R v Flight, 2012 ABQB 285

Court of Queen ’ s Bench of Alberta Citation: R v Flight, 2012 ABQB 285 Date: 20120501 Docket: 100708064S1 Registry: Calgary Between: Her Majesty the Queen Appellant - and - Lee Thomas Flight Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R. J. Hall _______________________________________________________

Summary Conviction Appeal of His Honour Judge Dunnigan Acquitted on the 15th day of August, 2011 Docket: 100708064S1

[1] The Respondent was observed by the arresting Constable. At 7:36 p.m. he was seen sitting in the driver’s seat with thedriver’s window open, apparently sleeping. The arresting Constable drove to the rear of the Respondent’s truck, activating his emergencylights while doing so. As the arresting Constable exited his vehicle he saw the Respondent open the driver’s side door and get out. TheConstable saw that the Respondent was stumbling, almost falling on his face. He observed the Respondent close the driver’s doorbehind him and begin walking in front of the truck, still stumbling.

Constable Horvath then approached, yelling at the Respondent to“come here”. The Respondent stopped and the two started talking. The Constable observed that the Respondent was exhibiting indicia ofimpairment, staggering, had a strong odour of alcohol coming from his breath, had blood shot eyes and was very slow talking. TheConstable noted an open beer in the car, 3/4's full and cold. The Constable found keys in the pocket of the Respondent and deliveredthem to the person at the residence who he took to be the Respondent’s wife.

The Constable never checked to see if the keys operated thevehicle. [2] The Respondent was charged with unlawfully operating a motor vehicle while his ability to do so was impaired by alcohol ora drug, contrary to s. 253(1)(

a) of the Criminal Code of Canada. An included offence to that impaired operation offence is the offence ofcare and control established under s. 258(1) of the Criminal Code, which provides: 258(1) In any proceedings under section 255(1) in respect of an offence committed under

section 253 or in any proceedings undersubsection 255(2) or (3) (

a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle. . .the accused shall be deemed to have had the care or control of the vehicle. . . unless the accused establishes that the accused did notoccupy that seat or position for the purpose of setting the vehicle . . . in motion . . . [3] In this appeal there is no issue as to the impairment of the Respondent, nor is there any issue that the Respondent occupiedthe driver’s seat of the vehicle when observed by the arresting Constable.

The Crown maintains therefore that the Respondent must bedeemed to have had the care or control of the vehicle unless the Respondent establishes that he did not occupy that seat for the purposeof setting the vehicle in motion. The Crown argues that the learned trial judge was wrong in determining that the Respondent had metthe onus upon him. Standard of Review [4] To the extent that this appeal involves a question of law it is to be reviewed on a standard of correctness. A question of factis to be reviewed on a standard of palpable and overriding error.

Where there is a question of mixed fact and law the Supreme Court ofCanada in Housen v. Nikolaisen, [2002] S.C.R. 235 states that a question of mixed fact and law when an extricable error in principle canbe characterized as an error of law. [5] However the Respondent points to the appeal decision in R. v. Ogrodnick, 2007 ABCA 161 as standing for the principle thatin cases such as this the standard of review should be palpable and overriding error as that is the standard applied by the Alberta Court ofAppeal in that case.

I note, however, that the Court of Appeal did not say so specifically; rather the Court of Appeal held that the Court ofQueen’s Bench, sitting in appeal, erred in finding that the trial judge’s decision did not amount to palpable and overriding error. TheCourt of Appeal did not comment upon whether that was the appropriate standard, but overturned the appeal judge on that point. Iconsider the direction received from Housen v.

Nikolaisen, supra, to govern, that if a question of mixed fact and law with an extricableerror in principle should arise herein, the standard of review is correctness. [6] The case law is clear that, once it has been established beyond a reasonable doubt that the accused was impaired and that hewas occupying the driver’s seat of the vehicle, the Crown case is made out, unless the accused establishes, on a balance of probabilities,that he did not occupy that seat for the purpose of setting the vehicle in motion. The evidentiary onus switches to the accused and mustbe met on the balance of probabilities.

The Supreme Court of Canada has reviewed this provision on a number of occasions. In R. v.Whyte, (SCC), [1988] 2 S.C.R. 3 at para. 18 the Court reviews its previous decision in R. v. Appleby and states: 18. The first aspect of the Appleby decision continues to be relevant under the Charter, namely, the characterization of the legal effectof the presumption contained in Section 224(1)(a), not Section 237(1)(a). Ritchie J. concluded that the presumption places an onus on theaccused to prove on a balance of probabilities that he or she did not enter the vehicle with the intention of setting it in motion . . .

19. Ritchie J. reached this conclusion for two reasons. The first of these was based on the word “establishes” in the section. He heldthat as a matter of statutory

interpretation, the word “establishes” requires the accused to prove the necessary fact on the balance ofprobabilities and cannot be read as equivalent to “raises a reasonable doubt”. The meaning of the words “establishes” and “proves” arewell defined in the criminal law. They require convincing proof, at least on the balance of probabilities. . . . 34. Section 237(1)(

a) requires the accused to prove lack of intent on a balance of probabilities. If an accused does not meet thisrequirement the trier of fact is required by law to accept that the accused had care or control and to convict. (emphasis added) [7] It is to be noted that Justice Ritchie required the accused to prove on a balance of probabilities that he or she did not enterthe vehicle with the intention of setting it in motion. The Alberta Court of Appeal in the decision of R. v.

