Docket: CACR1982 Her Majesty the Queen Appellant - v. -, 2012 SKCA 37

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 37 Date: 20120319 Between: Docket: CACR1982 Her Majesty the Queen Appellant - and - Peter Andersen Respondent Coram: Jackson, Ottenbreit & Caldwell JJ.A. Counsel: W. Dean Sinclair, for the Crown David G. Kreklewich, for the Respondent Appeal:

From: 2011 SKQB 92 Heard: January 25, 2012 Disposition: Allowed Written Reasons: March 19, 2012 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit Caldwell J.A. I. Introduction [1] The Crown seeks leave to appeal from the decision of the

summary conviction appeal court which quashed Peter Andersen’sconviction on the offence of having care or control of a motor vehicle while over .08. [2] Mr. Andersen had been tried in Provincial Court on a

summary basis on charges that he had had care or control of a motorvehicle while his ability to operate a motor vehicle was impaired by alcohol (contrary to s. 253(1)(

a) of the Criminal Code) and while hisblood alcohol level exceeded the proscribed limit (contrary to s. 253(1)(

b) of the Criminal Code). He was convicted on the s. 253(1)(b)charge and the trial judge entered a judicial stay on the s. 253(1)(

a) charge (see 2009 SKPC 69). Mr. Andersen appealed his convictionto the Court of Queen’s Bench for Saskatchewan, as the

summary conviction appeal court, and the judge who heard his appeal quashedthe conviction and entered an acquittal (see 2011 SKQB 92). II. Leave Application [3] Under s. 839 of the Criminal Code, the Crown may seek leave to appeal a decision of a

summary conviction appeal court on anyground that involves a question of law. The grounds identified by the Crown in this appeal are threefold: (

a) Whether the

summary conviction appeal court judge applied the correct standard of appellate review; (

b) Whether the

summary conviction appeal court judge erred in law when he found Mr. Andersen had not been in actual care orcontrol of a motor vehicle; and (

c) Whether the

summary conviction appeal court judge erred in law when he found the statutory presumption under s. 258(1)(

a) ofthe Criminal Code had been rebutted. [4] These grounds of appeal properly raise questions of law as each involves either the identification or the application of a legalstandard. Furthermore, the issues are of sufficient importance that leave be granted. III. Appeal Proper [5] The central question in “care or control” cases is whether, short of driving, the accused’s use of a motor vehicle or its “fittingsand equipment” or the accused’s course of conduct associated with a motor vehicle would involve a risk of putting the motor vehicle inmotion so that it could become dangerous.

This is the actus reus of the “care or control” offence. (See: R. v. Ford, (SCC), [1982] 1 S.C.R. 231, R. v. Toews, (SCC), [1985] 2 S.C.R. 119, and R. v. Buckingham, 2007 SKCA 32, [2007] 6W.W.R. 73, among others; see also: R. v. Wren (2000), (ON CA), 144 C.C.C. (3d) 374 (Ont. C.A.)) [6] The Crown’s case against Mr. Andersen was read into the record at trial by agreement as he had conceded the prima facie caseagainst him. The Crown’s evidence, as read in, may be summarized as follows. At 4:20 a.m. on June 15, 2008, peace officers observedMr.

Andersen’s vehicle parked in Oxbow, Saskatchewan, with its headlights on and its engine running; and, when they stopped toinvestigate, they observed Mr. Andersen sitting in the driver’s seat. He appeared to be sleeping. They noted he had earlier vomited on thedriver’s side door and on the ground below it. When they tried to rouse him by knocking on the roof of his vehicle while loudlyannouncing their presence, Mr. Andersen gestured at them with a middle finger, indicating they should leave. He then opened thepassenger-side window but, when an officer reached in to unlock the passenger door, Mr.

Andersen closed the window nearly catchingthe officer’s arm in it. The officers then directed Mr. Andersen to unlock the vehicle’s doors and threatened to break one of the vehicle’swindows if he did not do so. When Mr. Andersen failed to unlock the doors, the officers attempted to break the passenger-side windowby striking it four times. At this point, Mr. Andersen “shot straight up,” unlocked his driver’s door, jumped out of his vehicle and went atone of the officers. The officers subdued Mr.

