R. v. Morgan, 2012 ABQB 535

Court of Queen ’ s Bench of Alberta Citation: R. v. Morgan, 2012 ABQB 535 Date: 20120827 Docket: 100968239S1 Registry: Edmonton Between: Her Majesty the Queen in Right of Alberta Respondent - and - Wesley William Morgan Appellant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice A.B. Moen _______________________________________________________ Appeal from the Conviction by The Honourable Judge J.B. Kerby Convicted on the 30 th day of January, 2012 ( 2011 ABPC 16 , Docket: 100968239P1) I. Introduction

[ 1 ] Wesley William Morgan (the “ Appellant ” ) appeals a decision from The Honourable Judge J.B. Kerby of the Provincial Court of Alberta rendered on January 30, 2012. The Appellant was convicted summarily of: On or about the 16 th day of July, 2010, at or near Edmonton, Alberta, did unlawfully have care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug, contrary to section 253(1) (

a) of the Criminal Code of Canada . [ 2 ] On July 16, 2010, Mr. Morgan drove his vehicle into a parking lot and parked the vehicle. The engine of the vehicle continued to run while the vehicle was parked and Mr. Morgan remained in the driver ’ s seat. Mr. Morgan drank three to four cans of beer and consumed two pills of pain medication. He then fell asleep in the driver ’ s seat of the vehicle with his head resting on the steering wheel. [ 3 ] Mr. Morgan appeals his conviction on four grounds: 1.

The Trial Judge erred by failing to give reasons respecting the finding that the care or control present at the time of the arrival of the police was a continuation of the driving that occurred earlier; 2. The Trial Judge erred in finding the Appellant guilty of an included offence committed at a different time than the original charge alleged; 3. The Trial Judge erred by failing to consider whether the actus reus of the offence was committed; 4. The Trial Judge erred by failing to evaluate the likelihood that the vehicle would be unintentionally set in motion. II.

Standard of Review [ 4 ] The standard of review in a

summary conviction appeal is determined by the ground of appeal. Housen v Nikolaison , 2002 SCC 33 , [2002] 2 SCR 235 , indicates that there are four grounds of appeal: pure questions of law, findings of fact, inferences of fact, and questions of mixed law and fact. [ 5 ] The standard of review for pure questions of law is correctness. Questions of law are questions where the

interpretation of a legal principle or statute is being challenged by the appellant. On a correctness standard, the appellate court may replace the opinion of the Trial Judge with his or her own determination: Housen v Nikolaison at para 8 . [ 6 ] The standard of review for findings of fact is palpable and overriding error. Findings of fact are inherently within the jurisdiction of the trial judge and an appeal court should not interfere with the findings unless an error is clearly apparent: Housen v Nikolaison at para 10 . [ 7 ] The standard of review on inferences of fact is palpable and overriding error.

This review requires a reviewing court to determine if there is a palpable and overriding error with respect to the facts relied upon by the Trial Judge and, if not, if the inference- drawing process itself is palpably erroneous such that an appellate court can interfere with the factual conclusion: Housen v Nikolaison at para 22 .

[ 8 ] The standard of review on questions of mixed law and fact is palpable and overriding error. Questions of mixed law and fact are generally questions where a legal standard is applied to a set of facts: Housen v Nikolaison at para 27 . III. Facts [ 9 ] The undisputed background facts are set out in the Trial Judge ’ s decision, R v Morgan , 2012 ABPC 16 , 2012 AJ No 127 , and can be briefly summarized as follows. [ 10 ] On July 16, 2010, Mr. Mulder, a civilian witness, observed Mr. Morgan driving a pick-up truck and parking in a parking lot near 127 Street and north of 137 Avenue in Edmonton, Alberta.

After a period of time, Mr. Mulder noticed that Mr. Morgan was slumped over in the vehicle. Mr. Mulder called police. When police arrived, they found Mr. Morgan in the driver ’ s seat, slumped forward, with his head and hands on the steering wheel. The vehicle was in park and the engine was running. The officer observed that Mr. Morgan had difficulty removing the keys from the ignition and had a strong odour of alcohol on his breath. There were three empty beer cans in the centre console of the vehicle. Mr. Morgan testified that he was in pain from a recent tattoo and a recent burn on his arm.

