CITATION: R. v. Diane Lachapelle, 2017 ONSC 6256
COURT FILE NO.: 20073/16 AP
DATE: 20171019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
DIANE LACHAPELLE Appellant
R. Parsons, for the Crown
G. Jenner, for the Appellant
HEARD: September 26, 2017
On appeal from the conviction entered on June 1, 2016, by Justice R.E.W. Carr of the Ontario Court of Justice.
R.Y. TREMBLAY J.
Overview
[1] The appellant, Diane Lachapelle, was found guilty of impaired care and control of a motor vehicle contrary to section 253(a) of the Criminal Code by Justice R.E.W. Carr on June 1, 2016.
[2] Ms. Lachapelle appeals against her conviction. The appellant argues that, in finding her guilty, the trial judge made the following errors of law:
1- He did not find that she was impaired and in care and control of a vehicle at the same time (absence of contemporaneity between the impairment and the care of control of the motor vehicle);
2- He held that, outside the parameters of the statutory presumption created by section 258(1)(a) of the Code, she bore an onus to prove that she did not present a realistic risk of danger.
The facts
[3] On the night of November 1, 2015, police responded to an emergency call concerning a possibly intoxicated, possibly suicidal female who was driving in the area. Cst. Susan Fong of the Ontario Provincial Police (“O.P.P.”) was the only Crown witness at trial. She located the appellant occupying the driver’s seat of a stationary motor vehicle on Watabeag Road, a quiet dirt road. She had her seatbelt on. The vehicle was running, had its lights on, and was positioned in the opposite lane, contrary to the proper flow of traffic. The officer testified that the vehicle was right in front of her lane so that she actually had to go into the opposite lane and park beside it.
[4] Cst. Fong observed the appellant to be showing signs of intoxication and arrested her for impaired care and control of the vehicle. During her subsequent detention, the appellant’s condition deteriorated quickly, and she had to be hospitalized. There was no opportunity for breath readings. During the search of the vehicle, police found a partly-consumed bottle of vodka and two empty Coors Light bottles. The police also found a large quantity of various pills (Lenoltec-three, hydromorphone, Sleep-Eze).
[5] The defence called Barry Ward, the appellant’s cousin, as a witness. Mr. Ward testified that earlier in the evening on November 1st, the appellant attended his residence and asked for two bottles of juice. He did not observe any signs of intoxication or alcohol consumption. A couple hours after leaving his residence, the appellant called him from her vehicle and told him that she was putting an end to her life.
[6] The appellant also testified in her own defence. She confirmed that she was suicidal on the evening in question and that she had driven, while sober, to the bush road location where she was eventually arrested. She stopped at that location because it was where she would lose cell phone reception, and she had been calling family members to say her goodbyes.
[7] The appellant began to consume vodka and “handfuls of T3s”. She remembered being in the backseat of the vehicle at this time, but could not say for sure that she was not occupying the driver’s seat, as the officer had testified. She did not believe the engine was running at this time. Rather, she believed she only had the car in “ACC mode” to allow for the use of the phone Bluetooth system, and the heat. The appellant had no memory of the lights being on and of having her seatbelt on. She did not know why the truck was parked in the lane facing traffic. She agreed with the Crown that there were a few people who travel that gravel road “lots of times”.
[8] The appellant testified that she had no intention of ever putting the vehicle in motion again once she began to consume alcohol and drugs. She intended only to die.
[9] At trial, the issue of impairment was conceded by the defence, and there was no question that the vehicle was a motor vehicle. The main issue was rather whether the defence could rebut the statutory presumption of care and control of the vehicle, given the evidence that the appellant was occupying the driver’s seat.
[10] The defence argued that the appellant had rebutted the presumption of care and control by demonstrating that she never intended to put the vehicle in motion. Furthermore, it maintained that the appellant did not have actual care and control of the motor vehicle because it had shown that there was no realistic risk posed as a result of there being no other people in the vicinity.
[11] The Crown argued that there still existed a realistic risk that the vehicle would be put in motion. Moreover, as the appellant had parked her vehicle facing potential oncoming traffic, she posed a realistic risk of danger even without further movement of the vehicle.
[12] After hearing submissions, the trial judge convicted the appellant. He found that she had driven out to Watabeag Lake, and had stopped her vehicle somewhere along Watabeag Road. She stopped the vehicle because the range for cell phone use was at an end, and she wanted to say goodbye to her family, as she was genuinely thinking of ending her life.
[13] The trial judge held there was no evidence of impaired driving. The evidence, rather, was that the appellant was drinking after she stopped driving. He determined that it was at the side of the road that she started to consume alcohol, the vodka and the beer, along with pills. He found that she was seated behind the driver’s wheel, that she had her seatbelt on and that the truck was facing the wrong way with the lights on and the engine running.
