R. v. Steuart (N.), 2014 MBCA 7

Citation: R. v. Steuart (N.), 2014 MBCA 7 Date: 20140120 Docket: AR 13-30-07975 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) G. L. Bauman HER MAJESTY THE QUEEN ) for the Applicant ) (Appellant) Respondent ) A. Y. Kotler ) for the Respondent - and - ) ) ) Chambers motion heard: NATHAN STEUART ) September 12, 2013 ) (Accused) (Respondent) Applicant ) Decision pronounced: ) January 20, 2014 STEEL J.A. [ 1 ] This is an application for leave to appeal the decision of a

summary conviction appeal judge (the SCA judge) ordering a new trial on charges of care or control while impaired contrary to s. 253(1) (

a) of the Criminal Code (the Code ), and care or control while over .08 contrary to s. 253(1)(

b) of the Code . At trial, the judge acquitted the accused. [ 2 ] After the trial, but before the appeal, the Supreme Court of Canada issued a decision in the case of R. v. Boudreault , 2012 SCC 56 , [2012] 3 S.C.R. 157.

The SCA judge did not identify a specific error in the decision of the trial judge, but held that the Boudreault case either “changed the law, or clarified the law” and, therefore, the matter should be returned to the trial judge for a new trial so that the trial judge could apply the law as stated in Boudreault to the facts of the case. [ 3 ] The accused appeals, arguing the SCA judge erred in finding that Boudreault would have changed the outcome in this case.

Instead, he submits that the trial judge applied the law correctly to the facts of the case and that the SCA judge failed to conduct the necessary analysis upon appeal. Alternatively, the accused submits that, if Boudreault changed the law, the outcome would not have changed based on the facts as found by the trial judge and, thus, no error was present justifying appellate intervention. [ 4 ] The Crown argued that the SCA judge had the discretion to order a new trial as opposed to entering a conviction.

I wish to emphasize that it is not the SCA judge’s discretion to choose between remedies that is being challenged here by the accused. Rather, it is the SCA judge’s failure to determine the error made by the trial judge or to adequately explain the nature of the error that is being challenged. [ 5 ] I agree with the accused. It is the function of an appeal court and the basis of its jurisdiction for intervention to identify an error or dismiss the appeal.

Here, the SCA court failed to identify the error or failed to issue adequate reasons explaining the order for a new trial. [ 6 ] In either case, given that failure, it falls to this court, on a leave application, to identify whether there is an arguable case that Boudreault either did not change the law or, if it did, the outcome reached by the trial judge would still have resulted in an acquittal and, therefore, the SCA judge erred in ordering a new trial. [ 7 ] It is my view that the accused does have an arguable case that the trial judge made no reversible error, even in light of the Boudreault decision and, therefore, no new trial should have been ordered.

I would, therefore, grant leave on the following question of law: Did the

summary conviction appeal court judge err in law when he ordered a new trial in this case because of the Supreme Court of Canada decision in R. v. Boudreault , 2012 SCC 56 , [2012] 3 S.C.R. 157? Facts

[ 8 ] The accused had driven to Flin Flon to visit his friend, and was staying at his friend’s apartment for the weekend. They walked to a bar and got drunk. The friend left to go home and told the accused to call when he wanted to be buzzed into the apartment building. The accused walked to the friend’s apartment, but could not get his phone to work, meaning he was unable to get into the building. It was winter and cold, so the accused got into his truck, which was parked across from the friend’s apartment building, and started it up for warmth.

The accused then passed out, with his foot on the gas pedal and the keys in the ignition. The transmission was in neutral and the parking brake was on. [ 9 ] The police came by, hearing a revving engine and smelling burning oil, and woke the accused. When he awoke, he smelled strongly of alcohol and his speech was difficult to understand. He was charged with impaired care or control. [ 10 ] At trial, the accused gave evidence that he had no intent to drive as he was parked in front of the apartment building where he was staying, and only started the truck for warmth.

The trial judge held that the accused rebutted the presumption established by s. 258(1) of the Code . In order to rebut the presumption, the onus is on the accused to establish, on the balance of probabilities, that he did not occupy the driver’s seat for the purpose of setting the vehicle in motion. The trial judge accepted the accused’s evidence that he was not going anywhere because he was parked in front of his friend’s apartment where he intended to stay the night.

