R. v. Johnson (K.N.), (1996) 182 A.R. 140 (ProvCt)

• Judge: LeGrandeur, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: February 13, 1996
• Citations: (1996), 182 A.R. 140 (ProvCt)

R. v. Johnson (K.N.) (1996), 182 A.R. 140 (ProvCt)

MLB headnote and full text

Her Majesty The Queen v. Kurt Nelson Johnson

(Docket Nos. 51262426P10101; 51262426P10102)

Indexed As: R. v. Johnson (K.N.)

Alberta Provincial Court

LeGrandeur, P.C.J.

February 13, 1996.

Summary:

The accused was charged with having care and control of a motor vehicle while impaired and with having care and control of a motor vehicle while having an excessive blood-alcohol level.

The Alberta Provincial Court dismissed the charges.

Criminal Law - Topic 1368

Motor vehicles - Impaired driving - Care or control - What constitutes - After consuming alcohol at a friend's apartment, the accused began to push the motorcycle the two kilometres to his home - The motorcycle fell into a ditch and got stuck - The accused was apprehended while trying to push the motorcycle out of the ditch - The accused was charged with having care and control of a motor vehicle while impaired and while having an ex­cessive blood-alcohol level - The Alberta Provincial Court held that the accused did not have care or control - The s. 258(1)(a) (Criminal Code) presumption did not apply, where the accused was not seated on the motorcycle - Also, the Crown did not establish that the accused's course of conduct associated with the motorcycle involved a risk of putting the motorcycle in motion so that it could become danger­ous.

Criminal Law - Topic 1369

Motor vehicles - Impaired driving - Care or control - General - The Alberta Pro­vincial Court stated that "the mens rea for having care or control of a motor vehicle is the intent to assume care or control after the voluntary consumption of alcohol or a drug. The actus reus is the act of assump­tion of care or control when the voluntary consumption of alcohol or a drug has impaired one's ability to drive. The act of care or control may be proven by the Crown either by reliance upon the pre­sumption set out in s. 258(1)(a) [of the Criminal Code] when facts make it appli­cable or by showing actual care or control without reliance on the presumption" - See paragraph 6.

Criminal Law - Topic 1369

Motor vehicles - Impaired driving - Care or control - General - The accused was charged with having care and control of a motor vehicle while impaired - The Alberta Provincial Court stated that, although the Crown did not argue the applicability of the presumption of care and control under s. 258(1)(a) of the Criminal Code, the court must consider the issue in reaching its decision - The court stated that "the wording of s. 258(1)(a) is very specific, that is, it must be proven that the accused 'occupied the seat or position ordinarily occupied by a person who operates a motor vehicle'"- See para­graphs 7 to 11.

Cases Noticed:

R. v. Toews (1985), 61 N.R. 349; 47 C.R.(3d) 213 (S.C.C.), refd to. [para. 6].

R. v. Ford (1982), 40 N.R. 451; 36 Nfld. & P.E.I.R. 254; 101 A.P.R. 254; 65 C.C.C.(2d) 392 (S.C.C.), refd to. [para. 8].

R. v. Hudson (1988), 23 M.V.R.(2d) 286 (Alta. Q.B.), refd to. [para. 10].

R. v. Hughes (1991), 28 M.V.R.(2d) 316 (Ont. H.C.), refd to. [para. 10].

R. v. Whyte (1988), 86 N.R. 328; 6 M.V.R.(2d) 138 (S.C.C.), refd to. [para. 11].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 258(1)(a) [para. 7].

Counsel:

Not disclosed.

This case was heard before LeGrandeur, P.C.J., of the Alberta Provincial Court, who delivered the fol­lowing judgment on February 13, 1996.