COURT FILE NO.: 18-20051
DATE: 2020/09/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Renford Thomas
Appellant
John Semenoff, for the Respondent
Robert B. Carew, for the Appellant
HEARD: July 29, 2020
REASONS FOR Decision on summary conviction appeal
N. Somji J.
Overview
[1] The appellant seeks to overturn his conviction of June 19, 2019 for impaired care and control of a motor vehicle under section 253(1)(a) of the Criminal Code, RSC 1985, c C-46. (the “Code”).
[2] The primary issue at trial was the application of the presumption under s. 258(1)(a) of the Code (the “presumption”). The presumption, if applicable, is that an accused found to occupy the seat of a motor vehicle is deemed to be in care and control of the vehicle unless he can show that he did not enter the vehicle for the purpose of setting it in motion. The principal issue raised in this case is whether in assessing the presumption, the trier of fact should examine the driver’s intention at the time he begins occupancy of the vehicle or at the time when he is found later by the police occupying the vehicle.
[3] The Court of Appeal for Ontario addressed this question in R v Hatfield (1997), 1997 2938 (ON CA), 33 OR (3d) 350, 115 CCC (3d) 47 (CA), and again in R v Miller (2004), 49 MVR (4th) 44, 2004 24819 (CA), aff’g (2002), 32 MVR (4th) 259, [2002] OJ No 4896 (Sup Ct), and made it clear that in assessing the presumption, intention is to be examined at the time the driver begins occupancy of the vehicle. Hatfield establishes that where a person drives, stops, changes his mind about driving further, and is then found by the police occupying the driver’s seat, the trier of fact should examine the driver’s intention at the time he began occupancy of the vehicle.
[4] The appellant argues that Hatfield has been overruled by the Supreme Court of Canada in R v Boudreault, 2012 SCC 56, [2012] 3 SCR 157, and the trial judge should have applied the legal framework in Boudreault. The respondent’s position is that Boudreault did not overrule Hatfield and that Hatfield remains good law in Ontario.
[5] I conclude that Boudreault did not override Hatfield. Boudreault dealt with a very distinct factual situation. In Boudreault, there was no evidence that the appellant had driven the vehicle prior to being found by the police; rather, he was simply sitting in the vehicle to stay warm while awaiting his cab ride. The appellant in Boudreault had rebutted the presumption by leading evidence that he had not occupied the vehicle with any intention to drive. The Supreme Court of Canada was focused squarely on examining the elements to be proven for care and control in circumstances where the presumption had been rebutted. Furthermore, there is nothing in the language of the decision to suggest the Supreme Court modified the operation of the presumption so as to require the Crown to prove a realistic risk of danger to persons or property when the presumption has not been rebutted. Accordingly, I conclude that Hatfield remains the governing law in Ontario and that the trial judge made no error of law in applying it in this case.
[6] The appellant also argues that the trial judge erred in finding that the passenger door was open in the absence of any such evidence. The appellant argues that had the trial judge not made this particular finding, he would have inferred from the fact that the appellant’s GPS unit was dangling outside the vehicle that the appellant exited the vehicle prior to police arrival thereby breaking the chain in occupancy and rebutting the presumption.
[7] It is unclear why the trial judge referred to the passenger door being open when all the evidence presented was in relation to the driver’s side door. However, I find that little, if anything, turned on this finding. The trial judge clearly found that the appellant had not exited the vehicle, and there was ample evidence to support this on the basis of the appellant’s own testimony and the observations of the officer. I would dismiss this ground of appeal.
Facts
[8] The appellant was charged that on August 13, 2018, he was in care and control of a motor vehicle while impaired contrary to s. 253(1)(a) Code and was “over 80” contrary to s. 253(1)(b) Code. The appellant was convicted of both offences by Hoffman J. of the Ontario Court of Justice on July 19, 2019. The appellant was sentenced to a minimum fine and one-year driving prohibition with respect to the s. 253(1)(a) charge. The s. 253(1)(b) charged was stayed.
[9] The Crown called three witnesses at trial: Constables Bastien, Nguyen, and Beattie. The appellant testified in his own defence. The primary issue at trial was whether the appellant was in care and control of the vehicle. The appellant did not dispute the results of his breathalyzer readings of 150 and 140 milligrams of alcohol in 100 milliliters of blood. Those readings were taken upon his arrival at the detachment.
