Court File and Parties

Court File No.: 68/18 Date: 20190329 Superior Court of Justice - Ontario

Re: R. v. Humberto Goncalves

Before: Molloy J.

Counsel: Ken Lockhart, for the Appellant/Crown Stephen A. Whitzman, for the Respondent/Defendant

Heard: March 25, 2019

Endorsement

Introduction

[1] The Crown appeals from the decision of Blouin J. of the Ontario Court of Justice, dated August 22, 2018, acquitting Humberto Goncalves of: (i) having care or control of a motor vehicle while impaired; and (ii) having care or control of a motor vehicle while “over 80.”

Background Facts

[2] At 2:45 a.m. on March 5, 2017, Toronto police officers found Mr. Goncalves asleep in the driver’s seat of his car, which was parked in a parking spot on the street near 405 Donlands Avenue. He was slumped over the driver’s seat and appeared to be passed out. He was wearing a seatbelt and the engine was running, but the automatic transmission was in the “Park” position. After rousing Mr. Goncalves and removing him from the car, the officers involved found undeniable signs of impairment, including: (i) a strong smell of alcohol on this breath; (ii) slurred speech; (iii) disorientation and confusion; (iv) significant unsteadiness on his feet; (v) constricted eyes; slow movements; (vi) fumbling with keys; (vii) difficulty turning off the engine; (viii) difficulty taking off his seatbelt; and, (ix) difficulty getting out of his car without assistance. He was arrested and transported to 41 Division, where he provided two breath samples, at 4:07 a.m. and 4:29 a.m., with readings of 142 and 135 mg of alcohol per 100 ml of blood, respectively.

[3] These facts are not disputed by the defence. Mr. Goncalves admits he was too intoxicated to operate a motor vehicle. However, he testified at trial that he had no intention of doing so.

[4] On the date in question, Mr. Goncalves lived near Coxwell and Danforth. At about 7:40 p.m. on March 4, 2017, Mr. Goncavles drove to the LCBO and purchased two bottles of wine. He then drove home and left his car there, before walking to the home of his adult daughter (also near Coxwell and Danforth) for dinner. After a couple of hours he walked back to his home and was there for about half an hour. He decided to go to a McDonald’s that was a little farther away because he knew people that would likely be there. He was feeling down about his mother-in-law’s death, and his wife’s absence attending the funeral out of the country. While driving, he changed his mind about going to McDonald’s and decided instead to go to a bar known as Wally’s Tap and Grill. He parked at 405 Donlands just down the street from Wally’s. His original plan had been to have one drink and then drive home. However, while there he consumed three, or perhaps four, alcoholic drinks.

[5] Mr. Goncalves testified that he left Wally’s at about 1:45 a.m. He decided to walk home from there, testifying that he walks a lot and knew that he had too much alcohol to drive. He estimated his level of intoxication as six or seven out of ten. He said that when he got to about Cosburn (about 1 km from the bar), he started to suffer from an asthma attack. He used his medication, which did not help. He decided to go back to his car to warm up until he felt better.

[6] He testified that he turned on the heater and engaged the emergency brake so that the lights would not be on. He said he did not have a cell phone. Although he did not intend to fall asleep, he did.

[7] Mr. Goncalves maintained that he would never drink and drive. When asked what he was planning to do, he stated:

My intention was, as soon as I felt better, to go back home, you know to walk home. Probably. Or if there was a taxi – but if I didn’t find a taxi I would have walked.

[8] At 6:32 a.m., Mr. Goncalves was released from the police station (which was located at Eglinton and Birchmount), whereupon he walked home to Danforth and Coxwell, which is easily two or three times further than the distance between where his car was parked and his home.

