


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Smits, 2012
    ONCA 524

DATE: 20120801

DOCKET: C53404

Laskin and Blair JJ.A. and Brown R.S.J. (
Ad
    Hoc
)

BETWEEN

Her Majesty the Queen

Appellant

and

Jody Smits

Respondent

Benita Wassenaar, for the appellant

Diana Lumba, for the respondent

Heard: February 16, 2012

On appeal from the decision of the summary conviction
    appeal court dated February 4, 2011 by Justice Patrick J. Flynn of the Superior
    Court of Justice, allowing the appeal from the conviction entered on January 7,
    2010 by Justice Margaret F. Woolcott of the Ontario Court of Justice.

Brown R.S.J. (
ad hoc
):

I.

INTRODUCTION

[1]

This is a Crown appeal from a successful defence summary conviction
    appeal.  The respondent, Jody Smits, was found guilty at trial of having care
    or control of a motor vehicle while impaired and over 80 contrary to s.
    253(1)(a) and s. 253(1)(b) of the
Criminal Code
, R.S.C. 1985, c. C-46,
    respectively.  The trial judge entered a conviction on the impaired charge and
    stayed the finding of guilt on the over 80 charge.  On appeal, the summary
    conviction appeal judge reversed the trial judge on the impaired charge and
    entered an acquittal.

[2]

The Crown seeks leave to appeal, and if leave is granted, appeals from
    the summary conviction appeal court judgment and asks this court to restore the
    conviction and sentence.

[3]

For the following reasons, I would grant leave to appeal, allow the
    appeal and restore the conviction and sentence.

II.

BACKGROUND

[4]

This was not an unusual fact situation seen by judges in the criminal
    courts of our province.  It involved the often litigated issue of whether an
    impaired occupant of a motor vehicle, who is found asleep or passed out in the
    vehicle, is nevertheless in care or control of that vehicle.

[5]

In this case, the respondent was found passed out in the rear seat of a
    minivan.  The van, which was not owned by the respondent, was parked on the
    side of a country road.  The key was in the ignition, but the engine was not
    running.  Impairment was conceded at trial.  The respondent provided two breath
    samples that well exceeded the legal limit.  Although certain of his statements
    to the police were admitted into evidence, the respondent did not testify nor
    did he call any evidence in his defence.

[6]

The respondent was convicted pursuant to s. 253(1)(a) of the
Criminal
    Code
of having care or control of a motor vehicle while impaired.  He
    received a sentence of four months imprisonment in addition to credit given for
    pre-trial custody.  The incarceration was to be followed by two years probation
    and a three year driving prohibition.  The respondent also pleaded guilty to
    breaching his probation by consuming alcohol.

[7]

In overturning the respondents conviction, the summary conviction
    appeal judge held that the trial judge had erred in concluding the respondent
    had care or control of the motor vehicle.  He found that it was mere
    speculation to say that the respondent would still be impaired at the time he
    awoke in the motor vehicle and decided to drive.

[8]

It may be helpful to briefly summarize the facts and the decisions in
    the trial court and the summary conviction appeal court below.

(i)

The Facts

[9]

The respondent was found passed out in the back of a van on the morning
    of August 22, 2009.  The van was parked on the side of Studiman Road, a county
    road in a rural area near Cambridge.  The roadway was narrow, with no shoulder,
    and the van was parked with its passenger side wheels on the grass and the left
    rear corner was still on the road.

[10]

A
    nearby resident woke up that morning, looked out his window and saw a minivan
    parked in the ditch.  It was around 7:15 a.m.  He went to get dressed for
    work.  When he came back to the window, the van was still there.  It was
    unusual to see a vehicle parked there.  As the resident pulled out of the
    driveway on his way to work, he stopped beside the van and walked over to it. 
    He looked through the vans front window and saw a pair of legs and shoes on
    the back seat.  A cell phone was lying open on the otherwise empty drivers
    seat.  He banged on the window.  When there was no movement, he began to worry
    that the vans occupant might be dead.  He called the police on his way to work
    at 8:26 a.m.

