COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Middleton, 2012
    ONCA 523

DATE: 20120802

DOCKET: C51767 & C51808

Doherty, Feldman and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

Applicant/Appellant

and

Trevor Middleton

Appellant/Respondent

Lance C. Beechener and Mark Halfyard, for Trevor
    Middleton

Alexander Alvaro, for the Crown

Heard: June 7, 2012

On appeal from the convictions entered by Justice Alfred J.
    Stong of the Superior Court of Justice, sitting with a jury, on December 15,
    2009, and by the Crown for leave to appeal the sentence imposed by Stong J. on
    February 12, 2010 and if leave is granted to appeal the sentence.

Feldman J.A.:

[1]

On September 16, 2007, at around 2:00 in the morning at the Blue Bridge on
    the southern shore of Lake Simcoe, the appellant and some friends were out
    partying and driving in their trucks, while the victims and their friends were
    fishing. Following an incident where some people from the appellants group
    pushed a couple of people from the victims group into the water, one of the
    appellants friends was hurt in a fight with members of the victims group. The
    appellant had already left the bridge in his truck by the time the fight broke
    out, but when he realized his friend was missing he returned. When the
    appellant saw that his friend was hurt, he chased the victims who were now in a
    car, ramming their vehicle with his truck and causing them injury, one
    extremely serious injury. The appellant was convicted of six offences arising
    from his actions in the truck, two counts of criminal negligence causing bodily
    harm and four counts of aggravated assault. He received a sentence of two years
    less a day plus three years probation, and a ten-year driving prohibition.

[2]

The appellant appeals his conviction on three grounds. First he says
    that the trial judge erred in admitting into evidence two hearsay statements that
    were made by unidentified members of the appellants group as they went down to
    the water. The unknown declarants said that they were going nip-tipping and
    that that meant they were going to push them in the river. The word nip was
    described in the evidence as a derogatory reference to Asian people. Some of
    the victims group were of Asian descent. The appellant submits as a second
    ground of appeal that, even if the statements were admissible, the trial judge
    failed to properly instruct the jury on the use they could make of those
    statements. As a third ground of appeal, the appellant submits that Crown
    counsels cross-examination of the appellant at trial was improper and affected
    the fairness of the trial.

[3]

The Crown appeals the sentence. It says the sentence is manifestly unfit,
    and seeks a significant penitentiary term.

[4]

For the following reasons, I would dismiss both the appeal and the
    cross-appeal.

A.

Facts

[5]

For the purpose of the first and second grounds of appeal, which are the
    main grounds of appeal, the important background facts can be briefly stated.
    In the early morning of Sunday, September 16, 2007, between midnight and 1:30
    a.m., seven friends drove to the bridge at the mouth of a river that flows into
    Lake Simcoe in the township of Georgina to go fishing. Three of the seven were
    of Asian descent.

[6]

At the same time, the appellant and a group of about 15 to 20 young
    adults met up in three trucks. Some of the people had been at parties. The
    appellant and others had been at a bar called the Mansion House. The appellant
    was a designated driver and said that he was not drinking that night. The three
    trucks eventually converged at De La Salle Park. The appellant asked one of his
    friends if he wanted to party or come party with him. The appellant started
    driving and the others followed. According to the friends, none of them knew
    where they were going. Eventually they ended up at the Blue Bridge where the
    anglers were fishing.

[7]

A number of the partyers got out of their trucks and went down towards
    the water. Although most assumed the appellant left his truck, no one could say
    for sure. He denied it. One member of the group, Peter Way, asked another
    member, Ryan Hall-Leah, what was going on. He said he didnt know but asked the
    group, whereupon an unknown male said that they were going nip-tipping. Peter
    Way knew that nip was a derogatory reference to Asians, but asked the group
    anyway what nip-tipping was. Another unknown person answered: were going to
    push them in the river. It was not the appellant who made either of these
    statements.

[8]

A number of the partyers, including Steven French, who was extremely
    drunk, and Nick Perry, went onto the dock where the anglers were fishing. Mr. French
    asked them about their fishing licenses.

[9]

Ruo Hang Liu, one of the fishermen, said that someone approached him,
    said he was Canadian and that he was doing his Canadian duty by asking to see
    his fishing licence. When he went to get it someone pushed him into the water.
    Similarly, Charles Hogan, another fisherman, said that someone who smelled of
    alcohol asked him about his fishing licence and when he went to get it he was
    pushed into the water. Mr. Way said that he heard an argument where someone
    said that this was their fishing turf or their fishing area, and then two of
    the partyers pushed two of the fishermen into the water. No one admitted to the
    pushing.

[10]

There
    was conflicting evidence as to whether the appellant went down to the dock,
    whether he was part of any argument, and whether he was one of the people who
    pushed either of the fishermen into the water. He denied that he went down to
    the water at all. Mr. French and Mr. Way, who both said they saw the appellant
    at the dock, agreed that they could have been mistaken. Mr. French specifically
    testified that he thought he saw the appellant pushing someone in the water to
    his right out of the corner of his eye. Mr. French later conceded that he was
    guessing about this, and agreed that he was drunk and next to blind in his
    right eye.

[11]

Following
    the pushing, everyone but Mr. Perry ran up and got into the trucks which pulled
    away with the appellant in the lead. When the appellant realized that Mr. Perry
    was not with them, he returned to the bridge where the people in the
    appellants truck saw Mr. Perry lying on the ground. The appellant got out to
    attend to him. He looked beaten up and badly hurt. Some of the fishermen were
    observed running from the scene and getting into a white Honda Civic, while a
    second white car was also driving away.

[12]

The
    appellant was angry. He followed the Honda and ended up smashing it several
    times, ultimately hitting the car so hard that it left the road, hit a tree,
    and came to rest back on the road. The appellant said he was attempting to stop
    the occupants from getting away. After the Honda was stopped, he got out of his
    truck, saw that people were injured and asking for help, but he drove away to
    see how Mr. Perry was and did not call 911. Two of the occupants of the Honda
    were badly injured, one severely.

B.

The Trial Judges Ruling

[13]

At
    the opening of the trial the Crown sought two rulings from the trial judge with
    respect to the admissibility of certain evidence. First, the Crown wanted to
    admit the evidence of the entire incident by the water, culminating in the
    pushing of two of the fishermen into the water, as prior discreditable
    conduct of the appellant. Second, as part of that evidence, the Crown sought
    to admit the two hearsay statements
[1]
made to Mr. Way by two unidentified members of their group that they were going
    nip-tipping, and that that meant they were going to push the people who were
    fishing into the water. Both motions were granted. It is only the admission of
    the two hearsay statements that is raised as a ground of appeal.

[14]

With
    respect to evidence of the pushing incident, referred to as the prior
    discreditable conduct, the trial judge ruled that it was admissible because, if
    accepted by the jury, it was relevant and probative of the appellants motive
    and intent in respect of the driving charges against him. Specifically, it
    would reveal pre-existing animus against the complainant group that could help explain
    the extent of his anger at seeing his friend Mr. Perry apparently seriously
    hurt. The decision was premised on the understanding, based on evidence
    tendered by the Crown at the preliminary inquiry, that the appellant was the
    leader of the group and that he may have pushed one of the fishermen into the
    water.

[15]

The
    trial judge acknowledged that the evidence was prejudicial in that it could
    lead the jury to engage in propensity reasoning, that is, because the appellant
    may have pushed or led others to push the victims into the water, it was more
    likely that he intended to injure the victims with his car. However, he noted that
    the jury would receive a falsely sanitized and inaccurate narrative of events
    if they did not hear what led up to the driving.

[16]

Dealing
    specifically with the two hearsay statements, the trial judge ruled that they were
    admissible under the principled exception to the hearsay rule, most recently
    discussed by the Supreme Court of Canada in
R. v.
Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787.

[17]

The
    trial judge concluded that the hearsay statements were relevant and necessary because,
    if accepted by the jury, they would establish a common intention by the group, including
    the appellant, to push the fishermen into the water with racial animus. This,
    in turn, was relevant to the appellants intent in driving his truck into the Honda
    with four of the fishermen in it.

[18]

The
    trial judge next turned to the threshold reliability criterion. He found that
    evidence of the actions of the group that immediately followed the hearsay
    declarations where two fishermen, one of whom was Asian, were pushed into the
    water provided sufficient corroborative evidence to establish the requisite
    threshold reliability. In reaching this conclusion, the trial judge was leaving
    open the possibility that the jury could find that the appellant had been one
    of the pushers on Mr. Frenchs and Mr. Ways evidence.

[19]

The
    trial judge acknowledged that the statements were prejudicial. He concluded,
    however, that their probative value outweighed their prejudicial effect and
    that the prejudicial effect could be minimized by an instruction limiting the
    use of the statements to the issue of whether or not there was a common
    intention that was shared by the appellant. The jury would also be told that if
    they decided that this common intention did exist, it would be for them to
    decide what link, if any, could be made from the common intention to the
    appellants driving.

C.

