COURT OF APPEAL FOR ONTARIO

DATE: 20000320

DOCKET: C32050

RE: HER MAJESTY THE QUEEN (Respondent) v. STEPHANE
PELLETIER (Appellant)

BEFORE: ABELLA, O’CONNOR and MacPHERSON JJ.A.

COUNSEL: David A. Wallbridge
for the appellant

Tina Yuen
for the respondent

HEARD: February 18, 2000

On appeal from conviction by R. Riopelle J. dated April 30, 1999.

E N D O R S E M E N T

[1] After a trial the appellant was acquitted of charges of having care and control of a motor vehicle while his ability to drive was impaired by alcohol and while his blood alcohol level exceeded 80 mg. of alcohol in 100 ml. of blood. Upon appeal by the Crown the summary conviction appeal judge entered a conviction on the first charge and stayed the second.

[2] The facts are not in dispute. Around midnight on September 10, 1998, the appellant drove his car to the Mattagami Hotel in Timmins and parked in the hotel parking lot. Approximately two hours later he left the bar of the hotel with a friend. His ability to drive was impaired by alcohol. While walking to the car the appellant saw an OPP cruiser parked about 200 feet away. The appellant and his friend got into the car, the appellant in the drivers seat. They sat there without starting the car. After about ten minutes the police approached and found the appellant still sitting in the driver’s seat, his seat belt fastened and the keys to the car on the floor in front of the driver’s seat.

[3] The trial judge found that the appellant had left the keys in the car when he went into the hotel and that he had not picked them up when he returned to the car. He also found that the appellant did not intend to drive the car when he got into the driver’s seat after returning from the hotel. The appellant told the officer that he and his friend intended to sleep for a while.

[4] In acquitting, the trial judge found that the appellant had rebutted the presumption under s. 258(1)(a) of the Criminal Code. He also found that there was no evidence that the appellant took control of the keys when he returned to the car. The trial judge concluded that because the vehicle could not be moved unless the appellant took deliberate action to put the key in the ignition there was no risk of the car becoming a danger to users of the highway. He therefore found that the appellant did not have care and control of the car and acquitted on both charges.

[5] The summary conviction appeal judge accepted the trial judge’s conclusion that the appellant had rebutted the presumption under s. 258(1)(a). He then considered whether, absent the assistance of the presumption, the Crown had established care and control. He accepted that the appellant had no immediate intention to drive the car, however, he went on to say:

The point is, that in his intoxicated condition,
he [the appellant] had, at that moment, the
immediate capacity and the immediate means to
operate the vehicle if he chose to do so. He could have changed his mind at any time. He had
care and control.

[6] In our view, there was ample evidence to support a finding that the appellant was in care and control of the vehicle. The undisputed evidence established that the appellant had the means readily available to drive the car. He was sitting in the driver’s seat. Although the keys were not in the ignition they were immediately accessible to him. The appellant had driven the car to the hotel. When he left he was impaired and did not take advantage of the hotel’s shuttle bus service. He told the police that he intended to sleep for a while. As the summary conviction appeal court judge pointed out there was a risk that the appellant would change his mind and drive the car. There was also the risk that, in his impaired condition, the appellant would misjudge his level of impairment and drive the car while his condition continued to pose a risk.

[7] The appellant’s conduct created a risk of danger. We see no basis to interfere with the conclusion of the summary conviction appeal judge. We would therefore dismiss the appeal.