Court File and Parties

Court File No.: CR-22-00000027-00AP Date: 2024-03-21 Ontario Superior Court of Justice

Between: His Majesty The King, Appellant And: Gerassimos Maniatis, Respondent

Counsel: Patrick Quilty, for the Crown Adam Little, for the Respondent

Heard: June 22, 2023

On Appeal From: The Judgment of the Honourable Regional Senior Justice Gibson dated August 18, 2022

Reasons for Decision

M.L. Edwards, R.S.J.

Overview

[1] This is a Crown appeal where the central issue relates to the presumption set forth in s. 320.35 of the Criminal Code (the “Code”). The Code creates a presumption that a person who is in the driver’s seat of motor vehicle is operating it. The presumption can only be rebutted if the accused proves on the balance of probabilities that they did not enter the driver’s seat for the purpose of setting the vehicle in motion. The question this court is called upon to address is whether the presumption can be rebutted by evidence that the vehicle is inoperable and thus no risk to public safety.

The Facts

[2] Mr. Maniatis was involved in a single motor vehicle accident which occurred in the early morning hours of December 15, 2019 near the corner of Wellesley and Sherbourne Street in the City of Toronto. At the time of the motor vehicle accident Mr. Maniatis was an off-duty Metropolitan Toronto Police officer.

[3] At the time of trial in June 2022, there was no witness who could establish that Mr. Maniatis was the driver of the vehicle when the accident occurred. The sound of an accident had been overheard by a witness who was walking home at the time, but the actual accident itself was not observed by this or any other witness and as such, no one could testify that it was Mr. Maniatis who was driving the vehicle.

[4] The witness who had overheard the sound of the collision came upon the scene within a matter of minutes and observed Mr. Maniatis behind the steering wheel. When the witness approached the vehicle he noticed that the vehicle was not running; it had its four-way flashing lights engaged; and Mr. Maniatis was in the driver’s seat. A female was located outside the vehicle.

[5] Subsequent to the collision, Mr. Maniatis was arrested for the impaired operation of a motor vehicle. He provided two samples of his breath that established he was over the legal limit.

[6] At the trial Mr. Maniatis did not call any evidence nor did he testify. Rather, Mr. Maniatis sought to rebut the presumption by calling evidence in the form of an expert report that was entered into evidence on consent. The report established the vehicle involved in the accident was inoperable due to the substantial damage that it had suffered.

The Reasons of the Trial Judge

[7] In acquitting Mr. Maniatis the trial judge relied on the expert evidence which established that the vehicle was completely inoperable and could not be moved using its own power. The trial judge therefore concluded that the vehicle was inoperable and immobile. The trial judge went on to conclude that because the vehicle was located under a streetlight largely off the travelled portion of the road, it presented no real hazard to drivers or pedestrians and as such “the accused occupying the driver’s seat of this vehicle, no matter what his state of intoxication, posed no potential danger to the public.”

[8] From a factual perspective the trial judge found that the Crown had failed to prove beyond a reasonable doubt that it was Mr. Maniatis who was operating the motor vehicle at the time of the accident. As such the focus of the trial judge’s Reasons was on the legal consequences of Mr. Maniatis having been found to occupy the driver’s seat of the vehicle which was inoperable and because of its location could not possibly create a realistic risk of danger.

[9] The trial judge determined that Mr. Maniatis could not be considered to have been in care and control of the vehicle because the evidence established that the vehicle was inoperable when he occupied the driver’s seat. In his reasons, the trial judge determined:

In a very real sense, it had ceased to be a motor vehicle and therefore it posed no risk or hazard to the safety of the public.

[10] The trial judge referred to a decision of Schreck J. in R. v. Coomansingh, 2014 ONCJ 560, where Schrek J. considered a line of cases that discussed the law around the refutability of the statutory presumption in care and control cases, where inoperability was an issue. Amongst the cases cited by Schreck J. was a decision of Durno J. in R. v. Amyotte, 2009 ONCJ 600.

