Accused did not intend to drive vehicle and only returned to car to warm himself

Criminal Law - Offences Against the Person and Reputation - Driving/Care or Control with Excessive Alcohol [Over 80]

Accused was found in driver’s seat of car with seatbelt on. Accused conceded that he was impaired and over 80, and was found in driver’s seat of his motor vehicle, so that only issue was care and control. Accused was charged and acquitted of impaired driving and driving over 80. Trial judge found that accused did not intend to drive vehicle, but had intended to walk home due to being inebriated and only returned to car to warm himself. Trial judge found that vehicle was in park and could not have been put in motion accidentally, and that possibility that accused would change his mind was remote. Crown appealed. Appeal dismissed. Trial judge was entitled to come to conclusion that he did on evidence before him, and there was no reviewable error. Trial judge correctly stated law and knew test that had to be met was possibility that accused would set car in motion.

R. v. Goncalves (2019), 2019 CarswellOnt 4673, 2019 ONSC 1980, Molloy J. (Ont. S.C.J.); affirmed (2018), 2018 CarswellOnt 13859, 2018 ONCJ 570, Richard Blouin J. (Ont. C.J.).

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