Court File and Parties
COURT FILE: SCA(P) 850/18 DATE: 2018 10 30 ONTARIO SUPERIOR COURT OF JUSTICE (Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN A. D. Galluzzo, for the Respondent Respondent
- and -
DARIUSZ PUKAS R. Posner, for the Appellant Appellant
HEARD: October 26 2018, at Brampton
REASONS FOR JUDGMENT
[on appeal from conviction by Justice P.R. Currie on January 12, 2018]
HILL J.
INTRODUCTION
[1] The appellant was discovered by the police unconscious in his vehicle with a blood/alcohol level about three times the legal limit. He was charged, and convicted after a trial of having care or control of a motor vehicle while having a concentration of alcohol in his system exceeding the legal limit contrary to s. 253(1)(b) of the Criminal Code. The appellant appeals that conviction.
THE POLICE DISCOVER APPELLANT IN HIS VEHICLE
[2] On Friday, November 25, 2016, Ontario Provincial Police (OPP) Constable Steven Robertson was on routine patrol. At 3:57 a.m., the officer observed a Mercedes vehicle parked in a back parking lot behind a business at the corner of Hurontario and King Streets in Mississauga.
[3] Constable Robertson drove to the location of the parked car. The driver’s door was open. The appellant was asleep seated in the driver’s seat. At trial, the officer was unable to recall whether the appellant had his seatbelt on.
[4] The officer made efforts to awaken the appellant including yelling at the driver. Not achieving his objective, the constable gave the appellant a “good” jab in the left arm at which point the appellant came to and, almost like a reflexive action, immediately pressed the start button for the keyless ignition mechanism of his vehicle. This caused the vehicle radio to come on. The engine did not start it seems because the driver did not simultaneously have his food depressing the brake pedal.
[5] In speaking briefly with the appellant, Constable Robertson detected a strong odour of an alcoholic beverage on his breath. When directed to exit the Mercedes, the appellant stumbled and had to be assisted to prevent him from falling to the ground. The appellant was arrested, handcuffed, searched and placed in the officer’s cruiser. The Mercedes’ keys were located in a pocket of the appellant’s pants. Using the vehicle keys, Constable Robertson determined that the engine of the appellant’s car could be started.
THE BLOOD/ALCOHOL TESTING
[6] In response to Constable Robertson’s demand for breath samples, the appellant was to be administered intoxilyzer testing at an OPP detachment. Police officers had to assist the appellant to walk into the breath room. When the appellant vomited, he was transported to hospital before an intoxilyzer test was conducted.
[7] Blood taken from the appellant at 6:03 a.m., at the hospital, and subsequently seized by search warrant, tested at 224 mg. alcohol/100 ml. blood. An expert toxicology report projected the appellant’s blood/alcohol content (BAC) to have been in the range of 212 to 266 mg. alcohol/100 ml. blood at 3:57 a.m. (allowing for a rate of elimination of alcohol from the blood from 10 to 20 mg/100 ml per hour). The s. 657.3 Criminal Code toxicology report, filed on consent, included this evidence respecting this projected BAC range:
The operation of a motor vehicle requires the integrity of sensory, motor, and intellectual faculties including divided attention, choice reaction time, judgment of speed and distance, risk assessment, vigilance, and vision. The degree of impairment produced by alcohol is dependent upon BAC. Under controlled experimental conditions, impairment of divided attention tasks has been reported at BACs as low as 15 mg/100 ML. Nevertheless, based on a critical review of the relevant scientific literature (laboratory, closed-course driving, crash risk assessment) it is my opinion that impairment with respect to driving becomes significant at a BAC of 50 mg/100 ML and increases from then onward. Whether impairment is apparent depends upon the complexity of the driving task. For example, the impairing effect of alcohol is marked in driving situations that are unpredictable and that require a rapid and appropriate response. Impairment may occur in the absence of visible signs of alcohol intoxication, which may be due to tolerance.
In my scientific opinion, an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected ranges.
THE APPELLANT’S ACCOUNT
[8] At trial, the appellant, a truck driver with no prior criminal record, testified that he was on a day off from work on November 24, 2016. In the witness’ words, he was having a “very bad day”. Divorce proceedings were underway and he foresaw contact with his son being severed. In addition, his fiancée telephoned and broke up with him.
