R. v. Johal

[1998] O.J. No. 1223

Held

ON CJGD

�The relevant time for determining care and control was the point of the accused's involvement with the vehicle preceding arrest. The accused, with the engine running and the transmission in drive, steered and accelerated his vehicle for some distance. In my view, the relevant time for determining the issue of care or control is the point of the accused's involvement with the motor vehicle preceding arrest, not scrutiny of the accused's intentions as to future conduct.� (Para 25); �I am inclined to the view that adoption of a principle of dominant care or control, as the measure of surrender of all meaningful association with a motor vehicle, constitutes, as a general rule, a dangerously unhelpful excursion into remote and proximate risk analysis. An accused, participating in any acts involving use or direction of the car, engages in conduct importing the very risk or mischief the legislation seeks to defeat.� (Para 25); The Crown has proven the respondent's care or control beyond a reasonable doubt without resort to the presumption attendant upon proof of the respondent's position in the driver's seat (s. 258(1)(a) of the Code). It is apparent, on the facts, that the prosecution would have been entitled to the benefit of this evidentiary provision. In the circumstances of this case, the relevant legal analysis is unchanged by resort to s. 258(1)(a)

Facts

ON CJGD

The accused after having �quite a few beers� while driving encountered a heavy rainstorm, lost control of his vehicle and ended up in a ditch. By agreement between the respondent and the tow-truck driver, as the driver operated the truck to extricate the automobile from the ditch, the respondent assisted in the endeavour. As the investigating officer appeared on the scene, the respondent sat in the driver's seat of his vehicle with the keys in the ignition and the engine running. All four wheels of the car were touching the ground. The respondent steered his vehicle and, with the transmission in "drive", he depressed his accelerator to assist the towing operation.

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