Regina v. Wren [Indexed as: R. v. Wren]

47 O.R. (3d) 544

[2000] O.J. No. 756

No. C31695

Court of Appeal for Ontario

Laskin, Feldman and O'Connor JJ.A.

March 14, 2000

*Application for leave to appeal to the Supreme Court of

Canada dismissed October 12, 2000 (Gonthier, Binnie and Arbour

JJ.). S.C.C. Bulletin, 2000, p. 1766.

Criminal law -- Drinking and driving offences -- Care or control over 80 -- Elements of offence -- Actus reus of "care or control" requiring that accused's conduct in relation to motor vehicle must be such that risk of danger is created -- Danger may be due to accused putting car in motion or by some other means -- Criminal Code, R.S.C. 1985, c. C-46, s. 253.*

The accused was charged with impaired care or control and care or control over 80. The police arrived at the scene of an accident and found the accused in the driver's seat of his car. The accused was impaired, the car was inoperable because of damage and immovable because of its location in a ditch, and the accused did not intend to drive. The accused had earlier tried to move the car but had called a tow truck once he determined that the car was immovable. He got into the car to keep warm. The trial judge acquitted the accused based on his finding that the vehicle was incapable of representing any danger to which s. 253 of the Criminal Code is addressed. The acquittal was affirmed on summary conviction appeal. The Crown appealed.

Held, the appeal should be dismissed.

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. The object of the offence is to protect persons or property from danger. In the circumstances of this case, it was open to the trial judge to conclude, at the point in time when the accused was in the vehicle waiting for the tow truck, that he was not in care or control of the vehicle.

APPEAL by the Crown from a judgment of the summary conviction appeal court dismissing an appeal from an acquittal for impaired care or control and care or control over 80.

Ford v. R., 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231, 36 Nfld. & P.E.I.R. 254, 133 D.L.R. (3d) 567, 40 N.R. 451, 101 A.P.R. 254, 65 C.C.C. (2d) 392, 13 M.V.R. 237; R. v. Lackovic (1988), 1988 CanLII 7075 (ON CA), 29 O.A.C. 382, 45 C.C.C. (3d) 80, 9 M.V.R. (2d) 229 (C.A.); R. v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119, 20 D.L.R. (4th) 758, 61 N.R. 349, [1985] 6 W.W.R. 158, 21 C.C.C. (3d) 24, 47 C.R. (3d) 213, 36 M.V.R. 1; R. v. Vansickle, Ont. C.A., December 17, 1990 (unreported); Saunders v. R., 1967 CanLII 56 (SCC), [1967] S.C.R. 284, 61 D.L.R. (2d) 645, 60 W.W.R. 344, [1967] 3 C.C.C. 278, 1 C.R.N.S. 249, consd Other cases referred to R. v. Penno, 1990 CanLII 88 (SCC), [1990] 2 S.C.R. 865, 42 O.A.C. 271, 115 N.R. 249, 49 C.R.R. 50, 59 C.C.C. (3d) 344, 80 C.R. (3d) 97, 29 M.V.R. (2d) 161; R. v. Pilon (1998), 1998 CanLII 4717 (ON CA), 131 C.C.C. (3d) 236, 39 M.V.R. (3d) 1 (Ont. C.A.); R. v. Rose (1987), 3 M.V.R. (2d) 1 (Ont. Dist. Ct.); R. v. Varga (1994), 1994 CanLII 8727 (ON CA), 18 O.R. (3d) 784, 90 C.C.C. (3d) 484, 30 C.R. (4th) 78 (C.A.) (sub nom. R. v. V. (E.)) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 253, 258(1)(a)

David P. Finley, for the Crown, appellant. Michael J. Neville, for respondent.

The judgment of the court was delivered by

[1] FELDMAN J.A.: -- The respondent was acquitted of charges under s. 253 of the Criminal Code, R.S.C. 1985, c. C-46, 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. R., 1967 CanLII 56 (SCC), [1967] S.C.R. 284, [1967] 3 C.C.C. 278, 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. R., 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231, 65 C.C.C. (2d) 392 and in 1985 in R. v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119, 21 C.C.C. (3d) 24, 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 s. 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 eighty 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. R., 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 (at p. 290 S.C.R., p. 238 C.C.C.):

. . . 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.

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 (at p. 249 S.C.R., p. 399 C.C.C.):

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.

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 (at p. 127 S.C.R., p. 30 C.C.C.):

. . . 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.

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. [See Note 1 at end of document]

[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 "care 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 (at p. 289 S.C.R., p. 282 C.C.C.):

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.

[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, [See Note 2 at end of document] 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 (1988), 1988 CanLII 7075 (ON CA), 45 C.C.C. (3d) 80, 29 O.A.C. 382 (C.A.). 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 12 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 [at p. 85]:

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), 1940 CanLII 292 (NB CA), 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 th e 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. [See Note 3 at end of document] 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.

Appeal dismissed. Notes

Note 1: See for example, R. v. Rose (1987), 3 M.V.R. (2d) 1 (Ont. Dist. Ct.).

Note 2: E.g., R. v. Penno, 1990 CanLII 88 (SCC), [1990] 2 S.C.R. 865, 59 C.C.C. (3d) 344; R. v. Pilon (1998), 1998 CanLII 4717 (ON CA), 131 C.C.C. (3d) 236, 39 M.V.R. (3d) 1 (Ont.C.A.).

Note 3: R. v. Varga (1994), 1994 CanLII 8727 (ON CA), 18 O.R. (3d) 784 at p.. 792-93, 90 C.C.C. (3d) 484 at pp. 493-94 (C.A.).