COURT FILE NO.: 16-0449 DATE: 2017 05 25
Ontario Superior Court of Justice Summary Conviction Appeal Court
B E T W E E N:
HER MAJESTY THE QUEEN R. Butler, for the Respondent Respondent
- and -
JEFF MCCLENNAN S. Menzies, for the Appellant Appellant
HEARD: April 20, 2017
REASONS FOR JUDGMENT
[On appeal from the judgment of J. Douglas J. dated April 25, 2016]
Justice Thomas A. Bielby
Introduction
[1] The Appellant stands convicted of Impaired Driving and Over Eighty Care and Control. He appeals the decision on the grounds that the trial judge made findings of fact not supported by the evidence and/or erred in his findings of fact.
[2] To succeed the Appellant must prove that the trial judge made a palpable and overriding error in regards to his findings of facts and credibility. It is not enough that I may have a difference of opinion with the trial judge (R. v. Gagnon 2006 SCC 17, [2006] S.C.J. No. 17).
[3] A high degree of deference is owed to the trial judge. As noted in R. v. R.E.M. 2008 SCC 51, [2008] 3 SCR 3, at page 32, “Deference is in order and intervention will be rare.”
[4] At the commencement of the trial it was agreed that the only issue was whether or not the Appellant, who was impaired and found sitting in the driver’s seat of his vehicle, wearing his seatbelt, and with the engine running, represented an inherent risk of danger in relation to whether or not he would put his vehicle in motion.
[5] Section 258(1) of the Criminal Code of Canada , in such situations, dictates that an accused shall be deemed to have had care and control of the vehicle unless the accused establishes that he did not occupy the driver’s seat for the purpose of setting the vehicle in motion.
[6] Counsel agree that the onus is on the Appellant, on a balance of probabilities, to establish that the seat was not occupied with the intent of setting the vehicle in motion.
Facts
[7] The Appellant testified at this trial. He said that on the day in question he had travelled to Palmerston for a dental appointment. Thereafter he went to the liquor store and bought two bottles of wine for the next day, Valentine’s Day, which he was spending with his girlfriend. He then visited a friend with whom he consumed two bottles of beer.
[8] The Appellant left his friend’s house and went to the home of Mary Burt, another friend. He had nothing to drink at her home. In the early evening he left her home to travel home to Elora, a trip which in good weather takes 20 minutes.
[9] The Appellant testified that the weather was very bad. It was a very cold evening and there was blowing snow which in his opinion made further driving unsafe. His evidence of the weather conditions that night were, for the most part confirmed. The Appellant decided it was too dangerous to drive and pulled into a laneway to park his vehicle for the night. It was, he testified, his intention to remain in the car and stay there for the night.
[10] The Appellant then decided to open the wine and using a wine glass given to him by Ms. Burt for use on Valentine’s Day, consumed 1 1/2 bottles of wine.
[11] The Appellant testified that at some point he contacted his then girlfriend, Catherine Grey, and told her he would not be home that night, telling her that she might have to come and get him the next morning. He also called his daughter Tess, and told her he’d not be home that night. Tess was a witness at the trial.
[12] The Appellant parked his vehicle in the laneway of rural property owned by Adam Cosens. At some point Mr. Cosens noticed the Appellant’s car and went to investigate. He found the Appellant, asleep in the driver’s seat, with the engine running and the radio on. Mr. Cosens had difficulty waking the Appellant and after returning to his house decided to call the police.
[13] The police arrived and observed the same circumstances. An empty wine glass was observed on the console between the two front seats.
[14] The Appellant was arrested and taken in to custody. There is no issue that he was impaired and that his blood alcohol level exceeded the legal limit.
[15] At trial and on this appeal, it is the Appellant’s position that he had no intention of operating his vehicle after pulling it into the laneway and that he posed no realistic risk to others or himself.
The Law
[16] The Supreme Court of Canada, in R. v. Boudreault 2012 SCC 56, [2012] 3 S.C.R. 157 was faced with a similar fact situation. Mr. Boudreault was found in the driver’s seat of his truck with the engine running while waiting for the arrival of a taxi cab. When the cab driver arrived he found Mr. Boudreault asleep and called the police.
[17] At trial Mr. Boudreault explained that he turned his truck on for the heat.
[18] The trial judge acquitted Mr. Boudreault finding there was no real risk of danger. The Quebec Court of Appeal found that trial judge had erred and registered a conviction.
[19] The Supreme Court set aside the decision of the Appeal Court and restored the acquittal. From paragraph 9, I quote,
“For the reasons that follow I have concluded that “care and control within the meaning of 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.”
[20] As in the case before me, it was the third element that was in issue. The existence of a realistic risk is a matter of fact (para. 11).
[21] From paragraph 12, I quote,
“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.”
[22] A person’s ability to drive while impaired creates an inherent risk of danger. The Appellant must adduce evidence tending to prove that the inherent risk is not a realistic risk, in the circumstances of the case (para. 13).
