Establishing Care and Control of Motor Vehicle (Realistic Risk of Danger)


Presumption of Care & Control

Section 258(1)(a) of the Code provides that an accused person who is found occupying the driver’s seat of a vehicle is presumed to be in care and control of the vehicle unless the person establishes that he did not occupy the seat for the purpose of setting the vehicle in motion.  If the accused rebuts this presumption, the onus shifts back to the Crown to establish care and control beyond a reasonable doubt.

Criminal Code

258 (1) (a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle…the accused shall be deemed to have had the care or control of the vehicle… unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle…in motion…


Realistic risk is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. 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.

R. v. Boudreault, 2012 SCC 56 (CanLII), [2012] 3 S.C.R. 157, at para 48.



Essential Elements of Care and Control

The leading case on what constitutes care and control is R. v. Boudreault, where the Supreme Court of Canada held that "care or control", within the meaning of section 258(1) of the Criminal Code, signifies

(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.

In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. 

·       an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so;

·       an inebriated person while behind the wheel may unintentionally set the vehicle in motion; and

·       through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

 Realistic Risk of Danger

The existence or not of a realistic risk of danger is a finding of fact:

See R. v. Lockerby, 1999 NSCA 122 (CanLII), 180 N.S.R. (2d) 115, at para. 13.

 The trial judge must examine all of the relevant evidence to this end and may consider a number of factors:

See, e.g., R. v. Szymanski (2009), 2009 CanLII 45328 (ON SC), 88 M.V.R. (5th) 182 (Ont. S.C.J.), at para. 93, per Durno J.; R. v. Ross, 2007 ONCJ 59 (CanLII), 44 M.V.R. (5th) 275, at para. 14, per Duncan J.

The risk of danger must be realistic and not just theoretically possible. But nor need the risk be probable, or even serious or substantial 

R. v. Boudreault, 2012 SCC 56 (CanLII), [2012] S.C.J. No 56 at para. 45.

The determination of whether there was a realistic risk of danger should be determined by considering a number of factors, including those set out in R. v. Szymanski (2009), 2009 CanLII 45328 (ON SC), 88 M.V.R. (5th) 182 (Ont. S.C.J.), where Durno J. provided the following non-exhaustive list (at par. 93):

a) The level of impairment.         

b) Whether the keys were in the ignition or readily available to be placed in the ignition.

c) Whether the vehicle was running.

d) The location of the vehicle, whether it was on the side of a major highway or in a parking lot.

e) Whether the accused had reached his or her destination or if they were still required to travel to their destination.

f) The accused's disposition and attitude.

g) Whether the accused drove the vehicle to the location of drinking.

h) 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. If the accused drove while impaired it might show both continuing care or control, bad judgment regarding fitness to drive and willingness to break the law.

i) 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.

j) Whether the accused had a stated intention to resume driving.

k) Whether the accused was seated in the driver's seat regardless of the applicability of the presumption.

l) Whether the accused was wearing his or her seatbelt.

m) Whether the accused failed to take advantage of alternate means of leaving the scene.

n) Whether the accused had a cell phone with which to make other arrangements and failed to do so.








Comments

Post a Comment

Popular posts from this blog

Warrantless Drug Searches (Section 11(7) of the CDSA)

Were there exigent circumstances? Did the exigent circumstances render it impracticable to obtain a warrant? Section 11(7)   of the Controlled Drugs and Substances Act states: (7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. Subsection (1)   of s. 11 empowers a peace officer to conduct a warranted search of a place for, inter alia , a controlled substance and to seize it. Section 11(7), therefore, empowers a peace officer to conduct a warrantless search for a controlled substance, so long as conditions for obtaining a warrant existed and exigent circumstances made it impracticable for the officer to obtain a warrant. For a warrantless entry into a residence to satisfy section 11(7) , the Crown must show that the entry was compelled by urgency, calling for immediate police action to prese
Read more

Night time Execution of a Search Warrant

Warrants Authorized under the Criminal Code The Criminal Code requires that if a warrant is to be executed at night (after 9:00 p.m., see Criminal Code , s. 2), the night time execution must be justified under the terms of s. 488 of the Criminal Code .    Section 488 of the Criminal Code is not made applicable to warrants and telewarrants issued under the authority of section 11 of the CDSA, which may be executed “at any time”.  R. v. Shivrattan, 2017 ONCA 23; R. v. Saunders , 2003 NLCA 63, 181 C.C.C. (3d) 268, at paras. 27, 31-32, affirmed on other grounds, 2004 SCC 70, [2004] 3 S.C.R. 505; R. v. Dueck , 2005 BCCA 448, 200 C.C.C. (3d) 378, at paras. 17-21; and R. v. Newell , [2007] O.J. No. 2348, at para. 47 (Ont. S.C.). Warrants Authorized under the Controlled Drugs and Substances Act Unlike warrants issued under the Criminal Code , there is no statutory presumption that warrants issued under s. 11 of the CDSA are to be executed before 9:00 p.m. unless night t
Read more

Arrested at Home: Feeney Warrants

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made. See R. v. Landry , 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145 , and Eccles v. Bourque et al. , 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739 ). However, in the 1997 decision of R. v. Feeney , the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.    R. v. Feeney , 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded by enacting sections 529-529.5 of the Criminal Code , which, among other things, creates two distinct authorizatio
Read more