Date: 20000225
Docket: CAC 158700
NOVA SCOTIA COURT OF APPEAL
[Cite as: R. v. Dennis, 2000 NSCA 37]
Chipman, Bateman and Crowmell, JJ.A.
BETWEEN: )
)
GERALD JOSEPH DENNIS ) Allan F. Nicholson
) for the Appellant
Appellant )
)
- and - )
)
HER MAJESTY THE QUEEN ) William D. Delaney
) for the Respondent
Respondent )
)
)
) Appeal Heard:
) February 16, 2000
)
)
) Judgment Delivered:
) February 25, 2000
THE COURT: Leave to appeal is granted but the appeal is dismissed as per reasons for judgment of Chipman, J.A.; Bateman and Cromwell, JJ.A., concurring.
CHIPMAN, J.A.:
[1] This is an appeal from a decision of Edwards, J. in Supreme Court allowing a summary conviction appeal from a decision of Judge D. J. Ryan of the Provincial Court acquitting the appellant on charges of refusing to give a blood sample contrary to s. 254(5) of the Criminal Code, and impaired driving contrary to s. 253(a) of the Criminal Code.
[2] At 12:23 a.m. on February 9, 1997, the appellant was found by two officers of the Unamaki Tribunal Police behind the steering wheel of a Grand Am Pontiac motor vehicle in a ditch at or near Island View, Cape Breton County, Nova Scotia. The keys were in the ignition and the engine was running. The wheels were spinning and the appellant was attempting to move the vehicle out of the ditch.
[3] At 12:28 a.m., one of the officers read a breathalyzer demand to the appellant, to which he appeared to be in agreement. Shortly afterward an ambulance arrived, as did Constable Kelly of the Sydney R.C.M.P. The officers present at the scene informed Constable Kelly of the time of their arrival, of their observations, including the strong odor of alcohol from the appellant’s breath, his slurred speech, watery and bloodshot eyes, and the fact that he had already been given a breathalyzer demand and a right to counsel. The appellant left in an ambulance at about 12:40 a.m.
[4] There was evidence that the appellant’s vehicle had to be towed out of the ditch as it could not get out on its own power.
[5] Constable Kelly arrived at the Cape Breton Regional Hospital, to which the appellant had been taken, and first spoke to him at 2:07 a.m. He was in the emergency room lying on a stretcher. He had received some treatment and was about to undergo further treatment. Constable Kelly noticed the smell of liquor on the appellant’s breath and at 2:07 a.m., he read him a demand for a blood sample, and gave him his Charter rights to counsel. The appellant refused to supply a blood sample.
[6] Judge Ryan acquitted the appellant on both charges. He found that the vehicle could not be moved without the assistance of a wrecker, and that under these circumstances, the appellant was not in care or control of a motor vehicle. As to the count of refusal to produce a blood sample, he found that the Crown, in effect, “produced no evidence at all about the demand”.
[7] Edwards, J. allowed the Crown’s appeal and entered a conviction on the charge of refusal to provide a blood sample. The sole issue, he observed, was whether the trial judge erred in finding that due to the fact that the vehicle was not capable of being driven, the officer did not have reasonable and probable grounds to make the blood sample demand. There was, he said, evidence that the accused had the care or control of a motor vehicle and that the officer had sufficient grounds to establish his reasonable belief to make the demand. A conviction was entered on the refusal charge pursuant to s. 254(5) of the Criminal Code.
[8] The appeal from the decision of Edwards, J. to this Court is, by reason of s. 839 of the Criminal Code, one which may be taken on a ground involving a question of law alone.
[9] The appellant’s first submission is that Edwards, J. erred in law in finding that the appellant had care or control of a motor vehicle when he was found trying to extricate it from the position from which it could only, in the event, be moved by a tow truck.
[10] On the refusal charge, it was not necessary for the Crown to prove that the appellant had been in care or control, but rather that the officer making the demand believed on reasonable and probable grounds that the appellant had been in care or control. See Taraschuk v. The Queen (1975), 25 C.C.C. (2d) 108 (S.C.C.). It is therefore not, strictly speaking, necessary to consider the issue of whether the appellant in fact had care or control.
[11] However, because counsel addressed at length the issue of whether there could be care or control of a motor vehicle that could not in fact be moved, and since Edwards, J. addressed this issue, we will do so as well.
[12] In reaching his conclusion that the appellant had care or control of the motor vehicle, Edwards, J. referred to the following passage from R. v. Saunders (1967), 3 C.C.C. 278 (S.C.C.) where Fauteux, J. said at p. 283:
. . . The definition of a motor vehicle is in plain and ordinary language. It contemplates a kind of vehicle, not its actual operability or functioning. Its application is not confined to a portion of the Code, it extends uniformly throughout. The definitions of the offences mentioned in ss. 222 and 223 are also couched in a language that is plain and simple and in which nothing, either expressed 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 and the other related 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.
[13] Edwards, J. also referred to R. v. Lloyd (1988), 4 W.W.R. 423 (Sask. C.A.), where the court held the accused to be in care or control of a motor vehicle when he was found sleeping in a vehicle behind the steering wheel, and the vehicle was out of gas and not capable of being driven without refueling. He also referred to R. v. Blair (1988), 82 N.S.R. (2d) 27 (N.S.C.A.).
[14] Edwards, J. observed that the trial judge’s decision amounted to a finding that the appellant’s motor vehicle was not a motor vehicle within the definition of s. 2 of the Criminal Code because it could not be moved without the assistance of a tow truck. This issue was resolved in Saunders, supra, where the Supreme Court of Canada determined that the definition of a motor vehicle in then s. 2(25) of the Code referred to the type or nature of the vehicle and not its actual operability.