[14] The trial judge found that the appellant had established that she did not occupy the driver’s seat with the intention of setting it in motion and had, therefore, successfully rebutted the presumption created by section 258(1)(a) of the Code. He concluded, however, that by parking the vehicle, facing the wrong direction, with its lights on, on that lonely road, at night, the appellant had produced a realistic risk of danger and convicted her of the offence.
Analysis
The standard of review
[15] This appeal raises questions about the correct legal test to be applied. The standard of review on a “question of law” is that of correctness. This entitles an appellate court to replace the opinion of the trial judge on a pure question of law with its own.
Did the trial judge find the appellant guilty in the absence of contemporaneity between the impairment and the care and control of the motor vehicle?
[16] It is trite law that, under section 253(a) of the Code, the person’s impairment by alcohol and the acts of care and control of a motor vehicle must take place contemporaneously. (R. v. Penno, 1990 CanLII 88 (SCC), [1990] 2 S.C.R. 865 at page 889)
[17] The appellant argues that the trial judge found that she was impaired and that she was in care and control, but did not find that these two elements took place simultaneously. More specifically, the appellant argues that the trial judge found that she was sober when she produced a realistic risk of danger by parking the vehicle in the wrong lane of the road and that it is only after she was parked, and no longer in care and control (according to the appellant), that she began to consume alcohol and became impaired.
[18] I reject this argument for the following reasons.
[19] I find the appellant’s assertion that the trial judge found that she was no longer in care and control of the motor vehicle after she parked to be incorrect.
[20] It is clear from the trial judge’s reasons that he found that it was the position of the appellant’s motor vehicle, “parked in the wrong lane on a lonely road”, that created a realistic risk to the public. (Page 77 of the transcript of the trial proceedings)
[21] While the trial judge found that the appellant was sober when she created that realistic risk to the public by parking the motor vehicle in the wrong lane, he did not state or suggest anywhere in his reasons that this realistic risk ceased to exist at any point while the vehicle remained parked at that location. To the contrary, the trial judge expressly found that by parking the vehicle at that location, the appellant had created “a risky situation”. (Page 78 of the transcript of the trial proceedings).
[22] It follows that the appellant voluntarily became impaired while the vehicle still represented a realistic risk to the public. This conclusion is wholly supported by the evidence and, more importantly, by the trial judge’s reasons. I, therefore, conclude that the trial judge did, in fact, find that the appellant was in care and control of the vehicle during the same time period as her voluntary impairment by alcohol.
[23] Furthermore, I note that there was no break in the appellant’s care and control of the motor vehicle from the time she drove away from Barry Ward’s residence until she was removed from the driver’s seat by the police when they effected the arrest. The appellant, therefore, only relinquished care and control of the motor vehicle after she had voluntarily become impaired.
[24] For those reasons, I am dismissing the first ground of appeal raised by the appellant.
Did the trial judge err in its application of Boudreault by holding that the appellant bore an onus to prove that she did not present a realistic risk of danger?
[25] In order to properly analyse this ground of appeal, it is first necessary to review the basic principles set out by the Supreme Court of Canada in R. v. Boudreault, 2012 SCC 56, [2012] S.C.J. 56.
[26] In Boudreault, the Supreme Court set out the three essential elements of care and control under section 253(1) of the Code: (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. It also specified that the risk of danger must be realistic and not just theoretically possible but that there was no need for the risk to be probable, or even serious or substantial.
[27] The Supreme Court went on to describe, in paragraph 42, situations in which a realistic risk may arise:
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.
[28] After stating that section 258 only created one reverse onus in the context of the care and control offence and no other reversal of burden, including as to the existence of a realistic risk of danger to persons and property, the Supreme Court discussed, at paragraphs 48-49, the evidence that is required to establish a realistic risk and the tactical necessity for defence to adduce evidence in such circumstances:
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.
49 The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger.
[29] In his reasons, the trial judge considered Boudreault and indicated as follows at page 76 of the transcript of the trial proceedings:
But the test here is whether or not – I’m quoting from this case here, the case of Donald Boudreault, whether or not she was able to adduce evidence tending to prove that there wasn’t an inherent risk here. It was not a realistic risk in the particular circumstances of the case.
[30] The appellant argues that, in making this statement, the trial judge erroneously reversed the burden of proof. She maintains that the conviction cannot stand as there would remain the danger that the trial judge convicted her based on her failure to adduce evidence proving that there was no risk, when in fact the question was whether the Crown had proven beyond a reasonable doubt that there was a risk.
