Care and Control of a Stationary Motor Vehicle: Part 1
Under section 253(1) of
the Criminal Code, every one commits
an offence who operates a motor vehicle or has care or control of a motor
vehicle
a)
while the person’s ability to operate the vehicle is impaired by alcohol or
drug; or
(b)
having a blood-alcohol concentration that exceeds 80 mg of alcohol per 100 ml
of blood.
The risk of danger is an
essential element of “care or control” under s. 253(1) of the Code. Accordingly, conduct that presents no such risk falls outside the
intended reach of the offence.
R. v. Boudreault, 2012 SCC 56 (CanLII), at para. 10 & 32.
Proving Care and Control
The Crown may prove “care or
control” three ways:
1. prove that
the accused was driving and thus necessarily in care or control;
2. that the accused occupied the driver’s seat of
the vehicle triggering the s. 258(1)(a) presumption of care or control subject
to rebuttal by the defence;
3. that the accused had care or control of the
vehicle in circumstances that posed a risk of danger
If any of the above three prongs
are met, the accused will be found to be in care and control of a motor
vehicle.
The Statutory Presumption of Care and Control
An intention to set
the vehicle in motion suffices in itself to create the risk of danger
contemplated by the offence. [FN1]
Section 258(1)(a) of the Code provides a presumption that an
accused who occupies the driver’s seat of a motor vehicle is in care or control
of that vehicle (as he is presumed to have an intention to drive).
Rebutting the Statutory Presumption of Care and Control
That presumption may be
rebutted if the accused establishes on a balance of probabilities that he did not
occupy that seat for the purpose of setting the vehicle in motion.
See
R. v. Smits, 2012 ONCA 524 (CanLII), at para. 47.
The relevant timeframe for
consideration of the accused’s intention is the time when the accused first
entered and occupied the driver’s seat. [However, an accused who initially enters the
vehicle with no intention to drive, could change his mind. If there is evidence
of a realistic risk of this occurring, this too can ground liability].
R.
v. Hatfield (1997), 33. O.R. (3d) 350
at para. 19: “Where an intoxicated person is discovered occupying the driver's
seat of a vehicle, the presumption will apply unless the person can demonstrate
that his or her occupancy began without the purpose of setting the vehicle in
motion.”; See also, R v Miller, [2002], OJ No
4896,(QL)(SCJ) at paras 21
to 29 aff’g [2004], OJ
No 1464 (QL)(Ont CA); R
v Maslek, [2004] OJ
No 2770 (SCJ).
Rebutting the presumption
does not afford a complete defence to the charge. Where the presumption
is rebutted, the burden of proof shifts back to the prosecution to establish
actual care or control beyond a reasonable doubt without the evidentiary aid provided
by the 258(1)(a) presumption.
Although the presumption
may be rebutted by proof of the absence of the requisite intention, the risk of
danger remains relevant for the purpose of determining whether the accused’s
conduct in relation to the vehicle presents a realistic risk of danger to
persons or property so as to establish care or control under s. 253(1) of the Code:
R.
v. Boudreault, at para. 41; R. v. O'Neill, 2016 ONCA 307, at para.
10.
What constitutes a realistic risk of danger?
In the absence of a
contemporaneous intention to drive, a realistic risk of danger may arise in at
least three ways.
1.
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;
2.
an
inebriated person behind the wheel may unintentionally set the vehicle in
motion;
3.
through
negligence, bad judgment or otherwise, a stationary or inoperable vehicle may
endanger persons or property.
R.
v. Boudreault, at para. 42.
The risk of danger must be
a realistic risk, not a speculative risk, although not necessarily a serious or
probable or substantial risk either.
R.
v. Boudreault, at paras. 34-35.
Factors to Consider
The issue of whether there
is a realistic risk of danger is a question of fact and is to be determined by
the trial judge after examining all the relevant evidence and after considering
a number of factors.
R.
v. Boudreault, paras. 11 & 50.
In short, the trier of
fact must examine the facts and determine if a real risk of danger exists. Assessing the risk may
require the court to consider a variety of factual pieces.
In R. v. Szymanski, 2009 CanLII 45328 (ON SC), Durno J. provides a very useful, non-exhaustive list of
factors a court might look at when engaging in a risk of danger analysis on the
basis of circumstantial evidence [FN2]:
a) The level of impairment, which is relevant to the
likelihood of exercising bad judgment and the time it would take for the
accused to become fit to drive;
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;
e) Whether the accused had reached his or her destination or
if the accused was still required to travel to his or her destination;
f) The accused's disposition and attitude;
g) Whether the accused drove the vehicle to the location
where it was found;
h) Whether the accused started driving after drinking and
pulled over to "sleep it off" or started using the vehicle for
purposes other than driving;
i) Whether the accused had a plan to get home that did not
involve driving while impaired or 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.
The question the court
must determine is whether any realistic risk of danger was created, not whether
the accused had done “all that could be done to reduce the risk”.
R. v.
Balogun-Jubril, 2016 ONCA 199, at para. 12.
A realistic risk that the
vehicle will be set in motion obviously constitutes a realistic risk of danger.
R. v. Boudreault, para. 41.
However, danger can come in many forms. The offence does not require that the vehicle be moved to
create a risk of danger.
R.
v. Wren, 2000 CanLII 5674 (ON CA), at para. 14.
This will be taken
up in more detail in Part II of this blog entry.
Criminal Code
Operation while impaired
253 (1) Every one commits an offence who operates a motor
vehicle or vessel or operates or assists in the operation of an aircraft or of
railway equipment or has the care or control of a motor vehicle, vessel,
aircraft or railway equipment, whether it is in motion or not,
(a) while
the person’s ability to operate the vehicle, vessel, aircraft or railway
equipment is impaired by alcohol or a drug; or
(b) having
consumed alcohol in such a quantity that the concentration in the person’s
blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
Proceedings under section 255
s. 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.
[FN1]: Where the presumption
under s. 258(1)(a) is not rebutted, the Crown is not required to prove a
realistic risk of danger because that risk is embedded in the presumption: R. v. Blair, 2014 ONSC 5327 (CanLII), 2014 ONSC 5327 (Ont. S.C.J.), Trotter J; see also R.
v Gulak, 2017 ONSC 3576 (CanLII).
[FN2]: Approved by the ONCA in R. v. Smits, 2012 ONCA 524 (CanLII).
Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca
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