Operation, Care or Control of a Vehicle (Until December 13, 2018)

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2019. (Rev. # 92597)

General Principles

The offence of having care or control of a vehicle under s. 253(1) is considered a separate offence from the offence of driving while impaired under the same section.[1]

  1. ↑ R v Toews, 1985 CanLII 46 (SCC), [1985] 2 SCR 119, per McIntyre J, at para 9 ("As I have noted earlier, the offence of having care or control of a motor vehicle while the ability to drive is impaired by alcohol or a drug is a separate offence from driving while the ability is impaired.")

Operation

Section 214 definition of "operate" was repealed by 2018, c. 21, s. 13. It previously read:

Definitions

214 In this Part,
...
 "operate"

(a) means, in respect of a motor vehicle, to drive the vehicle,
(b) means, in respect of railway equipment, to participate in the direct control of its motion, whether
(i) as a member of the crew of the equipment,
(ii) as a person who, by remote control, acts in lieu of such crew, or
(iii) as other than a member or person described in subparagraphs (i) and (ii), and
(c) includes, in respect of a vessel or an aircraft, to navigate the vessel or aircraft;

...
 R.S., 1985, c. C-46, s. 214; R.S., 1985, c. 27 (1st Supp.), s. 33, c. 32 (4th Supp.), s. 56; 2002, c. 13, s. 9.

– CCC (CanLII), (DOJ)

Note up: 214

The definition only applies to Part VIII of the Code, which includes offences that relate to motor vehicles.

A vehicle which is completely unable to be moved in any direction cannot be operated within the meaning of s. 214.[1] However, a vehicle that is stuck and can only move a matter of 1 or 2 feet is still in operation.[2]

A passenger who grabs the steering wheel and controls the direction of the vehicle operates it.[3]

The use of the steering wheel of a vehicle that is being towed constitutes operation.[4]

  1. ↑ R v Danji, 2005 ONCJ 70 (CanLII), [2005] OJ No 917 (ONCJ), per Feldman J
  2. ↑ R v Bui, 2006 ONCJ 265 (CanLII), [2006] OJ No 2869 (ONCJ), per Kenkel J car in snowbank can only move 1-2 feet
  3. ↑ R v Belanger, 1970 CanLII 222 (SCC), [1970] SCR 567, per Ritchie J
  4. ↑ R v Morton, [1970] BCJ No 532 (BCPC)(*no CanLII links)

Care and Control

An essential element to proving an offence under s. 253 or 254, the Crown must prove that the accused was in "care and control" of the motor vehicle at the relevant time.[1]

Care and control of a vehicle is criminalized on the basis that an impaired person has a recognized diminished capacity to make safe decisions and may attempt to drive, putting others at risk.[2]

Care and control can be proven by showing actual use of the vehicle or actions which present a risk of putting the car in motion.[3]

"Care or control" under s. 253(1) generally requires:[4]

  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; and,
  3. in circumstances that create a realistic risk of danger to persons or property.

Section 258(1)(a) creates a presumption of care and control where the accused is found in the driver's seat.[5]

Proof of care and control absent the presumption under s. 258(1)(a) requires:[6]

  1. an act involving the use of the motor vehicle, its fittings or equipment, or a course of conduct associated with the vehicle
  2. an element of risk of setting the vehicle in motion, either intentionally or unintentionally; and,
  3. element of dangerousness arising from the risk of setting the vehicle in motion

Dangers include the risk of the vehicle being set in motion unintentionally, negligently, or intentionally where the driver changes his or her mind not to drive.[7]Where an accused was found in a stationary vehicle, it is not necessary for the Crown to prove that the accused intended to set the vehicle in motion.[8]

The Crown, however, must establish that the accused performed "some act or series of acts involving the use of the car, its fittings or equipment...whereby the vehicle may unintentionally be set in motion creating the danger the section is designed to prevent.”[9] The key to the determination is the risk of setting the vehicle in motion and become dangerous.[10]

Where it is less than actual driving, to establish "care and control" it must be determined whether, as part of the actus reus, the accused's use of a motor vehicle or its "fittings and equipment" or the accused's conduct would involve the risk of putting the vehicle into motion and become dangerous.[11]

The determination is highly contextual and so the "[c]ircumstances in which acts of care and control may be found will vary widely."[12]