The Legal Test: Care or Control

[9] There is no dispute between the parties as to the law to be applied with respect to what constitutes care and control. The leading case, as acknowledged by both counsel, is the Supreme Court of Canada decision in R. v. Boudreault. It is also common ground that when he got into the car, Mr. Goncalves did not have an immediate intention of setting the car in motion. The sole issue in the case is whether there was a realistic risk of the car being set in motion. This generally arises in one of three ways: (i) stationary danger (where even the stationary car may create a risk of danger to persons or property); (ii) accidental motion (where the intoxicated person might accidentally set the vehicle in motion); and (iii) risk of change of mind (where the intoxicated person who might not initially intend to drive might later change his mind and set the car in motion). Of these three possibilities, counsel agree that the only issue is the risk that Mr. Goncalves could change his mind.

[10] A realistic risk is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference in facts such as these, where impairment and a present ability to set the car in motion is established. The Crown is not required to establish that the risk of a change of mind is “probable, or even serious or substantial.”

[11] In determining whether there is a realistic risk of a change of mind, the Court may consider whether the accused had an alternate plan to ensure his safe transportation home, and may consider whether the plan itself was objectively concrete and reliable and whether it was in fact implemented by the accused.

Standard of Review

[12] The Supreme Court of Canada held in Boudreault that “the existence or not of a realistic risk of danger is a finding of fact.”

[13] The standard of review is whether the trial judge committed a “palpable and overriding error” in concluding that there was no realistic risk that Mr. Goncalves would have driven his car.

Analysis

[14] The Crown submits that the trial judge erred by:

(a) placing too great an emphasis on Mr. Goncalves’ stated intention;

(b) insufficiently assessing Mr. Goncalves’ alternate plan; and,

(c) giving insufficient consideration to Mr. Goncalves’ numerous changes of mind of over the course of that night.

[15] In this case, the trial judge correctly stated the law. He knew the test that must be met as to the possibility that Mr. Goncalves would set the car in motion, notwithstanding that his initial intention was not to do that. He referred in his review of the facts the numerous times Mr. Goncalves changed his mind about other things that night. Notwithstanding that, the trial judge was convinced by Mr. Goncalves’ testimony at trial that there was no realistic risk he would change his mind about driving his car. Simply put, he believed Mr. Goncalves.

[16] It is not my role on appeal to reweigh the evidence, nor to revisit the findings of credibility made by the trial judge. It was open to the trial judge to find, on these facts, that the Crown had met its onus of showing a realistic chance that Mr. Goncalves could change his mind about driving. The Crown cited a number of cases in which that conclusion was reached in similar circumstances. Those cases are not helpful to the task before me, which is to determine whether the trial judge made a palpable and overriding error in believing Mr. Goncalves’ evidence and in weighing the evidence in the manner he did. As the trial judge, he was in a unique position to make that credibility finding and that finding of fact.

[17] Interestingly, the Supreme Court in Boudreault, after setting out all of the relevant factors and considerations, nevertheless deferred to the trial judge’s factual findings, stating as follows:

The trial judge in this case committed no error of principle in outlining the applicable law. He recognized that the absence of an intention to drive is not a defence and is only relevant to rebutting the presumption in s. 258(1) (a) of the Criminal Code. He also correctly noted that a risk of danger is an essential element of the offence. Finally, the trial judge turned his mind to the possibility that the risk may materialize by setting the vehicle in motion, either intentionally or unintentionally. In this latter regard, the trial judge recognized that the risk of [translation] “the vehicle being set in motion involuntarily” is a danger the offence is designed to prevent (para. 35). He did not, however, expressly address that danger in this case. This is hardly surprising: At no point during the trial did the Crown allude at all to any such risk in this case.

The parties do not dispute any aspect of the evidence relied on by the trial judge in his reasons.

Finally, applying the correct legal test to the evidence he accepted, the trial judge concluded there was no risk that Mr. Boudreault would at any point intentionally set the vehicle in motion. As earlier mentioned, this finding of fact, however unsatisfactory or unreasonable it may appear to others, was not reviewable on an appeal by the Crown.

[18] That is the same situation before me. On the evidence before him, the trial judge was entitled to come to the conclusion he did and there is no reviewable error. The appeal is dismissed.

MOLLOY J. Date: March 29, 2019