Care and Control

R v Coleman, 2012 SKCA 65 is a useful decision discussing 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:

 [22] It is useful to begin the analysis of this appeal by considering the meaning of the term “care and control”. That meaning was spelled out by the Supreme Court of Canada nearly 30 years ago in R. v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119. McIntyre J., 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 of conduct 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 accused person will create a dangerous situation, whether by putting the vehicle in motion or some other way. For example, Bastarache J.A. (as he then was) explained the situation as follows in R. v. Clarke (1997), 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 taking some 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 is the possibility that the vehicle may be put in motion, intentionally or unintentionally, by a person who is intoxicated, that poses a problem 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 also includes the possibility of such a driver acting intentionally in this regard. The reason for this is self-evident. Impaired drivers have a diminished 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 and drive the car. There was also the risk that, in his impaired condition, the appellant would misjudge his level of impairment and drive the car 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 the case 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 to activate the truck's heater) together with his state of intoxication, created the risk that the vehicle could be set in motion, creating a danger to the public. That risk has two aspects: the first is that the intoxicated accused will awaken, and be too intoxicated to remember or adhere to his previous determination not to drive; the second is that in his intoxicated state he will inadvertently set the vehicle in motion... [emphasis added]

 [26] Caldwell J.A., writing recently in R. v. Anderson, 2012 SKCA 37 (CanLII), 2012 SKCA 37, focused on the same sources of risk when examining the situation 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. 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. See also: R. v. Price (1978), 40 C.C.C. (2d) 378 (N.B.C.A.) at p. 384.