< Canadian Criminal Law < Offences < Impaired Driving and Over 80

Operation

Section 214 defines "operate" as:

“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;


– CCC

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] OJ No 917 (ONCJ)
  2. ↑ R v Bui, [2006] OJ No 2869 (ONCJ) car in snowbank can only move 1-2 feet
  3. ↑ R v Belanger, [1970] SCR 567
  4. ↑ R v Morton, [1970] BCJ No 532 (BCPC)

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 can be proven by showing actual use of the vehicle or actions which present a risk of putting the car in motion.[2]

"Care or control" under s. 253(1) requires:[3]

  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.

Alternatively, the 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):[4]

"Risk of danger" requires proof that the risk is "realistic" and "not just theoretically possible".[5]

Many acts that are less than driving can constitute care and control.[6]

Proof of care and control absent the presumption under s. 258(1)(a) requires:[7]

  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

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.[8]

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.[9]

Not all operation of the "fittings and equipment" will result in care and control.[10] However, certain acts such as turning on the ignition will "almost always" be characterized as an act of care and control.[11]


  1. ↑ R. v. Penno, supra, page 124
  2. ↑ The Queen v. Toews, [1985] 2 SCR 119 at 10 1985 CanLII 46
    R. v. Vansickle, [1988] O.J. No. 2935
  3. ↑ R. v. Boudreault 2012 SCC 56 (CanLII)
  4. ↑ R. v. Toews, [1985] 2 SCR 119 1985 CanLII 46
    R. v. Ford, [1982] 1 SCR 231 1982 CanLII 16
    R. v. Penno [1990] 2 SCR 865 1990 CanLII 88
  5. ↑ Boudreault at para. 34, 35
  6. ↑ R. v. Ford, 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231
    R. v. Buckingham, 2007 SKCA 32 (CanLII) at 11
  7. ↑ R. v. Smith, [2005] N.S.J. No. 307 (N.S.S.C.)
  8. ↑ See R. v. Ford, 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231
    R. v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119 Buckingham, 2007 SKCA 32, [2007] 6 W.W.R. 73
    see also: R. v. Wren 2000 CanLII 5674 (ON CA), (2000), 144 C.C.C. (3d) 374 (Ont. C.A.) R. v. Anderson, 2012 SKCA 37, [2012] S.J. No. 184 at para 5
  9. ↑ R v Burbella (2002) 167 CCC (3d) 495, 2002 MBCA 106 (CanLII) (MBCA)
    R v Decker (2002) 162 CCC (3d) 503 (NLCA)
  10. ↑ R v Mannemann, [2001] OJ No 1686 (ONSC)
  11. ↑ R v Mannemann, supra, at para. 51

Presumption in Driver's Seat

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;

...

– CCC

The presumption is established by proving that the seat was occupied at the time the accused entered the vehicle, not simply when the accused was found.[1] 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.[2]

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. [3]  

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.[4]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.[5]

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.”[6] The key to the determination is the risk of setting the vehicle in motion and become dangerous.[7]

The determination is highly contextual and so the "[c]ircumstances in which acts of care and control may be found will vary widely."[8]

The presumption will be in effect even where the driver's seat has been fully reclined.[9]

The presumption will not be available where the accused is sleeping across the front seats.[10]

Evidence that the vehicle is immobile is not generally sufficient to rebut the presumption.[11]

Where the presumption is engaged, it is not necessary to establish a risk was set out in Wren.[12] It is not relevant whether the vehicle is immobile.[13]

If the accused is unconscious following an accident it is "impossible" to rebut this presumption.[14]

  1. ↑ R. v. Hatfield, 1997 CanLII 2938 (ON CA)
  2. ↑ R. v. Whyte, [1988] 2 SCR 3 1988 CanLII 47
    R. v. Miller, [2004] O.J. No.1464 (C.A.) aff’g [2002] O.J. No. 4896 (S.C.J.);
    R. v. Saulteaux, [2000] S.J. No. 633 (Q.B.)
  3. ↑ R. v. Wren 2000 CanLII 5674 (ON CA), (2000), 144 C.C.C. (3d) 374 (Ont.C.A.)
  4. ↑ R. v. Ferguson, [2005] O.J. No. 182 (S.C.J.)
    R. v. McLachlan, 2009 BCSC 431, 242 C.C.C. (3d) 362 (BCSC)
  5. ↑ R. v. Ford, supra, p 399
    R. v. Buckingham, para. 11 (“An intention to drive is not an essential element of the offence.”)
  6. ↑ R. v. Ford, p 399
  7. ↑ R. v. Barlow, 2006 SKQB 220 at 32, 33
  8. ↑ R. v. Toews, 1985 CanLII 46 (SCC) p 220
  9. ↑ R v Hatfield, [1997] OJ No 1327
  10. ↑ R v Toews, supra
    R v Volk [1985] SJ No 842
  11. ↑ R v Danji, [2005] OJ No 917 at para. 36
  12. ↑ R v Hayes, 2008 NSCA 23 at para. 29
    R v Mallery 2008 NBCA 18 at para. 46
    R v Ferguson [2005] 15 MVR (5th) 74 (ONSC) at para. 13
    R v Smith (2004) 3 MVR (5th) 101 (ONSC) at para. 20, 25
    R v Mark [2002] OJ No 870 (ONSC)
  13. ↑ R v Amyotte [2009] OJ 5122 (ONSC) at para. 127 R v Weir [2005] BCJ No 2845 (BCSC)
  14. ↑ R v Weir [2005] BCJ No 2845 (BCSC)

Rebutting Presumption

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

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

Ontario cases suggest that the accused must establish that the occupancy began without the intention to put the vehicle in motion.[2] The fact that the accused intended to sleep at the time of discovery does not rebut the presumption.[3]

