The law in Canada is such that if an individual is found sitting in the driver's seat of a motor vehicle while impaired by alcohol or a drug or having over 80 milligrams of alcohol per 100 milliliters of his or her blood, that individual is deemed to have care or control of the vehicle. This law of course is equally applicable to the individual who takes possession of the control seat in an airplane, train or boat.
This is one of the few laws within our Criminal Code which presumes the individual guilty unless that person demonstrates innocent intention with respect to the occupation of the driver's seat. This reverse onus came into effect in 1947 when Parliament saw fit to implement the need for an intoxicated person to explain his or her intention in such a situation. This presumption makes sense and such a person should be made accountable to justify his or her occupancy of the driver's seat while intoxicated.
The accused's intention, however, is only the first of two hurdles to surmount in order to be acquitted of a care or control offence. The second is the risk of danger factor. Three (3) types of risks have been identified when an intoxicated individual has assumed control of the driver's seat:
(i) the risk that the vehicle will be unintentionally set in motion;
(ii) the risk that through negligence, a stationary or inoperable vehicle may endanger the individual or others; and
(iii) the risk that the individual, who had decided not to drive, will change his or her mind and eventually do so.
This second hurdle, which has inspired this article, came into play when Mr. Justice Ritchie writing for the majority of the Supreme Court of Canada in R. v. Ford1, decided that care or control could be found irrespective of intention where an accused may unintentionally set a vehicle in motion in his or her state of intoxication. Mr. Ford, it was found, had attended at a private party where he consumed a significant amount of alcohol. Later on, he got into his vehicle with some friends and waited for his girlfriend who he claimed was going to drive him home. Accepted facts included Mr. Ford to be in and out of his vehicle throughout the evening on several occasions and had turned the vehicle on and off numerous times as well. Back at the police detachment, Mr. Ford provided breath samples of 190 and 170 milligrams of alcohol per 100 millilitres of his blood.
Although it was not extensively explored, Mr. Justice Ritchie found that there was a possibility that in Mr. Ford's intoxicated state, he could have set his vehicle in motion unintentionally. He does not, however, discuss the “breadth” of risk that would justify a finding of care or control. Essentially, Mr. Ford's activities were viewed as irresponsible and potentially dangerous under the circumstances. If there was no necessity for Mr. Ford to be in his vehicle, he could have remained at the party he was attending. At trial, there was no evidence put forth that he was asked to leave the said house where the party was taking place.
Further, once Mr. Ford decided to take occupancy of the driver's seat, he might have considered sitting quietly and refrain from continuously touching the fittings and equipment within his vehicle. Turning a vehicle on and off in his intoxicated state (even for weather protection) is risky and could reasonably lead to a finding of guilt.
In our efforts to reduce and hopefully eliminate drunk driving, Judges have overlooked basic principles of criminal law and have registered convictions against innocent people based on pure speculation. Courts have essentially ignored an accused's presumption of innocence in this realm and have found criminal liability based on “what might happen” due to alcohol consumption. Jurisprudence from Courts of Appeal such as Ontario and New Brunswick seem to have endorsed the notion that an intoxicated person in the driver's seat need not have an immediate intention to drive, rather if the possibility exists that the vehicle may be set in motion, care or control can be established2. How can a criminal conviction be founded on something that might happen with no significant evidence to substantiate it? Is there not always the possibility that something might happen? This should be dealt with no differently than any other criminal offence irrespective of the evils of drunk driving.
Whether a motor vehicle's engine is running or not, whether a hand or foot brake is engaged or the accused is sleeping or wide awake, the trial judge must consider the entirety of the circumstances. A sleeping accused in the driver's seat of a vehicle with its ignition on should not inexorably lead to a finding of care or control. There could be a variety of reasons for the accused's position and for the vehicle to be running. A vehicle must be turned on for heat in a cold climate. The need for air conditioning during hot weather could also be a relevant factor. What is to be carefully assessed is the attitude of the accused and whether the "position" in which he or she has ended up prior to arrest is a "reasonably risky" one. Just because one is intoxicated with the immediate capacity to set a vehicle in motion does not mean that it is going to happen. A great many people have had the experience of being intoxicated yet are conscious enough to know not to drink and drive. Similarly, an individual who has consumed alcohol to the point of slurred speech and/or physical imbalance could still refrain from assaulting another individual or committing theft. The question then becomes what was the "attitude" of the accused at the time he or she was found in the driver's seat and was his or her position a dangerous one under the circumstances. Intoxication to the level of unconsciousness or to the point where one's actions are irrational or oblivious to his or her surroundings is simply unacceptable and should not constitute a defence to a care or control offence.