Risk of Danger

Danger is an essential part of care and control. Even where the accused did not specifically intend to put the vehicle in motion, where some operation of the vehicle creates the risk that the vehicle will be set in motion, even if by accident, will satisfy the requirements of care and control.[13]

"Risk of danger" requires proof that the risk is "realistic" and "not just theoretically possible."[14]

Operations of Fittings and Equipment

Many acts that are less than driving can constitute care and control.[15]

Not all operation of the "fittings and equipment" will result in care and control.[16] However, certain acts such as turning on the ignition will "almost always" be characterized as an act of care and control.[17]

  1. ↑ R v Penno, 1990 CanLII 88 (SCC), [1990] 2 SCR 865, page 124
  2. ↑ R v Coleman, 2012 SKCA 65 (CanLII), 288 CCC (3d) 429, per Richards JA
    R v Pelletier, 2000 CanLII 4181 (ON CA), 6 MVR (4th) 152; [2000] OJ 848 (CA), per curiam
  3. ↑ The Queen v Toews, 1985 CanLII 46 (SCC), [1985] 2 SCR 119, per McIntyre J, at para 10
    R v Vansickle, [1988] OJ No 2935 (*no CanLII links)
  4. ↑ R v Boudreault, 2012 SCC 56 (CanLII), [2012] 3 SCR 157, per Fish J
  5. ↑ see below for details
  6. ↑ R v Smith, 2005 NSSC 191 (CanLII), [2005] NSJ No 307 (N.S.S.C.), per Warner J
  7. ↑ R v Ferguson, 2005 CanLII 1060 (ONSC), [2005] OJ No 182 (SCJ), per Thomas J
    R v McLachlan, 2009 BCSC 431 (CanLII), 242 CCC (3d) 362, per Ker J
  8. ↑ Ford, supra, p 399
    R v Buckingham, 2007 SKCA 32 (CanLII), 218 CCC (3d) 203, at para 11 (“An intention to drive is not an essential element of the offence.”)
  9. ↑ Ford, supra, p 399
  10. ↑ R v Barlow, 2006 SKQB 220 (CanLII), 281 Sask R 15, per Allbright J, at paras 32, 33
  11. ↑ See Ford, supra
    R v Toews, 1985 CanLII 46 (SCC), [1985] 2 SCR 119, per McIntyre J
    Buckingham, supra
    see also: R v Wren, 2000 CanLII 5674 (ON CA), 144 CCC (3d) 374, per Feldman JA R v Anderson, 2012 SKCA 37 (CanLII), [2012] S.J. No 184, per Caldwell JA, at para 5
  12. ↑ Toews, supra, at p. 220
  13. ↑ R v Burbella, 2002 MBCA 106 (CanLII), 167 CCC (3d) 495, per Scott CJ
    R v Decker, 2002 NFCA 9 (CanLII), 162 CCC (3d) 503, per Cameron JA
  14. ↑ Boudreault, supra, at paras 34, 35
  15. ↑ Ford, supra
    Buckingham, supra, at para 11
  16. ↑ R v Hannemann, 2001 CanLII 28423 (ON SC), 43 CR (5th) 168, per Hill J
  17. ↑ Hannemann, ibid., at para 51

Presumption in Driver's Seat

Care and control can be proven through the presumption created by establishing that a person was in the driver's seat under s. 258(1)(a).[1]

Proceedings under section 255

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;

[omitted (2), (3), (4), (5), (6) and (7)]
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.

– CCC (CanLII), (DOJ)

Note up: 258(1)

The presumption is engaged at the time the driver's seat was first occupied, not simply when the accused was observed by police.[2] This presumption can be rebutted by calling evidence that the driver's seat was not occupied for the purpose of operating the vehicle on the balance of probabilities.[3]

The purpose of the presumption is to "discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion" while still excluding those who enter a car for reasons other than to set the car in motion.[4]

The presumption will be in effect even where the driver's seat has been fully reclined.[5]

The presumption will not be available where the accused is sleeping across the front seats.[6]

Where the presumption is engaged, it is not necessary to establish a risk was set out in Wren.[7] It is not relevant whether the vehicle is immobile.[8]

