



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O'Neill, 2016 ONCA 307

DATE: 20160427

DOCKET: C58587

Strathy C.J.O., Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hugh ONeill

Applicant

Frank Miller, for the applicant

Matthew Asma, for the respondent

Heard: April 22, 2016

ENDORSEMENT

[1]

The applicant was convicted in the Ontario Court of Justice under s. 253(1)(a)
    and (b) of the
Criminal Code
of having care and control of his vehicle
    while his ability to drive was impaired by alcohol and of having care or
    control when his blood alcohol level exceeded 80 milligrams of alcohol in 100
    millilitres of blood. His appeal to the Superior Court of Justice was
    dismissed. He seeks leave to appeal to this court on a question of law pursuant
    to s. 839(1) of the
Criminal Code
.

[2]

In the early hours of a December morning, police found the applicant asleep
    in the drivers seat of his truck, parked in a lot outside an industrial
    building in London, Ontario. The key was in the ignition and the truck was
    running. It took a while for the officer to rouse him. When he awoke, he
    demonstrated signs of impairment and the officer formed the opinion that the
    applicants ability was impaired by alcohol. Testing detected blood alcohol
    levels of 137 and 136 milligrams per 100 millilitres.

[3]

At issue in the courts below was the effect of the statutory presumption
    contained in s. 258(1)(a) of the
Code
, which provides that the occupant
    of the drivers seat of a vehicle is deemed to have the care or control of the
    vehicle unless they establish on a balance of probabilities that they did not
    occupy that seat for the purpose of setting the vehicle in motion.

[4]

The applicants position was that after a night of drinking he was
    driven back to his truck by friends and went to sleep in the drivers seat of
    the truck with the intention of sleeping it off until he was sober. He
    testified that his plan was to get up the next morning and go have a coffee
    and some, ah you know a bagel or whatever, my usual routine and to drive to
    his work site in St. Thomas, Ontario. He woke up during the night to urinate,
    returned to the truck, got into the drivers seat, put the key in the ignition,
    started the vehicle and turned on the heater for warmth. He then went to sleep
    in the drivers seat with the vehicle running and the gearshift apparently in
    the park mode.

[5]

The trial judge found that the Crown was entitled to the benefit of the
    presumption in the
Code
and that the applicant had failed to rebut the
    presumption because he occupied the drivers seat with the intention of setting
    the vehicle in motion in the morning, once he had sobered up.

[6]

In any event, the trial judge held that the applicant was in care and
    control of the vehicle with the attendant risk that it could be put in motion and
    could become dangerous. There was no reasonable doubt of his guilt, quite apart
    from the presumption.

[7]

The Summary Conviction Appeal Court (SCAC) judge dismissed the appeal.
    The applicant argued that his evidence at trial was capable of being
    interpreted to support the conclusion that he was going to get out of the truck
    the next morning to get coffee and did not intend to immediately put the
    vehicle in motion. The SCAC judge, relying on
R. v. Boudreault
, 2012
    SCC 56, held that a stated intention to drive later did not automatically
    rebut the statutory presumption. She said, at para. 24:

A lack of a contemporaneous
    intention to drive is not enough on its face to alleviate a finding of care
    and control and therefore rebut the presumption found in s. 258(1)(a) of the
Criminal
    Code
.

[8]

In what the respondent describes, accurately in our view, as
obiter
,
    the SCAC judge continued, at para. 27:

even if the appellant as he stated did not have an intention
    to drive at the time he was found by the police in an inebriated state, if
    there still existed,
inter alia
, a realistic risk of danger at that
    time, then a finding of care or control is still at least possible and
    consequently, the presumption has not been rebutted.

[9]

The respondent acknowledges that this statement is problematic, because
    it suggests that the presumption must be rebutted by evidence of the absence of
    risk of danger, independent of the absence of an intention to drive.

[10]

As
    the Supreme Court observed in
Boudreault
,

at para. 41, the
    intention to set the vehicle in motion suffices
in itself
to create
    the risk of danger contemplated by the offence of care or control. Although
    the presumption may be rebutted by proof of the absence of the requisite
    intention, the risk of danger remains relevant,
not
for the purpose of rebutting the presumption, but for the purpose of
    determining whether the accuseds conduct in relation to the vehicle presents a
    realistic risk of danger to persons or property so as to establish care or
    control under s. 253(1) of the
Code
:
Boudreault
,

at
    para. 41.

[11]

The
    test for leave under s. 839 of the
Code
is set out in
R. v. R. R
.,
    2008 ONCA 497, and
R. v. Rulli
, 2011 ONCA 18. Leave is available only
    on a question of law and is granted sparingly. The key considerations are (a) the
    strength of the proposed appeal and (b) the significance of the proposed
    question of law to the administration of justice in the province, beyond the
    circumstances of the particular case.

[12]

In
    our view, the test has not been met.

[13]

First,
    the grounds of appeal are weak. The trial judge found that the applicant had
    failed to discharge the burden of proof to rebut the presumption. The applicant
    did not satisfy the trial judge that it was his intention to leave the vehicle
    and to walk to some unidentified place for breakfast. The applicants evidence
    on this point was ambiguous at best and he has identified no palpable and
    overriding error in the trial judges assessment of that evidence.

[14]

Second,
    the issue of law is well-settled by the Supreme Court of Canada in
Boudreault
and in
R. v. Whyte
, [1988] 2 S.C.R. 3, as well as in this courts
    decision in
R. v. Hatfield
(1997), 33 O.R. (3d) 350
.
The SCAC
    judges
obiter
comments were not necessary to her conclusion, and have
    not, to our knowledge, been followed in other cases. We see no issue of
    significance.

[15]

For
    these reasons, the motion for leave to appeal is dismissed.

G.R. Strathy C.J.O.

G. Pardu J.A.

M.L. Benotto J.A.