[9] The appellant informed the court that he left his house at about 4:00 p.m. to drive to the gym. After leaving the gym, he drove to what he described as “a Polish bar”, Bar 4 U, on King Street in Mississauga.
[10] The appellant, originally from Poland, testified that he frequently attended this bar for a meal and one beer with dinner. As a matter of “principle”, he only drinks one beer when he drives his own vehicle.
[11] The appellant testified that he ordered dinner and drank one beer. He subsequently asked the waitress for his cheque.
[12] According to the appellant, disinclined to return to his rented apartment to be alone, he then ordered “one glass of vodka, one shot of vodka”. At this point, he realized he would not be driving home – he would have to call a taxi for the 3.9 km drive home.
[13] The appellant ordered more vodka. He was seeking to numb the pain of his bad day. He cannot recall how much vodka he consumed at the bar before leaving at closing time at “around 1:00 or 2:00.” Questioned at trial about how much liquor he drank and his condition before leaving the pub, the appellant informed the trial court that he drank “[a] lot of vodka” and that:
I was intoxicated to a large degree.
I was intoxicated.
I did drink a lot.
[14] On the appellant’s evidence, becoming intoxicated was a “very unusual event” for him:
Q. So, you certainly weren’t being yourself when you got this impaired? A. Yes. Q. …you didn’t know whether you were over or under 80, right? A. I did not know. I must state it emphatically that it was the very first occasion I put myself in such a state. Q. …you didn’t know how long it would take for the alcohol to eliminate from your body? A. No, I don’t. Q. …you said that’s unusual for you to get that drunk? A. Yes… Q. …And so, you weren’t yourself that night were you? A. Yes.
[15] Both during in-chief and cross-examination questioning, the appellant acknowledged memory problems relating to the morning of November 25, 2016:
My memory is not exact.
As I mentioned, my memory is not very clear as I was intoxicated.
…my memory from then on is not very clear.
I cannot say that I remember it clearly.
Q. You have a hard time remembering some things about that night, right? A. Yes. Q. And, you drank so much that night that you have trouble remembering some of the things that happened? A. Yes.
My memory is not serving me well.
…I don’t recall anything else.
I don’t remember.
[16] The appellant testified that when he left the bar he saw a cab outside. It was a taxi that already had a fare. He walked to his car to retrieve his cellphone intending to call another taxi. As he reached for the phone through the open driver’s door, with no evidence at trial that he ever touched the phone, the appellant felt “a little dizzy”, “very unwell”, and “had to sit on the seat”. He did not recline the seat. He leaned his head backward and in the witness’ words, “my memory finished”. He cannot recall how long he had planned to sit in the driver’s seat to rest.
[17] Asked in-chief what his intention was when he entered his vehicle, the appellant stated, “[m]y only intention was to call a cab so that I would go back home as quickly as possible”.
[18] At trial, the appellant stated that he had no recall of Constable Robertson yelling at him or poking him. He had a vague recall of pressing the Mercedes ignition start button, “I cannot say that I remember it clearly”, and “a fuzzy recollection of [the] officer’s silhouette, but it is not very clear”.
[19] In cross-examination, in describing his circumstances when discovered by the police, the appellant stated:
I was not able to drive. I would never have attempted to start the car.
