Docket: CACR2033 Her Majesty the Queen Appellant - v. -, 2012 SKCA 65

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 65 Date: 20120621 Between: Docket: CACR2033 Her Majesty the Queen Appellant - and - Curtis J. Coleman Respondent Coram: Richards, Ottenbreit & Caldwell JJ.A. Counsel: Anthony Gerein for the Appellant Michael Owens for the Respondent

Appeal: From: 2011 SKQB 262 Heard: June 21, 2012 Disposition: Allowed Written Reasons: June 27, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Caldwell Richards J.A. I. INTRODUCTION [ 1 ] This appeal raises the often-visited question of what must be proven in order for an accused person to be held to have been in “care and control” of a motor vehicle within the meaning of s. 253(1) of the Criminal Code . [ 2 ] Curtis Coleman, the respondent, was found behind the wheel of a parked car.

He had been drinking but had pulled his vehicle over and was asleep when discovered by the police. The keys were in the ignition, but the motor of the car was not running. The trial judge found Mr. Coleman guilty of having care and control of a motor vehicle while his ability to drive was impaired by alcohol ( 2010 SKPC 100 ). Mr. Coleman appealed. [ 3 ] A Queen’s Bench judge, acting as a

summary conviction appeal court, overturned the conviction ( 2011 SKQB 262 ). He did so out of concern that the law should not penalize impaired drivers who appreciate their condition and pull their vehicles off the road. In his view, Mr. Coleman had not been in care and control of his car because there had been no risk of him inadvertently putting it in motion. [ 4 ] The Crown appealed the Queen’s Bench decision pursuant to s. 839 of the Criminal Code . We allowed the appeal after oral argument, with a promise of written reasons to follow. These are those reasons. II.

THE FACTS [ 5 ] At about 10:00 p.m. on March 13, 2009, police officers working in the Warman area of Saskatchewan received a complaint about a vehicle being driven in an erratic manner. It was described as a black or dark-coloured Jetta bearing a specific licence plate number. [ 6 ] Police located a vehicle matching this description and carrying the plate in question at about 10:30 p.m. It was parked on a side roadway near Highway 11 in the Corman Park area. The engine was not running and the headlights were off. [ 7 ] R.C.M.P. Constable Reynolds testified that she approached the car and found Mr.

Coleman sleeping in the driver’s seat. The keys were in the ignition. Constable Reynolds said she knocked on the window a couple of times and Mr. Coleman then awoke, mouthed the words “oh fuck”, reached toward the keys in the ignition with his right hand and put his left hand on the steering wheel. Constable Reynolds testified that, at this point, she opened the driver’s door of the vehicle both to stop Mr. Coleman from driving and in order to have a conversation with him. [ 8 ] Constable Reynolds detected a strong odour of alcohol on opening the door. She indicated that she had to ask Mr. Coleman several

times for his driver’s licence and registration. His speech was slurred and deliberate and his movements were jerky. The Constable said Mr. Coleman fumbled getting his licence and told her that he had been at a bar called the Fox and Hounds. Constable Reynolds said his breath smelled of alcohol. [ 9 ] Constable Reynolds testified that she then arrested Mr. Coleman and placed him in the back of her police car. Mr. Coleman promptly fell asleep. The Jetta was towed. [ 10 ] Mr. Coleman’s evidence was somewhat different.

He testified that he had two beers at the Fox and Hounds after work but had left at 6:30 p.m. to drive home to Warman. He said he began falling asleep on the way and pulled over at about 7:00 p.m. to nap for five minutes, but had ended up sleeping for three hours. He testified that he had reclined his seat as far back as possible and had reached for the steering wheel and the console to pull himself up when police knocked on the window of his vehicle. He denied reaching for the keys in the ignition and said he had no intention of driving at the time he was awakened. Mr.