[11] Having considered the caselaw referenced by Schreck J. in Coomansingh, the trial judge referenced a material distinction between an immovable and an inoperable vehicle and ultimately came to the following conclusions:

[44] In this case the vehicle in question was both inoperable and immobile. It was located under a streetlight, largely off the traveled portion of the road and presented no real hazard to drivers or pedestrians. In my view, the circumstances of this case, the accused occupying the driver’s seat of this vehicle, no matter what his state of intoxication, posed no potential danger to the public that he could, even by drunken inadvertence, increase the risk the vehicle posed to the public. Indeed, based on the engineering report entered on consent, the vehicle could no longer be considered a conveyance and would need extensive repairs to be considered one again.

[45] In conclusion, for all the foregoing reasons, I have a reasonable doubt about whether the accused was the driver of the vehicle before it became inoperable. I also have a reasonable doubt about whether the accused was in care and control of a conveyance after it became inoperable and immobilized. Accordingly, I find the accused not guilty on both counts.

Standard of Review

[12] Where the issue before the court is one of a question of law the applicable standard of review is correctness. The application of the legal standard to the facts of a case is a question of law: see Housen v. Nikolaisen, 2002 SCC 33 at para. 36.

[13] What was before the trial judge was the statutory interpretation of s. 320.35 of the Criminal Code and it would be an error of law not to apply an applicable statutory presumption when the statutory prerequisites have been satisfied: see R. v. Labadie, 2011 ONCA 227 at para. 66. The applicable standard of review is one of correctness.

Position of the Crown

[14] The Crown argues that this case ultimately boils down to a simple issue of statutory interpretation because the trial judge made no finding that Mr. Maniatis was the person behind the wheel who drove into the pole. The statutory presumption applies.

[15] The Crown argues that if an accused it found in the driver’s seat of a motor vehicle then they are presumed to be in control unless that accused can establish that he or she did not occupy the vehicle for the purposes of setting it in motion. A motor vehicle is defined to include both a vehicle which is operable as well as one which is inoperable or immovable: see R. v. Saunders, [1967] SCR 284.

[16] The Crown argues that if Parliament had intended for an accused to be able to rebut the presumption of operation by establishing that the vehicle was inoperable, Parliament could easily have included such a provision in the Code and it did not. As such the Crown argues that the trial judge had no jurisdiction to read an exception into the Code that Parliament had seen fit not to include.

[17] The Crown argues that one of the essential elements of the offence of impaired operation is the existence of a realistic risk of danger and that either the setting of the vehicle in motion or the intention to set the vehicle in motion will suffice to establish that realistic risk of danger. The Crown argues that the presumption of operation presumes the existence of a realistic risk of danger unless the accused establishes that they did not intend to set the vehicle in motion. Fundamentally where the presumption applies and it has not been rebutted, the position of the Crown is that the Crown does not have to prove the existence of a realistic risk of danger and as such, on the particular facts of this case, the fact that the vehicle was not a risk because it was inoperable or immovable, does not provide Mr. Maniatis with a defence where the presumption was in play.

[18] The Crown argues that the two cases relied upon by the defence do not support the position of Mr. Maniatis, that an inoperable vehicle can rebut the presumption of operation. The Crown argues that this court should not follow the decision of Durno J. in Amyotte nor the decision of Schreck J. in R. v. Brienza, 2019 ONSC 5402. The Crown argues that there are an overwhelming number of cases from this court which accord with the Crown’s interpretation and cites R. v. Smith, R. v. Maslek, and R. v. Blair, 2014 ONSC 5327.

Position of Mr. Maniatis

[19] The defence argues that s. 320.35 of the Criminal Code does not create a presumption that an individual occupying the driver’s seat when the police arrive at the scene of an accident is the same individual who was operating the vehicle at some earlier time i.e. when the vehicle was actually involved in a collision. From a factual perspective the trial judge was not satisfied that the evidence established that Mr. Maniatis was the driver at the time when the vehicle collided with the lamp post. Counsel for Mr. Maniatis argues that the fact he was seen behind the driver’s seat shortly after the accident does not presumptively mean he was the person who was driving at the time of the accident.