[20] Pressed on what he might have done had he awakened at 4:00 a.m. or thereafter, the appellant gave this evidence:
Q. So, just as an example, you’ve made a decision and then changed your mind at a later point before? A. Yes, you can say that. Q. And sir, you already agreed earlier that people don’t necessarily make the best decisions when they’re drinking, right? A. Yes, I agree. Q. Okay. And sir, would you agree that it’s possible that if you had woken up on your own that you would have changed your mind and driven home? A. I don’t understand that question. Q. Is it possible that had you woken up at 4:00 a.m. on your own… A. Inside the car? Q. Inside the car— you could have changed your mind about whether you were going to drive home or not? A. I would have never done so. I am a professional driver. That is my livelihood. The distance from that bar to my place of residence is not a long distance. The cab ride would cost 10, $15. Q. Okay. So, you’re saying it’s not possible you could have, in any circumstance, changed your mind? A. I have my principles. If I go to the bar and I have a quick meal and drink one beer, then I return home. I drive my own car back home. I would like to emphasize one more time, when I have a meal, I drink one beer, I have my beer and then I can afford to drive back home myself. If I decide to consume larger amounts of alcohol like a second beer or another shot of vodka, I always call a cab. I never drive my car. Q. So, sir that’s not what you did that night though, right? A. Yes, it was not. Q. Sir, what would you have done if you woke up in the morning and felt okay to drive? Would you have driven from the parking lot? A. I would like to emphasize one more time, my life, my work is my life. I own my own [indiscernible]. I have to pay $4,000 a month for the leasing company. I would like to repeat one more time that when I drink, when I consume one beer, I can, I am able to drive. When I drink more than one beer, I take a cab to return regardless of the time it took to consume. Q. Okay. So, do you remember what my question was? A. No, I don’t. Q. Okay. If you woke up the next morning in that parking lot and you felt okay to drive, would you have driven home? A. No, I would have called a cab.
[21] Under cross-examination, the appellant agreed that alcohol consumption prior to driving is “dangerous” because it affects such things as motor function, depth perception, and reaction time. The witness further agreed that alcohol consumption:
(1) affects memory (2) impacts upon judgment/decision-making (3) ability to speak.
[22] In cross-examination, the appellant further agreed that alcohol consumption can cause persons to “do things that they wouldn’t ordinarily do” including not helping them make “good choices” or “best decisions”.
POSITIONS OF THE PARTIES AT TRIAL
[23] Dealing first with the “driver’s seat presumption” [^1] described in s. 258(1)(a) of the Criminal Code, Mr. Posner submitted to the trial judge that the appellant’s evidence credibly established that he did not occupy the driver’s seat of his vehicle for the purpose of driving away. These exchanges reflect the discussion during the submissions stage:
DEFENCE COUNSEL: So of course, the – first lies the presumption, of course. THE COURT: I don’t think you have to spend a lot of time on that. DEFENCE COUNSEL: Right. My submission is that his evidence is clear and fairly cogent. He went there to get a phone to call a taxi and so, I think that evidence makes sense. THE COURT: Right. DEFENCE COUNSEL: I think Your Honour, should accept it and … THE COURT: No, I’m satisfied that the presumption would not apply on the evidence in this case. DEFENCE COUNSEL: Okay. And so then, what we’re talking about is whether there’s a realistic risk… THE COURT: Right. DEFENCE COUNSEL: …as captured in Boudreault. DEFENCE COUNSEL: And then, he went to the vehicle… THE COURT: To get the phone to call the cab. DEFENCE COUNSEL: Exactly. THE COURT: Right. DEFENCE COUNSEL: That was his stated and clear intention. So, that was his intention. And, I don’t believe that that’s been controverted in any way. I don’t think he was shaken in cross-examination at all. THE COURT: I don’t think there’s any question that was his intention at the time. DEFENCE COUNSEL: And, I think Your Honour should accept that. THE COURT: Sure, I can.
[24] Crown counsel at trial, while submitting that the weaker of her arguments was that the presumption had not been rebutted, pointed to the evidence of the appellant’s lack of memory from the point of feeling dizzy and sitting in the driver’s seat putting in question whether he intended to drive or not. The prosecutor maintained that:
I’m not going to harp on whether the presumption was rebutted too much, because if you believe him, even on a balance of probabilities, it has been.
[25] As to the issue of whether the appellant, who defence counsel rightly conceded to have been “very impaired”, posed a realistic danger to persons and property on account of the potential to awaken and drive himself home, it was submitted that that scenario was “utterly speculative”.
