COURT FILE NO.: CR-17-09-00AP
DATE: 20180406
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
THOMAS BELL
Appellant
W. D. Beatty, for the Crown
P. Lindsay, for the Appellant
HEARD: February 15, 2018
reasons for judgment
wilcox, j
INTRODUCTION
[1] Thomas Bell appealed against his conviction for "over 80 care or control" contrary to section 253(1)(b) of the Criminal Code imposed by His Honour Justice Alain H. Perron of the Ontario Court of Justice on March 9, 2017. He seeks an order (1) allowing the appeal and entering an acquittal; or alternatively (2) an order allowing the appeal on the section 11(b) Charter ground and entering a stay; or, in the further alternative, (3) an order allowing the appeal and ordering a new trial. The Crown sought to have the appeal dismissed.
FACTS
[2] The Court heard evidence on April 25, 2016 and October 12, 2016. The reasons for judgment were delivered orally on October 12, 2016 and a finding of guilt was made on that date. The parties then made written submissions with respect to the section 11(b) Charter application. That application was dismissed on March 9, 2017.
[3] Other than the breath technician, there were two witnesses. The relevant Crown witness with respect to this appeal was Officer Jaak Valiots. Mr. Bell testified in his own defence.
[4] The facts were summarized in the Appellant’s factum as follows. The Respondent Crown accepted that summary as being substantially correct, subject to some additions and clarifications.
[5] Officer Valiots had been an officer with the OPP for 19 years at the time of trial. At approximately 4:45 a.m. on February 8, 2015 the police Communications Centre advised him that C.A.A. called in and stated that a client, Mr. Bell, called in saying he had driven his vehicle into a ditch. C.A.A. said that they had dispatched a tow truck but, since it would take approximately an hour and a half for the tow truck to arrive, C.A.A. was asking for police assistance to ensure that Mr. Bell was okay. Officer Valiots was advised that it was a black 2010 G.M.C. truck. The comments received by Officer Valiots from C.A.A. were hearsay and were therefore only led by the Crown for the context of the officer's involvement in the matter, not for the truth of their contents.
[6] Officer Valiots arrived on scene at 5:09 a.m. He observed a vehicle buried in the snow in the southwest ditch with the lights on and the engine running. It was around Axe Lake Road and 911 marker 3964. He testified the road was snow-covered and that it was an "S-curve" portion of the roadway. Officer Valiots exited his cruiser and approached the passenger side of the vehicle.
[7] There was a large amount of snow piled up to the window on the passenger side. Officer Valiots saw a lone man behind the steering wheel of the driver's side, asleep with his head down. The driver's window was rolled down about three-quarters of the way. Officer Valiots then went to the driver's side of the vehicle, as he could not physically get to the passenger side "because there was so much snow". He saw footprints in the snow beside the driver's side door. He noticed that the heating was on full in the vehicle. He observed a strong smell of cologne in the vehicle.
[8] Officer Valiots shook the man's shoulder and announced himself as a police officer. The officer testified that he asked the man if he had called a tow truck. Officer Valiots did not testify about any response to this question. Officer Valiots also testified that he asked the man if he was Thomas Bell and that he received a response that he was. Officer Valiots observed that the individual was very groggy, annoyed, and indifferent with him. The officer noticed a cell phone plugged into the power console of the truck.
[9] Mr. Bell produced his license after he was requested to do so. Officer Valiots did not observe any damage to the vehicle other than that it was "buried in the snow". He testified that the vehicle was completely off the roadway. When asked by the Crown if he observed any smoke coming from the exhaust, he said that, "I know it was running, but I can't – I can't testify that I saw actually exhaust coming from the - the tailpipe, but it was definitely running".
[10] Officer Valiots then asked Mr. Bell to exit the vehicle and accompany him to his police vehicle to wait for the tow truck and "further his investigation". It was agreed by both counsel that the answers the Officer obtained during this period of time (until Mr. Bell spoke with counsel at the station) were only to be used for grounds. Officer Valiots made observations that Mr. Bell was unsteady on his feet and had a faint odour of alcohol coming from his breath and body "amidst the strong smell of cologne". Officer Valiots asked Mr. Bell where he was coming from and where he was going. Mr. Bell advised that he was at the Sprucedale Hotel from 8:00 p.m. to closing. To the officer's knowledge, the hotel closes at 2:00 a.m. Mr. Bell advised that he was heading back to his cottage on Bear Lake Road.
