The Queen v. Toews, [1985] 2 S.C.R. 119

Her Majesty The Queen Appellant;

and

Brian Wayne Toews Respondent.

File No.: 17666.

1984: October 30; 1985: September 19.

Present: Dickson C.J. and Beetz, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Care and control of vehicle while impaired ‑‑ Accused sleeping in sleeping bag on front seat ‑‑ Ignition on but motor not running ‑‑ Whether or not accused in care and control of vehicle ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 234(1), 237(1).

The police found respondent asleep in a sleeping bag on the front seat of a truck with his head by the passenger door. The truck was parked on private property. The ignition key was on and the stereo blaring but the truck was not running and the lights were off. There was no evidence as to who had put the key in the ignition but the truck had been last driven by a friend of the accused. The police noticed signs of alcoholic impairment when they woke the accused and blood alcohol readings were above the legal limit. Respondent was convicted in provincial court of having care and control of a motor vehicle while legally impaired. The County Court upheld the conviction but the Court of Appeal overturned it.

Held: The appeal should be dismissed.

The offence of having care or control of a motor vehicle while impaired is a separate offence from driving while impaired and may be committed whether or not the vehicle is in motion. The mens rea is the intent to assume care or control after voluntarily consuming alcohol or a drug and the actus reus is the act of assuming care or control. An absence of intent to drive does not of itself afford a defence. The Crown, given the facts, could not rely on the presumption of control arising out of the accused's occupying the driver's seat and had to rely on evidence showing control.

Acts of care or control, short of driving, 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. Respondent was unconscious and clearly not in de facto control, and his use of the sleeping bag supported the contention that the truck was merely a place to sleep. He was not occupying the driver's seat and no adverse inference would be drawn from the ignition key evidence. Since respondent was not shown to have performed any acts of care or control, he did not perform the actus reus.

Cases Cited

R. v. Donald (1970), 1970 CanLII 1031 (BC CA), 3 C.C.C. (2d) 146; R. v. Thomson (1940), 1940 CanLII 292 (NB CA), 75 C.C.C. 141; R. v. Henley, 1962 CanLII 586 (NS SC), [1963] 3 C.C.C. 360; R. v. Price (1978), 1978 CanLII 2288 (NB CA), 40 C.C.C. (2d) 378; Ford v. The Queen, 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231, referred to.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, ss. 234(1), 237(1).

APPEAL from a judgment of the British Columbia Court of Appeal, 1983 CanLII 372 (BC CA), [1983] 3 W.W.R. 667, 4 C.C.C. (3d) 450, 33 C.R. (3d) 279, allowing an appeal from a judgment of Perry Ct. Co. J. dismissing an appeal from a judgment of Kenny Prov.Ct.J. Appeal dismissed.

Catherine Ryan, for the appellant.

William Firman, for the respondent.

The judgment of the Court was delivered by

1. McIntyre J.‑‑The Crown has appealed against the unanimous judgment of the British Columbia Court of Appeal (Nemetz C.J.B.C., Carrothers and Hutcheon JJ.A.), which reverses the conviction of the respondent, Toews, upon a charge, under s. 234(1) of the Criminal Code, alleging that he had had care or control of an automobile while his ability to drive a motor vehicle was impaired by alcohol or a drug. In reasons for judgment, written by Hutcheon J.A., he referred to the conviction as being under s. 236(1) of the Code, that of having care or control of a motor vehicle having consumed alcohol in such quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. There is no significance for the purpose of this judgment in the difference.

2. The respondent was found by the police sleeping in the front seat of his truck at about 5:15 a.m. on July 20, 1980. The vehicle was on private property some eight to ten feet away from the road. The respondent was lying on the front seat, his head by the passenger side door, his lower body encased in a sleeping bag extending under the steering wheel with his feet resting on, or hanging towards, the floor. The ignition key was in the ignition, the stereo was playing loudly, the engine of the truck was not running, and the lights were not on. The police aroused the respondent and noted signs of alcoholic impairment. It was conceded that the respondent's blood alcohol readings were .16 and .17 and that his ability to drive was impaired. The evidence further revealed, and it was unquestioned, that the respondent had been driven by a friend from his home in the town of Endako to the house in Fraser Lake where his truck was parked and where the party was being held. The respondent left the party about 1:30 a.m. because he was tired and got into his truck to lie down and await his friend who remained at the party. The police arrived at about 5:15 a.m. in response to a call on another matter and found the respondent sleeping soundly in the truck. The respondent swore that he had no intent to drive the truck when he entered it and this seems to have been accepted in the courts below.

