COURT OF APPEAL FOR ONTARIO
Winkler C.J.O., Doherty and Feldman JJ.A.
BETWEEN
Her Majesty the Queen
Applicant/Appellant
and
David Ruest
Respondent
Joan Barrett, for the appellant
Matthew McGarvey, for the respondent
Heard: November 23, 2009
On appeal from the order of Justice Denis J. Power of the Superior Court of Justice dated April 15, 2009.
1The respondent was charged with having care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol, contrary to s. 253(1)(a) (“care or control”) and “blowing over” contrary to s. 253(1)(b). He was acquitted at trial. The acquittal was upheld on appeal to the Summary Conviction Appeal Court. The Crown seeks leave to appeal and, if leave is granted, appeals from the decision of the Summary Conviction Appeal Court judge.
2For the reasons explained below, I would grant leave to appeal, allow the appeal and substitute an order convicting the respondent on the “care or control” charge. I would stay the “blowing over” charge. In my view, the Summary Conviction Appeal Court judge erred in law in that he failed to appreciate that the trial judge’s findings of fact compelled the legal conclusion that the respondent had care or control of the vehicle when arrested by the police officer. His failure to convict in the face of findings of fact which unequivocally establish the legal elements of the offence of “care or control” constitutes reversible error.
I
The Facts
3At about 2:50 a.m. on New Year’s day, 2007, after an evening of celebrating the New Year the respondent left the Army Navy Club in Cornwall Ontario. He had been drinking. Because of the respondent’s inebriated state, several of his friends encouraged him to call a taxi rather than drive. The respondent insisted he would drive and offered to give his friends a ride home. One friend was so concerned about the respondent driving his motor vehicle that she called the police.
4A police officer arrived about a minute after the call. He saw one car parked in the Army Navy Club parking lot. The officer saw the respondent scraping ice off the rear window of that motor vehicle. The engine was running and the respondent’s fiancée was sitting in the front passenger’s seat.
5The police officer approached the respondent and spoke to him. The respondent was having difficulty standing. The parking lot was icy. The officer also noticed other signs of impairment. The officer noticed that there were no keys in the vehicle, so he asked the respondent to give him the keys. The respondent pulled the keys out of his pocket and gave them to the police officer. There was a remote starter on the key chain. It was established at trial that the respondent had started the car with the remote starter. The car could not be driven until the key was inserted in the vehicle.
6The respondent was arrested and charged with “care or control”. A subsequent analysis of the respondent’s breath revealed blood-alcohol levels of .160 and .150.
7The trial judge made the following findings of fact, all of which are significant on the issue of whether the Crown had proved that the respondent was in care or control of the vehicle:
the respondent’s car was parked in the parking lot area of the Army Navy Club;
the car was operable;
the respondent was standing at the car clearing ice from the window;
the respondent intended to get into his motor vehicle and drive away in the immediate future and would have done so, but for the arrival of the police officer;
the respondent engaged the engine of the motor vehicle using a remote starter device;
the respondent had the keys to the car in his possession;
the respondent had opened the driver’s side door and removed the snow scraper;
the respondent did not sit in the driver’s seat and had not inserted the key in the ignition; and
the car could not move without the key being inserted in the ignition.
8In his reasons, the trial judge noted factual distinctions between this case and various cases relied on by the Crown. In the course of drawing those factual distinctions, the trial judge said:
... but he [the respondent] was intercepted prior to entering the vehicle and prior to inserting the key into the ignition: there was no present danger but one which was arrested by reason of the timely intervention of the police.… Mr. Ruest was neither in the vehicle nor in a position to bring about any danger or harm to anyone in the meaning to be given to the legislation. [Emphasis added.]
9Ultimately, in acquitting the respondent, the trial judge indicated that proof of care or control of the vehicle required “some actual evidence of risk or danger, as might occur by starting to enter the vehicle or by placing the key in the ignition”.
