R. v. Barber

[1998] S.J. No. 708



A police officer found Barber asleep behind the wheel of his pickup. The truck was in an isolated rural field that was adjacent to the highway. Between Barber's legs was a large bottle of rum. The keys were in the ignition. The engine may have been running, the four-way emergency lights were flashing, the radio played music and the automatic gear shift was in neutral. It took the officer several minutes to wake up Barber.



Prior to the 1985 amendment, the presumption raised could only be rebutted by the accused establishing "that he did not enter or mount the said vehicle for the purpose of setting it in motion." The current section, however, refers only to the accused's purpose in occupying the driver's seat, rather than his or her purpose on entering the vehicle. On the facts before me I find that the accused has, on a balance of probabilities, rebutted the presumption of care or control, as a result of which the onus now falls on the crown to establish beyond a reasonable doubt that he did, at the relevant time in the field, have the care or control of the motor vehicle. On the whole of the evidence I am not satisfied beyond a reasonable doubt that, at the time that he ceased to drive the vehicle that he then or thereafter had the care or control of the motor vehicle.