R. v. Ryan (M.), (2014) 424 N.B.R.(2d) 226 (TD)
|Court:||Court of Queen's Bench of New Brunswick|
|Case Date:||March 19, 2014|
|Citations:||(2014), 424 N.B.R.(2d) 226 (TD);2014 NBQB 188|
R. v. Ryan (M.) (2014), 424 N.B.R.(2d) 226 (TD);
424 R.N.-B.(2e) 226; 1104 A.P.R. 226
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Temp. Cite:  N.B.R.(2d) TBEd. SE.028
Renvoi temp.:  N.B.R.(2d) TBEd. SE.028
Matthew Ryan (appellant) v. Her Majesty the Queen (respondent)
(S/CA/5/2013; 2014 NBQB 188; 2014 NBBR 188)
Indexed As: R. v. Ryan (M.)
Répertorié: R. v. Ryan (M.)
New Brunswick Court of Queen's Bench
Judicial District of Saint John
August 6, 2014.
The accused appealed his conviction for having care and control of a motor vehicle (an all terrain vehicle) while having an excessive blood-alcohol level.
The New Brunswick Court of Queen's Bench, Trial Division, allowed the appeal.
Criminal Law - Topic 1368
Motor vehicles - Impaired driving - Care and control or operating - What constitutes - Sellors and Ward came upon the intoxicated accused leaning against an overturned all terrain vehicle (ATV) - An RCMP officer (Gagnon) arrived - Gagnon noticed that the keys were in the ATV's ignition and the headlights were on, although the engine was not running - The accused was convicted of having care and control of a motor vehicle while having an excessive blood-alcohol level - The New Brunswick Court of Queen's Bench, Trial Division, allowed the accused's appeal - The trial judge correctly summarized the law regarding care and control as set out in R. v. Boudreault (D.) (2012, SCC) - He then made the general statement that to avoid conviction an accused had to prove that no realistic risk of danger existed - However, the burden did not shift to an accused until the Crown had proven both intoxication and a present or immediate ability to set the vehicle in motion - The judge found that "... the ATV was immovable, not inoperative" - That finding led to the inevitable conclusion that the accused lacked the present ability to set the ATV in motion - The judge stated that if the ATV were put back on its wheels, there would have been a risk of danger to the accused and others - That statement was speculative - More importantly, it did not lead to the conclusion that the accused had the present ability to set the ATV in motion, only that he could have done so if a number of things occurred - The judge also enumerated factors that led him to conclude that the Crown had proven the risk of danger element - The first and most important factor, according to the judge, was that the accused had not called evidence to prove that no realistic risk of danger existed - By reaching that conclusion without the Crown having established that the accused had the ability to set the ATV in motion, the judge reversed the onus - The other enumerated factors did not address the risk of danger - The judge further erred in relying on cases that pre-dated Boudreault.
Droit criminel - Cote 1368
Infractions contre la personne et la réputation - Véhicules à moteur - Capacité de conduite affaiblie - Garde, contrôle ou conduite - Éléments constitutifs - [Voir Criminal Law - Topic 1368 ].
R. v. Boudreault (D.),  3 S.C.R. 157; 436 N.R. 343; 2012 SCC 56, refd to. [para. 10].
R. v. Szymanski (J.),  O.T.C. Uned. K94 (Sup. Ct.), refd to. [para. 14].
W. Rodney Macdonald, for the appellant;
Kelly A. Winchester, for the respondent.
This appeal was heard on March 19, 2014, by Grant, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following judgment on August 6, 2014.
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