The Queen v. Appleby, [1972] S.C.R. 303 (1971)

Supreme Court of Canada

The Queen v. Appleby [1972] S.C.R. 303

Date: 28-06-1971

Her Majesty The Queen Appellant;

and

William F. Appleby Respondent.

1971: May 18, 19; 1971: June 28.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law-Evidence--Care and control of motor vehicle while ability to drive impaired-Accused found in driver's seat-Statutory presump­tion-Degree of proof required to rebut presumption -Reasonable doubt or proof on balance of pro­babilities-Criminal Code, 1953-54 (Can.), c. 51, ss. 222, 224A(1 )(a).

Civil rights-Care and control of motor vehicle while ability to drive impaired-Statutory presump­tion-Onus on accused to rebut presumption-Onus not incompatible with Canadian Bill of Rights--Criminal Code, 1953-54 (Can.), c. 51, ss. 222, 224A(1) (a)-Canadian Bill of Rights, 1960 (Can.), c. 44, s. 2(f).

The respondent, a taxi driver, was charged with having the care and control of a motor vehicle while his ability to drive was impaired by alcohol or a drug contrary to s. 222 of the Criminal Code. It is admitted that he was in an impaired condition and was seated in the front seat of his taxi at the time of his arrest. He sought to rebut the presumption under s. 224A(1)(a) of the Code by testifying that he entered the driver's seat of the taxi to use the radio to summon a wrecker, rather than for the purpose of driving the vehicle. The trial judge entered a conviction on the basis that although the evidence raised a reasonable doubt in his mind, he was not satisfied that the respondent had established by a a preponderance of evidence or by a balance of probabilities "that he did not enter or mount the motor vehicle for the purpose of setting ...

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