Charge to the Jury

[20]

In
    his ruling, the trial judge based his decision on the evidence from the
    preliminary inquiry, and in reciting that evidence, he stated that that was the
    evidence that would be expected to be heard at trial. He stated, referring in
    particular to Mr. Frenchs contested evidence as to whether the appellant
    pushed someone into the water, that it would be up to the jury to determine the
    weight to be attached to evidence that was undermined in cross-examination.

[21]

At
    trial, the evidence regarding what role the appellant played in instigating or
    leading the group that pushed the fishermen or whether he even went down to the
    water was equivocal and disputed. The trial judge reviewed the evidence on a
    witness by witness basis in his charge under the heading Overview of the
    Case.

[22]

For
    example, one young woman, Erin Woods, testified in examination in chief that
    after visiting friends in the area she and another woman, Amanda Blanchard, ended
    up driving with Steve Samis in his truck. They were heading to Mr. Samis house
    to spend the night there when the appellant pulled them over and asked them to
    hang out. She said that they followed his and another truck to the Blue Bridge
    where everyone got out. She said that everyone except the two women went down
    to the water. She heard splashes, following which everyone came running back up
    to the road, got back into the trucks and left, following the appellant. In
    cross-examination, Ms. Woods admitted that someone other than the appellant
    could have suggested that they party at the bridge, and that it could have been
    Mr. Samis who stopped the appellant initially (rather than the other way
    around). She also agreed that she did not see the appellant go down to the
    water and that he might have stayed in his truck. Amanda Blanchard gave similar
    evidence, both in examination in chief and when she was cross-examined.

[23]

Another
    witness, Andrew Kozmik, went in his truck to the Mansion House at 2:00 a.m.
    with his friend Ryan Heyde. While they were in the parking lot, he thought that
    Ryan was talking to the appellant. They then left and followed the appellant
    but he did not know where they were going. Three trucks, including Mr. Kozmiks,
    ended up at the Blue Bridge where they stopped. He said the people from the
    other two trucks were walking down to the beach, but he and Mr. Heyde stopped
    half-way down. It was dark, he heard splashing and laughing, then saw people
    whom he did not recognize running back up. He and Mr. Heyde ran too. They all
    got into their trucks and he followed the other two trucks driving away. In
    cross-examination, he said there had been no discussion about partying at the Blue
    Bridge, and that he did not see the appellant leave his truck, at the beach or
    running back up to the road.

[24]

Peter
    Way first met the appellant when his friend, Ryan Hall-Leah, asked the
    appellant for a ride home from the Mansion House at 2:00 a.m. In examination in
    chief, he testified that when they got out of the trucks at the bridge he asked
    whats going on? The answers he received were the two hearsay statements at
    issue on the appeal. He also testified that a couple of people from their group
    approached the fishermen and said that it was their fishing area, that an
    argument then broke out, and that two fishermen were pushed into the water. He
    said that the appellant was involved in the argument. However, in
    cross-examination, he agreed that it was possible that the appellant stayed in
    the truck. He also said that he was the first to run back to the truck and that
    when he got there, the appellant was already inside.

[25]

Steven
    French was the witness who most positively identified the appellant as being at
    the dock and pushing one of the fishermen into the water. That evening he was
    in the process of purchasing the appellants truck, and was in the truck with
    the appellant after a party. He testified that they all got out of the truck at
    the Blue Bridge and walked down to the dock. He thought he saw the appellant
    push someone into the water, then he saw people running back up to the road, so
    he ran as well. He also acknowledged that he was drunk and asked the fishermen
    for their fishing licenses because he had heard of people fishing in the dark
    to escape detection.

[26]

In
    cross-examination he said he had had more than 20 beers and a couple of rye and
    ginger-ales over the course of that evening. He also said when he thought he
    saw the appellant push one of the fishermen, it was out of his right eye in
    which he is almost blind, and that he could not be 100% sure that it was the
    appellant. He also agreed that the appellant could have stayed in the truck and
    that the appellant was in it when he ran back. He also testified that it was
    his idea to ask for fishing licenses, and that there had been no plan to do it.

[27]

The
    appellant testified at the trial and described the events of the evening. He
    agreed to be the designated driver for his friends who wanted to party. They
    went first to the Mansion House, then to a house party, then back to the
    Mansion House. He drove the group to De La Salle Park to drink, but there was
    security there and the group suggested Sibbald Point Provincial Park. By that
    time the two other trucks were also following. As they approached the Blue
    Bridge, someone suggested drinking at the pier. He got out of the truck,
    relieved himself, and was looking for his cellphone charger when everyone came
    running back up. He said he panicked, jumped in the truck, and drove away. He
    specifically denied going down to the dock, pushing anyone, or having anything
    against Asian people.

[28]

The
    appellants testimony was the last to be reviewed for the jury by the trial
    judge. The trial judge followed that review with three specific legal
    instructions: (1) a
W.D.
instruction; (2) an instruction regarding
    motive; and (3) a limiting instruction regarding the evidence of prejudice
    against Asian people.

[29]

In
    the instruction headed Motive, after first explaining that motive is not an
    essential element of the offence but just part of the evidence, the trial judge
    gave the following instruction:

In this case, Crown counsel submits that Mr. Middleton had a
    motive for driving the way the occupants in the Honda Civic describe. That
    motive incorporates a negative attitude toward Asian fisherm[e]n. That was
    expressed when [t]he fishermen were pushed into the water, turned into anger
    when he found his friend, Nick Perry, lying beaten on the road, and culminated
    in acts of rage in retaliation by attempting to force the car the fishermen
    were riding in off the road.

The Crown relied on the following evidence to establish a
    motive for Trevor Middleton to commit the offense with which he is charged:

-

an
    apparent organized [group] of vehicles and occupants, led by Middleton to the
    area of the Blue Bridge to ostensibly party;

-

the
    immediate convergence of the group to the dock, except for Steve Samis, Erin
    Woods and Amanda Blanchard, who held back closer to the road, the latter testifying
    that she had figured things out by the time she was descending from the road;

-

the
    conversation that Peter Way had with another member of the group as they
    descended to the pier about Nip tipping, a derogatory reference to fishermen of
    Asian descent[,] and pushing them into the water;

-

the
    then approach of Nick Perry and another member of the group demanding fishing
    licences of the fishermen on the pier;

-

the
    sequential pushing of two fishermen, Ruo [Hang] Liu and Charles Hogan into the
    river from the pier;

-

the
    immediate reactionary running by the group at large after the fisherm[e]n had
    been pushed into the water;

-

vacating
    the scene in the trucks, once again, led by Mr. Middleton;

-

the
    return to the scene by Mr. Middleton to find Nick Perry lying injured on the
    road;

-

the
    angry reaction to the discovery by Mr. Middleton;

-

the
    subsequent chase after and ramming of the Honda Civic in retaliation for the
    beating of Nick Perry.

It is for you to decide whether Trevor Middleton had such a
    motive, or any motive at all, and how much or little you will rely on it to
    help you decide this case.

[30]

I
    will also quote the instruction headed Limiting Instruction in full. This is
    the instruction the trial judge gave the jury in accordance with his ruling on
    the admissibility of the two hearsay statements:

There is however, a limiting instruction I must give you with
    respect [to] the evidence of motive, and the effect of the testimony of
    prejudice or hate shown toward the fishermen of Asian descent.

That limiting instruction is this. Evidence has been led by the
    Crown which, if you find it to be credible and reliable, is capable of
    supporting the theory that Trevor Middleton led a group, primarily composed of
    young adults, to the docks in Georgina near Jacksons Point with the explicit
    aim of pushing fishermen of Asian descent into the water; an act dubbed Nip
    tipping. The evidence, if you accept it, would have Mr. Middleton leading and
    co-ordinating the groups attendance at the docks.

Further evidence led by the Crown, to which I have already
    referred, is that of Mr. Peter Way. He testified that when everyone was rushing
    to get to the docks, he either asked himself or his friend Ryan, who was with
    him [and who] asked [an] unidentified member of the group for him, why everyone
    was in a rush, to which he received a reply from that unidentified male,  We
    are Nip tipping, which was a derogatory phrase, understood by Mr. Way to mean
    that they were going to harass fishermen of Asian descent in some fashion,
    because when he sought clarification from the same individual, the person
    responded, Were going to push them in the water.

The evidence led by the Crown is that two fishermen were pushed
    into the water moments later by members of this group; one of them, Ruo [Hang]
    Liu, being of Asian descent. This evidence cannot be used by you to find that
    Mr. Middleton displayed a propensity for criminal misbehaviour and is therefore
    more likely to have committed the offence before the Court.
The utterances
    led in evidence by the Crown, if you find them to be credible and reliable, are
    to be used only in considering whether or not there was a common  group
    intention in going to the docks that included Mr. Middleton. If you decide
    that such a common intention did include Mr. Middleton, then you must consider
    what, if any, connection this had to Middletons alleged driving some minutes
    after discovering his friend, Nick Perry was injured.

It is evidence for you to consider in determining any animus
    toward the group of fisherm[e]n, such as would speak to the essential element
    of intent on the aggravated assault charge. It is open to you to consider
    whether Mr. Middletons existing animus, if you so find, turn[s] to anger when
    he allegedly pursues Mr. Lius vehicle for being involved in the alleged
    retaliation beating of his friend, Nick Perry, and acting in retaliation for
    this Civic Honda and its occupants out of that anger. [Emphasis added.]