[26] Defence counsel noted that, at 4:00 a.m., the driver’s door was open, the vehicle engine was not running, and the appellant “had a plan to get home” as he had a couple of times in the past by taking a cab after consuming more than one beer. This plan, it was argued, in the context of the appellant’s self-regulating history of not drinking and driving, involved him not wanting to jeopardize his livelihood as a professional truck driver. His plan on leaving the bar was to phone for a cab. He was not in his vehicle for the purpose of sobering up. When he would awaken, he would phone a taxi to get home. It would be a “theoretical possibility” only that he would change his mind and drive home. Put differently by counsel, despite the appellant’s “bad judgment”, on the evidence, a ‘change of mind’ risk was “extremely unlikely” effectively amounting to “zero”:
THE COURT: …I mean you can look a the comments throughout, repeat[ed] throughout that judgment [ Boudreault ] … DEFENCE COUNSEL: Right. THE COURT: …are things like a person who is inebriated and in the position to start their vehicle or put it in motion will almost always be a risk. DEFENCE COUNSEL: Right. That’s right. THE COURT: Unless the defence leads some evidence to show there’s no risk. DEFENCE COUNSEL: Well not, to demonstrate that any risk Your Honour, to demonstrate that any risk is of a totally speculative nature – trifling, trivial. I think that’s the analysis, Your Honour.
[27] Crown counsel at trial submitted that the extremely intoxicated appellant, an unusual circumstance for him, constituted a real risk to awaken “and change his mind and take that risk of driving 3.9 kilometres to get home”. In his evidence, the appellant agreed that excess alcohol consumption impacts good decision-making. In a state of personal turmoil, he had already made poor decisions including becoming “blackout drunk” with no real plan to get home.
[28] Crown counsel noted the appellant’s testimonial acknowledgement of a general lack of memory about events of the morning. As a sober witness at trial, he was “trying to fill in blanks” and gaps.
[29] The prosecutor submitted, respecting the “low threshold” of reasonable risk of danger, that the appellant’s testimony amounted to no credible evidence of a plan to offset the very real risk of him coming to, still intoxicated, and driving himself home. The appellant “either didn’t or couldn’t execute” a plan. Hoping for a cab to be outside the bar, and not phoning or arranging for a taxi, does not objectively amount to a concrete plan.
TRIAL COURT’S REASONS FOR JUDGMENT
[30] The trial judge reviewed the substance of the trial evidence and the submissions of counsel and concluded as follows:
Mr. Posner points out that when Mr. Pukas was found in his vehicle, his driver’s door was still open, which provides evidence that he never intended to put the vehicle in motion and would not have driven had he awoken sometime thereafter. In the course of submissions, I did indicate to both counsel that I do find on the evidence that Mr. Pukas has rebutted the presumption which would arise from his being seated in the driver’s seat of the vehicle when found by the police officer.
The Court in Boudreault makes reference to what it refers to as an alternate plan at paragraphs [51] and [52] of the judgment of the majority. At paragraph [52], the court states:
The impact of an “alternate plan” of this sort on the court’s assessment of the risk of danger depends on two considerations: first, whether the plain itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused. A plan may seem watertight, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward.
On the evidence before me in Mr. Pukas’ case, I find that there was a realistic risk of danger to persons or property, and that therefore, Mr. Pukas was in care or control of his vehicle at the time he was found. At paragraph [48], again in Boudreault, the court says in part:
…”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.
I do not find Mr. Pukas’ evidence in this case to be either credible or reliable taking into account his state of intoxication on the night and early morning in question. I am far from satisfied that Mr. Pukas, in his condition, had any plan at all and certainly not a concrete and reliable plan. If, as Mr. Pukas testified, he knew early on in the evening that he would have to take a cab home, why he didn’t ask someone at the restaurant to call him a cab when he left is perplexing to me. Given Mr. Pukas’ lack of recollection of much of the evening, I do not accept his evidence that he had a plan to take a cab home.
As I say on the evidence in this case, I find that Mr. Pukas was in care or control.
POSITIONS OF THE PARTIES ON APPEAL
The Appellant
[31] Mr. Posner submitted that, on scrutiny of the trial record and the reasons for judgment, this court ought to conclude that there exists a rare or exceptional instance of a “ Beaudry error”. [^2] Specifically, it is argued that the trial judge’s rejection of the appellant’s testimony that he planned to take a taxi home “was incompatible with his finding that the [a]ppellant had rebutted the [driver’s seat] presumption” and “undermined the reasonableness of the verdict”:
As noted above, the only route to finding that the Appellant had rebutted the presumption was an acceptance of his testimony as to his intention at the time that he occupied the driver’s seat, or otherwise a finding that this testimony could reasonably be true. The trial judge’s reasons in this regard were illogical and contradictory. At no point in his reasons did the trial judge attempt to explain or reconcile these two conclusions. Consequently, not only has the Beaudry threshold not been met, but the reasons are also insufficient to permit meaningful appellate review. (Appellant’s Factum, para. 21 – footnote omitted)
[32] The appellant further submitted, in his factum, that the trial court erred in reversing the burden of proof:
- During the defence closing submissions, the trial judge invited submission on the Supreme Court’s decision in Boudreault, and in particular, the statement by Justice Fish that:
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.
