Written By: Ravi Prithipaul (Criminal Defence Lawyer)
We all know that driving a motor vehicle while under the influence of alcohol or drugs is dangerous and against the law. What is less well known is that the criminal law forbids people from interacting with their vehicles, whether or not they are in motion, indeed whether or not they are capable of being set in motion, in such a way that creates danger. In short, the criminal law prohibits “care or control” of a conveyance while under the intoxicating effects of alcohol and drugs.
The concept of care or control often seems counter intuitive and it has proven surprisingly difficult to apply. Two of the earliest and most notable Supreme Court of Canada cases on the subject offer illustrations. The accused in Ford v. The Queen, 1982 CanLII 16 (SCC), [1982] 1 SCR 231, was found intoxicated in the driver’s seat of his car. The car was in a field, stationary, and there were five or six occupants. A number of other vehicles were nearby. The accused had arranged for another person to drive him home after the party. During the course of the night, the accused had entered and exited his vehicle a number of times and started the engine to keep warm. When the police arrived, the engine was not running.
Mr. Ford did not intend to drive. Nonetheless, a majority of the Supreme Court of Canada ruled that he was guilty and that an intention to drive was not an essential element of care or control. That ruling may appear harsh. Not only did Ford have no intention to drive, the car was in a field some distance from the nearest road, the mere act of turning the engine on did not necessarily create a risk of putting the car in motion, and Ford had arranged for a sober ride home.
About three years later, the Supreme Court returned to the topic of care or control in The Queen v. Toews, 1985 CanLII 46 (SCC), [1985] 2 SCR 119. Mr. Toews was asleep in a sleeping bag on the front seat of a truck with his head by the passenger door. The truck was parked on private property. The ignition key was on and the stereo blaring but the truck was not running and the lights were off. There was no evidence as to who had put the key in the ignition but the truck had been last driven by one of the accused’s friends.
On these facts, the Supreme Court concluded that care or control had not been proven. The Toews ruling states that acts of care or control, short of driving, involve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion.
Since Toews was decided, a plethora of cases was decided that seems to lead to divergent results. In some situations, sleeping motorists were convicted, while in others, they were found not guilty. It was held that danger did not require a risk that the vehicle be set in motion, but could arise, for example, if an intoxicated motorist was seated in a broken down vehicle on a road creating a hazard for other drivers.
The confusion stems, in part, from a legal presumption that helps the Crown prove care or control. Section 320.35 of the Criminal Code states that a person who occupies the driver’s seat or position is deemed to have care or control of the motor vehicle. Once the police observe an individual in the driver’s seat, that person is deemed to have care or control of the vehicle in question. However, the presumption can be rebutted by evidence tending to show that the occupant did not have an intention of setting the vehicle in motion.
Proof that one did not intend to drive rebuts the presumption of care or control, but care or control can still be proven. As the Ford case shows, a person who does not have any intention of driving can nonetheless be held criminally responsible if she or he had “de facto” or actual care or control. Put differently, while an intention not to drive may rebut the presumption, care or control does not require proof of an intention to drive. Mr. Ford engaged in risky conduct so he was guilty even though he had arranged for a sober driver.
What about a situation where the occupant of the vehicle had an innocent purpose? To return to the title of this article, is the owner of a vehicle guilty if he or she sat in the driver’s seat solely to listen to the car stereo? Let’s say the key is in the ignition but the engine is off and the person’s intention is not to drive but rather to spend the night in a nearby residence. Another more recent Supreme Court of Canada decision, R. v. Boudreault, 2012 SCC 56 (CanLII), [2012] 3 SCR 157, provides guidance:
- The risk of danger must be realistic and not just theoretically possible: Smits, at para. 60. But nor need the risk be probable, or even serious or substantial.
- To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention to prevent a danger to public safety. To require only that the risk be “theoretically possible” is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct.
According to the Boudreault judgment, a settled course of action that involves no intention to move the vehicle nor creates any realistic risk of danger negates the care or control offence:
- The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger. Likewise, use of the vehicle for a manifestly innocent purpose should not attract the stigma of a criminal conviction. As Lamer C.J. observed in Penno, “The law … is not deprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to drive is impaired in a motor vehicle” (p. 877).
A pre-Boudreault decision is consistent with this framework. In R. v. Yakobchuk, 2005 ABPC 189, a driver who occupied his motor vehicle for the innocent and sole purpose of listening to music was found guilty of impaired care or control.
In reality, these cases turn on their own facts. An intoxicated person may “just” be listening to music in his or her vehicle, but still be posing a danger to others. As you can see, driving and care or control under the influence of alcohol or drugs can involve complex legal considerations. If you are charged with one of these offences, contact Mr. Ravi Prithipaul, Q.C. for legal advice.
