) ) HER MAJESTY THE QUEEN Appellant – v. –, 2017 ONSC 5582

CITATION : R. v. Panamick, 2017 ONSC 5582 COURT FILE NO.: 15-451 DRAFT DATE: 20170922 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Appellant – and – Keith Panamick Accused/Respondent ) ) ) ) ) ) ) )) Keisha Athanas, for the Crown Brad Allison, for the Accused/Respondent ) ) HEARD: September 13, 2017 DECISION ON APPEAL gauthier j.

Overview [ 1 ] The Crown (“the appellant”) appeals the acquittal of Keith Panamick (“the respondent”) on charges of Impaired Care or Control/Over 80 Care or Control, on October 18, 2016. [ 2 ] The appellant’s Notice of Appeal states that the trial judge made reversible errors of law, that is, by finding that without a reasonable risk of harm, the offences were not made out. Facts [ 3 ] I have borrowed liberally from the Factum of each of the parties. [ 4 ] Officer Shokan was dispatched to an accident scene with a possible impaired driver.

On his arrival at the scene, the officer observed a blue van partially nose-down in a three- to five-foot ditch, with the rear of the vehicle resting in the respondent’s driveway. Upon approaching the vehicle, the officer observed the respondent seated in the driver’s seat of the vehicle. There were persons around the front of the vehicle attempting to assist in removing it from the ditch. [ 5 ] As Constable Shokan approached the vehicle, the respondent exited the vehicle. At that point, Constable Shokan detected a very strong odour of alcohol coming from the respondent’s mouth.

He also observed that the respondent was unsteady on his feet. Constable Shokan asked the respondent what happened and he replied that he was trying to get the vehicle out of the ditch. While speaking, Constable Shokan observed that his speech was slurred and somewhat hard to understand. The officer advised the respondent that he could smell alcohol on his breath. Constable Shokan then asked the respondent if he had had anything to drink and the respondent replied in the affirmative but the respondent did not know how much alcohol he had consumed. [ 6 ] A second officer, Constable J.

Panamick also observed signs of impairment, and saw the respondent place a set of keys on an ATV which was parked beside the blue van. When officer Panamick asked the respondent why he was hiding the keys to the vehicle, the respondent simply shrugged. [ 7 ] Constable Shokan then formed reasonable and probable grounds that the respondent had committed the offence of Impaired Care or Control and arrested him at 8:04 p.m.

Constable Shokan then read the respondent rights to counsel, caution and breath demand for the Approved Instrument at 8:18 p.m. [ 8 ] Constable Shokan transported the respondent to the police detachment, where the respondent spoke to duty counsel and was turned over to the breath technician, Constable Green. The officer testified that the respondent provided two suitable samples into an approved instrument. The samples were 196 milligrams of alcohol in 100 millilitres of blood and 188 milligrams of alcohol in 100 millilitres of blood, respectively.

The respondent did not challenge Constable Green’s testimony with regards to breath tests.

[ 9 ] Constable Green also advised that the respondent told him that his cousin Diane White drove the vehicle into the ditch and then: “I tried to pull it out with my four-wheeler, it was right in the driveway. The kids said they are calling the cops on you, so I went out to get my keys and the cops showed up.” [ 10 ] A witness statement was submitted into evidence by the appellant at the trial, with the consent of the respondent. The appellant’s Factum indicates that in that statement: Ms.

White admitted to driving the respondent’s vehicle into the ditch, that the Respondent was upset with her and that the respondent got into the driver’s seat for the purpose of driving the vehicle out of the ditch. [ 11 ] The exact wording of the witness statement is: “that Keith had asked her and John to push the vehicle from the front to get out of the ditch ... that Keith had jumped into the driver’s seat to drive vehicle out of the ditch.” [ 12 ] Diane White was not present at the trial and there was no evidence called on the part of the respondent.

The Trial Judge’s Reasons [ 13 ] I reproduce the salient portions of the trial judge’s reasons: The accused was found in the driver’s seat behind the wheel of a vehicle. There is no evidence of the vehicle – there is no evidence of the vehicle running, no evidence that keys located fit the vehicle, no evidence of the front end of the vehicle being damaged or not. There is no indication of driving lights running, no inspection of the shifting column, nor any evidence of dash lights or brake lights illuminated. Other individuals who were present, presumably were unable to dislodge the vehicle.

