COURT FILE NO.: SCA(P) 849/18 DATE: 2018 09 11
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN Paul Renwick, for the Respondent Crown Respondent
- and -
GURMUKH GREWAL Glen Henderson, for the Appellant Appellant
HEARD: August 24, 2018
REASONS FOR JUDGMENT [On appeal from the Judgment of P. O’Marra J. Dated, December 20, 2017] Justice Thomas A Bielby
INTRODUCTION
[ 1 ] On December 20, 2017, the Appellant was convicted by P. T. O’Marra J. of the Ontario Court of Justice, of operating a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol, contrary to s. 253 (a) of the Criminal Code of Canada.
[ 2 ] The offence was said to have occurred on October 16, 2016.
[ 3 ] While the trial judge believed the Crown had failed to prove beyond a reasonable doubt that the Appellant was the driver of the motor vehicle, he convicted the Appellant of the included offence of having care or control of the vehicle while his ability to drive was impaired by alcohol.
[ 4 ] There is no issue that the Appellant was intoxicated to the point of impairment.
[ 5 ] Counsel for the Appellant submits that this appeal related to a very narrow issue surrounding the trial judge’s conclusion in regards to care and control. It is submitted that the issue at trial was whether or not the Appellant was the driver. The issue of care or control was not argued by either counsel.
[ 6 ] Counsel for the Appellant submits that the trial judge, when, on his own initiative, decided to consider care or control, ought to have contacted counsel and allowed them to make submissions on this issue. The failure to do so, it is submitted, is a matter of procedural unfairness.
[ 7 ] There is no doubt that care or control is an included offence under s. 253(1)(a) of the Code. There is no issue that the trial judge was within his rights to consider the issue of care or control. In R. v. Dagenais, 2018 ONCA 63, para. 55, it was stated that,
“It is well-established that, subject to due process concerns, a conviction may be founded on a theory of liability that has not been advanced by the Crown, provided that theory is available on the evidence.”
[ 8 ] However, it is submitted that the denial of an opportunity to make submissions on the included offence of care or control, was unfair and the verdict ought to be set aside and a new trial ordered.
STANDARD OF REVIEW
[ 9 ] I accept the submissions in regards to the standard of review as set out in the Crown’s responding factum.
[ 10 ] Findings of fact made by a trial judge are entitled to significant deference, and cannot be set aside unless the trial judge has committed, “palpable and overriding error or made findings of fact including inferences of fact that are clearly wrong, unreasonable or unsupported by the evidence.”
[ 11 ] The standard of review applicable to a trial judge’s interpretation of the law is correctness.
FACTS
[ 12 ] On the early evening of October 16, 2016, Mr. Chauban was driving along on Bovaird Drive in Brampton when he observed a white sedan driving suspiciously. The windows of the white sedan were tinted and Mr. Chauban could not determine if the driver was male or female or how many people were in the car. He did record the licence plate number and called 911.
[ 13 ] The car was determined to be registered to the Appellant and at 7:11 pm two police officers were dispatched to the Appellant’s address, 26 Yellow Road, Brampton. The officers arrived at 7:17 pm and upon arrival observed a white sedan parked in the driveway. They observed the Appellant step out of the driver’s door with the car keys in his hand. The vehicle was not running. The garage door was open.
[ 14 ] The officers testified that the Appellant appeared to be intoxicated, a state confirmed by the Appellant’s daughter, Paramvir Grewal.
[ 15 ] The Appellant was arrested immediately and placed in the police cruiser. The Appellant’s daughter, at or about the time of the arrest, came out of the garage and approached her father and the officers. The Appellant handed her the keys to the car and the daughter advised the police that she had driven the car home, with her father being a passenger. She testified at trial that her father exited the vehicle from the front right passenger door.
[ 16 ] The trial judge rejected the daughter’s evidence that she had been the driver. He found that the Appellant had exited the driver’s side (door) with keys in hand. The trial judge however, in making a finding of impairment, accepted the daughter’s evidence.
SUBMISSIONS AT TRIAL AND THE JUDGMENT
[ 17 ] In their submissions before the trial judge neither counsel addressed the issue of care or control. Both focused on the evidence in regards to who had been driving.
[ 18 ] While rejecting the defence evidence that the Appellant’s daughter had been driving, the trial judge was not satisfied, beyond a reasonable doubt, that the Crown had proven that the Appellant was the operator of the vehicle.
[ 19 ] Commencing at paragraph 63, the trial judge considers the included offence of care or control and relies on the very recent Ontario Court of Appeal decision in R. v. Pawluk, 2017 ONCA 863, [2017] O.J. No. 5817, which reaffirmed that care or control is an included offence in a charge of impaired driving.
