ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-248-AP
DATE: 20120420

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

KENNETH CAVANA
Appellant

Julie Evans, for the Respondent
Nicholas A. Xynnis, for the Appellant

HEARD: February 6, 2012

On appeal from the Judgment of The Honourable Justice J. Wilson dated November 15, 2010

McCarthy J.:

[ 1 ] Kenneth Cavana appeals from his conviction on the charge of having care or control of a motor vehicle while his ability to operate a vehicle was impaired by alcohol contrary to s. 253 (a) of the Criminal Code , R.S.C. 1985, c. C-46. Following a trial at Bradford on September 24, 2010, the trial judge convicted the accused on the charge.

[ 2 ] This appeal is brought pursuant to s. 813 (a) of the Criminal Code . The trial proceeded with only one issue in dispute: whether the appellant was in care or control of the motor vehicle at the relevant time.

[ 3 ] The grounds for appeal are: (a) that there was insufficient evidence of the appellant being in care or control of the vehicle in question at the time the charge was laid; and (b) that the learned trial judge erred in his application of the law of care and control.

THE FACTS

[ 4 ] The appellant resided at 1166 Park Drive in Gilford. On the afternoon of December 11, 2008, he received a visit from a friend, Adam Hamilton (Hamilton). The appellant was working on a project with Hamilton. Both the appellant and Hamilton consumed alcohol during the afternoon. At some point in the afternoon, Hamilton left the appellant’s residence and drove off, operating an Astrovan (the van) owned by a Mr. Huogendyke. Hamilton took the van without the consent of Mr. Huogendyke. His intention was to practice driving. Hamilton did not have a valid driver’s licence on the date in question. He had only limited driving experience.

[ 5 ] Hamilton was involved in a single vehicle accident shortly after leaving the appellant’s residence. He drove the van into a ditch off of Gilford Road, causing the van to become disabled. Hamilton then walked the one kilometre distance from the Gilford Road accident scene (the scene) back to the appellant’s residence.

[ 6 ] The appellant called Trotter’s Towing to arrange for the removal of the van from the ditch. The appellant and Hamilton then made use of an Acura TSX motor vehicle (the Acura) to attend the scene to await the tow truck. According to both the appellant and Hamilton, it was Hamilton who drove the Acura out to the scene. The appellant was a front seat passenger.

[ 7 ] Police Constable Phillips of the South Simcoe Police arrived at the scene at approximately 5:40 p.m. On arrival, he found the van in the ditch on the south side of Gilford Road. After attending to some unrelated matter, PC Phillips returned to the scene at approximately 6:20 p.m. By that time, both the tow truck and the Acura were at the scene. The latter was parked on the shoulder of the road facing westbound.

[ 8 ] Police Constable Stansbury arrived on the scene at 5:30 p.m. He noted that it was already dark and cold. He made note of the van in the ditch as well as the Acura parked some 50 to 75 metres from the van. PC Stansbury first encountered Hamilton, who identified himself as the driver of the van. PC Stansbury detected an odour of alcohol. He noted that Hamilton was loud and boisterous, that he was slurring his speech and was demonstrating poor motor skills. When PC Stansbury had first arrived at the scene, he noticed that Hamilton was sitting in the front passenger seat of the Acura. The appellant was occupying the driver’s seat. At all times, the Acura remained stationary but was running.

[ 9 ] During the period of time that the towing service was in the process of removing the van from the ditch, both the appellant and Hamilton exited and re-entered the Acura on several occasions. At one point, PC Stansbury ordered the pair to get back in the Acura. On each occasion, the appellant returned to the driver’s seat, while Hamilton took his spot in the passenger seat.

[ 10 ] The officers were soon concerned about the state of intoxication of the appellant. Once the tow truck had secured the van, PC Stansbury spoke with the appellant through the open window of the Acura front driver’s door. He detected an odour of alcohol. The appellant was asked to exit the vehicle. Once he did, PC Stansbury observed that the appellant displayed red and droopy eyes, slurred speech and unsteadiness. At 6:27 p.m., PC Stansbury placed the appellant under arrest for having care and control of a motor vehicle while his ability to operate the vehicle was impaired.

[ 11 ] There is no dispute that the appellant provided a breath sample that revealed a concentration exceeding 80 mg of alcohol in 100 ml of blood contrary to s. 253 of the Criminal Code .

THE TRIAL JUDGE’S FINDINGS

[ 12 ] The trial judge found that two the police officers became concerned about the appellant’s level of intoxication during their interaction with him at the scene. This prompted PC Stansbury to attend at the driver’s door of the Acura to engage the appellant in a discussion. PC Stansbury became concerned that the appellant intended to drive the Acura from the scene while impaired.

