The appellant had been drinking at a restaurant, and that upon leaving drove for about one-quarter of a mile before deciding he was not fit to drive. He then pulled into an industrial parking lot in Pickering, planning to stay there and sleep until he felt able to continue driving. He was awakened by the arrival of the two police officers at about 9.00 p.m. The driver's seat was fully reclined. The appellant was sitting in the driver's seat so that only a portion of his head was visible to the approaching officers above the bottom of the window line of the vehicle. The key was in the ignition. The headlights and radio were on but the engine was not running.

Whether the appellant had the necessary care and control of the vehicle?

�In this case, the appellant was in the driver's seat. On the plain language of the section, the presumption is therefore triggered. The fact that the seat was fully reclined does not, in my view, negate the application of the presumption.� (Page 50); Court relied upon the observation in �In R. v. Toews the Supreme Court of Canada said at p. 28: I would agree that to occupy the seat ordinarily occupied by the driver within the meaning of s. 237(1), one need not be sitting straight up with hands on the steering wheel and in all respects be ready to drive. The fact that some movement or adjustment of position might be required to enable a person to take the steering wheel and drive the car will not necessarily be such a departure from the occupation of the driver's seat that it will deprive the Crown of the right to rely on the presumption� (Page 50); �While that case [R. v. Whyte (1988), 42 C.C.C. (3d) 97] dealt with the presumption section as it was written before the 1985 amendment, discouraging intoxicated persons from even occupying the driver's seat surely remains a fundamental objective of the section post-amendment. � (Page 51)