Today, the Supreme Court of Canada released the decision of R. v. Boudreault, 2012 SCC 56. Justices LeBel, Deschamps, Fish, Abel, Moldaver and Karakatsanis JJ. concurring in reasons and Cromwell J. dissenting. The case sets out the law in Canada for what it means to be in care and control of a motor vehicle if one is impaired at the time.

Sleeping with no intention to drive.  Is that care and control?

In this case, the accused was found falling asleep in the driver’s seat. More specifically, the accused requested someone call a taxi for him after a night of drinking. While waiting for the taxi, he started the engine, turned on the heat, and fell asleep. It was a cold February evening. When the taxi arrived, the driver called police and he was subsequently charged with having care or control of a motor vehicle (1) while his ability was impaired by alcohol and (2) with more than 80 mg of alcohol in 100 mL of his blood, contrary to ss. 253(1)(a) and (b) of the Criminal Code.

At trial, he was acquitted on both counts.  However, the Court of Appeal allowed the Crown’s appeal, and set aside the acquittals and entered convictions.  The question the Supreme Court was required to determine is whether or not this is care and control of a vehicle, and to answer the question of whether a risk of danger is an essential element of the offence.

What does care and control of a motor vehicle mean under Canadian law?

The Supreme Court found that in order for a person to be in “care or control” of a vehicle, as defined by s. 253(1) of the Criminal Code, there elements of the offence include:

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 of danger to persons or property.

What is interesting about the third component is that up to this point, there has been considerable controversy over whether such an element existed and therefore required to be proven by the Crown. The analysis would be fact driven and the Crown would have to prove that  “the risk of danger must be realistic and not just theoretically possible.”    The Supreme Court was very quick to point out that this is not something any person can rely on.   They held that “in the absence of evidence to the contrary, a realistic risk of danger will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion.”  In effect, it places a burden on the defence to adduce evidence to prove that there was no realistic risk of danger that the judge can then consider among all other factors.

The Supreme Court overturned the conviction entered by the Court of Appeal and restored the acquittal entered by the trial judge.

In the legal analysis, the Court followed a line of authority from the provincial courts including:  R. v. Wren(2000), 47 O.R. (3d) 544, leave to appeal refused,

[2000] 2 S.C.R. xii (and again, more recently, in R. v. Smits, 2012 ONCA 524, 294 O.A.C. 355); R. v. Decker, 2002 NFCA 9, 209 Nfld. & P.E.I.R. 44, leave to appeal refused, [2002] 4 S.C.R. vii; R. v. Burbella, 2002 MBCA 105, 166 Man. R. (2d) 198; R. v. Shuparski, 2003 SKCA 22, [2003] 6 W.W.R. 428, leave to appeal refused, [2003] 2 S.C.R. x; R. v. Mallery, 2008 NBCA 18, 327 N.B.R. (2d) 130.

In arguing against defences of this type, the Crown will likley rely upon paragraphs 34 t0 25 that states:

[34]   The risk of danger must be realistic and not just theoretically possible: Smits, at para. 60. But nor need the risk be probable, or even serious or substantial.

[35]   To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention to prevent a danger to public safety. To require only that the risk be “theoretically possible” is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct.

So although the threshold is low for the Crown, and as indicated above, prima facie the case, it does open the door up to defence lawyers to argue that there was no realistic chance of harm.  Examples might therefore include: stuck in a snow drift and trying to get warm, a vehicle that is not operable, strong evidence to suggest no intention to drive and safety mechanisms to ensure that, being found in the passenger seat, etc.

Thinking of it another way: “an accused found in the driver’s seat will be presumed, as a matter of law, to have care or control of the vehicle, unless the accused satisfies the court that he or she had no intention to drive — an intention that, pursuant to Ford, is not an essential element of the offence.”

This is a very important decision to those defence lawyers, like myself, who routinely defend individuals charged with being in care and control of a vehicle while impaired and/or over the legal limit.