[11] Officer Valiots placed Mr. Bell into the back of his police vehicle at this point. He then asked Mr. Bell if he had consumed alcohol to which Mr. Bell stated 1 beer. Officer Valiots continued to question and press Mr. Bell, who then said he had consumed 3 beers. Officer Valiots, at approximately 5:20 a.m. read the ASD demand to Mr. Bell. At approximately 5:25 a.m. Mr. Bell provided a sample, which resulted in a "fail" being received from the instrument. Officer Valiots then arrested Mr. Bell for "care or control with over 80 mgs of alcohol".
[12] Officer Valiots testified that the roads were bad to the point that he had brought a 4 by 4 pick-up truck so that it would be safer for him to drive in that area. There was no traffic at all and no artificial lighting. It was therefore pitch dark at that time. There were no other motor vehicles or people around at that time. Officer Valiots testified that the vehicle was completely off the roadway and "well buried" in the south ditch.
[13] When asked what conclusion Officer Valiots could make of the operability of the motor vehicle at the time he came to the scene, he replied that "it was stuck" and that "it wasn't going anywhere". He did not notice any kick up of gravel around the driver's wheels, which would have suggested to him that someone had tried to extricate the vehicle.
[14] After arresting Mr. Bell, he cuffed and searched him and read him the breath demand and rights to counsel. The tow truck arrived as the officer was arresting Mr. Bell.
[15] The Officer testified that the footprints he noticed beside the driver's side door of the truck indicated to him that Mr. Bell had exited the vehicle to assess whether or not he could physically drive out the vehicle.
[16] It was conceded by defence counsel that any statements made by Mr. Bell prior to him being detained, i.e. prior to being asked to exit the vehicle, were admissible for the truth of their contents. The Crown indicated that the comments made after Mr. Bell exited the vehicle and prior to speaking to counsel would not be relied upon by them as Mr. Bell was under an investigative detention at that point. Counsel mentioned statements made by Mr. Bell to Officer Valiots at the station after speaking to duty counsel that would be conceded as admitted. The only statements Officer Valiots testified to having occurred after Mr. Bell's discussion with counsel was him admitting to having been at the hotel that evening. Mr. Bell did not make any statements to the Breath Technician.
[17] With respect to the 11(b) Charter application, Officer Valiots agreed that the matter was not reached the first day it was scheduled for trial, which was November 30, 2015. He was then asked about the second trial date of April 25, 2016. He indicated that he did not know that that was the trial date. He was on leave from April 3, 2016 until May 29, 2016. He stated that it was an unexpected illness. Officer Valiots could not advise how far in advance of a trial date he is typically made aware of it. He did say that for himself when he gets a notice of trial he is "on top of it right away".
[18] In cross-examination Officer Valiots stated that he never knew the matter was scheduled for April 25, 2016 for trial. The OPP would have advised the Crown through doctor's notes.
[19] Officer Valiots agreed that on the night of the offence, there were whiteout conditions and it would have been difficult for someone to distinguish between the shoulder and the ditch. The temperature was around -12 degrees Celsius, but would have felt around -20 degrees Celsius.
[20] The Officer further agreed that he noted nothing wrong with Mr. Bell's speech and that besides the one instance of unsteadiness when Mr. Bell first exited his vehicle, Mr. Bell was moving fine. Mr. Bell was also polite and cooperative with the police throughout the night. Mr. Bell was not charged with "impaired care or control" and the officer did not testify to any signs of impairment. Mr. Bell's readings were 122 and 131 mgs of alcohol in 100 ml of blood. The first test was taken around 7:00 a.m.
[21] Officer Valiots testified that, knowing the tow company that was called, it likely would have been a flatbed truck that had come to the scene. He was 90% sure of this. From where the vehicle was to Bear Lake Road (the location of Mr. Bell's cottage), it would have only been a 5 to 10 minute drive. He did not make any observations of the undercarriage of the vehicle at the time, as it would have been physically impossible to do so, since the truck was buried in snow.