[ 13 ] The trial judge found that the appellant’s evidence was consistent with that of Hamilton on some matters. Hamilton was the one primarily involved with dealing with the van and the tow truck operator at the scene. The appellant and Hamilton would re-enter the Acura in order to keep warm. On one occasion, one of the police officers instructed the pair to get back into the Acura. The appellant and Hamilton testified that the van was going to be towed to Trotter’s garage by the tow-truck operator. Both testified that Hamilton was going to drive the Acura back to the appellant’s residence.

[ 14 ] The trial judge also found a significant contradiction between the evidence of the appellant and Hamilton. On the one hand, Hamilton admitted that the two friends had been drinking together that afternoon. The appellant, however, testified that he did not know that Hamilton had been drinking.

[ 15 ] The trial judge also expressed scepticism with the evidence that Hamilton had driven the Acura to the scene earlier that afternoon. The trial judge noted that the appellant was both an experienced and a licensed motorist who had driven the Acura on previous occasions. Hamilton had driven on only five previous occasions, did not possess a valid driver’s license and had been involved in a separate driving mishap earlier that afternoon. The trial judge found it unlikely that Hamilton would have driven the Acura from the appellant’s residence to the scene.

[ 16 ] The trial judge, however, went on to conclude as follows:

Nonetheless, in fairness to Mr. Cavana and Mr. Hamilton the Crown’s evidence does not indicate with certainty who did the driving either. Neither officer saw the Acura arrive at the scene and it didn’t move once there. There is no certainty in my mind as to who was in the driver’s seat when Officer Phillips first arrived, clearly the immediate concern was the van in the ditch. Both Mr. Cavana and Mr. Hamilton say that Mr. Cavana got into the driver seat to keep warm and not operate the vehicle which had been left running since its arrival. They both said that Mr. Hamilton was the person who drove it there and their plan was that he was going to drive it home. Thus I conclude that the Crown cannot rely on the presumption.

[ 17 ] The presumption referred to by the trial judge is found in s. 258(1) of the Criminal Code . That section establishes a rebuttable presumption of care and control where it is proven that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle unless the accused can establish that he did not occupy that seat or position for the purpose of setting that vehicle in motion.

[ 18 ] Having found that the Crown could not rely on that presumption, the trial judge then went on to analyze the whole of the circumstances in an effort to decide whether, in light of those circumstances and the totality of the evidence, the accused could be said to be in care or control of the vehicle for the purposes of s. 253 .

[ 19 ] In so doing, the trial judge had regard to the following:

(a) An assessment of the “plan” of the appellant and his friend for leaving the Gilford Road scene;

(b) The proximity of the appellant to the steering mechanism, brake and gear shift in the vehicle; and

(c) The circumstances that existed which may have caused the appellant to change his mind and to arrive at an intention to operate the vehicle.

APPELLATE REVIEW

[ 20 ] In the recent impaired driving decision of R. v. Shepherd (2009), 2009 SCC 35 , 245 C.C.C. (3d) 137 at para. 20 , the Supreme Court of Canada reiterated the test for appellate review on summary conviction appeals as follows: “although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimate ruling is subject to review for correctness.”

[ 21 ] Section 686 (1) (a) of the Criminal Code provides that, on an appeal from a conviction, a summary conviction appeal court may allow an appeal if: (i) it is of the opinion that the verdict was unreasonable or could not be supported by the evidence; (ii) if the trial judge made a wrong decision on a question of law; (iii) on any ground, there has been a miscarriage of justice.

THE “CARE OR CONTROL” CASES

[ 22 ] In R. v. Ford , 1982 16 (SCC) , [1982] 1 S.C.R. 231, the Supreme Court of Canada 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 and control. The court held that intent to set a vehicle in motion was not a necessary component of care and control.

[ 23 ] In R. v. Wren (2000), 2000 5674 (ON CA) , 144 C.C.C. (3d) 374, the Ontario Court of Appeal, having fully reviewed the Ford decision and cases following it, summarized the law as follows:

16 …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.

[ 24 ] Citing an earlier decision of itself in R. v. Lackovic (1988), 1988 7075 (ON CA) , 45 C.C.C. (3d) 80, the Court of Appeal in R. v. Wren concluded that where an impaired person retains custody of the vehicle, that person maintains the ability, while impaired, to create a danger with the vehicle. The Court of Appeal went on to state as follows:

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 v. The Queen , 1967 56 (SCC) , [1967] 3 C.C.C. 278 (S.C.C.)], 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 for which is the object of the offence.