This was corroborated, in the judge’s opinion, by the fact that he had told a police officer earlier in the evening that he was walking “home,” that he stored his groceries in his friend’s apartment, that the parking brake was engaged and the gear shift was set in neutral. [ 11 ] The trial judge then went on to review all the evidence to determine whether, without the use of the presumption, the Crown had nonetheless proven beyond a reasonable doubt that the accused did in fact have care or control of the vehicle.

Was there a “real danger” of the accused setting the vehicle in motion while impaired? [ 12 ] The trial judge considered, but rejected, the arguments that the running vehicle constituted a dangerous situation, that the vehicle could inadvertently be set in motion or that the accused would have driven the vehicle while still impaired. Consequently, he acquitted the accused. [ 13 ] The Crown appealed, arguing two grounds of appeal. First, the Crown submitted that the trial judge had made palpable and overriding errors of fact.

Second, the Crown argued that the trial judge had erred in law in determining that there was no real risk of danger that the accused would set the vehicle in motion while impaired. [ 14 ] On this second point, the Crown argued that the post-trial decision of Boudreault changed the law regarding how risk of danger should be approached in care or control cases, and submitted that, since the trial judge did not have the benefit of Boudreault , he did not and could not have properly analysed the issue of whether there was a realistic risk of danger in this case. [ 15 ] With respect to the first ground of appeal and the alleged errors of fact, the SCA judge was not satisfied that the trial judge had made any palpable and overriding error regarding the facts.

As it was not subject to a cross-appeal by the Crown in this court, I shall not discuss the issue of the alleged errors of fact any further.

Suffice it to say that I believe the SCA judge was correct in refusing to interfere with the trial judge’s factual findings in the absence of palpable and overriding error. [ 16 ] With respect to the alleged error of law, the SCA judge noted that the Crown had “ably argued that the Boudreault decision has changed the law, or clarified the law.” However, the SCA judge ordered a new trial without indicating the nature of that change or analysing whether the trial judge nonetheless applied the proper principles in regard to risk of danger.

In his reasons for doing so, the SCA judge stated: Based on all of that, and most significantly because the Boudreault decision was decided after [the trial judge’s] decision, I’m going to order a new trial on the basis that the learned trial judge, who hears the new trial, will have the benefit of the Boudreault decision and the lengthy reasoning of Justice Fish, which is very relevant. In essence, what the Supreme Court finally decided was that it was not a pure questions [ sic ] of law and therefore the Court of Appeal should not have interfered with the finding of the acquittal.

But there is a lengthy analysis of the law surrounding care [or] control by Justice Fish in that judgment, and also of course an analysis by Justice Cromwell. For all of those reasons, and in view of the fact that the Boudreault decision was decided after this one was decided by [the trial judge], but before it came to me, I’m going to order a new trial for those issues to be dealt with. [ 17 ] Later, the SCA judge further stated: .… Sorry for not making a decision one way or the other, but I just don’t think under the circumstances that I can, in view of the changes that have occurred.

It will be up to another provincial court judge to decide how, if at all, the Boudreault decision impacts upon the facts of this case. [ 18 ] It is from this decision that the accused seeks leave to appeal. Issues

1. Did the SCA judge err in law by ordering a new trial without identifying how the trial judge erred - i.e., by ordering a new trialwithout determining whether Boudreault might have changed the outcome in this case? 2. Did the SCA judge err in law by failing to provide adequate reasons as to the nature of the error at the trial level that required a newtrial? Criteria for Leave to Appeal [19] The accused seeks leave to appeal pursuant to s. 839 of the Code. In R. v.

McCorriston (G.J.), 2010 MBCA 3, 251Man.R. (2d) 106, I set out the criteria which a chambers judge must consider before granting leave to appeal pursuant to that section,stating (at para. 16): The criteria to be met before leave to appeal is granted are well settled and set out in s. 839 of the Criminal Code and in the cases of R.v. Schalla (K.T.) (2007), 2007 MBCA 104 , 220 Man.R. (2d) 69; 407 W.A.C. 69; 2007 MBCA 104, at para. 1, and R. v.Langlois (D.J.) (2008), 2008 MBCA 72 , 228 Man.R. (2d) 256; 427 W.A.C. 256; 2008 MBCA 72. They are as follows:

(1) Any ground of appeal must involve a question of law alone.

(2) Even if a question of law does arise, leave should only be granted if the matter raises an arguable case of substance.

