Ontario Superior Court of Justice

Summary Conviction Appeal Court

Court File No.: SCA(P) 359/24
Date: 2025-06-10

Between

His Majesty the King
Respondent
Counsel: Henry Limheng

and

Loveneet Kaur
Appellant
Counsel: Myles Anevich

Heard: April 7, 2025

Reasons for Judgment

[On appeal from the conviction of Justice Witkin, dated June 27, 2024]

Fowler Byrne

I. Introduction

1Following a trial before Witkin J. of the Ontario Court of Justice, the Appellant was found guilty of Impaired Operation, contrary to s. 320.14(1)(a) of the Criminal Code, RSC 1985, c C-46, and Impaired Operation with Blood-alcohol Concentration 80+, contrary to s. 320.14(1)(b) of the Criminal Code.

2The Appellant appeals against her conviction, alleging that the verdict was unreasonable and could not be supported by the evidence. In particular, the Appellant argues that the Crown failed to establish a “realistic risk” that the Appellant would operate her motor vehicle by improperly relying on the blood alcohol content readings and the Appellant’s presence in the driver’s seat. It is argued that the trial judge improperly based her findings on a hypothetical scenario.

3For the reasons that follow, this appeal is dismissed.

II. Summary of Facts

4In her oral reasons for judgment, the trial judge found that a witness saw Ms. Kaur’s vehicle at approximately 7:30 a.m. The vehicle was running, and the lights were on. The witness was not able to see anyone in the car. About 15 to 20 minutes later, when walking past again, this same witness saw a woman seated in the driver’s seat, but the top part of her body was hanging out of the car. The car was still running. The woman in the car was passed out and unresponsive. The witness called 911 and police arrived. The police took Ms. Kaur out of the car. Ms. Kaur was not coherent.

5One officer observed that Ms. Kaur was unsteady on her feet, sleepy, had bloodshot eyes and was slow to answer questions. He also noticed an open package of cannabis in the compartment next to the driver’s seat.

6Once Ms. Kaur was transported to the police division, the breath technician noticed that Ms. Kaur smelled of alcohol, had watery eyes and mumbled her speech. He took two breath samples. The first sample was taken at 9:45 a.m. and read 153 mg of alcohol per 100 ml of blood. The second sample was taken at 10:08 a.m. and read 146 mg of alcohol per 100 ml of blood.

7Ms. Kaur’s evidence was that she arrived at a party the night before with her friend, who had driven their car. She had one shot of alcohol while there, which was her first time drinking alcohol. She and her friend left the party together, and her friend drove. Her friend had to work at the Toronto airport. Ms. Kaur states that she was vomiting due to the alcohol. As a result, her friend chose to leave her in the car, in a school parking lot, and took an Uber to work from there. The plan was that her friend would then take an Uber back to the school parking lot again after her shift and drive Ms. Kaur home. When she and her friend arrived in the parking lot, Ms. Kaur got into the back seat to sleep. She only got out to sit in the front in order to adjust the heat. She intended to return to the back seat to continue sleeping.

8After reviewing Ms. Kaur’s evidence, the trial judge rejected it.

9The trial judge found that if Ms. Kaur was sick as she claimed, it made no sense that she would be left in a parking lot for the day. The trial judge also did not accept Ms. Kaur’s evidence about the amount she drank. Ms. Kaur stated she only drank one shot of alcohol, which was her first ever. That was difficult to reconcile with the breathalyzer readings which were accepted. The trial judge stated: “This aspect of the defendant’s evidence strikes me as extremely implausible, and in my view is a factor that weighs against reliability of her as a witness.”

10The trial judge did not accept Ms. Kaur’s evidence that she was trying to get out of the driver’s seat when the witness approached the car. That was contrary to the evidence of the witness, whose testimony the trial judge accepted completely. The trial judge continued, “This is another feature that affects Ms. Kaur’s reliability as a witness. Therefore, I do not find Ms. Kaur’s evidence to be credible or reliable, and I reject it.”

11Following her assessment of the evidence, the trial judge found that the Crown had proven de facto care and control of the vehicle. Ms. Kaur had the means to drive. She acknowledges that she was drunk. She would not have been in a position to make rational decisions. Even if she did not intend to drive when she got into the driver’s seat, she could have changed her mind if later she thought she was sober enough. The trial judge also found no other credible evidence of an alternate transportation plan. Ms. Kaur spoke about her friend’s intention to pick her up, but her friend did not give evidence at trial.

