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Authored by: Anonymous on Saturday, October 27 2012 @ 05:32 PM EDT |
Some background: the defendant called a cab when he left a bar, clearly
intoxicated. It was a cold night. He got into the car and started it to get some
heat. He was found, sleeping, intoxicated, in the car, with the engine running.
Normally, that fits clearly within 'having care and control'.
The judge read in a 'realistic possibility of danger' aspect and acquitted. The
Court of Appeal overturned, saying that was not a proper reading. The SCC
allowed the appeal.
The majority adopted and approved of the 'realistic probability' interpretation.
The dissent pointed out that this was directly contradictory to many prior
decisions.
The majority decision ALSO noted that the Crown can only appeal from an acquital
*on a point of law*. The judge's determination of the FACTS is not something
that can be appealed. In this case, the judge found as a fact that the defendant
did not enter the car, with the intention of taking care and control for the
purpose of driving.
Therefore the appeal had to be dismissed for lack of standing to appeal.
Where that actually leaves things is obscure. Because if the grounds for
allowing the appeal are that it was improperly brought, then everything about
intention in the decision and dissent are just obiter dicta....
Or are they.
PS. I don't do crim law, but I did read the decision.[ Reply to This | Parent | # ]
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