(3) The arguable case must be of sufficient importance to merit the attention of the full court. Since the case has already been reviewedby a judge of the Court of Queen’s Bench, which is the primary appellate court to review such matters, there should be a compellingreason to allow this second level of appeal. One compelling reason would be that the issue raises matters that are of significance to theadministration of justice or the development of the law beyond this case. See R. v.

Denys (C.D.) (2009), 2009 MBCA 39 , 240Man.R. (2d) 13; 456 W.A.C. 13; 2009 MBCA 39. [20] I shall discuss each of the three criteria in greater depth in the context of the facts of this appeal. Analysis and Decision Question of Law [21] The nature of the legal standard of “care or control” and its application to the facts of a case raises a question of law incriminal cases and is to be reviewed on a standard of correctness. See R. v. Grant, 2009 SCC 32 at para. 43, [2009] 2 S.C.R. 353; and R.v. Bear (C.W.), 2013 MBCA 96.

The Crown agrees that the accused’s second proposed ground of appeal that the SCA judge “erred inlaw in overturning the acquittal and ordering a new trial,” would, on its face, be a question of law. Arguable Case of Substance [22] Allowing the appeal and ordering a new trial was certainly one of the options open to the SCA judge in this case.[1] However, the accused argues that before ordering the remedy, the appeal court had to first identify the error.

He submits that the SCAjudge failed to determine how, if at all, the Boudreault decision impacts on the facts of this case and failed to explain how the trial judgeerred before ordering a new trial. [23] The role of an appellate court, whether that court is a SCA court, the highest level of appeal court in a province or theSupreme Court of Canada, is to review the decisions of lower courts for error. See H.L. v. Canada (Attorney General), 2005 SCC 25 atpara. 52, [2005] 1 S.C.R. 401. [24] In R. v.

McDonald, 2007 BCCA 224 (QL), Ryan J.A., for the court, stated (at para. 16): It is trite to say that a Court of Appeal exercising its jurisdiction in criminal matters is a statutory court limited to the powers set out in s.683 of the Criminal Code. We are, it has been said, a “court of error”. In any criminal appeal, before the Court may interfere with aconviction the onus is on the appellant to demonstrate, by an examination of the record, an error of law, fact or mixed fact and law. It isnot enough to show that there might be such an error. In R. v.

McMaster, (SCC), [1996] 1 S.C.R. 740, Chief JusticeLamer gave the test its most generous articulation, that is, that there must be a “real possibility” that the trial judge erred [in ameaningful way].

[emphasis added] See also R. v.

Kociuk (R.J.), 2011 MBCA 85 at para. 69, 270 Man.R. (2d) 170, leave to appeal to S.C.C. aff’d 2012 SCC 15, [2012] 1S.C.R. 529. [25] It is thus trite to state that in the absence of some error by the court below, the appellate court has no jurisdiction tointerfere with the decision of the lower court, and interference by the appellate court in the absence of error will in itself be an error oflaw. [26] In the present case, the SCA judge stated that the Crown “ably argued” that the Boudreault decision changed orclarified the law, but then neglected to discuss the nature of any such change or clarification, and neglected to analyse whether the trialjudge erred by rendering a decision which failed to reflect the allegedly changed or clarified law set out in Boudreault. [2] [27] This failure may be characterized as an error in carrying out the function of an appellate court or it may be characterizedas a failure to give adequate reasons.

The case law establishes that an appellate court, including a SCA court, must provide adequatereasons for its decisions (see R. v. Owen, 2003 SCC 33 at para. 60, [2003] 1 S.C.R. 779; R. v. Schalla (K.T.), 2007 MBCA 104 at para.16, 220 Man.R. (2d) 69; and R. v. Minuskin (2003), (ON CA), 68 O.R. (3d) 577 at para. 4 (C.A.)). Where anappellate court fails to give adequate reasons, this may constitute an error of law. [28] Binnie J., in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, stated (at para. 46): ....

On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there aredifficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here)there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitutereversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal.

In such a case,one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacyof reasons of the opportunity to have the trial verdict properly scrutinized on appeal.

In such a case, even if the record disclosesevidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justifyappellate intervention. …. [emphasis added] [29] In the present case, to paraphrase Binnie J. in Sheppard, it would appear that there were some “difficult issues of lawthat need[ed] to be confronted but which the [SCA judge] … circumnavigated without explanation” (ibid.).

