WestlawNext Canada insight Blog

Digest of the Week — Sleeping it Off Not "Care and Control"

R. v. Spracklin |  (WestlawNext Canada)
2014 CarswellAlta 258 |  (Westlaw Canada)
Alberta Court of Queen’s Bench

Criminal law | Offences | Impaired driving/care or control | Proof of care and control |Presumption | Rebuttal

Police officer found accused passed out in driver’s seat of his motor vehicle in motel parking lot, grossly intoxicated, with engine running — Officer smelled alcohol on accused’s breath and saw half-empty case of beer on front passenger seat — Accused was arrested and advised of his right to counsel — Accused refused to comply with demand for samples of his breath, disputing allegation that he was in “care and control” of vehicle — Accused was charged with refusing to comply with breathalyzer demand and impaired care and control of motor vehicle — Trial judge found that accused failed to establish he did not occupy driver’s seat for purpose of setting vehicle in motion — Accused was convicted and appealed — Appeal allowed — Finding that accused had not met onus was premised on his gross intoxication and disbelief of his testimony that if he was impaired when it was time to go to work he would not have driven his vehicle — Trial judge erred by not considering relevant evidence that accused did not enter vehicle for purpose of setting it in motion — Accused’s evidence was sufficient to rebut presumption in s. 258 of Criminal Code, and trial judge’s conclusion to contrary was wrong — Trial judge made palpable and overriding error in finding that accused would be impaired when he woke up in morning, which conclusion was not supported by evidence — Trial judge erred in law in applying standard of proof beyond reasonable doubt, rather than proof on balance of probabilities, on issue of accused’s evidence that no realistic risk of danger existed in circumstances — Conviction quashed.
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