Apr 1, 2020

Drive Impaired: Care and Control

R. v. Kenderdine, 2019 MBPC 62 (CanLII)

Facts

Person found in the driver's seat of a vehicle.

Around 3:30AM, Constable Maynard observed the accused leave a bar and walk to the parking lot. The officer drove into the parking lot. He saw vehicle headlights turn on then off. Constable Maynard approached the vehicle from the front and a second time saw headlights go on then off.

The accused was the lone occupant. He was in the driver’s seat. He was not wearing a seatbelt. He demonstrated usual and obvious signs of impairment by alcohol, including a strong odour of liquor on his breath, slurred speech, watery bloodshot eyes, and difficulty producing documents. Once out of the vehicle, he was unbalanced and swaying from side to side. He used the vehicle to hold himself upright. Upon arrest for impaired driving, the accused was unsteady when walking and needed substantial police assistance to get into the police truck.


Decision

Judge Huwett-Michta found person guilty of care and control.

The judge would have found the accused guilty on a de-facto basis. The judge did not find the accused credible because it was not forthright, and found that the accused was presumed to be in care and control of the motor vehicle.

"The accused was not wearing a seatbelt and there is no evidence he attempted to put the vehicle in motion. However, the accused’s level of impairment was substantial. The keys were immediately available on his person. Whether by remote starter or via key in the ignition, the engine was running for a period. The accused was positioned in the driver’s seat and admittedly engaging with the vehicle.”


"The evidence establishes the accused had care or control of the motor vehicle. The crown proved all elements of the section 253(a) and (b) CCC offences beyond a reasonable doubt."