Even considering the recordand the issues argued before the SCA judge, it is difficult to discern the “why” of the SCA judge’s decision -- why does the accusedhave to face another trial after being acquitted by the original trial judge? [30] Minuskin is an example of a case in which a Court of Appeal determined that a SCA judge’s reasons for dismissing theaccused’s appeal from his conviction for assault were inadequate for the purpose of appellate review.

Rosenberg J.A., for the court,stated (at para. 5): … In failing to give adequate reasons, the appeal judge deprived the appellant of meaningful appellate review of that issue. He alsodeprived the appellant of meaningful review by this court of the decision by the appeal judge concerning any errors of law by the trialjudge. [31] In Schalla, Freedman J.A. considered Sheppard and Minuskin, but refused leave to appeal in the circumstances,determining that the reasons of the SCA judge were sufficient. However, he added that (at para. 26): ….

In a different case, perhaps with far less clear and complete reasons at trial, or with complex legal issues that are not clearly dealtwith in the reasons of the appeal judge, more would have to be done to meet the required standard. Minuskin was such a case, but thiscase is not. [emphasis added.] [32] In my view, the present case falls within the category of “a different case” to which Freedman J.A. alluded. The presentcase involves circumstances in which the primary legal issue was not clearly dealt with in the reasons of the SCA judge.

[ 33 ] However, even if an appeal court identifies an error in law by the trial judge, the appeal will not be allowed in the case of a Crown appeal unless the error had a material bearing on the outcome of the trial. See R. v. Graveline , 2006 SCC 16 , [2006] 1 S.C.R. 609; and R. v. Youvarajah , 2013 SCC 41 at para. 32 . [ 34 ] Where leave to appeal is requested in circumstances where the SCA court has failed to issue adequate reasons, the appeal court must do the job the SCA court did not do.

It must consider the grounds of appeal raised before the SCA judge and determine, on its own review of the trial record, whether the reasons of the trial judge demonstrate reversible error; i.e., error that had a material impact on the outcome. In Minuskin , Rosenberg J.A. stated (at paras. 7-9): The question of remedy where the intermediate appellate court has failed to give reasons is a difficult one.

The appellant submits that if this court should find there was an error of law because of the inadequacy of the reasons, we should go on to consider all the grounds of appeal that were raised before the appeal judge to determine whether the error resulted in a substantial wrong or miscarriage of justice. He submits that if this court, having made its own review of the trial record, is of the view that there was no reversible error, it should dismiss the appeal. Alternatively, if this court finds reversible error, the appeal should be allowed and a new trial ordered. ….

The respondent submits that the appropriate remedy, if this court finds an error of law by the appeal judge, is to remit the matter to the

Summary Conviction Appeal Court where another judge of that court can deal with all of the grounds of appeal -- law alone and mixed fact and law. He submits that in this court, the appellant is limited to questions of law alone and thus can only raise errors of law by the appeal judge and trial judge. He submits that this court has no jurisdiction to examine the errors of mixed fact and law allegedly committed by the trial judge. In my view, the appropriate remedy is that suggested by the appellant.

The respondent’s submission is not only inimical to judicial economy but fails to recognize that the appeal in this court is from the decision of the appeal judge, not the decision of the trial judge. This court can only decide if the appeal should be allowed by determining whether the error of law by the appeal judge resulted in a substantial wrong or miscarriage of justice. That can only be determined by examining the grounds of appeal raised before the appeal judge. …. [ 35 ] In R. v.

Therrien (R.) , 2008 MBCA 84 , 228 Man.R. (2d) 228, a leave to appeal application by a person who had been convicted at trial and alleged that the SCA judge had failed to give adequate reasons for upholding the appeal, Scott C.J.M. adopted the procedure outlined by Rosenberg J.A. in Minuskin and stated (at para. 8 ): As Rosenberg, J.A., noted in Minuskin , an appeal court can only decide an appeal brought before it by determining whether the error of law by the appeal judge resulted “in a substantial wrong or miscarriage of justice” (at para. 7).

This requires an examination of the issues raised by the applicant before the appeal judge, and (at para. 9): “...

If it is apparent that on the record before the appeal judge the appeal from the trial court was doomed to failure, the appeal judge’s error in failing to provide meaningful reasons was of no consequence and the appeal should be dismissed. ...” [ 36 ] Therefore, as a chambers judge determining whether the accused has an arguable case that the appeal court’s failure to provide meaningful reasons affected the outcome in a material way, I am required to consider the record and the issues raised before the SCA judge and determine whether the accused has an arguable case of substance that the trial judge made no reversible error, even in light of the post-trial Boudreault decision. [ 37 ] This will require at least a cursory examination of the Boudreault decision and the law with respect to care or control.

