R. v. Burns

[1993] S.J. No. 725



The accused and his wife had been at a Christmas party in a local hotel. Before attending at the Christmas party they had agreed that they would leave their car at the hotel and take a cab home as both planned to drink. The accused and his wife waited in the hotel lobby on the understanding that a cab was coming for them. The accused and his wife, who are of Native ancestry, felt uncomfortable waiting in the lobby and therefore left the lobby and went to their car. Both got into the vehicle. The accused entered the driver's door and sat in the driver's seat. He put his key back in his pocket after entering the vehicle. He did not start the vehicle nor did he put the key in the ignition. He and his wife waited in silence for the cab until the police arrived.



First, whether the accused has rebutted the presumption of care and control in s. 258(1)(a) of the Criminal Code and, Secondly, if yes, has the Crown, without the assistance of the presumption, established beyond a reasonable doubt that the accused had care and control of the motor vehicle within the meaning of s. 253?



�... the accused has met the onus put on him by s. 258 and has established that he did not occupy the driver's seat for the purposes of setting his vehicle in motion. I am satisfied that he entered the vehicle and occupied the driver's seat for the sole purpose of using the vehicle as a place to wait for a cab.� (Para 7), �The Crown needs to establish what are the specific intended acts and what are the specific resulting dangers. It is a question of fact in each of these cases whether it has been established that the accused intended to drive or intended to do things, which are found as a fact to create a danger.� (Para 11), �I am satisfied that mere speculation that the accused might change his mind and drive when he has entered the vehicle, but put his keys back in his pocket, at minimum leaves a reasonable doubt as to whether the Crown has established that the accused had an intent to do anything with the vehicle that would create a danger, and I therefore find him not guilty.� (Para 18)