Cite as: R. v. Kinney, 1993 NSCO 4 CANADA PROVINCE OF NOVA SCOTIA COUNTY OF INVERNESS IN THE COUNTY COURT FOR DISTRICT NUMBER SIX BETWEEN: ARNOLD JOHN KINNEY -and-HER MAJESTY THE L.W. Scaravelli, Esq, for the Appellant Richard J. MacKinnon, Esq., for the Respondent 1993: January 26, MacLellan, J.C.C.: This is an appeal from Appellant on a charge that he: "at or near Mulgrave, Guysborough, Province of about the 6th day of his ability to operate impaired by alcohol or C. P.H. NO. 03732 Appellant QUEEN Respondent the conviction of the in the County of Nova Scotia, on or July, 1991 did, while a motor vehicle was a drug, have the care
-2 or control of a motor Section 253(a) of the Criminal Code of Canada." The Appellant was convicted John D. Embree, of the Provincial Court sitting at Port Hawkesbury on the 22nd day of June, 1992. The facts as disclosed at trial indicate that on July 6th, while on routine patrol, Constable Jill Royal Canadian Mounted Police flagged down by a motorist. She was in the Port Hastings area and the motorist indicated observed a beige automobile with the license plate number BVP 537 and that it was being driven in an erratic manner. Later at 11:49 p.m. Constable into Mulgrave when she noticed a just off the highway. This vehicle had the same license number as given to her by she stopped her vehicle and the accused in the vehicle and he was the lone occupant. Her evidence is that the accused was seat with his feet towards head towards the passenger's he appeared to be sleeping. shorts and a T-shirt without that time Constable Osmond also vehicle and tried them in the ignition of the vehicle. At that point, because which she noted, she asked the accused to the police vehicle where he vehicle, contrary to by His Honour Judge in the evidence presented 1991, at 11:35 p.m. Osmond of the in Port Hawkesbury was to her that he had Osmond was heading beige Oldsmobile parked the motorist and therefore approached it. She found lying on the front the driver's side and his side. According to her The accused was wearing any socks or shoes. At found the keys to the ignition. They fit the of symptoms of impairment corne back to was subsequently given an
-3 A.L.E.R.T. test and later evidence is that she observed coming from the accused I s breath and his speech was quite slurred. The accused was charged breathalyzer along with being vehicle while impaired. He of refusal and found guilty by Judge Embree on the charge of having the care or control of a vehicle while impaired. The Notice of Appeal filed by the Appellant alleged: "1. That the learned law in failing to properly wi th respect to the law as it relates to care and control in Section Code. " At the Hearing of this Appellant contended that the Trial the case law on the issue of care or control.. contended that if the case the Appellant should have been found Not Guilty. Both parties agree that care or control is set out in the R v. Ford (1982), 65 C.C.C. (1985) 20 D.L.R. (4th) 758. The Trial Judge in his decision said: "On the first count of agree with Mr. Scaravelli evidence before me or certainly ... I that I'll go that far - a breathalyzer demand. Her a strong smell of alcohol and that he staggered with refusal of the in care or control of a was acqui tted of the charge trial Judge erred in instruct himself 253 (a) of the Criminal Appeal, Counsel for the Judge misinterpreted He also law was properly applied, the law on the issue of two leading cases of (2d) at 392 and R v. Toews impaired driving, I that there is no don't know but there's insufficient
-4 evidence before me to link Mr. the driver of the vehicle by Mr. Gaudet and Mr. Anderson. was. There is certainly a that he was, but it's possible that it could have been somebody else of whether Mr. Kinney had of the vehicle has to hinge on the circumstances as testified to by Const. across the vehicle. The individual is lying is lying down on the front seat with his feet on the driver's side and passenger side. The keys are on the seat and the Constable comes across in fact, the keys are the keys to this vehicle because the Constable tried them. me one minute, Counsel.) The accused here was occupied by the driver such the presumption of care and control. then has to look at all the circumstances and determine, on all of the it's been proven beyond that he did have care 'vehicle. The ... and the laws stated by the Supreme in both the Ford Decision and the Toze Decision about the elements of care and control. The ... and the Court is circumstances here that in the front seat with the keys to the vehicle parked alongside of a highway, was, is in care and control. a general rule, I find as that based on the evidence that Mr. Kinney was in think I I d have to be concerned with of conduct that would involve the risk of the vehicle being put in motion and Mr. Kinney was in such that can be the case whether or not the vehicle was ...was started or not. I consider that his ... that Kinney to being that was observed He probably circumstantial case and so the evidence care and control Osmond when she came down ...Mr. Kinney his head on the the vehicle. And (Just give not in the seat as would trigger The Court evidence, whether a reasonable doubt and control of the Court considers the Court of Canada (sp.?) convinced in the an individual lying as this vehicle And not to state a fact in this case of Const. Osmond care and control. I a course I believe that a position. I think the evidence
