)) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 550

CITATION : R. v. Gagne , 2017 ONSC 550 COURT FILE NO.: 15-1857 DATE: 2017/01/30 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – JEFFREY GAGNE Appellant )))))))))) Moiz Karimjee, for the Crown Richard Addleman, for the Appellant ) HEARD: January 4, 2017 REASONS FOR DECISION Sheard J. Overview [ 1 ] This is an appeal from the decision of Fournier, J. of the Ontario Court of Justice at the City of Ottawa, Province of Ontario on December 10, 2015.

Fournier, J. convicted the Appellant, Jeffrey Gagne, of having the care or control of a motor vehicle while having in excess of 80 milligrams of alcohol in 100 millilitres of blood, thereby committing an offence contrary to section 253(1) (

a) and (

b) of the Criminal Code of Canada , R.S.C., 1985, c. C-46 (“ CCC ”). [ 2 ] The Appellant does not take issue with the breathalyzer test or its readings: the test showed a blood alcohol of .134, exceeding the legal limit. The central issue in this appeal is whether the trial judge erred in his application of the law or misapprehended the evidence when he found that the Appellant had care and control of his vehicle. [ 3 ] The trial evidence was that the Appellant had driven his car off the road in the early hours of February 8, 2015. Two separate passersby had pulled over when they spotted the car in the ditch.

The trial judge determined that at the time of his arrest, the Appellant was standing near his car, a four-door Honda Civic, which was lying on its side in the ditch beside the road. The trial judge found that the Appellant asked each passerby to help him right his car so that he might get into it and drive it.

The trial judge concluded that the Appellant’s expressed intention to right, then drive, was an indication that “he is in care and control” of the vehicle (Reasons, Transcript p. 103, Ll. 24-31) [1] . [ 4 ] The trial judge further concluded that “ … if it’s realistic, and it doesn’t have to be super probable. It just has to be realistic. Realistically, three individuals I suppose, could right this vehicle, put it on its wheels; and you know where there’s a will there’s a way, so to speak.” (p. 104, Ll. 14-18).

For those reasons, the trial judge was “satisfied beyond a reasonable doubt that this accused had care and control of a motor vehicle, …while…his alcohol concentration was exceeding the legal limit.” (p. 104, ll. 20 -25). [ 5 ] The Appellant’s grounds for appeal are: 1) that the trial judge misapprehended the evidence presented at trial; 2) that the trial judge failed to apply the principles as set out in the Ontario Court of Appeal decision in R. v. Wren, 47 O.R.

(3d) 544, 2000, CanLII 5674, with respect to the issue of care and control and drinking and driving cases; and 3) that, by adopting an unrealistic and unattainable hypothetical with respect to the position and location of the Appellant’smotor vehicle, the trial judge shifted the burden of proof to the Appellant. [6] The main thrust of the appeal was that the trial judge erred when he concluded that the Appellant’s request of the passersbyto right the vehicle was an intentional course of conduct that created any realistic risk of danger to persons or property. Rather, the riskwas only theoretical.

The Offence [7] The essential elements of “care or control” under section 253(1) of the CCC are: (

i) an intentional course of conduct associated with the motor vehicle; (ii) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (iii) in circumstances that create a realistic risk of danger to persons or property. R. v. Boudreault, 2012 SCC 56 , [2012]S.C.J. No. 56 (SCC), at para 33. [8] The key evidence is summarized below: (

a) At approximately 2:50 a.m. on February 8, 2015, the Appellant was found in his car by a passing motorist, Shawn Edward(“Mr. Edward”), who saw the Appellant’s car was “flipped over”, on its roof, in the ditch on Greenbank Road. The weather was notgood; the roads were icy, snowy and slushy; (

b) Mr. Edward saw the Appellant in the backseat of the car, confirmed he was not injured and then called 911. He then helpedthe Appellant get out of the car, through the “fairly deep” snow in the ditch to Mr. Edward’s car. (

c) Mr. Edward thought the Appellant was “under the influence” and the Appellant told him he had been drinking. TheAppellant asked Mr. Edward to drive him home so he could deal with the matter in the morning. Mr. Edward responded that he couldnot do that and that the police had been called. The Appellant also asked Mr. Edward if he could help him “flip over his vehicle, so thathe could drive it home.” Mr. Edward told the Appellant he could not help with that either and that the police were on their way. (

d) Both men sat in Mr. Edward’s car: the Appellant in the backseat and Mr. Edward in the driver’s seat. Mr. Edward stated thatthe Appellant told him he was “f—d” and “was asking” Mr. Edward to help him flip the car over so he could drive home (p. 12); (

e) On cross-examination Mr. Edward’s evidence was that while on its side, you could not drive the Appellant’s car but “…if itwas flipped back over I’m sure the car could be driven. But in its state, no it could not be driven where it was, no.” (p. 17); (

f) At approximately 3:00 a.m., Jonathan Gardiner, an off-duty officer with the Ottawa Police arrived at the scene. He saw theAppellant’s car on its side in the ditch, about five to ten metres from the roadway. He also noticed Mr. Edward in the driver’s seat andthe Appellant in the back seat of Mr. Edward’s car; (

