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What is ‘care and control’ of a motor vehicle?

Drunk driver asleep at the wheel. Stock photo by Getty Images

Impaired driving isn’t as simple a term as it sounds. In fact, you can be charged and convicted for it without actually doing any driving.

There’s a realm of impaired driving offences that’s seen drivers charged while simply sitting in a car with the engine on, having a cigarette or, in one landmark case, actually asleep. But they were still considered to have “care and control” of the vehicle in question.

Section 253 of the Criminal Code says anyone occupying the driver’s seat of a motor vehicle (including a boat, train, or plane) is assumed to have care and control of the vehicle and, if they’re legally drunk, they’re operating it while impaired.

In 2012, a significant Supreme Court of Canada case clarified the law, essentially setting a test for establishing care and control.

In R. v. Boudreault, a Quebec driver was appealing his conviction under s. 253 after he fell asleep behind the wheel while waiting for a cab to pick him up. He was acquitted at trial, lost a Crown appeal and finally won out in the Supreme Court.

In its decision, the court spelled out the equation for care and control: 

  • an intentional course of action related to the vehicle;
  • by an impaired individual;
  • in circumstances that create a realistic risk of danger to persons or property.

The ruling established a low threshold for what risk means, but said it must be realistic instead of just “theoretically possible.”

That said, a drunk person behind the wheel automatically creates some measure of risk, since they could change their mind or inadvertently put the car into motion. That also means that intention isn’t a valid defence; it doesn’t matter if you weren’t planning to drive while impaired.

“Anyone found inebriated and behind the wheel with a present ability to drive will — and should — almost invariably be convicted,” said Justice Morris Fish.

That doesn’t mean an automatic conviction, though. A defendant can still get off if they can somehow show they presented no realistic risk. In Boudreault’s case, the court was satisfied because he’d called a cab himself and was unconscious in a parked car.

In a 2015 case, R. v. Levy, an Ontario woman escaped conviction when judges were satisfied she was only in the car to keep warm while she smoked a cigarette, but had plans to stay at a friend’s place instead of driving home drunk.

One defence that won’t fly is arguing that you were too drunk to assume care and control. The Supreme Court rejected that circular argument in a 1990 case, R. v. Penno.

There’s also an exception criteria of being in the driver’s seat; a passenger can be charged with drunk driving as well. In graduated licencing programs, novice drivers require a more experienced driver sit up front and supervise them, and that person is considered to have care and control.

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