Andersen, read him his rights, and then escorted him to their detachment so he couldcomply with a breath-demand under s. 254(3) of the Criminal Code. At the detachment Mr. Andersen contacted a lawyer and thenprovided two breath samples. The level of alcohol in his blood was recorded at 0.11 mg/100ml at 5:32 a.m. and 0.10 mg/100ml at 5:56

a.m., which is not disputed. [7] Mr. Andersen testified in his own defence. He said he had no intention to drive his vehicle. He said he had attended a communitysupper where he had consumed 16 beers between 7:00 p.m. and 1:00 or 2:00 a.m. the next morning. He acknowledged his intoxication,but said when he left the supper he simply entered his vehicle, sat in the driver’s seat, started the engine and turned the heater on(because it was cold), and went to sleep almost immediately. He said it was his intention to sleep off his intoxication before driving tohis home, which is about 20 miles from Oxbow.

He later awoke because he was feeling sick. He rolled down and vomited out thedriver’s-side window and then went back to sleep. Mr. Andersen next recalled being shoved against his car by the officers; heremembered nothing from the intervening time. [8] When cross-examined, Mr. Andersen said doors on his vehicle do not lock automatically, but he could not remember lockingthem. He could not remember when he had started the vehicle’s engine, but he was certain he had done so before falling asleep. He saidhis vehicle’s heater was on “max” the whole time.

He did not remember rolling down the passenger window when the officer knockedon it; nor did he recall rolling it up. He said he felt “completely sober” when the peace officers had awakened him. He testified that to puthis vehicle in motion the operator has to depress the brake pedal, push in a button on the gearshift and then shift the vehicle into gear. Heagreed, under cross-examination, that he thought he would be fine in his vehicle until the next morning and by then he would havesobered-up enough to drive home. [9] The foregoing facts are important because the trial judge and the

summary conviction appeal court judge differed in theirrespective determination of whether, on the facts, Mr. Andersen had been in care or control of his vehicle. [10] In his reasons for conviction, the trial judge drew a parallel between the facts of this case and those of R. v. Brahniuk, 2002SKCA 104, 227 Sask. R. 135, reversing 2002 SKQB 137, 220 Sask. R. 6, and affirming [2001] S.J. No. 816 (Prov.

Ct.), where theaccused, who was “too intoxicated to walk,” had entered his truck, started it, locked the doors and then fallen asleep across the benchseat, with his buttocks on the seat in front of the steering wheel, his head on the seat toward the passenger’s side and his feet on the floorby the pedals. The trial judge in R. v.

Brahniuk had accepted the accused’s testimony that he did not have the intention to drive when heentered his vehicle, but then concluded on the facts before him: [34] However, I find, for the reasons set out in Ford [ (SCC), [1982] 1 S.C.R. 231], Toews [ (SCC),[1985] 2 S.C.R. 119] and Brown [[1999] S.J. No. 856 (Q.B.)], that Mr. Brahniuk had actual care and control of the truck.

I am satisfiedthat he possessed the immediate ability to set the vehicle in motion had he woken up, since it was running and in no way disabled.Indeed, the drunken, uncoordinated movements he made in response to the police commands to unlock the truck doors suggest stronglythat he could easily have set the vehicle in motion through inadvertence. This set of circumstances establishes the actus reus of care andcontrol.

The mens rea is made out on the usual presumption that a person intends the logical consequences of their actions, demonstratedhere by tuning (sic) on the ignition and locking the doors; this shows an intent to exercise care and control of the truck and its fittings. [11] With respect to Mr. Andersen’s circumstances, the trial judge in this case drew significantly on the reasoning of the judge in R. v.Brahniuk and found as follows: [21] I find myself in total agreement with the learned trial judge in Brahniuk and as confirmed by our Court of Appeal.