[22] Mr. Bell was 52 years old at the time of his testimony. On February 7, 2015 Mr. Bell was at his cottage on Bear Lake Road on his own. He stated it started snowing in the evening. He went for dinner at the Sprucedale Hotel. He got there "well after dark" and stayed until closing, the time of which, he said, changes depending on how busy the establishment is. He testified that he was there for a few hours, maybe four, and had maybe four or five bottles of beer during the course of the time he was there. He could not recall what time he left the bar. He did not feel any effects of the alcohol when he left the bar.
[23] Mr. Bell testified that he initially did not have any trouble driving. At one point however he lost track of the road because of the inclement weather and ended up in the ditch. The ditch he ended up in was approximately a 5 to 10 minute drive away from his cottage.
[24] After the vehicle went into the ditch, he tried to remove it by putting the gear into reverse. He tried for less than a minute. The vehicle would not move. He got out of the vehicle at that point to look at the damage and where the vehicle was. Mr. Bell testified that that when the accident happened he felt some sort of impact and believed there was an issue underneath the vehicle. He could not assess what it was that night as the vehicle was buried in the snow. The vehicle was well off the roadway.
[25] Mr. Bell testified that it was not possible to move the vehicle out of there. After assessing the vehicle and determining it was not moveable, he went back inside the truck and called C.A.A. for a flatbed tow truck. His intention was to have the vehicle towed back to the cottage and him to receive a ride back with the tow truck driver. He would not have been able to inspect the vehicle that evening even after having the vehicle pulled out of the ditch due to the snow and weather conditions.
[26] Mr. Bell stated it was -22 degrees Celsius outside. He had the engine on and heater running because it was so cold and he needed to keep warm. The vehicle was in park. He could not advise how long he was waiting in the vehicle prior to the officer arriving. He did take note of the tow truck when it arrived and observed that it was a flatbed tow truck.
[27] Mr. Bell testified that in order to switch gears, he would have had to put his foot on the brake, pull the gear shift down, let go of the gear shift, take his foot off the brake and press on the accelerator. He could not do this accidentally in his sleep.
[28] Mr. Bell did not know exactly when but estimated that he placed the call to C.A.A. approximately 30 minutes to 1 hour after the vehicle ended up in the ditch. Mr. Bell stated that he asked C.A.A. to tow his vehicle back to his cottage for him. The reason was that when the vehicle went into the ditch, he could feel a thump and he was sure that it hit something underneath. He did not believe the vehicle to be capable of being driven on the road after that. He testified that there was no traffic or pedestrians that night.
[29] When he received his vehicle back from the impound lot, it did have damage to it and he had to take it in to a shop to fix the alignment. He initially testified that he drove the vehicle from the impound lot, but in cross-examination when he was reminded that he would have had the 90 day ADLS suspension at the time, he said that he "said the wrong thing there" and that that it was actually his son who drove.
[30] In cross-examination he was pushed on how long after ending in the ditch he called C.A.A. He testified that part of the reason he did not call right away was because his phone was dead and he was waiting for it to charge. He agreed that he did not call the police or a taxi to take him home, as he did not know any out there. He was adamant that he would not have driven the truck after it would have been extricated by C.A.A. because he knows that there was some issue with the vehicle from the impact and there would be no reason for him to drive it since he had the gold membership that entitled him to the tow. He was crossed extensively on why he wouldn't choose another option other than the tow truck driver to get home, and he maintained that it was because he had a free service with C.A.A.
[31] When Mr. Bell was asked why he did not go into the back seat to sleep instead, he responded that the seat was folded over and filled with tools, such as the chainsaw which the officer testified to seeing earlier.
[32] The Crown added that Officer Valiots arrived at the scene three to five hours after Bell’s vehicle entered the ditch, that Bell’s vehicle was not inoperable, it was just stuck, and that although the vehicle was off of the roadway, its back end might have been on the shoulder.
GROUNDS FOR APPEAL
[33] The specific grounds for Appeal are:
That the learned trial judge erred in applying the law of "care or control" and erred in finding that Mr. Bell was in "care or control" of the motor vehicle.
That the learned trial judge erred in law in misapprehending the evidence in rejecting the evidence of Mr. Bell that he had called CAA and was awaiting a flatbed CAA truck to transport his truck to his home and thus erred in finding Mr. Bell to be in "care or control" of the motor vehicle; and
That the learned trial judge erred in law in dismissing a section 11(b) Charter application to stay the proceedings due to a "net delay" of 16 months and 18 days in trying his case, by, inter alia, failing to treat this case as a transitional case.
