DATE: 20000314
DOCKET: C31695
COURT OF APPEAL FOR ONTARIO
LASKIN, FELDMAN AND O’CONNOR JJ.A.
BETWEEN: )
)
HER MAJESTY THE QUEEN ) David Finley
Applicant ) for the Applicant/Appellant
(Appellant) )
)
and )
)
KEITH ARNOLD WREN ) Michael Neville
) for the Respondent
(Respondent) )
) Heard: November 16, 1999
On appeal from the judgment of Millette J. dated February 10,
1999 dismissing a summary conviction appeal by the Crown from the
acquittal imposed by B.E. MacPhee J. dated February 11, 1998.
FELDMAN J.A.:
[1] The respondent was acquitted of charges under s. 253 of the
Criminal Code,1 that he was impaired and that his blood alcohol
level was over .08 while he had the care or control of a motor
vehicle. His acquittal was upheld on summary conviction appeal.
There is no dispute that when the police came to the accident
scene and found the respondent in the driver’s seat of his car,
1) the respondent was impaired, 2) the car was inoperable because
of damage and immovable because of its location in a ditch,
and 3) the respondent did not intend to drive. The respondent had
earlier tried to move the car but once he determined that it was
immovable he called a tow truck. He got into the car to keep
warm. The respondent was acquitted by the trial judge because
“the vehicle was incapable of representing any danger to which
[s.] 253 is addressed.”
[2] The Crown seeks leave to appeal to this court on a question
of law. The Crown says that the courts below erred in law by
holding that the actus reus of the offence requires that the
vehicle pose some potential danger in the hands of an impaired
person. The Crown relies on the 1967 decision of the Supreme
Court of Canada in Saunders v. The Queen2 and says that that case
stands for the proposition that it is not an element of the
offence that there be a risk of danger. The Crown submits that
the Supreme Court’s later decisions in 1982 in Ford v. Queen3 and
in 1985 in R. v. Toews,4 which refer to a requirement that there
must be some risk of danger that the vehicle will be set in
motion, do not overrule Saunders. The Crown’s submission is that
the issue of danger is irrelevant and the trial judge erred by
concluding that if there was no potential danger, there could be
no conviction.
FACTS
[3] The trial judge, Judge MacPhee, found the following to be
the facts:
The accused was found occupying the
driver’s seat of his motor vehicle which
was situated in the ditch adjacent to
the travelled roadway known as a County
Road 3. He had previously driven the
motor vehicle into the said ditch. He
was impaired when so found at about 3:15
a.m. on July 7, 1996. Subsequently he
was found to have in his blood, a
concentration of alcohol of more than
twice the legally proscribed [sic]
limit.
When found, the car was on a slant with
the keys in the ignition in a ditch of
some two to three feet in depth.
Unsuccessful efforts had been made by
the accused to extricate the motor
vehicle from where it was found. It had
been damaged and I’m satisfied that it
could not be moved from that location
without the aid of a tow truck. The
car’s engine was off when the accused
was found and, in addition, the air bag
had been deployed.
According to the accused, he left a
party and fell asleep en route home at
about 12:30 a.m., causing his car to go
into the ditch. He sought assistance,
to move it, from a neighbouring farmer
who used his pick up in the process, to
no avail. This man advised the accused
he’d call for a tow truck. After some
time the accused returned to the
residence of the same man, to be told
that the truck had been called. At that
time he returned to the vehicle and
waited outside for the truck. After
some time he sought refuge in the car to
avoid the chill of the night and to wait
for the truck. He testified that his
intent in so doing was to wait for the
truck and get it towed to his nearby
residence and not to drive the same
himself.
It is a fact that the motor vehicle was
damaged to the extent of 7,000 plus
dollars and, at the time he was found,
Wren was seated in an inoperable
vehicle. It is clear from the evidence
that the accused was impaired but that
he himself felt capable of driving. He
also conceded that had he extricated the
motor vehicle in the first instance, he
would have attempted to drive home.
