



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pawluk, 2017 ONCA 863

DATE: 20171109

DOCKET: C63368

Doherty, LaForme and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Wayne Pawluk

Respondent

Andrew Hotke, for the appellant

Patrick J. Ducharme, for the respondent

Heard: October 20, 2017

On appeal from the judgment of Justice Steven Rogin of
    the Superior Court of Justice, dated January 18, 2017, with reasons reported at
    2017 ONSC 386, dismissing an appeal from the acquittals entered on November 16,
    2015, by Justice Ronald A. Marion of the Ontario Court of Justice.

Paciocco J.A.:


OVERVIEW

[1]

After being involved in a motor vehicle accident, Wayne Pawluk was charged
    with operating a motor vehicle while his ability to do so was impaired by
    alcohol contrary to s. 253(1)(a) of the
Criminal Code
(
impaired driving). He was also charged
    with operating a motor vehicle with a blood alcohol concentration over 80
    milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1)(b) of
    the
Criminal Code
(
driving
    over 80).

[2]

The trial judge held that the Crown proved neither offence. In the trial
    judges view, the Crown failed to prove beyond a reasonable doubt that Mr.
    Pawluks ability to operate a motor vehicle was impaired. Nor could the Crown
    prove that Mr. Pawluks blood alcohol level was over 80 at the time of driving.
    The Crown had attempted to rely on the presumption of identity in s. 258(1)(c)
    to do so, but the Crown could not prove that Mr. Pawluk drove within two hours
    of providing his first breath sample, as s. 258(1)(c) requires. This prevented
    the Crown from using the presumption to show Mr. Pawluks blood alcohol level
    when he was driving his car.

[3]

The Crown did, however, present evidence that Mr. Pawluk had been in care
    or control of his car within two hours of providing his first breath sample.
    The Crown therefore sought to rely on the presumption of identity to prove that
    Mr. Pawluk  had care or control of a motor vehicle with a blood alcohol
    concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood (care
    or control over 80), an included offence of driving over 80. The trial judge
    held that the Crown could not prove that included offence either, after taking a
    narrow view of the proper interpretation of s. 258(1)(c).

[4]

The Crown brought a summary conviction appeal from both the impaired
    driving acquittal and the included offence acquittal. The appeal judge dismissed
    the appeal. He held that the trial judge committed no errors in his findings
    relating to impairment, and that it was not fair for the Crown to attempt to
    convict Mr. Pawluk on the included offence of care or control over 80 when the
    charge and trial were about Mr. Pawluks driving at the time of the motor
    vehicle accident.

[5]

The Crown seeks leave to appeal both of the appeal judges holdings to
    this court. For the reasons that follow, I would deny leave on the impaired
    driving issue, but grant leave and allow the appeal on the included offence
    question. I would set aside the acquittal on the driving over 80 count, and
    substitute a finding of guilt on the included offence of care and control over 80.
    I would remit the matter back to the trial judge for sentencing.

THE MATERIAL FACTS

[6]

The charges against Mr. Pawluk arose after he was involved in a motor
    vehicle accident on November 28, 2013. He was on his way home from a Detroit
    Lions football game, where he admitted to having consumed a modest amount of
    beer. After investigation, he was charged with impaired driving, and with driving
    over 80.

[7]

The trial judge accepted evidence that was consistent with Mr. Pawluks impairment.
    Mr. Pawluks vehicle had rear-ended another car. He smelled of alcohol and
    discouraged the other driver from calling the police. Then he chewed gum and
    sucked on a candy. An attending police officer, Cst. Miles, said Mr. Pawluk
    spoke slowly and steadily, and his eyes were red and watery.

[8]

The trial judge had a reasonable doubt about impairment, even in the
    face of this evidence. He reasoned that testimony about erratic driving leading
    to the collision could not confidently be linked to Mr. Pawluks vehicle,
    weather conditions could explain the accident, Mr. Pawluk may have wanted to
    avoid reporting the accident for insurance purposes, and the more definitive
    signs of impairment were absent.