Hudson (35), Alta.LR (3d) 190stated at paragraph 3: 3. . . .Section 241(1)(a), providing that “unless he establishes that he did not occupy that seat or position for the purpose of settingthe vehicle in motion” requires the accused to establish that at the time he occupied that seat and position he did not do so for thepurpose of setting the vehicle in motion. (emphasis added) [8] The decision of the Ontario Court of Appeal in R. v. Hatfield, (ON CA), 115 CCC (3d) 47 commentsfurther on the time relevant to the presumption.

Endorsing the Hudson decision by the Alberta Court of Appeal, the Court in Hatfieldstates in paragraph 19: 19. A proper reading of the presumption

section must, in my view, be true to that objective.

Hence, it seems to me that, where anintoxicated person is discovered occupying the driver’s seat of a vehicle, the presumption will apply unless the person can demonstratethat his or her occupancy began without the purpose of setting the vehicle in motion. (emphasis added) [9] Hatfield expresses the public policy rationale for the timing of such presumption. [10] I take it as binding upon me, and upon the Court below, therefore, that the onus is placed upon the Respondent to establish, ona balance of probabilities, that his intention, on entering the vehicle, was not to put the vehicle in motion. [11] In reaching his decision to acquit the Respondent, the trial judge listed the evidence upon which he relied to reach his findingthat the presumption had been rebutted, as being: (

a) no keys for the vehicle were apparently present; (

b) the Respondent’s vehicle wasproperly parked at his residence; (

c) he was enjoying a beer, which was 3/4 full and apparently opened; (

d) he had not turned the vehicleon; and (

e) he immediately exited the truck when he saw the police on the scene. [12] These are findings of fact made by the learned trial judge. The standard of review for those findings is whether the trial judgemade a palpable and overriding error. The Crown maintains that, with regard to at least some of the factors, he has done so.

However, Iam satisfied that the trial judge had before him evidence that would support his finding that the Respondent/Accused did not have theintention to place the vehicle in motion, at the time that he was confronted by the Constable. [13] If that was the relevant time for application of the presumption, I would not disturb the decision of the learned trial judge.However, at no place in his judgment, does the learned trial judge comment upon the direction from the Supreme Court of Canada, theAlberta Court of Appeal, and the Ontario Court of Appeal, that the relevant time is the time that the accused first enters the vehicle. [14] In this case, the Respondent/Accused never took the stand, nor did he call any defence evidence.

The defence seeks to relyupon evidence given by the Crown witnesses in direct and in cross examination to rebut the presumption of care and control. The Crownacknowledges that it is possible for the Respondent to rebut the presumption solely on the evidence of the Crown; but that theRespondent has not done so in this instance. The Prince Edward Island Court of Appeal commented on this in R. v. McCauley, 2002

CarswellPEI 107 at paragraph 18 as follows: 18. I do not disagree with the appeal judge’s statement in paragraph 24 that evidence to rebut the presumption could come from a Crown witness. However, in most cases, the accused would have to testify that he or she had a purpose for being in the driver’s seat other than the presumed one. In a situation where the presumption in Section 258(1) (

a) applies and the accused is the only person who can give evidence of his or her purpose for being there, the choice is to face certain conviction or to testify and to explain that he or she was not occupying the driver’s seat for the purpose of putting the vehicle in motion. [ 15 ] While the commentary as to “certain conviction” may be overstated, nevertheless, the inherent difficulty in rebutting the presumption based on Crown evidence only is to be noted. [ 16 ] The Respondent maintains that the factors considered by the learned trial judge as rebutting the presumption are factors which he was entitled to consider as reflecting the initial intention of the Respondent in entering the vehicle; that it is open to the Court to conclude that, since there were indicia when the Respondent was first seen by the Constable that the Respondent did not then have the intention of putting the vehicle in motion it was open to the trial judge to find that such indicia applied at the time the Respondent entered the vehicle.

I do not accept that proposition. [ 17 ] The evidence called in this matter with respect to the intention of the Respondent cannot meet the onus upon the Respondent to establish his intention at the time he entered the vehicle. The onus is on the Respondent to elicit such evidence. There was no evidence before the Court either direct, circumstantial, or inferential, as to the Respondent’s intention at the time he entered the vehicle (whenever that was). The onus is on the Respondent/Accused to call such evidence whether in cross examining Crown witnesses, or by calling defence evidence, to rebut the presumption.

The Respondent has failed to do so. [ 18 ] Accordingly, I reverse the decision of the trial judge. I find that the Crown has established its case beyond a reasonable doubt. The Respondent is convicted of the sole charge under appeal. [ 19 ] This matter is remitted to Criminal Appearance Court in Calgary on Friday, May 11, 2012 at 9:30 a.m. to set a date for sentencing before me. Heard on the 26th day of April, 2012. Dated at the City of Calgary, Alberta this 1st day of May, 2012. R. J. Hall J.C.Q.B.A. Appearances:

Matthew Dalidowicz for the Appellant M. Ian Savage for the Respondent