Your browser might not be displaying this website correctly. Please update Internet Explorer or try a different browser. We recommend Firefox.
The Supreme Court of Canada recently released its decision in R. v. Boudreault. The decision helps in determining in what circumstances an individual is in care or control of a motor vehicle.
Specifically, the court held that it is an element of the offence of having the care or control of a motor vehicle that the circumstances create a realistic risk of danger to persons or property. As a result, the law is clear that the risk of danger must be realistic and not just theoretically possible. Such a risk must be proven before an individual is found guilty of the offence. Although the nature of the risk can be met in a variety of ways, some sort of risk must be met by the impaired driver who sits behind the wheel. Read Montreal Gazette
I don’t think police will necessarily redefine care or control or use discretion to not arrest an individual found behind the wheel in the circumstances in the future. As stated by Justice Morris Fish in his majority reasons, “Anyone found inebriated and behind the wheel with a present ability to drive will – and should – almost invariably be convicted.”
Parliament’s intent behind care or control was to address the dangers of drinking and driving and to prevent the risks associated with an impaired driver behind the wheel. In light of that, an individual found in such a position by the police would, in my view, always be arrested, and it would be up to a trial court to determine whether or not he or she was guilty.
The alternate plan is always a significant piece of evidence in cases like this and very often is the difference between a conviction and acquittal. Although not strictly necessary to avoid a conviction (or be sufficient for an acquittal), it always helps.
In this case, the accused had evidence that he got in his car to wait for a taxi that was called on two occasions, which in fact did arrive to pick the accused up, however, he was asleep behind the wheel. The car was parked in a private driveway with the transmission set to park with the ignition on and the heat on.