10On appeal, the Summary Conviction Appeal Court judge accepted that the trial judge had correctly held that, on his findings of fact, the Crown had not proved the actus reus of the offence of “care or control”. The Summary Conviction Appeal Court judge observed that on the findings of the trial judge, the Crown had not proved the risk necessary to establish the actus reus of the offence. He referred to The Queen v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119, a leading authority on the elements of the offence of “care or control”.
II
Should Leave to Appeal be Granted?
11I am satisfied that the issue raised by the Crown raises a question of law. The determination of whether the facts as found by the trial judge amount in law to a finding that the respondent was in care or control of the motor vehicle is a question of law. As recently reiterated by the Supreme Court of Canada, “the application of a legal standard to the facts of a case is a question of law”: R. v. Shepherd (2009), 2009 SCC 35, 245 C.C.C. (3d) 137 (S.C.C.), at para. 20.
12Crown counsel has convinced me that the question of law raised on this appeal has importance beyond this case. The trial judge has applied a more restrictive notion of risk to the determination of whether a person is in care or control of a motor vehicle than has been applied by binding appellate authorities. The Summary Conviction Appeal Court judge has specifically approved that narrower concept of risk. Unless corrected, the error below could well cause jurisprudential confusion as to the elements of one of the more commonly prosecuted offences in the Criminal Code.
III
The Merits
13In R. v. Wren (2000), 2000 CanLII 5674 (ON CA), 144 C.C.C. (3d) 374, at p. 380, this court considered the prior jurisprudence, including the 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.
14Adapting the language in Wren to the facts of this case, the question becomes – did the conduct of the respondent in relation to his car create a risk that the respondent, while impaired, would put his car is motion and thereby create a danger?
15I agree with Crown counsel’s submission that the respondent’s stated intention to get in his car and drive away in the immediate future was the paramount feature of the risk assessment to be made in this case. An intention to drive the vehicle is not an essential element of the offence of “care or control”: see Ford v. The Queen, 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231, at pp. 248-49. It is, however, part of the conduct of the accused that is relevant to the determination of whether that conduct in relation to the motor vehicle had created a risk of danger. The respondent’s intention to get into the car and drive away, probably within seconds, had the officer not arrived certainly magnifies the risk that the respondent would put his car in motion and create a danger.
16The respondent’s car was operable, running and sitting in an unobstructed parking lot, and the respondent had the keys in his pocket. He intended to drive away, presumably as soon as the window was cleared. With respect to the decisions below, it is impossible to say on these findings of fact that the respondent was not in care or control of the vehicle as defined in R. v. Wren, supra. Speculation as to when the respondent first assumed the necessary care or control of the vehicle is irrelevant to his criminal liability. The point is that by the time the officer arrived and stopped the respondent from getting into his vehicle and driving away, the respondent had taken steps to start the vehicle and prepare for its immediate departure. There was an obvious, significant risk that the respondent would put the car in motion and endanger the public.
17The meaning to be given to the actus reus of the offence of “care or control” turns on the language used in the Criminal Code and the purpose underlying the criminal prohibition created by the section. In R. v. Price (1978), 1978 CanLII 2288 (NB CA), 40 C.C.C. (2d) 378 (N.B.S.C. (A.D.)), at p. 384, the court observed the following:
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. [Emphasis added.]
18In this case, the existence of the mischief targeted by the “care or control” criminal prohibition is all the more obvious in that the respondent fully intended to get into his car and drive away. This was not a case where liability turned on a possible risk that the vehicle might be started despite the driver’s intention not to start the vehicle. Rather, this is a case where a driver was standing at a fully operable vehicle with the keys and with the intention to get in the vehicle and drive it away.
19A proper application of the relevant law to the facts as found by the trial judge could yield only one result – the respondent was guilty on the charge of “care or control”.
20I would allow the appeal, set aside the order of the Summary Conviction Appeal Court judge dismissing the appeal and allow the Crown’s appeal from the acquittal. I would substitute a conviction and remit the matter to the trial judge for sentencing.
RELEASED: “WKW” “NOV 30 2009”
“Doherty J.A.”
“I agree W.K. Winkler C.J.O.”
“I agree K. Feldman J.A.”