In his reasons, the trial judge re-emphasized this extract from Boudreault and stated he was “far from satisfied” that the Appellant had “any plan at all” to get home.
- In assessing whether there was a realistic risk that the Appellant would wake up and drive his vehicle in an intoxicated state, the trial judge failed to apply the reasonable doubt standard. Instead, he became fixated on the passage from Boudreault with respect to the “tactical necessity of adducing credible and reliable evidence” and reversed the burden of proof. His Honour’s statement that he was “far from satisfied” that the Appellant had a plan to take a taxi home reflects the application of the wrong standard. The Appellant did not need to establish his innocence of “satisfy” the trial judge that there was no realistic risk of danger. He simply needed to adduce evidence capable of raising a reasonable doubt in this regard.
(Transcript references omitted)
[33] Finally, the appellant submitted that the trial judge “misapprehended and unfairly discounted the [a]ppellant’s evidence”. In rejecting the appellant’s “plan to take a taxi home”, the trial court erred in essentially ignoring the evidence that the appellant had a good memory of the evening’s events, including his intention to use taxi transportation, until becoming dizzy and unwell. In any event, the fact of poor memory was no basis to reject the appellant’s testimony that he had formulated a plan earlier in the evening, “when he was sober”, to take a taxi. In addition, it was submitted, the trial court “did not provide meaningful reasons” for making an adverse credibility finding against the appellant.
The Respondent
[34] Mr. Galluzzo submitted that there was no necessary inconsistency or illogic in the trial judge being satisfied that the driver’s seat presumption had been negated by the defence, and, the finding that the appellant did not have the certain intention to phone a taxi to get home. The appellant’s testimony about his intention to hail a cab and subsequently to use his cellphone to call a taxi “was not the only route to finding the appellant never intended to set the vehicle in motion the moment he entered the driver’s seat” – the trial court’s final reasons clearly articulate a different basis for non-reliance upon the presumption:
Mr. Posner points out that when Mr. Pukas was found in his vehicle, his driver’s door was still open, which provides evidence that he never intended to put the vehicle in motion and would not have driven had he awoken sometime thereafter. In the course of submissions, I did indicate to both counsel that I do find on the evidence that Mr. Pukas had rebutted the presumption which would arise from his being seated in the driver’s seat of the vehicle when found by the police officer (emphasis added)(by Respondent’s Factum, para. 12).
[35] It was further submitted that the ‘open door’ evidence was a reasonable and logical basis for the trial court to have concluded that when the appellant first sat in the Mercedes driver’s seat, in an ill state, he did not intend to drive “as anyone who enters a motor vehicle with the intention to set it in motion would conceivably close the door”. This conclusion was not inconsistent with rejection of a plan on the appellant’s part to travel home by taxi.
[36] Counsel for the appellant submitted that the trial judge did not reverse the burden of proof. Because a present ability to drive while impaired creates “an inherent risk of danger”, an intoxicated accused discovered in the driver’s seat of his operable vehicle, with a present ability to drive in the sense of being in possession of the vehicle keys, faces a tactical necessity to adduce evidence tending to show that “the inherent risk is not a realistic risk in the particular circumstances of the case”. While the trial court’s reasons are brief and relatively undetailed, it cannot be said that the reasonable doubt standard was not properly applied. The trial court reasonably concluded that the alleged plan was not only not objectively concrete and reliable but it was in fact not implemented by the accused. The “plan” was not a real alternate option and the appellant’s state of intoxication, and present memory problems, failed to raise a reasonable doubt respecting a real risk of the appellant awakening and making an alcohol-impaired decision to drive the short distance to his residence.