12Accordingly, the trial judge found Ms. Kaur guilty of both offences.

III. The Law

13Where the issue before the court is a question of law, the applicable standard of review is correctness: Housen v. Nikolaisen, 2002 SCC 33, at para. 8.

14If the issue before the court is of the facts, the approach is different. A trial judge's findings of fact are afforded deference on appeal. Appellate courts are not to re-weigh the evidence and intervene because they would have made different findings: see Housen at para. 3; H.L. v. Canada (Attorney General), 2005 SCC 25, at para. 52. Appellate intervention is only justified where the trial judge's findings reflect "palpable and overriding error": Housen, at para. 10; see also R. v. Le, 2019 SCC 34, at para. 23. This same standard of review governs when it comes to credibility findings: see R. v. Gagnon, 2006 SCC 17, at para. 10.

Finally, it is important to remember that a trier of fact is entitled to accept all, some, or none of a witness' evidence: see R. v. D.D., 2000 SCC 43, at para. 34.

15The trial judge’s credibility findings are entitled to a high degree of deference because the trial judge saw and heard witness testimony. Deficiencies in the trial judge’s credibility analysis will “rarely” justify intervention on appeal: R. v. Dinardo, 2008 SCC 24, at para. 26. The focus of review is on whether the trial judge’s reasons explain to the accused “why the trial judge was left with no reasonable doubt”: Dinardo, at para. 26, citing Gagnon, at para. 21.

IV. Analysis

16Ms. Kaur argues that the only issue for trial was whether she intended to operate the vehicle and whether the Crown had established a realistic risk that she would. Ms. Kaur argues that the judge erred when she concluded that there was a realistic risk, because it was based on a hypothetical scenario.

17The Crown may prove care and control of a motor vehicle in two ways. First, pursuant to s. 320.35 of the Criminal Code, if a person is found to occupy a seat ordinarily occupied by a person who operates a vehicle, they are presumed to have been operating the vehicle unless they can establish that they did not occupy it for the purposes of setting the vehicle in motion. Secondly, they can establish de facto care and control, as set out in R. v. Boudreault, 2012 SCC 56.

Presumptive Care and Control: s. 320.35

18Under s. 320.35, if the accused is sitting in the driver’s seat, they are assumed to have care and control unless the accused can show they have no intention to set the vehicle in motion. There is no need to prove realistic risk of danger if that presumption was not rebutted. See R. v. Maniatis, 2023 ONSC 1682, at para. 47; R. v. Blair, 2014 ONSC 5327, at paras. 13-14.

19In this case, there is uncontroverted evidence that Ms. Kaur was sitting in the driver’s seat and the car was running. By operation of the section of the Code, she is assumed to have care and control. It was then Ms. Kaur’s burden to prove, on the balance of probabilities, that she did not sit in the driver’s seat with the intention of setting the vehicle in motion.

20The trial judge did an exhaustive review of the evidence, and in the end, rejected Ms. Kaur’s evidence, for the reasons detailed above. She was not satisfied that Ms. Kaur would not or could not drive. While the trial judge went on to explain that she also found a realistic risk of danger, it was not necessary given that “care and control” under s. 320.35 had been established. There was no error of law in this analysis.

De Facto Care and Control – R. v. Boudreault

21If the Crown were to rely on de facto care and control, they must show: (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, as opposed to a mere possibility, of danger to persons or property: see Boudreault, at para. 9. Whether there is a realistic risk of danger is a matter to be decided on the facts: see para. 11.

22To avoid conviction, the accused must adduce evidence that proves that the inherent risk of being in the vehicle while intoxicated was not a realistic risk in the particular circumstances of the case: Boudreault, at para. 13.

23Even if an accused satisfies the court that he or she had no intention to set the vehicle in motion, if they are found behind the wheel and have a present ability to set the vehicle in motion — without intending at that moment to do so — this may also present a realistic risk of danger. This is because the impaired person may change their mind and proceed to drive while still impaired. The impaired person may also set the vehicle in motion accidentally. Also, through negligence or bad judgment, a stationary or inoperable vehicle may otherwise endanger persons or property: Boudreault, at paras. 41-42.