D.

Issues

[31]

There
    are three issues raised by the appellant, and one issue raised by the Crown:

(1)

Were the hearsay statements
    admissible under the common law present intentions exception to the hearsay
    rule and/or the principled exception to the hearsay rule?

(2)

If the statements were admissible,
    were the instructions to the jury adequate as to how they could use them?

(3)

Was Crown counsels
    cross-examination of the appellant improper giving rise to an unfair trial?

(4)

Was the sentence manifestly unfit?
    (raised by the Crown)

E.

Discussion

Issue 1: Were the hearsay
    statements admissible under the common law present intentions exception to
    the hearsay rule and/or the principled exception to the hearsay rule?

(1) Introduction

[32]

Hearsay
    statements are presumptively inadmissible in evidence because the person who is
    reported to have made the statement cannot be cross-examined. This means that the
    veracity and reliability of the contents of the statement cannot be tested.
    However, a hearsay statement can be admitted into evidence if it fits within an
    existing common law exception to the exclusionary rule, or if it meets the
    requirements of necessity and reliability as mandated under the principled
    exception: see
Khelawon
, at para. 2
.

[33]

The
    two hearsay statements were admitted for the purpose of showing a common
    intention by the group to push Asian fishermen into the water. That common
    intention and the racial animus inherent to it, when applied to the appellant,
    could be used as evidence of his motive to hurt the passengers of the Honda
    Civic after he found his friend Nick Perry badly beaten by some of the
    fishermen.

[34]

The
    statements could only have any relevance if they could be brought home to the
    appellant, that is, if there was evidence, which, if accepted by the jury,
    showed that the appellant shared that common intention through his involvement
    with the group. Here, the statements were reported to have been made by two
    unidentified people using the term we to include others. There was no way of
    testing the makers of the statements through cross-examination to determine who
    was included in the we and how any such person was so included. Therefore, the
    question is whether, as a matter of law, a statement made by one person about
    the common intention of a group can be admissible against anyone in the group
    other than the maker of the statement.

(2) Are hearsay statements of common intention admissible for
    proving the intentions of a third party under the present intentions
    exception to the hearsay rule?

[35]

The
    Supreme Court of Canada confirmed in
R. v. Starr
, 2000 SCC 40, [2000]
    2 S.C.R. 144, that, absent suspicious circumstances, the present intentions
    or state of mind exception to the hearsay rule can be used to admit statements
    that reveal the intention of the out of court declarant. Importantly for our
    purposes here, the court also analysed whether a hearsay statement of the
    intention of one person that is reported to another can be evidence of the
    intention of a third person.

[36]

In
Starr
, the victim told his former girlfriend that he was going off with
    the accused to do an Autopac scam, in which a car is deliberately wrecked for
    insurance purposes. The victim was later found dead. The statement was admitted
    both to show the victims present intention or state of mind, and to show that
    he followed through with that statement of intention by actually meeting up with
    the accused. It was also admitted, according to the majority, as relevant to
    the accuseds intentions on the night in question, as it was the Crowns theory
    that the accused suggested the idea of the Autopac scam in order to isolate the
    victim and kill him.

[37]

The
    majority of the Supreme Court held that the hearsay exception that allows a
    party to tender a statement revealing a declarants present intention or state
    of mind could not be extended to be used as evidence of a third persons intentions.
    If the declarants statement of intention demonstrated a common intention, an
    additional exception would be necessary in order to render that statement
    admissible against the third party, the most likely one being the
    co-conspirator exception. Otherwise, it was just double hearsay or possibly
    triple hearsay, depending on the basis for the declarant purporting to know
    another persons intentions: see
Starr
, at paras. 164-74. The court, at
    para. 174, summed up its conclusion on this point of law:

In conclusion then, a statement of intention cannot be admitted
    to prove the intentions of someone other than the declarant, unless a hearsay
    exception can be established for each level of hearsay. One way to establish
    this would obviously be the co-conspirator exception: see
R. v. Carter
,
    [1982] 1 S.C.R. 938; Sopinka, Lederman and Bryant,
supra
, at pp. 303-7.
    This is no doubt what Doherty J. was referring to in
P. (R.), supra,
when
    he spoke of cases where the act was a joint one involving the deceased and
    another person (p. 344). Barring the applicability of this or some other
    exception to each level of hearsay involved, statements of joint intention are
    only admissible to prove the declarants intentions.

The
    majority concluded, therefore, that, as a matter of law, the victims statement
    of intention could not be used as evidence that the accused in that case shared
    that intention: see
Starr
, at para. 180.
[2]

[38]

In
    Starr, the majority also concluded that the particular statement could not be
    used even as evidence of the victims own intention, because it was made under
    suspicious circumstances. The victim arguably had a motive for lying to his
    ex-girlfriend about meeting up with the accused: see
Starr
, at paras.
    177-79.

(3) Were the statements
    at issue here admissible under the present intentions exception?

[39]

At
    trial, the Crown did not seek to admit this evidence against the appellant
    under the present intentions exception to the hearsay rule, nor could it have.
    The statements related to the common intention of a group of people and they
    were tendered to prove the intention of one member of the group, the appellant,
    who was not the declarant. The Crown would have to have relied on the
    co-conspirator exception but it did not try to do that, nor in my view would it
    have been appropriate to do so. This was not a trial for the assault of the two
    fishermen who were pushed into the water and there was no charge of conspiracy
    to commit that offence. It would have been very distracting to ask the jury to
    apply the three part test of the co-conspirator exception in order to find a conspiracy
    to commit the uncharged discreditable conduct, and to decide whether the
    appellant was a member of that conspiracy, in order to attribute to him the
    intention of the declarant regarding the nip-tipping.

(4) Are hearsay statements of common intention admissible for
    proving intentions of a third party under the principled exception to the
    hearsay rule?

[40]

It
    was also in
Starr
that the Supreme Court explained that if a statement
    does not fit within one of the exceptions, it may still be admissible under the
    principled approach, and that the traditional exceptions and the principled
    approach are both based on necessity and reliability. In that case, however, the
    majority concluded that the statement of the victim was also inadmissible under
    the principled approach because it was not sufficiently reliable to be
    admissible.

[41]

In
    reaching this conclusion, the majority held, at para. 209, that it was the same
    circumstances of suspicion that rendered the statement unreliable. The majority
    added, also at para. 209, that there were no other circumstantial guarantees
    of trustworthiness that could render the statement reliable. The majority in
Starr
did not elaborate on what would have made the statement sufficiently reliable.

[42]

The
    Supreme Court decision in
Khelawon
does, however, provide some helpful guidance
    on this point with respect to the statements at issue here. In that case, the
    court held that corroborating evidence can be considered as a circumstantial
    guarantee of trustworthiness for the purpose of threshold reliability: see
Khelawon
,
    at paras. 62, 67, 93-100. In doing so, Charron J., writing for the court, moved
    away from the position expressed in
Starr
that such evidence could only
    go to ultimate reliability.

(5) Were the statements at
    issue here admissible under the principled exception?

[43]

As
    the evidence could not go in under the present intentions exception, it could only
    be admitted using the necessity and reliability criteria of the principled
    approach, based on the available evidence at the time the ruling was made,
    which was the transcript of the preliminary inquiry.

[44]

With
    respect to necessity, because the identity of the declarant was not known, the
    declarant was not available to testify. There was no other means of getting
    evidence of similar value before the court. See
R. v. Hawkins
, [1986]
    3 S.C.R. 1043, paras. 71-73.

[45]

With
    respect to reliability, the trial judge found that the pushing incident
    corroborated and therefore rendered sufficiently reliable the statements as
    evidence of the common intention. He further found that the statements were
    reliable in terms of their applicability to the appellant specifically based on
    the anticipated corroborating evidence of the appellants leadership in the
    incident and his direct involvement as one of the pushers. Therefore, I do not
    find that the trial judge erred in his application of the principled exception.

(6) Even if the statements are
prima facie
admissible under
    the principled exception, did their prejudicial nature outweigh their probative
    value?

[46]

The
    appellant also submits that the evidence should nevertheless have been excluded
    because its probative value was minimal as compared with its prejudicial
    effect. Because he did not dispute that he was angry and upset at the people he
    thought had hurt his friend, that motive was established. The role of any
    alleged pre-existing racial animus could add little, if anything. On the other
    side, the evidence had the potential for both moral and reasoning prejudice; it
    would be a distraction to the jury and could lead to propensity reasoning on
    their part.

[47]

I
    agree with the appellant that raising the spectre of racial animosity on the
    part of an accused is clearly a serious matter and will be prejudicial to the
    view the jury takes of such an accused. I also agree that on the evidence, the
    Crown may not have needed to show an extra motive to prove the driving offences
    beyond the appellants rage after his friend Mr. Perry was beaten up. However, it
    was for the trial judge to weigh the probative value of the evidence against its
    prejudicial effect: see for example
R. v. White
, 2011 SCC 13, [2011] 1
    S.C.R. 433, at paras. 50-53. The trial judge was satisfied on the record he had
    that it would leave the jury with a skewed understanding of the context for the
    appellants driving if they did not hear the whole evidence of the prior
    incident including the hearsay statements. The trial judge concluded that a
    limiting instruction against propensity reasoning would be sufficient to guard
    against this prejudice.

(7) Conclusion

[48]

I
    am satisfied that the hearsay statements were properly admitted. I would
    therefore not give effect to this ground of appeal.

Issue 2: Were the
    instructions to the jury adequate as to how they could use the hearsay
    statements?

[49]

Once
    the trial judge decided to admit the evidence, it was incumbent on him to make
    the jury understand that in order to use the hearsay statements, they had to be
    satisfied that they were sufficiently reliable to establish that the appellant
    shared the racist intention expressed in those statements. To do this, the jury
    had to accept the evidence tendered by the Crown to corroborate that the
    appellant shared this intention. The only evidence they could use to do that
    was the evidence of his prior and subsequent conduct.

[50]

The
    issue for the jury, therefore, was whether they were satisfied from the
    evidence heard at trial that the appellant acted as a leader instigating the
    group to go to the bridge in order to push fishermen of Asian descent into the
    water, or that he was one of the people who pushed the fishermen in. Although
    the evidence that the appellant had actually pushed someone into the water was
    severely undermined on cross-examination, there was still evidence that
    indicated that the appellant suggested the partying at the bridge, that he had
    private communications with a couple of the other partyers before they took
    off, and that his truck was in the lead on the way there and in taking off
    afterward.

[51]

The
    jury members were given the judges charge in writing as well as hearing it
    from the judge. The charge contained a full and fair review of the evidence on
    the issue of whether the appellant was involved in the pushing incident and, if
    so, to what extent. The evidence on this point went both ways, including the
    appellants full denial of any knowledge or involvement.

[52]

However,
    when the trial judge came to discuss the issue of the appellants motive to
    commit aggravated assault while driving, the list of factors he set out included
    only the positive evidence that could amount to motive, including racial animus.
    This was not balanced. He should have listed here the evidence that the
    appellant was not involved in the pushing incident, that he was not the leader
    of the group, and that he denied any racial animus. However, given the trial
    judges full review of the evidence earlier in the charge, I am satisfied that
    there was no error on this issue.

[53]

Furthermore,
    the use that the jury could make of the statements was clarified in the
    subsequent section of the charge labelled Limiting Instruction, quoted above.
    In that section, the trial judge told the jury that the only use they could
    make of the hearsay statements, if they found them credible and reliable, was
    to decide whether there was a common group intention in going to the docks
    that included Mr. Middleton. This statement made it clear to the jury that
    they could not use the statements as evidence against the appellant if they did
    not find them credible and reliable, and even if they did, they had to decide
    whether Mr. Middleton shared the racial animus expressed by the derogatory
    reference to Asian people. In my view, this instruction was sufficient to bring
    home to the jury the need to attribute to the appellant the intent expressed in
    the statements.

[54]

To
    conclude, I am satisfied that the jury was adequately instructed on the use
    they could make of the hearsay statements against the appellant and not to use
    them as propensity evidence. To the extent that the statements were prejudicial
    because they suggested the appellant had racial animus against the victims,
    that consequence properly flows if the jury accepted that the appellant shared the
    common intention to push the Asian fishermen into the water: see
R. v. Merz
(1999), 46 O.R. (3d) 161, at para. 59.

[55]

I
    would therefore not give effect to this ground of appeal.

Issue 3: Was Crown
    counsels cross-examination of the appellant improper giving rise to an unfair
    trial?

[56]

In
    his cross-examination of the appellant, Crown counsel asked a number of
    questions which invited the appellant to comment on whether Crown witnesses
    were lying. He also disparaged the appellant by telling him in questioning to
    stop all this nonsense, referring to the appellants position that he
    believed his friend Nick Perry had been beaten to death. The appellant submits
    that this conduct by Crown counsel was improper, causing an unfair trial. The
    Crown on appeal acknowledges that this questioning should not have occurred,
    but submits that the impugned questioning was not so serious as to prejudice
    the appellant or cause unfairness.

[57]

In
R. v. Rose
(2001), 53 O.R. (3d) 417 (C.A.), Crown counsel engaged in a
    list of improper trial tactics including: asking leading questions; improper
    cross-examination of his own witness; eliciting prior discreditable conduct
    from the accused as well as improper cross-examination of the accused by
    irrelevant questions about lifestyle; and finally improperly calling on the accused
    to comment on the credibility of Crown witnesses, especially police officers.
    The cumulative effect of these transgressions was to cause an unfair trial and
    a new trial was ordered.

[58]

I
    agree with the Crown that in this case the cross-examination, standing alone,
    did not cause the trial to be unfair. Unlike in
Rose
, there was no
    objection by defence counsel. Although this is not fatal, it speaks to the
    perception of the fairness of the questioning at the time it was going on. Also
    unlike in
Rose
, the challenge to the appellant here was on his
    differences with other members of his group as opposed to police officers who
    have a position of authority in society. Calling police liars may be perceived
    by the jury differently than calling another regular witness a liar. Finally,
    Crown counsels transgression was limited to a few questions. It was not
    prolonged and was not part of a series of other improper tactics.

[59]

I
    would not give effect to this ground of appeal.

Issue 4: Was the sentence manifestly unfit?

[60]

The
    Crown seeks leave to appeal the sentence imposed by the trial judge of two
    years less a day in reformatory followed by three years probation, together
    with a ten-year driving prohibition.

[61]

The
    Crown submits that the trial judge erred by failing to give the factors of
    general deterrence and denunciation sufficient weight, by failing to increase
    the sentence based on the aggravating factor of racial animus, by considering
    an improper mitigating factor, and by imposing a sentence that was so lenient
    as to be manifestly unfit.

[62]

For
    the purpose of considering the sentence, it is necessary to describe what
    occurred after the two fishermen were pushed into the water. At that point, all
    of the appellants group ran back to the three trucks, got in and drove away. The
    appellant then realized that his friend, Nick Perry, was not with them and
    turned around and went back to the docks. There he saw his friend lying injured
    on the road. He became angry and drove towards four of the fishermen who were
    getting into a Honda parked nearby.

[63]

He
    rammed the Honda, forcing it to reverse off the Blue Bridge, then chased it
    down the road at high speed, ramming it about 20 times until the Honda lost
    control and crashed into a tree, ejecting the two back-seat passengers, Shayne
    Berwick and Charles Hogan. Mr. Hogan was thrown into Lake Simcoe and suffered a
    concussion, hypothermia, and a gash to his hand requiring stitches. Mr. Berwick
    was in a coma for several months, eventually emerging with irreparable brain
    damage and permanent disabilities. In the agreed facts his situation was
    described as follows: He will require constant and daily medical attention for
    the rest of his life and the existence he and his family once knew is
    irretrievably lost as a result of Mr. Middletons conduct.

[64]

The
    appellant exacerbated his conduct by stopping his car briefly, ignoring the
    victims cries for help, and leaving without offering any assistance or calling
    the police or an ambulance.

[65]

At
    trial, the Crown asked for a sentence of 8 to 10 years in the penitentiary,
    while the appellant submitted that two years less a day plus a four-year
    driving prohibition would be appropriate. The appellant also spent a lengthy
    period on bail under restrictive terms including no driving.

[66]

The
    trial judge gave thoughtful and detailed reasons for his decision on sentence.
    He noted that the jurys verdict meant that they must have rejected the
    appellants version of the events, in particular that he never made contact
    intentionally with the Honda and that the Honda crashed into the tree because
    it lost control on its own.

[67]

He
    recognized that in order to determine whether some of the aggravating factors
    asserted by the Crown should be applied, he had to make a number of findings of
    fact beyond a reasonable doubt where one could not discern from the jurys
    verdict the findings as to certain factual questions that were put to them. He
    found that the appellant led the group in the three trucks to the Blue Bridge, and
    that, although it was not proved that he was one of the people who pushed the
    fishermen into the water, his driving actions were motivated by both anger as
    well as racial animus against Asians and against the victims in particular.

[68]

He
    also found that the appellants moral culpability was extremely high based on
    his deliberate, prolonged, high-speed, high-risk driving and ramming of the
    Honda.

[69]

In
    discussing the appropriate sentence, the trial judge acknowledged that, had the
    appellant been an adult with life experience, given all of the circumstances
    and aggravating factors, the sentence proposed by the Crown of 8 to 10 years
    would have been appropriate on the basis of the factors of general deterrence
    and denunciation of the appellants conduct, including the animus of bias and
    prejudice. That bias could not then be attributed to abysmal [youthful]
    ignorance.

[70]

However,
    the trial judge believed that because the appellant was a youthful first
    offender with a solid background whose actions that night were completely out
    of character, a sentence of 8 to 10 years would be too harsh. He referred to
    the jurisprudence of this court on the issue of sentencing youthful first
    offenders, which has held that a first penitentiary sentence for a youthful
    offender should rarely be determined solely by the objectives of denunciation
    and general deterrence:
R. v. Q.B.
(2003), 63 O.R. (3d) 417, at para.
    36. The trial judge mentioned the appellants work history as a motor-cross
    racer from the age of 15 as well as a number of letters of support from
    employers and others. He was also impressed by the appellants role as
    care-giver to his brother who, since the date of the offences, had suffered
    brain-damage with life-long injuries.

[71]

Recognizing
    the seriousness of the offences and their consequences, the trial judge explicitly
    imposed the maximum reformatory sentence of two years less a day, plus the
    maximum probation of three years, plus the maximum driving prohibition of 10
    years. He referred to the combined term as essentially a five-year sentence of
    supervision. During the first 18 months of probation, the appellant is obliged
    to perform 240 hours of community service assisting seniors and the handicapped
    as well as attending courses on the ethnic mosaic of our country. For the first
    year of his probation he would be under a curfew in his residence from 9 p.m.
    to 6 a.m. unless accompanied by two designated people.

[72]

Contrary
    to the submission of the Crown, the trial judge was acutely alive to the
    gravity of the offence and the need to determine and impose a sentence that
    adequately addressed the need to deter and to denounce the appellants conduct,
    but at the same time recognize his youth, his unblemished past, and his
    potential for the future. Again contrary to the submission of the Crown, it is
    clear that the sentence imposed by the trial judge was intended to reflect the
    aggravating factor of racial prejudice that he found had animated the
    appellants actions. The trial judge spent a good portion of his reasons
    discussing this issue and making his factual finding based on the evidence.

[73]

The
    Crown also suggests that the trial judge made an error of law when he stated
    that the higher sentence would have been appropriate if the appellant had been
    convicted of attempted murder, implying that an absence of intent to kill was
    treated as a mitigating factor. I do not read the judges reasons in that way,
    nor do I see any error. This statement formed part of his analysis as to the
    circumstances that would have justified the higher sentence, including an older,
    more worldly offender who had the intent to kill, factors not present in this
    case.

[74]

This
    case represents an example of a situation where the sentence chosen by the
    trial judge within the appropriate range is to be accorded the deference of
    this court. As the Supreme Court recently stated in
R. v. Nasogaluak
,
    2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43:

No one sentencing objective trumps the others and it falls to
    the sentencing judge to determine which objective or objectives merit the
    greatest weight, given the particulars of the case.

[75]

In
R. v. Ramage
, 2010 ONCA 488, 257 C.C.C. (3d) 261, Doherty J.A. explained
    the three reasons why appellate deference to a trial judges sentencing
    decision makes sense: 1) because judges have varying views on the
    appropriateness of any particular sentence, it is not often an effective use of
    judicial resources for an appellate court to substitute its view for that of
    the trial judge; 2) the trial judge who heard the evidence and saw the accused
    and victims is in the best position to balance the factors and competing
    interests;  and 3) the trial judge reflects the views and needs of the
    community in which the offence occurred and the affected people often reside.

[76]

While
    the sentence imposed here can certainly be viewed as one at the lower end of
    the scale, the trial judge was clearly attempting to impose the maximum he
    could without sending the appellant, as a youthful first offender, to the
    penitentiary. This did not constitute an error of law. It reflects the very
    serious conduct and consequences for the victims, while giving effect to the
    principles of individual deterrence, denunciation and prospects for
    rehabilitation. The sentence is not manifestly unfit.

[77]

The
    trial judges reasons were thor
ough and nuanced in their
    analysis of the delicate array of issues that impacted on the determination of
    the appropriate sentence in this case. I would defer to his decision.

[78]

I
    would grant leave to appeal sentence but dismiss the appeal.

K. Feldman
    J.A.

I
    agree Doherty J.A.

I
    agree H.S. LaForme J.A.

Released: D.D.  August 2, 2012

[1]
All counsel and the trial judge treated the two statements as hearsay and
    addressed their admissibility and use as such. The jury charge was based on
    that ruling. On appeal for the first time, Crown counsel sought to argue that
    the statements were not hearsay. As I have found that the statements were
    properly admitted, I have not addressed that issue in these reasons.

[2]
In
Starr
, there is a disagreement between the
    majority and McLachlin C.J. in dissent over the application of the present
    intentions exception to the hearsay rule to non-declarant third parties, not
    respecting their intentions but whether they carried out the common intention.
    The dispute concerns the use of the victims statement of common intention, and
    the inference that the victim would have acted on that intention, as a way of
    demonstrating that the third party, i.e. the accused, participated with the
    victim in the intended behaviour. See
R. v. Maciel
, 2007 ONCA 196, 219
    C.C.C. (3d) 516, at paras. 73-77 for a discussion of this point. In this case,
    however, the issue was not about whether the intended actions were carried out.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Nguyen, 2012 ONCA 534

DATE: 20120807

DOCKET: C54562

Doherty, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

Van Dong Nguyen

Respondent

Kevin Wilson, for the applicant (appellant)

Victoria Rivers, for the respondent

Heard:  August 3, 2012

On appeal from the sentence imposed on October 25, 2011
    by Justice Ronald Boivin of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The trial judge is entitled to rely on hearsay to make findings of fact on
    sentence even if the facts are disputed:  s. 723(5).  Of course, the party
    relying on the disputed fact carries the onus:  s. 724(3)(b).  We see no legal
    impediment to a party discharging that burden with disputed hearsay evidence,
    although trial judges will, quite properly, often decline to rely on hearsay
    evidence to prove facts in dispute.

[2]

We will not interfere with the trial judges findings that the
    respondent was an addict, turned to crime to support his habit and was taking
    rehabilitative steps.  In light of these facts, it cannot be said that the
    sentence is unfit.

[3]

Leave to appeal is granted, but the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Smits, 2012
    ONCA 524

DATE: 20120801

DOCKET: C53404

Laskin and Blair JJ.A. and Brown R.S.J. (
Ad
    Hoc
)

BETWEEN

Her Majesty the Queen

Appellant

and

Jody Smits

Respondent

Benita Wassenaar, for the appellant

Diana Lumba, for the respondent

Heard: February 16, 2012

On appeal from the decision of the summary conviction
    appeal court dated February 4, 2011 by Justice Patrick J. Flynn of the Superior
    Court of Justice, allowing the appeal from the conviction entered on January 7,
    2010 by Justice Margaret F. Woolcott of the Ontario Court of Justice.

Brown R.S.J. (
ad hoc
):

I.

INTRODUCTION

[1]

This is a Crown appeal from a successful defence summary conviction
    appeal.  The respondent, Jody Smits, was found guilty at trial of having care
    or control of a motor vehicle while impaired and over 80 contrary to s.
    253(1)(a) and s. 253(1)(b) of the
Criminal Code
, R.S.C. 1985, c. C-46,
    respectively.  The trial judge entered a conviction on the impaired charge and
    stayed the finding of guilt on the over 80 charge.  On appeal, the summary
    conviction appeal judge reversed the trial judge on the impaired charge and
    entered an acquittal.

[2]

The Crown seeks leave to appeal, and if leave is granted, appeals from
    the summary conviction appeal court judgment and asks this court to restore the
    conviction and sentence.

[3]

For the following reasons, I would grant leave to appeal, allow the
    appeal and restore the conviction and sentence.

II.

BACKGROUND

[4]

This was not an unusual fact situation seen by judges in the criminal
    courts of our province.  It involved the often litigated issue of whether an
    impaired occupant of a motor vehicle, who is found asleep or passed out in the
    vehicle, is nevertheless in care or control of that vehicle.

[5]

In this case, the respondent was found passed out in the rear seat of a
    minivan.  The van, which was not owned by the respondent, was parked on the
    side of a country road.  The key was in the ignition, but the engine was not
    running.  Impairment was conceded at trial.  The respondent provided two breath
    samples that well exceeded the legal limit.  Although certain of his statements
    to the police were admitted into evidence, the respondent did not testify nor
    did he call any evidence in his defence.

[6]

The respondent was convicted pursuant to s. 253(1)(a) of the
Criminal
    Code
of having care or control of a motor vehicle while impaired.  He
    received a sentence of four months imprisonment in addition to credit given for
    pre-trial custody.  The incarceration was to be followed by two years probation
    and a three year driving prohibition.  The respondent also pleaded guilty to
    breaching his probation by consuming alcohol.

[7]

In overturning the respondents conviction, the summary conviction
    appeal judge held that the trial judge had erred in concluding the respondent
    had care or control of the motor vehicle.  He found that it was mere
    speculation to say that the respondent would still be impaired at the time he
    awoke in the motor vehicle and decided to drive.

[8]

It may be helpful to briefly summarize the facts and the decisions in
    the trial court and the summary conviction appeal court below.

(i)

The Facts

[9]

The respondent was found passed out in the back of a van on the morning
    of August 22, 2009.  The van was parked on the side of Studiman Road, a county
    road in a rural area near Cambridge.  The roadway was narrow, with no shoulder,
    and the van was parked with its passenger side wheels on the grass and the left
    rear corner was still on the road.

[10]

A
    nearby resident woke up that morning, looked out his window and saw a minivan
    parked in the ditch.  It was around 7:15 a.m.  He went to get dressed for
    work.  When he came back to the window, the van was still there.  It was
    unusual to see a vehicle parked there.  As the resident pulled out of the
    driveway on his way to work, he stopped beside the van and walked over to it.
    He looked through the vans front window and saw a pair of legs and shoes on
    the back seat.  A cell phone was lying open on the otherwise empty drivers
    seat.  He banged on the window.  When there was no movement, he began to worry
    that the vans occupant might be dead.  He called the police on his way to work
    at 8:26 a.m.

[11]

Three
    police officers arrived on scene just before 8:45 a.m.  The van was not
    running, but one of the officers touched the hood and observed that it was
    warm.  The officers looked into the van and saw the respondent passed out on
    the rear seat.  They knocked on the window in an attempt to rouse the
    respondent, but he did not awaken.  One of the officers entered the van through
    the unlocked drivers side door.  He saw the cell phone flipped open on the
    drivers seat and noted that the keys were in the ignition.  He tried to rouse
    the respondent by calling out to him.  After several attempts, the respondent
    awoke.  He appeared to be disoriented and was directed to exit the van.

[12]

The
    respondent stumbled as he got out of the van.  He looked haggard.  His eyes
    were bloodshot and glassy, his breath smelled of alcohol, and he swayed.  He
    was described as obviously intoxicated.  He had scabbed cuts around his right
    eye and on his nose, and his jeans were torn.  The respondent was placed under
    arrest at 9:00 a.m. for impaired care or control of a motor vehicle.

[13]

The
    officers made notes of what they observed in the van:  a glass of orange juice
    in the centre cupholder, a partially empty unsealed bottle of vodka between the
    two front seats, an open can of Budweiser on the floor in the rear passenger
    area, an empty Budweiser can underneath the drivers seat, and a red duffle bag
    on the floor with another can of beer on top of it.  One of the officers also
    found an envelope containing a birth certificate and social insurance card,
    both in the name of Jody Smits, and a printed resume with the name Jody Smits
    on it.  The officers noted that the van had an opening between the back seat
    and the front seats where a middle seat may have been removed.  A person could
    move up to the drivers seat from the back seat area with no obstruction.

[14]

After
    taking an inventory of the van, one of the officers called a towing company to
    remove the vehicle.  The respondent asked the officers to take his cell phone
    out of the van first.  An officer did so, and noted that the phones battery
    was almost dead.  When the tow truck arrived, the driver was able to start the
    van with one turn of the key, and drove it off the grass onto the roadway
    without any difficulty.  The van had an automatic transmission.

[15]

At
    9:10 a.m. the respondent was transported to the nearest available police
    station, where he provided two breath samples.  The first, administered at
    10:24 a.m., registered a reading of 147mg of alcohol in 100ml of blood and the
    second, administered at 10:49 a.m., registered 138mg.  The respondent told the
    police he had also taken two Percocets.  In a statement recorded on DVD, the
    respondent denied having driven the van, but admitted to sitting in the
    drivers seat just before he passed out.  He said that a friend had driven him
    to where the van was parked, but the friend had left. He would not provide his
    friends name to the police.  He said he did not own the van but would not say
    who did own the van.  He insisted that he was just a passenger passed out in
    the van.

(ii)

The
    Trial Decision

[16]

At
    trial, the Crown sought to establish that the respondent had care or control of
    his vehicle by relying on the risk that a person might change his or her mind
    and drive while impaired.  In the Crowns submission, there was sufficient
    evidence to prove beyond a reasonable doubt that there was a risk the
    respondent would have awoken and attempted to drive his van while still
    impaired.

[17]

As
    noted, the respondent conceded impairment at trial.  Counsel for the respondent
    argued that the Crowns position was based on speculation, and that there was
    no evidence of a risk that the respondent would have set the vehicle in motion.

[18]

The
    trial judge instructed herself that she could only find care or control based
    on the change of mind argument if she were satisfied there was a concrete and
    tangible likelihood that the respondent would have decided to drive while
    still impaired.  In assessing whether the respondent had presented such a
    likelihood, the trial judge emphasized the following findings of fact:

·

The respondents ability to operate a motor vehicle was impaired
    by both a drug and alcohol;

·

The respondent was the sole occupant of the van at the time in
    question;

·

The keys were in the vans ignition;

·

There was nothing to suggest that any other person was associated
    with the van at any time after 7:00 a.m. and nothing to suggest other than the
    rantings of the respondent, that any other person had been associated with
    the van prior to the point in time when it had arrived at that location;

·

The respondent had entered the van with the intention of
    returning to his residence in Barrie and had no alternate plan for getting
    home;

·

In the rural area where the van was found, it would have been
    difficult, if not impossible, for the respondent to arrange for alternate
    transportation absent calling someone to come pick him up;

·

After the van was parked at the roadside, the respondent sat in
    the drivers seat and contemplated driving, but decided against it;

·

The respondents attitude was volatile and changeable as recorded
    on a DVD filed in evidence; his judgment was clearly impaired.

[19]

In
    addition to the above-noted findings of fact, the trial judge also noted that
    the respondent had ready access to additional alcohol, there being more open
    beer and open vodka in the van.  There was no basis for supposing that the
    respondent had decided to simply wait out the impairment before he drove
    again.

[20]

Even
    if the respondent had been trying to wait out the impairment, the trial judge
    held that [m]erely because he was difficult to rouse does not support an
    inference that he would have remained passed out until he had achieved a state
    of sobriety and thus not pose a risk to set the motor vehicle in motion while
    impaired.

[21]

The
    trial judge held, on an analysis of all the circumstances, that there was a
    concrete and tangible likelihood the respondent would have woken up  and
    decided he was going to move the van, and that this would occur while he was
    still impaired.  She found that the circumstances represented exactly the kind
    of danger that was contemplated by the framers of the care or control
    legislation.

(iii)

Summary Conviction Appeal Decision

[22]

The
    respondent appealed his conviction.  At the summary conviction appeal court the
    respondent submitted the trial judge had erred in finding that he was in care
    or control of his motor vehicle.  Specifically, he argued that an individual
    found asleep in the back seat of a vehicle does not create the public risk that
    s. 253(1) was designed to prevent and there was no more than a mere possibility
    that he would have changed his mind and endangered society by choosing to drive
    while impaired.

[23]

In
    response, the Crown argued that the trial judges finding of guilt was fully
    supported by the evidence adduced at trial and that it was not the role of the
    summary conviction appeal court to retry the case.

[24]

In
    reversing the trial judge, the summary conviction appeal judge found the Crown
    had failed to prove that the respondent had been in care or control of his
    vehicle.  He held that the findings of the trial judge were based on
    speculation.  The key portions of the summary conviction appeal judges reasons
    are as follows:

The difficulty for this court is that a careful analysis of
    Justice Woolcotts core reasoning, the ratio of her decision to which I have
    referred earlier, does show a certain measure of speculation.  That speculation
    comes when she says there was a concrete and tangible likelihood that Mr. Smits
    would cease to be passed out and would decide that he was going to move the
    van.  And importantly, that that would occur at a time when his ability to do
    so, that is to say to operate the van, was impaired by the consumption of
    alcohol and that represents the danger that is considered.

There is no judicial notice taking by Justice Woolcott of [the]
    rate of elimination.  We know not when the van got in that position.  We know
    when it was discovered.  And accordingly, it is mere speculation to say that
    the alcohol could not have been eliminated from his system by the time he drove
    the car because none of us knows when any of that would happen.

[25]

The
    summary conviction appeal judge allowed the appeal.

III.

ISSUES

[26]

The
    Crown advances two arguments on this appeal and submits that:

(i)      This is a
    proper case for leave to appeal to this court on summary conviction proceedings
    pursuant to s. 839 of the
Criminal Code
; and,

(ii)      The
    summary conviction appeal judge erred in law by applying an incorrect standard
    of review and substituting his opinion for that of the trial judge on the issue
    of whether the respondent had care or control of a motor vehicle in this case.

IV.

ANALYSIS

Issue No. 1:  Leave to Appeal

(i)

Crown Application for Leave

[27]

This
    court established in
R. v. R.(R.)
, 2008 ONCA 497, 90 O.R. (3d) 641,
    and has repeated numerous times since then, that leave to appeal pursuant to s.
    839 should only be granted in two distinct categories of cases:

(i)

Where the merits of the proposed question of law are arguable, even if
    not strong, and the proposed question of law has significance to the
    administration of justice that goes beyond the particular case.

(ii)

Where there appears to be a clear error even if it cannot be said that
    the error has significance to the administration of justice beyond the
    particular case.

[28]

Moreover,
    at para. 27 of
R.(R.)
, Doherty J.A. emphasized that access to this
    court for a second appeal should be limited to those cases in which the applicant
    can demonstrate some exceptional circumstance justifying a further appeal.

[29]

The
    Crown submits that several factors favour leave to appeal in this case.  To
    begin with, the Crown submits that its arguments for error are strong.  As
    well, the Crown submits that although the issues raised on this care or control
    case are highly fact specific, it is also an area of law that is highly
    litigated in the lower courts.  Many of the frequently cited cases are lower
    court decisions.  The Crown submits that it would be beneficial to have
    guidance from this court on the scope of the change of mind aspect of the
    risk of danger concept that underpins the care or control jurisprudence.