As a result, he stopped in the parking lot and took two pills of pain medication and drank three to four beers. Mr. Morgan testified his ability to drive was fine prior to taking the pills but that he was in no condition to drive after taking them. [ 11 ] The Trial Judge found that Mr. Morgan had raised a reasonable doubt as to whether his ability to operate a motor vehicle was impaired prior to taking the pills, and had rebutted the statutory presumption of care and control set out in s. 258(1) (

a) of the Criminal Code of Canada . However, the Trial Judge found that Mr. Morgan was in actual care or control of the motor vehicle during the entire time period covering the following sequence of events: driving the truck into the parking lot, parking the truck, taking the pills and beers, falling asleep, and being arrested by the police. As a result, the Trial Judge convicted Mr. Morgan of “ care or control ” as it is an included offence of unlawfully operating a motor vehicle while impaired by alcohol or drug. IV.

Discussion 1) Did the Trial Judge give insufficient reasons for finding that the care and control present at the time of arrival of the police was a continuation of the driving that occurred earlier? [ 12 ] In his reasons for judgment, the Trial Judge stated: 120 For the following reasons I find that the Accused was in “ care or control ” of the truck during the period of time that he drove the truck into the parking lot and parked the truck and was observed by Mr. Mulder seated in the driver ’ s seat; this “ care or control ” continued up to and including the time of his arrest by Cst.

Ho. [ 13 ] The Appellant submits that the Trial Judge failed to provide the reasons respecting his finding that the care or control present at the time of the police arrival was a continuation of the earlier driving. The Appellant argues that the Trial Judge was required to provide reasons to resolve whether the events of the evening were properly one continuing event or whether there were two distinct events. [ 14 ] R v Sheppard , 2002 SCC 26 , [2002] 1 SCR 869 , makes it clear that a trial judge ’ s reasons should be sufficient for an appeal court to determine the correctness of the trial decision.

A trial judge ’ s duty to provide reasons is satisfied by reasons which are reasonably intelligible to the parties and provides the basis for meaningful appellate review: R v Sheppard at para 55 . Failure to do so constitutes an error of law: R v Sheppard at para 28 . [ 15 ] In this case, the Trial Judge provided 20 pages of written reasons. He summarized the evidence at trial, made findings of credibility, and undertook an extensive discussion and analysis of the legal principles surrounding impaired care or control of a motor

vehicle. The Trial Judge clearly outlined his findings of facts and the inferences that he drew. Based on these facts and a reasoningprocess that can be made out from the reasons for decision, I find that the Trial Judge addressed the issues raised by the Appellant andthe Crown during their submissions and explained his decision in a satisfactory manner. [16] Further, the Trial Judge undertook an extensive analysis of the law on care or control as an included offence under impairedoperation.

This reveals that the Trial Judge was aware of the issues in determining when a conviction for “care or control” could resulteven though an individual was charged with “impaired operation”.

It also reveals the principles he had in mind during the process offinding that the care or control exhibited by the Appellant could be a continuation of the driving. [17] The findings of fact made by the Trial Judge and his analysis on “care or control” of a motor vehicle constitute the TrialJudge’s reasoning for concluding that the Appellant was in care or control of the motor vehicle from the time he was observed driving tothe time of his arrest.

The Trial Judge clearly confronted this, along with the other main issues, and rendered a decision that addressedthe important issues. [18] I find that the Trial Judge’s reasons were clear and transparent and the pathway to his decision is clear. I find that the writtenreasons provided by the Trial Judge are sufficient to provide a meaningful review by this appeal court.

As a result, I find that no error inlaw has been committed in regards to the first ground of appeal. 2) Did the Trial Judge err by finding the Appellant guilty of an included offence committed at a different time than the originalcharge alleged? [19] The Appellant was charged with operating a motor vehicle while impaired. He was convicted of the included offence ofhaving care or control while impaired.

