Can a Drunk Person Sleeping It Off In a Car Be Accused of Impaired Operation of a Conveyance?

The Operation of a Conveyance Is Defined Broadly and May Involve Care or Control of the Conveyance In a Manner That Creates a Realistic Risk of Danger.

Understanding the Meaning of Operation Including Care or Control Concerns Involving Intent to Drive and Risk to Public

Definition of Operation Including Care or Control As Conduct Other Than Driving It is unlawful, and indeed criminal conduct, to operate a conveyance when impaired by alcohol or by drugs or to do so when having a blood alcohol content beyond .08 milligrams per 100 millilitres.  Often argued is the legal meaning of conveyance as well as the legal meaning of operate.  The legal meaning of operate is very broad, involving much more than just driving; and, in certain circumstances, even involves sleeping.

The Law

The Criminal Code, R.S.C. 1985, c. C-46, prescribes the impaired operating of a conveyance and the operating of a conveyance with an alcohol content above .08 milligrams per 100 millilitres of blood ("over 80") as offences as well as providing a definition for the meaning of what it means to operate a conveyance.  Specifically, the Criminal Code states:


Impaired operation

320.14 (1) Everyone commits an offence who

(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;

(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;

(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or

(d) subject to subsection (7), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.

Operation causing bodily harm

(2) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes bodily harm to another person.

Operation causing death

(3) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes the death of another person.


Definitions

320.11 The following definitions apply in this Part.

...

operate means

(a) in respect of a motor vehicle, to drive it or to have care or control of it;

(b) in respect of a vessel or aircraft, to navigate it, to assist in its navigation or to have care or control of it; and

(c) in respect of railway equipment, to participate in the direct control of its motion, or to have care or control of it as a member of the equipment’s crew, as a person who acts in lieu of a member of the equipment’s crew by remote control, or otherwise.

...

Although a definition of the term "operate" is prescribed within the Criminal Code, the definition sometimes requires judicial review of the fully meaning of "operate", especially in regards to the meaning of "care or control".

In the case of R. v. Boudreault, [2012] 3 S.C.R. 157, the Supreme Court addressed the issue of when a person has "care or control" of an automobile, without driving the automobile, is sufficient to result in a conviction for impaired operation or operation with an over .80 blood alcohol content.  The Supreme Court reiterated that three elements must exist whereas it was said:


[33]  In this light, I think it helpful to set out once again the essential elements of “care or control” under s. 253(1) of the Criminal Code in this way:

(1)  an intentional course of conduct associated with a motor vehicle;

(2)  by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;

(3)  in circumstances that create a realistic risk of danger to persons or property.

[34]  The risk of danger must be realistic and not just theoretically possible: Smits, at para. 60. But nor need the risk be probable, or even serious or substantial.

[35]  To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention to prevent a danger to public safety. To require only that the risk be “theoretically possible” is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct.

[36]  It is settled law that an intention to set the vehicle in motion is not an essential element of the offence: Ford v. The Queen, 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231.  This may appear anomalous in view of the presumption set out at s. 258(1)(a) of the Criminal Code, which provides that an accused who was found in the driver’s seat of a motor vehicle

shall be deemed to have had the care or control of the vehicle . . . unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle . . . in motion . . . .

[37]  Accordingly, an accused found in the driver’s seat will be presumed, as a matter of law, to have care or control of the vehicle, unless the accused satisfies the court that he or she had no intention to drive — an intention that, pursuant to Ford, is not an essential element of the offence.

[38]  At a minimum, the wording of the presumption signifies that a person who was found drunk and behind the wheel cannot, for that reason alone, be convicted of care or control if that person satisfies the court that he or she had no intention to set the vehicle in motion.  Dickson C.J. made this plain in R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3, at p. 19: “It cannot be said that proof of occupancy of the driver’s seat leads inexorably to the conclusion that the essential element of care or control exists . . . .

[39]  Put differently, s. 258(1)(a)  indicates that proof of voluntary inebriation and voluntary occupancy of the driver’s seat do not by their coexistence alone conclusively establish “care or control” under s. 253(1) of the Criminal Code. Something more is required and, in my view, the “something more” is a realistic risk of danger to persons or property.

[40]  I agree with Justice Cromwell that Parliament’s purpose in enacting the care or control provision was preventive, and directed at the inherent danger that normally arises from the mere “combination of alcohol and automobile”: Saunders, at p. 290.  With respect, however, I believe this supports my view that Parliament’s intention in enacting s. 253(1) of the Criminal Code was to criminalize only conduct that creates a realistic risk of danger.

[41]  A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control.  On the other hand, an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction:  An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion — without intending at that moment to do so — may nevertheless present a realistic risk of danger.

[42]  In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

[43]  The only risk of danger alleged by the Crown in this case was that Mr. Boudreault would, at some point, set his vehicle in motion intentionally.

[44]  The Crown contends that a risk of danger is not an essential element of care or control under s. 253(1) of the Code.  It submits that, even where the presumption of care or control under s. 258(1)(a) is not engaged, the Crown need only prove voluntary consumption of alcohol beyond the legal limit (or leading to impairment) and “some use of the car or its fittings and equipment” (R.F., at para. 32, citing Toews, at p. 126).  Accordingly, in the Crown’s submission, an inebriated accused found behind the wheel of a car, with the key in the ignition and the motor running, is subject to automatic conviction.

[45]  As I mentioned at the outset, anyone found inebriated and behind the wheel with a present ability to drive will — and should — almost invariably be convicted.  It hardly follows, however, that a conviction in these circumstances is, or should be, “automatic”.  A conviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case.

[46]  The care or control offence captures a wide ambit of dangerous conduct:  Anyone who is intoxicated and in a position to immediately set the vehicle in motion faces conviction on those facts alone.

...

[48]  I need hardly reiterate that “realistic risk” is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case.

[49]  The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger.  Likewise, use of the vehicle for a manifestly innocent purpose should not attract the stigma of a criminal conviction.  As Lamer C.J. observed in Penno, “The law . . . is not deprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to drive is impaired in a motor vehicle” (p. 877).

As explained above, and upon further reading of the Boudreault case, among other cases, where an intoxicated person has care or control of an automobile or other conveyance, and is charged with an offence, the person will be required to prove that the person was without an intent to drive and that the level of care and control lacked a realistic risk of danger to persons or property.  Accordingly, if a police officer discovers an impaired person in possession of keys to a vehicle, even if the person is trying to sleep off the impairment, the impaired person may be charged with impaired operation and thereafter be put to the challenge of defending such a serious charge.

Summary Comment

The meaning of "operate" in the context of impaired operation of a conveyance per the Criminal Code means the immediate act of operating a conveyance, such as the driving an automobile, the navigating a watercraft, the flying an airplane, or the conducting of a train locomotive as railway equipment, and includes "care or control" where an impaired person had an intent to drive or posed a realistic risk of danger.

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