[11]

Three
    police officers arrived on scene just before 8:45 a.m.  The van was not
    running, but one of the officers touched the hood and observed that it was
    warm.  The officers looked into the van and saw the respondent passed out on
    the rear seat.  They knocked on the window in an attempt to rouse the
    respondent, but he did not awaken.  One of the officers entered the van through
    the unlocked drivers side door.  He saw the cell phone flipped open on the
    drivers seat and noted that the keys were in the ignition.  He tried to rouse
    the respondent by calling out to him.  After several attempts, the respondent
    awoke.  He appeared to be disoriented and was directed to exit the van.

[12]

The
    respondent stumbled as he got out of the van.  He looked haggard.  His eyes
    were bloodshot and glassy, his breath smelled of alcohol, and he swayed.  He
    was described as obviously intoxicated.  He had scabbed cuts around his right
    eye and on his nose, and his jeans were torn.  The respondent was placed under
    arrest at 9:00 a.m. for impaired care or control of a motor vehicle.

[13]

The
    officers made notes of what they observed in the van:  a glass of orange juice
    in the centre cupholder, a partially empty unsealed bottle of vodka between the
    two front seats, an open can of Budweiser on the floor in the rear passenger
    area, an empty Budweiser can underneath the drivers seat, and a red duffle bag
    on the floor with another can of beer on top of it.  One of the officers also
    found an envelope containing a birth certificate and social insurance card,
    both in the name of Jody Smits, and a printed resume with the name Jody Smits
    on it.  The officers noted that the van had an opening between the back seat
    and the front seats where a middle seat may have been removed.  A person could
    move up to the drivers seat from the back seat area with no obstruction.

[14]

After
    taking an inventory of the van, one of the officers called a towing company to
    remove the vehicle.  The respondent asked the officers to take his cell phone
    out of the van first.  An officer did so, and noted that the phones battery
    was almost dead.  When the tow truck arrived, the driver was able to start the
    van with one turn of the key, and drove it off the grass onto the roadway
    without any difficulty.  The van had an automatic transmission.

[15]

At
    9:10 a.m. the respondent was transported to the nearest available police
    station, where he provided two breath samples.  The first, administered at
    10:24 a.m., registered a reading of 147mg of alcohol in 100ml of blood and the
    second, administered at 10:49 a.m., registered 138mg.  The respondent told the
    police he had also taken two Percocets.  In a statement recorded on DVD, the
    respondent denied having driven the van, but admitted to sitting in the
    drivers seat just before he passed out.  He said that a friend had driven him
    to where the van was parked, but the friend had left. He would not provide his
    friends name to the police.  He said he did not own the van but would not say
    who did own the van.  He insisted that he was just a passenger passed out in
    the van.

(ii)

The
    Trial Decision

[16]

At
    trial, the Crown sought to establish that the respondent had care or control of
    his vehicle by relying on the risk that a person might change his or her mind
    and drive while impaired.  In the Crowns submission, there was sufficient
    evidence to prove beyond a reasonable doubt that there was a risk the
    respondent would have awoken and attempted to drive his van while still
    impaired.

[17]

As
    noted, the respondent conceded impairment at trial.  Counsel for the respondent
    argued that the Crowns position was based on speculation, and that there was
    no evidence of a risk that the respondent would have set the vehicle in motion.