Coleman explained his lack of coherence in responding to police questioning by saying that he had just been woken up. [ 11 ] Mr. Coleman also testified that he had parked his car so as not to block traffic and had engaged the emergency brake. He said his vehicle had a standard transmission and that, in order to drive it, he would have had to disengage the emergency brake, shift into gear while depressing the clutch and then apply gas while letting out the clutch. III. THE TRIAL DECISION [ 12 ] Mr.

Coleman was charged with having care and control of a motor vehicle while his ability to operate the vehicle was impaired by alcohol, contrary to s. 253(1) (

a) of the Criminal Code , and (

b) having care and control of a motor vehicle while being “over .08” contrary to s. 253(1)(

b) of the Code . Some Charter issues led to an acquittal on the s. 253(1)(

b) charge. [ 13 ] In dealing with s. 253(1)(a), the trial judge did not accept Mr. Coleman’s efforts to explain the indicia of impairment observed by the police. In the end, he had little difficulty concluding Mr. Coleman’s ability to operate a motor vehicle had been impaired by alcohol. [ 14 ] The judge then turned to the question of care and control. In this regard, he made some important findings of fact: (

a) Mr. Coleman had been driving as late as approximately 10:00 p.m., not sleeping since 7:00 p.m. as he had testified, (

b) Mr. Coleman’s seat had been in an upright position, not reclined as he had said, (

c) the vehicle had been pulled off the highway onto an access road, was not blocking traffic and was not otherwise in a dangerous position, (

d) the keys were in the ignition, (

e) the engine was not running, (

f) the emergency brake was engaged, and (

g) the gearshift was in neutral and, to put the car into motion, Mr. Coleman would have had to depress the clutch and shift into gear. Significantly, the trial judge rejected Mr. Coleman’s evidence as to what had happened when Constable Reynolds knocked on the window. He found that Mr. Coleman had reached for the steering wheel and the key for the purpose of starting the vehicle. [ 15 ] The trial judge did accept Mr. Coleman’s evidence to the effect that he had stopped his vehicle intending to have a nap. As a result, he said Mr.

Coleman had displaced the presumption in s. 258(1) of the Criminal Code , to the effect that a person occupying the driver’s seat of a vehicle is deemed to have care and control of the vehicle. Consequently, the trial judge turned to the question of whether, on the whole of the evidence, the Crown had proven beyond a reasonable doubt that Mr. Coleman had been in care and control of his car. [ 16 ] Referring to R. v. Buckingham , 2007 SKCA 32 , [2007] 6 W.W.R. 73, the trial judge said the relevant question was whether Mr.

Coleman’s use of the fittings or equipment in his intoxicated state had created a danger to the public. In finding Mr. Coleman guilty, he concluded as follows: [43] In this case, I accept that the accused was sitting upright in the driver's seat sleeping. When Constable Reynolds woke him up he reached for the steering wheel and the key in the ignition to start the vehicle. It matters not whether it was inadvertent or intentional.

The fact is, this is what he did and only the officer's quick response in opening the car door stopped the accused from actually starting the vehicle. [44] I am satisfied beyond a reasonable doubt that the accused's action in reaching for the steering wheel and the key in the ignition constituted a risk of setting his vehicle in motion so that it could become dangerous, and as such, the accused was in de facto care or control of his vehicle. IV. THE APPEAL DECISION [ 17 ] As indicated, Mr. Coleman appealed to the Court of Queen’s Bench. The Queen’s Bench judge placed some emphasis on a policy

notion to the effect that the law should not discourage a driver who has been drinking from pulling his or her vehicle off the road. In theend, he concluded that, in the circumstances of this case, it could not reasonably be said that Mr. Coleman had been in care and controlof his vehicle. The key aspects of the judge’s reasoning are set out below: 26 In this case, the learned trial judge appropriately looks to R. v. Buckingham for guidance. However, there are sharp factualdifferences.