-5 of the Constable is Constables is such as a reasonable doubt that to operate a motor vehicle alcohol and that was by Defence counsel, but whether it was wasn 't, that doesn I t reduce convinced that his ability was ...was both by virtue of observations of the officer." In R v. Ford (1982),65 C.C.C.· (2d) Court of Canada found the accused to be in care or control of his vehicle in circumstances his car parked in a field next to a highway. The evidence disclosed that the accused was sitting behind the wheel and there was in the vehicle. He had been in and out of the vehicle a number of times prior to officer and also turned the motor of his vehicle on and off a number of times. There the accused had made arrangements with to drive his vehicle when attending was over. At trial, the Trial Judge held that the presumption of care or control under Section 258(1)(a) did not apply because he accepted the accused I s not enter the vehicle with the intention of setting it in motion. However, he found care or control of the vehicle doing so while he was impaired. On Appeal to the Supreme conviction was confirmed. Ritchie, J. said: (p. such that ... or both to convince me beyond Mr. Kinney's ability was impaired by not seriously contested or it the onus and I'm impaired, his conduct and the 392, the Supreme where he was found in a number of other people being found by the police was also evidence that a friend for her the party which they were evidence that he did that the accused was in and found him Guilty of Court of Canada the 398)
-6 "In the present case the to be the owner of the motor vehicle in question and to have been in and times during the course there was also evidence engine on and off a number to use the heater. These factors tending to establish care so that under the particular of this case rebuttal of the presumption created by s. 237(1)(a) is far issue of the guilt or appellant. Nor, in my opinion, the Crown to prove an intent to set the vehicle in motion in order to on a charge under s. 236(1) or control of a motor vehicle, alcohol in such a quantity that the proportion thereof in his blood exceeds in 100 ml of blood. Care exercised without such intent where performs some act or series of acts involving the use of the car, its fittings or equipment, such as occurred in this vehicle may unintentionally creating the danger the to prevent." In R v. Toews (1985), Supreme Court of Canada revisited the issue of care or control. There, the accused front seat of his truck which property. He was lying on the front seat with his head by the passenger side door in a sleeping-bag extending The ignition key was in the ignition but the truck was not running. The accused testified a party sometime prior to appellant was found out of it numerous of the evening, and that he turned the of times in order are all additional or control circumstances from conclusive on the innocence of the is it necessary for procure a conviction of having care having consumed 80 mg. of alcohol or control may be an accused case, whereby the be set in motion section is designed 20 D.L.R. (4th) 758, the was found asleep in the was located on private and his lower body encased under the steering-wheel. that he had left being found by the police
-7 officer and that he had entered the vehicle to lie down and await his friend. He said that he had of driving the vehicle when he entered it. The Court found that the or control of the vehicle. McIntyre, J. said: (p. 764) "There are, of course, other authorities dealing wi th the question. The illustrate the point and lead to the conclusion that acts of care or control, short of driving, are acts which involve or its fittings and equipment, of conduct associated with would involve a risk of in motion so that it could Each case will depend the circumstances in which control may be found will vary widely." In R v. Blair (1988), 82 Scotia .Supreme Court Appeal Division in a decision dealing with the issue of care or control applied the principles set out in Ford and Toews and confirmed a decision finding the accused care or control while impaired. In the Blair case, the a police officer who had come He was outside the vehicle and was driver of the vehicle which accident. He responded that he was belonged to him. He was given and tested. He was found to At issue on the appeal was basis on which the Trial Judge could find that the accused no intention accused was not in care cases cited, however, some use of the car or some course the vehicle which putting the vehicle become dangerous. on its own facts and acts of care or N.S.R. (2d) 76, the Nova Trial Judge IS guilty of the offence of accused was approached by upon an accident scene. asked if he was the had been involved in the and that the vehicle a breathalyzer demand be over the legal limit. whether there was a proper