In the case atbar, I do accept that the accused did not have the intention to drive when he entered the vehicle. However his subsequent actions instarting the vehicle, pressing the brake and the start button to start the engine gave him the immediate ability to set the vehicle in motion.The only thing remaining to be done was to again press the brake and move the gear shift lever in order to move the vehicle. I find itdifficult to accept that in June in Saskatchewan that he would have had to have the engine running all night in order to keep warm and Iexpressly reject his evidence on that point.

Additionally, if he planned to continue to sleep in the vehicle, it seems unlikely that he wouldremain behind the driver’s steering wheel when it would have been far more comfortable and much safer if he had decided to sleep onthe passenger’s side or the backseat of his car. His movements as described by the police when they tried to rouse him are again almostidentical to the findings of fact made by the learned trial judge in Brahniuk in reaching his conclusion that this supported an inference ofan ability to set the vehicle in motion through inadvertence. [12] The trial judge then referred to R. v.

Buckingham, which he found “impossible to distinguish” from the facts of Mr. Andersen’scircumstances. After referring to Smith J.A.’s reasons at paras. 19-21 of that case, the trial judge reiterated his earlier conclusion: [24] In my respectful view, it is impossible to distinguish these decisions from the case at bar and in particular Smith JA’s reasoningin paragraph 21 supra.

In the case at bar, the engine was running, which involved the separate actions of having the keyless fob present,the brake depressed and the engine button engaged, the heater had been turned on, the windows had been rolled up and down during theevening when the accused was behind the wheel and again when the police arrived, the vehicle was not disabled in any way and wasparked in a public parking area where it could have been easily moved by simply depressing the brake and engaging the shift lever. [25] In my opinion these are a “significant use of the vehicle’s fittings and equipment by an individual in a highly intoxicated stateand one that necessarily enhanced both the risk that the vehicle could inadvertently be set in motion, and the risk that if he awoke, hemight intentionally set the vehicle in motion, given his intoxicated state” to quote again from Justice Smith, supra. [26] I therefore am compelled to the conclusion that on the date in question the accused was in fact in care or control of a motorvehicle as contemplated by the

section and find him guilty as charged of the .08 offence. In regard to the impaired care or control charge,because of my previous findings of fact, and the conviction in regard to the .08 offence, I would direct a Judicial Stay of Proceedings inregard to the impaired charge. [13] As noted, the

summary conviction appeal court judge allowed Mr. Andersen’s appeal and entered an acquittal on the s. 253(1)(b)charge. In doing so, he reversed the trial judge’s finding that Mr. Andersen had been in “care or control” of his vehicle because, on thesummary conviction appeal court judge’s

interpretation of that standard, the evidence disclosed “minimal or no risk” or “virtually norisk” Mr. Andersen would have intentionally set his vehicle in motion and no more than a “negligible risk” or that it was “highly

improbable” he would have inadvertently set his vehicle in motion. In effect, the

summary conviction appeal court judge found that the evidence did not satisfy the actus reus requirement of the “care or control” offence and that the trial judge had erred when he concluded otherwise. Accordingly, he allowed Mr. Andersen’s appeal and set aside the conviction. [ 14 ] Although the Crown framed its appeal on three grounds, each ground serves to define the central question before the Court in this appeal as: Did either Mr.

Andersen’s use of his vehicle’s “fittings and equipment” or his course of conduct with respect to his vehicle involve a risk that the vehicle could be set in motion creating a danger to the public or property? Although heavily informed by the facts, this is ultimately a question of law reviewable on appeal on the standard of correctness (see: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 and R. v. Buckingham ). [ 15 ] In Mr. Andersen’s appeal before the

summary conviction appeal court, the appeal judge hearing the matter ruled the trial judge had erred in law by incorrectly finding that there had been an unacceptable risk Mr. Andersen would set his vehicle in motion so that it could become dangerous. In this respect, the

summary conviction appeal court judge properly held the trial judge’s reasons to review on a standard of correctness. However, in my respectful opinion, the

