The accused, his wife and children, together with several relatives and friends and their families went to the Mill River Resort on May 12, 1993 for a family weekend. The accused and several others went to the resort lounge and consumed liquor over the evening of May 12 and the early morning of May 13. After leaving the lounge and before retiring, another person furnished the accused with a marijuana cigarette. The accused invited a relative to join him in his car to smoke the marijuana. The accused and his relative entered the accused's motor vehicle. It was cold, ...and the accused started the engine of the vehicle and activated the heater. The accused then smoked the marijuana and at 1:30 a.m., before he exited the vehicle, the police arrived.
To be in care and control of the motor vehicle, in the absence of the presumption provided for in s. 258.1(a) of the Criminal Code.
Prince Edward Island Supreme Court - Trial Division approved the observations of the trial Judge �... the underlying principle remains that each case must be decided on its own merits. It must be borne in mind here that there is no presumption in law that starting the engine of a vehicle will automatically render it capable of being unintentionally set in motion. That may depend on a number of factors such as whether the vehicle's emergency brake is engaged, whether the vehicle has a standard or automatic transmission, whether the transmission is in a neutral or park position and the manner in which the vehicle is parked. It might even be that the degree of intoxication of the accused could have a bearing on whether he or she might unintentionally set the motor vehicle in motion, keeping in mind that the risk to be assessed flows from the possible actions of the particular accused in the particular circumstances of the case on trial.
It must be borne in mind here also, the presumption having been rebutted, that the onus is squarely on the Crown to establish care or control beyond a reasonable doubt. In this case there is no evidence that the emergency brake was not engaged, there is no evidence as to the kind of transmission or the position of the gearshift lever in the accused's vehicle at the time that the engine was operated. Furthermore, there is no evidence that the accused was in such an impaired condition that he would have been any more likely than a totally sober individual to set the vehicle unintentionally in motion, either from operating the engine or the heater of the vehicle.� The acquittal confirmed.