3. The respondent was convicted in the provincial court. The trial judge expressed the opinion that while the accused may not have entered the truck with the intent to drive it, and he may not have formed the intention while in the truck, he could, nevertheless, have changed his mind and driven it. The conviction was entered.

4. On the summary conviction appeal to the County Court (Perry Co. Ct. J.) the appeal was dismissed. Perry Co. Ct. J. was of the view that he was bound by the case of R. v. Donald (1970), 1970 CanLII 1031 (BC CA), 3 C.C.C. (2d) 146, in the British Columbia Court of Appeal. He concluded on the basis of that case that: "... the matter of the man's intention cannot really be a factor in this appeal", and he dismissed the appeal.

5. In the British Columbia Court of Appeal two grounds of appeal were considered. On the primary ground, that is, that the respondent had no intention of setting the truck in motion on his entry into the vehicle, Hutcheon J.A., for the Court, said:

The appeal to this Court was filed some time before the majority of the Supreme Court of Canada in Ford v. The Queen (1982) 1982 CanLII 16 (SCC), 65 C.C.C. (2d) 392 (S.C.C.) [[1982] 1 S.C.R. 231] held that an intention to drive was not an essential element of the offence created by s. 236. The effect of Ford v. The Queen is to conclude this appeal against Toews on the primary issue raised in the Notice of Application for Leave to Appeal.

The second issue raised was stated by Hutcheon J.A. in these words:

Can a person have care or control of a motor vehicle if his intention is to sleep in the vehicle rather than drive it?

He considered the decision of the majority of this Court in the Ford case, and said:

Ritchie, J., speaking for the majority, found that an absence of intention to drive did not constitute a valid defence. He did not go on to define the mental element required.

In my opinion, at the very least, the Crown must establish by inference or otherwise that the accused had the intention to use the motor vehicle as a motor vehicle ‑ that is, to have the care or control of the motor vehicle as a motor vehicle. In the present case, the Crown has failed to establish that mental element.

6. Section 234(1) of the Criminal Code provides:

7. (1) Every one who, while his ability to drive a motor vehicle is impaired by alcohol or a drug, drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, is guilty of an indictable offence or an offence punishable on summary conviction and is liable

(a) for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for six months or to both;

(b) for a second offence, to imprisonment for not more than one year and not less than fourteen days; and

(c) for each subsequent offence, to imprisonment for not more than two years and not less than three months.

While in my view the section is not applicable in this case, s. 237(1)(a) provides:

237. (1) In any proceedings under section 234 or 236,

(a) where it is proved that the accused occupied the seat ordinarily occupied by the driver of a motor vehicle, he shall be deemed to have had the care or control of the vehicle unless he establishes that he did not enter or mount the vehicle for the purpose of setting it in motion;

7. At the outset it must be observed that the Criminal Code in s. 234(1) creates two separate offences. The first is driving a motor vehicle while the ability to drive is impaired by alcohol or a drug, and the second is having care or control of a motor vehicle, whether it is in motion or not, while the ability to drive is impaired by alcohol or a drug. It follows then that when s. 234(1) provides for this second offence‑‑that of having care or control‑‑its words must refer to an element of care or control other than that of driving. For this reason it is clear, as has been held in this Court in Ford, that proof of an intent to drive‑‑that is, to set the vehicle in motion‑‑is not an essential element of proof in a charge of having care or control. On this question of intention on the part of the accused Hutcheon J.A. added:

I agree with Miss Ryan, counsel for the Crown, that the mens rea of the offence is not an intention to put the vehicle in motion; Ford v. The Queen. There is no such authority for the proposition that the means rea [sic] of the offence is not an intention to have care or control of the vehicle as a vehicle. If the evidence demonstrates that the accused intends to use the vehicle as his bedroom, why should that intention be irrelevant to this offence?

