R. v. McManus Date:, 2012 BCPC 381

Citation: R. v. McManus Date: 20120613 2012 BCPC 0381 File No: 33949-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMES LEONARD McMANUS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: T. Patola Counsel for the Defendant: C. Beckingham (as Agent for A. King Q.C.) Counsel for : Place of Hearing: Port Alberni , B.C. Date of Hearing: March 27, 2012 and June 1, 2012

Date of Judgment: June 13, 2012 Introduction [ 1 ] THE COURT: (orally) The accused James Leonard McManus is charged with having the care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug, contrary to s. 253(1) (

a) of the Criminal Code , and, pursuant to s. 253(1) (b), that he did have the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. [ 2 ] The alleged offences occurred at or near Port Alberni, in the Province of British Columbia, on February 15, 2011. [ 3 ] The accused was found by the police in the driver's seat of his car, slumped over and apparently sleeping, with the vehicle's engine running at a high rpm rate and the transmission in the "park" position. [ 4 ] The accused does not deny that he was impaired by alcohol at the time in question.

He does deny that he was in the care or control of a motor vehicle. [ 5 ] Similarly, the accused does not deny that his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood. Background [ 6 ] The following witnesses were called on behalf of the Crown:

a) Constable Jason Patovirta, a member of the Port Alberni RCMP Detachment;

b) Constable Greg Fracassi, also a member of the Port Alberni RCMP Detachment; both of whom attended at the scene of the incident giving rise to the charges. [ 7 ] The following witnesses were called by the defence:

a) The accused, to testify on his own behalf, and;

b) Chris McManus, wife of the accused. [ 8 ] The defence did not call Paul Ward as a witness to testify about his involvement. Mr. Ward was working out of the province during the last day of the trial of this matter when the defence's case was entered. Facts in Evidence [ 9 ] The accused is a 64-year-old architectural designer and planner who is self-employed and provides consulting services for proposed subdivisions. He was born and educated in Scotland. He is a self-professed alcoholic. He resumed drinking after a 17-year hiatus, following his retirement from a local municipal agency.

He has been married to Chris McManus for approximately 31 years. He resides in Sproat Lake, some distance outside of Port Alberni, with his wife. [ 10 ] Around the time of the alleged offences, the accused's 22-year-old daughter Caitlin also resided at their residence. [ 11 ] Notwithstanding that he is an alcoholic, the evidence of both the accused and his wife, Chris McManus, is that the accused does not drink and drive.

He has no prior convictions relating to drinking and driving, nor any other criminal record. [ 12 ] On February 15, 2011, at approximately 1300 hours, the accused met with his friend Paul Ward at his townhouse residence on 8th Avenue in Port Alberni. The accused had driven his blue 2007 GM Cobalt to the Ward residence for the visit. [ 13 ] Paul Ward offered the accused a drink, which he accepted. The accused continued to drink for several hours while in the company of Mr. Ward. This was contrary to the previous assurances given by the accused to his wife that he would not be drinking that day.

The accused continued to visit with and consume alcohol in the presence of Mr. Ward until approximately 2000 hours. [ 14 ] Mr. Ward had prepared a curry meal for himself, which the accused did not share, since it did not agree with him. [ 15 ] The accused testified that once he started to drink he had no intention of driving. His plan was to call his wife, Chris, and ask her to pick him up in Port Alberni, utilizing one of the other two family vehicles. As a result of imbibing, the accused realized he was not in any condition to drive. [ 16 ] Sometime before 2200 hours, the accused arranged with Mr.

Ward to drive him in the GM Cobalt to the local Panago Pizza Restaurant located at the corner of Gertrude and Southgate Streets in Port Alberni, a distance of approximately one kilometre from the Ward residence. Around 2200 hours Mr. Ward dropped the accused outside of the Panago Pizza Restaurant and, at the request of the accused, proceeded to park the GM Cobalt.

[ 17 ] Mr. Ward ended up parking the vehicle in a satisfactory manner approximately a block away, at the curb on the south side of Southgate, outside of the Medicine Shoppe Pharmacy. The accused placed his pizza order and paid for it; he understood there would be a waiting time of 20 minutes to prepare the order. [ 18 ] He then departed from the restaurant in order to retrieve his keys from Mr. Ward and to say goodbye. Following the handing over of the car keys to the accused, Mr.