In Buckingham, the accused had started the engine and was in fact exerting pressure on the accelerator at the moment he wasdiscovered. In sum, there was significant use of the vehicle's fittings and equipment by the intoxicated accused. That use enhanced therisk the vehicle could inadvertently be set in motion. . . . 28 In this case, the accused was sleeping in the driver's seat. There was some discrepancy about whether the seat was upright orreclined. The learned trial judge accepts that it was upright. The keys were in the ignition but the engine was off.

There was evidencethat the emergency break [sic] was engaged and that the accused had pulled the vehicle onto a side access road so that it was notblocking traffic or in a dangerous position. 29 In order to set the vehicle in motion, there would have had to have been numerous steps taken. In sum, the accused was simplysleeping in his car and it was completely turned off. These are facts consonant with the acquittals in R. v. Huls, supra; R. v. Hazel, supra;R. v. Senack, supra; R. v. Gervan, supra and R. v.

Martindale, supra. 30 With the greatest respect to the learned trial judge, it cannot be reasonably said that the accused was engaged in the process of theuse of the fittings or equipment of the vehicle. There was no risk of inadvertently setting the vehicle in motion. [emphasis added] [18] In light of this analysis, the Queen’s Bench judge allowed the appeal and entered a verdict of not guilty. It appears that his decisionwas grounded in s. 686(1)(

a) of the Criminal Code and the idea that the trial judge’s verdict was unreasonable or could not be supportedby the evidence. V. ANALYSIS [19] This, as noted, is an appeal pursuant to s. 839 of the Criminal Code.

Section 839 allows an appeal to this Court, with leave, on anyground that involves a question of law alone. This limitation of appellate authority cannot be overlooked. It means, for example, that weare unable to accept Mr. Coleman’s invitation to second-guess or re-make some of the trial judge’s findings of fact. This is an appealfrom the decision of the Queen’s Bench judge and it is an appeal limited to questions of law. [20] In any event, the findings of fact made by the trial judge were all either based directly on the evidence before him or reasonableinferences based on that evidence.

There is, in my view, nothing in the nature of a “palpable and overriding” error in the trial judge’sfact finding. See: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. As I read his decision, the Queen’s Bench judge did notthink the trial judge had made any such error either. [21] With that point of clarification made, I turn to the submissions of the Crown. It says that the Queen’s Bench judge made severalerrors in his approach to this case. Most significantly, it says the judge erred by (

a) ignoring some of the trial judge’s key findings offact, (

b) failing to appreciate the proper meaning of “care and control” and (

c) improperly injecting policy concerns into theinterpretation and application of s. 253(1) of the Criminal Code. I generally agree with these submissions, although I would come at theunderlying considerations from a slightly different direction. [22] It is useful to begin the analysis of this appeal by considering the meaning of the term “care and control”. That meaning wasspelled out by the Supreme Court of Canada nearly 30 years ago in R. v. Toews, (SCC), [1985] 2 S.C.R. 119.

McIntyreJ., writing for the Court, said this (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 ofconduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous. [23] The case law since Toews has emphasized that the central consideration in relation to “care and control” is the risk that the accusedperson will create a dangerous situation, whether by putting the vehicle in motion or some other way.

For example, Bastarache J.A. (ashe then was) explained the situation as follows in R. v. Clarke (1997), (NB CA), 27 M.V.R. (3d) 91 (N.B.C.A.): [8] ... The care and control offence lies not in the intention to drive the vehicle, but in voluntarily becoming intoxicated and in takingsome actions by which the offender is involved with the vehicle in a way which may cause danger to the public.... [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 isthe possibility that the vehicle may be put in motion, intentionally or unintentionally, by a person who is intoxicated, that poses aproblem of public ...