[10] On August 13, 2018, at approximately 9:26 pm, Cst. Bastien received information that a civilian had reported a possible impaired driver. Cst. Bastien proceeded to the area and located the suspect vehicle, a grey minivan, parked down a bike path. The civilian complainant was parked in a nearby parking lot. Cst. Bastien parked his vehicle behind the complainant’s vehicle and approached the suspect vehicle by foot at 9:41 pm.
[11] Cst. Bastien observed the appellant alone in the vehicle with his seat belt fastened. The interior lights were on. The officer observed a GPS unit dangling from its wire outside the driver’s side door which was closed. The officer testified in cross-examination that the fact that the GPS unit was outside the vehicle and that the dome light was on could be consistent with the door having been opened.
[12] The officer had a short conversation with the appellant. The appellant indicated he was okay and turned the engine on momentarily. The officer told him to turn it off and remove the key, which the appellant did. The officer asked him what brought him onto the bike path and the appellant provided an apology.
[13] The officer observed that the appellant had a strong odour of alcohol on his breath. The appellant tried handing the officer his health card and had to wet his finger with saliva three times to remove his driver’s license from his wallet. The appellant had difficulty recalling the last four digits of his phone number and corrected his phone number twice. At 9:44 p.m., the officer read the approved screening device demand.
[14] The officer asked the appellant to exit the vehicle. Cst. Bastien observed the appellant’s balance was off a little. He observed that the appellant sort of held the driver’s door and then leaned on the passenger door. Cst. Bastien asked the appellant to walk over to the police vehicle. At one point, the officer did not have confidence that the appellant could stand without falling over and asked him to lean up against the front of the police vehicle. Cst. Bastien observed that the velcro attachment on the appellant’s left sandal was undone. The officer observed that the appellant had glassy, bloodshot eyes and that the whites of his eyes were yellow. Cst. Bastien testified that the appellant was compliant at all times and, in cross-examination, described his demeanor as calm and placid, the latter meaning relaxed.
[15] Cst. Nguyen arrived at the scene and administered the approved screening device. The appellant registered a fail at 10:06 p.m. The appellant was given the breath demand, read his rights to counsel, arrested for impaired driving, and taken to the police detachment. The appellant spoke to counsel at the detachment.
[16] Cst. Nguyen remained at the scene after Cst. Bastien and the appellant departed. Cst. Nguyen deemed it might be relevant to take photographs of the scene given that the appellant’s vehicle was found in a unique location of a bike path. At trial, Cst. Nguyen described the various roadways and parking lots surrounding the bike path. The trial judge considered this evidence.
[17] Cst. Beattie took two breath samples at the detachment at 11:30 and 11:54. Prior to taking the readings, Cst. Beattie observed the appellant had a strong smell of alcohol on his breath when he spoke to her, had watery eyes, and appeared sleepy. When presented to her in the room, Cst. Beattie observed the appellant take a few steps where he seemed to sway from side to side on his feet. Cst. Beattie testified that the appellant’s speech was slurred during their discussion. The appellant was very cooperative and polite.
[18] The appellant is 73 years of age. He testified in his own defence. He testified that he had gone to a friend’s place that evening and had two glasses of white wine over a period of 2 to 2.5 hours. He testified that he left in his vehicle around 8:50 or 9:00 p.m. While driving home, he felt sick and decided to pull off the road and call his wife to seek help. He was 20 minutes away from home. The appellant testified he pulled over on the pathway because it looked like a dead end and safe place to pull over.
[19] The appellant testified that he pulled off onto the laneway, called his wife for help, and that almost by the time he got off the phone, the police showed up. He testified that the time of the call was around 9:30 p.m. He testified that he was hoping his wife or friend would come get him and that he “had no intention of driving at all because that’s the reason why I felt that place was so safe to pull off.” (Trial transcript at p 82) The appellant stated he called his wife to come get him not because he was drinking, but because he was feeling ill. The appellant did not know why he was feeling unwell but testified it could have been due to his medication which can cause dizziness and his blood pressure to drop. The appellant testified that he suffers from diabetes and circulation problems and as a result, his right leg will sometimes swell.
[20] In examination-in-chief, the appellant was asked whether he recalled anything about his GPS unit. He replied “No, my GPS unit is normally on the floor and I could always predict that when I opened the door, my foot must have dragged it out.” (Trial transcript at p 81) The appellant acknowledged that he did not notice his GPS unit hanging outside his door at that time.
[21] In cross-examination, the appellant was asked if he exited the vehicle. The appellant replied that because the GPS unit was outside the door, he thinks he must have. When pressed about whether he recalled exiting the vehicle, he said “No, but all indication indicates I did because the GPS was hanging outside as the officer stated.” (Trial transcript at p 87)
[22] The defence called no further evidence.