Ward then departed for home on foot. [ 19 ] During this period of time, the accused used his cell phone and, while outside the restaurant, placed a phone call to his wife at home at approximately 2155 hours. As soon as they started conversing, she realized he had been drinking. She was very angry with him for doing so and made this clear to the accused. He indicated to her that he was incapable of driving.

He told her he had ordered a pizza and asked her to pick him up outside of the pizza restaurant. [ 20 ] Chris McManus made it clear to him that he would have to wait until she finished watching her television program and Caitlin had finished her bath. She was in no mood to depart immediately. Their plan was for Chris McManus and Caitlin to drive together from Sproat Lake in one car to the Panago Pizza. They would then pick up the accused and the GM Cobalt.

Each of them would drive one of the vehicles back to Sproat Lake, with the accused in the passenger seat of one of the vehicles. [ 21 ] The accused's cell phone monthly statement corroborates the accused and his wife's testimony that a telephone call was made to the accused's family residence during this time frame. [ 22 ] It was a cold, rainy night, with the temperature hovering around the freezing point. The accused decided to take a short walk in the vicinity of the parked car, rather than waiting inside the restaurant.

He then made a fateful decision to climb into the driver's seat of the GM Cobalt to shelter himself from the elements and especially the cold. This decision has given rise to the charges against him that are before the court. [ 23 ] The accused placed the keys in the ignition, started the engine, and turned on the vehicle's heater. He rolled the driver's side window down about halfway in order to allow air circulation. He did not put on his seatbelt. The headlights, taillights, and rear licence plates were all illuminated. This occurs automatically when the engine is running.

The vehicle's automatic transmission remained in the parked position. [ 24 ] Although there is some dispute on the evidence, it is likely that the parking brake was not fully engaged as to prevent the vehicle from rolling, if the vehicle's transmission was taken out of the parked position. [ 25 ] The evidence of P.C.

Fracassi is that when he took the required steps to put the vehicle in gear, but did not touch the parking brake, the vehicle moved forward about three feet. [ 26 ] The accused fell asleep in that location and was found by the police at 2250 hours, with his chin to his chest and with his glasses fallen down below his nose. His hands were in his lap and not in contact with either the steering wheel or the gear shift. [ 27 ] When the police arrived on the scene, they observed that the accused's foot was in full contact and pushing down on the vehicle's accelerator pedal.

The result was that the engine was revving at a very high rpm rate and steam or smoke was visible coming from under the hood of the vehicle. Considerable heat was being generated by the vehicle's engine, which could be detected by P.C. Fracassi by placing his hand on the hood and he observed the steam rising from the hood surface. There is no evidence that the vehicle was on fire or about to catch fire. [ 28 ] Constable Fracassi was not significantly concerned about the smoke and steam coming from the vehicle.

At that time he was more concerned, based upon his observations and past experience, that injury could result if the vehicle was put into motion. [ 29 ] Constable Patovirta had considerable difficulty arousing the accused. The accused was initially very confused and groggy when he was awakened. When he exited the vehicle, the over-revving of the vehicle engine subsided to a normal idle, indicating that it was the accused's foot pushing on the accelerator pedal that was causing the engine to over-rev. [ 30 ] The accused evidenced numerous indicia of impairment.

He admitted to alcohol consumption and explained that he was waiting for a pizza. There is no issue raised by the defence about the voluntary nature of that statement. After some initial hesitancy, the accused was cooperative and remained cooperative throughout. [ 31 ] The accused called his wife using his cell phone around 2301 hours, and told her that the police had arrived on the scene at the vehicle and he anticipated that he was going to be arrested. He testified that he told her he would call her when he found out what was happening. [ 32 ] Neither police witness observed the accused making this call.

The accused's cell phone statement corroborates the testimony of the accused and his wife that the call was made to her by the accused. [ 33 ] The accused was Chartered and warned. The vehicle was impounded by a tow truck summonsed by the RCMP. [ 34 ] The accused was taken to the Port Alberni detachment of the RCMP, where he was administered a breathalyzer test. A first sample was obtained at 2240 hours, that is before midnight, and a second sample obtained just after midnight.