[37] The Crown further disputed any misapprehension of the evidence by the trial judge. On the appellant’s own evidence, his progressively deteriorating memory “finished” at the precise point that care or control of his vehicle “became a realistic concern”. The appellant acknowledged that a high degree of intoxication and deficient memory are relevant to credibility/reliability determinations. The appeal court cannot be asked to revisit reasonable findings of fact by the trial court, for example, relating to the absence of a concrete plan to confidently negate any realistic risk of the appellant driving when he awoke.
ANALYSIS
The Care or Control Crime
[38] In Regina v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157, at para. 33, Fish J. defined the ‘over .80’ care or control offence in these terms:
In this light, I think it helpful to set out once again the essential elements of "care or control" under s. 253(1) of the Criminal Code in this way:
(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.
[39] The crime, as enacted by Parliament, is “to prevent a risk of danger to public safety” and, in furtherance of its “preventive” objective, is directed “at the inherent danger that normally arises from the mere “combination of alcohol and automobile””: Boudreault, at paras. 32, 40.
[40] “The social concern, common to the “drinking and driving” family of offences, is the severe risk to life, security or property of the public that is posed by persons whose ability to drive is impaired, but who are nevertheless in control of a motor vehicle”: Regina v. Penno, [1990] 2 S.C.R. 865, at para. 33.
[41] While not every inebriated driver seated in the driver’s seat of a vehicle will be found, in fact and law, to be in care or control of the vehicle, the ‘realistic risk of danger’ element of the crime can ordinarily be reasonably and safely inferred upon proof of straightforward predicate facts as observed in Boudreault, at paras. 12, 45-46, 48:
12 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.
45 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. …
46 The care or control offence captures a wide ambit of dangerous conduct: Anyone who is intoxicated and in a position to immediately set the vehicle in motion faces conviction on those facts alone.
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.
(emphasis of original)
[42] Our jurisprudence is replete with factual instances of the police coming upon an intoxicated driver asleep or passed out in his or her vehicle – drivers who, for whatever reason, elected not to drive away after first entering their vehicles. Hours later, some remain impaired to drive and with an over .80 BAC. In that condition, the driver remains a risk to persons and property should the inebriated vehicle-operator intentionally decide to drive off, at times described as a ‘change of mind’ decision, miscalculating their level of sobriety, or wilfully blind or oblivious to the consequences – see Boudreault, at paras. 36, 41-42:
36 It is settled law that an intention to set the vehicle in motion is not an essential element of the offence ...
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…
(emphasis of original)
[43] “Realistic risk”, considered to be “a low threshold” (Boudreault, at paras. 35, 48), must be realistic “and not just theoretically possible”, but the risk “need not … be probable, or even serious or substantial”: Boudreault, at para. 34 (emphasis of original). Given that drunk-driving has remained a major social problem, and in light of the potential harm to innocent persons represented by a moving vehicle in the hands of a drunk driver, the realistic risk of harm of concern to the criminal law must be assessed on a low threshold – a standard recognized as well in other contexts: Regina v. Thornton (1991), 1 O.R. (3d) 480 (C.A.), at para. 27 (affd , [1993] 2 S.C.R. 445) (“When the gravity of the potential harm is great … the public is endangered even where the risk of harm actually occurring is slight, indeed even if it is minimal”); Regina v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 85-86, 90, 92, 101.
[44] The real risk of change of mind should discourage inebriated drivers from entering their vehicles with no present intention to drive or for initially “innocent” purposes. Why? Because consumption of alcohol negatively impacts upon rational and reasonable decision-making as recognized in Boudreault, at paras. 13, 52:
13 Impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol or drugs. …
52 [A[n] alternate] plan may seem watertight, but the accused's level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward.
(emphasis added)
[45] Concerns in a particular case about reduction of risk of an intoxicated driver undergoing a change of mind and driving may be confidently set to the side, in the sense of their not being a realistic risk of that exposure of the public to danger materializing, where there is evidence before the court of an “alternate plan”, ordinarily arising from evidence adduced by the defence: Boudreault, at paras. 13, 48-49. To have evidentiary significance, the “plan” must have substance as observed in Boudreault, at paras. 51-53:
51 One of the factors of particular relevance in this case is that the accused took care to arrange what some courts have called an "alternate plan" to ensure his safe transportation home.
52 The impact of an "alternate plan" of this sort on the court's assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused.
