On a very cold winter night, entering the early hours of the morning of Christmas Eve, two young men left a bar after a night of drinking. One of them, Mr. T.G. asked the owner of the bar if he could leave his car there overnight and was given permission to do so. He then asked the bartender to call him a cab. While waiting for the cab, the two young men sat in Mr. T.G.’s car to keep warm. Mr. T.G. was sitting in the driver’s seat when the police showed up and arrested him for being in “care and control” of the vehicle while having a blood alcohol concentration over the legal limit. Mr. T.G. was a young man in his early twenties, with no criminal record who was planning to go to teacher’s college in the fall. He had lost his mother to cancer and had buried her just a few days earlier. He had never been in trouble before.
It was crucial that he avoid the criminal record that would result from conviction on this charge. He could not have a criminal record in his chosen career.
The issue would be whether Mr. T. G. was in care and control of the vehicle. There is a presumption in Canadian criminal law that a person found in the driver’s seat of a vehicle is in care and control. This presumption may be rebutted with evidence. To get such evidence, we would call the bar owner and staff as witnesses who would corroborate Mr. T.G.’s story that he had that night taken steps to not drive, which included getting permission to leave his vehicle and asking that a cab be called. We believed that Mr. T.G. himself would be a credible witness and would therefore also call him to testify. We would, as well, carefully cross-examine the arresting officer to glean additional evidence that could demonstrate a lack of intention to drive.
The Crown called one witness but we called three. We effectively cross-examined the Crown’s witness (the officer) and were able to present our three witnesses as credible. We successfully rebutted the presumption. Mr. T.G. was therefore acquitted of the charge.