g) Officer Gardiner talked to the Appellant through the open back window of the Edward vehicle. He stated that the Appellantbecame “slightly more agitated” and asked Officer Gardiner and Mr. Edward “to try and either drive him away or get his car back on itswheels.” (p. 28). The Appellant continued to talk and said “I’m f--d. I’m right f—d. The cops are coming and they will give me aBreathalyzer and I’m F—d.” (p. 29). (

h) After about five minutes, the Appellant got out of the Mr. Edward’s vehicle to look at his car. At that time, Officer Gardinernoticed a strong odor of alcohol on the Appellant. The Appellant returned to Mr. Edward’s car but did not get in it for the next 15minutes until the police arrived. Officer Gardiner then left. (

i) On cross-examination Officer Gardiner confirmed that the appellant’s vehicle was inoperable at the time as “it was not onits wheels”. When asked whether it could be driven as it was sitting in the ditch he answered: “It would have to be righted first, yes.” (

j) The Appellant waited for the police to arrive and was standing near his car when the responding officer, Officer CesarWiegelman, arrived at approximately 3:17 a.m. Mr. Edward told Officer Wiegelman what he had seen and done, wrote a statement andthen left the scene. (

k) Officer Cesar Wiegelman observed the Honda Civic on its side in the west side ditch of Greenbank Road. Both he andOfficer Gardiner made notes. Their notes both say that the car was on its side. Officer Wiegelman stated that it was about seven feetfrom the roadway. (

l) Officer Wiegelman observed the Appellant standing outside, near his car. When speaking with the Appellant, OfficerWiegelman observed a strong odor of alcohol on the Appellant’s breath and that he looked cold and a “little stressed” (p. 44). He alsosaid that the Appellant admitted that he had been drinking; (

m) On cross-examination Officer Wiegelman agreed that the vehicle was on its side, immovable; that it was not obstructing anypossible traffic or causing any danger to any vehicles. He agreed that when he saw the Appellant’s vehicle he thought a tow truck wouldbe needed to get it out of there. (p. 60) When asked: “You couldn’t sort of take two guys and flip it on its side and push it over thesnowbank?” he answered: “No, I wouldn’t try it.”;

(

n) The Appellant was arrested and taken to the police station where a breathalyzer test was administered and he registered ablood alcohol level of .134. (

i) Intentional Course of Conduct [9] The Appellant argues that the trial judge misapprehended the evidence when he found that the Appellant was “persistent” inasking for help in righting the car. He argues that the Appellant asked for that help only once, in the presence of Mr. Edward andOfficer Gardiner. The Crown argues that there was more than one such request. Based on the evidence, the trial judge agreed with theCrown.

This finding of fact was open to the trial judge to make on the record (pp. 103-104). (ii) Blood Alcohol Exceeding Legal Limits [10] The Appellant conceded that his blood alcohol level exceeded legal limits. (ii) Realistic Risk of Danger [11] The Appellant argued that the notion that the car could be righted by three men and then driven out of the snowy ditch to theroadway, or to a place where it might have put the public at risk, was theoretical and would have required “super-human” strength. Hereferred to the evidence of Officer Wiegelman that a tow truck would be required to get the car out of the ditch.

Counsel for theAppellant argued that his client’s request for help to right his vehicle was merely “wishful thinking” that the car could have been rightedby three men and that he then could have driven it away. [12] The Appellant referred to the evidence of Mr. Edward and Officers Gardiner and Wiegelman that the car was “into” thesnowbank and either 10 feet, 5 to 10 metres or 7 feet from the roadway. [13] The trial judge concluded that the car was on its side, agreeing with the view expressed by defence counsel in his submissionsto the trial judge (p. 96).

The Appellant argued that, whether on its back or its side, the car was in a ditch, deep in a snowbank and posedno actual danger – which was conceded by Officer Wiegelman – or any realistic danger. [14] The Crown argues that whether there was a “realistic risk of danger” is a finding of fact by the trial judge, which must beaccepted by the appellate court unless it can be said that “no judge in the universe” could have reasonably found that there was a realisticrisk that the car could have been righted and driven or righted and created a potential risk of harm to the public.

The Crown also arguedthat the risk of danger included the risk posed to those who were trying to right the vehicle. Standard of Review [15] An appellate court may allow an appeal and overturn a conviction if the decision: (

a) is unreasonable or cannot be supported by the evidence; (

b) is wrong in law; or (

c) results in a miscarriage of justice. [16] Counsel agree that Wren remains good law. The Appellant argues that the trial judge failed to apply the principles set out inWren, which include that: An accused will have care and control of an inoperable vehicle if that vehicle, in the hands of an impaired person, has the potential tocreate some danger. (para. 25) (emphasis added) Was there Proof of the Elements of the Offence? [17] In this case, the trial judge’s finding of guilt was based, in part, on his finding that the Appellant made “persistent” requestsfor help in righting his vehicle.

This was an essential fact for his finding of “an intentional course of conduct”.