I am of the view that the intention of an accused charged under s. 234(1) is relevant in so far as it may contribute to the presence of the required mens rea for the offence or tend to exclude it. The mens rea for driving while impaired is the intent to drive a motor vehicle after the voluntary consumption of alcohol or a drug. The actus reus is the act of driving where the voluntary consumption of alcohol or a drug has impaired the ability to drive. Similarly, the mens rea for having care or control of a motor vehicle is the intent to assume care or control after the voluntary consumption of alcohol or a drug. The actus reus is the act of assumption of care or control when the voluntary consumption of alcohol or a drug has impaired the ability to drive. In proving its case, the Crown must establish the presence of impairment by evidence in the usual way and the element of care or control may be established either by reliance upon the presumption in s. 237(1), where it is applicable, or by showing actual care or control without reliance upon the presumption: see R. v. Donald, supra, per Tysoe J.A., at p. 149.

8. To turn to the case at bar, as I have indicated above, I am in agreement with Hutcheon J.A. that the absence of an intent to drive the truck on the part of the respondent does not by itself afford him any defence. I am also of the view that the Crown cannot rely, in the facts of this case, on the presumption in s. 237(1). I would agree that to occupy the seat ordinarily occupied by the driver within the meaning of s. 237(1), one need not be sitting up straight with hands on the steering wheel and in all respects be ready to drive. The fact that some movement or adjustment of position might be required to enable a person to take the steering wheel and drive the car will not necessarily be such a departure from the occupation of the driver's seat that it will deprive the Crown of the right to rely on the presumption. However, in my view, by no extension or liberal interpretation of the words `occupying the driver's seat' can the section apply here. The respondent was lying across the front seat, his head on the passenger side, his legs encased in a sleeping bag under the steering wheel. The Crown can take no comfort from the presumption in this case. The Crown is left then to rely on the evidence to show acts of care or control.

9. As I have noted earlier, the offence of having care or control of a motor vehicle while the ability to drive is impaired by alcohol or a drug is a separate offence from driving while the ability is impaired. It may be committed whether the vehicle is in motion or not. 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 (N.S.C.A.), Baxter C.J. said, at pp. 143‑44:

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 the Nova Scotia County Court His Honour Judge Pottier said in R. v. Henley, 1962 CanLII 586 (NS SC), [1963] 3 C.C.C. 360, at p. 366, in a case similar to this one:

It appears from the above cases that the word "care" implies at least physical possession of the motor vehicle with an element of control. A person in the motor vehicle may have the care thereof. The word care is generally used in jurisprudence in the sense of attention, heed, vigilance as opposed to carelessness, negligence, heedlessness. These uses are involved in the cases of duties and liabilities of motor vehicle operators, carriers, bailees, professional persons, etc., and turn largely on the question of negligence.

The word "care" may also mean custody, charge, safe keeping, preservation, oversight or attention. Where it is used in this sense it becomes a relative term and is of broad comprehension. One has to look at the provision of its use and determine its physical sense from that standpoint....

In R. v. Price (1978), 1978 CanLII 2288 (NB CA), 40 C.C.C. (2d) 378 (N.B.C.A.), Limerick J.A., speaking for the Court, at pp. 383‑84, said:

The word "care" is defined in The Oxford English Dictionary as "having in charge or protection". "Control" on the other hand is defined as "the fact of controlling or of checking and directing action" also as "the function or power of directing and regulating; domination, command, sway".... 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.

This Court has recently considered the question in Ford v. The Queen, 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231. Ritchie J., speaking for the majority, said, at p. 249:

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.

10. There are, of course, other authorities dealing with the question. The cases cited, however, illustrate the point and lead to the conclusion that 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. In Ford, the appellant's vehicle and others were in a field open to the public. A drinking party was in progress in the car, and the appellant had occupied the driver's seat and had turned on the ignition on various occasions to operate the heater as the party progressed. These facts were considered sufficient to establish care or control. In the case at bar the vehicle was on private property and the respondent was not in occupation of the driver's seat. He was unconscious and clearly not in de facto control. The fact of his use of a sleeping bag would support his statement that he was merely using the vehicle as a place to sleep. There remains the fact that the key was in the ignition and that the stereo was playing. Strangely enough, however, there is no direct evidence that the respondent put the key in the ignition or turned on the stereo, and the evidence is that the last driver of the vehicle was his friend, who drove him to the party and who was to drive him home. I consider that in view of all the circumstances described above no adverse inference should be drawn in this case on the basis of the ignition key evidence alone. It has not been shown then that the respondent performed any acts of care or control and he has therefore not performed the actus reus.

11. I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: The Ministry of the Attorney General for the Province of British Columbia, Vancouver.

Solicitor for the respondent: William Firman, Prince George.