Supreme Court

Liske v. HMTQ, 2004 NWT SC 79                 Date: 2004 11 24
Docket: S-1-CR2004000069

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

WILLIAM LISKE

Appellant
                                                                 - and -

HER MAJESTY THE QUEEN

Respondent
REASONS FOR JUDGMENT



The appellant appeals from his conviction in Territorial Court on a charge of having the care or control of a motor vehicle while having a blood-alcohol level of over 80 milligrams, contrary to s.253(b) of the Criminal Code.

The evidence presented at the trial was essentially undisputed.  Thus it was not so much a case of assessing credibility as it was about what legal and factual conclusions should be drawn from the evidence presented.

The evidence was that the appellant was a passenger in a vehicle driven by a woman named O’Toole.  The vehicle was travelling on the highway leading in to Yellowknife.  A police officer saw the vehicle pull over on to the shoulder of the highway.  He then saw the female driver exit the vehicle and switch places with the appellant, who was in the back seat.  The officer approached the vehicle and found the appellant in the driver’s seat.  He could not recall whether the keys were in the ignition.  He arrested the driver, charging her with impaired driving, and arrested the appellant charging him with care and control.  Two subsequent breathalyzer tests administered to the appellant showed readings of 170 milligrams of alcohol in 100 millilitres of blood and 150 milligrams respectively.

Ms. O’Toole testified that when she saw the police car ahead on the highway she stopped the car, parked it, and threw the keys in the back seat.  She then asked the appellant, who was one of four passengers in the car, to switch seats with her.

The appellant testified that he was asleep in the car prior to Ms. O’Toole stopping it.  She asked him to switch seats with her because she already had an impaired driving conviction and did not want another one.  He testified that the car was not running when he got behind the wheel, but he did not know whether the keys were in the ignition.

When asked why he switched places with Ms. O’Toole, the appellant testified as follows:

Q Then what happened, sir?

A Doreen stopped and she asked if you want switch seat. I was a little stunned and I was still intoxicated.  I said “Sure.”  I don’t know what the reason for.  I said yes.  And as we switch, she went out, I went in front, and then the officer came, approach us.

                                                            ...

Q Mr. Liske, can you explain to us why you got into the passenger seat?

A Because Doreen asked me to.  I don’t know what the reason was at that time.

THE COURT: Pardon?

A THE WITNESS:   I don’t know the reason why.  But I did listen to her then.  I was trying help her, I guess, so wouldn’t get impaired driving for her.  So I switch and I sat in her driver’s seat.



In his judgment, the trial judge found that the presumption of care and control was not rebutted but, even if it was, the Crown had proven the requisite elements of the offence.  The presumption is that found in s.258(1)(a) of the Criminal Code:

258. (1) In any proceedings under subsection 255 (1) in respect of an offence committed under section 253 ...

(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle...the accused shall be deemed to have had the care or control of the vehicle...unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle...in motion...

The trial judge accepted the appellant’s evidence as to why he switched seats with driver:

Why did Mr. Liske get in the driver’s seat?  Mr. Liske told us in his own words in response in examination-in-chief, “I got into...” he paused, “I don’t know the reason why.  I was trying to help her out, I guess so she wouldn’t get another conviction for impaired driving.”  He was trying to help her out.  How is he going to help her out?  He is going to help her out by driving, he is going to help her out by taking over the care and control of the car.  That is how he is going to help her out.

The trial judge then engaged in an assessment of the risk posed by the appellant’s conduct:

 I am not persuaded on the evidence.  I don’t find the evidence of O’Toole reliable that would lead me to conclude that the keys were in fact tossed in the rear.  But even if they had, we’re speaking about a risk assessment that has prospective operation.  The defence argues that the car couldn’t have been put in motion because the police were right there.  I don’t think that is the test.  As soon as the police were gone, the keys, if they were in the back, would have surfaced.  Ms. O’Toole, her heart no doubt thumping that she avoided an investigation for a second impaired driving, would hardly have driven again.  Who would have driven?  Even without the keys, the accused is sitting in the driver’s seat with the intention to take over the car to protect his relative.  The car could have easily been put into drive or neutral and coasted off the road.  It was on a corner or a curve.