See also: R. v. Wren (2000), 2 M.V.R. (4th) 188 (Ont. C.A.) at paras. 16 and 25. [24] The relevant risk does not relate solely to the possibility of an impaired driver acting inadvertently to put a vehicle in motion. It alsoincludes the possibility of such a driver acting intentionally in this regard. The reason for this is self-evident. Impaired drivers have adiminished capacity to make safe judgments. They frequently act, deliberately, in ways which endanger themselves and the public. The Court of Appeal for Ontario put it this way in R. v. Pelletier (2000), 6 M.V.R (4th) 152 (Ont. C.A.): [6] . . . As the

summary conviction appeal court judge pointed out there was a risk that the appellant would change his mind anddrive the car. There was also the risk that, in his impaired condition, the appellant would misjudge his level of impairment and drive thecar while his condition continued to pose a risk. See also: R. v. Gent (1997), 30 M.V.R. (3d) 318 (Alta. C.A.) at para. 2. [25] This same concern is reflected in several of this Court’s decisions. Thus, for example, in R. v.

Buckingham, supra, Smith J.A.,dealing with a situation where the offender occupied the driver’s seat of his truck while waiting for a taxi, explained the core issue of thecase by stating as follows: [19] ... The question was whether [the offender’s] use of the vehicle's ‘fittings and equipment’ (i.e., his turning on the engine toactivate the truck's heater) together with his state of intoxication, created the risk that the vehicle could be set in motion, creating adanger to the public.

That risk has two aspects: the first is that the intoxicated accused will awaken, and be too intoxicated to rememberor adhere to his previous determination not to drive; the second is that in his intoxicated state he will inadvertently set the vehicle inmotion... [emphasis added] [26] Caldwell J.A., writing recently in R. v. Anderson, 2012 SKCA 37, focused on the same sources of risk when examining thesituation of an intoxicated driver found at the wheel of a parked vehicle: [16] ... 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. Practicallyspeaking, the risk of danger will be established where the evidence indicates the accused might have intentionally or inadvertently putthe vehicle in motion, or both. See also: R. v. Price (1978), (NB CA), 40 C.C.C. (2d) 378 (N.B.C.A.) at p. 384. [27] All of this serves to reveal the central error in the approach taken by the Queen’s Bench judge.

He focused exclusively on thequestion of whether Mr. Coleman might have inadvertently put his vehicle in motion. He made no reference to the risk of Mr. Colemanmaking a deliberate decision to drive. [28] The facts as found by the trial judge are particularly important in this regard. Significantly, this is not a case where a driver,realizing he is impaired, decides to pull off the road in order to avoid endangering himself or the public. To the contrary, Mr. Colemandenied having been intoxicated and testified that he had consumed only two beers some four hours before being awakened by the police.

He said he had pulled over, not because he was drunk, but because he was sleepy. He did not intend to park until he had sobered up. Rather, he said he had merely paused on his way home for a “five-minute nap”. All of this demonstrates that Mr. Coleman’s course ofconduct posed a genuine risk to the public. He was behind the wheel of his car and he was of a mind to deliberately put it in motion eventhough he was impaired. The learned Queen’s Bench judge appears to have overlooked or given no consideration to this key fact. [29] The risk that Mr.

Coleman would deliberately have chosen to drive is underlined by his actions on being awakened by the police. As found by the trial judge, Mr. Coleman “reached for the steering wheel and the key in the ignition to start the vehicle” and “only theofficer’s quick response in opening the door stopped him from actually starting the vehicle.” This, too, confirms in clear terms the riskto the public posed by the possibility of Mr. Coleman making a deliberate decision to drive his vehicle. [30] On this point, I should perhaps note that, in his oral submissions, counsel for Mr.

Coleman made much of the fact that Mr.Coleman did not actually touch the keys or start his vehicle when roused by the police. This line of argument, in my view, wasmisplaced. The answer to the care and control question does not turn merely on whether a driver starts a vehicle or is behind the wheel ofa vehicle with a running motor. Indeed, an intention to drive is not a necessary element of the offence created by s. 253(1). See: R. v.Ford, (SCC), [1982] 1 S.C.R. 231 at p. 239.