  1. ↑ R v Toews, 1985 CanLII 46, [1985] 2 SCR 119, per McIntyre J
    R v Ford, 1982 CanLII 16 (SCC), [1982] 1 SCR 231, per Ritchie J
    R v Penno, 1990 CanLII 88, [1990] 2 SCR 865
  2. ↑ R v Hatfield, 1997 CanLII 2938 (ON CA), 115 CCC (3d) 47, per Goudge JA
  3. ↑ R v Whyte, 1988 CanLII 47, [1988] 2 SCR 3, per Dickson CJ
    R v Miller, 2004 CanLII 24819 (ON CA), [2004] O.J. No.1464 (CA), per curiam aff’g [2002] OJ No 4896 (SCJ)
    R v Saulteaux, 2000 SKQB 470 (CanLII), [2000] S.J. No 633 (Q.B.), per MacLeod J
  4. ↑ Whyte, ibid., at para 47
  5. ↑ R v Hatfield, 1997 CanLII 2938 (ON CA), [1997] OJ No 1327, per Goudge JA
  6. ↑ Toews, supra
    R v Volk, 1985 CanLII 2713 (SKQB), [1985] SJ No 842, per McIntyre J
  7. ↑ R v Hayes, 2008 NSCA 23 (CanLII), 843 APR 314, per Hamilton JA, at para 29
    R v Mallery, 2008 NBCA 18 (CanLII), 231 CCC (3d) 203, per Robertson JA, at para 46
    R v Ferguson, 2005 CanLII 1060 (ONSC), [2005] 15 MVR (5th) 74 (ONSC), per Thomas J, at para 13
    R v Smith, 2004 CanLII 34316 (ONSC), (2004) 3 MVR (5th) 101 (ONSC), per Thomas J, at paras 20, 25
    R v Mark, [2002] OJ No 870 (ONSC)(*no CanLII links)
  8. ↑ R v Amyotte, 2009 CanLII 66900 (ONSC), [2009] OJ 5122 (ONSC), per Durno J , at para 127
    R v Weir, 2005 BCSC 1740 (CanLII), [2005] BCJ No 2845 (BCSC), per MacKenzie J

Rebutting Presumption

Rebutting the presumption requires the accused to establish under s. 258(1)(a) "that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be". This requires evidence negating the mens rea of the offence.

Rebuttal of the presumption is on the balance of probabilities.[1]

There is a division in the case law on the time at which the mens rea is established.

Some say that the initial intention upon the entry into the vehicle establishes the mens rea.[2] A change of intention does not rebut the presumption.[3]

Saskatchewan cases suggest that the time to assess intention is the "overlap period" in the proceeding 2 hours before the breath test.[4]

It is not sufficient that there be a "bald assertion" that the accused did not intent to drive.[5]

If the presumption has been rebutted, the accused may still be convicted where there was a danger that the accused could have put the vehicle in motion. [6]  

Ontario cases suggest that the accused must establish that the occupancy began without the intention to put the vehicle in motion.[7] The fact that the accused intended to sleep at the time of discovery does not rebut the presumption.[8]

Evidence that the vehicle is immobile is not generally sufficient to rebut the presumption.[9]

Indecision of the accused does not rebut the presumption.[10]

If the accused is unconscious following an accident it is "impossible" to rebut this presumption.[11]

The driver who says "I'll only drive when I am sober" will not rebut the presumption.[12]

  1. ↑ R v Whyte, 1988 CanLII 47 (SCC), [1988] 2 SCR 3, (1988) 42 CCC (3d) 97, per Dickson CJ
    R v Appleby, 1971 CanLII 4 (SCC), [1972] SCR 303, per Ritchie J
  2. ↑ R v Decker, 2002 NFCA 9 (CanLII), 162 CCC (3d) 503, per Cameron JA, at para 6
  3. ↑ R v Ahunu-Kumi', [2006] OJ No 2285 (ONSC) (*no CanLII links)
  4. ↑ R v Shuparski, 2003 SKCA 22 (CanLII), 173 CCC (3d) 97, per Bayda JA
  5. ↑ R v Nicholson, 2007 ABCA 373 (CanLII), [2007] AJ No 1261 (ABCA), per Berger JA
  6. ↑ R v Wren, 2000 CanLII 5674 (ON CA), 144 CCC (3d) 374, per Feldman JA
  7. ↑ R v Hatfield, 1997 CanLII 2938 (ON CA), 115 CCC (3d) 47, per Goudge JA
  8. ↑ Hatfield, ibid.
  9. ↑ R v Danji, 2005 ONCJ 70 (CanLII), [2005] OJ No 917, per Feldman J, at para 36
  10. ↑ R v Weir, 2005 BCSC 1740 (CanLII), [2005] BCJ No 2845 (BCSC), per MacKenzie J, at para 37 ("mere indecision as to whether to drive or to sleep will be indecision to rebut presumption")
    R v George, 1994 CanLII 4529 (NL CA), , (1994) 5 MVR (3d) 1, per Goodridge JA
  11. ↑ Weir, ibid.
  12. ↑ R v Szymanski, 2009 CanLII 45328 (ONSC), [2009] OJ 3623 (ONSC), per Durno J, at paras 59 to 65