[20] The Defence argues that what the Crown was successful in proving at trial was that Mr. Maniatis was seen behind the vehicle shortly after the accident. The Crown had not successfully proven beyond a reasonable doubt that Mr. Maniatis was the driver when the vehicle collided with the lamp post. The Crown therefore was only successful in establishing that Mr. Maniatis was the occupier of the driver’s seat of a motor vehicle which was inoperable and therefore did not create any realistic risk of danger.

[21] Counsel for Mr. Maniatis argues that the jurisprudence relied upon by the Crown establishes only that the Crown need not prove a realistic risk of danger to secure a conviction when the presumption applies. Mr. Little argues that the real issue on this appeal is whether the defence can rebut the presumption by proving the absence of a realistic risk of danger (given that the vehicle was inoperable).

[22] It is argued on behalf of the Mr. Maniatis that where the evidence establishes that an individual who is in occupation of a driver’s seat poses no risk to the public, as was the case on the evidence at trial, because the vehicle is both inoperable and not in a place that creates inherent risk, that to convict an accused in this situation does nothing to advance the purposes articulated by Parliament. In that regard Mr. Little points to the example raised by the trial judge where a conviction could result where an individual was seen drinking an alcoholic beverage in the driver’s seat in a rusted-out old tractor with no windows or tires. On these facts, despite circumstances clearly establishing no realistic or any speculative risk of danger, the person in the driver’s seat of the tractor could, nevertheless, be convicted unless they could establish they did not intend to put the tractor in motion. Mr. Little argues such an outcome would be both extremely unreasonable as well as lead to a ridiculous consequences.

[23] Counsel for Mr. Maniatis argues that the trial judge in this case correctly followed the decisions of Durno J. and Schreck J. in Amyotte and Brienza, and came to the correct conclusion that an inoperable vehicle rebuts the presumption.

Analysis

[24] This case presents some unique facts that ultimately boil down to the question of whether someone found in the driver’s seat of a vehicle that it is agreed is functionally unable to operate as a vehicle can be found guilty of impaired care and control as a result of the application of the presumption set forth in the Code. Section 320.35 provides:

In proceedings in respect of an offence under s. 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat of position for the purpose of setting the conveyance in motion.

[25] The trial judge made a finding of fact that he had a reasonable doubt as to whether or not the Crown had proven that Mr. Maniatis had driven the vehicle to the location where the accident occurred. Evidence did however establish that Mr. Maniatis was found in the driver’s seat of the vehicle but at a point after the accident had occurred.

[26] The word conveyance is defined in s. 320.11 of the Code as having a meaning which includes “a motor vehicle”. The word operate means, as defined in s. 320.1 “in respect of a motor vehicle, to drive it or to have care or control of it”.

[27] The trial judge at paras. 40 and 41 framed the issue before him as follows:

[40] Having concluded I have a reasonable doubt about whether the accused drove his vehicle to the location it was found, I must consider whether his presence in its driver’s seat after the accident, and the presumption that flows from that fact, establishes beyond a reasonable doubt he was in care and control of the vehicle.

[41] On this record I’m not satisfied Mr. Maniatis can be considered to have been in care and control of his vehicle, once it was established it was inoperable, when he occupied the driver’s seat.

[28] In coming to the aforesaid conclusion, the trial judge relied on a decision of Schreck J. in R. v. Coomansingh, 2014 ONCJ 560 which included a review of a summary conviction appeal decision by Durno J. in R. v. Amyotte, 2009 ONCJ 600.

[29] Having reviewed the jurisprudence that was reviewed by Schreck J. in Coomansingh the trial judge determined that the principled way to understand the material distinction between an immovable and inoperable vehicle was to examine the risk posed by the object. In assessing that risk the trial judge came to the following conclusion:

[44] In this case the vehicle in question was both inoperable and immobile. It was located under street light, largely off the travelled portion of the road and presented no real hazard to drivers or pedestrians. In my view, in the circumstances of this case, the accused occupying the driver’s seat of this vehicle, no matter what his state of intoxication, posed no potential danger to the public that he could, even by drunken inadvertence, increased the risk the vehicle posed to the public. Indeed based on the engineering report entered on consent, the vehicle could no longer be considered a conveyance and would need extensive repairs to be considered once again.

