R. v. McNeil

[1990] N.S.J. No. 314

Facts

NS CA

accused who had been drinking was ordered to leave his girlfriend's apartment after she had called the police, believed that the police wanted him to remove his vehicle from the premises so he to put the vehicle in motion while the police officers were watching ... charged with and convicted of operating the vehicle while impaired

Reasons

NS CA

Even if the accused had honestly believed that the vehicle, and perhaps his own movements as well, were under police control, and that he could not exercise control of the vehicle in his own right in the same contemplated by s. 253, it would not afford him a defence ...mens rea appropriate to offences involving drinking and driving...R. v. Toews (1985) 47 C.R. (3d) 213 at 218 and in Penno v. R. ... A mistaken, or even a correct, perception by the respondent of what was required of him by the police respecting girlfriend's wishes may reflect his intentions or motive, but it does not go to the general intent of assuming control of the vehicle, which the respondent demonstrated in this case by actually driving it. That was the mens rea of the present offence. Counsel did not refer to, nor did a search of the jurisprudence disclose, a reported instance of a successful impaired driving defence based on operation of a vehicle under the direction of police or other persons who have assumed control of the situation

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