Decision of Trial Judge
[23] The principal issue at trial was whether the Crown had proven the accused was in care and control of the vehicle and in particular, whether the appellant had rebutted the presumption. In analyzing this issue, defence argued that the legal framework in Boudreault should apply whereas the Crown argued that Hatfield remained the applicable law in Ontario.
[24] The factual distinction between Boudreault and Hatfield is that the former addresses the situation where an officer came upon an impaired person occupying a vehicle that had never been set into motion; the latter addresses a situation where an impaired person occupied the vehicle, set it in motion, later changed his mind about driving, stopped, and was found by an officer occupying the vehicle. Defence argued that irrespective of this factual distinction, Boudreault overruled Hatfield. Defence argued that Boudreault required the trial judge to assess whether there was any realistic risk of danger at the time the appellant was found by the officer, and if not, the appellant should be acquitted.
[25] The trial judge offered the parties the opportunity to research the question and provide written submissions on whether Boudreault had overtaken Hatfield. Both counsel declined. No authorities were provided to the trial judge establishing that Boudreault had overruled Hatfield.
[26] Justice Hoffman found as a fact that the appellant was impaired. He made this finding based on the appellant’s balance problems; the trouble the appellant had retrieving his driver’s license; that the appellant initially provided the officer his health card rather than his driver’s license; the odour of alcohol on the appellant’s breath indicative of some possible recent consumption of alcohol; the appellant’s glassy and bloodshot eyes; that the appellant had difficulty remembering his phone number; and that there were issues with the appellant’s overall recall on things such as why the GPS unit was outside his vehicle.
[27] The appellant had pulled his vehicle over onto what was now a bike path. However, the trial judge accepted the evidence of Cst. Nguyen that this area had previously been used for maintenance vehicles and could, therefore, be an optional area to safely pull over vehicle. The trial judge remarked, nonetheless, that it was a somewhat unusual area for a vehicle to pull over as opposed to the nearby parking lot.
[28] The trial judge concluded that the Crown had proven beyond a reasonable doubt at least a slight impairment of the appellant’s ability to operate a motor vehicle.
[29] With respect to the appellant’s reason for stopping, the trial judge accepted the appellant’s evidence as credible and generally reliable and that the reason he pulled over was because he was feeling sick. The trial judge accepted that the appellant suffered from circulatory problems which sometimes caused his right leg and foot to swell as it had on that day. He also accepted the appellant’s evidence that he had called his wife for help. In summary, the trial judge accepted the appellant’s explanation that he pulled over because he was not feeling well, had changed his mind about driving any further, and that he had a reasonable alternate plan to have his wife or someone come pick him up.
[30] On the basis of the evidence before him with respect to the GPS unit, including the appellant’s testimony, the trial judge found that the appellant did not leave the motor vehicle after bringing it to a stop.
[31] The trial judge found that if Boudreault did overrule Hatfield and he were to consider whether there was a realistic risk of danger to the public at the time the accused was found by Cst. Bastien, then the appellant would be acquitted. In short, having accepted the accused’s evidence, the trial judge found the accused did not intend to drive further once he had stopped. The trial judge also found that when the appellant momentarily turned on the ignition upon Cst. Bastien’s arrival, he did not create a realistic risk of danger to the public.
[32] The trial judge found, however, that Boudreault did not overrule Hatfield. The trial judge found that Boudreault dealt with a fact situation that was distinct from both Hatfield and the case before him and that the Court in Boudreault was not addressing the presumption.
[33] The trial judge found that the police officer came upon the appellant a short time after he stopped driving. The officer observed the appellant occupying the driver’s seat and impaired. The trial judge also considered and relied upon the appellant’s own testimony that he had entered and driven the vehicle after having consumed alcohol at a friend’s place. Applying the dicta in Hatfield, the trial judge considered the appellant’s intention at the time he began occupancy of the vehicle and found that the appellant did not rebut the presumption. Having been in care and control of a motor vehicle while impaired, the trial judge convicted the appellant for impaired driving, stating:
So the accused's own evidence is that he entered the vehicle having consumed alcohol. The police came a short time after he stopped driving. I find the Crown has proved beyond a reasonable doubt that he was impaired on the Stellato test, impaired meaning his ability to operate a motor vehicle was impaired. That's how he, I find, entered the motor vehicle. That's how his occupancy began. Therefore, the 258 presumption applies and he's in care and control, based on Hatfield, p. 5, second full paragraph. [emphasis mine] (Trial transcript at p 106)
Issues
[34] The issues in this appeal are as follows:
Did the trial judge err in applying Hatfield instead of Boudreault in assessing the application of the presumption in this case?
