COURT FILE NO.: 45/21 DATE: 2022-03-16

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

BETWEEN:

Her Majesty the Queen, Appellant – and – Victor Rodriguez Garcia, Respondent

COUNSEL: Norm Stanford, for the Appellant Jenny Rodopoulos, for the Respondent

HEARD: February 9, 2022

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

NISHIKAWA J.

Overview

1The Appellant, Victor Rodriguez Garcia, appeals his conviction for impaired operation of a conveyance under s. 320.14(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. In oral reasons given on July 14, 2021, the trial judge found that the Crown established that the Appellant had care or control of the vehicle by demonstrating beyond a reasonable doubt that “there was a risk for the accused to change his intention and drive away, or to put his vehicle in motion, and/or create a situation causing immediate public danger with it.” Mr. Rodriguez Garcia was sentenced to a minimum one-year driving prohibition and fine of $1,700.

2Mr. Rodriguez Garcia appeals the conviction on the basis that the trial judge misapprehended the evidence, and that the verdict was unreasonable. For the reasons that follow, I dismiss the appeal.

Summary of Evidence

3The trial took place over two days, on March 31 and April 1, 2021. The Crown called three witnesses: Glenn Ryan, the neighbour who called 911 on the night of the incident; Stephen Wells, an employee of the Toronto Fire Service; and Police Constable Lee Perelli. Mr. Rodriguez Garcia’s wife, Aleidi Reyes, and a neighbour, Catherine Grant, testified for the defence. Mr. Rodriguez Garcia also testified.

4Mr. Rodriguez Garcia is 46 years old. He is married and has two children. He is a permanent resident and has been living in Canada for 19 years. He testified at trial through a Spanish interpreter.

5On August 18, 2019, Mr. Rodriguez Garcia was at home putting together furniture. During the course of the day, he drank at least six tall cans of beer. At some point in the evening, he and Ms. Reyes had a disagreement because she wanted him to stop drinking. Ms. Reyes testified that they had to cancel plans to go to church because Mr. Rodriguez Garcia had been drinking. As a result of the argument, shortly after 8 p.m., Mr. Rodriguez Garcia went out to his vehicle to listen to music. The vehicle, a 2009 Nissan Murano SUV, was parked on the street near their home. The house where they lived had multiple units, and Mr. Rodriguez Garcia was not permitted to park in the driveway.

6Mr. Rodriguez Garcia testified that when he went to the vehicle, he had nowhere to go and nothing he wanted to do. Ms. Reyes was not concerned about him going to the vehicle because she knew he would not drive it anywhere.

7Catherine Grant, who lives a few houses away from the Appellant, testified that she had seen Mr. Rodriguez Garcia’s vehicle parked across the street from her house where he normally parked it all day. When Emergency Services arrived later that evening, the vehicle was parked in the same place it had been all day.

8A neighbour, Glenn Ryan, testified that on the evening of August 18, 2019, he was in his house with the windows closed when he heard loud music, which he discovered was coming from a Nissan Murano parked across the street. After approximately 45 minutes, he went outside and saw a man slumped over in the vehicle with his head on the steering wheel or on his chest. The windows of the vehicle were closed. Mr. Ryan knocked on the window and shined his cell phone light into the vehicle but could not wake Mr. Rodriguez Garcia. Approximately 15 to 20 minutes later, Mr. Ryan called 911. He waited on his porch for emergency services to arrive.

9Stephen Wells of the Toronto Fire Service and his partner, Mr. Smith, arrived in the area shortly after 9 p.m. They banged on the window of the vehicle. Mr. Wells opened the vehicle from the passenger side, turned down the music and removed the key from the ignition. Mr. Wells testified that he smelled alcohol in the vehicle and observed a can of beer in the centre console. Mr. Wells testified that the engine was not on and that the vehicle was in park. The power was on to the extent that the interior lights and radio were on.

10At first, Mr. Rodriguez Garcia was not responding to the firefighters’ questions, but after a minute or two, he woke up. Mr. Wells testified that Mr. Rodriguez Garcia seemed confused when he first woke up but became more aware of the situation after a couple of minutes. Mr. Rodriguez Garcia was polite and cooperative throughout their dealings.