53 For example, even where it is certain that the taxi will show up at some point, if the accused occupied the driver's seat without a valid excuse or reasonable explanation, this alone may persuade the judge that "his judgment [was] so impaired that he [could not] foresee the possible consequences of his actions": Toews, at p. 126, again citing Price, at p. 384. The converse, however, is not necessarily true. Even where it is probable that the taxi will appear at some point and the accused occupied the driver's seat with a valid excuse or reasonable explanation, the trial judge may nonetheless be satisfied beyond a reasonable doubt that there remained a realistic risk of danger in the circumstances.
(italics emphasis of original)
(bold emphasis added)
[46] Put differently, an unarranged, aborted or partial or unexecuted plan may reasonably and justifiably result in a trier of fact concluding that the inherent risk posed by a drunk driver in the driver’s seat of a vehicle, in possession of the vehicle keys, remains a realistic risk of danger to the public or, as I observed in Regina v. Teasdale, 2015 ONSC 7781, at para. 58, “[w]hile constituting a danger to public safety, a thought about an alternate plan, keeping the plan open as an option, or even an attempt to arrange a plan, do not amount to a concrete implemented plan as described in Boudreault”.
Discussion
[47] Despite Mr. Posner’s customarily cogent submissions, I am unpersuaded that any reversible error exists justifying appellate intervention by this court.
[48] The trial court did not apply the s. 258(1)(a) presumption to find care or control on the part of the appellant. The court reasonably found the presumption rebutted on the basis of the vehicle driver’s door remaining open.
[49] “[I]t has been said that little should be taken from the exchange of counsel and a trial judge during submissions” where a judge expresses “preliminary thoughts on issues”: Regina v. Sanghera, 2015 BCCA 326, at para. 59 (leave to appeal refused [2015] S.C.C.A. No. 375).
[50] While aspects of the judge’s exchanges with defence counsel during closing submissions can be seen as acceptance that the appellant had no intention to drive at 2:00 a.m. when he went to his car (“… that was his intention at the time”), this preliminary observation of a trial judge, before all submissions had been heard and deliberation undertaken, cannot be taken as a finding of fact. The reasons for judgment however constitute the final reasons and findings of the assigned trier of fact.
[51] There is no “ Beaudry error” here in the sense described in Regina v. Kazenelson, 2018 ONCA 77, at para. 18, of an appellant demonstrating a verdict to be unreasonable on the basis “of an inference or finding fact essential to the verdict shown to be incompatible with evidence not otherwise contradicted or rejected”. While intention to drive is certainly relevant to realistic risk of danger, this case turned on whether the prosecution established the appellant was a danger to others at 4:00 a.m. and afterward. There is no inconsistency or illogic which compelled further explanation by the trial judge in his final reasons.
[52] It can be taken as accepted that the very experienced trial judge was alert to application of the reasonable doubt standard to finding whether elements of the s. 253(1)(b) offence, including the realistic risk of danger element, were proven beyond a reasonable doubt. This is a standard with which OCJ judges work on a daily basis. Once the court held that the s. 258(1)(a) presumption was rebutted, it was clear to the trial judge that the Crown was solely responsible for proving all elements of the alleged offence to the ordinary standard of proof beyond a reasonable doubt.
[53] Language of a trial court’s reasons capable of interpretation as reversing the ultimate burden of proof must, to do justice to the case, be understood within the context of the real issues at trial and the positions of the parties: for example, Regina v. S.B., 2018 ONCA 807, at para. 138 (“no competing narrative”); R. v. Chhina, 2016 ONCA 663, at para. 35 (“no evidence to substantiate the appellant’s story”); Regina v. R.M., 2014 ONCA 785, at paras. 19, 44-46 (“did not satisfactorily answer”).
[54] Based on reading the reasons for judgment as a whole, in light of the live issue at trial, the trial judge’s employ of the language of being far from “satisfied” of the existence of a “concrete and reliable plan” must be understood, not as a reversal of the burden of proof, but rather recognition of the tactical burden of the appellant to adduce evidence that the inherent risk of danger (consumption of alcohol plus present ability to drive while impaired) did not pose a realistic risk in the particular circumstances of this case (Boudreault, at paras. 13, 48).