The Crown did not rely on the evidence of the respondent’s
impairment when he drove the car into the ditch or attempted to
extricate it from the ditch. The Crown sought the conviction
based only on the fact that the respondent was in the driver’s
seat at the time the police arrived at the scene.
ANALYSIS
[4] Section 253 of the Criminal Code sets out the offence and
section 258(1)(a) the presumption available to the Crown to prove
the offence:
253. Every one commits an offence who
operates a motor vehicle… or has the
care or control of a motor vehicle, …
whether it is in motion or not,
(a) while the person’s ability to
operate the vehicle, … is
impaired by alcohol or a drug; or
(b) having consumed alcohol in such a
quantity that the concentration
in the person’s blood exceeds
eight milligrams of alcohol in
one hundred millilitres of blood.
258.(1) In any proceedings under
subsection 255(1) in respect of an
offence committed under section 253 or
in any proceedings under subsection
255(2) or (3),
(a) where it is proved that the
accused occupied the seat or
position ordinarily occupied by a
person who operates a motor
vehicle, … the accused shall be
deemed to have had the care or
control of the vehicle, … unless
the accused establishes that the
accused did not occupy that seat
or position for the purpose of
setting the vehicle, … in motion.
…
[5] In his analysis, the trial judge considered the Supreme
Court of Canada decision in Saunders v. The Queen, supra.
[6] In Saunders the question was framed not in terms of the
meaning of “care or control”, but rather as to the definition of
motor vehicle; specifically, whether a vehicle which cannot be
set in motion by its own power is a “motor vehicle” under the
Criminal Code. The Supreme Court held that the Code definition
contemplated a kind of vehicle, not its operability, and stated:
nothing, either express or implied,
indicates an intent of Parliament to
exact, in every case, as being one of
the ingredients of the offences, the
proof of the presence of some element of
actual or potential danger or to accept,
as a valid defence the absence of any.
On the contrary, these…provisions of the
Code manifest the determination of
Parliament to strike at the very root of
the evil, to wit, the combination of
alcohol and automobile, that normally
breeds this element of danger which this
preventive legislation is meant to
anticipate.5
Although the court accepted that there was no potential danger
because the car could not be moved, it upheld the conviction of
Mr. Saunders on a charge of having care or control of a motor
vehicle while his ability to drive was impaired.
[7] In 1982, in Ford, supra, the Supreme Court considered the
question of whether an absence of intent to drive a vehicle which
was fully operable constituted a good defence to a charge of care
or control. In holding that intent to set the vehicle in motion
is not a necessary component of the offence, the court stated the
following now oft-quoted test:
Care or control may be exercised without
such intent where an accused performs
some act or series of acts involving the
use of the car, its fittings or
equipment, such as occurred in this
case, whereby the vehicle may
unintentionally be set in motion
creating the danger the section is
designed to prevent. 6
Although Ritchie J. referred to setting the car in motion as the
danger aimed at by the section, he did not make reference to
Saunders, and there is no stated suggestion that the court in
Ford intended to overrule Saunders nor to hold that the ability
of the car to move or be operated was a necessary element of the
offence.
[8] In the subsequent case of Toews, supra, the issue began with
the intent of the accused as disclosed by his actions, but
ultimately turned on whether his actions amounted to the actus
reus of care or control. There was no issue of inoperability of
the vehicle. Following Ford, the court articulated the following
definition of acts of care or control:
acts of care or control, short of
driving, are acts which involve some use
of the car or its fittings and equipment,
or some course of conduct associated with
the vehicle which would involve a risk of
putting the vehicle in motion so that it
could become dangerous.” 7
It is this repeated reference to conduct which involves the risk
of “putting the vehicle in motion so that it could become
dangerous” which has led to a debate as to whether the Supreme
Court in Ford and Toews intended to overrule its decision in
Saunders.8
[9] I agree that the three Supreme Court of Canada cases, on
their face, are not easy to reconcile. One argument that has been
suggested is that the Saunders case can be distinguished on the
basis that the court was not dealing directly with the elements
of care or control, but rather only with the definition of “motor
vehicle”. That factor may explain why subsequent cases in the
Supreme Court appeared to overlook the conclusion which the court
reached in Saunders and the language the court used. However,
that analysis does not assist ultimately in giving any meaning or
effect to the Saunders decision in the context of the issue of
Scare or control” as developed in the later cases.