[9]

Although the Intoxilyzer readings showed Mr. Pawluk to have more than
    the legal amount of alcohol in his system, the trial judge held that the Crown
    could not rely on the presumption of identity in s. 258(1)(c) of the
Criminal
    Code

to establish that Mr. Pawluks blood alcohol level was over
    80 at the time of driving. The presumption of identity in s. 258(1)(c) is
    available only if the first breath sample is taken within two hours of the
    time when the offence was alleged to have been committed. The Crown could not
    establish this as it was unable to prove that the traffic accident - Mr.
    Pawluks last known act of driving - occurred within the two hour window before
    the first breath sample at 7:24 p.m. Since the Crown could not otherwise establish
    Mr. Pawluks blood alcohol at the time of driving, the charged offence of driving
    over 80 could not be proved.

[10]

In
    the alternative, the Crown attempted to secure a conviction on the included
    offence of care and control over 80. The unchallenged evidence was that Mr.
    Pawluk was sitting in the drivers seat of his car at 6:03 p.m. when Cst. Miles
    arrived on scene. Under s. 258(1)(a) of the
Criminal Code
, a person
    found to be occupying the seat ordinarily occupied by the driver of the motor
    vehicle is deemed to be in care or control of the motor vehicle unless they
    establish that they did not occupy that seat for the purpose of putting the
    motor vehicle in motion. Mr. Pawluk had led no evidence to rebut this
    presumption. Since Mr. Pawluk was thereby presumed to be in care or control at
    6:03 p.m., within two hours of the first breath sample, the Crown urged that
    the presumption of identity in s. 258(1)(c) applied to prove that offence.

[11]

The
    trial judge rejected this avenue for conviction. He held that the presumption
    of identity in s. 258(1)(c) of the
Criminal Code
could not be relied
    upon to prove the included offence of care or control over 80 because s. 258(1)(c)
    had to be construed strictly. He ruled:

The wording of s. 258(1)(c)(ii) specifically states that a
    first sample must be taken not later than two hours after the time when the
offence
was alleged to have been committed. The alleged offence in this case is
driving
and not care and control. Care and control is an included offence in the
    offence alleged but it is not interchangeable for the purpose of the
    presumption. The cause of the investigation was the accident which occurred.
    The accident formed part of the grounds for Mr. Pawluks arrest and for the
    demand for breath samples. The Crown cannot for the purposes of benefitting
    from the presumption alter the time of the offence by virtue of care and
    control being an included offence in driving. [Emphasis in original.]

[12]

Since
    the Crown could not prove Mr. Pawluks blood alcohol content at the time of the
    presumed care or control without the presumption of identity, Mr. Pawluk could
    not be convicted of the included offence.

[13]

The
    Crown appealed to a Summary Conviction Appeal Court, claiming that the trial
    judge erred by ignoring some of the evidence of impairment, and by not applying
    s. 258(1)(c) to convict Mr. Pawluk of care of control over 80.

[14]

The
    appeal judge dismissed the first ground of appeal as there was no basis for
    assuming that the trial judge ignored evidence of impairment.

[15]

The
    appeal judge upheld the trial judges decision not to find Mr. Pawluk guilty of
    care or control over 80 on the basis that it was unfair for the Crown to seek a
    conviction of the included offence of care or control over 80 when Mr. Pawluk
    went to trial on the basis of his conduct related to the motor vehicle accident.

LEAVE TO APPEAL

[16]

The
    Crown seeks leave to appeal to this court against both rulings.

[17]

I
    would grant leave relating only to the care or control over 80 acquittal. The
    test in
R. v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641, has not been met
    with respect to the impaired driving charge. Neither the appeal judges rulings
    nor the trial judges findings relating to Mr. Pawluks state of impairment
    raise legal issues of significance to the administration of justice that go
    beyond this case, and while others might disagree with the trial judges
    assessment of impairment, there has been no clear error: see
R.R.
, at
    para. 37.

[18]

The
    application of s. 258(1)(c) to included offences is, however, an issue of law
    that has significance to the administration of justice that goes beyond this
    particular case. This question is apt to arise with some frequency, given the protracted
    time-lines often involved in responding to motor vehicle accidents, and in
    securing breath samples from suspected drivers.