...In my view, the danger that the legislation seeks to address is precisely what was presented in this case...  The situation here is not analogous to an impaired driver who abandons driving, usually as evidenced by throwing the keys out onto the passenger side of the car or the back seat, and going to sleep or turning the heater on to keep warm.  He’s taking over the driver’s seat to help her.  To help her how?  To help her by driving, to help her by taking over the care and control of the car.  She wasn’t going to drive after this brush with the law, and the keys being put in the back where Liske was or where O’Toole was going, if that’s where they went, were not beyond reach, or beyond immediate reach.

It is this risk assessment that the appellant submits is an error of law.  The principal argument advanced on this appeal is that the trial judge engaged in speculation about the possibility of the appellant setting the vehicle in motion, speculation that deprived the appellant of the presumption of innocence.  Appellant’s counsel relied on the judgment of Cameron J.A. in  R. v. Decker (2002), 162 C.C.C. (3d) 503 (Nfld. & Lab. C.A.), where she held that it is not enough to merely raise the possibility that an impaired driver, who has no present intention of driving, will change his or her mind in the future. Cameron J.A. wrote  (at p.515):

      To speculate risk or danger on the basis that an impaired driver might change his mind and for no other reason is to find liability for being intoxicated in a vehicle, a conclusion which has been rejected by the Supreme Court of Canada.  It must be left open to the trial judge to hold that the accused did not have any intention of driving at the time he was discovered in the vehicle or in any period of time when in the circumstances one could anticipate that he would be intoxicated.

There is no disagreement about the essential elements of the offence.  Both counsel referred to the leading case of R. v. Toews, [1985] 2 S.C.R. 119.  As held there (at p. 124), the mens rea is the intent to assume care or control after the voluntary consumption of alcohol.  It is not necessary to prove an intent to drive or to set the vehicle in motion.  The actus reus is the act of assumption of care or control when the voluntary consumption of alcohol has impaired the ability to drive.  Acts of “assumption of care or control” were described as follows (at p.126):

...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 circumstances in which acts of care or control may be found will vary widely.


There must be an element of risk of setting the vehicle in motion, whether intentionally or not, and thereby creating a dangerous situation.  And, in my opinion, that dangerous situation is always present when a vehicle is put in motion by a person who is intoxicated.  If there is no risk of putting the vehicle in motion so that it could become dangerous, then the offence is not made out.   But the point of the criminal prohibition is to avoid the potentially dangerous situation from becoming a reality.  As noted in R. v. Whyte, [1988] 2 S.C.R. 3 (at p.26):

...Parliament wished to discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion, while at the same time providing a way for a person to avoid liability when there was a reason for entering the vehicle other than to set it in motion.

Crown counsel on this appeal made the point that the elements of the offence necessarily require a risk assessment by the trial judge.  I agree.  This is not mere speculation but an assessment of the evidence to determine if there is a risk of putting the vehicle in motion.  This, in my opinion, is what the trial judge did in this case.  And this is a factual conclusion, or at least an inference of fact, that will not be overturned in the absence of a palpable and overriding error: see Housen v. Nikolaisen, [2002] 2 S.C.R.  235 (at paras. 19-25).

The Crown, in this case, was entitled to rely on the statutory presumption of care and control.  To overcome this presumption, the appellant had to establish on a balance of probabilities that he did not occupy the driver’s seat for the purpose of setting the vehicle in motion.  The appellant did not say he had no intention of  setting the vehicle in motion.  All he said was that he did what Ms. O’Toole asked him to do (which was to move into the driver’s seat).  He did not know the reason she asked him to do that.  In my opinion, it was open to the trial judge to hold that the presumption was not rebutted.

Even if one assumes, as the trial judge did in the alternative, that the presumption was rebutted, that does not automatically entitle the appellant to an acquittal.  The Crown may still prove care or control by adducing facts beyond a reasonable doubt to establish (as stated in Toews) a course of conduct which could involve a risk of putting the vehicle in motion so that it could become dangerous.