11At approximately 9:26 p.m. that evening, PC Perelli and his partner, PC Alex Sohla, arrived on the scene. PC Perelli observed Mr. Rodriguez Garcia pacing back and forth. PC Perelli asked Mr. Rodriguez Garcia how much he had to drink, to which Mr. Rodriguez Garcia responded, “five years.” Mr. Rodriguez Garcia had yet to be provided his rights to counsel when he gave the response.

12At some point, Mr. Rodriguez Garcia attempted to open the door of the vehicle, and PC Perelli told him that he could not enter the vehicle. Mr. Rodriguez Garcia responded, “I’ll just go home, it’s okay.” At 9:36 p.m., PC Perelli placed Mr. Rodriguez Garcia under arrest. He testified that Mr. Rodriguez Garcia was having difficulty walking in a straight line.

13Mr. Rodriguez Garcia was taken to the division and booked. The booking video was entered into evidence at trial.

The Trial Judge’s Reasons

14The trial judge found that Mr. Rodriguez Garcia had established that he did not intend to drive when he got into the driver’s seat and that he rebutted the presumption in s. 320.35 of the Criminal Code. Nonetheless, the trial judge relied on the following evidence to find that Mr. Rodriguez Garcia was impaired in “circumstances that create a realistic risk of danger to persons or property”:

• He was parked on a public roadway, as opposed to being in the driveway of his residence or a parking lot;
• He was in the driver’s seat with his feet inches away from both the brake and accelerator pedals of the vehicle;
• The key to the vehicle was in the ignition and engaged, although not to the level that would allow the vehicle to be put in motion. There was, however, power to the vehicle, such that the radio and air conditioning could be used;
• He was slumped in the driver’s seat “deeply under”, at minimum asleep or “perhaps even unconscious.” When he was awoken by the firefighters, he was confused and did not understand what was going on around him; and
• His level of impairment was “pronounced.”

15The trial judge detailed the evidence that led to her finding regarding Mr. Rodriguez Garcia’s level of impairment, as follows:

• Ms. Reyes’ testimony that when Mr. Rodriguez Garcia went out to the car, his speech and walking were affected and that he was “very much more than a little tipsy”;
• Mr. Rodriguez Garcia’s testimony that he “wasn’t thinking” when he took a can of beer out to the car, and could not remember whether he continued to drink from it once outside, as well as the fact that he fell asleep despite how loud the music was;
• Mr. Rodriguez Garcia was not roused by Mr. Ryan, and fire personnel had to resort to sternum rubbing to wake him; and
• Mr. Wells described Mr. Rodriguez Garcia as being “under the influence” and “in an altered level of consciousness”;
• Once roused, Mr. Rodriguez Garcia continued to be unsteady on his feet, unable to walk a straight line and stumbling as he went to sit on the curb;
• Mr. Rodriguez Garcia gave a non-responsive answer to PC Perelli’s question about how much he had to drink; and
• Mr. Rodriguez Garcia admitted that alcohol was a “major factor” in his loss of consciousness, that he was not fully in self-control, and that driving in his condition would have been dangerous.

Issues

16The issues on this appeal are as follows:

(a) Did the trial judge err in law in considering the Appellant’s involuntary statement in assessing his level of impairment? (b) Did the trial judge materially misapprehend the evidence? (c) Was the verdict unreasonable?

Analysis

Did the Trial Judge Err in Considering the Involuntary Statement?

17As noted above, when PC Perelli arrived on the scene, he asked Mr. Rodriguez Garcia how much he had to drink. Mr. Rodriguez Garcia responded, “five years.” At the time, Mr. Rodriguez Garcia had yet to be given his rights to counsel. In her reasons, the trial judge found that Mr. Rodriguez Garcia’s level of impairment was pronounced, and identified his non-responsive answer to PC Perelli’s question as one of the facts supporting her finding.

