Many people are shocked to find that being in a vehicle or conveyance while impaired and/or over 80, could lead to being criminally charged and to subsequently being convicted. In these circumstances, individuals are charged with impaired care and control or over 80 care and control even though they have not been driving. 

In fact, if an individual is impaired and/or over 80 and they are located in the driver’s seat of a motor vehicle or conveyance they are presumed to be in care and control of that motor vehicle or conveyance according to the Criminal Code of Canada. That individual will then have the burden to establish that the reason they were in the driver’s seat of that motor vehicle or conveyance was for a reason other than operation. What this means is that an individual will be convicted if this presumption is not rebutted. 

Many people are also shocked to find that being in or around a vehicle or conveyance while impaired and/or over 80 regardless of whether they are situated in the driver’s seat or elsewhere in or around the motor vehicle or conveyance could lead to being criminally charged and subsequently being convicted. 

One of the most common scenarios is when a person is “sleeping it off” in a vehicle. Many individuals think that “sleeping it off” in a vehicle instead of driving is the responsible option.  It is important to note that an individual can be charged with impaired care and control or over 80 care and control even if:

 

• The motor vehicle is of
• The individual is not in the driver’s seat
• The individual is not in possession of the vehicle’s keys
• The individual has been in the motor vehicle without driving it for some time 

The legal intention of the individual is critical with respect to this offence.  Of equal importance is an analysis to determine whether there was a realistic risk of danger that the motor vehicle or conveyance would be operated in the near future, or whether that risk of danger was merely theoretical.  For an individual to be convicted of this type of offence, there must be a realistic risk of danger. Theoretical risk of danger is not sufficient.  An analysis is conducted by our experienced lawyers with respect to both of these areas.