LAW
[34] In R. v. Szymanski 2009 45328 (ON SC), [2009] O.J. No. 3623, Durno J summarized the law on care and control neatly at para. 29:
The Crown has three routes for establishing care or control:
evidence of driving because the offence of impaired operation is included in a charge of care or control. R. v. Coultis (1982), 1982 2113 (ON CA), 66 C.C.C. (2d) 385 (Ont. C.A.)
applying the statutory presumption of care or control now found in s. 258(1)(a) of the Criminal Code. The presumption was found to violate s. 7 of the Charter of Rights and Freedoms, but was saved by s. 1 because the accused could rebut the presumption. It could not be said that proof of occupancy of the driver's seat leads inexorably to the conclusion that the essential element of care or control exists. R. v. Whyte 1988 47 (SCC), [1988] 2 S.C.R. 3 at p. 19
de facto or actual care or control which involves the risk of danger as an essential element.
[35] s. 258(1)(a) of the Criminal Code reads:
258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),
(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, …, the accused shall be deemed to have had the care or control of the vehicle, …, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, … in motion …;
[36] S. 258(1)(a) creates a presumption that is available to the Crown to prove the offence in s. 253. “In order to rebut the presumption, the accused must establish on the balance of probabilities that he or she did not occupy the seat ordinarily occupied by the driver for the purpose of setting the vehicle in motion. R. v. Appleby (1971), 1971 4 (SCC), 3 C.C.C. (2d) 354 (S.C.C.) The presumption is an evidentiary aid for the prosecution. Rebutting the presumption does not afford a complete defence to the charge. Where the presumption is rebutted, the burden of proof shifts back to the prosecution to establish actual care or control beyond a reasonable doubt without the evidentiary aid. While the intention to set the vehicle in motion is relevant to the applicability of the presumption, it is an element of the care or control offence. R. v. Penno (1990), 1990 88 (SCC), 59 C.C.C. (3d) 344 (S.C.C.) at para. 64 When the Crown seeks to establish actual care or control, there is no onus on the Crown to establish beyond a reasonable doubt that the accused intended to drive the vehicle.”[^1]
[37] Intention is assessed as when the driver enters the driver’s seat. In R. v. Tharumakulasingam [2016] O.J. No. 1575, para. 8, Code J explained:
The relevant time frame for any rebutting evidence concerning an accused's intention to drive is the point when the accused entered the driver's seat, that is, he "must show that his occupancy began without the purpose of setting the vehicle in motion" [emphasis added]. See: R. v. Hatfield (1997), 1997 2938 (ON CA), 115 C.C.C. (3d) 47 (Ont. C.A.). Given that the Appellant had clearly been driving the car immediately before the accident, and had therefore initially taken up his position in the driver's seat for that purpose, the only way to rebut the presumption in this case was to prove that his intention to drive had changed after the accident and before the police arrived at the scene and found him still sitting in the driver's seat with the engine running and with the lights on. See: R. v. Wren (2000), 2000 5674 (ON CA), 144 C.C.C. (3d) 374 (Ont. C.A.); R. v. Milne, 2012 ONSC 5779 at para. 23.
[38] The burden of proof on the accused to rebut the presumption is on the balance of probabilities.[^2]
[39] Where the court finds that the presumption of care or control has not been rebutted, the Crown need not go on and prove that there was also a risk of danger. The risk of danger analysis is subsumed by that finding.[^3]
[40] Nevertheless, a trial judge, having concluded that the presumption has not been rebutted, may still, out of an abundance of caution, consider whether there is also a risk of danger in the alternative. [^4]
[41] In R. v. Boudreault 2012 SCC 56, 2012 3 S.C.R. 157, the Supreme Court of Canada noted:
[37] … an accused found in the driver’s seat will be presumed, as a matter of law, to have care or control of the vehicle, unless the accused satisfies the court that he or she had no intention to drive …
[41] … 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; 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.
[42] A non-exhaustive list of areas that have been relied upon in determining if the real risk arises was set out in R v. Szymanski at para. 93.
TRIAL
[43] Defence counsel, in his submissions at trial, reviewed the law regarding care or control starting with the s. 258 presumption, which he argued that the accused had rebutted. He then moved on to the issue of whether there was a realistic danger, submitting that there was not. In the process, he referred to some of the leading cases on point, such as the Ontario Court of Appeal’s decision in R. v. Wren and the Supreme Court of Canada’s decision in R. v. Boudreault. It appears that the trial judge had reviewed the cases that counsel had provided to him.