Did the trial judge err in finding that the appellant’s passenger door was open at some point in the absence of any such evidence before the court?
[35] The appellant raised two other issues in his Notice of Appeal, but subsequently advised that these issues were abandoned. Therefore, these two issues are not addressed in these reasons.
Analysis
Powers of the court under summary appeal
[36] This is a summary conviction appeal under ss. 813 and 830 of the Code.
[37] The powers of a judge on summary conviction appeal are set out in s. 686(1) of the Code. The court may allow an appeal against conviction if the trial decision is:
a) Unreasonable or cannot be supported by the evidence;
b) On the ground that the decision is a wrong decision on a question of law; or
c) Any ground where there is a miscarriage of justice.
Issue No. 1: Did the trial judge err in applying Hatfield instead of Boudreault in assessing the application of the presumption in this case?
a) The law governing the presumption under s. 258 of the Code and Hatfield
[38] The appellant was charged with care or control of a motor vehicle while impaired. The Crown may prove care or control by showing a person was in actual or de facto care or control, or alternatively, by relying on the presumption under s. 258 of the Code which reads as follows:
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 or assisting in the operation of the aircraft or railway equipment, as the case may be;
[39] The Crown relied on the presumption to establish care or control given that the officer came upon the appellant occupying the driver’s seat of the vehicle. The onus was on the appellant to rebut the presumption on a balance of probabilities by establishing that he did not occupy the driver’s seat for the purpose of setting the vehicle in motion.
[40] The question that commonly arises in such cases is what point in time does the trier of fact examine to determine the accused’s purpose in occupying the driver’s seat? Does the trier of fact consider the person’s intention when he first occupied the driver’s seat or at a later point in time when he is discovered by the police stopped but still occupying the driver’s seat? What happens if there is a change in a person’s intention along the way as was the case here?
[41] The respondent argues that the law in Ontario as set out in Hatfield is clear that the material time for examining the accused’s intention is at the time when occupancy of the vehicle began. In Hatfield, the accused was found by the police asleep in the driver’s seat of a parked car. The key was in the ignition, but the engine was not running. The accused testified that he had been drinking at a restaurant and drove away. After driving 0.25 miles, he decided he was not fit to drive and pulled into a parking lot. His intention was to sleep until he was able to continue driving again. He was awoken by two police officers. He provided readings of 180 and 170 milligrams of alcohol per 100 milliliters of blood. The accused did not contest that he was impaired.
[42] Similar to the matter before this court, the primary issue at trial in Hatfield was whether the accused was in care and control of the motor vehicle and specifically, whether his change of mind with respect to driving had the effect of rebutting the presumption. Hatfield was acquitted at trial but convicted on summary conviction appeal. The Court of Appeal for Ontario dismissed a further appeal and maintained the conviction.
[43] The defence in Hatfield argued that the 1985 legislative amendment to the wording of the presumption in s. 258 of the Code indicated Parliament’s intention to alter the time for analysis of the accused’s intention in occupying the driver’s seat from the point of entering the vehicle to the point of police discovery. The Court of Appeal for Ontario categorically rejected this argument.
[44] The Court concluded that to adopt such an interpretation would permit the accused to escape liability by simply showing that, when apprehended by the police, he had no further intention to drive. The Court concluded that this interpretation would undermine Parliament’s intent to discourage intoxicated people from getting behind the wheel in the first place. The Court highlighted that if this was Parliament’s intent, it could have worded the provision to indicate the presumption was rebutted if the accused could show that, on arrest, he had no intention to drive. The Court stated at page 354:
On the appellant’s reading of the section, an accused could escape the presumption by showing, on being apprehended by the police, no requisite intention by reason only that, being asleep, he was without intent to drive. Such a reading would not manifest a legislative intention to discourage intoxicated people from ever getting behind the wheel in the first place but rather a legislative intention to encourage intoxicated people once behind the wheel and on the road, to pull off.
Moreover, if such a change had been intended it could have been achieved much more simply – by permitting displacement of the presumption if the accused could show that on arrest he did not have the intent to drive.
[45] The Court concluded in Hatfield that the presumption will apply unless a person can demonstrate that his or her occupancy began without the purpose of setting the vehicle in motion: Hatfield, at p 355.