Factors of Risk

The risk of danger of a change of mind has been described as a "real risk"[1], a "realistic risk"[2] and a risk "going beyond mere possibility", "more than speculative" and “concrete and tangible”.[3]

The risk does not need to be immediate.[4]

A risk of a change of mind must be established by the crown. There must be a "real risk that the particular accused would change his or her mind and intentionally set the vehicle in motion."[5]

Where the accused is not in actual operation of the vehicle, the court must consider the risk of danger that the accused poses. The risk of danger that an intoxicated person poses has been broken down into three categories:[6]

  1. The risk that the vehicle will unintentionally be set in motion[7]
  2. The risk that through negligence a stationary or inoperable vehicle may endanger the individual or others[8]
  3. The risk that the individual who has decided not to drive will change his or her mind and drive while still impaired[9]

When considering whether an accused was at risk of danger by putting the vehicle in motion, the court may consider the following factors:[10]

  1. The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive;
  2. Whether the keys were in the ignition or readily available to be placed in the ignition;
  3. Whether the vehicle was running;
  4. The location of the vehicle;
  5. Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination;
  6. The accused’s disposition and attitude;
  7. Whether the accused drove the vehicle to the location where it was found;
  8. Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving;
  9. Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit;
  10. Whether the accused had a stated intention to resume driving;
  11. Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption;
  12. Whether the accused was wearing his or her seatbelt;
  13. Whether the accused failed to take advantage of alternate means of leaving the scene;
  14. Whether the accused had a cell phone with which to make other arrangements and failed to do so.
  1. ↑ see R v Szymanski, 2009 CanLII 45328 (ONSC), [2009] OJ 3623 (ONSC), per Durno J, at para 91
  2. ↑ R v Ferguson, 2005 CanLII 1060 (ONSC), 15 MVR (5th) 74 (S.C.), per Thomas J, at para 24
  3. ↑ see R v Ross, 2007 ONCJ 59 (CanLII), 44 MVR (5th) 275, per Duncan J, at para 13
    R v Sandhu, 2008 CanLII 59324 (ONSC), 76 MVR (5th) 305 (S.C.), per Thomas J, at para 71
    for all examples see Smits, supra
  4. ↑ R v Banks, 2009 ONCA 482 (CanLII), 84 MVR (5th) 24, per curiam
  5. ↑ Szymanski, supra
    See also: R v Coleman, 2012 SKCA 65 (CanLII), 288 CCC (3d) 429, per Richards JA
  6. ↑ R v Smits, 2012 ONCA 524 (CanLII), 294 OAC 355, per Brown RSJ
  7. ↑ see R v Ford, 1982 CanLII 16 (SCC), [1982] 1 SCR 231, per Ritchie J
  8. ↑ see R v Vansickle, , [1990] OJ No 3235 (CA)(*no CanLII links) aff’g [1988] OJ No 2935 (Dist. Ct.)
  9. ↑ see R v Pelletier, 2000 CanLII 4181 (ON CA), 6 MVR (4th) 152 (CA), per curiam
  10. ↑ Smits, supra, at para 63 citing Szymanskiinfra
    Szymanski, supra, at para 93

Sleeping in Vehicle

There has been some debate about whether sleeping in the driver's seat with no intention to drive should be caught under the impair driving offences.[1] However, much case law leans towards the conclusion that where a person is found in the driver's seat, and no evidence is lead of a specific plan to support a changed intent to drive, the presumption will be allowed.[2] So for example, a person who sits in the driver's seat of a vehicle to sleep off the effects of alcohol will be in care and control.[3]