[18]

The
    trial judge instructed herself that she could only find care or control based
    on the change of mind argument if she were satisfied there was a concrete and
    tangible likelihood that the respondent would have decided to drive while
    still impaired.  In assessing whether the respondent had presented such a
    likelihood, the trial judge emphasized the following findings of fact:

·

The respondents ability to operate a motor vehicle was impaired
    by both a drug and alcohol;

·

The respondent was the sole occupant of the van at the time in
    question;

·

The keys were in the vans ignition;

·

There was nothing to suggest that any other person was associated
    with the van at any time after 7:00 a.m. and nothing to suggest other than the
    rantings of the respondent, that any other person had been associated with
    the van prior to the point in time when it had arrived at that location;

·

The respondent had entered the van with the intention of
    returning to his residence in Barrie and had no alternate plan for getting
    home;

·

In the rural area where the van was found, it would have been
    difficult, if not impossible, for the respondent to arrange for alternate
    transportation absent calling someone to come pick him up;

·

After the van was parked at the roadside, the respondent sat in
    the drivers seat and contemplated driving, but decided against it;

·

The respondents attitude was volatile and changeable as recorded
    on a DVD filed in evidence; his judgment was clearly impaired.

[19]

In
    addition to the above-noted findings of fact, the trial judge also noted that
    the respondent had ready access to additional alcohol, there being more open
    beer and open vodka in the van.  There was no basis for supposing that the
    respondent had decided to simply wait out the impairment before he drove
    again.

[20]

Even
    if the respondent had been trying to wait out the impairment, the trial judge
    held that [m]erely because he was difficult to rouse does not support an
    inference that he would have remained passed out until he had achieved a state
    of sobriety and thus not pose a risk to set the motor vehicle in motion while
    impaired.

[21]

The
    trial judge held, on an analysis of all the circumstances, that there was a
    concrete and tangible likelihood the respondent would have woken up  and
    decided he was going to move the van, and that this would occur while he was
    still impaired.  She found that the circumstances represented exactly the kind
    of danger that was contemplated by the framers of the care or control
    legislation.

(iii)

Summary Conviction Appeal Decision

[22]

The
    respondent appealed his conviction.  At the summary conviction appeal court the
    respondent submitted the trial judge had erred in finding that he was in care
    or control of his motor vehicle.  Specifically, he argued that an individual
    found asleep in the back seat of a vehicle does not create the public risk that
    s. 253(1) was designed to prevent and there was no more than a mere possibility
    that he would have changed his mind and endangered society by choosing to drive
    while impaired.

[23]

In
    response, the Crown argued that the trial judges finding of guilt was fully
    supported by the evidence adduced at trial and that it was not the role of the
    summary conviction appeal court to retry the case.

[24]

In
    reversing the trial judge, the summary conviction appeal judge found the Crown
    had failed to prove that the respondent had been in care or control of his
    vehicle.  He held that the findings of the trial judge were based on
    speculation.  The key portions of the summary conviction appeal judges reasons
    are as follows:

The difficulty for this court is that a careful analysis of
    Justice Woolcotts core reasoning, the ratio of her decision to which I have
    referred earlier, does show a certain measure of speculation.  That speculation
    comes when she says there was a concrete and tangible likelihood that Mr. Smits
    would cease to be passed out and would decide that he was going to move the
    van.  And importantly, that that would occur at a time when his ability to do
    so, that is to say to operate the van, was impaired by the consumption of
    alcohol and that represents the danger that is considered.



There is no judicial notice taking by Justice Woolcott of [the]
    rate of elimination.  We know not when the van got in that position.  We know
    when it was discovered.  And accordingly, it is mere speculation to say that
    the alcohol could not have been eliminated from his system by the time he drove
    the car because none of us knows when any of that would happen.

[25]

The
    summary conviction appeal judge allowed the appeal.

III.

ISSUES

[26]

The
    Crown advances two arguments on this appeal and submits that:

(i)      This is a
    proper case for leave to appeal to this court on summary conviction proceedings
    pursuant to s. 839 of the
Criminal Code
; and,

(ii)      The
    summary conviction appeal judge erred in law by applying an incorrect standard
    of review and substituting his opinion for that of the trial judge on the issue
    of whether the respondent had care or control of a motor vehicle in this case.

IV.