[46] Not all courts across the country agree with the approach in Hatfield. Judges in other jurisdictions have questioned whether the presumption should be interpreted so as to criminally penalize people who exercise good judgment and voluntarily stop driving when they realize they are impaired. In doing so, they do not condone or encourage people getting into vehicles and driving while intoxicated but take the approach that criminal liability should not be found where the risk of danger to the public has been minimized by a decision to stop driving.
[47] For example, in the Alberta decision in R v Grover, 2000 ABQB 779, the appellant had started home and realized that he was drunk. He pulled his vehicle off to the side of the road, got out, walked around, and got back in with the intention of sleeping. He set his alarm for 6:00 am so that he could go to work at 7:00 am. When he was found by the police asleep in the vehicle, it was in a park with the engine turned off. The trial judge accepted that it was Mr. Grover’s intention to sleep and not drive home. The trial judge found, however, that by planning to wake up at 6:00 a.m. and go to work, Mr. Grover had demonstrated a continued intention to exercise control of the vehicle and did not rebut the presumption.
[48] On appeal, the Court of Queen’s Bench took a different view and acquitted Mr. Grover. On appeal, LoVecchio J. examined the wording and legislative history of the presumption. Justice LoVecchio noted that prior to the 1985 amendment, the presumption was worded to require consideration of the accused’s intention when he “entered” or “mounted” the vehicle. The provision was amended in 1985 to require the accused to demonstrate that he did not “occupy” the vehicle for the purpose of setting it in motion. Parliament did not specify, however, whether the accused’s intention was to be examined when occupancy began or upon discovery by the police. Justice LoVecchio concluded that for the trier of fact to focus entirely on the time when the person entered the vehicle or when occupancy began, as suggested in Hatfield, was problematic for two reasons. First, how is the Crown to prove that the accused was intoxicated at the time they entered the vehicle – a point in time which may be considerably earlier than the time at which the accused is found? Second, if the accused entered the vehicle more than two hours before the breathalyzer samples were taken, can those readings have any probative value?
[49] In addition, LoVecchio J. found that there were sound policy reasons for not adopting the Hatfield approach. At paragraphs 57 and 58, LoVecchio J. emphasized that individuals should not be discouraged from pulling over and stopping their vehicles if they realize they are impaired:
[57] With the greatest of respect for the decision in Hatfield, there should not be too much emphasis placed on initial purpose to the exclusion of some recognition for good judgement in these cases. In reaching this conclusion, I do not wish to be seen as sanctioning in any way getting into a vehicle for the purpose of driving while a person is intoxicated. Such individuals pose a significant risk to society by their presence on the road.
[58] The rationale for the recognition of good judgement is simple. If the individual pulls over and the vehicle may not be put in motion, as the driver has changed his intention and the use of the motor vehicle, the risk posed by driving the vehicle no longer exists.
[50] Justice LoVecchio concluded that Hatfield should not be followed in Alberta and set aside the conviction. The approach taken in Grover was reflected in two other Alberta decisions: see R v Ferrier (1996), 1996 19894 (AB CJ), 189 AR 136, 2 CR (5th) 383 (Alta Prov Ct) and R v Bilsky, 2011 ABPC 177. The approach in Grover was also followed by the Saskatchewan Court of Appeal in R v Shuparski, 2003 SKCA 22, and the provincial court in British Columbia: see R v Martindale (1995), 1995 1928 (BC SC), 45 CR (4th) 111, 20 MVR (3d) 268 (BCSC).
[51] It is important to note that the Alberta provincial court decisions cited by the appellant such as Grover, Bilsky, and Ferrier, do not represent the appellate position in Alberta. In R v Hudson, 1989 ABCA 75, 35 Alta LR (3d) 190, 23 MVR (2d) 284, the Court of Appeal of Alberta found that the relevant point in time for considering the accused’s intention is at the time occupancy began. The Court of Appeal of Alberta recently revisited the issue in R v Sarasin, 2018 ABCA 169, which was also decided following Boudreault. The Court of Appeal of Alberta maintained their earlier position in Hudson noting it was the same position adopted by the Court of Appeal for Ontario in Hatfield. As explained in Sarasin at para 13:
It would not be logical, as indicated in Hudson, that criminal culpability now complete should be taken to have been not merely terminated but erased by the fact that the person is subsequently found sleeping or has changed their mind and is sitting still or that the vehicle is immobilized or that the person has been arrested. All of these types of factors that would create a different state of mind of the offender (perhaps) or a different state of capacity of the offender are, it seems to me, beside the point insofar as rebutting the presumption which should apply as indicated by Hudson and Hatfield at the time of occupancy. That corresponds with the language that Parliament has chosen.
