In Canadian criminal law, there are two distinct offences that constitute what is colloquially knows as “drinking and driving”. The two different offences, commonly referred to as “Over 80” and “Impaired” refer to the “drinking” element of drinking and driving. That is, there are two ways the state can prove you have had too much to drink, such that you cannot operate a motor vehicle without breaking the law. Over 80 refers to the amount of alcohol in your system and is tested most commonly with a Breathalyzer machine. Impaired refers to the fact that – despite how much or how little alchohol there is in your system – you ability to operate a motor vehicle is impaired by alcohol (in laymen’s terms: you are drunk). This can be proven through observations by witnesses or on video of the commonly known indicia of impairment.
This article, however, focusses on the other element of “drinking and driving”: what is the legal definition of driving for the purpose of these offences?
The criminal code section that sets out the offences of Over 80 and Impaired defines the “driving” part as such:
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 …
There are two basic ways you can be found to have been “driving”: (a) operating, or (b) care and control.
The act of “operating” a motor vehicle is more straightforward and will not be the focus of this article. When the police follow you along the road and signal for you to pull over, you are going to be found – in all likelihood – to have been “operating” your motor vehicle. This encompasses driving in the traditional sense.
What then of the less obvious “Care and Control”? Not all Canadians realize that they can be arrested, prosecuted, and convicted of Over 80 or Impaired even if they never move their car one inch. Sit down in your car to listen to the radio while impaired? You may be arrested. Sit down in your car to stay warm during the winter while impaired? You may be arrested.
So let us examine how the Criminal Code defines “Care and Control” and how the courts have interpreted and applied the law.
The easiest way to conceptualize the law of Care and Control is to break it up into to categories: The Presumption and The Traditional definitions. The Crown can establish your Care and Control through either one of these definitions.
Fortunate if you are a Crown Attorney, not so fortunate if you are an accused, the law has established a presumption: if you are in the driver’s seat for any reason at any time, the courts will presume you were legally in “care and control” of the car. As a reminder, “care and control” is legally equivalent to driving in the sense that if you are impaired or have a concentration of alcohol in your blood Over 80, you are committed a criminal offence.
The dreaded presumption is set out in section 258(1)(a) as follows:
where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;
Now, thankfully, this is only a presumption and not definitive proof. This means that your defence lawyer has an opportunity to establish, through evidence at trial, that in your particular case, there is another explanation for why you were in the driver’s seat, that had nothing to do with driving the car.
Returning to our examples of sitting in the driver’s seat to turn on the heater and warm up, or to listen to the radio, this is your opportunity to explain your true motivation. An innocent explanation alone will not save you from being found to be in “care and control”, but it may help you clear the first hurdle. If, on a balance of probabilities, the court believes that you were not sitting in the seat to drive, you will have rebutted the presumption successfully.
Now that we have cleared one hurdle and the Crown has failed to prove Care and Control via the presumption, the Crown may seek to prove Care and Control in the traditional sense. The traditional sense does not relate to the fact that you were sitting there with the intent to drive, but with other dangers associated with sitting behind the wheel of a car while inebriated.
The traditional definitions all relate to a “realistic risk of danger”
The Supreme Court case of R. v. Boudreault  3 S.C.R. 157 explains that there are three “traditional” ways to establish Care and Control:
- First, 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;
- Second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and
- Third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.”
Put in laymen’s terms: (1) maybe you’re only listening to the radio now, but you’re going to have to get home somehow soon and may soon decide it is time to drive; (2) you may accidentally kick the car into gear, especially because you are drunk; (3) even if your car is not moving or going to move, being a large piece of machinery, it can still be dangerous.
The Crown can prove any one of these to establish you were in Care and Control of a vehicle, but, since there is no presumption, must do so beyond a reasonable doubt, like any essential element of any offence.
Combining all categories and subcategories as simply as possible, you can be found to have commited a criminal offence if you are found if any item from Column A applies, in combination with any item from Column B applying:
Column A: “Drinking”
- Ability to operate a motor vehicle is impaired by alcohol, or a combination of drugs and alcohol;
- Concentration of alcohol in blood is at or over 80mg of alcohol per 100mL of blood;
Column B: “Driving”
- Operating a motor vehicle;
- Occupying the driver’s seat without establishing through evidence that there was another purpose for being in said seat, other than to operate the vehicle;
- The presence of realistic risk that a change of mind will lead to the car being operated while impaired;
- The presence of a realistic risk the car will be set in motion;
- The presence of a realistic risk that a stationary or inoperable vehicle will endanger persons or property.
The takeaways from this article are: (1) be very careful about being anywhere near a motor vehicle if you have been drinking; (2) if you are charged with Over 80 or Impaired, hire a capable criminal defence lawyer, because defences are available and the issues are not nearly as simple as they seem.