In R v Handy, 1971 ALTASCAD 25 , [1971] 4 WWR 289, 3 CCC (2d) 298 (Alta CA),the Court of Appeal concluded that having care or control of a motor vehicle, while impaired, is an included offence in the offence ofoperating a motor vehicle while a person’s ability to operate the vehicle is impaired by alcohol or a drug. This was re-stated in R vHaines (1990), (AB KB), 104 AR 7, [1990] AJ No 136 (QB), and R v Shepherd (1991), 1991 ABCA 158 ,117 AR 158, [1991] AJ No 437 (CA), leave denied [1991] SCCA No 356.

See also: R v Pincemin, 2004 SKCA 33, [2004] SJ No 134. [20] In R v Drolet, (SCC), [1990] 2 SCR 1107, [1990] SCJ No 101, the Supreme Court of Canada affirmed adecision of the Quebec Court of Appeal holding that “care or control” was included in the offence of impaired operation. As in this case,the accused in R v Drolet was charged with “driving a motor vehicle while his ability was impaired by alcohol” but was convicted of“having care or control of a motor vehicle”.

In the Court of Appeal decision, Lebel J.A. ((1988), (QC CA), 20 QAC94, [1988] JQ no 2283) determined that there is no unfairness or prejudice to an accused on being convicted of the included offence ofimpaired care or control (translation from R v Dietz, [2001] SJ No 827 at para 13): 18 Practically, this is really a case of the greater including the lesser.

Not only a lawyer, but also a layman would normally know thatwhen he or she is charged with driving a vehicle while under the influence of alcohol, he or she is necessarily being informed, as well, ofthe possibility of being charged with having care or control in the same condition. Driving implies that care or control of a vehicle hasfirst been assumed. Such a charge would not be a surprise, an injustice, and even less, a violation of the fundamental rights of theaccused.

In the circumstances, the trial judge could, therefore, find the accused guilty of the included offence. [21] The above case law is binding on this Court. Impaired “care or control” is an included offence where an information allegesthat an accused person has operated a motor vehicle while his ability to do so was impaired by alcohol contrary to s. 253(1)(

a) of theCriminal Code of Canada. [22] The Appellant submits that based on the alleged offence, the Trial Judge was required to determine: if the Appellant wasoperating a motor vehicle, and whether his ability to do so was impaired by alcohol or drug at the time. If the Trial Judge found there wasno impairment, then no included offence was available as impairment is an element of both impaired driving and impaired care orcontrol.

The Appellant argues that the case should have concluded once the Trial Judge found that the Appellant’s ability to operate amotor vehicle was not impaired when he drove to the parking lot. The Appellant submits that to use an included offence to alter the timeframe of the offence is to create a new offence. The Appellant further submits that there were intervening actions between the time ofoperating the motor vehicle and the time of observation by the police and the two periods cannot be considered a continuous transaction.

[ 23 ] The Respondent submits that the Crown called evidence establishing that the Appellant was in care and control when he was found by police and that he was impaired by alcohol at that time. The Respondent argues that the conviction was based on the evidence given by the Crown witnesses and the Appellant about the same event and the same period of time.

The Respondent submits there was nothing in the information which particularized the time of driving and that the Crown may maintain a continuing act of care or control. [ 24 ] I find that it was open to the Trial Judge to convict the Appellant of the included offence of care or control.

The Trial Judge did not err in considering the driving, the parking, and the sleeping in the driver ’ s seat as one continuous event, thereby making care or control an included offence in the charge of operation. [ 25 ] The case presented by the Crown was based on a continuing act of care or control from the time of driving to the time of arrest. It was not based on a single observation of driving and was argued on the basis of the continuing transaction of Mr. Morgan driving the vehicle and falling asleep in the driver ’ s seat.

There was sufficient evidence to support the allegation of an extended period of care or control. The facts presented throughout the case showed that Mr. Morgan was in care and control of the vehicle from the time he was observed driving it to the time he was observed sleeping in the parking lot. This evidence came from both Crown witnesses, as well as the Appellant himself, as he chose to testify. The evidence maintained continuity of Mr. Morgan throughout this transaction. The Crown witnesses testified that Mr. Morgan drove into the parking lot and also testified that Mr.

