What does it mean to be "in care or control" of a motor vehicle?
Oct 28, 2013 By Matthew Friedberg
Not only is it a criminal offence to “operate” a motor vehicle while impaired or while having excess blood alcohol, but it is also an offence to be “in care or control” of a motor vehicle in that state. So what does “in care or control” mean? The answer isn’t as straightforward as you might think it should be. Even the basic features of the care or control offence continue to be the subject of debate and, at times, contradictory decisions from the courts. Justice Hill of the Ontario Superior Court of Justice has commented on the “obscure intricacies of care and control jurisprudence”. The courts have generally tried to avoid an interpretation of the care or control offence that would create a wide criminal liability for a person who is impaired or whose blood alcohol exceeds the legal limit from being within a certain proximity of a vehicle with the means to drive it. Instead, the courts have tended to focus on the risk of the vehicle being set in motion. The ultimate issue is whether the person’s interaction with the fittings and equipment of the vehicle poses a present danger or a “risk of danger”.
Of particular importance is that under section 258(1)(a) of the Criminal Code, a presumption exists that a person in the driver’s seat of a motor vehicle is in care or control of that motor vehicle. This is significant in that it creates a reverse onus upon the accused person to show that they were not in care or control of the vehicle, which the Crown would otherwise have to prove beyond a reasonable doubt.
We often hear of cases of people waiting in their car for a ride or for a taxi, and of people making the decision to sleep in their car overnight to avoid driving while impaired. These people are often making a more responsible choice than those who decide to drive notwithstanding their impairment. However, if you decide to wait or sleep in your driver’s seat, or with the vehicle running, you run the significant risk that you will face the same penalties as the drunk driver.