ANALYSIS

Issue No. 1:  Leave to Appeal

(i)

Crown Application for Leave

[27]

This
    court established in
R. v. R.(R.)
, 2008 ONCA 497, 90 O.R. (3d) 641,
    and has repeated numerous times since then, that leave to appeal pursuant to s.
    839 should only be granted in two distinct categories of cases:

(i)

Where the merits of the proposed question of law are arguable, even if
    not strong, and the proposed question of law has significance to the
    administration of justice that goes beyond the particular case.

(ii)

Where there appears to be a clear error even if it cannot be said that
    the error has significance to the administration of justice beyond the
    particular case.

[28]

Moreover,
    at para. 27 of
R.(R.)
, Doherty J.A. emphasized that access to this
    court for a second appeal should be limited to those cases in which the applicant
    can demonstrate some exceptional circumstance justifying a further appeal.

[29]

The
    Crown submits that several factors favour leave to appeal in this case.  To
    begin with, the Crown submits that its arguments for error are strong.  As
    well, the Crown submits that although the issues raised on this care or control
    case are highly fact specific, it is also an area of law that is highly
    litigated in the lower courts.  Many of the frequently cited cases are lower
    court decisions.  The Crown submits that it would be beneficial to have
    guidance from this court on the scope of the change of mind aspect of the
    risk of danger concept that underpins the care or control jurisprudence.

[30]

In
    response, the respondent argues that the present case cannot be brought under
    either of the two permissible categories to warrant granting leave to appeal to
    this court.  That is, its issues are not sufficiently meritorious, nor does it
    raise a significant question for the administration of the justice system.

[31]

In
    particular, the respondent submits that the question of law posed by the Crown
    is not one that transcends the peculiar facts of this case.  The respondent
    argues that while the factual matrix of any case is of significance to the
    individual person or persons charged, in this case the legal soil of the care
    or control jurisprudence has been well-tilled.  The respondent submits that no
    new principle is advanced here, rather, only the application of well
    established principles to the singular circumstances of this case.

[32]

I
    am persuaded that the issues raised in this appeal have significance to the
    administration of justice beyond the facts of this case.  How the courts have
    interpreted the issue of care or control has generated significant
    jurisprudence at the lower court level in this province.  Not all of this
    jurisprudence has been consistent when dealing with the situation, as in this
    case, of an impaired occupant of a motor vehicle.  I am of the view that the
    summary conviction appeal judge erred in holding that the finding of the trial
    judge that the respondent was in care or control of the vehicle was based on
    speculation.  I am satisfied that, if left uncorrected, this error would have
    the potential to negatively affect many other care or control cases.

[33]

For
    these reasons, I would grant leave to appeal on the issues raised by the Crown.

(ii)

Additional
    issue

[34]

As
    an additional issue, the respondent seeks leave to argue that there was a
    fundamental flaw in the reasoning of the trial judge by her failure to analyze
    the exculpatory statements of the respondent in accordance with
R. v.
    W.(D.),
[1991] 1 S.C.R. 742.  This legal argument was not raised at trial
    nor does it appear in the respondents Notice of Appeal or either of the
    parties factums filed before the summary conviction appeal court.  The summary
    conviction appeal judge himself only makes a brief reference to
W.(D.)
in his reasons on appeal and the
W.(D.)
issue is not the basis upon
    which the appeal was granted.

[35]

This
    court has stated in
R.R.
, at para. 38, that generally speaking it will
    not entertain legal arguments that are not advanced at the first level of
    appeal.  In this case, however, I would exercise the courts discretion in
    favour of permitting the respondent to raise this supplementary argument.  It
    appears that this issue was raised in oral argument, at least, at the first
    level of appeal; there was no tactical reason for not raising it initially; and
    the trial record is sufficient:  see
R. v. Sweeney
(2000), 50 O.R.
    (3d) 321 (C.A.), at paras. 31-40.

[36]

Essentially,
    the respondents argument is that although the respondent did not testify and
    called no evidence, there were certain exculpatory statements of the respondent
    introduced into evidence by the Crown that were capable of supporting a
    reasonable doubt on the central issue of care or control.  Accordingly, the
    respondent submits that the failure of the trial judge to consider those
    statements in accordance with
W.(D.)
is a fatal error on the part of
    the trial judge and also fatal to the Crowns success on this appeal.