18The defence submits that the trial judge erred in law in considering the statement, which had not been admitted or proven to be voluntary, in assessing Mr. Rodriguez Garcia’s level of impairment. [1] The defence further submits that a new trial is required because it is not possible to determine how much weight the trial judge put on this statement when assessing Mr. Rodriguez Garcia’s level of impairment.

19The Crown submits that the statement was relevant, and properly admitted, to support PC Perelli’s grounds for believing that Mr. Rodriguez Garcia was impaired. However, the Crown concedes that because it had not demonstrated that Mr. Rodriguez Garcia made the statement voluntary, the trial judge erred in relying on it for any other purpose. The Crown maintains, however, that the statement was not material to the trial judge’s finding that Mr. Rodriguez Garcia’s level of impairment was pronounced and that there was ample evidence to support her finding. The Crown further requests that the court apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.

20I agree that because Mr. Rodriguez Garcia’s response was not voluntary, the trial judge erred in law in considering the statement when assessing Mr. Rodriguez Garcia’s degree of impairment. The question is whether, under the circumstances, the curative proviso ought to be applied. Under s. 686(1)(b)(iii), the proviso can only be applied where there is no “reasonable possibility that the verdict would have been different had the error… not been made.”: R. v. Bevan, [1993] 2 S.C.R. 599 at p. 617. The use of the curative proviso is appropriate where: (i) the error is harmless or trivial; or (ii) the evidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict.

21In this case, I find that the error is not trivial. Mr. Rodriguez Garcia had not been given his rights to counsel when PC Perelli asked how much he had to drink. The question elicited a potentially incriminatory response. In fact, the trial judge used the response as evidence of Mr. Rodriguez Garcia’s level of impairment, even though the Crown had not established that the statement was voluntary. In the circumstances, it was not appropriate to rely on the statement as supporting a key element of the Crown’s case, that is, Mr. Rodriguez Garcia’s level of impairment. Moreover, Mr. Rodriguez Garcia had been awoken from a deep sleep in his vehicle by firefighters and was initially confused about what was going on. Mr. Rodriguez Garcia’s first language is not English, as evidenced by the fact that he required the assistance of a Spanish interpreter when he spoke to duty counsel and at trial.

22However, despite my finding that the error is not minor, in my view, the evidence is so overwhelming that the trier of fact would inevitably convict. The trial judge’s reasons for finding that Mr. Rodriguez Garcia’s level of impairment was “pronounced” have been detailed at paragraph 15 above. Contrary to the defence’s position, it is not necessary to determine to what extent the trial judge relied on the involuntary statement to make her finding of pronounced impairment. In my view, based on the totality of the evidence before the trial judge, even without the statement, there was ample evidence to support a finding that Mr. Rodriguez Garcia’s level of impairment was pronounced. In addition, as further detailed below, the trial judge’s finding that there was a realistic risk of danger was supported by the evidence. As a result, it is appropriate to apply the curative proviso because the evidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict.

Did the Trial Judge Materially Misapprehend the Evidence?

23The defence submits that the trial judge erred in law by materially misapprehending the evidence in two areas: (i) Mr. Rodriguez Garcia’s statement that “he wasn’t thinking” which the trial judge quoted in the context of his bringing a can of beer with him to the car; and (ii) Mr. Wells’ testimony about whether Mr. Rodriguez Garcia understood that they were firefighters and how long it took him to understand the situation.

24A misapprehension of evidence is a failure to consider evidence relevant to a material issue, a mistake concerning the substance of the evidence, or a failure to give proper effect to the evidence. In order to warrant appellate intervention, the misapprehension must be material rather than peripheral to the reasoning of the trial judge. In addition, it must play an essential part in the reasoning process resulting in the conviction. A mere misstatement or inaccuracy in the trial judge’s treatment of the evidence does not constitute reversible error: R. v. Lohrer, [2004] 3 S.C.R. 732, at paras. 1-2.

25In R. v. Orwin, 2017 ONCA 841, at para. 45, the Court of Appeal stated as follows:

It is elementary that not every misapprehension of evidence will result in a miscarriage of justice and thus require a new trial. The test on appellate review of claims of misapprehension of evidence is stringent. The misapprehension must relate to material parts of the evidence. The error must play an essential part in the reasoning process of the trial judge resulting in the conviction. Said in another way, an error in the assessment of evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground.

