R. v. Holmes, (1976) 24 Nfld. & P.E.I.R. 257 (NFPC)

JudgeLuther, P.C.J.
CourtNewfoundland and Labrador Provincial Court (Canada)
Case DateJuly 30, 1976
JurisdictionNewfoundland and Labrador
Citations(1976), 24 Nfld. & P.E.I.R. 257 (NFPC)

R. v. Holmes (1976), 24 Nfld. & P.E.I.R. 257 (NFPC);

    65 A.P.R. 257

MLB headnote and full text

R. v. Holmes

Indexed As: R. v. Holmes

Newfoundland Provincial Court

District of St. John's

Luther, P.C.J.

July 30, 1976.

Summary:

This headnote contains no summary.

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care and control - Proof - Accused in driver's seat - The accused was charged with having care or control of a motor vehicle after consuming an excessive amount of alcohol contrary to s. 236 of the Criminal Code - The accused was found asleep in his car which was stuck in a ditch - The accused's abdomen and feet were on the driver's side and the accused had the keys in his possession - The Crown relied on the presumption of care or control in s. 237(1)(a) of the Code which arises when the accused occupies the driver's seat - The accused testified that he was sleeping in the car to protect IBM equipment and that he did not intend to move the car - The Newfoundland Provincial Court dismissed the charge, because the accused proved on a balance of probabilities that he did not enter the vehicle to set it into motion so the s. 237(1)(a) presumption of care or control was rebutted - The Provincial Court held that in the absence of other evidence to establish care or control the accused could not be convicted.

Cases Noticed:

R. v. Mullen, 25 C.C.C.(2d) 412, refd to. [para. 6].

R. v. McGuigan (1974), 7 Nfld. & P.E.I.R. 190; 3 A.P.R. 190 (P.E.I. C.A.), dist. [para. 13].

R. v. Lanthier, [1963] 3 C.C.C. 55 (Ont. County Court), refd to. [para. 13].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 236 [para. 1]; sect. 237(1)(a) [para. 7].

Counsel:

Derek Green, for the accused;

R.H. Peach, for the Crown.

This case was heard by LUTHER, P.C.J., of the Newfoundland Provincial Court, District of St. John's.

On July 30, 1976, LUTHER, P.C.J., delivered the following judgment:

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