Morgan was found slumped over in his vehicle, unconscious or asleep, and impaired by alcohol. [ 26 ] The facts demonstrated a continuing state of being in care or control on July 16, 2010. The information did not allege a specific time frame of operation or care and control and the Crown was permitted to call evidence relating to the date of the offence. The continuous transaction was sufficiently identified and particularized by the Crown in the evidence prior to Mr.

Morgan testifying. [ 27 ] In a similar case, R v West , 2000 OJ No 2334 (OntCtJ) , the accused also argued that driving with a blood alcohol content over 80 was a separate transaction from having care or control with a blood alcohol content over 80. The accused submitted that the Crown was bound by the information laid and that the court could not ground a conviction in an included offence. The Ontario Court of Justice rejected this argument and found that the accused was in care or control of his vehicle from the moment he drove it into the parking lot to the moment he exited the car after the police arrived.

The fact that the accused stopped driving did not end the transaction as he remained in the driver ’ s seat at all times. I agree with the reasoning in R v West . [ 28 ] The evidence at trial demonstrated that the Appellant was in care or control of the motor vehicle for the entire transaction. The fact that he stopped driving did not end the transaction. Mr. Morgan clearly had care and control while he was operating the vehicle and he continued to do so while sitting in the driver ’ s seat with the motor running. The Crown was not required to prove that Mr. Morgan was impaired for the entire transaction.

The Crown proved a continuing transaction of care or control and proved that when Mr. Morgan was arrested, he was impaired. Therefore, he was in care or control of a motor vehicle while his ability to operate it was impaired by drugs or alcohol. This is the offence on which he was convicted. [ 29 ] The Appellant suggests that his actions can be divided into the two separate acts of driving and using the vehicle as a resting place. However, both of these acts involve the Appellant having care or control of the vehicle.

The act of consuming alcohol and pain medication does not divide this continuing act of care or control into two distinct time frames. The act of care or control is continuous and unbroken. This is what makes the actions of the Appellant on the day in question a single transaction. [ 30 ] The act of consuming the beer and pain medication merely shows when impairment while in care or control of a motor vehicle began. This is when the offence of care or control while impaired began. However, this is not when the transaction of care or control began.

The offence and the transaction should not be confused as being identical. The offence of impaired care or control was committed by the Appellant within the larger continuous transaction of having care and control of a motor vehicle. [ 31 ] The Appellant submits that this was a case of a non-impaired driver becoming an impaired parker, not an impaired driver becoming an impaired parker. There is no doubt that if Mr.

Morgan had decided not to stop in the parking lot, had consumed the pain medication and beers while still driving, and was then arrested, he could have been convicted of operating a motor vehicle while impaired or of having care or control of a motor vehicle while impaired, as the latter is an included offence. The act of becoming impaired does not turn the singular transaction of having care or control of a motor vehicle into two different transactions.

The Appellant ’ s submissions regarding an intervening act of impairment does not undermine the Trial Judge ’ s finding that the Appellant was found to be in care or control while impaired.

[32] The case of R v Bechtold, [2005] OJ No 2311, 65 WCB (2d) 433 (Ont Sup Ct), is also informative. In R v Bechtold, a taxidriver reported he was following a vehicle driven by Bechtold and that he believed the operator to be impaired. Police officers attendedthe stopped vehicle where Bechtold was found behind the wheel of a pickup truck that had a running motor. The officers observed clearsymptoms of impairment and Bechtold was arrested and charged with impaired operation of a motor vehicle.

At trial, Bechtold wasconvicted on the included offence of impaired care and control based on the evidence relating to his condition when found by the officersbehind the wheel of the parked vehicle. On appeal, Bechtold’s counsel argued that the Crown’s case was focussed on Bechtold drivingto his home when he was being followed by the taxi driver and that being found in the parked car was a separate transaction. Bechtold’scounsel also argued that it would not be proper to register a conviction upon the “care and control” in the driveway when the trial judgeadmitted to having a reasonable doubt as to whether Mr.

