R. v. Denys (C.D.), (2008) 229 Man.R.(2d) 193 (QB)

• Judge: Bryk, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 17, 2008
• Jurisdiction: Manitoba
• Citations: (2008), 229 Man.R.(2d) 193 (QB);2008 MBQB 109

R. v. Denys (C.D.) (2008), 229 Man.R.(2d) 193 (QB)

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. MY.008

Her Majesty The Queen v. Craig Daniel Denys (accused)

(CR 07-05-00161; 2008 MBQB 109)

Indexed As: R. v. Denys (C.D.)

Manitoba Court of Queen's Bench

Dauphin Centre

Bryk, J.

April 17, 2008.

Summary:

The accused was acquitted on a charge of having care and control of a motor vehicle while his ability to do so was impaired by alcohol. The Crown appealed.

The Manitoba Court of Queen's Bench allowed the appeal and entered a conviction.

Criminal Law - Topic 1361

Motor vehicles - Impaired driving - Intention - [See Criminal Law - Topic 1368 ].

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - [See Criminal Law - Topic 1368 ].

Criminal Law - Topic 1367

Motor vehicles - Impaired driving - Meaning of "care and control" - [See Criminal Law - Topic 1368 ].

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care or control or operating - What constitutes - The accused planned to celebrate his birthday with a day of drinking - He had no intention of driving and arranged for a designated driver - Around midnight he was found by police in the driver's seat of his truck in the parking lot of a convenience store - The truck was not running and the keys were on the floor - He had no recollection of driving or of having any intention of doing so - He had "blacked out" - A trial judge acquitted the accused of having care and control of a motor vehicle while impaired - The trial judge concluded that the accused rebutted the presumption of care and control in s. 258(1)(a) of the Criminal Code on the basis of evidence that earlier during the day he had formulated the intention not to drive his truck - The trial judge commented that because the Crown failed to establish an intention on the accused's part to drive after he occupied the driver's seat of his truck, no such intention existed - The Crown appealed - The Manitoba Court of Queen's Bench (Bryk, J.), held that the trial judge erred in law in placing an onus on the Crown to establish an intention to drive when in fact the onus always remained on the accused to discharge the presumption on a balance of probabilities with evidence of his intention at the time he occupied the driver's seat of his truck - The trial judge also committed a palpable or overriding error in finding, or at least inferring, that the accused had no intention to drive when he occupied the driver's seat when in fact there was no evidence upon which such a finding or inference could be based - The presumption was not rebutted and a conviction would be entered - Bryk, J., opined that even if the presumption had been rebutted, he would have found the accused to be in care and control of his vehicle and would have entered a conviction on that basis.

Criminal Law - Topic 1369

Motor vehicles - Impaired driving - Care or control - General - [See Criminal Law - Topic 1368 ].

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - The Manitoba Court of Queen's Bench discussed the standard of review applicable when it was acting as a summary conviction appeal court on an appeal from an acquittal on a care and control of a motor vehicle charge - See paragraphs 12 to 14.

Criminal Law - Topic 7544

Summary conviction proceedings - Appeal on record to "Appeal Court" - Scope of appeal (incl. powers of judge) - [See Criminal Law - Topic 7463 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 13].

Knock v. Dumontier et al. (2006), 208 Man.R.(2d) 121; 383 W.A.C. 121; 2006 MBCA 99, refd to. [para. 14].

R. v. Burbella (W.P.) (2002), 166 Man.R.(2d) 198; 278 W.A.C. 198; 2002 MBCA 106, refd to. [para. 23].

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, refd to. [para. 23].

R. v. Toews, [1985] 2 S.C.R. 119; 61 N.R. 349, refd to. [para. 23].

R. v. Saunders, [1967] S.C.R. 284, refd to. [para. 27].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 258(1)(a) [para. 2].

Counsel:

D. Dvorak, for the Crown;

D.M. Wasyliw, for the accused.

This appeal was heard before Bryk, J., of the Manitoba Court of Queen's Bench, Dauphin Centre, who delivered the following judgment on April 17, 2008.