



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnston, 2016 ONCA 834

DATE: 20161108

DOCKET: C61557

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Michael Johnston

Respondent

Katherine Beaudoin, for the appellant

Solomon Friedman, for the respondent

Heard: November 4, 2016

On appeal from the decision of the Summary Conviction
    Appeal Court dated December 9, 2015 by Justice Kevin B. Phillips of the
    Superior Court of Justice, allowing the appeal from the conviction entered on April
    23, 2015 by Justice J.D. Waugh of the Ontario Court of Justice.

ENDORSEMENT

[1]

The Crown seeks leave to appeal and, if leave be granted, appeals the
    summary conviction appeal courts (the SCACs) ruling allowing the
    respondents appeal from his conviction for having care or control of his
    vehicle while impaired, under s. 253(1)(a) of the
Criminal Code
,
    R.S.C. 1985, c. C-46.

[2]

The Crown contends that the SCAC impermissibly substituted its own view
    of the evidence about whether the respondent was in
de facto
care or control
    of his vehicle for that of the trial judge.  In particular, the SCAC
    unjustifiably interfered with the trial judges factual finding that, in all
    the circumstances, the respondent posed a realistic risk of danger to persons
    or property because, in his highly inebriated state, he may have changed his
    mind and decided to drive his vehicle.  In so doing, the Crown says, the SCAC
    committed a clear error of law and exceeded its jurisdiction.

[3]

Further, the Crown argues, the SCAC judge essentially allowed the
    respondents appeal on a ground neither advanced nor argued by either of the
    parties  the insufficiency of the trial judges reasons.

[4]

The Crown submits that, in light of these clear errors and given the
    binding nature of the SCACs decision on lower courts, the test for leave to
    appeal to this court is met on either or both branches of the test set out in
R.
    v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641.

[5]

We agree that the test for leave is met in this case.  Leave to appeal
    to this court may be granted where there is a clear error in the decision
    sought to be appealed, even if it cannot be said that the error has
    significance to the administration of justice beyond the specific case before
    the court:
R. v. R.R.
, at para. 32.  Here, as we will explain, the
    SCAC did make clear errors of law.  Moreover, unless corrected on appeal, the
    SCACs decision may well have impact, as a binding precedent, on care or control
    driving cases litigated in the provincial court, where hundreds, if not
    thousands, of such cases are routinely prosecuted.  The granting of leave to
    appeal is therefore warranted.

[6]

We are also persuaded that, on the merits, the SCACs decision cannot
    stand.

[7]

On the trial judges uncontested findings: i) the respondent was
    inebriated; ii) he had repeatedly called a tow truck to come and fix the lock
    on his car so that he could gain entry to the car using his keys; iii) although
    the respondent planned to have his wife come and pick him up, and had called
    his wife in that regard, he did not tell his wife where or when to pick him up;
    and iv) the respondent continued to drink in a bar while awaiting the arrival
    of the tow truck.

[8]

In these circumstances, the trial judge found that the respondent had
    left his options open as to how to get home from the bar, his stated plan to
    have his wife drive him home was not implemented, and there was a realistic
    risk of danger because the respondent could change his mind and decide to drive
    himself home in his inebriated state.

[9]

There is no suggestion that these key findings are tainted by palpable
    and overriding error.  To the contrary, they are fully supported by the
    evidentiary record.  As a result, it was not open to the SCAC to interfere with
    these findings and to substitute its own findings and assessment of the
    evidence for those of the trial judge.

[10]

However, that is precisely what the SCAC did in at least two material
    respects.  First, the SCAC did not accept the trial judges factual finding
    that the respondents alternate plan to get home had not been implemented,
    instead observing that it was an error to assume that a plan for alternatives
    to driving must be fully implemented before it is entitled to be considered as
    possibly raising a reasonable doubt with respect to risk.

[11]

With respect, this is an inaccurate reading of the trial judges
    reasons.  The trial judge made no finding that the respondents alternate plan
    had not been fully implemented.  Rather, for reasons he clearly explained, he
    found, in effect, that the plan had not been meaningfully implemented at all. 
    There was no basis for appellate interference with this factual finding.

[12]

Second, the SCAC also did not accept the trial judges finding of a
    realistic existing risk that the respondent could change his mind and drive. 
    It appears that the SCAC concluded that this finding was based only on the
    respondents state of intoxication.

[13]

This, too, reflects a misapprehension of the trial judges reasons.  The
    trial judges reasons make it clear that his risk assessment was based on his
    consideration of several relevant factors including, but not limited to, the
    appellants state of intoxication.  His factual finding of a realistic, clear
    and present risk was open to him on the record.  It was also reasonable on the
    facts of this case.

[14]

Finally, on multiple occasions in its reasons, the SCAC questioned the
    adequacy of the trial judges reasons, as support for interfering with his
    ruling.  However, the parties did not challenge the sufficiency of the trial
    judges reasons on the appeal before the SCAC.  Nor were they invited to make
    submissions on this issue.

[15]

In any event, apart from these procedural fairness concerns, when the
    trial judges reasons are read in the context of the record, as they must be,
    it is apparent why he decided as he did.  This is all that is required to meet
    the sufficiency of reasons standard.

[16]

Accordingly, there was no room for appellate interference with the trial
    judges decision based on any perceived material deficiency in his reasons.

[17]

For the reasons given, the appeal is allowed, the order of the SCAC is
    set aside, and the conviction entered by the trial judge is restored.

J.C. MacPherson J.A.

E.A. Cronk J.A.

David Watt J.A.