[15] Counsel for the appellant referred to The Queen v. Dairou, an unreported decision of Judge M. J. Ryan of the County Court for District No. 7 as standing for the proposition that “the potential or ability” to move the vehicle must be established before a person can be considered to have care or control thereof.
[16] In that case, the appellant was convicted in Provincial Court of care or control “over 80". The appellant was found behind the steering wheel of a vehicle stuck in a ditch. The keys were in the ignition. The engine was not running. Judge Ryan referred to R. v. Blair, supra, wherein this court affirmed a conviction for care or control “over 80" where the accused was found by the police a few feet from the vehicle and admitted that he was the driver. Macdonald, J.A. for the court referred to the decisions of the Supreme Court of Canada in Ford v. R., [1982] 1 S.C.R. 231 and R. v. Toews, [1985] 2 S.C.R. 119, as did Judge Ryan in Dairou, supra. Macdonald, J.A. then quoted the following passage from the decision of MacIntyre, J. in Toews, supra, at p. 126:
. . . 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.
[17] In Ford, supra, Ritchie, J. said at p. 248:
Nor, in my opinion, is it necessary for the Crown to prove an intent to set the vehicle in motion in order to procure a conviction on a charge under s. 236(1) of having care or control of a motor vehicle, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 millilitres of blood. 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.
[18] We refer as well to the decisions of this court in R. v. Miller (1995), 137 N.S.R. (2d) 313 and R. v. Lockerby (1999 - unreported C.A.C. 155909).
[19] In the cases relied on by the appellant, the court was assessing conduct of an accused in the particular case to determine if it amounted to care or control.
[20] The point made by Ritchie, J. in Ford is that even without the intent to set the motor vehicle in motion, care or control may be exercised where the accused’s actions create the danger the legislation was designed to prevent, i.e. setting the vehicle in motion. The mens rea for having care or control of a motor vehicle is the intent to assume care or control after consuming the prohibited amount of alcohol, and the actus reus is the act of
assuming care or control.
[21] Many of the cases deal with whether the accused overcame the presumption in s. 258(1)(a) of the Code that the person occupying the seat in the position ordinarily occupied by the driver of the vehicle is deemed to have care or control thereof unless and until he establishes that he did not do so for the purpose of setting the vehicle in motion.
[22] With or without the presumption, the appellant here unequivocally displayed the mens rea to set the motor vehicle in motion. Constable Kelly clearly had reasonable and probable grounds for so believing.
[23] In short, nothing in the language used in the authorities dealing with the mens rea and the actus reus of care or control supports the proposition that where an individual is deemed to be in care or control of a motor vehicle by virtue of the presumption found in s. 258 of the Criminal Code, in circumstances in which a vehicle cannot be moved, the presumption for that reason does not operate. To the extent that the reasoning of Ryan, J.C.C. in Dairou, supra, can be said to support such a conclusion, we do not agree with it. As Dickson, C.J.C. said for the court in R. v. Whyte (1982), 42 C.C.C. (3d) 97 at pp. 109-110:
. . . If an accused does not meet this requirement [ie. of proving the absence of intent to set the vehicle in motion] the trier of fact is required by law to accept that the accused had care or control and to convict. But of course it does not follow that the trier of fact is convinced beyond a reasonable doubt that the accused had care or control of the vehicle . . .
[24] We agree with Wakeling, J.A. in Lloyd, supra, that there is nothing in Toews, supra, which tempers or modifies the position taken by the Supreme Court of Canada in Saunders, supra. We endorse, as did Wakeling, J.A., the passage found currently in Martin’s Annual Criminal Code 2000 at p. 422:
Motor vehicle - The decision of the Supreme Court of Canada in R. v. Saunders, [1967] 3 C.C.C. 278, 1 C.R.N.S. 249, that the definition of a motor vehicle in s. 2 contemplates a kind of vehicle, not whether a vehicle is actually operable or effectively functionable, now renders irrelevant all the previous decisions on when a motor vehicle is a motor vehicle in spite of internal or external conditions causing malfunctioning or immobilization of the vehicle.
[25] The appellant has not shown that Edwards, J. erred in law in his interpretation of the expression “care or control of a motor vehicle”.
[26] The appellant next submits that the officer lacked reasonable and probable grounds to believe that the appellant had been in care or control of the vehicle within the preceding two hours because there was no evidence as to the time the vehicle went into the ditch, and the appellant could not have been in care or control of the vehicle because it could not be removed from the ditch under its own power. As noted, the evidence at trial was that when the police arrived at the scene, less than two hours before the demand was made, the appellant was seated in the place normally occupied by the driver, the keys were in the ignition, the engine running and he was attempting to set the vehicle in motion. All of this information, as well as the indicia of impairment were communicated to the officer making the blood sample demand. There were therefore ample reasonable and probable grounds to believe that an offence under s. 253 had been committed within the time set out in s. 254(3). Edwards, J. did not err in law in so finding.
[27] Finally, the appellant submits that his conviction was entered with respect to an offence which was neither charged nor proved.
[28] In his decision, Edwards, J. found the appellant guilty of failing to supply a blood sample in response to a demand contrary to s. 254(5) of the Criminal Code. The order giving effect to this decision erroneously referred to refusal of the breathalyzer contrary to s. 254(5) of the Code. The appellant’s appeal is from the decision and not the order by reason of s. 839 of the Code. In any event, it is clear that there was a clerical error in the order which we can, and will, correct so that it conforms with the decision of Edwards, J.
[29] Leave to appeal is granted, but the appeal is dismissed.
Chipman, J.A.
Concurred in:
Bateman, J.A.
Cromwell, J.A.