R. v. Johnson (L.C.), (1986) 49 Sask.R. 217 (CA)

• Judge: Cameron, Wakeling and Gerwing, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 03, 1986
• Jurisdiction: Saskatchewan
• Citations: (1986), 49 Sask.R. 217 (CA);1986 CanLII 3289 (SK CA);[1986] 6 WWR 238;29 CCC (3d) 395;37 MVR 122;49 Sask R 217

R. v. Johnson (L.C.) (1986), 49 Sask.R. 217 (CA)

MLB headnote and full text

R. v. Johnson (L.C.)

(No. 2240)

Indexed As: R. v. Johnson (L.C.)

Saskatchewan Court of Appeal

Cameron, Wakeling and Gerwing, JJ.A.

September 3, 1986.

Summary:

An accused was acquitted of having care or control of a motor vehicle while having an excessive blood-alcohol content, contrary to s. 236 of the Criminal Code of Canada. The accused had been found asleep in the driver's seat of the vehicle with the engine running and the radio and park lights on. The Crown appealed the acquittal.

The Saskatchewan Court of Queen's Bench, in a decision reported in 43 Sask.R. 118, allowed the appeal. The court held that the accused had engaged in sufficient acts to constitute care or control of the motor vehicle and the fact that the accused was asleep when apprehended was irrelevant in the circumstances. The accused appealed.

The Saskatchewan Court of Appeal unanimously allowed the appeal. The majority of the Court of Appeal ordered a new trial; Cameron, J.A., however, would have restored the verdict of acquittal.

Courts - Topic 121

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - General - A judge of the Saskatchewan Court of Appeal stated that "when it is said that a court of inferior jurisdiction is 'bound to follow a case' or 'bound by a decision' of a court of superior jurisdiction, what is meant, of course, is that a judge is obliged to apply the ratio decidendi of the case of higher authority to the facts before him unless the facts are distinguishable from those of the previous case". - See paragraph 13.

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care or control - What constitutes - An accused, found asleep in the driver's seat of a motor vehicle while the engine was running and the radio and park lights on, was charged with having care or control of a motor vehicle while having an excessive blood-alcohol content, contrary to s. 236 of the Criminal Code of Canada - The Saskatchewan Court of Queen's Bench, on appeal, convicted the accused - The Saskatchewan Court of Appeal allowed the accused's appeal and ordered a new trial, because the summary conviction appeal court (Queen's Bench) erred in applying the presumption in s. 237(1)(a) of the Code and in substituting its own opinion for that of the trial judge - See paragraphs 7 to 16, 31, 37, 43 to 49.

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care and control - What constitutes - Presumption of care and control - An accused was charged with having care or control of a motor vehicle while having an excessive blood-alcohol content - The accused established that he entered the car only for the purpose of spending the night there, and not to set it in motion - The Saskatchewan Court of Appeal held that if the trial judge had applied (which was unclear) the presumption in s. 237(1)(a) of the Criminal Code of Canada (that an accused found occupying the driver's seat was deemed to have care or control of the vehicle), then the judge would have erred - See paragraphs 7 to 8, 44 to 45.

Criminal Law - Topic 7464

Summary conviction proceedings - Appeals - Powers on appeal - A judge of the Saskatchewan Court of Appeal generally discussed the role of a summary conviction appeal court - The judge held that the appeal court's function, on summary conviction appeals by the Crown involving issues of fact, was not to retry the case, but to review the findings of fact on the standards of s. 613(1)(a)(i) of the Criminal Code, applying the tests in R. v. Corbett (1973), 1 N.R. 258; 14 C.C.C.(2d) 385 - See paragraphs 23 to 33.

Criminal Law - Topic 7464

Summary conviction proceedings - Appeals - Powers on appeal - An accused was charged with having care or control of a motor vehicle while having an excessive blood-alcohol content - The trial judge acquitted the accused because he had a reasonable doubt that the accused was in care or control under s. 236 of the Criminal Code - On appeal, the Saskatchewan Court of Queen's Bench convicted the accused - The Saskatchewan Court of Appeal held that the summary conviction appeal court (Queen's Bench) erred by taking its own view of the evidence and substituting its opinion for that of the trial judge, having accepted the trial judge's finding of facts - See paragraphs 9 to 16, 31, 37, 46 to 50.

Criminal Law - Topic 7472

Summary conviction proceedings - Appeals - Appeal from acquittal - A judge of the Saskatchewan Court of Appeal stated that the Crown's right of appeal from acquittal on a summary conviction offence was not restricted to questions of law alone, but may raise matters of fact and of mixed fact and law - Accordingly, the summary conviction appeal court was empowered to deal with such matters - See paragraph 22.

Cases Noticed:

Lampard v. The Queen, [1969] S.C.R. 373, refd to. [para. 4].

R. v. Ford, [1982] 1 S.C.R. 231; 40 N.R. 451; 36 Nfld. & P.E.I.R. 254; 101 A.P.R. 254; 65 C.C.C.(2d) 392, refd to. [para. 5].

R. v. Toews, [1985] 2 S.C.R. 119; 61 N.R. 349, refd to. [para. 5].

R. v. Ingram (1981), 14 M.V.R. 60; 12 Sask.R. 242, refd to. [para. 13].

R. v. Shuldt, [1985] 2 S.C.R. 592; 63 N.R. 241; 38 Man.R.(2d) 257, refd to. [para. 16].

R. v. Antonelli (1978), 38 C.C.C.(2d) 207 (B.C.C.A.), refd to. [para. 20].

R. v. Nelson, [1979] 3 W.W.R. 97; 3 Sask.R. 45 (C.A.), refd to. [para. 20].

R. v. Purves, [1980] 1 W.W.R. 148; 3 Man.R.(2d) 881; 50 C.C.C.(2d) 211 (C.A.), refd to. [para. 20].

R. v. Wilke (1981), 56 C.C.C.(2d) 61 (Ont. C.A.), refd to. [para. 20].

R. v. Andres, [1982] 2 W.W.R. 249; 1 Sask.R. 96 (C.A.), refd to. [para. 20].

R. v. Medicine Hat Greenhouses (1981), 26 A.R. 617; 59 C.C.C.(2d) 258 (C.A.), refd to. [para. 20].

R. v. Corbett (1973), 1 N.R. 258; 14 C.C.C.(2d) 385 (S.C.C.), refd to. [para. 29].

R. v. Palamar (1985), 35 M.V.R. 275 (Sask. C.A.), refd to. [para. 32].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 237(1)(a) [paras. 7, 9, 37, 44]; sect. 613(1)(a) [paras. 17-18, 28, 31-33, 36]; sect. 613(1)(b) [paras. 17-18, 28]; sect. 613(2) [paras. 17-18, 28]; sect. 613(3) [para. 28]; sect. 613(4) [paras. 17, 19, 22, 28, 30]; sect. 748(b)(i) [para. 17]; sect. 755(1) [para. 17].

Counsel:

R.J. Ard, for the appellant;

D. Murray Brown, for the respondent.

This appeal was heard before Cameron, Wakeling and Gerwing, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was delivered at Regina, Saskatchewan on September 3, 1986, when the following opinions were filed:

Cameron, J.A. - see paragraphs 1 to 37;

Gerwing, J.A. (Wakeling, J.A., concurring) - see paragraphs 38 to 50.