Citing R. v. Morrissey (1995), 22 O.R. (3d) 514, Lohrer, and R. v. Sinclair, [2011] 3 S.C.R. 3.

26An appellate court considering misapprehension of evidence as a ground of appeal should not “dissect, parse, or microscopically examine the reasons of a trial judge”: Abella J. in R. v. C.L.Y., [2008] 1 S.C.R. 5, at para. 11 (adopted by LeBel J. in the context of misapprehension of evidence in Sinclair at para. 54).

27As summarized by Copeland J. in R. v. Marello, 2020 ONSC 412, at para. 17, the reviewing court engages in the following two-step analysis: (i) did the trial judge misapprehend the evidence on a matter of substance; and (ii) did the misapprehension play an essential or central part in the reasoning process of the trial judge leading to conviction.

28In her reasons, the trial judge mistakenly quoted Mr. Rodriguez Garcia’s statement “I wasn’t thinking” as relating to when he took the can of beer out to the car, once when summarizing Mr. Rodriguez Garcia’s testimony and again in the context of her finding regarding his level of impairment. In fact, Mr. Rodriguez Garcia made the statement “It’s just my habit and I wasn’t thinking” when he was asked on cross-examination why he sat in the driver’s seat as opposed to the passenger seat, if his purpose for going to the car was to listen to music.

29In my view, the misapprehension was not material. While the trial judge mentioned the statement in the context of her finding that Mr. Rodriguez Garcia’s level of intoxication was pronounced, she did not rely solely on the statement to make her finding. Whether Mr. Rodriguez Garcia said that he was not thinking in relation to bringing a can of beer to the car or in sitting in the driver’s seat was of little import. In the same sentence, the trial judge noted that Mr. Rodriguez Garcia could not remember whether he continued to drink from it once outside. As noted above, there was ample evidence to support the trial judge’s finding that Mr. Rodriguez Garcia’s level of impairment was pronounced. I find that the trial judge did not misapprehend the evidence on a matter of substance.

30The defence further submits that the trial judge misapprehended the evidence of Mr. Wells in finding that Mr. Rodriguez Garcia only became more aware of the situation and only realized that they were from the fire department a couple of minutes after he had gotten out of his car and sat down on the curb. The defence relies on the following paragraph from the trial judge’s reasons to support its position:

Mr. Wells told the police that Mr. Rodriguez Garcia “seemed to have been drinking.” According to Mr. Wells, once he was out of the car, Mr. Rodriguez Garcia either “needed to sit down” on the curb, or the fire personnel sat him down there. Then, “after a couple of minutes, he seemed to understand we were from the fire department and there to help him. He seemed to become more aware of the situation.”

31Mr. Wells testified that it took Mr. Rodriguez Garcia a couple of minutes after he awoke to understand the situation, as opposed to a couple of minutes after he sat on the curb. The defence takes the position that the misapprehension is material because the trial judge relied on this evidence, that it took Mr. Rodriguez Garcia a longer period of time to understand what was going on, to support her finding regarding his level of impairment. While the trial judge’s reference to “after a couple of minutes” is incorrect, the distinction as to whether Mr. Rodriguez Garcia realized what was going on while he was in the car or after he exited is not material to the trial judge’s findings as to Mr. Rodriguez Garcia’s state. Mr. Wells testified that after they woke Mr. Rodriguez Garcia, they got him out of the vehicle and he went to sit on the curb. The police arrived two minutes later. As a result, the time discrepancy is of little significance. The trial judge’s misstatement as to when the “couple of minutes” passed was not a material misapprehension of the evidence.

32The defence also relies on Mr. Wells’ testimony that “you could say he may not have known where he was, who we were, why we were there” to argue that the trial judge misapprehended the evidence in finding that Mr. Rodriguez Garcia was “confused” and “did not understand what was going on.”

33The full context for that statement is evident from the following excerpt from Mr. Wells’ testimony on cross-examination:

Q. Would you agree that when you or your colleague were asking him questions, his answers were responsive in the sense that they made sense?