[10] In my view, these cases can be reconciled. The apparent
inconsistency stems from the facts with which the three courts
were dealing. In Saunders the vehicle was inoperable, while in
Ford and Toews, the vehicles were operable.
[11] The effect of the court’s conclusion in Saunders was that
the actual danger of potentially setting the particular vehicle
in motion was not a prerequisite to conviction. In so stating,
as quoted above, the Court used broad language referring to
actual or potential danger in a generic sense, although on the
facts, the only danger in issue was the danger from operating the
motor vehicle.
[12] In Saunders the court’s analysis began by recognizing that
the object of the impaired driving offences was to protect
persons and property from danger:
Obviously, every one agrees that the true object of the
provisions of ss. 222 and 223 [now s. 253] is to cope
with and protect the person and the property from the
danger which is inherent in the driving, care or
control of a motor vehicle by anyone who is intoxicated
or under the influence of a drug or whose ability to
drive is impaired by alcohol or a drug. At this point,
however, the unanimity ends and the conflict arises.9
[13] In upholding the conviction and holding that actual or
potential danger is not a necessary requirement for the
qualification of a motor vehicle under the sections, the court
stated that it was referring to the inoperability of the motor
vehicle, not to any other potential danger. In my view,
therefore, the court was not ruling out the need for some
potential danger arising out of the combination of the impaired
person and the motor vehicle (whether or not the vehicle could be
driven) as a necessary element of care or control.
[14] In Ford the vehicle was fully operable while in Toews there
was no issue raised as to operability. In both those cases, the
court made it clear that there had to be some risk of danger, and
stated that risk in terms of the potential for the impaired
person to inadvertently put the vehicle in motion.
[15] Although those courts referred to the danger in terms only
of putting the vehicle in motion, this court has explained in its
decision in R. v. Vansickle (Endorsement of the Ontario Court of
Appeal dated December 17, 1990), that that risk should be read as
an example only of how the combination of impaired person and
motor vehicle can create the requisite potential for danger.
[16] I am satisfied that the result of these cases and others
that have followed them,10 is that in 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.
[17] Crown counsel submitted that this court reaffirmed the
result in Saunders in its 1988 decision in R. v. Lackovic.11
Lackovic drove his car into a traffic light standard. His car
then crossed several lanes of traffic before finally coming to
rest on top of a snow bank. The police arrived twelve minutes
later to find Lackovic standing outside, but close to his car.
When Lackovic refused to take the breathalyzer test, the police
charged him with refusing to provide a sample. Lackovic’s
defence at trial was that he did not have care or control of his
vehicle at the time the demand was made.
[18] The Court of Appeal sustained the conviction and held that
he had not surrendered care or control of his vehicle because he
retained custody of it. Crown counsel submits that the decision
in Lackovic confirms that mere custody of the vehicle, while
impaired, whether or not the vehicle has the potential to be
dangerous, is sufficient to amount to care or control.
[19] I do not agree. In Lackovic the court referred to the
concept of danger to the public when it quoted from the reasons
of McIntyre J. in Toews, in part as follows:
This leaves the court with the question:
What will constitute having care or
control, short of driving the vehicle?
It is, I suggest, impossible to set down
an exhaustive list of acts which could
qualify as acts of care or control, but
courts have provided illustrations which
are of assistance. In R. v. Thomson
(1940), 75 C.C.C. 141 at pp. 143-4,
[1941] 1 D.L.R. 516 at pp. 518-9, 15
M.P.R. 300 (N.S.S.C.A.D.), Baxter C.J.
said:
I have had some difficulty in
construing this expression but have
come to the conclusion that ‘care’
is intended to cover such a case as
an intoxicated driver placing his
vehicle, without applying the
brakes, in such a situation that it
may run away and occasion danger to
the public. It is probably
intended to cover the possible
omission, because of intoxication,
of such acts of care as would or
might occasion harm, such acts, in
short, as would render any person
liable in damages for negligence.
