Accused attended a party and entered his vehicle on may occasions through the course of the night. The accused had made earlier arragments with a friend to drive him home because of his imapired condition. When police arrived he was asleep behind the wheel of his car with the engine running. Accused testified not having any intetion of driving.
Is an intention to set the vehicle in motion an ingredient of the offence of having care or control of a motor vehicle while in a state of intoxication?
The latter words of s. 237(1)(a) are, definitive of the evidence required of the accused in order to shift the burden of proof back to the Crown, but they do not purport to create or define a defence to the charge or to alter the nature of the offence created by s. 236 so as to import "an intention to drive" as an essential element which the Crown is required to prove in order to secure a conviction under s. 236.
Where the Crown relies exclusively on the presumption and the presumption is rebutted then there is no evidence left for the prosecution and the accused must be acquitted.
The section [s. 237(1)(a)] has no application (1) unless the accused is found occupying the driver's seat and (2) unless the Crown elects to invoke the section. The Crown may rely on other evidence to prove care or control, in which case the section has no applicability.
S. 237(1)(a) is concerned exclusively with the method of proof of a charge under s. 236 and that its effect is purely evidentiary so that the offence created by the latter section remains unaffected by it
Care or control may be exercised without such intent where an accused performs some act or series of acts involving the use of the car, its fittings or equipment, such as occurred in this case, whereby the vehicle may unintentionally be set in motion creating the danger the section is designed to prevent.