R. v. Mullen

R. v. Mullen

Although the defence rebutted the presumption under s.258(1)(a) on balance of probabilities, the Crown proved de facto care or control beyond a reasonable doubt by the accused’s acts (driver’s seat, key in ignition, accessories engaged, radio on) and the evidentiary risk that he would change his mind and set the vehicle in motion; therefore the accused was guilty of s.253(1)(b).

Citation
2012 NSPC 66
Parties
Crown: Her Majesty the Queen; Accused: Kenneth Charles Mullen
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
17 September 2012
Procedural Posture
Criminal Impaired Driving (care or Control) / Trial Decision (conviction)
Outcome
Guilty of offence contrary to s.253(1)(b) of the Criminal Code; conviction entered on count 2
Legal Topics
Care or Control, Burden of Proof, Impaired Driving, Presumption Rebuttal, Credibility Assessment, Breathalyser Evidence, Change of Intention
Source Language
English
Criminal Law Road Traffic Offences Evidence Care or Control Burden of Proof Impaired Driving Presumption Rebuttal Credibility Assessment +2 more

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Parties

Her Majesty the Queen

Crown

Kenneth Charles Mullen

Accused

Procedural Posture

Criminal Impaired Driving (care or Control) / Trial Decision (conviction)

Legal Issues

  1. 1 Whether the accused had care or control of the vehicle at 3:50 am on Sept 25, 2011
  2. 2 Whether the accused rebutted the presumption of care or control in s.258(1)(a)
  3. 3 Whether the Crown proved beyond a reasonable doubt a risk that the accused would change his mind and set the vehicle in motion

Ratio Decidendi

Although the defence rebutted the presumption under s.258(1)(a) on balance of probabilities, the Crown proved de facto care or control beyond a reasonable doubt by the accused’s acts (driver’s seat, key in ignition, accessories engaged, radio on) and the evidentiary risk that he would change his mind and set the vehicle in motion; therefore the accused was guilty of s.253(1)(b).

Court Disposition

Guilty of offence contrary to s.253(1)(b) of the Criminal Code; conviction entered on count 2

Orders

  • Conviction entered on count 2 (s.253(1)(b)); no sentence recorded in decision