R. v. Dunham

R. v. Dunham

Defense rebutted the s.258(1)(a) presumption on the balance of probabilities because accused credibly intended to use the truck as temporary shelter; however the Crown nonetheless proved beyond a reasonable doubt that accused had de facto care or control because he possessed the key, had started the engine and heater, had the vehicle in Park without the emergency brake engaged, continued to consume alcohol, had the means and absence of impediments to set the vehicle in motion and retained an intention to drive once he \u2018felt\u2019 sober, creating a real risk of danger; accordingly conviction under s.253(1)(b) entered and the s.253(1)(a) charge conditionally stayed.

Citation
2012 NSPC 83
Parties
Crown: Her Majesty the Queen; Defendant: David Dunham
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
4 June 2012
Procedural Posture
Criminal Impaired Driving (care or Control) / Trial Provincial Court Decision
Outcome
Guilty of having care or control while over 80 mg/100ml (s.253(1)(b) Criminal Code); conditional stay of charge under s.253(1)(a)
Legal Topics
Care or Control, Statutory Presumption S.258(1)(a), Mens Rea and Actus Reus for Care or Control, S.253(1)(a) and (b) Criminal Code, Rebuttal on Balance of Probabilities, Risk of Danger Standard
Source Language
English
Criminal Law Road Traffic/impaired Driving Care or Control Statutory Presumption S.258(1)(a) Mens Rea and Actus Reus for Care or Control S.253(1)(a) and (b) Criminal Code Rebuttal on Balance of Probabilities Risk of Danger Standard

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Parties

Her Majesty the Queen

Crown

David Dunham

Defendant

Procedural Posture

Criminal Impaired Driving (care or Control) / Trial Provincial Court Decision

Legal Issues

  1. 1 Whether s.258(1)(a) statutory presumption of care or control applied
  2. 2 Whether the Defence rebutted the s.258(1)(a) presumption on a balance of probabilities
  3. 3 If rebutted, whether the Crown proved de facto or actual care or control beyond a reasonable doubt

Ratio Decidendi

Defense rebutted the s.258(1)(a) presumption on the balance of probabilities because accused credibly intended to use the truck as temporary shelter; however the Crown nonetheless proved beyond a reasonable doubt that accused had de facto care or control because he possessed the key, had started the engine and heater, had the vehicle in Park without the emergency brake engaged, continued to consume alcohol, had the means and absence of impediments to set the vehicle in motion and retained an intention to drive once he \u2018felt\u2019 sober, creating a real risk of danger; accordingly conviction under s.253(1)(b) entered and the s.253(1)(a) charge conditionally stayed.

Court Disposition

Guilty of having care or control while over 80 mg/100ml (s.253(1)(b) Criminal Code); conditional stay of charge under s.253(1)(a)

Orders

  • Find accused guilty of having care or control of a motor vehicle contrary to s.253(1)(b) of the Criminal Code
  • Conditional stay of the charge under s.253(1)(a) of the Criminal Code