What is certain is, the vehicle did not move. In the defense’s own words, the accused was drunk in a stuck vehicle. [ 14 ] The trial judge also reviewed some applicable principles: A person found in the driver’s seat while intoxicated by alcohol is presumed to have occupied the seat with the intention to drive. Even if she or she – he or she doesn’t occupy the seat to drive, guilt may be proven by actual, as opposed to presumed, care and control.

The risk of danger is an essential element of care and control according to Boudreau , “care and control signifies an intentional course of conduct associated with the vehicle in circumstances that could create a realistic risk of danger to person, or property.” At paragraph 42, realistic risk is defined and may arise in three circumstances, “1) an intoxicated or inebriated person who does not intend to drive, may change his or her mind; 2) an inebriated person may unintentionally set the vehicle in motion, and 3) through negligence or bad judgment an inoperable vehicle may endanger a person or property.” [ 15 ] The Trial Judge went on to say that “what is certain is that a risk of danger must be a realistic one, and that is a matter of fact for a trial judge to determine.” [ 16 ] She went on to say: In this trial, there is no evidence of the use of any of the car’s fittings and unlike many of the cases dealing with impaired care and control, Mr.

Panamick was already at destination. There’s no evidence of an intention to drive or to operate the motor vehicle. There’s no evidence of the keys being associated with the vehicle. No evidence of any steps taken by the accused to set the vehicle in motion, and absent this vehicle being stuck or inoperable on a hill, for example, no evidence that the vehicle could be extricated from the ditch and create a reasonable risk of danger to others. So, there is no evidence that the vehicle, even if, [ sic ] could be shifted in “neutral” position, could result in the risk of danger complained of.

The vehicle was going nowhere. Because the only issue at trial is that of care and control, the drivability or the movability of the vehicle is, at all material times, a live issue, and given the placement of the vehicle, and on the evidence presented, there’s no indication that it created a realistic risk of danger as argued by the Crown. Surely, there may have been evidence in that regard to prove the movability of the vehicle, but it was not presented at trial, and accordingly the accused is acquitted of the charge.

Appellant’s Position [ 17 ] The Notice of Appeal, dated October 19, 2016, stated that the trial judge made reversible errors of law. The relief sought was an Order allowing the appeal, entering a guilty verdict on all counts and the imposition of a sentence. [ 18 ] A Supplementary Notice of Appeal, dated July 12, 2017 indicated that the appellant alleged reversible errors of fact and mixed fact and law.

The relief sought, as an alternative to a guilty verdict, was an Order directing a new trial. [ 19 ] The appellant submits that the trial judge did not correctly apply the statutory presumption of care or control and misapprehended the evidence. [ 20 ] The Crown may prove actual care and control, or, may rely on the statutory presumption of care and control in section 258(1) of the Criminal Code , to satisfy the care or control element of the offence in question. [ 21 ] Where the presumption is engaged, as was the case here, it can only be rebutted by evidence that the accused did not intend to

operate the vehicle. The immovability of the vehicle does not affect the operation of the presumption. [ 22 ] The appellant points out that the statutory presumption was engaged because the respondent was found behind the wheel of the vehicle, and there was evidence that the respondent intended to drive the vehicle.

To have concluded, as did the trial judge, that there was “no evidence of an intention to drive or to operate the motor vehicle” constitutes a serious error and a misapprehension of the evidence that was before the court. [ 23 ] The judge, while recognizing the existence of the statutory presumption of care and control, went on to consider the realistic risk of danger test, which does not arise where, as here, the appellant was not attempting to establish actual care or control.

Realistic risk of harm is not a consideration where the statutory presumption applies, even if the vehicle is immobile. [ 24 ] If the trial judge’s verdict of acquittal stands, this would result in a circumvention of Parliament’s intention in creating the presumption of care or control. It would render the presumption meaningless if a reasonable risk of harm had to be made out, where the presumption applies. [ 25 ] Had the trial judge correctly applied the provisions of section 258(1) , and, given the uncontradicted evidence of intention to drive, the only possible verdict was a conviction.

