Summary appeal of conviction for driving over 0.08. Two civilians found the appellant’s vehicle flipped onto its side, still running with the fuel tank leaking. The appellant was found at the bottom of the vehicle, on the driver’s side with his legs beneath the steering wheel. Issue of whether the appellant was in care and control of the vehicle.
Held: Appeal dismissed.
Trial judge did not err in finding that the presumption of care and control under s 258(1)(a) CC applied “even though the appellant was not ‘seated in the normal fashion in the driver’s seat’”. On the issue of “whether the appellant should be convicted based on care and control of a vehicle which is immobilized and may no longer present a risk of danger to the public…[t]here was no evidence the vehicle was not drivable, despite the vehicle being on its side”. As per Amyotte, (2009) 85 WCB (2d) 636 (Ont Sup Ct): “I am not persuaded that an immoveable vehicle in itself defeats the presumption or removes an essential element of care or control.” Conviction upheld.
P. Northcott – Defence Counsel