R. v. Benson

[1997] B.C.J. No. 2100

Facts

BC CA

The vehicle with its engine running accompanied by a woman and the vehicle was parked in the area of a bus stop. The appellant and the female person who were both in the front seat, the appellant in the area of the seat normally occupied by the driver and the female to his right, were engaged in some form of embrace when the police came upon them. The evidence was clear that the appellant was under the influence of liquor. His sister seen the appellant and his girlfriend in the area of the Croft Hotel on the afternoon in question and observing that they were in a somewhat tipsy condition, she picked them up and drove them to the area. She apparently had a sudden attack of illness and parked the vehicle with the engine running at a place called the Ramada Inn. She only intended to be absent for a short time.

Issue

BC CA

The only issue that was raised at trial was the question of whether or not he was in fact in care and control. Was the appreciation of the evidence by the lower court satisfactory?

Held

BC CA

The factor (sister left the car with the engine running some ten or fifteen minutes before) that might have been weighed along with the other circumstances in determining whether or not the onus had been discharged by the accused. Other than that I agree that the appeal must be allowed and a new trial ordered. (Para17)

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