[ 20 ] The trial judge then opined that the Crown is entitled to rely on the presumption of care or control under s. 258(1) (a) of the Criminal Code of Canada because the Appellant was occupying the seat ordinarily occupied by a person operating the vehicle. The trial judge then said,
“Since Mr. Grewal has done nothing to discharge his onus to rebut the presumption, the Crown has established that he was in care or control… To rebut the presumption the accused must establish that she or he lacked the intention to set the vehicle in motion. If this occurs, the Crown has the onus of proving that the accused had de facto care or control of the vehicle. This requires proof that a realistic risk of danger to persons or property existed in the circumstances despite the lack of an immediate intention to place the vehicle in motion. The Ontario Court of Appeal has suggested that the “question the court must determine is whether any realistic risk of danger was created” (see R. v. Balogun-Jubril O.J. No. 1231 (C.A.), at paragraph 12)… In the absence of an intention to drive, what will be required to convict is that there be a realistic risk of danger given the particular facts of the case”(paras. 64, 65).
[ 21 ] The trial judge concluded that the appellant had not lead credible evidence of a lack of intention to set the vehicle in motion and he presented a realistic risk of danger to drive despite the facts that he was parked in the driveway and was intending to enter his home. He could have changed his mind and decided to drive while intoxicated (para. 66).
[ 22 ] None of these considerations were addressed by either counsel in their submissions. Nor was the issue of rebutting a presumption.
[ 23 ] The Crown, in closing submissions, asked the court to reject the evidence of Ms. Grewal and find that the Appellant was the driver that evening. He addressed the Charter issues raised by the Appellant. The Crown advised the court that if Ms. Grewal is believed, the court would have to acquit on the impaired charge (pg. 118 of the November 9, 2017 transcript), without any reference to care or control and the facts as observed by the officers on their arrival at the Appellant’s home.
[ 24 ] Clearly, apart from Charter issues, the only liability issue addressed was the identification of the driver.
ARGUMENT
[ 25 ] Counsel for the Appellant relies on the authority, R. v. Mayrhofer-Lima [2017] O.J. No. 151, a summary conviction appeal decision of K.P. Wright J. The case involves a conviction for impaired driving. During the trial the Crown conceded a number of Charter breaches in relation to ss. 8, 9, and 10(b). Submission were made on that basis.
[ 26 ] The trial judge took issue with the Crown conceding a Charter s. 8 breach and emailed both counsel and invited submissions.
[ 27 ] What the judge did not give notice on was that he also had an issue in regards to the s. 10(b) Charter breach concession by the Crown.
[ 28 ] In his judgment, the trial judge rejected all of the Charter breach concessions, including the s. 10(b) concession (which counsel in my matter concede is within the rights of a trial judge to reject such concessions).
[ 29 ] Wright J. wrote, at paragraph 23,
“In his reason, the trial judge makes no reference to the Crown’s concession of the section 10(b) breach. He does explain why he finds there is no section 10((a) or 10(b) breach. But in my view, this explanation falls short of what was required under this unique set of circumstances. In my view, the trial judge was obliged to notify counsel that he was not going to accept the Crown’s concession on the Charter breach and give counsel an opportunity to make arguments on the point. Unfortunately, this did not happen. Crown counsel argues that, even if the trial judge was in error, no prejudice flowed from it. The Crown points out that the concession was only made after the accused had testified and had completed their final written submissions. Be that as it may, the appellant was still entitled to be notified and given the opportunity to make argument on the point.”
[ 30 ] Counsel for the Appellant submits that this case is authority for two propositions. The first is that in the circumstances of this case, the trial judge ought to have invited counsel to make care or control submissions. Secondly, the issue of prejudice does not enter the equation.
[ 31 ] In the matter before Wright J., the Crown argued that even if there was such an error no prejudice flowed from it. From paragraph 50 I quote,
“The concession was made prior to the appellant’s election to call evidence on the voir dire and/or the trial proper. I accept that the appellant made tactical and strategic decisions based on the concession, and that if he knew that he concession would be rejected, those strategic decisions would likely have been different and may have impacted the outcome of the trial.”
[ 32 ] Wright J.’s decision also addresses another point upon which the Appellant relies. The trial judge in this matter relied on R. v. Bush, 2010 ONCA 554, 101 O.R, (3d) 641 (C.A.), a case not relied on or provided by either side. Wright J. ruled that before relying on the Bush case, the trial judge ought to have invited submissions on the applicability of the Bush case. As a result, he made a reversible error (paras. 45-49).
[ 33 ] The appeal was allowed and a new trial ordered.
[ 34 ] In the matter before me the trial judge relied on the decision, R. v. Pawluk, 2017 ONCA 863, [2017] O.J. No. 5817 (ONCA) which was, by coincidence, released on the same day that submissions were made. The Pawluk case reaffirmed the law that care or control is an included offence in a charge of impaired driving.