Bechtold drove the vehicle to that location. The appeal judge rejected thisargument: 8 In this case, Mr. Bechtold must be presumed to know he was being prosecuted not only for impaired driving, but for the includedoffence of impaired care and control. It is clear from the transcript at trial that the Crown relied not only on the evidence of "driving"provided by Mr. Eiche, the taxi driver, but also on the evidence of Constables Stott and Lloyd. Indeed, I believe it can fairly be said thatthe principal thrust of the case for the prosecution was based upon the evidence of the two police officers who investigated Mr.

Bechtoldat the end of his driveway and arrested him for impaired driving. Essentially, the evidence for the prosecution constitutes one continuoustransaction from the time Mr. Eiche, the taxi driver, first encountered the person he drove to the Blue Moon Tavern, to the point at whichMr. Bechtold was arrested for impaired driving in his driveway... [33] In this case, the Trial Judge heard evidence on all of Mr. Morgan’s actions from the time he was first observed on July 16,2010. This included evidence on Mr.

Morgan’s impaired condition while he was in care or control of the motor vehicle in the parking lot.This was a series of connected acts extending over a period of time. Within this single transaction, there was the commission of acriminal offence, an offence that was included in the offence charged in the information. This evidence arose from the testimony of theCrown witnesses and was confirmed by the Appellant’s testimony. Mr. Morgan was not convicted solely on his own evidence andtestimony. The Crown clearly established acts of care or control that continued after driving ceased.

The Appellant was shown to be incare or control of the motor vehicle in a continuous transaction that occurred on the date as alleged in the information. [34] I find that the Trial Judge did not err in concluding that the Appellant was involved in a single transaction of parking thevehicle, consuming the medication and beer, and sleeping in the front seat of the car. 3) Did the Trial Judge fail to consider whether the actus reus of the offence was committed? [35] The actus reus for impaired care or control is the assumption of the care or control of a vehicle after the voluntaryconsumption of alcohol or drug has impaired the ability to drive.

Acts of care and control, short of driving, are acts which involve someuse of the car or its fittings and equipment, or some course of conduct associated with the vehicle that would involve a risk of putting the vehicle in motion so that it could become dangerous: R v Toews, (SCC), [1985] 2 SCR 119, 20 DLR (4th) 758 at paras 7and 10. The Crown does not have to prove that the act of care or control might give rise to unintentional or accidental motion.

It issufficient that the act of care or control involves a risk of putting the vehicle in motion so that it may become dangerous: R v Gent(1997), 30 MVR (3d) 318, [1997] AJ No 72 at para 2. [36] The act of care or control may be proven by relying upon the presumption set out in s. 258(1)(

a) of the Criminal Code ofCanada or by showing actual care or control. In most situations where the court must consider actual care or control, the court is able tomake an inference that there was a risk the vehicle could be put into motion without direct evidence on that point: R v Sekhon, 2004ABQB 358, 358 AR 297 at para 33. [37] The Appellant submits that the Trial Judge erred in failing to consider whether the Appellant committed the actus reus. TheAppellant submits that the assumption of care or control must follow the impairment of the ability to drive.

The Appellant argues that theonly acts done after impairment were either his continued seating in the driver seat or continued sleeping, depending on the time ofimpairment. The Appellant submits that neither of these acts constitutes the assumption of care and control. In particular, the Appellantargues that it would be startling to consider that continuing to sleep could form the actus reus of a criminal offence. [38] In considering whether the actus reus was committed by Mr. Morgan, the Trial Judge found that the Crown could not rely on

the presumption set out in s. 258(1)(a). The presumption did not apply because Mr. Morgan testified he was in the driver’s seat with theintention to take pain medication and not to drive. The Trial Judge found this evidence to be reliable and that Mr. Morgan had rebuttedthe presumption of care or control as provided in s. 258(1)(a).

As a result, the Trial Judge properly turned his attention to actual care orcontrol. [39] The Trial Judge outlined the actus reus of impaired care or control in his written reasons: 113 The actus reus of the offence is the assumption of care or control when the ability to drive has been impaired by the consumptionof alcohol or drug; ... (see R v Toews, Supreme Court of Canada). 114 An intention to drive is not required under s. 253.

