Mr. E came to us in a state of panic. He had been arrested outside his uncle’s townhouse in the early hours of the morning. Following the breakdown of his relationship, Mr. E chose to live with his uncle in Ajax while he looked for a new apartment. On the morning in question he had drinking with his cousin in the residence. At one point they decided to head outside for a cigarette. Being one of the coldest nights on record that winter, the two sought refuge in Mr. E’s car for warmth. As soon as he got the engine running police lights began to flash. An officer then approached his window. “Get out of the car, you’re under arrest” the officer exclaimed. Mr. E did as he was told and was immediately placed in handcuffs and taken away to the 18-Division Durham Police Station. Given that he had been consuming alcohol prior to smoking in his vehicle, Mr. E predictably blew in excess of the legal limit when providing breath samples at the station.
This was Mr. E’s second impaired driving offence within just a few years. The Crown attorney indicated in advance that if Mr. E lost at trial, the Crown would file notice of intention to seek greater penalty and recommend 40 days custody and a 2-year driving prohibition.
Given that the Crown was unwilling to withdraw the charge, the very clear goal in this case was simply to show the trial judge that Mr. E had no intention of moving his vehicle from its resting point in the visitor’s parking of the townhouse complex.
The first step was to carefully plan how we were going to present our defence at trial. Even in the tough new post-Bill C-46 era of impaired driving law, rebutting the statutory presumption of care or control is still a viable defence. The law dictates that the accused is presumed to be in care or control of his motor vehicle by virtue of just being in the driver’s seat. The accused can rebut this presumption by leading evidence that he did not occupy the driver’s seat for the purpose of setting the vehicle in motion. So long as the Crown doesn’t show that the vehicle posed a risk to the public, the prosecution will fail.
After reviewing the law, we gathered our witnesses and assembled our exhibits. First, we had Mr. E’s uncle who could testify that Mr. E had been staying at his residence for the previous two weeks and that all of his belongings were in the guestroom of his residence on the day Mr. E was arrested. We printed out maps of the townhouse complex to show how close the vehicle was to the residence. Mr. E’s uncle was able to identify where the vehicle was usually parked as well as the location of his residence located only a few paces away. Finally, Mr. E himself was able to state very clearly what his plan was for the evening. While he did not hide the fact that he was feeling the effects of the alcohol he had been drinking, he was adamant that he occupied the driver’s seat with the engine running because he was not allowed to smoke in the house and the temperature was hovering around -30.
In a written decision the Court concluded that Mr. E had no intention of moving his vehicle from the spot where it was located by police. The judge relied mainly on the uncle’s testimony as well as the maps of the area in concluding that Mr. E certainly wasn’t going anywhere and that the vehicle did not pose a realistic risk of danger given its location. Mr. E was fully acquitted. He avoided jail, a criminal record, skyrocketing insurance rates and a three year licence suspension.