at 1:55 am, while a constable was driving he observed a tow truck parked and a male and female standing outside of the vehicle. when he returned the obsereved the appellant sitting in the front seat of the truck behind the steering-wheel. The keys were in the ignition and the motor was runnin and the driver's door was open. Once the constable suspected of an impairment he asked the appellant to take a roadside alert test. The appellant failed and was arrested for care or control of a motor vehicle haveing over 80 mg. Samples were taken at 2:19 and at 2:37 am which resulted in a 140 reading each time. The appellant gave evidence. He stated that he had consumed 4-5 drinks of rye and coke and that another person was driving. Irene Page decided to stop driving because it was to foggy and wet so they waited to see if another passenger had her licence. While she was searching for her licence the appellant and Mrs. Page stepped out of the vehicle. His evidence was that his intention was not to drive further. He got back in the drivers seat but he states that he was sitting crossways with his feet outside of the dorr talking to the other passenger but the constable testifies that he was sure that when he arrived the appellant was sitting in the driver's seat behind the steering-wheel with the toop open and his feet inside the vehicle. The provincial judge took the position that "i find that a person who is driving a vehicle also has care and control of that vehicle and can be convicted of care and control even if he was not charged with care or control and the evidence supported a finding that he was driving the vehicle. In the result the appeal will be dissmissed without cost".
The trial judge did not refer to the presumption of to the defence evidence tending to rebut it; he consentrated on the admission by the accused that he had driven the truck within the 2 hours prior to the breathalyzer test. However, this was not the offence for which teh appellant had been arrested and charged and it was not the offence established by the prosecutions's evidence. The charge related to the appellant's blood-alcohol level when he was observed behind the steering wheel of the truck parked on the shoulder of the road with its running.