Mr. Curry did not testify at trial and did not dispute that he was the driver when the vehicle left a party, or that his ability to drive was impaired by alcohol. However, he argued through counsel that he had switched seats with a Mr. Amell within the short time and distance before the vehicle veered off the road. Mr. Curry was found guilty of driving "over 80", due to driving away from the party. However he was acquitted of impaired causing, as the trial judge had a doubt with respect to whether Mr. Curry was driving when the vehicle veered off the road. The Crown appealed and the Ontario Court of Appeal ordered a new trial, and listed some of the "overwhelming body of evidence" gathered that was incompatible with the suggestion that Amell, rather than Mr. Curry, was the driver at the time of the collision:
• a witness testified that she saw Amell – the larger of the two men – holding on to the driver’s door, which photographs indicate was severed from the rest of the vehicle;
• a witness provided, at the scene of the collision, a handwritten statement to police indicating that she saw Mr. Curry on the driver side and Amell on the passenger side;
• according to a collision investigator’s testimony, Mr. Curry's injuries were more consistent with a front seat occupant of a vehicle involved in a front-end collision whereas Amell’s were more consistent with a rear seat occupant;
• the collision investigator could not agree that the respondent could have suffered a broken ankle as a rear seat passenger in the van;
• whereas the driver’s door was severed from the vehicle, allowing for egress, photographs indicated that an exit through either of the van’s sliding passenger doors would have been difficult or impossible;
• the scene of the collision was less than five kilometres from the location of the party where the respondent was seen driving the van, or approximately four minutes away if traveling at a reasonable speed, leaving very little (if any) opportunity for the driver and rear-seat passenger to switch places; and
• Mr. Curry suffered more severe burns than Amell, consistent with a front seat passenger involved in a fire starting in the front of the vehicle and spreading toward the back, as indicated by the eyewitness evidence. R. v. Curry, 2014 ONCA 174