Between
Her Majesty the Queen, appellant, and
Henry Jay Ronalds, respondent
[2002] O.J. No. 4129
Court File No. SC189/01
Ontario Superior Court of Justice
Beaulieu J.
Heard: September 11, 2001.
Judgment: October 24, 2002.
(15 paras.)
Counsel:
Cheryl Blondell, for the appellant.
Lorne Sabsay, for the respondent.
BEAULIEU J.:-
Introduction
1 The Crown appeals Mr. Ronalds' acquittal on a charge of impaired care or control of a motor vehicle (Criminal Code, R.S.C. 1985, c. C.46, s. 253(a)). The Crown submits that the trial judge misapprehended the test for "care or control." I disagree and dismiss the appeal.
Facts
2 Before driving home from work one day in November 1999, Mr. Ronalds took strong medication for back pain. The medication took hold much sooner than he expected. He felt drowsy and was concerned about his ability to drive. Mr. Ronalds wisely stopped driving, and pulled over partially onto the sidewalk. Some time later, two police officers discovered Mr. Ronalds asleep in his car. The officers woke Mr. Ronalds, who appeared disoriented during the subsequent investigation.
3 There was equivocal evidence as to the location of the car keys when the officers arrived. Mr. Ronalds stated that his keys were not in the ignition when the officers found him, but that he put the keys in the ignition at some point while talking with the officers. An officer testified that the keys were in the ignition when he found Mr. Ronalds and that the officer took the keys out during the investigation.
4 Mr. Ronalds maintained, and the trial judge accepted, that Mr. Ronalds had no intention to put the car in motion. During the investigation, the officers discovered that the car was inoperative and could not be turned on.
5 The trial judge held that the Crown did not prove care or control beyond a reasonable doubt.
Analysis
6 Did Mr. Ronalds have "care or control" of his car? In R. v. Toews, [1985] 2 S.C.R. 119 at 126, the Supreme Court discussed the meaning of those words:
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[A]cts of care and 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. |
7 More recently, the Court of Appeal for Ontario held in R. v. Wren, (2000), at para. 16, that:
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In order to establish care and control of a motor vehicle, the act or conduct of the accused in relation to that motor vehicle must be such that there is created a risk of danger, whether from putting the car in motion or in some other way. |
8 Thus, the Crown must show a risk of danger that might result from the accused person's interaction with the car.
9 The trial judge did not fully articulate the test she used in determining whether this risk of danger was proven. However, it is clear that she considered two relevant factors: the fact that the car could not start, and Mr. Ronalds' testimony that he had no intention of operating his car.
10 As to the first factor, a car's interoperability does not, by itself, necessarily preclude care or control, but it is a relevant factor in determining whether the danger that s. 253 seeks to prevent is present. If a car cannot be driven, the danger that it will injure persons or property is likely diminished. However, a judge must still determine whether the inoperable vehicle, "in the hands of an impaired person, has the potential to create some danger." (Wren, supra at para. 25.)
11 As to the second factor, it is true that the mens rea element of this offence is not an intention to drive but merely an intention to assume care or control of the car. (Toews, supra at 124.) Yet, a person's intent (or lack thereof) to operate their car can be relevant in determining the existence of a risk of danger. The trial judge accepted Mr. Ronalds' testimony that he did not intend to operate his car. I take this to mean that the trial judge found that whatever danger could have arisen from Mr. Ronalds' intentional operation of his car, such danger was unlikely to occur. The fact that a person does not intend to operate a car does not conclusively show that no danger will arise from the interaction of the person and the car, but can assist in determining whether, in all the circumstances, the risk of danger was present.
12 In this case, the interoperability of the car, coupled with the finding of credibility in Mr. Ronalds' evidence that he did not intend to operate his car, combine with enough force to sustain a determination that Mr. Ronalds created no risk of danger.
13 Since this is an appeal, I am not to retry the case. Among other advantages, the trial judge had the benefit of directly observing the witnesses. My task is to determine whether the trial judge could reasonably have reached the conclusion she did on the evidence before her: R. v. Burns, [1994] 1 S.C.R. 656 at para. 14. I cannot say that, on all of the evidence, the trial judge's ruling was unreasonable.
Conclusion
14 I uphold the trial judge's decision and sustain Mr. Ronalds' acquittal.
15 Mr. Ronalds' counsel also submitted that the trial judge erred by finding that Mr. Ronalds was impaired, since the Crown led no expert evidence proving that Mr. Ronalds was indeed impaired by his medication. I need not determine the issue here because I am sustaining the acquittal on other grounds.
BEAULIEU J.
QL Update: 20021108
cp/e/nc/qlrme
