



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McClennan, 2018 ONCA 542

DATE: 20180612

DOCKET: C65034

Doherty, Pepall and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jeff McClennan

Respondent

David Friesen, for the appellant

Stephen Menzies, for the respondent

Heard and released orally: June 6, 2018

On appeal from the decision dated May 25, 2017 by Justice
    Thomas Bielby of the Superior Court of Justice sitting as a Summary Convictions
    Appeal Court, with reasons reported at 2017 ONSC 3223, allowing an appeal from
    the convictions entered on April 25, 2016 by Justice Norman S. Douglas of the
    Ontario Court of Justice.

REASONS FOR DECISION

[1]

The Crown appeals, with leave,
[1]
from the decision of the Summary Conviction Appeal Judge (SCAJ) that allowed
    the respondents appeal from conviction and ordered a new trial.

[2]

The respondent was convicted after trial of impaired care or control of
    a motor vehicle, contrary to s. 258(1)(a) of the
Criminal Code
.  The
    basic facts are that the respondent was passed out in the drivers seat of his
    vehicle in a strangers farmyard.  The engine was running and the respondent
    was wearing his seatbelt.  The owner of the farm discovered the respondent and
    called the police.  The respondent admitted at trial that he had drunk a bottle
    and a half of wine while sitting in the vehicle, in addition to two beers
    earlier in the day.  At the police station, he provided two breath samples that
    resulted in readings of 210 and 200 milligrams of alcohol in 100 millilitres of
    blood  2 ½ times the legal limit.

[3]

The respondent gave evidence at his trial that it was not his intention
    to drive.  He had pulled into the farmyard because of bad weather.  Since he
    knew that it was unsafe to drive, he decided to drink some of the wine that he
    had with him.  He was unclear in his evidence as to what his ultimate plan was
    in terms of getting home.

[4]

The trial judge expressly rejected the respondents evidence.  He found
    the respondent to be evasive in his evidence and that his evidence overall did
    not make sense.

[5]

On appeal, the SCAJ correctly found that the conviction was fact driven
    and that intervention was only warranted if the trial judge made a palpable and
    overriding error.  The SCAJ then identified two such errors.  One was the trial
    judges reference to a witness evidence and a perceived conflict between it
    and the respondents evidence regarding his consumption of two beers earlier in
    the evening.  The other was related to the trial judges conclusion that the
    respondent would have driven home if the weather improved  something that the
    SCAJ referred to as a possible error.  The SCAJ then concluded that these
    errors rose to the level of palpable and overriding errors and allowed the
    appeal.

[6]

In our view, the SCAJ erred in his characterization of the errors, that
    he found, as palpable and overriding.  The first asserted error was arguably not
    an error but simply represented a conflation, through the wording used by the
    trial judge, of two separate pieces of evidence.  In any event, any error
    regarding the consumption of the two beers had nothing to do with the central
    issue that the trial judge had to determine.  The second asserted error was not
    an error at all. It was the trial judges conclusion on the evidence regarding
    the respondents intention. It was a conclusion that the trial judge was
    entitled to reach on the evidence that was before him.

[7]

In our view, there was no proper basis for the SCAJ to interfere with
    the conclusion that the trial judge reached on the evidence, specifically, that
    there was a realistic risk, on these facts, that the respondent would have
    operated the motor vehicle.  In any event, aside from that issue, having
    rejected the respondents evidence it followed that the respondent had not
    rebutted the presumption of care or control of the vehicle that arises by
    virtue of s. 258(1)(a) and thus was properly convicted.

Conclusion

[8]

We would allow the appeal, set aside the decision of the SCAJ, and
    restore the convictions and sentence.

Doherty J.A.

S.E. Pepall J.A.

I.V.B. Nordheimer J.A.





[1]
Leave to appeal was granted by endorsement dated February 26, 2018 (Docket
    M48003).


