



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Balogun-Jubril, 2016 ONCA
    199

DATE: 20160309

DOCKET: C59594

Cronk, Juriansz and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jaffar Balogun-Jubril

Appellant

Michael W. Caroline, for the appellant

Christopher Chorney, for the respondent

Heard: February 12, 2016

On appeal from the decision of the Summary Convictions
    Appeal Court dated September 15, 2014 by Justice Kenneth L. Campbell of the
    Superior Court of Justice, allowing the appeal from the acquittals entered on June
    20, 2013 by Justice Cathy Mocha of the Ontario Court of Justice.

Juriansz J.A.:

[1]

The appellant seeks leave to appeal his convictions of having care or control
    of a motor vehicle while impaired and having a blood alcohol level that
    exceeded 80 mg of alcohol in 100 mL of blood, pursuant to ss. 253(1)(a) and (b)
    of the
Criminal Code,
R.C.S. 1985, c. C-46. He was acquitted at trial.
    The Crown appealed and the appeal judge found him guilty of both offences.

A.

Background

[2]

On July 29, 2012, at about 5:20 in the morning, the appellant was found
    in a deep sleep in the drivers seat of his car, which was stopped in a driving
    lane of the exit ramp from Highway 409 at Martin Grove Road. The engine was off
    and the vehicles transmission was in park, but the key was in the ignition.
    The emergency lights of the vehicle were flashing and there was a Ministry of Transportation
    truck parked behind the appellants vehicle. The appellant showed significant
    signs of impairment and was taken to the police station. He registered
    blood-alcohol readings of 150 and 160 at 6:41 a.m. and 7:27 a.m.

[3]

The appellant testified that his car ceased to operate at about 2:45 a.m.
    as he was driving. A mechanic testified that the appellants car was completely
    inoperable because it had leaked oil and the engine had seized.

[4]

The trial judge found that the appellant was not operating a vehicle
    while impaired because there was no evidence of his condition at the time the
    car ceased operating around 2:45 a.m. The trial judge then considered whether
    the appellant had care or control of the vehicle while impaired or with a
    blood alcohol reading of over .08. The trial judge concluded that the appellant
    had not engaged in an intentional course of conduct that had created a
    realistic risk of danger. She found him not guilty.

[5]

The appeal judge found 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 judges decision and registered convictions on
    both counts against the appellant.

B.

Issues

[6]

The appellant proposes to advance two arguments on appeal. First, he would
    argue that the appeal judge was not entitled to interfere with the trial
    judges finding that there was no realistic risk of danger to the public, as
    deference is owed to findings of fact. In
R. v. Boudreault
, 2012 SCC
    56, [2012] 3 S.C.R. 157, at para. 11, the Supreme Court of Canada makes clear
    that whether a realistic risk is created is a question of fact. Second, he would
    argue that the risk identified by the appeal judge is properly characterized as
    theoretical and not as realistic.

C.

leave To Appeal To This court

[7]

As s. 839 of the
Criminal Code
provides, the appellant can
    appeal to this court only with leave and only on a ground that involves a
    question of law alone.

[8]

There is no right to appeal factual findings or questions of mixed fact
    and law. Further, even where the appealing party identifies a question of law, leave
    is not automatic: not all questions of law merit a second appeal:
R. v.
    R.R.
(2008), 90 O.R. (3d) 641,

at para. 24. The significance of
    the issues raised to the general administration of criminal justice, and the
    merits of the proposed grounds of appeal must also be considered: para. 37.

D.

the appellants proposed grounds of appeal

(1)

Standard of review before the appeal judge

[9]

Section 813(b)(i) of the
Criminal Code
allows the Crown to
    appeal the trial judges decision to the summary conviction appeal court upon
    questions of law alone, questions of mixed fact and law, or questions of fact:
R.
    v. Labadie,
2011 ONCA 227, 275 C.C.C. (3d) 75, at para. 50. Despite the
    breadth of the statutory appeal, deference is owed to the findings of fact of a
    trial judge. Here, the appeal judge relied on errors in the trial judges
    analysis in interfering with her conclusion the appellant had not created a
    realistic risk of danger.

[10]

The
    appeal judge concluded that the trial judge focused, wrongly, on the inoperable
    nature of the respondent's vehicle. I agree. The trial judge seems to have
    proceeded on the basis that an inoperable vehicle could only cause a realistic
    risk of danger by somehow being placed in motion other than under its own
    power. Indeed, while recognizing that the Supreme Courts reasons in
Boudreault
left open the possibility that an inoperable motor vehicle could create a realistic
    risk of danger, she conceived this happening by releas[ing] the parking
    brake, trying to roll the vehicle or some situation such as that. She
    concluded that was not what she was dealing with in this particular case. She
    accepted that the appellant was simply sitting in an inoperable motor vehicle
    waiting for a tow truck to arrive.

[11]

This
    is not a correct reading of
Boudreault
. The Court, at para. 42,
    clearly contemplates that a stationary vehicle may endanger persons or property
    through negligence, bad judgment or otherwise. The appeal judge correctly
    noted that this court has taken an approach consistent with this reading of
Boudreault
in
R. v. Vansickle
, [1990] O.J. No. 3235 (C.A.), affg [1988] O.J. No.
    2935 (Dist. Ct.),
R. v. Wren
(2000), 47 O.R. (3d) 544 (C.A.), leave to
    appeal refused, [2000] S.C.C.A. No. 235, and
R. v. Smits
, 2012 ONCA
    524, 294 O.A.C. 355.

[12]

Moreover,
    in reaching her conclusion there was no realistic risk, the trial judge found
    the appellant had done all that could be done to reduce the risk. That is not
    the pertinent inquiry. The question the court must determine is whether any
    realistic risk of danger was created.

[13]

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.

[14]

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.

(2)

Proper characterization of the risk

[15]

The
    main focus of the appellants oral argument was that the identified risk should
    be characterized as theoretical, and not realistic.

[16]

This
    is not an argument the appellant could advance on appeal. The appellants right
    to seek leave to appeal is restricted to questions of law. The appellants
    argument that the appeal judge was wrong to find the risk of danger was
    realistic and not merely theoretical does not raise a pure question of law.

E.

Conclusion

[17]

I
    would refuse the application for leave to appeal to this court.

Released: March 9, 2016 (EAC)

R.G.
    Juriansz J.A.

I
    agree E.A. Cronk J.A.

I
    agree L.B. Roberts J.A.