[52] The Court of Appeal for Ontario also revisited the same question in 2004 in Miller and maintained their earlier position in Hatfield. In Miller, the accused left a tavern after consuming five beers. After four to five minutes of driving, the accused felt the alcohol had affected his ability to drive and pulled over. He parked outside a friend’s place and waited for the friend to arrive. The police found the accused asleep in the driver’s seat with the engine on and the transmission in park. He registered breathalyzer readings of 159 mg/100 ml and 155 mg/100 ml respectively.
[53] The accused was acquitted at trial and convicted on appeal on the basis of Hatfield. The summary conviction appeal judge (Hill J. of this Court) addressed the 1985 amendment to s. 258 of the Code and the legal debate that had surfaced in Canadian courts as to the material time for examining the accused’s intention. Justice Hill reviewed several cases from other jurisdictions including Grover. He ultimately concluded that Hatfield prevailed as the governing law in Ontario.
[54] The case was further appealed, and the Court of Appeal for Ontario had an opportunity to consider the competing decisions and their earlier decision in Hatfield. In a three-paragraph decision, the Court of Appeal for Ontario stated they were not prepared to depart from Hatfield and dismissed the appeal. For another discussion of this legal debate, see R v Danji, 2005 ONCJ 70 at paras 25-36.
[55] It appears, therefore, that having considered the different views across the country on the interpretation of the presumption following the 1985 amendment and the policy considerations in support of these interpretations, the Court of Appeal for Ontario has confirmed in Hatfield and Miller that to rebut the presumption under s. 258 of the Code, the trier of fact is to determine the driver’s intention at the time occupancy of the vehicle began.
b) Did Boudreault overrule Hatfield and alter the legal framework for assessing the presumption?
[56] The appellant argues that the Supreme Court of Canada’s 2012 decision in Boudreault has overruled Hatfield. The appellant argues that even though Boudreault is distinct on its facts from the matter now before the Court, the three-part test set out in Boudreault must be applied in all cases involving care and control. If a person can establish that when he is found by the police there was no realistic risk of danger to person or property, then the presumption is rebutted.
[57] The respondent argues that Boudreault is factually distinct, does not address the application of the presumption which had been rebutted in that case, and that the three-part test only applies once a person has been found to rebut the presumption. I agree with the respondent.
[58] In Boudreault, the Supreme Court considered the definition of “care and control” within the meaning of s. 253(1) of the Code. In Boudreault, the accused was inebriated after a long night of drinking and requested a friend to call a cab to take him home. The friend called for two taxis, one to take Mr. Boudreault home and the other to take his truck home. Mr. Boudreault waited some 25 minutes for the cab. At one point, instead of waiting outside in the cold, Mr. Boudreault entered his truck and turned on the ignition to stay warm. When the cab driver arrived, he called the police instead of taking the accused home. The trial judge acquitted the accused. The Quebec Court of Appeal overturned the conviction. The Supreme Court allowed the appeal and restored the acquittal.
[59] The Supreme Court found that care and control under s. 253(1) Code signifies: (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; and (3) in circumstances that create a realistic risk of danger to persons or property: Boudreault at para 33.
[60] The Supreme Court stated that where an accused person is found inebriated behind the wheel of a motor vehicle with nothing to stop the accused from setting it in motion, either intentionally or accidentally, it will normally result in a conviction: Boudreault at para 12. However, where an accused adduces evidence to prove that the inherent risk of danger is not a realistic risk, the accused may be acquitted: Boudreault at para 13. The Supreme Court found that this was anomalous to s. 258 of the Code which presumes an accused found in the driver’s seat of a motor vehicle has care and control unless they establish that they did not occupy the seat or position for the purpose of setting the vehicle in motion.
[61] The Supreme Court noted there may be circumstances where a conviction may result even if the accused satisfies the trier of fact that he or she did not have an intention to drive and identified three possible scenarios. First, the inebriated person who initially does not intend to drive may later, while impaired, change his or her mind and proceed to drive. Second, an inebriated person may unintentionally set the vehicle in motion. Third, through negligence or bad judgment, a stationary or inoperable vehicle may endanger persons or property: Boudreault at para 42.
[62] The Supreme Court concluded that it is ultimately a matter of a factual determination based on a review of all the relevant evidence, including, for example, whether the accused took care to arrange an alternate plan. Such a plan must be assessed in the context of the situation and the accused’s level of impairment. There may be some cases where the accused’s impairment is such that they cannot foresee the possible consequences of their actions, and even if they called a taxi, there remains a risk of danger by virtue of their inebriation and occupancy in the driver’s seat: Boudreault at paras 52-53.