As counsel ultimately conceded, the proper analysis of the point turns on anassessment of the full constellation of factors relevant to the risk of the accused putting the vehicle in motion or otherwise creating adanger to the public. At the Supreme Court said in Toews, there must be “some course of conduct” in relation to the vehicle which couldcreate a danger.

[31] Here, Mr. Coleman did pull off the highway and park on a side road. He did turn off the engine of his vehicle, engage theemergency brake and go to sleep. But, on the other hand, he denied or did not understand that he was impaired. He stopped only for afive minute nap. He did not recline his seat. He left the keys in the ignition and he tried to start his vehicle on being awakened by thepolice. As a result, the trial judge made no error in weighing the collective significance of these considerations so as to find Mr.

Colemanguilty on the s. 253(1) charge. [32] There is one other point concerning the decision of the Queen’s Bench judge which warrants some attention. As indicated, hisanalysis appears to have been significantly influence by a sense that, for policy reasons, s. 253(1) of the Criminal Code should beinterpreted or applied so as not to penalize impaired drivers who pull their vehicles off the road. In this regard, he referred to passagesfound in R. v. Martindale (1995), (BC SC), 45 C.R. (4th) 111 (B.C.S.C.), R. v. Senack, [1996] O.J. No. 3332 (Ont.Prov. Ct.) (QL), R. v. Moreau (1998), (SK KB), 162 Sask.

R. 103 (Q.B.) at para. 5, R. v. Sherbrooke (1998), (SK KB), 164 Sask. R. 183 (Q.B.) at para. 21 and R. v. Gervan, 2009 SKQB 159, 333 Sask.R. 262 at paras. 24-28. [33] In my respectful view, this line of thinking cannot be accepted. The legislative objective behind s. 253(1) of the Criminal Code isclear. In light of the obvious dangers involved in mixing motor vehicles and alcohol, Parliament made it an offence for an individual,whose ability to operate a motor vehicle is impaired by alcohol, to be in care and control of a vehicle.

The idea, it seems to me, was towholly avoid having intoxicated individuals in positions where they can put vehicles in motion (or otherwise endanger the public) in thefirst place. It was not to create an incentive for drunk drivers to pull over. [34] Accordingly, I conclude that the Queen’s Bench judge erred by analyzing the issues before him with a view to giving effect to thepolicy idea that s. 253(1) of the Code should not be applied so as to penalize impaired drivers who take their vehicles off the road.

Animpaired person behind the wheel of a parked vehicle might pose a less acute danger to the public than an impaired person behind thewheel of a moving vehicle. But, that does not mean the latter situation is risk free. Parliament has attempted to address both issues byaiming criminal sanctions not just at those individuals who drive while impaired, but also at those who assume care and control of avehicle while impaired. See: R. v. Saunders, (SCC), [1967] S.C.R. 284, [1967] 3 C.C.C 278 at p. 283. Section 253(1) ofthe Criminal Code is directed at the very root of the impaired driving problem.

Its object is to stop intoxicated or otherwise impairedindividuals from endangering themselves and the public by having care or control of a motor vehicle. [35] In closing, I should perhaps also note that the Crown took the position that both the trial judge and the Queen’s Bench judge haderred by proceeding on the basis that the presumption of care and control set out in s. 258(

a) of the Criminal Code had been displaced.The Crown does not need the presumption to succeed in this case and, as a result, I choose to make no comment on this aspect of itssubmissions. VI. CONCLUSION [36] I conclude, for the reasons set out above, that the Crown’s appeal must be allowed and Mr. Coleman’s conviction reinstated. In myrespectful opinion, the Queen’s Bench judge erred in his application of s. 253(1) of the Criminal Code to the facts of this case. DATED at the City of Regina, in the Province of Saskatchewan, this 27th day of June, A.D. 2012. “Richards J.A.”_____________________ Richards J.A. I concur “Ottenbreit J.A.”___________________ Ottenbreit J.A.

I concur “Caldwell J.A.” _____________________ Caldwell J.A.