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There is a common misconception by many motorists that if they “do the right thing” and try to “sleep it off” either in the parking lot or at the roadside that they are immune from prosecution. Unfortunately, this is not the case because it is also considered a crime to be “in care and control” of a vehicle either when impaired or over 80.

DUI Over 80 & Impaired Questions


What constitutes

“care and control”?


The law recognizes two instances of care and control:

There is a common misconception by many motorists that if they “do the right thing” and try to “sleep it off” either in the parking lot or at the roadside that they are immune from prosecution. Unfortunately, this is not the case because it is also considered a crime to be “in care and control” of a vehicle either when impaired or over 80.
1. Presumed care and Control:
Section 258(1)(a) of the Criminal Code states:
(1) In any proceedings under s.255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3),
(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;
 Section 258(1)(a) allows the Crown to prove that the accused was in "care or control" of a motor vehicle by adducing evidence that the accused occupied the seat ordinarily occupied by the driver of the vehicle.  Unless the accused can rebut the presumption by establishing that he or she did not occupy the seat for the purpose of setting the vehicle in motion, he or she will be found to have had care or control of the vehicle.
Generally, in order to rebut this presumption the accused will need to establish that he did not enter the vehicle for the purpose of setting it in motion. Normally, he’ll have to testify to do so and lead evidence of an alternate intention such as waiting for a friend to pick him up or using the vehicle for warmth until some alternate means of transport is available such as a bus or taxi.   
2. De Facto Care and Control:
Even though an accused may be able to rebut the presumption of care and control he must also show that there was no possibility that he could otherwise have accidentally or unintentionally set the vehicle in motion. This generally arises in circumstances where the accused is found asleep in the vehicle and it is either turned on or running, perhaps for warmth on a cold winter evening. What must be established by the defence in such a case is that the accused had either made alternate travel plans and/or that there was a specific series of acts required to engage the transmission that couldn’t have occurred accidentally, such as simultaneously depressing the brake and then putting the car into gear. Alternately, in the event of an accident in a remote locale where the accused’s car is inoperable he may argue that despite any evidence that he intended to drive there simply wasn’t any danger that could occur.  



(a) No Risk of Danger: 

The most important recent decision from the Supreme Court of Canada on point is R. v. Boudreault 2012 SCC 56 (CanLII) 

After a night of heavy drinking, the accused asked his friend to call him a taxi. Having been obliged to leave his friend’s house, the accused decided to wait inside his car for the taxi to arrive. It was a cold winter evening. The accused started his engine in order to turn on his heater, but had no intention of putting the car in motion. He then fell asleep. The taxi driver arrived and, finding the accused asleep at the wheel of his vehicle, called the police. The accused was arrested and charged with having care or control of a motor vehicle. 

The Crown contended that a risk of danger is not an essential element of care or control under s. 253(1) of the Code. It argued that, even where the presumption of care or control under s. 258(1)(a) is not engaged, the Crown need only prove voluntary consumption of alcohol beyond the legal limit (or leading to impairment) and "some use of the car or its fittings and equipment". Accordingly, in the Crown's submission, an inebriated accused found behind the wheel of a car, with the key in the ignition and the motor running, is subject to automatic conviction. 


Speaking for the majority of the court, Justice Fish disagreed and authoritatively held that a risk of danger is a fact that the Crown must prove. Justice Fish explained however that to avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. 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….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". 

Boudreault was accordingly acquitted.

(b) The Alternate Plan Defence:  
The leading case regarding the “alternate plan” is Hannemann [2001] O.J. No. 1686. There Hannemann was found by police sleeping in the front seat of his car. The ignition was running but the parking brake was on. He admitted being impaired but argued that he had made arrangements to be picked up the next morning and had decided to sleep in his car. Hannemann testified that he turned on the ignition for warmth. His conviction at trial was overturned on appeal on the basis that there was no risk that the vehicle would accidentally be put in motion. As Justice Hill aptly observed:
“The appellant's shoes were off and he was asleep when discovered by Constable Perry. The parking lot was empty. As found by the Trial Judge, a definite plan existed for the appellant to be picked up in that very parking lot. There was no question of a change of mind about driving. As to risk of unintentionally putting the vehicle in motion, while the keys were in the ignition and the engine was running, the appellant was restrained by a seatbelt, and there was evidence that deliberate acts were required to unlock the park mode of the automatic transmission to engage the car into another gear. Unlike the situation in Burton, the appellant's foot was not on the brake pedal - a necessary step in the sequence of starting Mr. Burton's truck. As well, and in any event, the engaged parking brake here would not permit the car to move even when in gear with acceleration. On these facts, there was affirmative evidence suggesting the absence of risk of the vehicle being accidentally or negligently set in motion. As well, at least to some extent, Dr. Le's testimony suggests that the appellant, at a 130 reading, was not motor control handicapped whatever his impairment to drive a vehicle. The Trial Court did not address this significant and particularized evidence. Crown counsel on appeal was unable to suggest how the car could accidentally be set in motion except to suggest, in a speculative way, that the appellant could, in an intoxicated sleep, have further moved fittings of his vehicle, presumably the gear-shift and the parking brake…..”
(c) The Inoperable Vehicle Defence
The authoritative decision regarding the “inoperable” car scenario is Wren 2000 CanLII 5674. There the Ontario Court of Appeal considered the following situation: The respondent was acquitted of charges under s. 253 of the Criminal Code, that he was impaired and that his blood alcohol level was over .08 while he had the care or control of a motor vehicle. His acquittal was upheld on summary conviction appeal. There is no dispute that when the police came to the accident scene and found the respondent in the driver's seat of his car, 1) the respondent was impaired, 2) the car was inoperable because of damage and immovable because of its location in a ditch, and 3) the respondent did not intend to drive. The respondent had earlier tried to move the car but once he determined that it was immovable he called a tow truck. He got into the car to keep warm. The respondent was acquitted by the trial judge because "the vehicle was incapable of representing any danger to which [s.] 253 is addressed."
On these facts the Court dismissed the Crown’s appeal and upheld the acquittal at trial on the following basis:
“I agree with the summary conviction appeal judge that the trial judge's conclusions were sup-ported by the evidence and that he made no error in applying the law to the facts. As has been stated many times, all of the circumstances of the case must be considered in determining the issue of care or control in any particular case. Although it may have been open for the Crown to assert and establish the existence of some other potential danger and acts of the respondent which established that he might have triggered that danger, that was not the case presented to the trial court.
It was open for the trial court to find that when the police found the respondent, although he was impaired and had not relinquished custody of his vehicle, he did not meet the test for the actus reus of care or control set out in Ford and Toews, modified in accordance with the explanation in Vansickle:
            performance of some act or series of acts which involve some use of the car or its fittings or equipment, or some course of conduct associated with the vehicle which would involve the risk of putting the vehicle in motion or in some other way to become dangerous, which is what the section is designed to prevent.”

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