THE CARE OR CONTROL OVER 80 APPEAL

[19]

The
    parties before us are in agreement that care or control over 80 is an included
    offence in a charge of driving over 80. By implication, this proposition has
    long been settled in this court, which has held that impaired care or control
    is an included offence in an impaired driving allegation: see
R. v. Plank
(1986), 28 C.C.C. (3d) 386 (Ont. C.A.). This same proposition has also received
    the endorsement of the Supreme Court of Canada when the court upheld the decision
    in
R. v. Drolet
, [1989] R.J.Q. 295 (Que. C.A.), for the reasons given
    by LeBel J.A., as he then was: [1990] 2 S.C.R. 1107. If impaired care or
    control is an included offence in an impaired driving allegation, care or
    control over 80 is an included offence in a charge of driving over 80.

[20]

The
    Crown argues that, this being the case, the trial judge erred in law in not
    convicting Mr. Pawluk. The Crown also contends that the appeal judge erred in
    law by treating the Crown as though it is bound by its theory, when appellate
    authority holds that this is not so, and that the Crown is entitled to rely on
    included offences shown during trial to have been committed. The Crown contends
    there is nothing unfair in convicting accused persons of included offences
    arising out of the same factual transaction as the charged offence.

[21]

Finally,
    the Crown argues that the trial judge erred, as well. He incorrectly
    interpreted s. 258(1)(c) as applicable only to the charged offence, and not to
    included offences.

[22]

Mr.
    Pawluk contends that the trial judge properly interpreted s. 258(1)(c) as
    applying solely to the offence the Crown alleges. In this case the offence
    [that] was alleged to have been committed by Mr. Pawluk is that, at the time
    of the accident, he operated a motor vehicle having consumed alcohol in such a
    quantity that the concentration of alcohol in his blood exceeded 80 milligrams
    of alcohol in 100 millilitres of blood. He urges that s. 258(1)(c) does not
    apply to the included offence the Crown came to rely upon, since that included
    offence was not the offence  alleged to have been committed. Absent that
    presumption, he argues there was no admissible evidence to support a conviction
    on the included offence of care or control over 80.

[23]

In
    his submissions before this court Mr. Pawluks position is that the appeal
    judge came to the correct decision. By acknowledging that it is not generally
    unfair to convict individuals of included offences, however, Mr. Pawluk gives
    less emphasis to the unfairness theory relied upon by the appeal judge than to
    the trial judges basis for acquittal. Still, the fairness theory remains a
    live issue on this appeal since Mr. Pawluk stopped short of conceding that the
    appeal judges reasoning was in error.

[24]

I
    agree with the arguments advanced by the Crown. The appeal judge erred in law
    in his application of the doctrine of included offences, and in finding it
    unfair for the Crown to rely on the included offence of care or control over 80.
    The trial judge erred in law, as well, in his interpretation of s. 258(1)(c).
    The Crown should have been entitled to rely on the presumption of identity to
    establish the included offence of care or control over 80.

[25]

I
    will address the appeal judges decision first, and then the trial judges
    decision.

A.

Fairness in RElying on The INcluded Offence

[26]

In
    finding it unfair for the Crown to rely on the included offence of care or
    control over 80 the appeal judge said, at paras. 17-19:

On a fairness basis, the respondent went into the trial facing
    an allegation that at the time he was driving his motor vehicle  that is, the
    time of the accident  he was breaking the law.

It is totally unfair for the Crown to change the case after the
    evidence has been heard and force the respondent to face a totally different
    charge, namely the charge that he was driving or in care or control at a time
    much later than originally alleged.

This does not detract from the fact that care or control can be
    included in impaired driving. It simply says that the Crown must prove the
    charge it originally laid.

[27]

With
    respect, this passage reflects a misunderstanding of the law of included
    offences. An included offence is a distinct offence that arises from the same facts
    and is necessarily committed where the charged offence has been committed:
R.
    v. Ovcaric
(1973), 11 C.C.C. (2d) 565 (Ont. C.A.). It is embraced by the
    charged offence:
R. v. G.R.
, 2005 SCC 45, [2005] 2 S.C.R. 371, at para.
    25. It is not, therefore, a totally different charge, as described by the
    appeal judge.