This risk factor has not been properly defined by any of our courts including the Supreme Court of Canada. The fact that an intoxicated individual sitting in the driver's seat of a motor vehicle has the exclusive opportunity to set the vehicle in motion should not automatically lead to a finding of care or control. If it did, the offense might as well be one of absolute liability. If the accuser's intention is bona fide and the presumption is rebutted, it is then incumbent upon the Crown to prove risk of danger factor beyond a reasonable doubt. The accused need not rebut any risk that may potentially exist.
This risk must be one where circumstances are such that the accuser's actions while in the driver's seat, or associated with the vehicle in some other way, are dangerous or unpredictable. As indicated in R. v. Toews, the facts of each case may vary widely.
Risky situations may include, but of course are not limited to, an individual who is extremely intoxicated: see R. v. Penno6; an individual who is indifferent about his future intention: see R. v. George7; a vehicle which is in gear rather than in park or an individual who may consider driving at a later point: see R. v. Pilon8. As basic and perhaps as trite as this appears, both triers of fact and appellate courts have both founded and upheld convictions on care or control based on a potential change of mind by an accused, even where there was no evidence at all to support such a conclusion. This change of mind element of risk should only be the basis for a conviction where there is evidence to substantiate it. This substantiation can be from something inferred from the evidence and not necessarily from the accused's own testimony. Change of mind risk has also been rejected or simply not even considered by a number of courts for reasons of mere speculation including Courts of Appeal from Newfoundland and Saskatchewan.
Short of a vehicle being inoperable and therefore not dangerous, as in the case of R. v. Wren10, an impaired individual in the driver's seat would always be found to be in care or control if all the prosecution had to do to secure a conviction was to speculate on the accused possibly changing his or her mind about driving. This of course is remote and should never be the basis for a finding of guilt.
The change of mind notion has been used to satisfy the risk factor by many courts across the country, however, it has never been accepted by the Supreme Court of Canada. It should be remembered that the Supreme Court acquitted Mr. Toews even though he was sleeping in a motor vehicle on the front seats of a truck clearly intoxicated with keys in the ignition (car not running). Further, no plan existed for his removal from that potentially dangerous position. Mr. Toews was found in a sleeping bag, not a straight jacket. With subsequent rulings from a variety of courts on all other levels below, Mr. Toews would have been convicted of care or control. The reasoning would have been as follows: Mr. Toews provided breath samples of over twice the legal limit. He was found passed out (and impaired) slumped on the front seat of a motor vehicle with keys in the ignition. Mr. Toews, in his intoxicated state, could have awoken and either unintentionally set this vehicle in motion or could have changed his mind about driving at a later point even though this may not have been his immediate intention when he initially took occupancy of the front seat. Of interest, the trial judge in R. v. Toews, supra, did in fact enter a conviction based on a potential change of mind. The trial judge's finding was not upheld by our Supreme Court. Specifically, change of mind was not a factor that was even considered in the Supreme Court's final decision wherein Mr. Toews was acquitted. The Supreme Court did, however, cite R. v. Price, which founded its conviction on a possible future intention.
What appears to be forgotten is that once an accused successfully rebuts the presumption, the risk factor must be proven by the prosecution. A simple suggestion that the individual might set his or her vehicle in motion unintentionally in his or her intoxicated state could hardly be proof beyond a reasonable doubt. If that was the case, no accused could ever successfully defend such a charge. Every fact scenario has a motor vehicle and an impaired individual who may do all kinds of things. The spirit of care or control law established by Parliament and defined by our Supreme Court seems to be the following: An impaired individual should refrain from associating himself or herself with a motor vehicle due to what might happen once alcohol is consumed to the point of intoxication. Lawmakers also recognized, equally as much, that an accused person in such a situation is not automatically guilty of committing such an offence. An analysis is to be conducted. This is not an absolute liability offence, nor is it a strict liability one either. There is a need to balance the objective of discouraging intoxicated individuals associating themselves with a motorized vehicle with the acknowledgment that although the individual is impaired and “in control” of his or her vehicle, there may be a reasonable explanation as to why that individual is in that position and should not be criminally reprimanded for it.