DATE: 20041021

DOCKET: C40852

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – MARK PIKE (Appellant)

BEFORE: WEILER, GOUDGE and BLAIR JJ.A.

COUNSEL: Norman D. Boxall

for the appellant

Phil Perlmutter

for the respondent

HEARD: October 8, 2004

RELEASED ORALLY: October 8, 2004

On appeal from the conviction entered by Justice Peter Griffiths of the Ontario Court of Justice dated September 16, 2003.

E N D O R S E M E N T

[1] The appellant appeals from his conviction on September 16, 2003 that he had the care or control of a motor vehicle while having a blood-alcohol level of over 80 milligrams. He raises two issues.

1. Had the appellant already been acquitted of the offence for which he was ultimately convicted?

[1] The background facts to this issue are that on September 16, 2003 the appellant appeared in the Ontario Court of Justice. He was arraigned on an information alleging that he operated a motor vehicle while impaired and operated a motor vehicle with a blood-alcohol level of “over 80”. Following discussion with the trial judge, the Crown indicated that the appellant should have been arraigned on an information alleging “care or control” of a motor vehicle, as opposed to “operation”. The Crown called no evidence on the “operation” charges. The appellant moved to have the information alleging “operation” dismissed, and the trial judge stated he would dismiss it. The information has the word “Dismissed” written on it but there is no indication of when the trial judge wrote that on the information. The appellant was then arraigned on charges of having care or control of a motor vehicle while impaired and having care or control of a motor vehicle with a blood-alcohol level of “over 80”.

[2] The appellant submits that at the time he was arraigned on the charge of having care or control of a motor vehicle with a blood alcohol level of “over 80”, he had been acquitted of operating a motor vehicle with a blood alcohol level of over 80. Having care or control of a motor vehicle is a lesser and included offence of operating a motor vehicle. The appellant submits he therefore could not subsequently be tried on the care or control charge.

[3] In our opinion, the record is, at best, ambiguous as to when the trial judge formally disposed of the “operating” counts. The onus is on the defence in this regard. The appellant failed to object to proceeding on the second information and he did not plead autrefois acquis when arraigned subsequently. These facts distinguish this case from R. v. Riddle, [1980] 1 S.C.R. 380 and the decisions that follow it.

[4] We would dismiss the first ground of appeal.

2. Did the trial judge err in the reasons he gave for holding that the Appellant had “care or control” of his vehicle?

[5] The relevant test for care or control is as set out in R. v. Toews (1985), 21 C.C.C. (3d) 24 (S.C.C.) at 28-30, namely:

….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. Each case will depend on its own facts and the circumstances in which acts of care or control may be found will vary widely.

[6] The background facts relevant to this issue are that while the appellant was at a car wash, the car wash attendant noticed the appellant was having trouble entering his car wash code. The attendant thought the appellant appeared impaired and called the police. She gave the police the appellant’s licence plate number. He saw what he believed to be the appellant’s vehicle from the licence number ahead of him and attempted to follow it. A short time later, an officer saw the vehicle whose licence he had been given parked in a mall parking lot. It was clean and still wet. The vehicle was unoccupied and parked near a liquor store. The officer saw the appellant approach the vehicle with keys in his hand. The appellant opened the passenger side door and put a bag of liquor inside. The officer approached the appellant and asked whether he had been drinking. The appellant denied that he had been drinking that day, but said that he had been drinking the evening before. The officer administered a roadside breath sample test that the appellant failed and the officer arrested him.

[7] The trial judge found that when the appellant parked his vehicle and left it to enter the liquor store that represented a break in the care and control by the appellant of his vehicle. He stated that the issue was whether the appellant reasserted care or control of his car when he returned to it. The trial judge reviewed the evidence supporting the conclusion that the appellant had reasserted care or control, namely, that the appellant returned to the vehicle, had the car keys in his hand, opened the passenger door, placed the LCBO bag inside and that after that the police intervened. The trial judge gave reasons in which he concluded that the act of opening the passenger door was an act that involved some use of the car, “so that it could become dangerous, or its fittings and equipment so that it could become dangerous.”

[8] The trial judge’s conclusion that there was a risk of danger from the act of opening the passenger door in the parking lot and placing a package inside and contact with the knobs of the car was unreasonable. If there was any danger from the appellant depositing the package of liquor in the car, that danger did not exist at the time the appellant was arrested. The trial judge did not analyze or address what may have occurred in the not too distant future having regard to the appellant’s earlier course of conduct. There was no indication from the appellant that he intended to resume driving. The trial judge had earlier found that there was a break in the care and control of the vehicle when the appellant parked the car and went to the liquor store. Having regard to the central part the opening of the passenger door played in the trial judge’s reasons we cannot sustain the conviction.

[9] Accordingly, the appeal is allowed, the conviction is set aside and a new trial is ordered.

“Karen M. Weiler J.A.”

“S.T. Goudge J.A.”

“R.A. Blair J.A.”```