R. v. Holmes, (1976) 24 Nfld. & P.E.I.R. 257 (NFPC)
Judge | Luther, P.C.J. |
Court | Newfoundland and Labrador Provincial Court (Canada) |
Case Date | July 30, 1976 |
Jurisdiction | Newfoundland 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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