At Shaffie Law, we often get calls from clients who are in total shock that they’ve been charged with an impaired driving or over 80 offence. “But I wasn’t driving!” goes the usual refrain.
A broad range of variations exist:
“I was fast asleep when they knocked on my window.”
“My car broke down at the side of the road.”
“I was waiting for my buddy to pick me up.”
The fact is, contrary to most Canadians’ mistaken beliefs, proof of driving is not a requirement to be charged with an impaired or over 80. An entirely separate but equal class of criminal charges can result simply by being in, near, or interacting with a car while impaired or over the legal limit.
We Toronto criminal defence lawyers know this secret breed of DUI crimes as “care or control” offences.
In this article, Saul and I explain in very general terms what "care or control" means. We also set out a few examples of the type of conduct that can attract a criminal charge and a conviction, even if you were not actually driving your car when the police stopped you.
The fact is, contrary to most Canadians’ mistaken beliefs, proof of driving is not a requirement to be charged with an impaired or over 80. An entirely separate but equal class of criminal charges can result simply by being in, near, or interacting with a car while impaired or over the legal limit.
As always, remember that this article does not constitute legal advice. If anything, it should convey to you just how thorny Canada's "drinking and driving" laws can be. If you've been charged with an impaired or over 80, email Shaffie Law to arrange for a complementary consultation.
Drinking and Not Driving – the Basics of DUI Law in Canada
Technically speaking there is no crime in Canadian criminal law known as “drinking and driving”. Although the language is often used colloquially by lawyers and laypeople, the official charge is actually titled Operation While Impaired in the Criminal Code.
Let’s look at the actual language of the crime:
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,
(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
The bold parts are ours, and here's the clear takeaway: if your ability to operate a motor vehicle is impaired, or if your blood alcohol concentration is above the legal limit, it's a crime in Canada to:
Actually operate the car;
Assist in operating the car (an entirely different blog article); or
Have "care or control" of the car,
Regardless of whether the car is in motion or not.
So what Exactly Is “Care or Control”?
The words “care or control” have been the source of endless litigation in Canada's criminal courts. They encompass a broad range of conduct that couldn't possibly be set down exhaustively.
The core meaning of the words, however, comes from a series of major cases from Canada’s Supreme Court. The basic test is this: does a drunken person’s interaction with a motor vehicle, regardless of whether they are driving it or not, pose a "realistic risk of danger" to people or property?
It's an open secret that Canada's "care or control" cases are an unpredictable mess. The reason is actually understandable: no single law could effectively capture every set of possible circumstances where danger arises from a drunk person's interaction with their car.
This is an intentionally low threshold. It captures a huge range of potentially dangerous conduct beyond actual driving. As the cases below illustrate, it even captures the conduct of people outside their car attempting to have it towed or removed from the scene.
Apart from being broad, the Criminal Code gives police and prosecutors a significant leg-up in proving "care or control" charges of this kind. Without getting bogged down in technical details, anyone found in the driver’s seat is assumed to be in “care or control” of that vehicle (warning: legal speak ahead).
A person might take the stand and convince the judge that they had no intention to drive - but that doesn't settle issue. As the basic point of this article is at a pains of showing: you can be still convicted of an impaired or over 80 charge regardless of whether you intend to drive.
Canada’s Current Drinking and Not Driving Test
It's an open secret that Canada's "care or control" cases are an unpredictable mess. The reason is actually understandable: no single law could effectively capture every set of possible circumstances where danger arises from a drunk person's interaction with their car.
A skilled impaired over 80 lawyer needs to comb through a litany of questions before arriving at a safe prognosis of a case. Those same questions then need to be put to a judge. For example, where was the "driver" found? Just how drunk were they? Were they glassy-eyed, drooping or swaying, slurring their speech? Were the keys in the ignition? Was the car parked? Where was the car itself located? Was it movable? Was it operable? Was there a plan in place? Was a friend on their way? etc. ...
Believe me - you don't want to know how many questions an impaired over 80 lawyer might ask.