[30] It is worth pausing as it relates to the trial judge’s comments as it relates to the motor vehicle given its state of repair no longer being a conveyance, to refer back to the definition of conveyance set forth in the Criminal Code as meaning “a motor vehicle”. There is nothing in the definition of conveyance suggesting that a motor vehicle which is inoperable ceases to fall within the definition of conveyance.

[31] The statutory definition of motor vehicle is set forth in s. 2 of the Criminal Code and means “a vehicle that is drawn, propelled or driven by any means other than muscular power does not include railway equipment”.

[32] By definition a motor vehicle to fall within the definition set forth in s. 2, it must be one that is “propelled or driven by any means”.

[33] The trial judge ultimately determined that because he had a reasonable doubt about whether Mr. Maniatis was in care and control of the vehicle at the time of the accident, he equally had a reasonable doubt about whether Mr. Maniatis was in care and control of a conveyance after it had become inoperable and immobilized.

[34] The ultimate question that arises on this appeal is whether or not the trial judge was correct in law in following the line of authority set forth by Schreck J. in Coomansingh.

[35] It is worth observing that both with respect to the definition of conveyance and motor vehicle as set forth in the Criminal Code, there is a nothing to suggest that Parliament restricted the definition of a motor vehicle to that of a conveyance/motor vehicle that was in an operable condition. It is precisely this issue that caused the trial judge to rule as he did given his finding that Mr. Maniatis occupied the driver’s seat of the vehicle that was inoperable and could pose no risk of danger to the public.

[36] The Crown in this case argues that the presumption set forth in s. 320.35 of the Criminal Code creates a presumption that Mr. Maniatis was in care or control of the vehicle and that the presumption can only be rebutted by Mr. Maniatis on a balance of probabilities if he did not occupy the driver’s seat for the purposes of setting the vehicle in motion. The defence argues that given the expert evidence that the vehicle was inoperable, such evidence rebuts the presumption and relies on Supreme Court decision in R. v. Amyotte, 2009 ONCJ 600.

[37] The trial judge in this case concluded that the presumption could not apply given the evidence that the vehicle was inoperable. The Crown, however, does not have to establish an intention to drive the vehicle once it was established that Mr. Maniatis was found in the driver’s seat of vehicle. The contrary in fact applies, such that it was incumbent upon Mr. Maniatis to demonstrate that his occupancy began without the purpose of setting the vehicle in motion: see R. v. Hatfield, 1997 33 O.R. (3d) 350.

[38] In that regard the conclusions reached by Somji J. in R. v. Thomas, 2020 ONSC 5375 at para. 5 are equally applicable to the issue before this court:

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.

[39] The distinction between the decisions in Hatfield and Boudreault were canvassed at length by Trotter J. (as he then was) in R. v. Blair, 2014 ONSC 5327. In that regard at para. 11 Trotter J. significantly notes:

Boudreault was squarely focused on s. 253(1) of the Criminal Code. While s. 258(1)(a) was referred to in Fish J.’s reasons, the operation of the presumption was not in issue in that case because it had been rebutted by the accused.

[40] In his reasons Trotter J. goes on to state at para. 13:

However, this passage must be considered in context. The majority in Boudreault was merely describing the operation of the presumption in the light of its holding in Whyte. There is nothing in the language of Boudreault that suggests that the Court modified or altered the operation of the presumption by requiring the Crown to go further and prove a realistic risk of danger when the presumption stands unrebutted. When the presumption is not rebutted, all elements of “care or control” (both the mens rea and actus reus components, as described in Smits, paras. 49 to 51) are deemed to exist.