Respondent’s Position [ 26 ] The respondent firstly suggests that the appeal should be dismissed, without consideration of the merits, as the appellant failed to comply with the Criminal Proceedings Rules for the Superior Court of Justice, in several ways: 1) The appellant did not file a Form 2C (Certificate of Transcript) within 30 days of filing the Notice of Appeal; 2) The appellant failed to serve the transcripts within 30 days after filing the Notice of Appeal, and, in fact, did not serve same until approximately three months after delivering the Notice of Appeal; 3) The appellant failed to file its Book of Authorities at the time of the filing of the Factum; rather the Book of Authorities was not served until some time after July 4, 2017; 4) The appellant failed to deliver its Appeal Book within 15 days after receiving notice that the transcript of the evidence was ready (January 12, 2017), and did not file the appeal book until March 10, 2017; the Appeal Book was served on March 14, 2017; and 5) The appellant did not seek leave to deliver the Supplementary Notice of Appeal, and therefore should not be provided any relief save and except that which was sought in the original Notice of Appeal. [ 27 ] The respondent has also raised the provisions of Rule 40.18, dealing with supervision hearings, when certain steps are not taken within a specified time period.

It appears that the provisions of subrule 40.18 (1)(

b) would apply given that the Appeal Book was not delivered within 15 days of notification of transcript readiness, or within 60 days of the filing of the Notice of Appeal.

No such supervision hearing was scheduled or conducted. [ 28 ] Turning to the merits of the appeal, the respondent says that the trial judge determined, on the basis of the following, that the presumption had been rebutted: 1) No evidence of the vehicle running; 2) No evidence that keys located fit the vehicle; 3) No evidence of damage or lack of damage to the front of the vehicle; 4) No evidence of running, dash, or brake lights being illuminated; 5) No inspection of the shifting column; 6) Vehicle was nose down in a three to five foot ditch adjacent to the respondent’s residence; 7) Individuals present were unable to dislodge the vehicle; 8) The vehicle was stuck; 9) No evidence of an intention to drive or operate the vehicle; 10) No evidence of keys associated with the vehicle; 11) No evidence of any steps taken by the accused to set the vehicle in motion; 12) No evidence that the vehicle could be extricated from the ditch and create a reasonable risk of danger; 13) No evidence that, even if the vehicle could have been shifted into a neutral position, that would have created a risk of danger; and 14) The vehicle was going nowhere. [ 29 ] The trial judge was entitled to conclude from the facts that the respondent had no intention to operate the vehicle and thus had rebutted the presumption.

She then concluded that the evidence did not indicate a realistic risk of danger.

[30] The trial judge’s consideration of the “immovability” of the vehicle, this fact was not relied upon in isolation and was notdeterminative of any issue, according to the respondent. [31] The trial judge’s reasons do not make clear whether or not she made a finding regarding the “inoperability” of the vehicle,which could defeat the presumption. Thus, allowing the appeal, entering a guilty verdict and imposing a sentence is not the appropriaterelief.

A new trial would be the appropriate relief in this case if the appeal is allowed, and that relief was not sought in the originalNotice of Appeal. [32] The respondent submits that the trial judge’s determination that there was no evidence of an intention to drive or operate thevehicle is a finding of fact. The appellant is limited to the grounds set out in the Notice of Appeal, that is, “that the learned trial judgemade reversible errors of law”. [33] The Appeal should be dismissed for failure to comply with the Rules, and on the merits.

In the alternative, if the appeal isallowed, a new trial is the appropriate relief in the circumstances. Failure to Comply with the Rules [34] The appellant did fail to comply with the Rules, and it would appear that the clerk may have failed to

schedule a supervisionhearing as provided for in Rule 40.18. I am not, however, prepared to dismiss the appeal on that basis only.

There has been nosuggestion that the respondent has suffered any prejudice, save and except with regard to the filing of the Supplementary Notice ofAppeal. [35] Having said that, I agree with the respondent’s position that the appellant should not be entitled to seek any relief other thanthe relief sought in the Notice of Appeal dated October 19, 2016 and contained in the Appeal Book. [36] The appellant at no time requested leave to seek the relief outlined in the Supplementary Notice of Appeal.

Additionally, theSupplementary Notice of Appeal was served on July 12, 2017, for a hearing which was originally scheduled for July 24, 2017. [37] The only grounds on which the appeal will be considered is that the trial judge made reversible errors of law. The only reliefavailable will be the allowing of the appeal and the imposition of sentence. The Presumption [38] Section 258(1) of the Criminal Code provides as follows: 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in anyproceedings under any of subsections 255(2) to (3.2), (

a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vesselor aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed tohave had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes thatthe accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion orassisting in the operation of the aircraft or railway equipment, as the case may be.