-8 was in care or control of the vehicle at the time was given the demand. The cases on the issue, including Macdonald, J.A. said: (p. 80) "Counsel for the appellant contended that Judge Hall erred in saying the Price case broadened the definition of care or control as set forth by the Supreme Court of Canada. In effect all Judge Hall said on the authorities to which or control is not limited to the use of the car, its fittings or equipment", but is broader and may such as a person being presence of a motor vehicle of controlling it or setting it in As already noted Mr. Justice Price case said the care or control could established by showing in the immediate presence with the means of controlling it or it in motion. That concept to my dissimilar from the statement J., in Toews that acts can be "Some course of conduct associated with the vehicle which would putting the vehicle in motion so that it could become dangerous.". In the present case the of conduct associated with the uncontradicted evidence was the driver and the that he referred to the station wagon as his." Later at page 81 he continued: "In the present case it is he Court reviewed a number of Ford and Toews and I do not agree. was that based he referred, care "acts involving include circumstances in "the immediate with the means motion". Limerick in the be that the accused was of a motor vehicle setting mind is not of MacIntyre, of care and control involve a risk of appellant's "course the vehicle" was that he said he unchallenged evidence my opinion that
-9 Judge Hall did not err in law in starting (sic) what he considered the words care or control by the courts. In addition there opinion ample evidence to of the courts below that the care or control of the material time." On the issue of the role dealing with a finding by a is in care or control of a vehicle he said: (p. "The second and third conveniently be considered respect to them it must a finding of care or control being one of fact cannot be reassessed by this court unless there was no evidence to support it or trial judge erred in interpreting the of the phrase "care or control" in the context of then s. 236 of the Criminal Code." It is contended by Counsel the Trial Judge misapplied the Ford and that this case is very much factual situation. Here, as was not available to the Crown and in each case the keys to the vehicle were available accused were found inside the vehicle sleeping. points out that there was vehicle belonged to the accused. The Crown on the other hand take the position that in the Toews case the Trial evidence of the accused himself that he had no intention meaning to be of the as subscribed to them was in my support the finding the appellant had the station wagon at of an Appeal Court in Trial Judge that an accused 79) grounds of appeal may together. Wi th be remembered that unless the meaning for the Appellant that Toews case and on all fours with the Toews in Toews, the presumption to the accused. Both He also no clear evidence that the JUdge was aware from the
-10 to drive the vehicle and was to sleep. This was supported in a sleeping-bag. It would appear from the decision of the Trial JUdge that he found the accused because: 1. He was in the front seat of the vehicle. 2. The keys to the disposal. 3. The vehicle was parked alongside a highway. He therefore ruled that there was vehicle could be put in motion. In Toews the Court referred to which it suggested would be if a person was in care Reference was made to R v. 141, where Baxter, C.J. said: (p. 143) " "Control" does not man who is in a car and the means of operating it is it." I find that here the Trial coming to the conclusion that the or control of the vehicle. He was aware that this vehicle had recently been driven on the highway and he was aware that the accused was found .. simply using it as a place by the fact that he was to be in care or control vehicle were at his a risk that the a number of cases of assistance in deciding or control of a vehicle. Thomson (1940), 75 C.C.C. need definition. The has wi thin his reach in control of Judge was justified in accused was in care alone in the vehicle. The
• , -11 evidence was that the vehicle highway and that the keys to disposal of the accused. I hold that the finding of fact Judge was. supported by the dismiss the appeal . ..~ /L~
.."J:-u...,d:-g-e-D",........o-u---:?!:oa~s....:..:..L",.........~M~a==c.......,..Le11an
County C Distric was parked close to the the vehicle were at the made by the Trial evidence and I therefore t Judge
Number Six
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.