[55] In terms of credibility findings, it is without doubt that the trial judge enjoyed the inestimable advantage of seeing and hearing the appellant testify.
[56] Both parties, to differing degrees, considered the reasons of the trial court to be brief and, in some respects, undetailed. While undoubtedly the trial court’s reasons could have been more fulsome, they are not legally deficient or insufficient. The reasons were delivered orally at 10:00 a.m. on January 12, 2018 by a judge facing a busy OCJ court list. In my view, the reasons are sufficient to identify the trial judge’s path of reasoning and to permit appellate review, and the court’s conclusions are fully supported by the trial record.
[57] The trial judge was accurate in stating that the appellant had “a lack of recollection of much of the evening” – the references to the appellant’s evidence at para. 15 above bear this out. The appellant had no memory of the point of sitting in his car in possession of the vehicle keys and a present ability to drive off at any time. Together with the extreme level of intoxication of the appellant, his patchy memory reasonably supported the court’s conclusion that no objectively concrete and reliable plan existed to offset the inference of realistic risk of danger.
[58] The trial judge did not err in observing that some evidence counting against the existence of an appropriate plan was the fact that the appellant made no arrangement for a taxi after consuming one beer and before entering upon a lengthy period of drinking a significant quantity of vodka – this according to the appellant’s own evidence, was the point in time he knew he would not be driving himself home. The trial judge could just have easily observed that the appellant could have, but did not, ask a bar employee at closing to arrange a taxi ride home for him. The application of common sense and logic on the part of the trial court cannot be criticized.
[59] Stepping back for a moment, within the context of whether the reasoning and verdict of the trial court was reasonable and supported by the evidence, the appellant’s version of events, presented as a sober witness at trial, was essentially: ‘I don’t drink and drive. Keeping my driver’s licence is important to me. I’ve taken a taxi a couple of times before when I consumed more than one beer. I planned to do that again. While I took no steps to make that arrangement, at no point on November 25, 2016 would I have driven out of the parking lot of the bar.’ This account, perhaps a notch above, “Trust me. I would never drink and drive”, does not amount to an objectively concrete and reliable plan which was implemented.
[60] The evidence at trial established that:
(1) The appellant was heavily intoxicated. Two to three hours after leaving the bar and after having his last alcohol beverage, his BAC at about 4:00 a.m. was in the neighbourhood of 3 times the legal limit. (2) Despite recognition of being inebriated, the appellant did not know whether he was under or over .80 when he left the bar. He also had no idea how long it would take to eliminate the alcohol from his body. (3) At an average eliminate rate, the appellant’s BAC, well into daylight hours, would still be over .80 at 11:00 a.m. and the alcohol in his system would not be eliminated until the afternoon. (4) The appellant was discovered in a public place passed out in the driver’s seat of his vehicle with the driver’s door open in late November at about 4:00 a.m. (5) The appellant maintained that in the past he took a taxi when he consumed “a second beer or another shot of vodka”. The evidence established that the appellant did not, on November 25, 2016, have “a” shot of vodka but rather voluntarily consumed an enormous quantity of alcohol. He was having a one-of-a-kind day in terms of personal difficulties and the quantity of alcohol he consumed and apparently the circumstances in which he found himself in the parking lot. (6) Apart from the very high BAC of the appellant and acknowledged risk of its influence on good decision-making, he demonstrated questionable judgment in other respects including not arranging for a taxi ride, drinking alcohol to the point of passing out, sitting in his vehicle in November with the door open, and pressing the vehicle start button when the police officer finally awakened him.
[61] These circumstances constituted a realistic risk that the appellant, who described himself as wanting to get home “as quickly as possible”, would come to on his own and, in an advanced state of intoxication, drive the 3.9 k. to his nearby residence. There was no evidence of an objectively tangible and definite implemented plan remotely reaching the level of an arrangement to reduce the inherent risk presented by the inebriated appellant seated in his vehicle with the vehicle keys.
CONCLUSION
[62] The appeal is dismissed. The stay of the payment of the fine and of the driving prohibition is terminated.
[63] It is ordered that the clerk of the appeal court comply with Rule 40.23(1) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) as to distribution of these Reasons for Judgment.
Hill J.
DATE: October 30, 2018
[^1]: 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, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion …