Last week, the Ontario Court of Appeal released its decision in R. v. Smits that restored the trial judge’s finding of impaired driving. The trial judge concluded there was a concrete and tangible likelihood that the defendant, who was found sleeping in a van, would have woken up and decided to drive while still impaired.
The summary conviction appeal judge overturned the trial judge’s decision after determining it was mere speculation that the defendant would decide to drive when he woke up. But the appeal court disagreed, finding there were factors that the trial judge relied on in concluding there was a risk of danger sufficient to establish that the defendant had care or control of the van.
The decision provides assistance to lower courts in this frequently litigated area by setting out criteria for assessing whether an impaired person sleeping in a vehicle would operate it while still impaired upon waking up.
On Aug. 22, 2009, police found the defendant, Jody Smits, passed out in the rear seat of a van that was parked on the side of a country road. The key was in the ignition, but the van wasn’t running. A partially empty vodka bottle and an open beer can were in the van.
Two breath samples taken that day indicated readings of 147 milligrams and later 138 milligrams of alcohol in 100 ml of blood. Smits also told the police he had taken two Percocets.
The Court of Appeal noted that to establish the actus reus of care or control of a vehicle, the acts or conduct of the accused must be such that there is a risk of danger. In establishing what kind of risk is sufficient, the appeal court stated that one way is to look at the risk of whether the person who has decided not to drive will change his or her mind and drive while still impaired.
The appeal court provided a list of non-exhaustive factors for courts to consider when looking at the “change of mind” risk, including:
• The accused’s level of impairment.
• Whether the key was in the ignition or readily available.
• Whether the vehicle was running.
• The vehicle’s location.
• Whether the accused was at the final destination of the trip or still had to travel to the destination.
• The accused’s disposition and attitude.
• Whether the accused drove to the location.
• Whether the accused started driving after drinking and pulled over to sleep it off or started using the vehicle for purposes other than driving.
• Whether the accused’s plan for getting home involved driving while impaired or over the legal limit.
• Whether the accused had a stated intention to resume driving.
• Whether the accused was in the driver’s seat.
• Whether the accused was wearing a seatbelt.
• Whether the accused failed to use alternative means of leaving the scene.
• Whether the accused had a cellphone and failed to use it to make other arrangements.
In applying the factors, the appeal court found it was open to the trial judge to conclude Smits’ conduct created a risk that he would put the vehicle in motion while impaired, thereby creating a danger. As a result, it restored the conviction and sentence.