R. v. Herrick

R. v. Herrick

Although the defendant rebutted the presumption in s.258(1)(a) by credible evidence he did not occupy the seat to set the vehicle in motion, the Crown nevertheless proved beyond reasonable doubt that he had care and control because he was the owner, in possession and superintendence of the vehicle, was behind the wheel with the engine and heater on and keys in ignition and there was a real risk he might, on awakening, change his mind and drive; applying Hein and Lockerby the facts established care and control.

Citation
2005 NSPC 22
Parties
Crown: R.; Defendant: John Alexander Herrick
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
20 June 2005
Procedural Posture
Criminal (impaired Driving) / Provincial Court Judgment
Outcome
Defendant found guilty of having care and control of a motor vehicle with blood alcohol over the legal limit; stay entered on impaired operation charge under Kienapple.
Legal Topics
Care and Control, Presumption Under S.258(1)(a), Rebuttal of Presumption, Risk Assessment, Kienapple Principle
Source Language
English
Criminal Law Impaired Driving Evidence Care and Control Presumption Under S.258(1)(a) Rebuttal of Presumption Risk Assessment Kienapple Principle

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Parties

R.

Crown

John Alexander Herrick

Defendant

Procedural Posture

Criminal (impaired Driving) / Provincial Court Judgment

Legal Issues

  1. 1 Whether the defendant was in care and control of his motor vehicle when found by police
  2. 2 Whether the presumption in Criminal Code s.258(1)(a) was rebutted
  3. 3 Whether the Crown proved care or control beyond a reasonable doubt absent the presumption

Ratio Decidendi

Although the defendant rebutted the presumption in s.258(1)(a) by credible evidence he did not occupy the seat to set the vehicle in motion, the Crown nevertheless proved beyond reasonable doubt that he had care and control because he was the owner, in possession and superintendence of the vehicle, was behind the wheel with the engine and heater on and keys in ignition and there was a real risk he might, on awakening, change his mind and drive; applying Hein and Lockerby the facts established care and control.

Court Disposition

Defendant found guilty of having care and control of a motor vehicle with blood alcohol over the legal limit; stay entered on impaired operation charge under Kienapple.

Orders

  • Convicted of exceeding the legal blood alcohol limit (s.253(b) Criminal Code)
  • Stay entered on the impaired operation charge (s.253(a)) pursuant to the Kienapple principle