What is the test for rebutting the presumption of not intending to drive?

[53] The operative time for determining whether or not the presumption has been rebutted is when the accused first entered the vehicle. Accordingly, if a person exits the vehicle and then re-enters, the operative time to examine is their intention at the time of re-entry. Justice Durno made this observation in R v. Amyotte as follows: While the appellant argued it is illogical to have a case determined on whether or not the accused got out of the car and returned not intending to drive and one who never leaves the seat but abandons the intention to drive, that is the law in Ontario. Whether the presumption applies is determined by the accused's intention when he or she first occupied the driver's seat. The reason the presumption was saved by s. 1 when constitutionally challenged in R. v. Whyte (1988), 1988 CanLII 47 (SCC), 42 C.C.C. (3d) 97 (S.C.C.) was that the accused could rebut it by showing that he or she did not occupy the seat for the purpose of setting the vehicle in motion.[7]

[54] An immoveable vehicle will not necessarily defeat the presumption although an inoperable vehicle can defeat the presumption. In R v. Amyotte, Justice Durno made this point when he said “on either scenario, the presumption remained and the appellant was deemed to be in care or control of the truck, subject to the finding the vehicle was inoperable”. [8] (emphasis added)