[30]

In
    response, the respondent argues that the present case cannot be brought under
    either of the two permissible categories to warrant granting leave to appeal to
    this court.  That is, its issues are not sufficiently meritorious, nor does it
    raise a significant question for the administration of the justice system.

[31]

In
    particular, the respondent submits that the question of law posed by the Crown
    is not one that transcends the peculiar facts of this case.  The respondent
    argues that while the factual matrix of any case is of significance to the
    individual person or persons charged, in this case the legal soil of the care
    or control jurisprudence has been well-tilled.  The respondent submits that no
    new principle is advanced here, rather, only the application of well
    established principles to the singular circumstances of this case.

[32]

I
    am persuaded that the issues raised in this appeal have significance to the
    administration of justice beyond the facts of this case.  How the courts have
    interpreted the issue of care or control has generated significant
    jurisprudence at the lower court level in this province.  Not all of this
    jurisprudence has been consistent when dealing with the situation, as in this
    case, of an impaired occupant of a motor vehicle.  I am of the view that the
    summary conviction appeal judge erred in holding that the finding of the trial
    judge that the respondent was in care or control of the vehicle was based on
    speculation.  I am satisfied that, if left uncorrected, this error would have
    the potential to negatively affect many other care or control cases.

[33]

For
    these reasons, I would grant leave to appeal on the issues raised by the Crown.

(ii)

Additional
    issue

[34]

As
    an additional issue, the respondent seeks leave to argue that there was a
    fundamental flaw in the reasoning of the trial judge by her failure to analyze
    the exculpatory statements of the respondent in accordance with
R. v.
    W.(D.),
[1991] 1 S.C.R. 742.  This legal argument was not raised at trial
    nor does it appear in the respondents Notice of Appeal or either of the
    parties factums filed before the summary conviction appeal court.  The summary
    conviction appeal judge himself only makes a brief reference to
W.(D.)
in his reasons on appeal and the
W.(D.)
issue is not the basis upon
    which the appeal was granted.

[35]

This
    court has stated in
R.R.
, at para. 38, that generally speaking it will
    not entertain legal arguments that are not advanced at the first level of
    appeal.  In this case, however, I would exercise the courts discretion in
    favour of permitting the respondent to raise this supplementary argument.  It
    appears that this issue was raised in oral argument, at least, at the first
    level of appeal; there was no tactical reason for not raising it initially; and
    the trial record is sufficient:  see
R. v. Sweeney
(2000), 50 O.R.
    (3d) 321 (C.A.), at paras. 31-40.

[36]

Essentially,
    the respondents argument is that although the respondent did not testify and
    called no evidence, there were certain exculpatory statements of the respondent
    introduced into evidence by the Crown that were capable of supporting a
    reasonable doubt on the central issue of care or control.  Accordingly, the
    respondent submits that the failure of the trial judge to consider those
    statements in accordance with
W.(D.)
is a fatal error on the part of
    the trial judge and also fatal to the Crowns success on this appeal.

[37]

There
    is now no doubt that in light of this courts decision in
R. v. D.(B.),
2011
    ONCA 51, at para. 114, that, even if an accused does not testify or call any
    evidence, where there are credibility findings on a vital issue to be made between
    conflicting evidence arising out of evidence favourable to the defence in the
    Crowns case, the trial judge must relate the concept of reasonable doubt to
    those credibility findings.  The trial judge must do so in a way that makes it
    clear that it is not necessary for the trier of fact to believe the evidence
    favourable to the defence on that trial issue.  Rather, it is sufficient if,
    viewed in the context of all the evidence, the conflicting evidence leaves the
    trier of fact in a state of reasonable doubt as to the accuseds guilt.  In
    that event, the trier of fact must acquit.

[38]

In
    fairness to the trial judge,
D.(B.)
had not been decided when she
    released her reasons for judgment.  This may account for why she did not refer
    to
W.(D.)
in this case where the accused did not testify nor call
    evidence.

[39]

Trial
    judges in a judge alone trial do not need to adhere slavishly to the
W.(D.)
formula.  It should, however, be clear from an examination of the reasons that
    at the end of the day the trial judge has had regard for the basic principles
    underlying the
W.(D.)
instruction:  see
R. v. Minuskin
(2000),
    68 O.R. (3d) 577 (C.A.), at para. 22.

[40]

The
    respondent argues that his statements to the police that another person had
    driven him to the location where the van was found and left him in the van (a
    person whom he would not identify) were capable of supporting a reasonable
    doubt on the vital issue of care or control.

[41]

An
    examination of the trial judges reasons makes it very clear that at no time
    could it be said that any adverse findings of credibility that the trial judge
    made in connection with the exculpatory statements of the respondent led her
    inescapably to a finding of guilt.

[42]

Indeed
    the opposite is true.  Her very careful reasons demonstrate a detailed consideration
    of all the evidence in the case, including the exculpatory statements of the
    respondent, from which she concluded she was not left in a state of reasonable
    doubt that the respondent had care or control of the motor vehicle.

[43]

Nor
    do her reasons in any way support the view that the Crown was in some way
    relieved of the burden of proving the case against the respondent beyond a
    reasonable doubt.

[44]

In
    my view, the reasons of the trial judge do not reveal any errors of law.  I am
    satisfied her reasons have regard for the principles articulated in
W.(D.)
.
    Accordingly, although I would grant the respondent leave to raise this
    supplementary argument, for the reasons I have expressed, I would not give
    effect to it.

Issue No. 2:
    Did the summary conviction appeal judge err in applying an incorrect standard
    of review and substituting his opinion for that of the trial judge on the issue
    of whether the respondent had care or control of the motor vehicle?

[45]

In
    order to answer this question, I think it is necessary to review the law
    regarding the care or control of a motor vehicle as it relates to the facts of
    this case briefly.

(i)

Care or Control of a Motor Vehicle

[46]

Section
    253 of the
Criminal Code
states:

(1) Every one commits an offence who operates a motor
    vehicle or vessel or operates or assists in the operation of an aircraft or of
    railway equipment or has the care or control of a motor vehicle, vessel,
    aircraft or railway equipment, whether it is in motion or not,

(a)  while the persons ability to operate the
    vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a
    drug; or

(b) having consumed alcohol in such a quantity
    that the concentration in the persons blood exceeds eighty milligrams of
    alcohol in one hundred millilitres of blood.

[47]

The
    Crown can establish care or control of a motor vehicle in a variety of ways.
    The first is by relying on the statutory presumption found in s. 258(1)(a) of
    the
Criminal Code
.  Where an accused is found in the drivers seat,
    the accused must establish on a balance of probabilities that he or she did not
    occupy the drivers seat for the purpose of setting the vehicle in motion.

[48]

Where
    the statutory presumption is rebutted or is not available on the evidence, as
    in this case, the Crown can rely on what is commonly referred to as
de
    facto
or actual care or control.

[49]

The
mens rea
for having the care or control of a motor vehicle is the
    intent to assume care or control after the voluntary consumption of alcohol or
    a drug.  The
actus reus
is the act of assumption of care or control
    when the voluntary assumption of alcohol or a drug has impaired the ability to
    drive: see
R. v. Toews
, [1985] 2 S.C.R. 119, at pp. 123-124.

[50]

The
    real issue in this case turns on the
actus reus
of the offence of care
    or control.

[51]

In
R. v. Wren
(2000), 144 C.C.C. (3d) 374, at para. 16, this court
    considered the prior jurisprudence, including
Toews
and other leading
    decisions from the Supreme Court of Canada and described the
actus reus
of the offence of care or control in this way:

[I]n order to establish care or control of a motor vehicle, the
    act or conduct of the accused in relation to that motor vehicle must be such
    that there is created a risk of danger, whether from putting the car in motion
    or in some other way.

[52]

While
Wren
makes it clear that proof of a risk of danger is a necessary
    ingredient to establish the
actus reus
of care or control, the more
    difficult question is what kind of risk of danger is sufficient for the Crown
    to establish care or control.

[53]

Courts
    have answered this question by recognizing that danger can come in many forms.
    It would appear that three risks of danger have been identified in the cases
    where an intoxicated individual uses a motor vehicle for a non-driving purpose:

(i)

The risk that the vehicle will unintentionally be set in motion: see
R.
    v. Ford
, [1982] 1 S.C.R. 231;

(ii)

The risk that through negligence a stationary or inoperable vehicle may
    endanger the individual or others:  see
R. v. Vansickle
, [1990] O.J. No.
    3235 (C.A.), affg [1988] O.J. No. 2935 (Dist. Ct.);

(iii)

The risk that the individual who has decided not to drive will change
    his or her mind and drive while still impaired:  see
R. v. Pelletier
(2000),
    6 M.V.R. (4th) 152 (C.A.).

[54]

This
    case deals with the third enumerated risk of danger:  the risk that the
    individual who has decided not to drive will change his or her mind and drive
    while impaired.

[55]

The
    Supreme Court addressed the rationale behind the change of mind ground for
    care or control in
Toews.
In
Toews,
at p. 126,

McIntyre
    J. quoted the following passage from
R. v. Price
(1978), 40 C.C.C.
    (2d) 378 (N.B.C.A.), at pp. 383-84
:

The mischief sought to be prohibited by the section as
    expressed by the wording is that an intoxicated person who is in the immediate
    presence of a motor vehicle with the means of controlling it or setting it in
    motion is or may be a danger to the public.  Even if he has no immediate
    intention of setting it in motion he can at any instant determine to do so,
    because his judgment may be so impaired that he cannot foresee the possible
    consequences of his actions.