[37]

There
    is now no doubt that in light of this courts decision in
R. v. D.(B.),
2011
    ONCA 51, at para. 114, that, even if an accused does not testify or call any
    evidence, where there are credibility findings on a vital issue to be made between
    conflicting evidence arising out of evidence favourable to the defence in the
    Crowns case, the trial judge must relate the concept of reasonable doubt to
    those credibility findings.  The trial judge must do so in a way that makes it
    clear that it is not necessary for the trier of fact to believe the evidence
    favourable to the defence on that trial issue.  Rather, it is sufficient if,
    viewed in the context of all the evidence, the conflicting evidence leaves the
    trier of fact in a state of reasonable doubt as to the accuseds guilt.  In
    that event, the trier of fact must acquit.

[38]

In
    fairness to the trial judge,
D.(B.)
had not been decided when she
    released her reasons for judgment.  This may account for why she did not refer
    to
W.(D.)
in this case where the accused did not testify nor call
    evidence.

[39]

Trial
    judges in a judge alone trial do not need to adhere slavishly to the
W.(D.)
formula.  It should, however, be clear from an examination of the reasons that
    at the end of the day the trial judge has had regard for the basic principles
    underlying the
W.(D.)
instruction:  see
R. v. Minuskin
(2000),
    68 O.R. (3d) 577 (C.A.), at para. 22.

[40]

The
    respondent argues that his statements to the police that another person had
    driven him to the location where the van was found and left him in the van (a
    person whom he would not identify) were capable of supporting a reasonable
    doubt on the vital issue of care or control.

[41]

An
    examination of the trial judges reasons makes it very clear that at no time
    could it be said that any adverse findings of credibility that the trial judge
    made in connection with the exculpatory statements of the respondent led her
    inescapably to a finding of guilt.

[42]

Indeed
    the opposite is true.  Her very careful reasons demonstrate a detailed consideration
    of all the evidence in the case, including the exculpatory statements of the
    respondent, from which she concluded she was not left in a state of reasonable
    doubt that the respondent had care or control of the motor vehicle.

[43]

Nor
    do her reasons in any way support the view that the Crown was in some way
    relieved of the burden of proving the case against the respondent beyond a
    reasonable doubt.

[44]

In
    my view, the reasons of the trial judge do not reveal any errors of law.  I am
    satisfied her reasons have regard for the principles articulated in
W.(D.)
. 
    Accordingly, although I would grant the respondent leave to raise this
    supplementary argument, for the reasons I have expressed, I would not give
    effect to it.

Issue No. 2: 
    Did the summary conviction appeal judge err in applying an incorrect standard
    of review and substituting his opinion for that of the trial judge on the issue
    of whether the respondent had care or control of the motor vehicle?

[45]

In
    order to answer this question, I think it is necessary to review the law
    regarding the care or control of a motor vehicle as it relates to the facts of
    this case briefly.

(i)

Care or Control of a Motor Vehicle

[46]

Section
    253 of the
Criminal Code
states:

(1) Every one commits an offence who operates a motor
    vehicle or vessel or operates or assists in the operation of an aircraft or of
    railway equipment or has the care or control of a motor vehicle, vessel,
    aircraft or railway equipment, whether it is in motion or not,

(a)  while the persons ability to operate the
    vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a
    drug; or

(b) having consumed alcohol in such a quantity
    that the concentration in the persons blood exceeds eighty milligrams of
    alcohol in one hundred millilitres of blood.

[47]

The
    Crown can establish care or control of a motor vehicle in a variety of ways. 
    The first is by relying on the statutory presumption found in s. 258(1)(a) of
    the
Criminal Code
.  Where an accused is found in the drivers seat,
    the accused must establish on a balance of probabilities that he or she did not
    occupy the drivers seat for the purpose of setting the vehicle in motion.

