Care or Control While Impaired

Criminal Law

The presumption of care or control

There is first a rebuttable presumption of care or control when it is shown that the accused was seated in the position ordinarily occupied by the driver (s. 320.35 Cr.C.). The individual may also be supervising the vehicle, be responsible for the vehicle, or be managing the vehicle.

This presumption can be rebutted by proof that the person did not intend to set the vehicle in motion. This is described notably in cases where the accused was found asleep at the wheel, with the key in the ignition or nearby. Absence of intent to drive or start the vehicle helps rebut the presumption, but is not in itself a complete defence. Indeed, the Crown may still attempt to prove guilt through the realistic risk of danger the situation posed. Here’s how:

Realistic risk of danger and factual criteria

The « realistic risk of danger » arises from three sources (R. v. Boudreault, 2012 SCC 56):

• a change of mind and taking the wheel;
• the vehicle being unintentionally set in motion; or
• the vehicle being stationary or inoperable but liable to become dangerous.

The degree of risk depends on factors including the level to which the accused’s faculties were impaired by alcohol or drugs, the presence and position of the keys, whether the engine was running, the vehicle’s location, the intended destination, the accused’s behaviour, and whether they had driven the vehicle to the location where they were found.

The Crown may thus argue that the accused being found behind the wheel implies a risk that they might set the vehicle in motion, and thus that they had care or control of it, even if the accused’s intention was not to drive.

Some case law examples

The fact that an accused is found asleep in the driver’s seat with the engine off, but with the keys in the « accessory » position in the ignition, may be sufficient to conclude care or control. This is because of the possibility that the accused could set the vehicle in motion, along with the underlying risk of an accident. Even when the accused is found outside the vehicle, with the keys nearby, they may still be found guilty because they remain responsible for the parked vehicle and have no safe plan to get home.

The value of a good lawyer

Your lawyer could help you rebut this presumption by invoking facts relevant to your case, such as having called a taxi and a tow truck after leaving the road, for example.

Having a concrete, reliable alternative transportation plan is indeed key to proving the absence of a realistic risk of danger, and thus the innocence of an accused, in such circumstances. This can include a taxi ride home, walking home, or nearby lodging.

With a genuinely credible plan, using the vehicle for a « manifestly innocent » purpose — such as sleeping, waiting for someone, or seeking shelter — would not normally lead to a conviction: no realistic risk would be established, and the accused, if properly represented, should normally be acquitted.