I will have to determine whether there is an arguable case for the accused that Boudreault would not have changed the outcome of this case. Did Boudreault Change the Law? [ 38 ] In Boudreault , the accused realized he was too drunk to drive home from his friend’s apartment, and asked her to call a taxi. She did so, but asked him to leave the apartment, given the lateness of the evening. The accused left, but decided to wait in his truck rather than outdoors in the bitter cold. He started the motor and turned on the heat while awaiting the taxi, but did not attempt to set the truck in motion.

The accused fell asleep in the 20 to 25 minutes it took for the taxi to arrive. When the taxi driver arrived, he called the police rather than awakening the accused, and the accused was ultimately charged with impaired care or control. [ 39 ] The trial judge in Boudreault determined that there was no risk that the accused would have put his vehicle in motion. He came to this conclusion by determining that the accused, though intoxicated, knew what he was doing and took all necessary precautions.

The Court of Appeal allowed the Crown’s appeal on the basis that the trial judge had erred in considering the accused’s lack of intention to drive as proof that there was no risk of setting the vehicle in motion.

[40] The majority of the Supreme Court of Canada allowed the accused’s appeal and restored his acquittal, finding that thetrial judge had, in fact, turned his mind to the possibility that a risk of danger could arise by the accused setting the vehicle in motion,either intentionally or unintentionally. In the course of its decision, the court confirmed that risk of danger is an essential element of theoffence of care or control under s. 253(1) of the Code.

It further confirmed that the risk of danger must be a realistic risk, not aspeculative risk, although not necessarily a serious or probable or substantial risk either (at paras. 34-35).

The issue of whether there is arealistic risk of danger is a question of fact which is to be determined by the trial judge after examining all the relevant evidence andafter considering a number of factors. [41] Prior to Boudreault, there had been some divergence of opinion on whether the risk of danger was an essential elementof the offence.[3] Crucial to this case is the fact that the Manitoba Court of Appeal had previously accepted that it was, so this aspect ofthe Boudreault decision did not represent a change in the law in Manitoba (see R. v.

Burbella (W.P.), 2002 MBCA 106, 166 Man.R. (2d)198). [42] Fish J. went on to confirm that it is settled law that an intention to drive is not an essential element of the offence ofcare or control (at para. 36), but discussed how the intention to drive or the absence of an intention to drive should be approached when acourt is considering whether a realistic risk of danger exists. Fish J. stated (at paras. 41-42): A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger.

Accordingly, an intention to set thevehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control. On the other hand, anaccused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: Aninebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion — without intending at thatmoment to do so — may nevertheless present a realistic risk of danger.

In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways.

First, an inebriatedperson who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, aninebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment orotherwise, a stationary or inoperable vehicle may endanger persons or property. [43] Consequently, even if an accused satisfies the court that he did not occupy the driver’s seat with an intention to drive,this will not necessarily result in an acquittal. Nor will it automatically result in a conviction.

In the absence of an intention to drive,what will be required to convict is that there be a realistic risk of danger given the particular facts of the case. [44] Fish J. went on to indicate how a realistic risk may be established by the Crown and be disputed by an accused. Fish J.explained (at para. 50): The existence or not of a realistic risk of danger is a finding of fact: see R. v. Lockerby, 1999 NSCA 122, 180 N.S.R. (2d) 115, at para.13; Smits [2012 ONCA 524, 294 O.A.C. 355], at para. 61.

The trial judge must examine all of the relevant evidence to this end and mayconsider a number of factors: see, e.g., R. v. Szymanski (2009), (ON SC), 88 M.V.R. (5th) 182 (Ont. S.C.J.), at para.93, per Durno J.; R. v. Ross, 2007 ONCJ 59, 44 M.V.R. (5th) 275, at para. 14, per Duncan J. [45] As noted above, the question which I must determine is whether the accused has an arguable case of substance that thetrial judge made no reversible error, even in light of the post-trial Boudreault decision. [46] In his decision in Boudreault, Fish J. specifically mentioned the case of R. v.

