Chelsea Kelly was convicted by Justice Adams of one count of impaired care and control of a motor vehicle; Kelly appealed her conviction. In dismissing the appeal, Kane J provides a quotable quote in relation to care or control cases: R v Kelly, 2011 ONSC 2258.
Kane J outlined the salient facts as follows:
The appellant drove her automobile and her girlfriend to a bar on the evening of May 3, 2009. The appellant parked her car at the bar. She and her friend went into the bar and consumed some alcohol. They stayed at this bar for some 3 to 4 hours. The appellant and this friend then left the bar and went with others to a house party where they stayed for between one-half to one hour. The appellant's car had been left at the bar and not driven to the house party. The appellant and her girlfriend left the house party with the intention to walk to the girlfriend's home. The girlfriend, wearing shorts and a tank top, became cold as they walked. It was decided to stop at the appellant's car to warm up. The appellant testified that, after warming up in the car, it was her intention to then walk to the girlfriend's home some ten minutes away from the car.The appellant used her keys and unlocked her car. The appellant sat in the driver's seat. Her girlfriend sat in the front passenger seat. The appellant placed the keys into the ignition and started the motor. Neither woman wore a seat belt. The two women remained in the vehicle with the motor running for approximately ten minutes whereupon two police officers at 04:08 hours noticed the stationary car with running lights on. Police detected the smell of alcohol from the appellant. The physical actions by the appellant during questioning by police suggested to the officers that she was impaired from alcohol. The appellant was arrested and taken to the police station. The breath analy-sis of the appellant conducted at approximately 05:15 hours were 113 milligrams and 108 milligrams of alcohol in 100 millilitres of blood. A charge under s. 253(a) of care or control of a vehicle was thereupon issued [paras 2-3] [emphasis added].
In convicting the appellant, Adams J accepted the appellant's evidence that she did not intend to drive, but noted that "her intention to drive is not an element of the charge...and not therefore determinative of guilt" [para 35]. The trial judge concluded, as summarized by Kane J on appeal, as follows:
She was in the driver's seat, the car motor was running and the girlfriend's house was merely a few blocks away. The capacity to do so was just a gear shift away. The judge further held that the car could easily have been set in motion unintentionally [para 14].
On appeal the appellant argued, inter alia, that (i) there was no evidence to conclude that there existed a realistic risk that she would change her mind and drive and (ii) that the trial judge’s conclusion that the vehicle could have accidentally or unintentionally been put in drive was unreasonable.
In rejecting these grounds, Kane J, offered the following quotable quote:
Parliament could have limited s. 253(1) to prohibit care or control of a motor vehicle to acts sufficient to create risk to persons or property. This is in response to the appellant's argument that the appellant's actions constituted no such risk as only an intentional or accidental shifting of the gear out of Park would have created such vehicle movement and resulting risk. In fact, movement of this car and the resulting risk to person or property increased with every action of the appellant as she unlocked the car, sat in the driver's seat, inserted the key in the ignition, started the motor and intentionally left the motor running. The risk to person and property increased with these actions. The realization of the risk was but "a gear shift away," whether that shift occurred by accident, mechanical fault or a decision to drive home.Regardless of risk, the appellant was exercising control of and operating the mechanical, electrical and motor system of the vehicle [emphasis added] [paras 72-73].