[ 25 ] It is important to remember that in R. v. Wren , the trial judge noted five circumstances arising from the evidence upon which he based his conclusion that the vehicle in question was incapable of representing any danger to which section 253 is addressed: (i) the vehicle was inoperable; (ii) the accused had sought help, unsuccessfully, to move the vehicle; (iii) to his mind, the tow-truck was on its way to the scene; (iv) when found, the accused was awaiting the arrival of the truck; (v) there was no risk that any act of the accused would put the vehicle in motion given the state that the accused was found in. The Court of Appeal held that it was open to the trial court to find that when the police found the accused, although he was impaired and had not relinquished custody of his vehicle, he did not meet the test for actus reus of care or control.

[ 26 ] In my view, the trial judge in the present case applied the proper approach after he found that the presumption of care or control of s. 258(1) had been rebutted. He looked at the entirety of the circumstances and to all of the evidence. He undertook the risk of danger analysis in accordance with the established case law of care and control. In so doing so, he was required to assess the evidence and make findings of credibility. He made findings of fact and credibility which he was entitled, and indeed compelled, to do. For example, the trial judge considered “the plan” for departing from the scene: that Hamilton would operate the Acura with the appellant in the front passenger’s seat. The trial judge found the plan to be implausible. Moreover, the trial judge found the plan to be unreliable and subject to simple alteration. The vehicle was running and in a parked position. The plan could have fallen apart rather easily by Hamilton returning to the passenger seat of the Acura one final time and the appellant putting the vehicle in gear and pulling away. The trial judge relied on the appellant’s own admission that one hand motion could have put the vehicle in gear for driving. There was nothing to prevent the appellant from doing just that. The trial judge took into account that Hamilton had also been drinking and that the pair had not made any arrangements for a third party, who had not been drinking, to attend at the scene to retrieve them.

[ 27 ] Another factor that the trial judge considered in his risk of danger analysis was the appellant’s state of impairment. The trial judge found the circumstances were such that the appellant could have changed his mind in an instant and that the means were readily available for him to do just that. The trial judge distinguished the set of circumstances in the case at bar from one involving a stationary vehicle in a parking lot, with the keys out of the ignition and where a third party had been called and was on route to the scene while the accused was “sleeping it off” in the driver’s seat.

[ 28 ] On the facts of the case, it was entirely open to the trial judge, having regard to the entire circumstances of the case, to find that the appellant created the type of risk and danger to the public that the “care or control” offence was designed to target. I find that the evidence was reasonably capable of supporting the trial judge’s conclusion.

DECISION ON A QUESTION OF LAW

[ 29 ] The appellant submits that the trial judge erred in his application of the law of care and control. The appellant submits that, once the presumption of care or control of a vehicle is rebutted (as it was in this case), there must be evidence that the appellant was in care or control of the vehicle, that is, that he intended to put vehicle into motion. Without evidence to support that intention, a finding that the appellant was in care or control is a misapplication of the law on that issue. The appellant relies on the cases of R. v. Wren , supra , and R. v. Ruest , [2009] O.J. No. 5108 (C.A.) .

[ 30 ] I can find no error in the trial judge’s application of the law.

[ 31 ] The appellant contends that the trial judge’s reliance on R. v. Ruest was misplaced because in that case the accused, albeit not yet in his car, clearly intended to drive and was acting to put into effect that intention. In the present case, the appellant expressed no intention to drive and at no time attempted to do so.

[ 32 ] It is true that in R. v. Ruest , the accused had expressed an intention to drive and the evidence certainly supported that fact. However, the overriding theme of that case is that the evidence must still support a significant risk that that accused, while impaired, will put the vehicle in motion and endanger the public. In R. v. Ruest , the stated intention of the accused to drive as soon as his windows were cleared amounted to evidence in support of that significant risk. That risk was enhanced by other facts: the respondent’s car was operable, running and sitting in an unobstructed parking lot while the accused held the keys in his pocket. In my view, the R. v. Wren line of care or control cases has clearly established that inquiry should centre on whether the conduct of the accused in relation to his vehicle created a risk that the accused, while impaired, would put that vehicle in motion and thereby create a danger. The stated intention of the accused to drive away in the immediate future was but a feature, albeit a paramount one, of the risk assessment in R. v. Ruest .

[ 33 ] An intention to operate as a feature of the risk assessment was dealt with in the case of R. v. Price (1978), 1978 2288 (NB CA) , 40 C.C.C. (2d) 378 (N.B.S.C. (A.D.)) at p. 384, (cited with approval by the court in R. v. Ruest ):

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]

[ 34 ] In conclusion, I find that the trial judge correctly applied the law as it pertains to care and control in accordance with the principles and approaches laid down in the case law.

DISPOSITION

[ 35 ] For the reasons given, I am satisfied that the trial judge made no reversible error. His findings were not unreasonable and could be supported by the evidence. In my view, he correctly applied the law to the facts in reaching his conclusions.

[ 36 ] Accordingly, the appeal is dismissed.

McCARTHY J.

Released: April 20, 2012