Under our criminal justice system, all persons (with some technical exceptions) are presumed to know and understand the law.

This presumption is codified in the Criminal Code, which provides that ignorance of the law by a person who commits an offence is not an excuse for committing that offence”. Despite this lofty expectation, there are a number of complexities within the legal system which would make it difficult for the average law abiding citizen to know what the law is.

One area that is often plagued with such confusion is that of impaired care or control of a motor vehicle under s 258(1)(a) of the Criminal Code. This offence criminalizes motorists for being impaired even if they are not actually driving the vehicle. The recent Ontario Court of Justice decision of R v Toyota, 2016 ONCJ 112 [Toyota], is further indicative of the subtlety of the impaired care or control offence.

In Toyota, the accused had spent the cold February evening drinking with friends at a restaurant, and had taken a taxi back to an acquaintance’s house where he had parked his car. After his acquaintance had failed to answer the front door, the accused was unable to call for a taxi because his cell phone battery had died and he did not have a car charger.

Seemingly without alternative, the accused slept in the driver’s seat of his car with his ignition running and the heat on, while his seat was reclined and his seatbelt unattached. After approximately three hours of rest, the accused was greeted by a police officer and proceeded to fail a breathalyzer test.

Justice Cooper reviewed the leading authorities on impaired care or control, which provide that there are three routes for the Crown to establish care or control: (i) evidence of driving; (ii) applying the rebuttable presumption in s 258(1)(a) where the accused was in the driver’s seat; and (iii) through evidence of de facto or actual control which involves the risk of danger as an essential element.

The Crown in Toyota proceeded on the third ground of risk of danger element of care and control. This third ground has a number of different components, however the most important of which is where the accused creates “a realistic risk, as opposed to a remote possibility, of danger to persons or property”.

Moreover, this third ground would effectively require the accused to adduce “evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case”.

In elaborating on the elements of this third ground of a realistic risk of danger, the Court inToyota further referred to the Supreme Court’s ruling in R v Boudreault, 2012 SCC 56, which provided that a realistic risk will be deemed to have occurred if there is an intention to set the vehicle in motion.

Absent an intention to drive, this realistic risk of danger may also be said to arise in three alternate ways: (1) an inebriated person who does not intend to drive may later change his mind; (2) an inebriated person behind the wheel may unintentionally set the vehicle in motion; and (3) through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property. Justice Cooper acquitted the accused, reasoning as follows:

[32] Although the defendant’s blood-alcohol readings were 160 and 160 milligrams of alcohol in 100 millilitres of blood, it is my view that once awake, it is very unlikely that he would have changed his mind and driven home.

I also find it unlikely that he would have unintentionally set his vehicle in motion in his intoxicated condition. To set the car in motion he would have had to put his foot on the brake, push a button, and pull the gear lever back.

[33] I find as a fact that the Crown has not proven beyond a reasonable doubt that the defendant presented a realistic risk of danger in the particular circumstances which are before me. Therefore, I find that he was not in care or control of his vehicle at the time in question.

The Toyota decision is a further demonstration of the nuanced complexity of the impaired care or control offence, which has consequently led to wide speculation by the public on how to definitively avoid being charged with the offence. If you have been charged with impaired care or control, it is critical that all of the details in relation to the arrest are closely examined and that the evidence of the Crown is carefully scrutinized.

The team of lawyers at Lakin Afolabi Law Office have extensive experience dealing with impaired driving offences, and are trained to exhaustively examine the evidence and the strength of the Crown’s case. Call us today for a consultation.

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Lakin Afolabi Law criminal lawyers london ontario
472 Ridout St N, London, ON N6A 2P7 Phone: (519) 645-6969