Thus, to overcome this finding some evidence is necessary. The distinction can be made where the accused is merely a custodian of the vehicle and there is no risk of the car being set in motion.[4]

Courts have found persons sleeping in their vehicle will not amount to care and control in the following circumstances:

  • accused had not place to stay and so slept in vehicle; vehicle was off [5]
  • the vehicle was turned on to keep accused warm [6]
  • car off and keys in ignition[7]

Courts have found persons sleep in their vehicle were in care and control in the following circumstances:

  • sleeping in front seat with vehicle off; keys were accessible[8]
  • car running but intended to turn it off/no intention to drive[9]
  1. ↑ R v Chung, 2011 ONCJ 757 (CanLII), OJ No 5945, per Pringle J , at para 13
  2. ↑ R v Miller, [2004] OJ No 1464(*no CanLII links)
    R v Hatfield, 1997 CanLII 2938 (ON CA), [1997] OJ No 1327 (CA), per Goudge JA
    R v Ahunu-Kumi, , [2006] OJ No 2285 (SCJ)(*no CanLII links)
    R v Szymanski, 2009 CanLII 45328 (ON SC), 88 MVR (5th) 182, per Durno J
  3. ↑ R v Rousseau, 1997 CanLII 10217 (QC CA), 121 CCC (3d) 571, per curiam
  4. ↑ R v Decker, 2002 NFCA 9 (CanLII), 162 CCC (3d) 503, [2002] NJ No 38 (NLCA), per Cameron JA -- found there were too many steps to get vehicle started to be a risk
  5. ↑ R v Bird, 1999 CanLII 12387 (SK PC), per Goliath J
    R v Sherbrook, 1998 CanLII 13896 (SK QB), 37 WCB (2d) 483, per Smith J
    R v Barber, 1998 CanLII 13333 (SK PC), [1998] S.J. No 708 (Prov.Ct.), per Diehl J
    R v Grover, 2000 ABQB 779 (CanLII), 276 AR 77, per LoVecchio J
    R v Gerrard, 2000 ABPC 182 (CanLII), 275 AR 122, per Fraser J
  6. ↑ R v Amendt, 1997 CanLII 1624 (BC SC), per Meiklem J
    R v Boyd, [1990] NSJ No 517 (*no CanLII links)
    R v McNabb, 2003 SKPC 118 (CanLII), 58 WCB (2d) 402, per Henning J
  7. ↑ R v Martindale, 1995 CanLII 1928 (BC SC), 45 CR (4th) 111, per Oliver J
    R v Coleman, 2011 SKQB 262 (CanLII), 380 Sask R 127, per Smith J
  8. ↑ R v Diotte, 1991 CanLII 2407 (NB CA), 64 CCC (3d) 209, per Stratton CJ
    R v Pilon, 1998 CanLII 4717 (ON CA), 131 CCC (3d) 236, per Morden CJ
    R v Ferrier, 2011 ABPC 289 (CanLII), AJ No 1126, per Groves J
  9. ↑ R v Lockerby, 1999 NSCA 122 (CanLII), 139 CCC (3d) 314, per Cromwell JA

Car Disabled

Where a vehicle is immobilized due to a flat tire, the driver has often been found not to be in care and control.[1] Similarly, where a car is found in mobilized in a ditch there is no "risk of danger" that would result in the accused being in care and control. [2]

  1. ↑ R v Dowse, [2011] OJ No 2935 (*no CanLII links)
  2. ↑ R v Banks, 2008 CanLII 60700 (ON SC), per Corbett J

Outside Vehicle

In certain circumstances, a person can be in care and control of a vehicle without being found inside the vehicle.

An accused found near the car while in possession of the vehicle's keys can be sufficient.[1] Where the accused is directing tow truck, it may be care and control.[2]

  1. ↑ R v Rupolo, 1970 CanLII 546 (ONSC), 2 CCC (2d) 327, per Sprague J
    R v McQuarrie, [1980] NSJ 38 (*no CanLII links)
  2. ↑ R v Lackovic, 1988 CanLII 7075 (ON CA), [1988] OJ No 1732, per Griffiths J

Case Digests

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