that the trial judge’s finding of intention to set the vehicle in motion was ‘predicated upon conjecture and hypotheticals… and was too remote to base a finding that the Appellant had the intention to drive. (It was based) upon speculation that if the Appellant had had transmission fluid, he would have put it in the car and then he may have driven while intoxicated or upon a hypothetical situation that requires numerous steps: if he had been awake, he would have gone to his cousin’s house where he may have obtained transmission fluid; if he had obtained the fluid, he would have put it into the car and then he may have driven away in an intoxicated state.’
[11] The Appellant also argues that the facts in the case at bar are analogous to the facts in R. v. Boudreault (2012) SCC 56, or that the facts are even more favourable to this accused. In Boudreault, supra, the trial judge found no intention to drive, in circumstances where the accused was found asleep behind the wheel intoxicated and upon being woken up, he told the police officer to go away and leave him alone so that he could drive home. The trial judge found the utterance by Boudreault /the accused, to be of no value as to the accused’s expression of an intention to drive; finding the utterance did not accord to the remaining evidence and was likely a reflex response given without much thought.
[12] As stated by the trial judge in the case under appeal, each case raising issues, such as these, are very fact-specific. The Supreme Court of Canada in Boudreault found that the trial judge applied the correct test: namely, was there a realistic risk of danger to persons or property and whether there was a realistic risk of danger that the accused would have set his vehicle in motion. The Supreme Court of Canada affirmed that the trial judge applied the correct legal test and his conclusion was therefore binding. Fish J. at paragraph 41 of the decision wrote:
“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.”
[13] Turning to consideration of the case at bar, I conclude there was ample evidence on the record, for the trial judge conclude, as he did, that the accused had the intention to set the motor vehicle in motion. The trial judge applied the correct legal test and in so doing concluded on the facts that the intention existed and therefore the risk also existed. Given those findings, it was open to him to conclude the presumption applied.
[14] Mr. White testified that after he left his vehicle in the driveway, he went to his friend, Pumpkin’s house, consumed alcohol, then left this house and returned to his vehicle and looked for transmission fluid in the trunk. The exchange in cross-examination is as follows at page 56 of the transcript:
Q: When you finished at Pumpkin’s house, you get back to the car and you told us that you look for some transmission fluid in the trunk? A: Yeah. Q: And had you found some, you would have put it in and driven the car away? A: Maybe, but probably not. Q: Why do you say probably not? A: Cause I usually don’t drive when I’m drinking.
[15] It was open to the trial judge to conclude that when the Appellant returned to the vehicle in an impaired state, he had the intention to put the vehicle in motion. He then entered the vehicle, put on his seatbelt and started the vehicle. It is illogical that the Appellant would look for fluid in the trunk, if he had no intention of using it at the time.
[16] Second, the Appellant’s evidence at its highest is that he usually did not drive a vehicle while he was drinking. This seems to suggest that sometimes he does drink and drive.
[17] The Appellant also testified that he intended to go to his cousin, Vinny’s, who lived close by and borrow transmission fluid. His plan was not to wake up Vinny in the middle of the night, rather he would wait until 6 a.m. or 7 a.m. [page 63 transcript]. The trial judge noted in his reasons that the police found the Appellant behind the wheel of the vehicle at 6:53 a.m. [page 4 of transcript of trial judge’s reasons]; i.e. in and around the same time as the Appellant said he would resume his search for transmission fluid. On the evidence, it was not speculative for the trial judge to conclude, had the Appellant found the fluid, he would have tried to drive away.
[18] The trial judge’s findings of fact are supportable on the evidence and are entitled to deference on this appeal.
[19] Second: Did the trial judge err in finding that the motor vehicle was operable? Did he provide adequate reasons why he accepted Constable Thompson’s evidence that the vehicle was moved by the tow truck operator, over the Appellant’s evidence that the vehicle was inoperable? Is it material that the trial judge did not address the absence of notes by Thompson?
[20] It is clear that the trial judge was aware of and considered the Appellant’s testimony that he believed the vehicle was leaking transmission fluid and, further, that it was not capable of moving without the fluid and, finally, that the tow truck operator could not have moved the vehicle. Having considered the accused evidence, it is clear from the Judge’s reasons that he did not accept the Appellant’s opinion that the vehicle was not moved by the tow truck operator.
[21] First, the Appellant was not present when the operator moved the vehicle. Accordingly, the Appellant’s evidence is nothing more than his belief that the vehicle could not be moved without transmission fluid. Second, it is clear the trial judge acceptable Constable Thompson’s evidence. The Constable testified that he made no note in his notebook that the vehicle was moved by the tow truck operator because: “I didn’t think it was gonna be an important topic here in court for the file.” [transcript page 15]
[22] In certain circumstances, a trial judge can draw an adverse inference when a police officer fails to make notes about issues that will be important to the proof of the case at trial; for example, where an officer testifies at trial in relation to grounds for arrest, or belief in impairment, but there is no notation of such observations. It is clear that grounds for arrest and belief of impairment are important. In this case, the police find the accused seated in the driver seat, asleep, the vehicle is running and he is wearing his seatbelt. There was a presumption in the Criminal Code that the Appellant was in care and control.
[23] There was no obvious clue to the officer that there was an issue as to whether the vehicle was operable at the time. Had that been an issue obvious at the scene, it would be more important that the officer’s notes include or did not include such observations. The officer’s explanation was before the trial judge and was available to him when considering whether he accepted the Constable’s evidence. Again, it is important to note that there was no direct evidence from the accused that his vehicle, under no circumstances, could move. In concluding that the officer saw the vehicle move, it is clear the trial judge accepted the evidence and rejected the Appellant’s opinion. His decision on this issue was open to him on the evidence and is entitled to deference.
[24] While it may be preferable for trial judges to recite the often referred to “W.D. analysis”, and state that he or she has undertaken the analysis, it is not mandatory. The trial judge’s reasons for conviction must though, demonstrate that he/she considered the defence evidence and rejected it, and rejected that it was capable of raising a reasonable doubt. I am satisfied on the trial judge’s reasons that he was alive to the legal requirement as it relates to the accused’s evidence. The trial judge found that the vehicle was moved: therefore, the vehicle was operable. There was no expert evidence called at trial to suggest the vehicle could not have moved. The evidence of Constable Thompson’s observations of the vehicle moving for a brief time is not necessarily contrary to the Appellant’s observations that the vehicle transmission had previously been ‘slipping’. In other words, the transmission was failing, but for a brief time could still engage. The fact that the vehicle was empty of transmission fluid by the time the Appellant retrieved it from the towing yard is not determinative, given that the suggestion was that it was leaking.
Conclusion
[25] For the foregoing reasons the conviction is upheld, the appeal is dismissed.
The Honourable Mr. Justice J. M. Johnston