[48]

Where
    the statutory presumption is rebutted or is not available on the evidence, as
    in this case, the Crown can rely on what is commonly referred to as
de
    facto
or actual care or control.

[49]

The
mens rea
for having the care or control of a motor vehicle is the
    intent to assume care or control after the voluntary consumption of alcohol or
    a drug.  The
actus reus
is the act of assumption of care or control
    when the voluntary assumption of alcohol or a drug has impaired the ability to
    drive: see
R. v. Toews
, [1985] 2 S.C.R. 119, at pp. 123-124.

[50]

The
    real issue in this case turns on the
actus reus
of the offence of care
    or control.

[51]

In
R. v. Wren
(2000), 144 C.C.C. (3d) 374, at para. 16, this court
    considered the prior jurisprudence, including
Toews
and other leading
    decisions from the Supreme Court of Canada and described the
actus reus
of the offence of care or control in this way:

[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.

[52]

While
Wren
makes it clear that proof of a risk of danger is a necessary
    ingredient to establish the
actus reus
of care or control, the more
    difficult question is what kind of risk of danger is sufficient for the Crown
    to establish care or control.

[53]

Courts
    have answered this question by recognizing that danger can come in many forms. 
    It would appear that three risks of danger have been identified in the cases
    where an intoxicated individual uses a motor vehicle for a non-driving purpose:

(i)

The risk that the vehicle will unintentionally be set in motion: see
R.
    v. Ford
, [1982] 1 S.C.R. 231;

(ii)

The risk that through negligence a stationary or inoperable vehicle may
    endanger the individual or others:  see
R. v. Vansickle
, [1990] O.J. No.
    3235 (C.A.), affg [1988] O.J. No. 2935 (Dist. Ct.);

(iii)

The risk that the individual who has decided not to drive will change
    his or her mind and drive while still impaired:  see
R. v. Pelletier
(2000),
    6 M.V.R. (4th) 152 (C.A.).

[54]

This
    case deals with the third enumerated risk of danger:  the risk that the
    individual who has decided not to drive will change his or her mind and drive
    while impaired.

[55]

The
    Supreme Court addressed the rationale behind the change of mind ground for
    care or control in
Toews.
In
Toews,
at p. 126,

McIntyre
    J. quoted the following passage from
R. v. Price
(1978), 40 C.C.C.
    (2d) 378 (N.B.C.A.), at pp. 383-84
:

The mischief sought to be prohibited by the section as
    expressed by the wording is that an intoxicated person who is in the immediate
    presence of a motor vehicle with the means of controlling it or setting it in
    motion is or may be a danger to the public.  Even if he has no immediate
    intention of setting it in motion he can at any instant determine to do so,
    because his judgment may be so impaired that he cannot foresee the possible
    consequences of his actions.

[56]

In
    order to find care or control based on the change of mind ground, the Crown
    must prove there was risk that the respondent would have decided to drive while
    still impaired.  The risk does not have to rise to the level of probability. 
    The risk of danger stated by this court in
R. v. MacMillan
, 2005
    CanLII 16073, at para. 4, was the possibility that after the tow truck
    operator arrived and extricated the car, the respondent could have changed his
    mind and driven off, or inadvertently could have set the car in motion.

[57]

That
    being said, what risk of danger must exist to establish actual care or control
    based on the change of mind ground has been the subject of much debate.  The
    topic has generated considerable judicial attention in the courts below.  While
Wren
continues to be binding authority in this province,
Wren
has
    spawned a number of cases with differing definitions on the required risk of
    danger.

[58]

For
    example,  the courts below have variously described the risk of danger in cases
    dealing with the change of mind ground as a real risk see
R. v. Szymanski
(2009), 88 M.V.R. (5th) 182 (S.C.), at para. 91; realistic and tangible,
    not speculative or fanciful see
R. v. Sandhu
(2008)
,
76
    M.V.R. (5th) 305 (S.C.), at para. 71; a realistic risk see
R. v. Ferguson
(2005), 15 M.V.R. (5th) 74 (S.C.), at para. 24; and going beyond mere
    possibility, more than speculative and concrete and tangible, see
R.
    v. Ross
, 2007 ONCJ 59, 44 M.V.R. (5th) 275,  at para. 13.