[41] Ultimately Trotter J. came to conclusion that the accused, Mr. Blair, had failed to rebut the presumption. Factually, Mr. Blair had made at least eight attempts to start the van and as such, did not rebut the presumption and all aspects of s. 253(1) were deemed to exist, as such, as Trotter J. noted in para. 15 the trial judge erred in finding that, even though the presumption stood unrebutted, the Crown was required to prove a realistic risk of danger. That risk, as noted by Trotter J., was “embedded in the presumption”.

[42] Counsel for Mr. Maniatis is entirely correct that there are decisions of this court that lend support to the position advanced on behalf of Mr. Maniatis. In that regard counsel refers to the decision of Schreck J. in R. Brienza, 2019 ONSC 5402 where a summary conviction appeal was allowed because the trial judge had not properly explained the presumption of care and control given that there was some evidence that the vehicle in question was inoperable and that an inoperable vehicle might be capable of rebutting the presumption in some cases.

[43] In coming to the conclusion that he did in Brienza, Schreck J. a relied in part on a decision of Durno J. in Amyotte for the proposition that an inoperable vehicle can rebut the presumption. I agree with the submissions of Crown counsel that reliance on Amyotte could be argued to be misplaced. At para. 99 of his reasons, Durno J. confirms that the presumption applied to the accused because he was found in his driver’s seat. Durno J. then went on to state:

Unless an inoperable vehicle defeats the presumption or in itself precludes a finding of care or control, the onus was on the accused to establish that he probably did not occupy the seat for the purpose of setting the vehicle in motion.

[44] It is argued that the aforesaid extract from the decision of Durno J. stands for the proposition that an inoperable vehicle will rebut the presumption. In that regard I agree with the argument of Crown counsel that this argument takes the sentence out of context. I agree with Crown counsel that Durno J. did not state that an inoperable vehicle could rebut the presumption. What he did say was that the only way for an accused to rebut the presumption was to establish that he did not intend to set the vehicle in motion, unless it was somehow possible for the presumption to be rebutted by evidence of the inoperability of the motor vehicle.

[45] At para. 102 of his reasons, Durno J. goes on to determine that an immovable vehicle could not rebut the presumption which is precisely what Mr. Maniatis in this case argues.

[46] The argument advanced on behalf of Mr. Maniatis has some appeal to it. The trial judge made a finding of fact that he had a reasonable doubt as to whether it was Mr. Maniatis who drove the vehicle to the scene of the accident. The only evidence of Mr. Maniatis’ involvement in the accident is ex post facto when he is seen in the driver’s seat. He is seen in the driver’s seat of a vehicle, that on all of the evidence, was inoperable and immoveable and therefore presented no risk of danger to the general public. In essence, the vehicle in which Mr. Maniatis was found was no different than the mythical inoperable tractor found in the middle of a farmer’s field. To suggest that someone sitting in the driver’s seat of the tractor could be found (presuming he or she was intoxicated) in the care or control of the tractor and thus presumptively guilty of an offence, many might argue would make no sense.

[47] The fact remains however, that there is nothing in the language of s. 320.35 of the Criminal Code which suggests that the presumption can be rebutted simply by establishing that the vehicle was inoperable and posed no risk to the general public. Once Mr. Maniatis was in the seat of his vehicle the onus shifted to him to establish that he had no intention to drive. The evidence that the vehicle was inoperable can not support that conclusion.

[48] As the Court of Appeal noted at para 66 of Labadie “a failure to apply a statutory presumption” is an error of law. In this case for the reasons set forth above I have concluded that the trial judge failed to apply the presumption set forth in S 320.35. In reaching this conclusion it is important to note that there is conflicting caselaw on the issue of whether the presumption can be rebutted by evidence that the motor vehicle was inoperable and thus posed no risk of danger. The trial judge followed one line of authority. In my view the weight of the jurisprudence supports the conclusion I have reached.

[49] The conflict in the caselaw is such that Parliament could by way of an amendment to the definition of motor vehicle make clear that a motor vehicle does not include an inoperable vehicle. Alternatively the conflict in the caselaw might be resolved by the Court of Appeal.

[50] The Crown appeal is granted. This matter is remitted to the Ontario Court of Justice for a new trial.

M.L. Edwards, R.S.J. Released: March 21, 2024