According to the certificate of a qualified technician admitted into evidence, his blood alcohol readings from the two samples taken were 150 and 160 milligrams of alcohol in 100 millilitres of blood. [ 35 ] The accused was served with the Notice of Intention to Produce Certificate at 0005 hours on February 16, 2012, by P.C. Patovirta; the accused was then released from custody. [ 36 ] P.C. Patovirta offered the accused a ride home. At the request of the accused, the constable drove by the Panago Pizza to pick

up the accused's pizza order. The restaurant was closed. P.C. Patovirta then drove the accused to his residence and dropped him off around 0030 hours. [ 37 ] The accused testified that it was not his intention at any time to drive the vehicle once he arrived as a passenger at the pizza restaurant, but rather his intention was to rely upon his wife to pick him up and drive him home. The evidence is that although his faculties and decision-making abilities were impaired by alcohol, they were not impaired to the extent that the accused was going to drive the vehicle.

He was conscious of his surroundings. [ 38 ] He further testified that he took none of the necessary steps to place the vehicle in motion. He started the vehicle to utilize the heater and remained in it to get warm. His foot accidentally ended up depressing the accelerator pedal while he slept. [ 39 ] The testimony of the accused and Chris McManus and Constable Fracassi confirms that in order to place the GM Cobalt vehicle in motion while the engine is running, it is necessary to use the following sequential procedures:

a) Depress the foot brake pedal;

b) Push a button located on the gear shift lever;

c) Move the gear shift lever to place the transmission into a "drive" or "reverse" gear while holding the button and maintaining a foot depressed on the foot brake pedal;

d) Release the foot brake pedal;

e) Disengage the emergency hand brake by pushing the release button and pulling up on the emergency brake lever in order to release it. [ 40 ] The evidence confirms that without depressing the foot brake pedal and holding it while pushing a button located on the gear shift lever it is not possible to shift the vehicle out of the "park" position and into gear. [ 41 ] No expert evidence was adduced by Crown as to the risk or dangers that could arise from the vehicle being over-revved for a lengthy period of time.

Crown made suggestions, but there is no evidence, as to the dangers that could result from steam or smoke coming from under the hood of the vehicle. [ 42 ] In particular, no expert evidence was adduced as to whether or not the over-revving of the engine for a sustained and lengthy period of time could cause the vehicle to be placed in motion without specifically taking the sequential steps described above.

In other words, that high revving of the engine by itself could result in the vehicle disengaging the transmission from the "park" position and going into a gear or transmission position that would permit the vehicle to move. [ 43 ] Some concern was expressed by the police witnesses about the high revving of the engine and the evidence of the resulting high temperature of the engine. These concerns were based on their general observations and not on any particular expertise they possess. Applicable Provisions of the Criminal Code [ 44 ] Section 253(1)(

a) of the Code provides, and I quote: Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (

b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. [ 45 ] Care or control can be established in either of two different manners. The Crown may rely upon the statutory presumptions contained in s. 258(1)(

a) of the Code which deems care or control of a motor vehicle to an accused occupying the driver's seat unless the accused establishes that he did not occupy the driver's seat for the purpose of setting the vehicle in motion. An accused must displace the presumption on a balance of probabilities. [ 46 ] Section 258(1)(

a) of the Code provides, and I quote:

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or in any proceedings under subsection 255(2) or (3.2.a), (

a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;

[47] When the accused rebuts the s. 258(1)(

a) presumption of care or control of the motor vehicle, or where the Crown is unable torely on the presumption, the alternative route to establishing the offence requires the Crown prove beyond a reasonable doubt that anaccused had actual care or control of the vehicle. [48] The authority for those propositions that I have noted above can be found in R. v. McLachlan, Kodjabachev and Gill, 2009BCSC 431, at paragraphs 36, 37, and 38. That is a decision of Madam Justice Ker of our Supreme Court of British Columbia, whichdecision is hereafter referred to as "McLachlan".

Position of the Crown [49] Crown says that the evidence of the accused and his wife is not credible and should not be accepted by the court in order torebut the statutory presumption. Furthermore, they say that even if there is sufficient evidence in order to rebut the statutorypresumption, there is sufficient evidence before me to conclude that the accused did have the care or control of a motor vehicle. In doingso, Crown suggests that the test laid out in the Ontario Court of Appeal decision in R. v. Wren, (ON CA), [2000] O.J.No. 756, at paragraph 16, applies.

This is found in the judgment of Feldman, J.A., which reads as follows, referring to paragraph 16: I am satisfied that the result of these cases and others that have followed them, is that in order to establish care or control of a motorvehicle, the act or conduct of the accused in relation to that motor vehicle must be such that there is created a risk of danger, whetherfrom putting the car in motion or in some other way. [50] Crown suggests that the actions of the accused and the overall circumstances in this case were sufficient to create a risk ofdanger that the car could have been put into motion.