[59]

However,
    since
Wren
, this court has not attempted to modify or qualify in any
    way the type of risk of danger required to establish care or control of a motor
    vehicle.  Cases such as
MacMillan, Pelletier, R. v. Quigley
, [2000]
    O.J. No. 3963 (C.A.)

and
R. v. Cadieux
(2004), 47 M.V.R.
    (4th) 53 (C.A.) have all followed the
Wren
definition of the
actus
    reus
of care or control.  While the court in
Quigley
referred to
    a real and obvious risk it was not attempting to re-define the risk of danger
    set out in
Wren
.  The court was simply observing the type of risk that
    existed on the particular facts of that case.

[60]

Although
    the courts below have applied different modifiers, what all the authorities,
    including this court, seem to be saying is that in order to establish that an
    accused has created a risk of danger in change of mind cases, the Crown must
    demonstrate a risk that an accused, while impaired, would change his or her
    mind and put the vehicle in motion.  That risk must be based on more than
    speculation or conjecture.  Saying that any person whose ability to operate a
    motor vehicle is impaired to any degree might change his or her mind is not
    sufficient.  The trier of fact must examine the facts and determine if there is
    an evidentiary foundation that such risk of danger exists.

[61]

I
    appreciate that this task is not without its challenges because a finding of
    whether a risk of danger arises in circumstances where an accused is not
    actually driving requires the trial judge to engage in an assessment of what in
    all the particular circumstances may occur in the not too distant future. 
    However, that is all part of the fact-finding process for the trier of fact.

[62]

Whether
    a risk of danger arises on the facts is determined by assessing  circumstantial
    evidence.  The following comments from Watt J.A. in his text
Watts Manual
    of Criminal Evidence
(Toronto:  Carswell, 2011), at p. 43, illustrate the
    approach that must be taken:

Where evidence is circumstantial, it is critical to distinguish
    between inference and speculation.
Inference
is a deduction of fact
    that may logically and reasonably be drawn from another fact or group of facts
    found or otherwise established in the proceedings.  There can be
no
inference without objective facts from which to infer the facts that a party
    seeks to establish.  If there are
no
positive proven facts from which
    an inference may be drawn, there can be no inference, only impermissible
    speculation and conjecture.

[63]

In
Szymanski
, at para. 93,  Durno J. provides an excellent, although
    non-exhaustive, list of factors a court might look at when engaging in a risk
    of danger analysis on the basis of circumstantial evidence:

(a)     The level
    of impairment, which is relevant to the likelihood of exercising bad judgment
    and the time it would take for the accused to become fit to drive;

(b)     Whether the
    keys were in the ignition or readily available to be placed in the ignition;

(c)     Whether the
    vehicle was running;

(d)     The
    location of the vehicle;

(e)     Whether the
    accused had reached his or her destination or if the accused was still required
    to travel to his or her destination;

(f)      The
    accuseds disposition and attitude;

(g)     Whether the
    accused drove the vehicle to the location where it was found;

(h)     Whether the
    accused started driving after drinking and pulled over to sleep it off or
    started using the vehicle for purposes other than driving;

(i)      Whether
    the accused had a plan to get home that did not involve driving while impaired
    or over the legal limit;

(j)      Whether
    the accused had a stated intention to resume driving;

(k)     Whether the
    accused was seated in the drivers seat regardless of the applicability of the
    presumption;

(l)      Whether
    the accused was wearing his or her seatbelt;

(m)    Whether the
    accused failed to take advantage of alternate means of leaving the scene;

(n)     Whether the
    accused had a cell phone with which to make other arrangements and failed to do
    so.

