R. v. Nicholls, (1982) 35 A.R. 166 (CA)

• Judge: Moir, Laycraft and Kerans, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 26, 1982
• Citations: (1982), 35 A.R. 166 (CA)

R. v. Nicholls (1982), 35 A.R. 166 (CA)

MLB headnote and full text

R. v. Nicholls

(No. 13361)

Indexed As: R. v. Nicholls

Alberta Court of Appeal

Moir, Laycraft and Kerans, JJ.A.

January 26, 1982.

Summary:

An accused was found guilty of having care or control of a motor vehicle while his blood-alcohol content was excessive, contrary to s. 234(1) of the Criminal Code. He appealed against conviction. In a decision not reported in these reports, the Alberta Court of Queen's Bench dismissed the appeal. The accused appealed.

The Alberta Court of Appeal allowed the appeal and ordered a new trial.

Criminal Law - Topic 1367

Motor vehicles - Impaired driving - Care and control - Meaning of - The Alberta Court of Appeal held that an intention to drive, at the time of the alleged offence, was an essential element in the offence of having care or control of a motor vehicle while having a prohibited blood-alcohol content, contrary to s. 234(1) of the Criminal Code - The court held, therefore, that absence of intention, by reason of abandonment, was a defence to the charge - See paragraphs 5 to 13.

Cases Noticed:

R. v. Davey, [1976] W.W.D. 23, folld. [para. 5].

R. v. McPhee; R. v. Mullen (1975), 30 C.R.N.S. 4 (Ont. C.A.), refd to. [para. 5].

R. v. Thomson (1941), 75 C.C.C. 141, consd. [para. 7].

R. v. Crowe (1941), 76 C.C.C. 170, consd. [para. 8].

R. v. Donald, [1971] 1 W.W.R. 438, not folld. [para. 10].

R. v. Bear, [1979] 4 W.W.R. 740; 2 Sask.R. 178, not folld. [para. 10].

R. v. Price (1978), 21 N.B.R.(2d) 532; 37 A.P.R. 532; 40 C.C.C.(2d) 378, not folld. [para. 10].

R. v. Rye (1958), 27 C.R. 153, appld. [para. 12].

Colby v. Excelsior Life Insurance Co. (1980), 19 A.R. 271, appld. [para. 14].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 234(1) [para. 6]; sect. 237(1)(a) [paras. 9, 11].

Counsel:

J.R. Saunders, for the respondent;

T.C. Semenuk, for the appellant.

This appeal was heard before MOIR, LAYCRAFT and KERANS, JJ.A., of the Alberta Court of Appeal. The judgment of the Court of Appeal was delivered by KERANS, J.A., on January 26, 1982.