The Crown need only show that the accused performed some act involving thevehicle or its fittings whereby the motor vehicle may have been unintentionally set in motion (see R v Ford, (SCC),[1982] 1 S.C.R. 231, Supreme Court of Canada). 115 In care or control cases, the ultimate task of the trial judge is to decide whether the Crown has met the burden of establishingbeyond a reasonable doubt that the accused’s interaction with his or her vehicle presented a “danger” or, a “risk of danger”, or a “risk topublic safety”. Has the act or conduct of the Accused respecting the motor vehicle created a danger?

If the facts established beyond areasonable doubt a risk of the accused putting the motor vehicle in motion, either intentionally or unintentionally, or if the facts otherwisesupport a finding of danger, then care or control will have been established... 116 ...

If the accused does rebut the presumption, the Crown is still entitled to establish, “actual” care or control, by proving that therewas a risk of putting the vehicle in motion unintentionally or of posing in some other manner an immediate danger to public safety.Evidence showing a “risk of danger” arising from the impaired accused’s interaction with the motor vehicle will establish care or controlof the motor vehicle. [40] It is clear from the Trial Judge’s reasons that he was aware that the actus reus of care or control, where the statutorypresumption did not apply, required the Crown to show involvement by an accused with the motor vehicle that could create a risk ofsetting the vehicle in motion and that the risk could arise in many combinations.

There is no requirement on the Crown to show apositive action by an accused after impairment. The actus reus only requires the assumption of care or control after voluntaryimpairment. I find that the Trial Judge followed the appropriate authorities from the Supreme Court of Canada and properly identifiedthe actus reus of impaired care or control. [41] The case law establishes that it does not matter when the initial impairment occurs as long as the accused has someinteraction with the vehicle that presents a risk of danger after he is impaired. This interaction can arise once an accused is asleep orunconscious.

Mr. Morgan, after he drank the alcohol and took the pain medication, remained in the driver’s seat and continued to havecare of control of the motor vehicle with a running engine. The Trial Judge did not err in finding that the facts established a risk of Mr.Morgan putting the motor vehicle in motion after he was impaired, even though he was asleep. Speculation as to when Mr. Morgan firstassumed impairment and care or control is irrelevant to his criminal liability. By the time Mr.

Morgan was arrested, he demonstrated aninvolvement with the motor vehicle, while impaired, that caused a risk the vehicle would be put into motion and endanger the public.This was sufficient to prove that the actus reus of care or control had been committed. [42] R v Gent and R v Ogrodnick, 2007 ABCA 161, 409 AR 56, leave denied [2007] SCCA No 324 are authority for theproposition that remaining seated or sleeping in the driver’s seat after impairment can constitute the actus reus of the offence.

In R vGent, our Court of Appeal held that the requisite degree of care or control was established where the accused was found asleep in his carin the early morning hours, with his buttocks in the driver’s seat, his feet on the driver’s side floor, and his upper body lying across theseat with his head on the passenger side of the vehicle. The keys were in the ignition, the motor was running, and the heater was on. In Rv Ogrodnick, the accused was found sleeping in the driver’s seat of the vehicle with the engine running.

The accused testified that thesteering wheel was tilted all the way up and that the seat was slightly reclined. The truck had an automatic transmission which requiredthe driver to simultaneously apply the brake and put the vehicle in gear to set it in motion. [43] These cases involved accused who were found asleep in their cars, while intoxicated. Both were convicted of impaired careand control. The Court of Appeal did not specifically address when impairment arose in R v Gent and R v Ogrodnick but it can be seenthat the actus reus of impaired care and control can exist even when an accused is sleeping.

[44] I find that the Trial Judge did not err in identifying the actus reus of impaired care or control, nor in finding that it had beenestablished on the facts of this case. 4) Did the Trial Judge fail to evaluate the likelihood that the vehicle would be set in motion? [45] The Appellant submits that the evidence did not support the Trial Judge’s conclusion that there was a risk the vehicle wouldbe set in motion, and that the Trial Judged erred in failing to evaluate the likelihood of the risk of the vehicle being put in motion. [46] The law requires that the Crown prove beyond a reasonable doubt that the acts which placed the Appellant in care or controlof the motor vehicle involved a risk of putting the vehicle in motion so that it could become dangerous. [47] In considering actual care or control, the Trial Judge found, as matters of facts, that Mr.