It was open to the trial judge to contemplate the possibility of setting the vehicle in motion.  That is a part of the necessary risk assessment.  Here, there was evidence that the means were readily available for the appellant to drive the car (even if one accepts that the keys had been tossed into the back seat).  The appellant’s motive in getting into the driver’s seat may have been to help out Ms. O’Toole (to act as a “decoy” as appellant’s counsel put it) but that does not alleviate the risk posed by his actions.


This appeal presents a similar situation to those outlined in two cases referred to by Crown counsel:   R. v. Sinclair, [1990] B.C.J. No 2744 (C.A.); and R. v. Pelletier, [2000] O.J. No. 848 (C.A.).  They too involve situations where the trial judge was forced to engage in a risk assessment.

In Sinclair, the accused was left by others drunk and asleep in the passenger seat.  A little later a police officer found him sitting in the driver’s seat with a can of beer.  The car was not running and the keys were on the dashboard.  The accused was convicted of care and control.  The trial judge concluded that the accused must have voluntarily placed himself in the driver’s seat.  The keys were within reach.  Therefore, there was a course of conduct which engaged a risk of putting the vehicle in motion so that it could become dangerous.  The conviction was upheld by the Court of Appeal.

In Pelletier, the accused was found sitting in the driver’s seat with the key on the floor.  He told the police that he intended to sleep, not drive.  He was acquitted at trial because the trial judge found that unless the accused took deliberate action to put the key in the ignition there was no risk of setting the vehicle in motion.  The acquittal was set aside by a summary conviction appeal judge who entered a conviction instead.  That judge accepted that the accused had no immediate intention to drive, but, held that the accused could have changed his mind.  He had the capacity and the means to operate the vehicle if he chose to do so.  The Court of Appeal upheld the conviction.  It held that the appellant’s conduct created a risk of danger.

What these cases demonstrate is that a finding of care and control where, at the time of apprehension, the accused is not actually driving involves at least an assessment of what, in all the particular circumstances, may occur in the foreseeable future.  This, by necessity, is speculation about possibilities, but one done within the evidentiary matrix of the case.  The fundamental question is whether there is an apprehension of a real risk of danger.  In the totality of the evidence put before the trial judge here his conclusion that there was such a risk was a very reasonable one.  The accused took over the driver’s seat because that is what Ms. O’Toole told him to do.  His intention, the only one he testified to, was to do what Ms. O’Toole  wanted.  The keys were accessible and, but for the intervention of the police, there was a real risk that the accused could set the vehicle in motion and thus create a danger.

If this appears to contradict what was said in Decker (supra), as well as another case referred to by appellant’s counsel, R. v. Shuparski, [2003] S.J. No. 147 (C.A.), then such contradiction may be more apparent than real.  In Decker, as in Shuparski, the court rejected mere speculation based on the possibility that an impaired accused may change his mind and drive.  But the judgment in Decker emphasized that liability should not be imposed if that is the only reason to convict.  As reproduced earlier, Cameron J.A. wrote: “To speculate risk of danger on the basis that an impaired driver might change his mind and for no other reason is to find liability for being intoxicated in a vehicle, a conclusion that has been rejected by the Supreme Court of Canada” (emphasis added).  A mere possibility of the accused changing his mind, standing alone, is not enough.  But, that possibility coupled with other factors is a justifiable basis for concluding that there is an apprehended risk.  And that is what the trial judge did in this case.

In my opinion there was evidence from which the trial judge could conclude that there was a risk of the appellant putting the vehicle in motion so that it could become dangerous.  This was a reasonable conclusion to draw.  Therefore all of the constituent elements of the offence were proven.

For these reasons, the appeal is dismissed.






J.Z. Vertes

     J.S.C.
Dated this 24th day of November, 2004

Counsel for the Appellant: Kelly Payne
Counsel for the Crown:  Louise Charbonneau