[63] In Boudreault, the Supreme Court found that the trial judge applied the correct legal test to the evidence. The trial judge recognized that the absence of an intention to drive is not defence and only relevant to rebut the presumption: Boudreault at para 54. The trial judge correctly noted that a risk of danger is an essential element of the offence of impaired driving. The trial judge also turned his mind to the possibility that the risk may materialize by setting the vehicle in motion, either intentionally or unintentionally, and that this is a danger the offence is designed to prevent: Boudreault at para 54. The trial judge concluded on the evidence before him that there was no risk that Mr. Boudreault would at any point intentionally set the vehicle in motion and therefore, there was no realistic risk of danger to persons or property. The Supreme Court restored the acquittal.
[64] In the matter before this Court, appellant’s counsel did not, at trial or on appeal, cite any Ontario authorities supporting a conclusion that Boudreault overruled Hatfield.
[65] In R v Blair, 2014 ONSC 5327, Trotter J (as he was then) considered this very question and concluded that Boudreault did not overrule Hatfield. Blair had collided with a fire hydrant and was found by the police in the driver’s seat of the vehicle. He was also seen trying to start his car eight times without success. When Blair exited the vehicle, the police observed him to be intoxicated. The trial judge concluded that even though the accused had not rebutted the presumption, Boudreault required the Crown to prove a realistic risk of danger to person or property which could not be established since the vehicle was inoperable. The trial judge acquitted the accused. The Crown appealed to this Court.
[66] Justice Trotter distinguished Boudreault from Hatfield. First, he found that Boudreault was factually distinct and there was nothing in the language of Boudreault to suggest that the Supreme Court modified the operation of the presumption so as to require the Crown to prove a realistic risk of danger to the persons or property when the presumption has not been rebutted. The Supreme Court was focused squarely on the elements to be proven for care and control in that particular context: Blair, at paras 11, 13. Second, Blair had not rebutted the presumption. Blair was observed making eight attempts to start his van establishing an intention to drive. In that situation, the risk of danger is embedded in the application of the presumption: Blair, at para 15. Third, to require the Crown to prove a realistic risk of danger to the public would render the presumption meaningless because this is precisely the same onus the Crown would have to satisfy if the presumption did not exist: Blair, at para 14. Finally, Trotter J cites several provincial court authorities that also concluded that the Crown does not have to prove a realistic risk of danger if the presumption has not been displaced: R v Brzozowski, [2013] OJ No 2483 (Ont SCJ) at paras 17-26 and R v Tharumakulasingam, 2014 ONCJ 362 at paras 59-65. I would add to this list of authorities, R v Ablack, 2016 ONCS 290 where Javed J. also finds that the realistic risk of danger analysis only arises where the accused has rebutted the presumption or where the Crown relies upon proof of de facto care and control: Ablack at para 79.
[67] For the reasons set out above, I adopt the reasoning in Blair and conclude that Boudreault does not overrule Hatfield. In Boudreault, the Supreme Court was considering whether in circumstances where the presumption was rebutted, the accused could still be found guilty under s. 253(1)(a) Code. The Supreme Court found that even in the absence of any intention to drive, a person could still be found in care and control of a motor vehicle if their occupation of the vehicle demonstrated a realistic risk of danger to persons or property. The Supreme Court then went on to describe several scenarios in which this might arise and result in a conviction: Boudreault at paras 41-42. The focus of the majority decision appears to be on the analysis to be undertaken by the trier of fact in circumstances where the accused has rebutted the presumption. Justice Cromwell in his dissenting opinion also confirms at paragraph 67 that the analysis is focused on the context in which the presumption is rebutted. There is nothing in the language of Boudreault to suggest that the risk of danger analysis is being applied to determine if the accused has rebutted the presumption.
[68] R v Espinola, 2019 CarswellOnt 21861 (Ont CJ) is a recent illustration of the application of the Boudreault analysis after the presumption was rebutted. In Espinola, the trial judge examined the accused’s intention at the time he began occupancy of the vehicle as per Hatfield: Espinola at para 35. The trial judge found the accused rebutted the presumption by demonstrating that he had only entered the driver’s seat for the “purpose of staying warm while having a cigarette on a cold night”: Espinola at para 37. Having rebutted the presumption, the trial judge went onto consider whether the accused could, nonetheless, unintentionally put the vehicle in motion and therefore create a realistic risk of danger to find care of care and control. The trial judge found in that case there was no risk of danger and acquitted the accused: Espinola at paras 38-43.