A "realistic risk of danger" is fairly easy to conceive where a person is found very drunk and awake behind the wheel of an operable and running car. But what about the endless stream of DUI convictions in Canadian courts where there is no actual intention to drive?
In 2012 Canada's Supreme Court established the "realistic risk of danger" test - the current test in our country - and outlined three possible scenarios where a judge could find that such a risk exists even in the absence of an immediate intention to drive.
First, a person who has no present intention to drive may change their mind while still under the influence.
Second, the person could do something unintentionally that sets the vehicle in motion.
Finally, even if the vehicle is not capable of being set in motion (i.e. it’s damaged or stuck), a drunk person’s careless actions in relation to the vehicle may pose a realistic risk of danger.
“Care or Control” – Some Concrete Examples
As you can already tell, the most straightforward iteration of a “care or control” charge involves a person found awake at the wheel while either impaired or with a blood alcohol concentration above the limit.
There is a host of less straightforward scenarios, however, that could result in a conviction for either impaired driving or "over 80”. Here is a very short list of actual court cases where a person was charged and convicted of a “drinking and driving” offence even where they had no intention to drive.
a. Sleeping in the Vehicle
"I was asleep in my car." This is probably the most common "care or control" case we deal with at Shaffie Law. Clients are routinely shocked to discover that their innocent nap was not viewed so innocently by a passing cruiser.
"Sleeping it off" cases involve an accused person is found asleep or passed out in the driver’s seat. Broadly speaking, whether ‘care or control’ can be established in these cases generally depends on the existence of an intent or plan to drive, as well as whether there is a realistic risk of the car being set in motion.
In R. v. Hatfield [1997] O.J. No. 1327 (C.A.), the accused was found by police sleeping in the driver’s seat of his parked car, fully reclined. The keys were in the ignition but the engine was not on. After drinking earlier in the night, the accused stated that he pulled into the parking lot when he realized he was not fit to drive. His plan was to sleep it off until he was sober enough to resume driving. The Ontario Court of Appeal found that the presumption of care or control for occupying the driver’s seat applied, as the accused did not demonstrate that he occupied the seat without the intention of setting the vehicle in motion. Although his intention was to sleep when he was found by the police, he originally entered the vehicle with an intent to drive, and further intended to continue driving after sleeping. Mr. Hatfield was convicted.
"Sleeping it off" cases involve an accused person is found asleep or passed out in the driver’s seat. Broadly speaking, whether ‘care or control’ can be established in these cases generally depends on the existence of an intent or plan to drive, as well as whether there is a realistic risk of the car being set in motion.
The initial intention to enter the vehicle for the purpose of driving was likely determinative in the Hatfield case. But that finding is not necessary to establish “care or control”. In R. v. Pilon [1998] O.J. No. 4755 (C.A.),for example, the accused was found asleep in his parked car with his keys on the floor beneath him under the driver’s seat.
He testified that he got into the car with the intention of sleeping until he felt ready to drive to work. Though the court accepted that the accused did not initially enter the vehicle with the intent to drive, they nevertheless found that he had care or control of the vehicle because he had the ultimate intention of driving after waking up.
This is sufficient to qualify as “some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous” (para 21).
On the other hand, if the accused can demonstrate that there is no intention to set the vehicle in motion, and there is no realistic risk of danger, they will not be found to be in care or control while asleep at the wheel. In R. v. Hannemann [2001] O.J. No. 1686 (S.C.J.), though the accused was found sleeping in the driver’s seat with the keys in the ignition and engine on, the court accepted his testimony that he entered the vehicle with the intention of sleeping it off until a friend would drive him home the next morning. Among other things, the court took into account that the transmission was in park and parking brake was engaged. There was no realistic risk that the vehicle would be set in motion and, therefore, Mr. Hannemann was acquitted of the “drinking and driving” charges.
As these cases demonstrate, an exhaustive and careful examination of the circumstances is required to examine and defeat "sleeping it off" cases.
b. Directing a Tow
You can be physically outside of your car and still convicted of a “drinking and driving” offence in Canada.