summary conviction appeal court judge erred in overturning the conviction entered by the trial judge on the basis that Mr. Andersen was not, in these circumstances, in “care or control” of his vehicle. I will explain. [ 16 ] As noted, R v. Ford and R. v. Toews make it clear that acts of “care or control,” short of driving, are acts which involve some use of a motor vehicle or its fittings and equipment, or some course of conduct associated with a motor vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous. The question before the

summary conviction appeal court judge then was whether the trial judge had correctly found Mr. Andersen’s use of his vehicle or its fittings and equipment or his conduct in relation to his vehicle had involved that risk. Practically speaking, the risk of danger will be established where the evidence indicates the accused might have intentionally or inadvertently put the vehicle in motion, or both. [ 17 ] In my respectful opinion, the risk of danger in this case was real and evident. Mr. Andersen was intoxicated. Mr. Andersen occupied the driver’s seat of his vehicle. Mr.

Andersen’s vehicle was not disabled in any way, was running and was parked in a public parking area and, therefore, could have been easily put into motion by simply depressing the brake and engaging the gear shift (regardless of how many discrete steps one might characterise this as taking). I find no fault with the trial judge’s conclusion that, given Mr. Andersen’s intoxicated state, these circumstances necessarily involved a risk that Mr. Andersen could have inadvertently set his vehicle in motion, or that Mr.

Andersen could have, if he awoke, intentionally set his vehicle in motion. [ 18 ] In my opinion, the risk that Mr. Andersen could have inadvertently put his vehicle in motion is manifest in the evidence of his disorderly conduct upon being roused by the police (whether due to his admitted intoxication or, as the

summary conviction appeal court judge found, because he was “dazed” or “does not wake easily”). Furthermore, in this analysis of the risk involved, it is critically important that Mr. Andersen testified he had intended to drive home after he had slept off his intoxication in his vehicle. I say this even though an intention to drive is not an essential element of the offence (see R. v. Ford , at pp. 248-49) and Mr. Andersen’s decision was more sensible than the alternative of driving off immediately. Regardless, Mr.

Andersen’s stated intention to drive home after he had sobered up is relevant to the risk assessment required in “care or control” cases because it is evidence of a risk that he could have put his vehicle in motion at a time when doing so could create a danger to the public or to property. Indeed, on the record in this case, the risk is readily apparent since Mr.

Andersen testified that when he was awakened by the police he judged himself “completely sober”; yet, over an hour later, his blood alcohol readings still exceeded the proscribed limit. [ 19 ] On these facts alone, the existence of the mischief targeted by the “care or control” offence (whether referring to the risk of intentionally or unintentionally putting a vehicle in motion) is evident and, in my respectful opinion, the trial judge’s legal conclusion that Mr.

Andersen was in de facto “care or control” of his vehicle was correct. [ 20 ] Given the foregoing, I have not addressed in these reasons the third ground of appeal raised by the Crown, being that the

summary conviction appeal court judge erred when he concluded the presumption in s. 258(1) (

a) of the Criminal Code had been rebutted in this case. IV. Conclusion [ 21 ] I am satisfied the trial judge correctly identified the applicable law, and, on the facts as he found them, correctly found Mr. Andersen had been in “care or control” of his motor vehicle while his blood alcohol content exceeded the proscribed limit. On the whole, the evidence undoubtedly points to an obvious and significant risk that Mr. Andersen could have either intentionally or unintentionally set his vehicle in motion at a time when doing so might have endangered the public or property.

In this respect, the instant circumstances fall squarely within those which Parliament intended to catch under the s. 253(1) “care or control” offence, and the

summary conviction appeal court judge erred by determining otherwise. [ 22 ] I would grant the Crown leave to appeal. I would allow the Crown’s appeal, set aside the acquittal ordered by the

summary conviction appeal court judge, and confirm the conviction entered by the trial judge. DATED at the City of Regina, in the Province of Saskatchewan, this 19 th day of March, A.D. 2012. “ Caldwell J.A.” _____________________ Caldwell J.A. I concur “Jackson J.A.” ______________________

Jackson J.A. I concur “Ottenbreit J.A.” ___________________ Ottenbreit J.A.