R. v. Smits (J.) 2012 ONCA 524
Criminal Law - Motor vehicles - Impaired driving - Meaning of “care and control”
Smits was found guilty of having care or control of a motor vehicle while impaired and “over 80” contrary to s. 253(1)(a) and s. 253(1)(b) of the Criminal Code, respectively. The trial judge entered a conviction on the impaired charge and stayed the finding of guilt on the “over 80” charge. The summary conviction appeal judge reversed the trial judge on the impaired charge and entered an acquittal. The Crown sought leave to appeal, and if leave was granted, sought to restore the conviction and sentence. The case involved the issue of whether an impaired occupant of a motor vehicle, who was found asleep or passed out in the vehicle, was nevertheless in care or control of that vehicle.
The Ontario Court of Appeal granted leave to appeal, allowed the appeal and restored the conviction and sentence. This was a proper case for leave to appeal on summary conviction proceedings pursuant to s. 839 of the Criminal Code. The summary conviction appeal judge exceeded the ambit of factual review permitted under s. 686(1)(a)(i) and thereby erred in law in overturning the findings of fact of the trial judge on the issue of whether the accused had care or control of the vehicle.