A. I would say that he wasn’t completely aware of what was – what the situation that he was involved in. He didn’t really understand what was going on at that moment.

Q. When you say, “he didn’t understand what was going on,” what do you mean, like he didn’t know where he was or what do you mean exactly?

A. Yeah, you could say he may not have known where he was, who we were, why we were there. I would say confusing is the word for it.

Q. And would it be fair to say that that was the initial – your feeling of – or your opinion on his orientation immediately after he woke up, but after he had been awake for a period of time, he became more oriented?

A. I mean, he was more oriented than the moment he woke up. When he first woke up, he didn’t seem like he really understood what was going on. After a couple of minutes, he started to understand, (indiscernible) the fire department, we were just there to help him. And he seemed to get more aware of the situation.

34Mr. Wells’ statement that Mr. Rodriguez Garcia “may not have known where he was…” was in response to defence counsel’s follow-up question about what Mr. Wells meant when he testified that Mr. Rodriguez Garcia did not understand what was going on. Taken in context, Mr. Wells’ testimony was consistent that he believed Mr. Rodriguez Garcia to be intoxicated and that he was disoriented when they first woke him. The uncontroverted evidence was that Mr. Rodriguez Garcia had to be woken by one of the firefighters rubbing his sternum. In her reasons, the trial judge summarized Mr. Wells’ testimony in detail. Despite vigorous cross-examination, the trial judge accepted Mr. Wells’ evidence of his observations of Mr. Rodriguez Garcia and his level of impairment, which included the time it took to awaken him, his state of confusion, his slurred speech and his unsteadiness.

35In my view, the misapprehensions upon which the defence relies are mere misstatements or inaccuracies in the trial judge’s treatment of the evidence, as opposed to misapprehensions of material parts of the evidence. The defence’s submissions require this court to dissect and parse the trial judge’s reasons. I am not satisfied that the trial judge materially misapprehended the evidence or that any misapprehension related to a matter of substance.

Was the Verdict Reasonable?

The Applicable Principles

36A reasonable verdict is one that a properly instructed judge or jury could reasonably have rendered: R. v. Binaris, [2000] 1 S.C.R. 381, at paras. 36-37. In rare cases, a verdict can also be found unreasonable where the trial judge made a finding of fact or drew an inference essential to the verdict that is: (i) plainly contradicted by the evidence relied upon by the judge for that inference or finding, or (ii) shown to be incompatible with evidence that has not been contradicted or rejected: Sinclair, at paras. 4, 16, 19-22, 44-45.

37An appellate court must read the reasons as a whole and should not dissect, parse, or microscopically examine the reasons of a trial judge. A difference of opinion is insufficient to overturn a conviction, especially where the conviction is supported by a well-reasoned decision: R. v. C.R., 2010 ONCA 176, 260 O.A.C. 52, at para. 31.

38The question of whether a verdict is reasonable is one of law, whereas the credibility of a witness is a question of fact: R. v. R.P., [2012] 1 S.C.R. 746, at para. 10. A finding of impairment or the existence of a realistic risk of danger is a finding of fact: R. v. Boudreault, [2012] 3 S.C.R. 157, at para. 50; R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), at p. 2, aff’d R. v. Stellato, [1994] 2 S.C.R. 478. A reviewing court must afford due deference to factual findings made by the trial judge, who actually heard the evidence. They are reviewable on a standard of palpable and overriding error: R. v. Clark, [2005] 1 S.C.R. 6, at para. 9.

39In Boudreault, the Supreme Court of Canada clarified that a finding that a defendant is impaired and found in the driver’s seat of a motor vehicle does not necessarily result in an automatic conviction. However, an impaired person 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: Boudreault, at paras. 30-31, 41. A realistic risk of danger may arise in at least three ways: first, an impaired person who does not intend to drive may later, while still impaired, change his mind and proceed to do so; second, an impaired 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: Boudreault, at para. 42. The existence of a realistic risk is a finding of fact: Boudreault, at para. 50.