[ 35 ] Counsel for the Appellant argues that the trial judge made a further error by not inviting counsel to review the Pawluk decision and make submissions.
[ 36 ] Counsel for the Appellant submits that the failure of the Crown to address the issue of care or control during submissions was likely an oversight on the part of the Crown and that such oversight is the likely reason the issue of care or control was not raised by either counsel.
[ 37 ] On that point the Crowns submits it was more likely a tactical decision by defence counsel not to raise the issue.
[ 38 ] I do not find either suggestion helpful. They venture in the realm of speculation. I will determine this appeal on the simple fact that neither the Crown nor defence counsel raised the issue of care or control. The Crown presented its case to which the defence responded.
[ 39 ] Counsel for the Appellant submits the failure to be given the opportunity to make submissions is a matter of trial fairness regardless of whether or not prejudice resulted from the decision of the trial judge.
[ 40 ] Counsel argues that due process concerns would include an accused’s right to be put on notice of a trial judge’s alternate theory of liability and have the right to make submissions.
[ 41 ] In R. v. Ranger, at para. 136, Charron J.A. stated,
“Indeed, in any case where the trial judge instructs the jury on a material point in a manner that does not accord with the position advanced by either party, a question may arise whether this course impacted on the fairness of the trial. For example, depending on the circumstances, an accused may argue that his or her principal defence was undermined by the manner in which the trial judge left an alternative defence open to the jury. The concern about trail fairness, however, will be greater when the instruction relates to a theory of liability that has not been advance by the Crown.”
[ 42 ] In regards to the matter before me, it is submitted that the theory of liability upon which the trial judge relied was not advanced by the Crown. On that point there is no doubt.
THE CROWN
[ 43 ] The Crown submits that there has been no procedural or trail unfairness. He submits that there is no basis, on the record, for a finding of unfairness. In that regard and with respect to the issue of whether prejudice is a factor, the Crown also make reference to paragraph 50 in the Mayrhofer-Lima decision and relies on paragraph 21, in the Pawluk case in which it was determined that there was no basis on the trial record for a finding of unfairness.
[ 44 ] As previously noted, the Crown submits that a tactical decision and not an oversight is the reason submissions were not made by defence counsel on the issue of care or control. I have already addressed this point.
[ 45 ] Crown counsel also submits that while there may have been no submissions made on the issue of care and control, it was an evidentiary issue. The following exchange took place in defence counsel’s cross-examination of Officer Silelnikov (transcript of November 8, 2017, pg. 49, l.14).
Q. I mean you found him getting out of the vehicle yourself right? A. I saw him, yes. Q. So, could have been arrested for care and control by itself, right? A. Yes, it could have. Q. Right. Evidence of driving was neither here nor there really at that point, right?
[ 46 ] Further at page 78 of the November 9, 2018 trial transcript, defence counsel is addressing the trial judge and in part, states the following,
“If the officer saw him get out of the vehicle, made a decision to arrest him because they thought he was the driver and he was in care and control, they would have arrested him immediately, put him in the police car, got one in custody and given him his rights.”
[ 47 ] Counsel for the Appellant on these points argues that the references to care or control were in relation to the Charter issues, including the right to counsel immediately upon arrest, and were not made in relation to the issue of liability.
[ 48 ] On this point I agree with the submission of defence counsel and accept that such conversations elated to a Charter issue and were not sufficient to answer the issue I am to decide.
[ 49 ] The Crown, while conceding the case was argued on the issue of driver identity, relies on Pawluk, when stating that the mere fact the Appellant was charged with the impaired operation of a vehicle is notice enough of the issue of care and control.
[ 50 ] The Crown submits that the Court of Appeal in Pawluk concluded that the Crown’s theory of the case, care or control, despite the fact that impaired operation was the charge laid, provided a route to conviction.
[ 51 ] D. Paciocco J. A. stated at paragraph 28,
“Moreover, the very concept of an included offence is predicated on the fact that it is not unfair to try the accuse on an included offence since the charge laid alerts the accused person that they are alleged to have satisfied all of the elements of the included offence, as well as the charged offence. As indicated, this court recognized in Plank, at p. 395, that a person charged with impaired driving is sufficiently informed that they also face the indicated offence of impaired care or control. For this reason LeBel J. A., as he then was, made clear in Drolet, at p. 299, that there is no surprise or injustice in finding a person charged with impaired driving guilty of impaired care or control.”
[ 52 ] It is to be noted however that in the Pawluk matter the issue of care or control was argued before the trial judge. In my matter, the Crown invited the trial judge to reject the evidence of Ms. Grewal and find the Appellant was the driver of the vehicle.