[56]

In
    order to find care or control based on the change of mind ground, the Crown
    must prove there was risk that the respondent would have decided to drive while
    still impaired.  The risk does not have to rise to the level of probability.
    The risk of danger stated by this court in
R. v. MacMillan
, 2005
    CanLII 16073, at para. 4, was the possibility that after the tow truck
    operator arrived and extricated the car, the respondent could have changed his
    mind and driven off, or inadvertently could have set the car in motion.

[57]

That
    being said, what risk of danger must exist to establish actual care or control
    based on the change of mind ground has been the subject of much debate.  The
    topic has generated considerable judicial attention in the courts below.  While
Wren
continues to be binding authority in this province,
Wren
has
    spawned a number of cases with differing definitions on the required risk of
    danger.

[58]

For
    example,  the courts below have variously described the risk of danger in cases
    dealing with the change of mind ground as a real risk see
R. v. Szymanski
(2009), 88 M.V.R. (5th) 182 (S.C.), at para. 91; realistic and tangible,
    not speculative or fanciful see
R. v. Sandhu
(2008)
,
76
    M.V.R. (5th) 305 (S.C.), at para. 71; a realistic risk see
R. v. Ferguson
(2005), 15 M.V.R. (5th) 74 (S.C.), at para. 24; and going beyond mere
    possibility, more than speculative and concrete and tangible, see
R.
    v. Ross
, 2007 ONCJ 59, 44 M.V.R. (5th) 275,  at para. 13.

[59]

However,
    since
Wren
, this court has not attempted to modify or qualify in any
    way the type of risk of danger required to establish care or control of a motor
    vehicle.  Cases such as
MacMillan, Pelletier, R. v. Quigley
, [2000]
    O.J. No. 3963 (C.A.)

and
R. v. Cadieux
(2004), 47 M.V.R.
    (4th) 53 (C.A.) have all followed the
Wren
definition of the
actus
    reus
of care or control.  While the court in
Quigley
referred to
    a real and obvious risk it was not attempting to re-define the risk of danger
    set out in
Wren
.  The court was simply observing the type of risk that
    existed on the particular facts of that case.

[60]

Although
    the courts below have applied different modifiers, what all the authorities,
    including this court, seem to be saying is that in order to establish that an
    accused has created a risk of danger in change of mind cases, the Crown must
    demonstrate a risk that an accused, while impaired, would change his or her
    mind and put the vehicle in motion.  That risk must be based on more than
    speculation or conjecture.  Saying that any person whose ability to operate a
    motor vehicle is impaired to any degree might change his or her mind is not
    sufficient.  The trier of fact must examine the facts and determine if there is
    an evidentiary foundation that such risk of danger exists.

[61]

I
    appreciate that this task is not without its challenges because a finding of
    whether a risk of danger arises in circumstances where an accused is not
    actually driving requires the trial judge to engage in an assessment of what in
    all the particular circumstances may occur in the not too distant future.
    However, that is all part of the fact-finding process for the trier of fact.

[62]

Whether
    a risk of danger arises on the facts is determined by assessing  circumstantial
    evidence.  The following comments from Watt J.A. in his text
Watts Manual
    of Criminal Evidence
(Toronto:  Carswell, 2011), at p. 43, illustrate the
    approach that must be taken:

Where evidence is circumstantial, it is critical to distinguish
    between inference and speculation.
Inference
is a deduction of fact
    that may logically and reasonably be drawn from another fact or group of facts
    found or otherwise established in the proceedings.  There can be
no
inference without objective facts from which to infer the facts that a party
    seeks to establish.  If there are
no
positive proven facts from which
    an inference may be drawn, there can be no inference, only impermissible
    speculation and conjecture.

[63]

In
Szymanski
, at para. 93,  Durno J. provides an excellent, although
    non-exhaustive, list of factors a court might look at when engaging in a risk
    of danger analysis on the basis of circumstantial evidence:

(a)     The level
    of impairment, which is relevant to the likelihood of exercising bad judgment
    and the time it would take for the accused to become fit to drive;

(b)     Whether the
    keys were in the ignition or readily available to be placed in the ignition;

(c)     Whether the
    vehicle was running;

(d)     The
    location of the vehicle;

(e)     Whether the
    accused had reached his or her destination or if the accused was still required
    to travel to his or her destination;

(f)      The
    accuseds disposition and attitude;

(g)     Whether the
    accused drove the vehicle to the location where it was found;

(h)     Whether the
    accused started driving after drinking and pulled over to sleep it off or
    started using the vehicle for purposes other than driving;

(i)      Whether
    the accused had a plan to get home that did not involve driving while impaired
    or over the legal limit;

(j)      Whether
    the accused had a stated intention to resume driving;

(k)     Whether the
    accused was seated in the drivers seat regardless of the applicability of the
    presumption;

(l)      Whether
    the accused was wearing his or her seatbelt;

(m)    Whether the
    accused failed to take advantage of alternate means of leaving the scene;

(n)     Whether the
    accused had a cell phone with which to make other arrangements and failed to do
    so.

[64]

Adapting
    the language in
Wren
to the facts of this case, the question becomes
    did the conduct of the respondent in relation to the motor vehicle create a
    risk that the respondent, while impaired, would put the vehicle in motion and
    thereby create a danger?

[65]

In
    all the circumstances, and considering the factors set out by  Durno J. in
Szymanski,
it was open to the trial judge in this case to conclude that the conduct
    of the respondent in relation to the motor vehicle created a risk that the
    respondent, while impaired, would put the vehicle in motion and thereby create
    a danger.

[66]

For
    the reasons that follow, I am of the view that in overturning this finding of
    the trial judge, the summary conviction appeal judge erred.

(ii)

Analysis
    of Grounds on Appeal

[67]

Under
    s. 686(1)(a)(i) and s. 822(1) of the
Criminal Code
, the jurisdiction
    of the summary conviction appeal judge to review the finding as to sufficiency
    of the evidence is limited.  A summary conviction appeal judge is not entitled
    to retry the case or to substitute his or her own view of the evidence for that
    of the trial judge.  A summary conviction appeal judge has no basis upon which
    to interfere with a trial judges findings unless they are unreasonable or
    unsupported by the evidence:  see
R. v. Grosse
(1996), 29 O.R. (3d)
    785 (C.A.), at pp. 791-92.

[68]

The
    Crown submits that the summary conviction appeal judge erred in law by applying
    an incorrect standard of review and substituting his opinion for that of the
    trial judge on the issue of whether the respondent had care or control of a
    motor vehicle.

[69]

The
    respondent takes a different view.  He submits that the summary conviction
    appeal judge did not apply an incorrect standard of review.  He submits that
    the summary conviction appeal judge correctly held that the trial judge engaged
    in speculation by failing to analyze when the respondent would have awoken and
    been in a position to change his mind about driving and his projected fitness
    level at the time.

[70]

I
    agree with the comments of the summary conviction appeal judge, who is an
    experienced judge, that these cases are, in his words, difficult to call.
    However, the factors set out by Durno J. in
Szymanski
referred to
    above provide valuable assistance to trial judges in determining whether the
    requisite risk of danger has been established.

[71]

In
    this case, there was ample circumstantial evidence to support the trial judges
    conclusion that the respondent was in care or control of the van.  Her finding
    that the respondent would have decided to drive while still impaired was
    supported by the following:

·

The presence of the keys in the ignition and ease with which the
    van could be put into motion;

·

The respondents intention to return to his home in Barrie;

·

The vans remote location, the lack of available public
    transportation, and the respondents lack of any alternate plan to get home;

·

The degree of the respondents intoxication, which was such that
    his judgment was significantly impaired;

·

The respondents volatility in mood and response as evidenced
    in the DVD, which augmented concerns about his judgment;

·

The accessibility of the drivers seat;

·

The respondents earlier presence in the drivers seat when he
    contemplated driving.

[72]

With
    great respect to the summary conviction appeal judge, given the factual
    underpinnings of the conviction outlined above, there was no basis for the
    summary conviction appeal judge to interfere.  In this case, the findings of
    the trial judge were based on more than mere speculation.  There were a
    constellation of factors that were relied upon by the trial judge, apart from
    simply the breathalyzer readings of the respondent, in reaching her conclusion
    there was a risk of danger sufficient to establish the respondents care or
    control of the motor vehicle.

[73]

In
    my view, the summary conviction appeal judge exceeded the ambit of factual
    review permitted under s. 686(1)(a)(i) of the
Criminal Code
and
    thereby erred in law in overturning the findings of fact of the trial judge.

V.

CONCLUSION

[74]

For
    the foregoing reasons, I would grant leave to appeal, allow the appeal and
    restore the conviction and sentence.

Released: Aug. 1, 2012

JL                                                                     M.F.
    Brown R.S.J. (ad hoc)

I
    agree John Laskin J.A.

I
    agree R.A. Blair J.A.