[44] Crown counsel’s submissions on the law at trial also started with the s. 258 presumption, arguing that it had not been rebutted and that the trial judge did not have to deal with risk. However, in case the trial judge found it had been rebutted, the crown went on with submissions about risk.
[45] Having been provided with the law and submissions on point, the trial judge addressed in his reasons the issue of care or control. He explicitly recognised the s. 258(1)(a) presumption, finding that it applied on the facts. Consequently, he then addressed whether it had been rebutted. Before reaching a conclusion on that point he analysed the issue of risk and concluded that a significant risk of danger existed.
[46] The trial judge then returned to s. 258 stating, “as the presumption has not been rebutted, and there is no other issues (sic) before the court…, there will be a finding of guilty to the charge of care and control over 80”.
[47] It is clear from this that the finding of guilt was based on the presumption of care and control which the trial judge found had not been rebutted.
[48] Appellant’s counsel submitted that the trial judge erred at law in considering risk before deciding whether the accused had rebutted the presumption.
[49] The use of the presumption was addressed in R. v. Szymanski at para. 33 (see above) where it was described as an “evidentiary aid for the prosecution”. As was made clear in both that case and in R. v. Boudreault, even if the presumption is rebutted, a conviction may follow if there is proof of risk beyond a reasonable doubt. I do not agree that failure to use the evidentiary aid before considering risk amounts to an error of law.
[50] Defence counsel at trial had referred in arguing that the accused had rebutted the presumption to the accused getting out of the vehicle to assess the situation and finding it immovable before re-entering it. His intention at that point, defence had submitted, was not to drive, but to stay warm and wait for assistance.
[51] So, the argument that the accused had rebutted the presumption was rather narrow. More time was spent on the question of risk. Therefore, there were few points for the trial judge to address in regard to the presumption. He did not do so directly. Instead, after reviewing the accused’s evidence, he commented that the accused had serious credibility issues before turning to his discussion of risk.
[52] Appellant’s counsel submitted that the trial judge failed to consider the most significant evidence in favour of the rebuttal of the presumption, being the evidence that the accused had exited the vehicle. The presumption can be rebutted if an accused can show that although he had occupied the driver’s seat with the intention with setting the vehicle in motion, he exited the vehicle and re-entered with a change of intention.[^5]
[53] There is nothing about this in the reasons. There was, however, an exchange between the trial judge and the crown counsel at trial during the latter’s submissions where the trial judge indicates that the fact that the accused got out of and back into the vehicle did not change the presumption. In this, he appears to have been in error, although, in fairness to him, counsel did not correct him on the point.
[54] On the other hand, in his discussion of risk, what the trial judge described as “the real risk” was that, after the motor vehicle was towed out of the ditch, the accused would drive it away. A passage that he quoted from R. v. Boudreault refers to the risk that “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”. This would be relevant if the trial judge had accepted that the accused had rebutted the presumption by establishing that he did not occupy the driver’s seat for the purpose of setting the motor vehicle in motion, which is contrary to the trial judge’s finding.
[55] Consequently, with respect, I find that there was an error in law on which the conviction was based. In the alternative, the reasons are not sufficient to permit appellant review of the correctness of the decision. Therefore, I would set aside the verdict and remit the matter for a new trial. In view of this and counsel’s agreement on point, it is not necessary to deal with the Charter s. 11(b) issue.
Justice J. A. S. Wilcox
Released: April 6, 2018
COURT FILE NO.: CR-17-09-00AP
DATE: 20180406
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
THOMAS BELL
Appellant
REASONS FOR JUDGMENT
WILCOX, J
Released: April 6, 2018
[^1]: R. v. Szymanski 2009 45328 (ON SC), [2009] O.J. No. 3623 [^2]: R. v. Boudreault, 2012 SCC 56, [2012] S.C.J. No. 56 [^3]: R. v. Tharumakulasingam [2016] O.J. No. 1575, para. 13 to 17 [^4]: R. v. Tharumakulasingam [2016] O.J. No. 1575, para. 18 [^5]: R. v. Maslek, [2004] O.J. No. 2770 (SCJ) para. 8.