Realistically Dangerous

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At 5:20am Balogun-Jubril [hereafter BJ] like a lot of folks was sound asleep. Unlike other folks though BJ was not tucked snugly into his bed. BJ was in the driver’s seat of his car. The car was off, the transmission was in park but the key was in the ignition. Most peculiar however was the location of BJ’s car. He was stopped in a lane of an exit ramp on a provincial highway. The location of the vehicle and BJ’s deep sleep caught the attention of both the Ministry of Transportation and police. Once conscious BJ exhibited what officers described as significant signs of impairment.

At 6:41am BJ provided his first of two breath samples which confirmed what the officers suspected – BJ’s blood alcohol concentration was well over the legal limit at 150mg of alcohol per 100ml of blood. BJ was charged with driving over the legal limit and impaired driving.

At trial BJ testified. He claimed that at 2:45am as he was driving his car stopped working. A mechanic testified that the vehicle was inoperable, as the oil had leaked causing the engine to seize.

The trial judge found that BJ was not operating the vehicle while impaired but was in care and control of the vehicle. The trial judge then concluded that BJ had “not engaged in an intentional course of conduct that had created a realistic risk of danger.” As a result she acquitted BJ of both charges.

The Crown successfully appealed to the summary conviction appeal court. The summary conviction appeal court held:

that the trial judge committed a palpable and overriding factual error in concluding that there was no realistic risk of danger to persons or property when the police arrived on the scene. Noting the "low threshold" of establishing that the conduct of the accused in relation to his motor vehicle created a realistic risk of danger to public safety, the appeal judge set aside the trial judge's decision and registered convictions on both counts against the appellant.  @para 5

At the Court of Appeal BJ advanced two grounds of appeal: 2016 ONCA 199. First, that the summary conviction appeal judge “was not entitled to interfere with the trial judge’s finding that there was no realistic risk of danger to the public, as deference is owed to findings of fact.”

Second, even if the appellate judge was entitled to interfere with the trial judge’s finding, “the risk identified by the appeal judge is properly characterized as ‘theoretical’ and not ‘realistic’.” @para 6

With respect to the first ground the Court of Appeal held that the trial judge embarked upon the wrong inquiry. The trial judge framed her conclusion as follows BJ had done "all that could be done to reduce the risk".

That of course is not the correct or even “pertinent inquiry. The question the court must determine is whether any realistic risk of danger was created.” @para 12

Juriansz JA writing for a unanimous Court held that:

given the incorrect analysis of the trial judge, the appeal judge was entitled to interfere with her conclusion and to find that the risk was realistic, and not merely theoretical. On the facts found by the trial judge, I would conclude that he was correct in doing so.

While the application of the standard of review is a question of law, this proposed argument has no merit and cannot provide a basis for leave to appeal.  @paras 13-14

On the second ground the Court held that whether the risk was realistic or theoretical is not a question of pure law and therefore could not be advanced on appeal. @para 16

The ONCA refused leave to appeal. @para 17

Although impaired and over 80 cases are some of the most demanding offences to prove from an evidentiary perspective as is clear from the various rulings in the present case, the outcome here is one of pure and simple common sense.

BJ was in the driver’s seat of his car. The car was in a lane on a ramp on a highway. The key was in the ignition. There can be no question that such a vehicle poses a risk of danger to other motorists. Further exacerbating this risk was the fact that BJ was impaired by alcohol and his blood alcohol concentration was nearly twice the legal limit. Nothing other than realistically dangerous about that

LT

Quotable Quote: A Car is no Place to Hang When you're Drunk!

Chelsea Kelly was convicted by Justice Adams of one count of impaired care and control of a motor vehicle; Kelly appealed her conviction.  In dismissing the appeal, Kane J provides a quotable quote in relation to care or control cases: R v Kelly, 2011 ONSC 2258.

Kane J outlined the salient facts as follows:

The appellant drove her automobile and her girlfriend to a bar on the evening of May 3, 2009. The appellant parked her car at the bar. She and her friend went into the bar and consumed some alcohol. They stayed at this bar for some 3 to 4 hours. The appellant and this friend then left the bar and went with others to a house party where they stayed for between one-half to one hour. The appellant's car had been left at the bar and not driven to the house party. The appellant and her girlfriend left the house party with the intention to walk to the girlfriend's home. The girlfriend, wearing shorts and a tank top, became cold as they walked. It was decided to stop at the appellant's car to warm up. The appellant testified that, after warming up in the car, it was her intention to then walk to the girlfriend's home some ten minutes away from the car.

The appellant used her keys and unlocked her car. The appellant sat in the driver's seat. Her girlfriend sat in the front passenger seat. The appellant placed the keys into the ignition and started the motor. Neither woman wore a seat belt. The two women remained in the vehicle with the motor running for approximately ten minutes whereupon two police officers at 04:08 hours noticed the stationary car with running lights on. Police detected the smell of alcohol from the appellant. The physical actions by the appellant during questioning by police suggested to the officers that she was impaired from alcohol. The appellant was arrested and taken to the police station. The breath analy-sis of the appellant conducted at approximately 05:15 hours were 113 milligrams and 108 milligrams of alcohol in 100 millilitres of blood. A charge under s. 253(a) of care or control of a vehicle was thereupon issued [paras 2-3] [emphasis added].

In convicting the appellant, Adams J accepted the appellant's evidence that she did not intend to drive, but noted that "her intention to drive is not an element of the charge...and not therefore determinative of guilt" [para 35].  The trial judge concluded, as summarized by Kane J on appeal, as follows:

She was in the driver's seat, the car motor was running and the girlfriend's house was merely a few blocks away. The capacity to do so was just a gear shift away. The judge further held that the car could easily have been set in motion unintentionally [para 14].

On appeal the appellant argued, inter alia, that (i) there was no evidence to conclude that there existed a realistic risk that she would change her mind and drive and (ii) that the trial judge’s conclusion that the vehicle could have accidentally or unintentionally been put in drive was unreasonable.

In rejecting these grounds, Kane J, offered the following quotable quote:

Parliament could have limited s. 253(1) to prohibit care or control of a motor vehicle to acts sufficient to create risk to persons or property. This is in response to the appellant's argument that the appellant's actions constituted no such risk as only an intentional or accidental shifting of the gear out of Park would have created such vehicle movement and resulting risk. In fact, movement of this car and the resulting risk to person or property increased with every action of the appellant as she unlocked the car, sat in the driver's seat, inserted the key in the ignition, started the motor and intentionally left the motor running. The risk to person and property increased with these actions. The realization of the risk was but "a gear shift away," whether that shift occurred by accident, mechanical fault or a decision to drive home.

Regardless of risk, the appellant was exercising control of and operating the mechanical, electrical and motor system of the vehicle [emphasis added] [paras 72-73].

 

DG Mack