Application of the Principles

40The defence takes the position that the verdict was unreasonable because any risk of danger was purely theoretical. The defence submits that the trial judge’s conclusion that there was a realistic risk of danger was purely speculative because of the evidence that Mr. Rodriguez Garcia was close to his home and had no intention of going anywhere and because it would have required a series of intentional steps to put the vehicle in motion.

41The defence further submits that the trial judge erred in relying on pre-Boudreault case law, including R. v. Switzer, [2003] O.J. No. 5360 (S.C.), which the trial judge found had the “most analogous factual situation[.]” In that case, the judge found a realistic risk of danger that the vehicle be set in motion because the defendant was in the driver’s seat of the vehicle, with his feet in the area of the pedals, consuming alcohol with the key in the ignition and the radio on, but without the engine running.

42In R. v. Balogun-Jubril, 2014 ONSC 5308, at para. 40, Campbell J. of this court found that Boudreault did not change the law in Ontario. Moreover, the trial judge did not simply follow Switzer, but considered the evidentiary record before her and found a realistic risk that Mr. Rodriguez Garcia could change his intention and drive away, put the vehicle in motion unintentionally and/or create a situation with it causing immediate public danger.

43I disagree with the defence’s submission that there was an absence of evidence to support the trial judge’s finding of a realistic risk of danger. The trial judge recognized that Mr. Rodriguez Garcia was properly parked, close to home and had gone to his car to listen to music. While Mr. Rodriguez Garcia had a bag with his personal items with him, the trial judge accepted his evidence that he did not intend to go anywhere. However, the trial judge rejected the defence’s submission that it would require a complex succession of intentional steps to put the vehicle in motion. Because the key was in the ignition and engaged to a certain point, and the vehicle was on a public roadway, she found that the vehicle could have been put into motion with a minor degree of action. She also noted Mr. Rodriguez Garcia’s position in the driver seat and that his feet were near the pedals. The trial judge’s finding of a realistic risk of danger reveals no palpable or overriding error. As noted in Boudreault, while the risk of danger must be realistic, it need not be probable, serious or substantial: at para. 34.

44Because the finding of a realistic risk of danger depends upon the evidence before the trial judge, the defence’s reliance on R. v. Hannemann, [2001] O.T.C. 338 (S.C.), R. v. Penno, [1990] 2 S.C.R. 865, R. v. Espinola, 2019 ONCJ 994 do not assist it. In Hannemann, for example, there was affirmative evidence that the parking break was on, reducing the risk of unintentionally or accidentally putting the vehicle into motion. In Espinola, the trial judge was satisfied with the defendant’s evidence that he went to the car to smoke and, had he not been intercepted by police, would have gone back into the house after finishing his cigarette.

45The defence has failed to demonstrate that the trial judge made a finding of fact or drew an inference essential to the verdict that is plainly contradicted by the evidence relied upon by the judge for that inference or finding or incompatible with evidence that has not been contradicted or rejected. Given that the threshold for establishing a realistic risk of danger is low, it was open to the trial judge to find on the record before her that the cumulative effect of the evidence, gave rise to realistic risk of danger, based on Mr. Rodriguez Garcia’s level of impairment and the other evidence relied on by the trial judge, including that the vehicle was on a residential street with some vehicular and pedestrian traffic.

46I agree with the defence that the trial judge did not explain how there was a realistic risk of danger under the third category, i.e., that through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property. There was nothing in the record before the trial judge to support a finding that the position of the vehicle, which was parked on the side of the road, as it usually was, could endanger persons or property. However, her conclusion of a realistic risk of danger on the other two grounds is well-supported by the evidence.

Conclusion

47Based on the foregoing analysis, the verdict is amply supported by the totality of the evidence. The trial judge did not materially misapprehend the evidence. While the trial judge erred in considering Mr. Rodriguez Garcia’s involuntary statement, I find it appropriate to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.

48Accordingly, the appeal is dismissed.

Nishikawa J. Released: March 16, 2022

Footnotes

1The defence admitted the voluntariness of other statements, such as Mr. Rodriguez Garcia’s statement that he would “just go home.”