As stated above, therewas evidence upon which the trial judge could have made that factual finding. [18] “The existence of a realistic risk of danger is a matter of fact.” (Boudreault, para 11.) A trial judge’s conclusion on the facts,“however surprising or unreasonable” it may appear to another court, does not give rise to a question of law alone. (Boudreault, para.15). [19] This Court is entitled to review the evidence, re-examine and re-weigh it “… but only for the purpose of determining if it isreasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reachedthe conclusion it did on the evidence before it…Provided this threshold test is met, the Court of Appeal is not to substitute its view forthat of the trial judge, nor permit doubts it may have to persuade it to order a new trial.” (R. v.

Burns, (SCC), [1994]S.C.J. No. 30 (SCC), at para.14). [20] For this Court to overturn the trial judge’s factual finding of reasonable risk, it must conclude that the trial judge made a“palpable and overriding error” or one which is “clear to the mind or plain to see.” (see Boudreault; and Houssen v. Nikolaisen, 2002SCC 33 , 2002 S.C.C. 33).

Analysis [ 21 ] In this case, the evidentiary record shows that two of the three eyewitnesses agreed that the Appellant’s vehicle, if righted, would be operable and could be driven. That also appears to have been the view of the Appellant, whose request for help in righting the car was put in evidence by those two witnesses. [ 22 ] Neither Mr. Edward nor Officer Gardiner expressed the view to the Appellant on the day of the accident, nor was it their evidence at trial, that it would be impossible or only “theoretical” or would require “superhuman strength” to right the car.

Accordingly, it was open to the trial judge to conclude on the evidentiary record that it was possible for three men to right the car and that, given the Appellant’s stated intention, he could and would then drive the car away from the scene thereby creating a realistic risk of danger to the public. [ 23 ] As set out in Wren , the offence does not require that the vehicle be moved to create a risk of danger. “[I]n order to establish care or control of a motor vehicle, the act or conduct of the accused in relation to that motor vehicle must be such that there is created a risk of danger, whether from putting the car in motion or in some other way .” ( Wren , at para. 16 ) (emphasis added). [ 24 ] Beginning at para 33, Boudreault , explains the essential elements of “care and control” under section 253(1) of the CCC as : (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; (3) in circumstances that create a realistic risk of danger to persons or property. [ 25 ] Boudreault’s analysis of the offence of care and control is most helpful and has direct application to the facts here: [40] … Parliament’s intention in enacting s. 253 (1) of the Criminal Code was to criminalize only conduct that creates a realistic risk of danger. [41] A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger.

Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offense of care or control.

On the other hand, an accused who satisfies the Court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: an inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion – without intending at that moment to do so – may nevertheless present a realistic risk of danger. [ 26 ] Paragraph 42 of Boudreault has particular application to the facts of this case: [42] In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways.

First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property. [ 27 ] Based on evidentiary record, it cannot be said that the facts found by the judge reveal a “palpable and overriding error”, or one which is “clear to the mind or plain to see” which is required in order to justify or entitle an appellate court to reverse those factual findings. ( Houssen v.

Nikolaisen 2002 SCC 33 (SCC) ). [ 28 ] At paragraphs 34 and 35 of Boudreault, the Court stated: The risk of danger must be realistic and not just theoretically possible: Smits , at para 60. But nor need the risk be probable , or even serious or substantial . To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention to prevent a danger to public safety.

To require only that the risk be “theoretically possible” is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct. [ 29 ] An accused will have care or control of an inoperable vehicle if that vehicle, in the hands of an impaired person, has the potential to create some danger ( Wren , at para 25 ). The risk can be a potential danger and may exist even if the vehicle is inoperable. ( R. v. Vansickle , [1988] O.J. No. 2935 (S.C.) at para 7 ).

[ 30 ] The facts in this case are distinguishable from those in Wren . Unlike in Wren , here, notwithstanding that the vehicle was inoperable while on its side, there was evidence upon which the trial judge could conclude that it could have been operable with the help of the two passersby - had they been willing participants. [ 31 ] The evidence of Officer Wiegelman that he “wouldn’t try it” i.e. try to right the vehicle without a tow truck - does not necessarily lead to the conclusion that righting the car without a tow truck was impossible or theoretical.

Rather, doing so was not something that he would have tried. The evidence that it was something that the Appellant was proposing to do is supportive of the trial judge’s conclusions that this intentional course of conduct created a realistic risk of danger. Conclusion [ 32 ] Notwithstanding the able arguments of the Appellant’s counsel, the evidentiary record supports the key findings of the trial judge upon which he concluded that in all the circumstances, the Appellant posed a realistic risk of danger to persons or property.

Accordingly, it is not open to this Court to interfere with his findings or to substitute its own findings and assessment of the evidence for those of the trial judge. ( R. v. Johnston , 2016 ONCA 834 )). [ 33 ] For the reasons set out above I dismiss the appeal. ____________________________ Madam Justice L. Sheard Released: January 30, 2017 CITATION : R. v. Gagne, 2017 ONSC 550 COURT FILE NO.: 15-1857 DATE: 2017/01/27 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – JEFFREY GAGNE REASONS FOR JUDGMENT Sheard J. Released: January 30, 2017