At 5:20am Balogun-Jubril [hereafter BJ] like a lot of folks was sound asleep. Unlike other folks though BJ was not tucked snugly into his bed. BJ was in the driver’s seat of his car. The car was off, the transmission was in park but the key was in the ignition. Most peculiar however was the location of BJ’s car. He was stopped in a lane of an exit ramp on a provincial highway. The location of the vehicle and BJ’s deep sleep caught the attention of both the Ministry of Transportation and police. Once conscious BJ exhibited what officers described as significant signs of impairment.
At 6:41am BJ provided his first of two breath samples which confirmed what the officers suspected – BJ’s blood alcohol concentration was well over the legal limit at 150mg of alcohol per 100ml of blood. BJ was charged with driving over the legal limit and impaired driving.
At trial BJ testified. He claimed that at 2:45am as he was driving his car stopped working. A mechanic testified that the vehicle was inoperable, as the oil had leaked causing the engine to seize.
The trial judge found that BJ was not operating the vehicle while impaired but was in care and control of the vehicle. The trial judge then concluded that BJ had “not engaged in an intentional course of conduct that had created a realistic risk of danger.” As a result she acquitted BJ of both charges.
The Crown successfully appealed to the summary conviction appeal court. The summary conviction appeal court held:
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 judge's decision and registered convictions on both counts against the appellant. @para 5
At the Court of Appeal BJ advanced two grounds of appeal: 2016 ONCA 199. First, that the summary conviction appeal judge “was not entitled to interfere with the trial judge’s finding that there was no realistic risk of danger to the public, as deference is owed to findings of fact.”
Second, even if the appellate judge was entitled to interfere with the trial judge’s finding, “the risk identified by the appeal judge is properly characterized as ‘theoretical’ and not ‘realistic’.” @para 6
With respect to the first ground the Court of Appeal held that the trial judge embarked upon the wrong inquiry. The trial judge framed her conclusion as follows BJ had done "all that could be done to reduce the risk".
That of course is not the correct or even “pertinent inquiry. The question the court must determine is whether any realistic risk of danger was created.” @para 12
Juriansz JA writing for a unanimous Court held that:
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.
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. @paras 13-14
On the second ground the Court held that whether the risk was realistic or theoretical is not a question of pure law and therefore could not be advanced on appeal. @para 16
The ONCA refused leave to appeal. @para 17
Although impaired and over 80 cases are some of the most demanding offences to prove from an evidentiary perspective as is clear from the various rulings in the present case, the outcome here is one of pure and simple common sense.
BJ was in the driver’s seat of his car. The car was in a lane on a ramp on a highway. The key was in the ignition. There can be no question that such a vehicle poses a risk of danger to other motorists. Further exacerbating this risk was the fact that BJ was impaired by alcohol and his blood alcohol concentration was nearly twice the legal limit. Nothing other than realistically dangerous about that