‘Control’ does not need definition.
The man who is in a car and has
within his reach the means of
operating it is in control of it.
In my view, it is implicit in this court’s conclusion in Lackovic
that the court considered the appellant’s vehicle to be capable
of becoming a danger in some way, so that by retaining custody of
the vehicle the appellant maintained his ability, while impaired,
to effect such potential danger.
[20] The requirement of some risk of danger in order to establish
the actus reus of “care or control” is consistent with the basis
for a finding of criminal liability under the impaired
driving/care or control offences. As the Supreme Court stated in
Saunders, supra, the object of the offence is to protect persons
and property from danger. When the presumption has been rebutted
and it has been shown that there is no potential danger either to
any person or any property from the combination of the impaired
person and the motor vehicle, there is no need for the protection
which is the object of the offence.
[21] The scope of the concept of the way in which a vehicle could
become dangerous was specifically considered by this court in R.
v. Vansickle, supra. In that case, after the accused had driven
his vehicle off the road, he and his friend pushed it back onto
the road, but in so doing burned out the clutch. As a result the
vehicle was inoperable and stuck in the middle of the road during
white-out storm conditions. The accused and his companion were
found drinking and listening to music in the vehicle while
waiting out the storm. The accused had neither the intention nor
the ability to operate the vehicle. This court agreed with the
analysis of the summary conviction appeal judge that the
potential to unintentionally put the vehicle in motion was only
intended by the Supreme Court in Toews as an example of how a
danger could be created, rather than a necessary requirement of a
potentially dangerous situation. In Vansickle the court below had
suggested that the danger there was the potential for the accused
to accidentally turn off the headlights, leaving the car
completely unobservable to other drivers while in the middle of
the road.
[22] In its factum, as an alternative to the position that there
is no requirement for any potential danger, the Crown sought to
rely on and apply Vansickle in this case, suggesting that
although the Wren vehicle was immovable, its wheels were
partially on the roadway without its lights or four-way flashers
on and therefore it represented a potential danger to passing
vehicles and to the respondent himself. The Crown therefore
submits that the judges below erred by considering as potential
dangers only the operability and mobility of the vehicle and no
others. In response, the respondent’s counsel submits that this
argument was not raised below, and cannot be raised for the first
time in this court.12 Furthermore, the trial judge found that the
vehicle was in the ditch, and there was no suggestion in the
evidence that the police officers perceived that the vehicle
constituted a hazard in any way, nor did they leave flares or
anything else to alert other drivers when they left the vehicle
to be towed.
[23] I agree that the reasons of both the trial judge and of
Millette J. who heard the summary conviction appeal disclose that
the only danger that was being addressed was the danger of
putting the vehicle in motion. Furthermore, based on the finding
of fact that the vehicle was “in the ditch”, the suggestion of a
hazard in these circumstances is not borne out by the facts as
found by the trial judge. This is not a situation where there was
an error by the trial judge in failing to consider the broader
range of potential danger beyond putting the vehicle in motion as
described in Vansickle, but rather there is no factual basis for
applying that case.
[24] In his reasons the trial judge first referred to the
presumption of care or control which arises by virtue of s.
258(1)(a) of the Criminal Code where the accused is found in the
driver’s seat of the vehicle, and the fact that that presumption
can be rebutted where the accused establishes that he was not
there for the purpose of setting the vehicle in motion. He found
that the accused had rebutted the presumption because he occupied
the vehicle at the relevant point in time only to wait for the
tow truck. The trial judge correctly observed that where the
accused has rebutted the presumption, he may still be convicted
where the Crown proves beyond a reasonable doubt that he
otherwise had care or control.