[31] The Crown takes the position that the trial judge was referring to the tactical necessity discussed at paragraph 48 of Boudreault reproduced above when he made that comment. The Crown further submits that, in the case at hand, the appellant did testify and could not adduce evidence tending to show that the vehicle did not, under any reasonably conceivable circumstances, pose a risk of danger. Her evidence was that she could not recall the vehicle being placed directly in a lane facing oncoming traffic, she couldn’t remember how she got in the driver’s seat nor how her seatbelt became fastened around her. As such, it submits that the trial judge properly convicted the appellant.
[32] A careful review of the transcript reveals that the comment of the trial judge as to the appellant having an evidentiary burden was not merely a misstatement of the “tactical necessity” component discussed in Boudreault.
[33] The following exchange at page 67 of the transcript of the trial proceedings is quite telling as to the evidentiary burden and standard that the trial judge appears to have applied in this case:
THE COURT: Whether the risk that is here is not realistic – it’s not a realistic risk.
MS. STRYBOS (defence counsel): Yes.
THE COURT: That’s what you have to show on balance.
MS. STRYBOS: Yes on a balance of probabilities.
THE COURT: You show me on a balance of probabilities that the risk here was not a realistic risk and Mr. Parsons says it was.
MS. STRYBOS: Right.
THE COURT: Is that the issue?
MS. STRYBOS: Yes.
THE COURT: You agree Mr. Parsons?
MR. PARSONS (Crown counsel): Sure.
[34] This passage satisfies me that there is a real risk that, in convicting the appellant, in this case, the trial judge erroneously imposed upon her the onus of adducing evidence that established, on a balance of probabilities, that she had not created a realistic risk to the public. In doing so, he would effectively have created a presumption of realistic risk that is absent from section 258(1)(a).
[35] This error in the application of Boudreault is particularly serious as it appears that the trial judge not only shifted the burden of proof to the applicant, but required her to establish that there was no realistic risk of danger to the public on a balance of probabilities instead of simply having to raise a reasonable doubt in that regard.
Applicability of the curative proviso – section 686(1)(b)(iii) of the Code
[36] The Crown argued that this is a case where the court should apply the curative proviso found in section 686(1)(b)(iii) of the Code and dismiss the appeal.
[37] The proviso at section 686(1)(b)(iii) can only be invoked for errors of a minor nature having no impact on the verdict or for serious errors, which would justify a new trial, but for the fact that the evidence adduced was so overwhelming that there was no substantial wrong or miscarriage of justice. In other words, in the case of serious errors, the proviso should only be applied where the evidence is so overwhelming a trier of fact would inevitably convict. The ultimate question is, therefore, whether there is any reasonable possibility that the verdict would have been different without the error.
[38] Considering the comments of the Supreme Court in Boudreault about the tactical necessity for an accused to adduce evidence that he/she did not create a realistic risk to the public in order to avoid a conviction and the fact that the appellant did testify in this case, I may have concluded that trial judge’s error was minor had he only required the appellant’s evidence to raise a reasonable doubt. However, as stated above, the shifting of the evidentiary burden to the appellant combined with the requirement that she adduce evidence establishing on a balance of probabilities that she did not create a realistic risk resulted in the creation of a presumption that does not exist under section 258(1)(a). This makes it a serious error that may certainly have had an impact on the verdict.
[39] Furthermore, while it may be unlikely that applying the proper burden and standard of proof would have resulted in an acquittal, I am not prepared to conclude that this is not a reasonable possibility. In my view, it is not a foregone conclusion that a trier of fact would have convicted the appellant in the absence of any detailed evidence on the following aspects: the exact position of the appellant’s motor vehicle on the roadway; the layout of the road, visibility and sightline in the area where the vehicle was parked and, finally, the volume of traffic on that road at that particular time of the day. In conclusion, there is a reasonable possibility that the verdict would have been different without the error.
[40] I am therefore allowing the appeal on the second ground raised by the appellant.
Conclusion
[41] The appellant, Diane Lachapelle, has demonstrated that the trial judge erred in law in convicting her of impaired care and control of a motor vehicle by holding that she bore an onus to prove, on a balance of probabilities, that she did not present a realistic risk of danger.
[42] The appeal is allowed, the conviction is set aside, and a new trial is ordered.
The Honourable Mr. Justice R.Y. Tremblay
Released: October 19, 2017
COURT FILE NO.: 20073/16 AP
DATE: 20171019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent
– and –
DIANE LACHAPELLE Appellant
REASONS FOR JUDGMENT
R.Y. TREMBLAY J.
Released: October 19, 2017