Stuart O'Connell Criminal Law Blog

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...

  It is not necessary that a person show signs of impairment to found a basis for making a roadside breath demand. Nor is it necessary that a police officer suspect the person is committing a crime. All that is required is that the police officer making the demand has reasonable grounds to suspect that a person has alcohol in their body. See   s. 254(2) of the Criminal Code ; R. v. Schouten, 2016 ONCA 872 at para 26. Reasonable suspicion must be assessed against the totality of the , circumstances.  R. v. Chehil , 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 29 The standard of “reasonable grounds to suspect” involves possibilities, not probabilities: R. v. Williams , 2013 ONCA 772, at para. 22, citing R. v. MacKenzie , 2013 SCC 50 at para. 38; R. v. Chehil , at para. 27; R. v. Kang-Brown , 2008 SCC 18, [2008] 1 S.C.R. 456, at para 75. In R. v. Schouten , 2016 ONCA 872, the absence of the indicia of impairment even when combined with the fact that the ...