Care or Control – Impaired Driving & Over 80 – DUI Criminal Lawyer

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Blog by Everstone Law Professional Corporation

A common misunderstanding that the public believes is that if a person is found to occupy a driver’s seat of a motor vehicle, while being impaired by alcohol/drugs, or whose blood alcohol level exceeded the legal limit, and if this person did not actually operate the motor vehicle, that he/she did not commit any Criminal Code offence.

People often assume that operate only means driving, whereby they believe that it is only a Criminal code offence if the person actually drinks and drives.

The reader will come to see, the legal definition of operate is broad.

Before going any further, it is important to highlight that due to recent amendments, impaired driving offences are now categorized under section 320.14 of the Criminal Code as offences related to Conveyances.

The word Conveyance is defined under the Criminal Code as a motor vehicle, an aircraft, or railway equipment. The blog is only concerned with conveyances related to motor vehicles.

What exactly does operate a conveyance mean?

Under section 320.11 of the Criminal Code there are three definitions for operate, each in relation to the type of conveyance, either a motor vehicle, vessel, or railway equipment. For the purposes of this blog, only the definition pertaining to a motor vehicle will be highlighted.

Operate in respect of a motor vehicle means, to drive it, or to have care or control of it.

The reader can see from this definition that if a person, while either impaired by alcohol/drugs, or whose blood alcohol level exceeded the legal limit, even while not actually driving the motor vehicle, can still be found to be in operation of a motor vehicle if they are found to be in care or control of a motor vehicle.

What is Care or Control?

The test for care or control was defined by the Supreme Court of Canada in the case of R v Bouderault, 2012 SCC 56, at para.9, where Justice Fish articulated that care or control is:

(1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property.

The reader can see that care or control of a motor vehicle depends on the circumstances of the offence that create a realistic risk of danger to person or property.

What factors do the court consider when determining whether there is realistic risk of danger?

In the case of R v Bouderault, 0 2012 SCC 56, Justice Fish at para.41 articulated that:

a realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control.  On the other hand, an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion — without intending at that moment to do so — may nevertheless present a realistic risk of danger.

The reader might be wondering, what if the person had no intention to put the vehicle in motion, then how do the courts determine a realistic risk of danger to persons or property?

The answer to this question was provided by Justice Silverstein at the Ontario Court of Justice. The court outlined several non-exhaustive factors that have been considered in the past when determining realistic risk of danger when an intention to put the vehicle in motion is absent. In, R v. Osbourne, 2021 ONCJ 58, Justice Silverstein outlined several factors at para. 32, including but not limited to:

  • The accused’s level of impairment;
  • Whether the keys were in the ignition or readily available to be placed in the ignition;
  • Whether the vehicle was running;
  • The location of the vehicle, whether it was on the side of a major highway or in a parking lot;
  • Whether the accused had reached his or her destination or if they were still required to travel to their destination;
  • The accused's disposition and attitude;
  • Whether the accused drove the vehicle to the location of drinking;
  • Whether the accused started driving after drinking and pulled over to "sleep it off" or started out using the vehicle for purposes other than driving;
  • Whether the accused had a plan to get home that did not involve driving while he or she was impaired or not over the legal limit;
  • Whether the accused had a stated intention to resume driving;
  • Whether the accused was seated in the driver's seat regardless of the applicability of the presumption.

Is there a presumption of Operation of a Conveyance in Canadian Law?

Pursuant to s.320.35 of the Criminal Code, the law creates a presumption of operation. This section reads that:

In proceedings in respect of an offence under section 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.

The burden is on the accused to satisfy the court on a balance of probabilities that he/she did not occupy the seat, or position ordinarily occupied by a person who operates a conveyance, for the purpose of setting the conveyance (motor vehicle) in motion.

The reader can see that defending impaired driving related offences is very technical and requires expertise from a DUI Criminal Defence Lawyer to advocate a defence on your behalf.

If you have been charged with Impaired Driving (DUI) and/or Over 80 and/or Refusal to Provide Sample, you may have a defence available depending on the facts of the case. Every case is different and requires tailored solutions.

Contact an experienced Criminal Defence Lawyer today at  (905) 230-4529  and book your consultation. As a Criminal Lawyer Mississauga, I will defend your case and fight for you to ensure that you obtain the best possible outcome in light of the facts of the case.

DISCLAIMER:The content provided is for Informational purposes only. Nothing shall be construed on this web page as providing legal advice nor does it form a Solicitor-Client relationship. Readers should verify the source of the information and obtain legal advice before relying or acting upon it.