R. v. Feener

74 N.S.R. (2d) 164, [1986] N.S.J. No. 108



During the evening of February 23, 1985, a police officer of the Town of Lunenburg came upon the appellant sitting in the driver's seat of a parked motor vehicle. He was involved in a fistfight with another male person, who occupied the passenger's seat, according to the evidence of Constable Graves. The officer detected the smell of liquor coming from the vehicle. Upon asking the two men to leave the car, the officer observed the appellant was unsteady on his feet. He found Styrofoam cups and a partly spent bottle of rum on the car floor.



Does the presumption in s. 237(1)(a) that a person who occupies a seat ordinarily occupied by the driver of a motor vehicle shall be deemed to have its control apply to a charge of refusal under s. 235(2)?



Subsection (2) of Section 235 relates to a failure or refusal to comply with a demand made under subsection (1). That subsection is concerned with the situation where a peace officer on reasonable and probable grounds believes a person is committing, or at any time within the preceding two hours has committed, an offence under s. 234 or s. 236. The presumption in s. 237 applies to a proceeding under s. 234. Thus, s. 235(2) does not stand-alone. The trial judge was justified in applying the presumption in s. 237(1)(a) in the absence of evidence that the appellant was not there for the purpose of setting the car in motion.