Several cases have established that when an accused calls a tow truck to extricate their vehicle, that may constitute a continuing act of care or control. In R. v. MacMillan [2005] O.J. No. 1905 (C.A.), for example, the court found that the accused created a risk of danger by requesting a tow truck. There was a risk that after the truck operator finished the job, the accused could have continued to operate the vehicle or inadvertently set the car in motion.
This principle even extends to instances of requesting the assistance of nearby bystanders to help move your car. In R. v. McBrine [2007] O.J. No. 142 (C.A.), the court found that not only did repeated requests for assistance with moving their car constitute continued care and control, the movement of the vehicle itself also posed a risk of danger to those persons moving it.
Since we're talking about tow trucks and extrication, it's important to note that whether the vehicle is still operable is often a live consideration in these types of cases. In R. v. Wren [2000] O.J. No. 756 (C.A.), for example, the accused called a tow truck to remove his car from a ditch. The car was inoperable due to damage and immovable from its current location. The accused waited in the car to warm up until the tow truck came. The Ontario Court of Appeal ruled that is was reasonable for the trial judge to conclude no care or control existed, as there was no possible danger of the vehicle being put into motion. Mr. Wren, in the result, was acquitted of his drinking and driving charges.
c. Listening to the Radio or Accessing Other ‘Operating Apparatus’
Even sitting in a parked car to listen to the radio can land you a conviction for and impaired or over 80. The accused in R. v Baboolall [2004] O.J. No. 2878 (S.C.J.) had been drinking at a party when he decided to get into his car in the driveway and listen to the radio with a friend. He turned the radio on by putting the keys in the ignition and put the parking brake on. The Ontario Superior Court upheld the trial judge’s finding that the accused was in care or control of the vehicle, as there was a risk of the accused putting the vehicle in motion unintentionally. Crucial to this finding was the fact that the accused had accessed the ‘operating apparatus’ of the vehicle, thereby increases the risk of setting the car in motion.
Since we're talking about tow trucks and extrication, it's important to note that whether the vehicle is still operable is often a live consideration in these types of cases.
As this case shows, an impaired individual who performs some acts involving the equipment or fittings of the vehicle risks a finding that they created a "realistic risk of danger". This can arise even where the driver is in the process of turning the car off.
In R v Lockerby, 1999 NSCA 122, a friend driving the accused’s car left the vehicle in neutral with the engine running and emergency break engaged. The accused testified to moving from the passenger’s seat to the driver’s seat, while impaired, in order to shut the engine off and put his car into park. It was his intention to then follow his friend into a restaurant. The court found that, by doing so, he had assumed "care and control", as there was a risk of the car being set into mention, even if the accused had no intention to do so. Since he had the present ability to operate the vehicle and make the car act as he wished, a risk of danger existed.
Conclusion: You Don’t Have to be Driving to Land a DUI Conviction
We hope this small sampling of cases demonstrates just how broad, complex, and surprising Canada’s “drinking and driving” laws can be.
By now, you should also understand why that oft-repeated string of three words (“drinking and driving”) fails to capture the whole of the law in Canada. Contrary to popular belief, a person does not have to be found driving their vehicle in order to be charged and convicted of impaired ‘driving’ or over 80.
At Shaffie Law, we are committed to providing relentless, strategic, highly effective litigation services to individuals charged with drinking and driving offences - including "care or control". If you've been charged, don't hesitate to call or email us today for a free consultation.
About Saul Moshe-Steinberg: Saul received his law degree from the University of Toronto in 2018. His coursework was focused on criminal law, and he has defended vulnerable and low-income accused as a caseworker for Downtown Legal Services. Saul begins his articles at a criminal defence firm in Toronto this fall.
About Shayan Shaffie: Shayan is a criminal barrister and the founder of Shaffie Law. He obtained his law and bachelor's degrees from the University of Toronto, and was Crown counsel in Hamilton, Ontario before robing for defence. "I prefer the eye of the storm," he has stated. When Shayan is not cross-examining witnesses, he enjoys taking pictures and making music.