Szymanski (2009), (ON SC), 88 M.V.R. (5th) 182 (Ont. S.C.J.) (Boudreault at para. 50). In Szymanski, Durno J. articulated the same “realistic risk ofdanger” approach, set out a number of factors which a trial judge could consider when determining whether a realistic risk of dangerexisted in the circumstances of the case and accepted that the trial judge’s decision on the issue of whether there was a realistic risk ofdanger was a decision which demanded deference.

The Supreme Court of Canada in Boudreault, accepted the reasoning of the court inSzymanski with respect to the concept of the realistic risk of danger, the factors to consider and the deference owed to the trial judge. [47] In the present case, while the trial judge did not have the benefit of Boudreault, it does appear that he considered andapplied Szymanski. In particular, after determining that the accused had rebutted the presumption under s. 258(1)(a), the trial judgeconsidered whether the Crown had proven that there was a real risk of danger.

He considered the three ways set out in Boudreault thatan impaired driver who assumes control of a vehicle may pose a realistic risk of danger even though he does not intend to drive (seeBoudreault at para. 42). [48] The trial judge firstly considered the fact that the gas pedal was depressed, the engine was hot and revving, and the factthat there was a burning smell. However, he determined that it would be speculation to conclude that a dangerous situation wouldnecessarily ensue because of that state of affairs alone.

The trial judge thus appears to have considered whether “through negligence, badjudgment or otherwise, a stationary ... vehicle may endanger persons or property” (Boudreault at para. 42) and thereby establish a

realistic risk of danger. [49] The trial judge next considered whether he was satisfied that the Crown had established that the accused’s vehiclecould have been unintentionally placed in motion, another way in which a realistic risk of danger could be proven. The trial judge notedthat there were several steps which would be required before the vehicle could be set in motion, and rejected the Crown’s argument thatthe vehicle could have been set in motion without taking those steps, in the absence of evidence to that effect.

The trial judge held thatthe fact that the vehicle was in neutral, the engine was running and the accused’s foot was on the gas pedal did not create a risk of thevehicle being unintentionally placed in motion given that the emergency brake was engaged. He held that posing such a risk appeared“to defy common sense” (at para. 17). [50] The trial judge then considered the issue of whether there was a danger of “the accused rousing himself while in thevehicle in a highly intoxicated and confused state of mind and then setting the vehicle in motion” (at para. 19).

In determining thatquestion, the trial judge went on to quote all of the factors mentioned in Szymanski.

He noted the factors which would tend to prove theexistence of a risk of danger, such as the accused’s high level of intoxication, the fact that he was seated in the driver’s seat with theengine running and the vehicle facing the street, and his testimony that he might have driven to another friend’s house if he could notcontact his friend in the morning, he had slept enough and was sober (at paras. 22, 24-25). [51] The trial judge also noted the factors which would tend to disprove the existence of a risk of danger, including evidencethat the accused did not drive to the bar, that he planned to go back to his friend’s apartment without driving while impaired, that he didnot drive after drinking and then pulled over to sleep it off, that he was at his destination and told the police that he was not going todrive the vehicle, that he was cooperative with the police, that he was not wearing a seatbelt, and that he had a reasonable explanation asto why he did not use his cell phone to call his friend to let him in (at para. 23).

From his reasons, it would seem clear that the trial judgeunderstood that the accused’s intention was not determinative of the issue. In acquitting the accused of care or control, the trial judgeultimately concluded (at para. 26): In reviewing the criteria for assessing risk referred to in Szymanski, with special regard to the risk posed by the accused’s high level ofintoxication, I am still not satisfied, beyond a reasonable doubt, that in the peculiar circumstances of this case a real risk existed of settingthe vehicle in motion while his ability to do so was impaired by alcohol.

I find that the accused had a well formed plan that involved notoperating a vehicle while he was impaired and that he deviated from that plan only to warm himself until he regained his senses andcould gain access to his friend’s apartment. .... [emphasis added] [52] Thus, despite not having the benefit of the Boudreault decision, the trial judge appears to have identified and appliedthe principles set out in that case. In the circumstances, therefore, it would appear that the accused has an arguable case of substance thatthe trial judge made no reversible error.

