R v O'Toole, 2021 ABQB 449

Court of Queen’s Bench of Alberta Citation: R v O'Toole, 2021 ABQB 449 Date: 20210609 Docket: 181260514S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Alan Michael O'Toole Appellant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ [ 1 ] This is a

summary conviction appeal from the appellant’s convictions under ss 253(1) and 253(1)(b). [ 2 ] Two grounds of appeal are raised: did the trial judge err 1) by finding the appellant was in care and control of a motor vehicle at the relevant time; and 2) by finding the appellant’s blood alcohol concentration at the material time had been proven by way of the presumption of accuracy relied on by the Crown. [ 3 ] For reasons which follow the appeal is allowed.

Did the trial judge reverse the burden of proof? [ 4 ] The parties on appeal agree that at a point in the reasons for decision the trial judge misstated what the accused needed to prove on the question of whether a realistic risk of danger existed in the circumstances of the case: The accused has not established that no realistic risk of danger existed in the particular circumstances of this case. Using a vehicle as a place to consume a large quantity of alcohol and then sleep was not the type of manifestly innocent purpose that was contemplated by Parliament.

Even assuming he did not intend to drive, there was a realistic risk to people or property which results in me finding that he was in care and control of the motor vehicle.

As such, there’s no need for me to make a decision on his intention. (Reasons, p 6, ll 1-6) [ 5 ] Counsel agree that the introductory phrase “The accused has not established” refers to a burden of proof on the appellant. [ 6 ] Counsel disagree on the harm done by the use of that phrase. [ 7 ] The Crown respondent argues that the error aside, the trial judge went on to make appropriate findings of fact, and that those findings came after the trial judge’s review of the law, earlier in the reasons for decision, which correctly stated the Crown’s onus.

The Crown points in particular to the trial judge’s earlier comment that: Although the Crown must prove the elements of the offence beyond a reasonable doubt, the presumption of care and control applies unless [the appellant] rebuts the presumption on a balance of probabilities. (Reasons, p 3, ll 11-13) [ 8 ] The appellant acknowledges that a trial judge’s misstatement cannot be read in isolation from the whole of the reasons.

Here, however, the appellant argues the impugned statement “was not an isolated misstatement but the culmination of [the trial judge’s] true reasoning process” (at para 41, Brief of the Appellant). [ 9 ] I agree with the appellant. In my view the trial judge’s earlier correct statement of the burden of proof cannot be reconciled with the later finding of what the appellant ‘had not established’.

The appellant argues persuasively that when instructing herself regarding the applicable law, the trial judge proceeded from a statement about the rebuttable presumption of care and control, to what is said in R v Boudreault , 2012 SCC 56 about proof of a realistic danger to persons or property in the particular circumstances of the case.

I cannot safely conclude that the trial judge’s many findings of fact were not made through the lens of what the appellant needed to establish, rather than on the basis of what the Crown needed to prove on a reasonable doubt basis. [ 10 ] The appellant acknowledges that the appropriate remedy is a new trial, subject to my finding on the second ground of appeal, on both counts before the court. The presumption of accuracy [ 11 ] This ground of appeal relates to the s 253(1)(

b) conviction. [ 12 ] The appellant argues that the trial judge made a finding of fact that the Crown had not proven the alcohol standard in question was certified by an analyst. This flows from the following statement: Neither the old law nor the new law require the Crown to prove that the alcohol standard was deemed suitable by an analyst or put another way, certified by an analyst. Exhibit 3 [in the trial] sets out what the legislation requires.

It does not prove that the alcohol standard was certified but that doesn’t matter because the Crown is not required to prove it. (Reasons, p 6, ll 34-37) [ 13 ] The Crown disputes that the trial judge intended to make the finding argued for by the appellant. The Crown points to its submissions at trial that Exhibit 3 – being a Certificate of Qualified Technician – was conclusive proof of the appellant’s blood alcohol concentration.

Although no authorities were argued before the trial judge, on appeal the Crown relied on R v Goldson , 2019 ABQB 609 which confirmed the effect of a Certificate of Qualified Technician. [ 14 ] R v Goldson has recently been reversed: R v Goldson , 2021 ABCA 193 . [ 15 ] Whether or not the trial judge erred as argued by the appellant, it is not in dispute that the only blood alcohol concentration evidence at trial was Exhibit 3. On appeal, Goldson concludes that evidence such as Exhibit 3 is inadmissible hearsay. In the result, as in Goldson , the appellant is entitled to an acquittal on the “over 80” charge.

Heard on the 27 th day of October, 2020 Additional written submission June 1, 2021 Dated at the City of Edmonton, Alberta this 9 th day of June, 2021.

Peter Michalyshyn J.C.Q.B.A. Appearances: Michael Dunn/Luke Craggs for the Respondent Steve Smith for the Appellant