Morgan was seated in the driver’sseat, while the motor was running, with his head on the steering wheel and his arms close to his head. There was evidence that thevehicle was an automatic, that it was in the “Park” position, and that the gearshift was located on the steering column, in close proximity to where the Appellant’s hands were while he was sleeping. The truck was parked in a parking lot and facing 127th Street. Mr. Morganindicated in cross-examination that his vehicle was capable of driving over the concrete edgings in parking lots, as it had done so whenhe initially parked on the evening in question.

There was no evidence that the emergency brake on the vehicle was engaged. Mr. Morganadmitted to being impaired when he was sleeping and indicated in cross-examination that there was a danger that the truck could be putin gear. There was no evidence on the steps necessary to activate the gear shift. There was a lack of positive evidence regarding theabsence of the risk of putting the vehicle in motion as no evidence was produced on the steps necessary to do so.

Based on the totality ofthe evidence, the Trial Judge inferred there was a risk the truck could be unintentionally set in motion and that it could become a risk to other vehicles and people in the parking lot on 127th Street. [48] These findings of fact were based on the evidence before the Trial Judge. The evidence of the two Crown witnesses and theAppellant were consistent with these findings. The Trial Judge also found all of the witnesses to be credible. There is no palpable andoverriding error with respect to the fact findings by the Trial Judge.

The vehicle was running, the gear shift was on the steering columnand near Mr. Morgan’s hands, Mr. Morgan admitted in cross-examination that it was possible he could put the truck in gear while asleepand that it was possible for his truck to drive over the concrete edgings in parking lots.

These admissions, combined with the otherevidence, gave rise to the Trial Judge’s inference that the Appellant’s interaction with the vehicle presented a “risk of danger” that thevehicle could be put in motion and that it could pose a danger. [49] I find that there was no palpable and overriding error with the inference that there was a risk the vehicle could beunintentionally set in motion as it was supported by the facts and evidence.

The Trial Judge did not err in concluding that the Crown hadproven the actus reus of impaired care or control had been committed by the Appellant. [50] Further, the Trial Judge was not required to evaluate the likelihood of the risk. The Court of Appeal in R v Ogrodnick held: 5 ...Efforts to state tests of probability or prospect of future intent in an attempt to define the risk contemplated by Parliament injectuncertainty into a settled area of law.

We would not undertake to do so in order to guide or restrict the ability of trial judges to applypractical judgment to given factual situations and decide if care or control, with the requisite level of risk, is proven. [51] Put simply, the active element of care or control is the risk of putting the vehicle in motion so that it could become adanger. The active element is not the likelihood or probability of a vehicle being put in motion.

Bastarache J.A. (as he then was)explained in R v Clarke (1997), (NB CA), 27 MVR (3d) 91 (NBCA): 9 There is no necessity of proving that the offender was posing an immediate danger to the public in order to find him guilty. It is thepossibility that the vehicle may be put in motion, intentionally or unintentionally, by a person who is intoxicated, that poses a problem....

[ 52 ] It is significant that in R v Toews , the Supreme Court of Canada contemplated “ a risk ” of an accused putting his or her vehicle in motion so that it “ could ” become dangerous. The Supreme Court did not speak of “ a likely risk ” or a “ very real risk ” that a vehicle “ would ” become dangerous: R v Toews at para 10. [ 53 ] In determining there was an unacceptable risk that the Appellant ’ s vehicle could be set in motion, the Trial Judge identified the correct law, found reasonable facts, and properly applied the law. V.

Conclusion [ 54 ] I find the Trial Judge was entitled to convict the Appellant of the included offence of impaired care or control on the evidence before him. [ 55 ] The appeal is dismissed. Heard on the 10 th day of May, 2012. Dated at the City of Edmonton, Alberta this 27 th day of August, 2012. A.B. Moen J.C.Q.B.A. Appearances: Julie Snowdon for the Crown Respondent Brad Thomlinson for the Appellant