[28]

Moreover,
    the very concept of an included offence is predicated on the fact that it is
    not unfair to try the accused on an included offence since the charge laid
    alerts the accused person that they are alleged to have satisfied all of the
    elements of the included offence, as well as the charged offence. As indicated,
    this court recognized in
Plank
, at p. 395, that a person charged with
    impaired driving is sufficiently informed that they also face the included
    offence of impaired care or control. For this reason, LeBel J.A., as he then
    was, made clear in
Drolet,
at p. 299, that there is no surprise or
    injustice in finding a person charged with impaired driving guilty of impaired
    care or control. The same principle applies to over 80 charges. A person
    charged with driving over 80 is sufficiently informed that they also face the
    included offence of care or control over 80. Given this, there is no unfairness
    or injustice in finding a person charged with driving over 80 to be guilty of
    care or control over 80.

[29]

The
    appeal judges decision is also impossible to square with
R. v. Khawaja
,
    2010 ONCA 862, 103 O.R. (3d) 321, affd 2012 SCC 69, [2012] 3 S.C.R. 555, in
    which this court held, at para. 145, that in the absence of formal particulars
     it [is] unobjectionable for the Crown to adjust the theory of its case in
    response to the evidence at trial as it evolved. Other decisions of this court
    affirming the same general proposition are cited in
Khawaja
:
R. v.
    Groot
(1998), 41 O.R. (3d) 280 (C.A.), affd [1999] 3 S.C.R. 664; and
R.
    v. Ranger
(2003), 67 O.R. (3d) 1 (C.A.).

[30]

None
    of this is to say that it can never be unfair for the Crown to rely on an
    included offence. For example, where particulars have been given that limit the
    allegation to the charged offence, or where the Crown has actively induced the
    accused, to their detriment, into believing that the Crown is proceeding only
    on the theory of the charged offence, it may well be unfair for the Crown to
    rely on an included offence, and for a trial judge to convict on one. There may
    be other examples. In this case, however, there is no basis on the trial record
    for a finding of unfairness. The fact that Mr. Pawluks care or control was not
    a central issue during trial does not change this. The law alerts an accused to
    their jeopardy for included offences, and in this case, questions were asked of
    Cst. Miles that could only be relevant to the issue of Mr. Pawluks care or
    control. It should not have come as a surprise when the Crown sought a care or
    control over 80 conviction.

B.

The Application of s. 258(1)(c) to included offences

[31]

I
    also agree with the Crown that the trial judge erred in concluding that the
    words, the offence  alleged to have been committed, found in s. 258(1)(c),
    prevent the presumption of identity from applying to included offences.
    Properly interpreted, the phrase, the offence  alleged to have been
    committed, relates to the criminal allegation being prosecuted before the
    court. As a matter of law this includes not only the charged offence but also
    included offences.

[32]

The
    trial judges reasoning to the contrary reflects two distinct errors, one
    related to the application of s. 258(1)(c) to the particular facts of this
    case, and the other related to the general interpretation of s. 258(1)(c) and
    the use of the doctrine of strict construction.

[33]

In
    making the first of these errors the trial judge reasoned that care and
    control is not the offence  alleged to have been committed in this case
    because the investigation was the accident which occurred and it was the
    accident [that] formed part of the grounds for Mr. Pawluks arrest and for the
    demand for breath samples. This reasoning led the trial judge to the
    conclusion that [t]he Crown cannot for the purposes of benefiting from the
    presumption alter the time of the offence by virtue of care and control being
    an included offence in driving.

[34]

With
    respect, this reasoning confuses the criminal investigation with the criminal allegation,
    the proper subject of s. 258(1)(c). On a natural or plain reading the phrase
    the offence  alleged to have been committed cannot refer to the offence
    being investigated or the grounds for arrest since neither an investigation nor
    an arrest allege offences in any meaningful sense. The charge in a criminal
    information does. The reason for the investigation or the arrest therefore has nothing
    to do with the application of s. 258(1)(c), nor does the theory of the Crown.
    The offence  alleged to have been committed is the criminal allegation that
    is being prosecuted.