[64]

Adapting
    the language in
Wren
to the facts of this case, the question becomes 
    did the conduct of the respondent in relation to the motor vehicle create a
    risk that the respondent, while impaired, would put the vehicle in motion and
    thereby create a danger?

[65]

In
    all the circumstances, and considering the factors set out by  Durno J. in
Szymanski,
it was open to the trial judge in this case to conclude that the conduct
    of the respondent in relation to the motor vehicle created a risk that the
    respondent, while impaired, would put the vehicle in motion and thereby create
    a danger.

[66]

For
    the reasons that follow, I am of the view that in overturning this finding of
    the trial judge, the summary conviction appeal judge erred.

(ii)

Analysis
    of Grounds on Appeal

[67]

Under
    s. 686(1)(a)(i) and s. 822(1) of the
Criminal Code
, the jurisdiction
    of the summary conviction appeal judge to review the finding as to sufficiency
    of the evidence is limited.  A summary conviction appeal judge is not entitled
    to retry the case or to substitute his or her own view of the evidence for that
    of the trial judge.  A summary conviction appeal judge has no basis upon which
    to interfere with a trial judges findings unless they are unreasonable or
    unsupported by the evidence:  see
R. v. Grosse
(1996), 29 O.R. (3d)
    785 (C.A.), at pp. 791-92.

[68]

The
    Crown submits that the summary conviction appeal judge erred in law by applying
    an incorrect standard of review and substituting his opinion for that of the
    trial judge on the issue of whether the respondent had care or control of a
    motor vehicle.

[69]

The
    respondent takes a different view.  He submits that the summary conviction
    appeal judge did not apply an incorrect standard of review.  He submits that
    the summary conviction appeal judge correctly held that the trial judge engaged
    in speculation by failing to analyze when the respondent would have awoken and
    been in a position to change his mind about driving and his projected fitness
    level at the time.

[70]

I
    agree with the comments of the summary conviction appeal judge, who is an
    experienced judge, that these cases are, in his words, difficult to call. 
    However, the factors set out by Durno J. in
Szymanski
referred to
    above provide valuable assistance to trial judges in determining whether the
    requisite risk of danger has been established.

[71]

In
    this case, there was ample circumstantial evidence to support the trial judges
    conclusion that the respondent was in care or control of the van.  Her finding
    that the respondent would have decided to drive while still impaired was
    supported by the following:

·

The presence of the keys in the ignition and ease with which the
    van could be put into motion;

·

The respondents intention to return to his home in Barrie;

·

The vans remote location, the lack of available public
    transportation, and the respondents lack of any alternate plan to get home;

·

The degree of the respondents intoxication, which was such that
    his judgment was significantly impaired;

·

The respondents volatility in mood and response as evidenced
    in the DVD, which augmented concerns about his judgment;

·

The accessibility of the drivers seat;

·

The respondents earlier presence in the drivers seat when he
    contemplated driving.

[72]

With
    great respect to the summary conviction appeal judge, given the factual
    underpinnings of the conviction outlined above, there was no basis for the
    summary conviction appeal judge to interfere.  In this case, the findings of
    the trial judge were based on more than mere speculation.  There were a
    constellation of factors that were relied upon by the trial judge, apart from
    simply the breathalyzer readings of the respondent, in reaching her conclusion
    there was a risk of danger sufficient to establish the respondents care or
    control of the motor vehicle.

[73]

In
    my view, the summary conviction appeal judge exceeded the ambit of factual
    review permitted under s. 686(1)(a)(i) of the
Criminal Code
and
    thereby erred in law in overturning the findings of fact of the trial judge.

V.

CONCLUSION

[74]

For
    the foregoing reasons, I would grant leave to appeal, allow the appeal and
    restore the conviction and sentence.

Released: Aug. 1, 2012

JL                                                                     M.F.
    Brown R.S.J. (ad hoc)

I
    agree John Laskin J.A.

I
    agree R.A. Blair J.A.


