Understand the Nuances of “Care and Control” DUI in Canada
Let's say you enjoyed five or more shots of a potent cordial to close out a fun Saturday night of partying with friends at your favourite Greater Toronto Area bar. You know you've had way too much to drink and cannot take the risk of getting stopped by police for impaired driving if you drive home. It's late, you're tired, you spent way too much on drinks, and you're not about to pony up 50 bucks for an Uber to get you home and then back to your car the next day. So, you do the right thing by hopping into your legally parked car and immediately falling into a deep sleep….
Only to be woken up several hours later by Ontario police, who demand a roadside alcohol breath screening sample after asking a few cursory questions about your identity, destination, and how much you've had to drink. Then, whether you provide the sample or not, they place you under arrest for DUI.
Wait, what? Surely this is a mistake. You were doing the right thing. You were sound asleep, not driving. How, then, can the police arrest you for DUI?
"They can and they will," says TorontoDUI criminal defence lawyer Robbie Tsang, "under what's known as 'care and control' DUI in Canada's Criminal Code. So, the more essential question is, 'Can you successfully fight the charge in court.'"
Robbie's criminal defence partner, Jeff Mass, responds, "That depends on numerous factors because the law and court precedents are nuanced in what constitutes 'care and control.' A skilled DUI defence lawyer can often successfully work with those nuances to secure dropped charges, dismissals, reduced charges, and acquittals for their clients."
Let's examine these legal nuances about care and control DUI and review other elements of this often-misunderstood element of Canadian impaired driving laws.
Care and Control DUI as Defined by the Criminal Code
Canada's Criminal Code doesn't distinctly define care and control DUI as an offence. Instead, Section 320.11 of the Code defines "operate" to mean "in respect of a motor vehicle, to drive it or to have care or control of it." Thus, every reference concerning "operate" within Sections 320.14 to 3204 of the Code means "drive or have care and control of" a motor vehicle.
Section 320.35 of the Code elaborates on what care and control might mean in context with the law as:
"In proceedings in respect [of a DUI offence within the Code], if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates the conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purposes of setting the conveyance in motion."
"This might suggest that a sleeping impaired occupant of a car can easily overcome a care and control DUI charge in court," says Robbie Tsang. "However, it's not so simple, as precedent-setting cases have raised nuances about how courts should interpret care and control."
Higher Courts Wrestle with Elements of Care and Control
Higher courts have ruled on numerous care and control cases on appeal due to the law's relative vagueness, conflicts with Charter Rights, and legal interpretation issues. In R v. Toews [1985] 2 SCR 119 , the Supreme Court of Canada established that being in a vehicle while impaired does not automatically constitute care and control unless there is a realistic risk that the vehicle can be put into motion.
Three years later, the high court ruled in R v. Whyte [1988] 2 SCR 3 determined that the law conflicts with the Charter Right presumption of innocence by requiring the defendant to disprove care and control. However, it deemed this justifiable under Section 1 of the Charter due to the law's public safety objective. In making its ruling, justices determined that care and control do not require absolute proof of any intent to drive but, more importantly, must demonstrate a realistic risk to public safety.
In R v. Boudreault [2012] 3 SCR 157 , the Supreme Court clarified that care and control court decisions should be made on a case-by-case analysis of the risks posed. In its ruling, the court said care and control requires three elements to be applicable under the law:
- "An intentional course of conduct associated with a motor vehicle;"
- "By a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit'"
- "In circumstances that create a realistic risk of danger to persons or property."
The justices focused their decision on risk, emphasizing that it must be "realistic" and not just theoretical. They agreed that a realistic risk could arise absent intentions not to drive because an inebriated person may be prone to changing their mind or could accidentally put a parked vehicle in motion. Thus, they suggested that the realistic risk element is usually present when an impaired person is found behind the wheel of a parked car unless the defendant can provide "credible and reliable evidence" proving a lack of realistic risk in context with their specific circumstances. While the Crown does not need to prove an intent to drive, defendants can raise a defence based on lacking the intent to drive if supported by evidence.
So, What Does This Mean for Those Charged with Care and Control DUI?
Using our theoretical arrest that began this article, the specifics of your actions before and during your drunken slumber in the car can dictate the likelihood of successfully challenging the care and control DUI charges. If the engine was on and you were in the driver's seat, you face a much steeper challenge than if you were in a passenger seat and the keys were not in the ignition.
In many cases, Ontario police arrest those found impaired in a car based on even the slightest evidence suggesting they could possibly put the car in motion—arrest now; figure out if the charges will stick later. Factors that may reduce the likelihood of an arrest or eventual conviction include:
- Being in a passenger seat.
- Inhibiting access to the ignition key or fob (locked in the glove box or trunk).
- Having arranged alternative transportation (that may not have arrived yet).
- Clearly stating that you had not been driving and had no intentions to drive.
From a defence lawyer's perspective, successfully challenging a care and control DUI usually comes down to raising "reasonable doubts" about the defendant's intent to drive and how easily they could've put the vehicle in motion. To secure a conviction, the Crown must prove all elements of their case "beyond a reasonable doubt." In many care and control DUI cases, this is a high bar to clear.
Arrested for Care and Control DUI in the GTA?—Consult TorontoDUI
If Ontario police charge you with care and control DUI or any impaired driving offence in the Greater Toronto Area, secure the services of an expert criminal defence DUI lawyer like those at TorontoDUI. With a 15-plus-year record of successfully defending thousands of Toronto-area clients arrested for DUI, contact TorontoDUI for a free consultation.
