The police in attempting to prove a case of Care and Control while Impaired must have more than the accused was found with the vehicle
The Crown appealed the acquittal of the accused on a charge that he had care or control of a vehicle while his ability to drive was impaired by alcohol.
There is no issue that the accused was drunk; the issue is whether the crown proved that the accused had care or control of the motor vehicle.
The accused was found by police standing by a van that was lodged in a snow bank and had the keys to the van in his hand.
The Crown argued that the trial judge was wrong in failing to conclude the conduct of the accused created a risk of danger, in combination with his impairment and in failing to find that the accused had driven the vehicle into the snow bank, that the accused’s driving amounting to having care and or control of a motor vehicle while their ability was impaired by alcohol.
In R.v. Wren, the court concluded “in order to establish care or control of a motor vehicle, the act or conduct of the accused in relation to that motor vehicle must be such that there created a risk of danger, whether from putting the car in motion or in some other way.”
The trial judge concluded that the vehicle was immobilized and stuck in the snow bank. It took a tow truck driver 20 to 30 minutes to remove the vehicle. The vehicle was not running, was largely off the road; it was in park; there was no danger of it sliding off the snow bank.
There was no witness who had seen the accused driving or attempting to extricate the vehicle. The trial judge concluded that the fact that someone was a custodian of a vehicle was not sufficient to constitute care or control while Impaired Driving.
This is not an unreasonable verdict having regard to the presumption of innocence and the onus of proof beyond a reasonable doubt.
The Crown has not demonstrated any significant misapprehension of evidence, nor that the trial judge failed to consider material aspects of the evidence.
As noted in R.v. Wren, a disabled vehicle does not necessarily result in either a conviction or in an acquittal; in other words, depending on the constellation of surrounding circumstances, different results may follow where an accused is found in proximity to a disabled vehicle.
There is no clear misapprehension of evidence by the trial judge, and this court should not embark on a re-weighting of the evidence to see whether it would have come to a different conclusion, essentially the task the Crown now asks it to undertake.
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