Impaired driving law is a subset of Criminal law. The successful defence of such charges is largely constitutionally based. In such matters, the focus is on the quality of the officer’s investigation with the defence seeking to have the presiding judge rule the client’s breath samples to be inadmissible at trial. While such arguments are typical, they are not the only ones that exist.
One of the more interesting trial issues arises when the officers involved do not see the accused operating the motor vehicle. Such prosecutions arise when officers find the accused in an inebriated state in the vicinity of a stationary vehicle. Most people don’t realize it, but officers routinely lay charges for individuals found sleeping in their vehicles after consuming alcohol. In such files, the accused is charged with being in care or control of a motor vehicle while impaired. While this charge has numerous similarities to impaired operation charges, numerous differences exist.
The Crown must prove the person was in care or control of the vehicle
In such files, the Crown is required to prove beyond a reasonable doubt that the accused was impaired by alcohol. If this is done, the Crown must still prove that the person was in care or control of the vehicle. Should the person be found in the driver’s seat of the conveyance, then care or control is presumed. That said, the client can rebut this presumption by leading evidence that they did not occupy the vehicle for the purpose of putting it into motion.
This is usually accomplished by way of the client testifying that he was using the vehicle for some other purpose, such as a place to sleep. Should the judge be satisfied on a balance of probabilities (more likely than not) that the accused did not occupy the driver’s seat for the purpose of setting the vehicle in motion, then the Crown can still obtain a conviction should it be found that the accused was in de facto care or control of the vehicle.
What is de facto care or control?
De facto care or control (also referred to as actual care or control in the relevant case law) is made out where there are circumstances that create a real risk of danger to persons or property.
Our Supreme Court has found that a realistic risk of danger may arise by way of the accused changing his or her mind and proceeding to drive, or by unintentionally setting the vehicle in motion. The risk may also arise when, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.
How is de facto care or control determined?
In making a determination on this issue, the court will often look at such factors as:
- Whether the car was running
- Whether keys were in the ignition
- The level of intoxication of the occupant
- The quality of the plan possessed by the occupant
- Whether the vehicle had a standard or automatic transmission
- Where the vehicle is situated
- Whether the driver had arrived at his/her destination
It should be noted that the onus falls on the Crown to prove beyond a reasonable doubt that the accused was in de facto care or control. The term ‘beyond a reasonable doubt means that if the judge has even some level of doubt, the client will be found not guilty.
In the event that a conviction arises, the penalties are identical to those of impaired operation of a motor vehicle. Given the complexity of such prosecutions, it is imperative that accused persons retain counsel well versed in the Criminal Code provisions and the relevant case law.