The accused was intoxicated and sitting in the driver's seat and could haveintentionally or accidentally put the car into gear and, with the engine running, put it into motion. [51] Crown also emphasizes the "or in some other way" aspect of the Wren test and says that the court should also take judicialnotice that there was a risk of danger from the car being over-revved, by the accused, as he accidentally pressed down on the acceleratorpedal while he slept in the driver's seat. [52] As I understand it, in Crown's submission this danger comes from the heat being generated by the over-revving of the engine,which is evidenced by the smoke and steam. [53] The Crown refers to some authorities that suggest that there may be a greater chance for a sleeping occupant of a driver's seat toconsciously change his mind or to accidentally or inadvertently put a vehicle into motion, especially if the engine is running.

Position of the Accused [54] Defence says that the accused has raised a reasonable doubt, sufficient to rebut the presumption contained in s. 258 of the Code. [55] The defendant says that the Crown has not established beyond a reasonable doubt, in these circumstances, that the actualconduct of the accused was such that it created a risk of danger from putting the car in motion or in some other way. [56] Defence relies on the facts, tests and analysis in R. v. Hannemann, Ontario Superior Court of Justice, (ONSC), 43 C.R. (5th) 168.

The Law [57] The decision in McLachlan, which I have referred to above, is a detailed and very helpful review of the law and the applicationof the principles set out in the leading case of R. v. Toews, (SCC), [1985] 2 S.C.R. 119, and the cases that have followedit. Under the heading noted as "(

a) R. v. Toews - the legal framework for assessing care or control," Ker J. says as follows, starting atparagraph 39 and continuing through to paragraph 50. 39 The facts in Toews were that the accused was found asleep in his truck, lying across the bench seat, wrapped in a sleeping bag. His head was on the passenger side of the vehicle and his legs, encased in the sleeping bag, were extended under the steering column. The keys were in the ignition and the radio was playing loudly but the engine was not running and the lights were not on.

A friend of theaccused had parked the truck on the private property where it was later found by the attending officer. 40 At his trial, Mr. Toews testified he had no intention of driving his truck. He said he went into his truck to lie down and wait forhis friend who was still attending a party on the property. The Crown was precluded from relying on the presumption of care or controlas the accused did not occupy the driver's seat and therefore had to establish Mr. Toews had actual care or control of his truck.

TheSupreme Court of Canada engaged in an examination of the circumstances of the case and the jurisprudence that had developedaddressing the issue and concluded that the accused was properly acquitted, the Crown having failed to establish he performed the actusreus. 41 As noted by Mr. Justice McIntyre in Toews, the offence of care or control is a distinct offence from that of impaired driving. Theoffence of care or control of a motor vehicle while the ability to drive is impaired by alcohol can be committed whether the vehicle is inmotion or not.

The critical question raised in Toews was "what will constitute having care or control short of driving the vehicle?" (para.9). 42 McIntyre J. answered this question by stating it was impossible to set down an exhaustive list of acts which would qualify as actsof care or control. The decision confirms that a contextual assessment of the entire factual matrix must be employed in the circumstancesof each case. The authorities McIntyre J. reviewed at para. 9 in Toews simply provide illustrations of where care or control might lie in aparticular set of circumstances.

43 Equally important to the decision was McIntyre J.'s aforementioned observation that "each case will depend on its own facts andthe circumstances in which acts of care or control may be found will vary widely." 44 The actus reus of care or control of a motor vehicle while the ability to drive is impaired is the act of assumption of care orcontrol when the voluntary consumption of alcohol or a drug has impaired the ability to drive: Toews at para. 7; R. v. Rennison, 2007BCCA 594 . . . at para. 3; R. v. Hannemann, (ON SC), [2001] O.J. No. 1686 (Sup. Ct. J.) at para. 37; R. v.

Weir,2005 BCSC 1740 at para. 32. 45 The mens rea for the offence of having care or control of a motor vehicle is the intent to assume care or control after thevoluntary consumption of alcohol or a drug: Toews at para. 7; Hannemann at para. 38; Weir at para. 32. Clearly the mens rea is not anintention to drive, and the absence of such an intention does not afford a defence. Nevertheless, the intention of an accused is stillrelevant to the issue in so far as it may contribute to the presence of the required mens rea or tend to exclude it: Toews at para. 7-8.

