FACTUAL BACKGROUND AND OVERVIEW

Background

[1] On 5 October 2018, the appellant attended a nightclub in Toronto and consumed a number of alcoholic drinks. He left the club at approximately 2:00 am the next morning and drove north in his BMW on the Don Valley Parkway. He exited at Lawrence Avenue East after feeling the effects of the alcohol. He drove one block east to Railside Road and parked on a driveway which led to a parking lot at the rear.

[2] Realising that he could not continue driving, he thought he would call a friend to attend the lot in an Uber and drive him home. Due to the lateness of the hour, he decided to wait a few hours to avoid unnecessarily waking his friend. Feeling exhausted, he fell asleep.

[3] Sometime between 2:00 am and 4:00 am, Michael Iaboni, a driver employed by the company operating at 190 Railside Road, arrived to collect his truck and discovered the appellant’s car in the driveway. Although he could enter the parking lot in his own car, he was unable to exit the lot: the company’s truck weighed five tons and was 24 feet in length and 6 to 7 feet wide.

[4] Mr. Iaboni saw that the appellant was asleep in his car and tried to wake him by honking his truck’s horn. As the appellant did not respond, Mr. Iaboni called 911.

[5] In the end, Mr. Iaboni decided to drive round the appellant’s BMW. He did so very carefully and mounting the higher than normal curb.

[6] When paramedics and police arrived, they found the car parked in the driveway with the appellant being groggy. The appellant was given a breath demand and when that provided a “fail”, he was taken to the station where further readings of 146 and 151 milligram of alcohol per 100 millilitres of blood were found in the appellant’s system.

[7] At trial, the judge found that the Crown had not proven beyond a reasonable doubt that there was a risk that the appellant intended to drive his car or could have placed his BMW in motion. However, he convicted the appellant of Over 80 care and control on the basis that the appellant created a realistic risk of danger by placing the vehicle in a position that may endanger persons or property.

[8] The appellant appeals the trial judge’s decision on the basis that he misapprehended Mr. Iaboni’s evidence about the safety of driving around the BMW and he misapplied the law with respect to the criterion that the BMW created a realistic risk of danger to the public.

ANALYSIS

[9] The test for impaired care and control can be found in the leading case of R. v. Boudreault, 2012 SCC 56, [2012] 3 SCR 157, at para. 33, where the Supreme Court of Canada defined the essential elements of care and control as:

(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.

[10] At para. 42, the Court explained:

In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

[11] There is no dispute by the appellant that the first two limbs of the test were met. The sole question in this appeal was whether the trial judge correctly applied the third limb of the test. The Court emphasised that the realistic risk threshold was low and that “realistic” did not mean “probable, or even serious or substantial”: Boudreault, at para. 34.

[12] The Court added, at para. 49, that:

The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger. Likewise, use of the vehicle for a manifestly innocent purpose should not attract the stigma of a criminal conviction.

[13] However, the existence of a realistic risk of danger is a finding of fact of the trial judge who must consider all of the relevant evidence: Boudreault, at para. 50; R. v. Smits, 2012 ONCA 524, at para. 61; R. v. Lockerby, 1999 NSCA 122, 180 N.S.R. (2d) 115, at para. 13.

[14] Deference must be given to a trial judge’s findings of fact and an appellate court may not simply substitute its own findings simply because it disagrees with the judge’s conclusion. Rather, those findings may only be set aside in cases where the trial judge has committed a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-37; R. v. Tiffin, 2008 ONCA 306, 90 O.R. (3d) 575, at paras. 22, 36, 41-43; R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at paras. 71-72; R. v. Carrano, 2011 ONSC 7718, at para. 4; R. v. Beharry, 2014 ONSC 848, at paras. 15-19; R. v. David, 2014 ONSC 5049, at paras. 14-15.

[15] Both sides rely upon previous precedents where the parked location of an accused’s car was scrutinised to determine whether a realistic risk of danger to persons or property existed.

[16] In R. v. Vansickle, [1988] O.J. No. 2935, aff’d [1990] O.J. No. 3235, (C.A.), for example, a parked vehicle straddling the centre line of a highway in whiteout conditions was held to constitute a realistic risk of danger to persons or property. In R. v. Wendell, 2015 ONCJ 343, the judge found that the accused’s parking her vehicle on the left side of the on ramp to the 401 in snowy weather fell within the legal definition of the third limb.

[17] On the other hand, in R. v. Olinyk, 2018 ONCJ 767, a car parked against a curb was held not to constitute a realistic risk of danger to the public or property. Similarly, in R. v. Sivaraman, 2918 ONCJ 636, a car parked on a side street near the accused’s house with its door open was held to be safely parked.

[18] All that these cases demonstrate is that each case turns on its own facts.

[19] Here, the evidence was as follows:

• The car was parked on a driveway near its centre, with the curbside on either side of the driveway being raised

• Mr. Iaboni’s initial impression was that he could not safely take his truck out of the lot because of the position of the appellant’s vehicle

• When he did take his truck out, he had to do so very carefully and drive on top of the curb

[20] The trial judge reasoned that there was a realistic risk to public safety or property by commenting:

The fact that Mr. Iaboni, a licenced truck driver, who was anxious to begin his workday was reluctant to make the attempt to pass Mr. Lin’s vehicle initially is not in my view rebutted by Mr. Iaboni’s successful attempt to get past him later. His hesitancy to try and his willingness to assume some risk as the delay in removing Mr. Lin’s vehicle carried on, does not, in my view, eliminate the risk to public safety. That Mr. Iaboni was willing to assume that risk later does not mean that there was no risk to the public.

[21] In my view, the trial judge was, on the record before him, entitled to come to that conclusion. Although the appellant argues that the trial judge misapprehended the evidence and that under no reasonably conceivable circumstance was there a risk of danger, the evidence reveals the existence of risk. The judge concluded that the manner of Mr. Iaboni’s successful manoeuvre in exiting the parking lot signified his calculation of the risk and willingness to take it. It did not show the absence of risk.

[22] This was a finding of fact made by the judge which is entitled to deference.

[23] For these reasons, the appeal is dismissed.

S.A.Q. Akhtar J.

Released: 25 November 2020

COURT FILE NO.: CR-20-40000028-00AP

DATE: 2021125

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

HONGPENG LIN

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

R. v. Lin, 2020 ONSC 7249

Case Summary

FACTUAL BACKGROUND AND OVERVIEW

Background

ANALYSIS

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 2