24The existence or not of a realistic risk of danger is a finding of fact: Boudreault, at para. 50. One of the factors to consider is if the accused arranged for an “alternate plan” to ensure their safe transport home. When reviewing the alternate plan, the court should consider whether the alternate plan was concrete and reliable, and whether or not it was implemented: at paras. 51-53. The court can consider a myriad of factors to determine the viability of the alternative plan. See R. v. Szymanski, at para. 93, and R. v. Ross, 2007 ONCJ 59, at para. 14.

25In this case, not only did the trial judge satisfy care and control under s. 320.35, but she also established de facto care and control by assessing the realistic risk of the situation in accordance with Boudreault.

26In this analysis, Ms. Kaur argues that the trial judge failed to consider the necessary factors when determining if there was a viable alternative plan. She argues that her plan would only fail if her friend failed to show up later to bring her home. Her plan was practical, plausible and specific enough to dispel any concrete and tangible likelihood of driving. She also argues that the trial judge failed to consider that the car was in a safe place, she was not wearing a seatbelt, and she was not someone collapsing in a drunken stupor.

27I see no error in the trial judge’s analysis. She considered Ms. Kaur’s evidence regarding the alternate plan and all the other factors before her. As a trier of fact, the trial judge is entitled to use common sense when assessing the evidence and the credibility of a witness. The trial judge is entitled to assess whether a narrative is plausible or inherently improbable: R. v. Kiss, 2018 ONCA 184, at para. 31; R. v. Kruk, 2024 SCC 7, at para. 73. After reviewing all the factors, including those highlighted by Ms. Kaur, and including the location of the vehicle in relation to the friend’s workplace and Ms. Kaur’s home, and the likelihood of someone willingly incurring the cost of two Uber rides, the trial judge found the alternate plan implausible.

28Secondly, Ms. Kaur argues that the trial judge used the intoxilyzer reading to reject her evidence. She argues it is an error of law to use intoxilyzer readings to reject a witness’ credibility: R. v. Boucher, 2005 SCC 72, at para. 43.

29I disagree. It would be improper to use the intoxilyzer readings to test credibility when the accuracy of the intoxilyzer readings is at issue. That was the case in Boucher. This situation is different. The readings are not at issue in this case. No one disputes the results. The technician gave evidence on the results, and they were admitted as facts. The trial judge used this fact and questioned the reliability of Ms. Kaur’s evidence when she testified she had one shot of alcohol only. As she stated in her oral reasons:

…common sense alone as well as judicial experience compel a conclusion that someone who only consumed one drink would not have a blood-alcohol level nearly twice the legal limit several hours later. This aspect of the defendant’s evidence strikes me as extremely implausible, and in my view is a factor that weighs against reliability of her as a witness.

30Finally, Ms. Kaur also argued that the trial judge misapprehended the evidence in two ways. First, the trial judge found that it was improbable that Ms. Kaur’s friend would take an Uber to work and leave Ms. Kaur to sleep it off in the school parking lot, rather than drive Ms. Kaur to the airport to sleep it off while she worked. Secondly, Ms. Kaur argues that the trial judge misapprehended the alternate plan and still found that there was a realistic risk that she may drive at a later time, before she was sober.

31I disagree that there was any misapprehension of the evidence. When deciding if there was a misapprehension of evidence, I must take a functional approach. I should review the evidence to determine if the evidence was evaluated correctly and credibility findings were adequately made in the context of the evidence and the case as a whole. I do not need to finely parse the trial judge’s reasons to search for error: R. v. G.F., 2021 SCC 20, at para. 69.

32In her analysis, the trial judge considered Ms. Kaur’s allegation that she had a friend who was coming back to drive her. The friend was supposed to give evidence to confirm that, but the friend did not appear, despite the trial judge providing additional time to Ms. Kaur to allow her to appear. The trial judge also considered where Ms. Kaur was left, where the friend worked, and where their final destination was. She also considered Ms. Kaur’s evidence that she was vomiting before she was found in the parking lot. She considered how Ms. Kaur was found in the driver’s seat, the independent evidence of a witness and the evidence of the police of how they found her when they arrived. Viewed functionally, there is no obvious misapprehension of the evidence.

33In any event, even if Ms. Kaur is correct in that some of the evidence was misapprehended or misapplied, which I have not found, the errors do not rise to the level of palpable and overriding. As indicated, the trial judge’s findings are entitled to deference if no such error is found.

V. Conclusion

34Accordingly, for the foregoing reasons, the appeal is dismissed.

Fowler Byrne