Sufficient Importance [53] The third factor to be addressed is whether the arguable case is of sufficient importance to merit the attention of the fullcourt. The guiding principles to be applied with respect to this factor in a

summary conviction appeal were discussed by Scott C.J.M. inR. v. Dickson (W.A.), 2012 MBCA 2, 275 Man.R. (2d) 38. After referring to several authorities, Scott C.J.M. stated (at para. 14): … I would summarize the guiding principles for the granting of leave to appeal by the Court of Appeal from the decision of an appealjudge on a

summary conviction offence as follows:

(1) Leave to appeal will ordinarily be granted only in exceptional circumstances, which will rarely occur. This is because an appeal tothis court is the third level of court involved in the proceedings (unlike more serious indictable offences). In this regard, the role of aprovincial appellate court is akin to that of the Supreme Court of Canada when dealing with an appeal from a conviction on an indictableoffence. See R. v. Suberu (M.) (2007), 2007 ONCA 60 , 220 O.A.C. 322; 2007 ONCA 60; 85 O.R.(3d) 127, at para. 67, affd.2009 SCC 33 , [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33.

(2) For leave to appeal to be granted, the decision should be one that has a significant impact beyond the facts of the particular case.

(3) It follows then that not all errors in law will merit the granting of leave.

(4) Critically, the question whether there are exceptional or compelling reasons for the granting of leave refers to the significance of thelegal issue; the fact that the issue is unusual or rare is not, in and of itself, compelling. See R. v. Paterson (D.), [2009] O.A.C. Uned.215; 2009 ONCA 331 at para. 2.

(5) Notwithstanding, if a clear error in law has been identified, leave may be granted even if the significance of the issue for theadministration of justice is not high. [54] These principles are similar to those discussed in the leading Ontario case on this subject, R. v. R. (R.), 2008 ONCA497, 90 O.R. (3d) 641. In that case, Doherty J.A. for the court, noted that although s. 839 of the Code appears to give a judge of theCourt of Appeal an unfettered discretion as to when leave to appeal will be granted, in practice, that discretion will be exercised in “theinterests of justice” (at para. 28).

He concluded (at paras. 31- 32): …. I also find helpful the observation of Russell J.A. in R. v. Chaluk, 1998 ABCA 253 , [1998] A.J. No. 862, 237 A.R. 366(C.A.) …. Russell J.A. makes the important point that the power to grant leave to appeal in

summary conviction proceedings is broad enough toreach two quite different categories of cases. Leave to appeal may be granted where the merits of the proposed question of law arearguable, even if not strong, and the proposed question of law has significance to the administration of justice beyond the four corners ofthe case.

Leave to appeal may also be granted where there appears to be a “clear” error even if it cannot be said that the error hassignificance to the administration of justice beyond the specific case. [55] In addition to the criteria discussed above, there is case law which indicates that where an accused was “successful” attrial, but then “unsuccessful” on appeal, the application for a further appeal will not be considered a second “kick at the can.” See R. v.MacKay, 2012 ONCA 671 at paras. 21-22, 112 O.R. (3d) 561.

This may be especially so in cases such as the present case, where“complex legal issues ... are not clearly dealt with in the reasons of the appeal judge” (Schalla at para. 26 per Freedman J.A.). See alsoR. v. Fryza (S.), 2012 MBCA 47 at para. 10, 280 Man.R. (2d) 134. In my view, it is arguable that this, in itself, constitutes anexceptional circumstance. [56] Moreover, with respect to whether the proposed appeal in this case raises an issue of significance to the administrationof justice generally, regard may be had to the case of R. v. Rhynes (C.M.), 2004 PESCAD 15, 239 Nfld. & P.E.I.R. 89.

In that case, theproposed grounds of appeal raised an issue with respect to the scope of the appellate powers exercised by the SCA judge. McQuaid J.A.,for the court, determined that this raised an important legal issue, stating that (at para. 30): .... Generally speaking, it is important that parties not be denied the right to appeal where there may be an arguable ground of appeal thatthe

Summary Conviction Appeal Court judge acted beyond the scope of the powers conferred by the Code. .... [57] In the present case, there is an arguable case that the SCA judge acted beyond the scope of the powers conferred by theCode by ordering a new trial without identifying any error by the trial judge. Consequently, this would be an issue that raises an issue ofsignificance to the administration of justice. Conclusion [58] Therefore, it is my view that this case raises a question of law, and involves an arguable case of substance which is ofsufficient importance to merit the attention of the full court.

There are exceptional circumstances present in this case. It is, thus, myopinion that leave to appeal ought to be granted in this case on the following question of law: Did the

summary conviction appeal court judge err in law when he ordered a new trial in this case because of the Supreme Court ofCanada decision in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157? J.A.