The vehicle of the accused had become stuck while trying to make a "U" turn, that his female passenger took over the driver's seat after he got out, but he was unsuccessful in attempting to push the car out of the ditch where it was stuck. His passenger then left the vehicle, leaving the lights on - gave the accused the keys. The Police officer saw the female passenger standing speaking to the truck driver about a block or so away from the accused's vehicle, but when he got to the accused's vehicle the accused was inside on the driver's side just getting out of the vehicle. The keys were in the ignition and the lights were on. It was the officer's opinion that the vehicle was definitely immobile.

Under these circumstances, even if Mr. Dosa got back into his vehicle after he had attempted to push it out of the ditch, he is entitled to be acquitted if he "establishes" that he was not in it for the purpose of setting it in motion. Logically speaking, once it is accepted that a vehicle cannot be moved at the time a person enters it to his knowledge, his explanation that he did not enter for the purpose of setting it in motion should, in the absence of evidence disproving same, be sufficient to satisfy the burden on him under Section 258(1)(b). The burden of proof on the accused is an evidentiary one, that being to establish on a balance of probabilities that he did not enter the car with the intention of driving it. Here, the evidence presented clearly satisfies that onus. The Crown, then, being unable to rely on the presumption, and offering no other evidence to prove that the accused had the care and control of the vehicle, must fail.