Hugues c. R., 2014 QCCA 1095
[4] The first ground: Did the judge of the Superior Court err in law by misapplying the legal concepts relating to the mere presence in a motor vehicle and realistic risk of danger as set out in Boudreault?
[5] In my view, despite its formulation, the first ground of appeal seeks to raise questions of fact relating to whether or not the petitioner had care and control of the vehicle in the circumstances. In particular, the petitioner seeks to challenge the finding of the existence of a realistic risk of danger to persons or property given that the petitioner was “merely present” in the back seat of a car and had no intention to drive. I am of the view that this ground fails to disclose a question of law.
[6] It is true that the presence of a realistic risk of danger to persons or property is a legally required element of the offence as set out in Boudreault, para. [33]. The judge of the Superior Court made no mistake in this regard, recalling correctly, in my view, the law on point.
[7] It is true too that in R. v. Penno, 1990 CanLII 88 (SCC), [1990] 2 S.C.R. 865, 877 (cited with approval in Boudreault, para. [49]), Lamer C.J. observed that the law does not go so far as to punish the mere presence in a motor vehicle of an individual whose ability to drive is impaired. But here again, the judge of the Superior Court made no mistake. She observed that the conviction in Municipal Court rested not on proof of mere presence of the petitioner in the car, but on a number of facts that suggested that this presence constituted a realistic risk of danger in the circumstances. She noted that the trial judge found, among other facts relevant to the risk, that the petitioner’s judgment had been altered by the amount of alcohol he had consumed; that he had the car keys in his hand while in the car; that he got into his car without telling his friend; that he did not use his cellular phone to communicate with anyone; that he wanted to go to his friend’s home at the time he got into the car; that the driver’s seat was accessible; and the absence of a concrete and reliable alternative plan to ensure his safe way home, given that no effort had been made to call a taxi (para. [22] of the reasons for judgment in the Superior Court, alluding to para. [42] of the trial judgment).
[8] As the Supreme Court reminds us at para. [50] of Boudreault, “[t]he existence or not of a realistic risk of danger is a finding of fact”. Courts can be expected to come to different conclusions, on the facts, as to whether such a risk exists.[1]
[9] Unlike the present case, Boudreault did raise questions of law, as stated by Fish J. at para. [8] of his reasons, including the question as to whether realistic risk of danger was an essential element of the offence of care and control under s. 253(1). Fish J. settled this matter as to the correct legal test in deciding that it did. He went on to explain:
[11] The existence of a realistic risk of danger is a matter of fact. In this case, the trial judge, applying the correct legal test, found as a fact that there was no such risk.
[Emphasis in the original.]
[10] In our case, after “applying the correct legal test”, the trial judge found “as a fact” that there was such a risk. The judge of the Superior Court agreed, and noted that the trial judge made no reviewable error in coming to that conclusion.
Aucun commentaire:
Publier un commentaire