[ 53 ] The Crown also submits that it has its own ground for appeal. It is submitted that the only reasonable inference that can be drawn, beyond a reasonable doubt, on the facts found by the trial judge is that the Appellant was the driver of the vehicle.
[ 54 ] Accordingly, it can be said that the trial judge erred in ruling there was reasonable doubt as to who was the driver.
ANALYSIS
[ 55 ] It is very clear from a review of the submissions of counsel that the issue addressed by both counsel, to the trial judge, were in relation as to the identity of the driver.
[ 56 ] The Crown, in arguing the Appellant was the driver, relied on the fact that the Appellant was observed, as noted above, with keys in hand and getting out of the driver’s door and being clearly intoxicated.
[ 57 ] The Crown argued and the trial judge agreed, that Ms. Grewal’s evidence that she was the driver ought to be rejected.
[ 58 ] As noted previously, there is no doubt a trial judge can consider an alternate theory. The Crown can advance such a theory on the evidence.
[ 59 ] However, an alternate theory was not advanced by the Crown at trial. Returning to the Pawluk decision, at para. 30, the court stated the following;
“None of this is to say that it can never be unfair for the Crown to rely on an included offence. For example, where the particulars have been given that limit the allegation to the chaired offence, or where the Crown has actively induced the accused, to their detriment, into believing that the Crown is proceeding only on the theory of the charge offence, it may well be unfair for the Crown to rely on an included offence, and for a trial judge to convict on one. There may be other examples. In this case, however there is no basis on the trial record for finding an unfairness. The fact that Mr. Pawluk’s care or control was not the central issue during the trial does not change this. The law alerts an accused to their jeopardy for included offences, and in this case, questions were asked of Cst. Miles that could only be relevant to the issue of Mr. Pawluk’s care or control. It should not have come as a surprise when the Crown sought a care or control over 80 conviction.”
[ 60 ] In my opinion the matter before me is a case where it was unfair to convict the Appellant of care or control without giving him an opportunity to make submissions on this issue. As noted, in Pawluk the Crown argued the issue of care or control and Mr. Pawluk had the opportunity to respond.
[ 61 ] In Pawluk the court left the door open to an issue of unfairness where the circumstances warrant.
[ 62 ] Had the Crown conceded at the commencement of the trial or even at the commencement of arguments that it was not relying on care or control, the unfairness would be more obvious. In fact on this appeal the Crown acknowledged that if such a pronouncement was made there would be an issue of trial fairness.
[ 63 ] However, is it any different or less unfair if the position of the Crown can be implied from the way the Crown presented its evidence and made submission? From my review of the Crown’s submissions, it is clear that apart from the Charter issues, the Crown was asking the trial judge to find that the Appellant was the driver. On that issue the Crown made its case and the Appellant lead evidence and made submissions in response.
[ 64 ] As noted in Ranger, supra, para 25, “The concern about trial fairness, however, will be greater when the instruction relates to a theory of liability that has not been advanced by the Crown.”
[ 65 ] As noted previously, I accept the submissions of counsel for the Appellant that the two references to care or control discussed above, were in the context of the Charter arguments and certainly cannot be construed as constructive notice or the Crown’s reliance on the issue of care or control.
[ 66 ] On the issue of prejudice, if the Appellant is required to establish prejudice, had counsel for the Appellant been aware of the Crown’s reliance on care or control, he may have lead further evidence or asked additional questions in cross-examination. Certainly he would have addressed the issue in argument. It seems to me, as it did to Wright J. in Mayrhofer-Lima, prejudice was suffered and affected the Appellant’s right to make true answer and defence.
[ 67 ] In the Mayrhofer-Lima decision the appeal judge spoke of the case’s unique facts. I find that such unique facts exist in the matter before me.
[ 68 ] In my opinion, and with the greatest respect, I find that the Appellant was denied procedural fairness and the trial judge ought to have contacted the Crown and defence counsel and invited submissions on the care or control issue. Accordingly, a reviewable error occurred.
[ 69 ] I am setting aside the conviction and ordering the matter be returned to the Ontario Court of Justice for a new trial. The parties are to appear at the Brampton Court House, court room 104, at 9:00 am, on October 4, 2018, or as otherwise arranged, to speak to the matter.
[ 70 ] Given this conclusion I need not address the Crown’s ground for appeal. Sufficed to say that the Crown will be entitled at the new trial to argue that if the evidence of Ms. Grewal is rejected, the only reasonable inference that can be drawn is that the Appellant was the driver.
[ 71 ] Further, I do not have to address the issue of whether the trial judge erred in relying on the Pawluk decision without giving counsel an opportunity to make submissions in relation to the case and its applicability.