[25] The trial judge then considered Saunders and concluded that
the mechanical disability of the vehicle “is not per se
conclusive of the result”, and that “the entirety of the
circumstances must be reviewed.” In other words, the mechanical
disability of the vehicle does not necessarily result either in a
conviction as in Saunders, or in an acquittal because the vehicle
cannot be put in motion, as suggested in Ford and Toews. An
accused will have care or control of an inoperable vehicle if
that vehicle, in the hands of an impaired person, has the
potential to create some danger.
[26] The trial judge noted five circumstances arising from the
evidence:
1) The vehicle was inoperable;
2) The accused had sought help, unsuccessfully, to
move the same;
3) To his mind, the tow truck was on the way;
4) When found, he was awaiting the arrival of the truck;
5) There was no risk that acts of the accused at the
point in time when he was found in the vehicle in
the state he was in, of putting [sic] the car in motion.
Based on this evidence and the conduct of the accused, the trial
judge concluded that “the vehicle was incapable of representing
any danger to which [s.] 253 is addressed.”
[27] I agree with the summary conviction appeal judge that the
trial judge’s conclusions were supported by the evidence and that
he made no error in applying the law to the facts. As has been
stated many times, all of the circumstances of the case must be
considered in determining the issue of care or control in any
particular case. Although it may have been open for the Crown to
assert and establish the existence of some other potential danger
and acts of the respondent which established that he might have
triggered that danger, that was not the case presented to the
trial court.
[28] It was open for the trial court to find that when the police
found the respondent, although he was impaired and had not
relinquished custody of his vehicle, he did not meet the test for
the actus reus of care or control set out in Ford and Toews,
modified in accordance with the explanation in Vansickle:
performance of some act or series of
acts which involve some use of the car
or its fittings or equipment, or some
course of conduct associated with the
vehicle which would involve the risk of
putting the vehicle in motion or in some
other way to become dangerous, which is
what the section is designed to prevent.
[Emphasized words added.]
CONCLUSION
[29] In my view, the cases from the Supreme Court of Canada and
from this court can be reconciled on the issue of the actus reus
of care or control. The issue to be determined on the facts of
each case is whether any acts by the accused could cause the
vehicle to become a danger whether by putting it in motion or in
some other way.
[30] In the case as presented below, the only potential danger
was of putting the vehicle in motion. It was therefore open to
the trial judge to conclude, at the point in time when the
respondent was in the vehicle waiting for the tow truck, that he
was not in care or control within the meaning of those terms as
defined in the case law to which I have referred.
[31] I would grant leave to appeal on the issue of law as
presented by the Crown, but I would dismiss the appeal.
[32] The defence seeks solicitor and client costs of this appeal.
The Crown’s conduct in bringing this appeal was not oppressive,
nor is this a test case. In my view this is not a case for costs.
Released: March 14, 2000 “K. Feldman J.A.”
“I agree J.I. Laskin J.A.”
“I agree D.R. O’Connor J.A.”
_______________________________
1 Date format is yyyymmdd
2 PUT IN CASE NUMBER – NOT LOWER COURT NUMBERS
1 R.S.C. 1985, c. C-46.
2 [1967] 3 C.C.C. 278 (S.C.C.)
3 Ford v. The Queen (1982), 65 C.C.C. (2d) 392 (S.C.C.)
4 R. v. Toews (1985), 21 C.C.C. (3d) 24 (S.C.C.)
5 At p. 283.
6 At p. 399.
7 At p. 30.
8 See for example, Rose v. The Queen (1987), 3 M.V.R. (2d) 1
(Ont. Distr. Ct.)
9 At p. 282.
10 e.g. R. v. Penno, (1990), 59 C.C.C. (3d) 344 (S.C.C.); R. v.
Pilon (1998), 131 C.C.C. (3d) 236 (Ont.C.A.)
11 (1988), 45 C.C.C. (3d) 80 (Ont. C.A.)
12 R. v. Varga (1994), 90 C.C.C. (3d) 485 at 493-4 (Ont. C.A.) |