Proofof a lack of intention to drive or lack of intention to set the vehicle in motion generally rebuts the statutory presumption of care or controlcontained in s. 258(1)(

a) of the Code. 46 In an effort to provide guidance on the question of what acts will constitute actual care or control, McIntyre J. outlined thefollowing general framework at para. 10 in Toews for an analysis of the circumstances of any given case: ...acts of care or control, short of driving, are acts which involve some use of the car or its fittings and equipment, or some course ofconduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous. 47 As Mr.

Justice Hill noted in Hannemann, a person, impaired to operate a vehicle, is not absolutely prohibited from presence in amotor vehicle. The "risk of danger" analysis is applied flexibly to avoid casting the net of criminal liability too broadly. The assessmentthus focuses on whether the accused's actions or conduct constituted a risk of setting the vehicle in motion: Hannemann at para. 42-46. The risk of putting the vehicle in motion must be related or connected to the acts or course of conduct that an accused engages in with thevehicle.

The test for actual care or control therefore focuses on an accused's actions in relation to a motor vehicle and an assessment ofwhether those actions create a risk, or eliminate the risk, of setting the vehicle in motion, either intentionally or accidentally. 48 While it may seem elementary that any impaired driver inside a motor vehicle with ready access to the fittings or equipment thatmakes a vehicle operational presents a possible risk to public safety, that is not sufficient for care or control purposes.

Use of a vehicleby an impaired person in a manner that does not involve the risk of putting it in motion does not satisfy the requirements for the actusreus of the offence: R. v. Penno (SCC), 1990 59 C.C.C. (3d) 344 at 352; Hannemann at para. 47. 49 Based on the foregoing it can be seen that the decision in Toews establishes the following legal framework for the purposes of theanalysis of any actual care or control case, where the presumption in s. 258(1)(

a) of the Code has been rebutted or is unavailable. Thelegal framework requires the Crown establish the elements of the offence such that the court is satisfied of the following: 1. That the accused voluntarily consumed alcohol or drugs, 2. That the accused became impaired as a result, 3. That while impaired, the accused engaged in acts which involved some use of the vehicle or its fittings and equipment, or somecourse of conduct associated with the vehicle, 4. That those acts or course of conduct involved a risk of danger of setting the vehicle in motion, either accidentally or intentionally,and 5.

That if the vehicle were set in motion, it could become dangerous. 50 With this legal framework in mind, the next step is to determine whether the decisions in British Columbia all fit within this legalframework or whether two diverging lines of authority exist. The third and fourth points above are the main issues to focus upon sincethe voluntary consumption of alcohol, the resulting impairment, and the danger caused by a moving car are all satisfied in the caseswhich will be reviewed. [58] The latter paragraph 50 in Justice Ker's decision is precisely the situation in the matter before me.

Points 1 and 2, that is theaccused's voluntary consumption of alcohol or drugs, and the accused's impairment as a result, are well satisfied.

I therefore need to dealwith points 4 and 5. [59] Ker, J. provides further guidance at paragraph 98 of McLachlan, and she says as follows: 98 At any rate, the answer to the question before the Court is clear: while Toews clearly contemplates a risk of danger arising fromthe possibility of intentionally or unintentionally setting the vehicle in motion, it does not stand for the proposition that the merepossibility of a future change of intention on its own can form the basis for conviction in these types of cases.

Rather, Toews and thejurisprudence flowing from it supports the view that the possibility of a future change in intention remains a consideration [emphasisunderlined] or factor that is weighed in light of all the objective circumstances and other evidence that any particular case presents. Ineach particular case, a court must look at all the surrounding circumstances pertaining to an impaired accused's relationship to theirvehicle, including his or her intended course of action, and consider whether a real risk exists that the vehicle will be set in motion in thecontext of that relationship.

In that sense, the element of apprehension of what may happen in the future is an appropriate consideration.

However, in and of itself, without any connection to the evidence of the accused's conduct and attitude in relation to the vehicle, the mere possibility of a future change of intention about driving, which surely technically exists in every case, cannot be sufficient to ground a conviction. 99 Thus, in British Columbia, Saskatchewan and arguably Ontario too, the jurisprudence does not support the Crown's position that the mere free-floating risk or possibility of future change of intention alone is an appropriate basis for conviction.