Analysis [39] For reasons that follow, I conclude that the trial judge made an error of law by failing to properly consider and apply theprovisions of section 258(1) and the related jurisprudence. [40] The trial judge’s reasons are capable of two

interpretations. [41] In the first, she considered the presumption and its applicability and found on the facts that the presumption was rebutted. Shethen went on to consider the evidence of actual care and control and conducted her analysis of risk of danger. [42] The trial judge concluded that there was “no evidence of an intention to drive or to operate the motor vehicle”. However, theCrown did not have to establish an intention to drive the vehicle once the respondent was found in the driver’s seat of the vehicle.

Rather, it was for the respondent to demonstrate that his or her occupancy began without the purpose of setting the vehicle in motion: R.v. Hatfield (1997), (ON CA), 33 O.R. (3d) 350 (C.A.). [43] The evidence incontrovertibly established the intention to drive.

I refer to the evidence of Diane White “that Keith had askedher and John to push the vehicle from the front to get out of the ditch…that Keith had jumped into the driver’s seat to drive vehicle out ofthe ditch.” [44] There is as well Constable Shokan’s evidence that the respondent told him he had been trying to get the vehicle out of theditch. [45] The evidence shows that the respondent’s focus was on extricating the vehicle from the ditch.

His statement to ConstableGreen about his attempts to pull the vehicle out with the four-wheeler is corroborative of the intention to get the vehicle out of the ditch. [46] The trial judge appears to have considered the immovability of the vehicle as capable of rebutting the presumption of care orcontrol. There was no evidence that the vehicle was “inoperable” as opposed to “immovable”. Only evidence that a vehicle is incapableof operation can, in certain circumstances, defeat the presumption. As the court said in R. v. Danji, [2005] O.J.

No. 917 (C.J.), atparagraph 36: In Ontario, at least, neither vehicle immobility nor the absence of risk of danger in relation to its use in some way, are capable in law of

rebutting the presumption of care or control. [47] The trial judge appears to have misapplied the facts to the law, which results in an error of law. [48] The second

interpretation of the judge’s reasons suggests that the judge concluded that risk of danger must be proven as anessential element of the offence in question, even if the presumption is engaged. That does not appear to be the law in Ontario. [49] Trotter J. (as he then was) in R. v. Blair [2014] O.J. No. 4296 (SCJ), said this: Boudreault establishes that, when the Crown seeks to establish actual or de facto “care or control”, it is required to prove a realistic riskof danger. It does not follow that, when the accused is unable to rebut the presumption, the Crown must still prove this element.

Admittedly, there is language in Boudreault that suggests otherwise. As Fish J. held at p. 232: At a minimum, the wording of the presumption signifies that a person who was found drunk and behind the wheel cannot, for that reasonalone, be convicted of care or control if that person satisfies the court that he or she had no intention to set the vehicle in motion… However, this passage must be considered in context. The majority in Boudreault was merely describing the operation of thepresumption in the light of its holding in Whyte.

There is nothing in the language of Boudreault that suggest that the Court modified oraltered the operation of the presumption by requiring the Crown to go further and prove a realistic risk of danger when the presumptionstands unrebutted. When the presumption is not rebutted, all elements of “care or control” (both the mens rea and actus reuscomponents…) are deemed to exist. [50] Trotter J. went on to clarify that the realistic risk of danger is “embedded in the presumption” (para. 15). As pointed out in R.v.

Boudreault, 2012 SCC 56 , [2012] 3 S.C.R. 157, at para. 41, an intention to set the vehicle in motion is sufficient, in and ofitself, to create the risk of danger contemplated by the care or control offence. [51] If the evidence establishes the intention to drive, then the presumption is not rebutted and all elements of the offence insection 253(1)(

b) are proven. The evidence in this case incontrovertibly established an intention to set the vehicle in motion. To haveconcluded that the elements of the offence were not made out because there was no realistic risk of danger is a reversible error. Therewill be a conviction of the offence of care or control – over 80. I am not persuaded that the offence of impaired care or control has beenmade out, and, in any event, the principle in R. v. Kienapple would be engaged. [52] The appeal is allowed, the verdict of acquittal is set aside, a verdict of guilty to the section 253(1)(

b) offence is substitutedtherefor, and the matter is remitted back to the trial judge for the imposition of sentence. The Honourable Madam Justice Louise L. Gauthier Released: September 22, 2017 CITATION: R. v. Panamick, 2017 ONSC 5582 COURT FILE NO.: 15-451 DRAFT DATE: 20170922

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Appellant – and – Keith Panamick Accused/Respondent DECISION ON APPEAL Gauthier J. Released: September 22, 2017