[69] I agree with the respondent that the Boudreault analysis of whether there is a risk of danger to persons and property only applies after the accused has led evidence to establish that he was not in the driver’s seat for the purpose of putting the vehicle in motion and has thereby rebutted the presumption. To impose an additional obligation on the Crown to prove there is a realistic risk of danger when the presumption has not been rebutted would constitute a reversible error. See also R v Panamick, 2017 ONSC 5582 at para 51.
c) Application of the law to the facts of this case
[70] The trial judge accepted the appellant’s evidence that he did not want to drive further after he had pulled off the road and onto the bike path. However, the trial judge also found, on the basis of the appellant’s testimony, that the appellant had entered the vehicle at his friend’s place for the purpose of setting the vehicle in motion and did, in fact, drive. The trial judge was correct to apply the dicta in Hatfield and examine the appellant’s intention at the time his occupancy of the vehicle began. The appellant had not rebutted the presumption and the trial judge correctly found the appellant was in care and control of the vehicle. The trial judge was not required to further consider whether there was a risk of danger to the public. I find that the trial judge did not err in law.
Issue No. 2: Did the trial judge err in finding that the appellant’s passenger door was open at some point in the absence of any such evidence before the court?
[71] The appellant argues that the trial judge erred in finding that the passenger door was open in the absence of any such evidence. The appellant alleges that the uncontradicted evidence was that the GPS unit was hanging out the driver’s side door. Had the trial judge realized this along with the accused’s testimony in relation to whether he exited the vehicle, it would have been open to the judge to reasonably infer that the accused had parked and exited the vehicle and later returned to it when found upon by the police.
[72] I understand that the significance of the judge making a finding that the appellant exited the vehicle is that it would have disrupted the appellants’ occupancy of the vehicle thereby rebutting the presumption. In other words, the appellant would have re-entered the vehicle while on the bike path for a purpose other than setting the vehicle in motion.
[73] The reference to the passenger door is in the following passage of the trial judge’s decision:
That is, in fact, the finding of fact I make in this case, that I do not draw the inference that the accused left the motor vehicle, although I do draw the inference that the passenger's door was open at some point. (Trial transcript at p 99)
[74] The trial judge was very clear in the above-noted passage the he did not infer the appellant left the motor vehicle. He also indicated at page 103 of the transcript when summarizing the accused’s evidence that the accused had no recall of exiting the vehicle.
[75] It is unclear why the trial judge referred to the passenger door being open when all the evidence presented regarding the dangling GPS unit related to the driver’s side of the door. However, I find that little turns on this reference as the trial judge was clear that he did not find the appellant exited the vehicle, and there was ample evidence upon which he could make such a finding.
[76] During his examination-in-chief, the appellant was neither asked nor did he offer evidence as to whether he exited the vehicle. In fact, his evidence was that he pulled over, called his wife for help, and the police came upon him almost immediately after. The appellant testified:
I pulled off onto the laneway, called my wife seeking help and by the time I got off the phone, almost by the time I got off the phone, the police showed up. (Trial transcript at p 80)
[77] In cross-examination, the Crown suggested to the appellant that he had remained in the vehicle the whole time to which he replied “correct”. The appellant then stated that he might have come out briefly. When asked by the Crown what he meant by that, the appellant testified that because his GPS had been hanging outside the door, he must have come out briefly. When pressed further by the Crown and asked directly whether he recalled if he came out of the vehicle, the appellant replied “No, but all indication indicates that I did come out because the GPS was hanging outside, as the officer stated.” (Trial transcript at p 87)
[78] It is clear that exiting the vehicle was not part of the appellant’s narrative. He did not offer this evidence in-chief and during cross-examination, he merely speculated that he must have exited the vehicle because his GPS unit was outside the driver’s side door as the officer suggested. The appellant’s speculation that he exited the vehicle is inconsistent with his own earlier evidence that the police were upon him almost immediately after he called his wife and the officer’s evidence that he found the appellant in the driver’s seat wearing his seatbelt. The trial judge’s finding that the appellant did not exit the vehicle was reasonable and supported by the evidence. I would accordingly dismiss this ground of appeal.
[79] The appeal is dismissed.
N. Somji
Released: September 9, 2020
COURT FILE NO.: 18-20051
DATE: 2020/09/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Renford Thomas
Appellant
REASONS FOR decision on summary conviction appeal
N. Somji J.
Released: September 9, 2020