[35]

For
    this reason, it is not possible to accept either Mr. Pawluks attempt to argue
    before us that the criminal allegation related only to driving over 80 at the
    time of the accident, or the trial judges critique that by relying on the
    included offence the Crown was altering the time of the offence. The criminal
    allegation being prosecuted against Mr. Pawluk of driving over 80 is not
    particularized in a way that prevents the Crown from relying on continued care
    or control by Mr. Pawluk in the immediate aftermath of the accident.

[36]

The
    trial judges second error, related to the general interpretation of s.
    258(1)(c), arises from his improper reliance on the doctrine of strict
    construction to impose an arbitrary meaning on the phrase the offence 
    alleged to have been committed. We take no issue with the application of
    strict construction to s. 258(1)(c), a provision that offers the Crown an
    evidentiary short-cut that should not be given an expansive interpretation.
    Still, the doctrine of strict interpretation supports only sensible
    interpretations:
R. v. Paré
,

[1987] 2 S.C.R. 618, at p. 631.
    There is nothing in the language of s. 258(1)(c), or the purpose underlying the
    provision, that could support limiting the application of the presumption of
    identity to the offence that is expressly spelled out in the charge. Why would
    Parliament have extended the presumption only to expressly charged offences,
    and not included offences? Adopting such a doctrine would not only produce
    arbitrary results inconsistent with the theory of included offences, it would
    encourage superfluous charging practices in which included offences have to be
    alleged expressly.

[37]

The
    trial judge therefore erred in law in interpreting the presumption of identity
    in s. 258(1)(c) as unavailable for included offences generally, or in this
    case. Given the evidence before the Court, the Crown should have been entitled
    to rely on this presumption to prove Mr. Pawluks blood alcohol content at the
    time he was alleged to have been in care or control of his motor vehicle.

CONCLUSION

[38]

I
    would therefore allow the appeal, in part. I would deny leave to appeal from
    the order affirming the acquittal on the impaired driving charge. I would allow
    leave to appeal from the order affirming the acquittal on the included offence
    of care or control over 80, and allow the appeal.

[39]

The
    Crown has asked us to substitute a conviction of care or control over 80 and to
    remit the matter back to the trial judge for sentencing, rather than ordering a
    new trial on this included offence. Its position is that it is entitled to the benefit
    of both the presumption of identity under s. 258(1)(c), and the presumption of
    care or control under s. 258(1)(a), as Mr. Pawluk was observed at 6:03 p.m. in the
    seat or position ordinarily occupied by a person who operates a motor vehicle.
    Since Mr. Pawluk has done nothing to discharge his onus to rebut the latter
    presumption, the Crown contends that this court should substitute a finding
    that he was in care or control.

[40]

I
    agree. This is an appropriate case for substituting a conviction. It was uncontested
    at trial that Mr. Pawluk was in the seat normally occupied by the driver at
    6:03 p.m., and no evidence has been led to rebut the presumption of care or
    control triggered by s. 258(1)(a). Nor is it in dispute that Mr. Pawluks blood
    alcohol level at the time of testing produced a truncated reading of 120
    milligrams of alcohol in 100 millilitres of blood. Since the presumption of
    identity under s. 258(1)(c) applies, the offence of having care or control of a
    motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of
    blood, contrary to s. 253(1)(b), has been made out.

[41]

I
    would therefore allow the appeal, set aside the verdict of acquittal under s.
    253(1)(b) that Mr. Pawluk received, and substitute a finding of not guilty of
    the offence as charged, but guilty of the included offence of having care or
    control of a motor vehicle while having consumed alcohol in such a quantity
    that the concentration thereof in his blood exceeded 80 milligrams of alcohol
    in 100 millilitres of blood, contrary to s. 253(1)(b) of the
Criminal Code
.
    I would remit the matter to the trial judge for sentencing.

Released: November 9, 2017 (D.D.)

David M. Paciocco J.A.

I agree. Doherty J.A.

I agree. H.S. LaForme J.A.