In most cases, however, the possibility of a future change of intention is necessarily an appropriate consideration to the risk of danger analysis, but the analysis of whether the possibility of a future change of intention is realistic and exists, so as to give rise to a risk beyond a reasonable doubt, must flow from the finding of "acts" or "course of conduct" of the accused in relation to the vehicle. 100 As noted earlier in this decision, the presence of an impaired person inside a motor vehicle with ready access to the fittings or equipment that makes a vehicle operational may well present a possible risk to public safety; however, presence and opportunity on their own are not going to be sufficient for care or control purposes.

Use of a vehicle by an impaired person in a manner that does not involve the risk of putting it in motion does not satisfy the requirements for the actus reus of the offence: R. v. Penno (1990), 59 C.C.C. (3)d 344 at 352; Hannemann at para. 47 . 101 While courts across Canada are repeatedly called upon daily to "unravel the obscure intricacies of care and control jurisprudence" ( Hannemann at para. 2 ), the legal framework established in Toews assists in identifying a rational scheme of criminal proscription.

When properly applied to the circumstances of any case, this analytical framework assists in determining whether any given accused's conduct is properly found culpable or otherwise. Analysis [ 60 ] I accept the accused's version that Mr. Ward drove him to the pizza restaurant. I do not draw any adverse inference from the fact that Mr. Ward was not presented by the defence. The accused can call whomever they choose.

There is nothing to contradict this portion of the accused's story. [ 61 ] I accept the evidence of the accused that he did not intend to drive the vehicle when he entered the passenger seat of the motor vehicle to escape the rain and cold and started the engine for the purpose of gaining warmth. [ 62 ] I am satisfied on the evidence that at no time thereafter did he change that intention and actually form the intention to drive the vehicle. [ 63 ] Both the accused and his wife were subject to rigorous cross-examination. Their individual stories remained internally and externally consistent.

There was no tailoring of evidence on the part of either of them. Simply put, their stories of the events leading up to when the accused was found behind the wheel of the vehicle and the plan that they had made to get the accused home without driving his vehicle while he was impaired makes sense. The evidence of the accused and his wife is credible on these matters. [ 64 ] The discrepancies in the evidence of the accused and Chris McManus raised and relied upon by Crown, in my view, do not contradict or undermine their evidence on the important issues. [ 65 ] Accordingly, I believe the accused and Mrs.

McManus, and I accept their evidence on these important factual issues. [ 66 ] I conclude that the statutory presumption in s. 258(1) has therefore been rebutted by the accused. [ 67 ] It is therefore necessary to consider the case within the analytical framework set out in R. v.

Toews to determine if Crown has made its case that the accused was in the care or control of his vehicle. [ 68 ] It is necessary to examine the accused's actions in relation to his motor vehicle and to determine whether those actions created a risk or eliminated the risk of setting the vehicle in motion, either intentionally or accidentally. [ 69 ] Based upon the observations of the police that the vehicle's transmission was in "park", that the accused was not touching the gear shift or the steering wheel, and based upon the evidence of the accused that I have accepted regarding his lack of intention to drive, there is nothing in the present circumstances that satisfies me beyond a reasonable doubt that there was a risk that the vehicle could have been intentionally put in motion. [ 70 ] I have come to this conclusion notwithstanding the fact that the emergency parking brake was likely not fully engaged and that the accused's foot had accidentally been placed on the accelerator. [ 71 ] Based on the uncontradicted evidence before me as to the sequential steps that must be taken to put that particular vehicle in motion, I cannot conclude that the vehicle could have been accidentally put in motion by the accused as he slept in the driver's seat.

To put the vehicle in motion would require a number of deliberate steps to be taken by the accused which could not have been performed by him while he was asleep. [ 72 ] That still leaves the assertion by Crown that the vehicle could have been accidentally put in motion due to the high revving of the engine resulting from the accused's accidental foot placement on the accelerator pedal and the further assertion by Crown that there is a risk of danger created in some other way, other than putting the car in motion.

On that point Crown suggests there is a risk of danger from the over-revving of the car engine for a lengthy period of time, which thereby creates a risk or danger. [ 73 ] Crown simply has not adduced any evidence to support either of these contentions or theories. Expert testimony would have been required to support these contentions or theories. None was tendered.

Decision [ 74 ] Based upon the review of the leading authorities contained in McLachlan and the conclusions reached by Ker J. and the application of the test in Toews and upon the evidence before me and my findings of fact, I have concluded that Crown has failed to prove that the accused did have the care or control of a motor vehicle as alleged. [ 75 ] I therefore acquit the accused on the charges before me. (JUDGMENT CONCLUDED)