[23] From paragraph 37, I quote,
“Accordingly, an accused found in the driver’s seat will be presumed, as a matter of law, to have care and control of the vehicle, unless the accused satisfies the court that he or she had no intention to drive…”
[24] An intention to set a vehicle in motion would create the risk of danger. Even an inebriated person found behind the wheel, who has no present intention to operate the vehicle may, nevertheless, present a realistic risk of danger (para. 41).
[25] An inebriated person may change his or her mind, or unintentionally set the vehicle in motion. Further, even a stationary vehicle may endanger the public (para. 42).
[26] From paragraph 45 I quote,
“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 real risk of danger in the particular circumstances of the case.”
[27] Realistic risk is a low threshold. To avoid conviction an accused must adduce credible and reliable evidence to prove that no such risk exists (para. 48).
Analysis
[28] With respect to the matter before me, the trial judge’s decision, and the reasons therefore, commence at page 18 of the transcript of proceedings which took place on April 25, 2016. He reviews the evidence of the witnesses and at page 21, in reference to the evidence of Ms. Burt states,
“As a matter of fact, she said he had nothing to drink, although he had testified that he had a couple of beers.”
[29] This quote would appear to be a misstatement of the evidence. It was the testimony of Ms. Burt that the Appellant had nothing to drink while he was at her home and that he was sober when he was in her home. The Appellant testified that he had had the two beers before he visited Ms. Burt.
[30] In my opinion the trial judge relied on this finding of fact in his assessment of the issue of realistic risk and the credibility of the Appellant.
[31] Another possible error can be found at page 9, line 28 of the April 25th transcript where J. Douglas J. opines, “The distinct impression is that had the weather improved, he would have driven the 20 minutes it took to get home.”
[32] Earlier in his ruling (page 23, l. 24), the trial judge quotes the evidence of the Appellant as follows:
“In cross examination, he said, “I wasn’t going anywhere. The reason being, I knew the police were coming.” “And if the weather improved?”, he was asked, “Yes, I would’ve went home.””
[33] This reference to the evidence had to have been taken from the following exchange between the Appellant and the Respondent, found commencing at page 56, line 23, of the transcript of February 8, 2016:
Q. I’m suggesting to you that when you first pulled over, you had to be thinking the first opportunity I have to go home I’m going to go. I’m not going to stay here in the stranger’s driveway for the whole night. That – wouldn’t make any sense, I’m suggesting. A. Right. Q. Do you agree with that? A. Yes, and no. if the weather – if the weather was better and that, yes, I would have went home. But with my car in the condition and the weather and the people coming out to the car, the timing, just – I knew it was not good to drive so…
[34] It seems to me to be an error to simply quote the Appellant saying, had the weather improved he would have gone home.
[35] Further, the excerpt from the evidence of the Appellant relied upon by the trial judge, in his assessment of whether the accused posed a realistic risk, was taken out of context.
[36] From page 55, line 14, of the transcript of February 8, 2016, the following questions and answers were recorded from the cross-examination of the Appellant:
Q. And had the weather cleared up at some point you would have continued driving to see her? A. No, sir. And the reason being I knew that the police were coming, so I wasn’t going anywhere.
[37] At line 29, the following is recorded,
Q. And if the weather conditions had improved, you wanted to go see Catherine that night? A. No. Q. You didn’t want to see her that night? A. Well, no, it would have been nice, but I knew I wasn’t going anywhere, because I was drinking, and I knew the police were on their way, so I wasn’t – I wasn’t going anywhere.
[38] The phrase, “I would have went home”, taken in context, could have represented the Appellant’s intent after parking his vehicle in the laneway and prior to his decision to drink the wine.
[39] His finding of fact that the Appellant would have driven home had the weather improved even after his consumption of the wine represents an error.
[40] The Respondent submits that are two ways to approach the issue of care and control. The first way is set out in section 258(1)(a) (old 253(1)), which establishes a statutory presumption. Pursuant to that route, as noted by Fragomeni J. in R. v. Brzozowski [2013] O. J. No. 2483 (para 20-23), the Respondent need not prove a realistic risk. It is the burden of an accused to establish, on a balance of probabilities that no such risk exists.
[41] The second route is to establish that an accused is in defacto care and control which was discussed in the Boudreault case cited previously.
[42] For my purposes I am not sure of the relevance of the distinction. As at trial, the Appellant concedes that he has to overcome the presumption and prove, on a balance of probabilities that there is no realistic risk of danger to the public. Without such a risk there is no criminality.
[43] The question now to be answered is whether these errors can be considered palpable and overriding?
[44] The issue to be determined by the trial judge, the issue of whether there was a realistic risk, was fact driven. Therefore factual errors that go to the issues of intent and realistic risk have greater significance.
[45] The errors in his finding of facts as noted, go directly to the issue he had to determine.
[46] I accept that in considering the relevance of these errors I must consider the totality of the evidence and that great deference is to be given to the findings of fact made by the trial judge.
[47] However, given the fact that the errors go directly to the one issue to be determined, I find that the errors noted rise to the level of palpable and overriding.
[48] The appeal is allowed, the conviction is overturned and the matter is to go back to the Ontario Court of Justice for a re-trial.