The initial intention upon the entry into the vehicle establishes the mens rea.[4] A change of intention does not rebut the presumption.[5]

Saskatchewan cases suggest that the time to assess intention is the "overlap period" in the proceeding 2 hours before the breath test.[6]


Indecision of the accused does not rebut the presumption.[7]

It is not sufficient that there be a "bald assertion" that the accused did not intent to drive.[8]

The driver who says "I'll only drive when I am sober" will not rebut the presumption.[9]

  1. ↑ R v Whyte (1988) 42 CCC (3d) 97 (SCC)
    R v Appleby (1971) 3 CCC (2d) 354
  2. ↑ R v Hatfield (1997) 115 CCC (3d) 47 (ONCA)
  3. ↑ R v Hatfield (1997) 115 CCC (3d) 47 (ONCA)
  4. ↑ R v Decker (2002) 162 CCC (3d) 503 (NLCA) at para. 6
  5. ↑ R v Ahunu-Kumi [2006] OJ No 2285 (ONSC)
  6. ↑ R v Shuparski (2003) 173 CCC (3d) 97 (SKCA)
  7. ↑ R v Weir [2005] BCJ 2845 at para. 37 ("mere indecision as to whether to drive or to sleep will be indecision to rebut presumption")
    R v George (1994) 5 MVR (3d) 1 (NLCA)
  8. ↑ R v Nicholson [2007] AJ No 1261 (ABCA)
  9. ↑ R v Szymanski [2009] OJ 3623 (ONSC) at para. 59 to 65

Factors of Risk

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:[1]

  1. The risk that the vehicle will unintentionally be set in motion[2]
  2. The risk that through negligence a stationary or inoperable vehicle may endanger the individual or others[3]
  3. The risk that the individual who has decided not to drive will change his or her mind and drive while still impaired[4]

When considering whether an accused was at risk of danger by putting the vehicle in motion, the court may consider the following factors:[5]

  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.

The risk of danger of a change of mind has been described as a "real risk"[6], a "realistic risk"[7] and a risk "going beyond mere possibility", "more than speculative" and “concrete and tangible”.[8]

The risk does not need to be immediate.[9]

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."</ref>R v Szymanski [2009] OJ 3623 (ONSC)
See also: R v Coleman, 2012 SKCA 65
</ref>

  1. ↑ R v Smits, 2012 ONCA 524
  2. ↑ see R. v. Ford, [1982] 1 S.C.R. 231
  3. ↑ see R. v. Vansickle, [1990] O.J. No. 3235 (C.A.), aff’g [1988] O.J. No. 2935 (Dist. Ct.)
  4. ↑ see R. v. Pelletier (2000), 6 M.V.R. (4th) 152 (C.A.)
  5. ↑ R. v. Smits, 2012 ONCA 524 at para 63
    R v Szymanski,(2009), 88 M.V.R. (5th) 182 (S.C.) at para. 93
  6. ↑ see R. v. Szymanski (2009), 88 M.V.R. (5th) 182 (S.C.), at para. 91
  7. ↑ R. v. Ferguson (2005), 15 M.V.R. (5th) 74 (S.C.), at para. 24
  8. ↑ see R. v. Ross, 2007 ONCJ 59, 44 M.V.R. (5th) 275, at para. 13
    R. v. Sandhu (2008), 76 M.V.R. (5th) 305 (S.C.), at para. 71
    for all examples see R. v. Smits, 2012 ONCA 524
  9. ↑ R v Banks 2009 ONCA 482

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 drivers 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 custodial 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]

See also:

  • R. v. Hannemann, 2001 CanLII 28423 (ON SC)
  • R. v. Geoffroy, 2003 ABPC 50 (CanLII)
  • R. v. Coleman, 2011 SKQB 262
  • R. v. Jonsson, 2011 ABPC 301

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 at 13
  2. ↑ R. v. Miller, [2004] O.J. No. 1464
    R. v. Hatfield, [1997] O.J. No. 1327 (C.A.)
    R. v. Ahunu-Kumi, [2006] O.J. No. 2285 (S.C.J.)
    R. v. Szymanski, [2009] O.J. No. 3623 (S.C.J.)
  3. ↑ R. v. Rousseau 1997 CanLII 10217 (QC CA), (1997), 121 C.C.C. (3d) 571
  4. ↑ R. v. Decker 2002 NFCA 9 (CanLII), (2002), 162 C.C.C. (3d) 503, [2002] N.J. No. 38 (NLCA) -- found there were too many steps to get vehicle started to be a risk
  5. ↑ R. v. Bird, 1999 CanLII 12387 (SK PC)
    R. v. Sherbrook, 1998 CanLII 13896 (SK QB)
    R. v. Barber, [1998] S.J. No. 708 (Prov.Ct.)
    R. v. Grover, 2000 ABQB 779
    R. v. Gerrard, 2000 ABPC 182
  6. ↑ R. v. Amendt, 1997 CanLII 1624 (BC SC)
    R. v. Boyd, [1990] N.S.J. No. 517
    R. v. McNabb, 2003 SKPC 118 (CanLII)
  7. ↑ R. v. Martindale, 1995 CanLII 1928 (BC SC)
  8. ↑ R. v. Diotte, 1991 CanLII 2407 (NB CA)
    R. v. Pilon, 1998 CanLII 4717 (ON CA)
    R. v. Ferrier, 2011 ABPC 289
  9. ↑ R. v. Lockerby, 1999 NSCA 122 (CanLII)

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]

  1. ↑ R. v. Dowse, [2011] OJ No. 2935

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) 2 CCC (2d) 327
    R v McQuarrie [1980] NSJ 38
  2. ↑ R v Lackovic [1988] OJ No 1732

Cases

  • R v Andersen, 2012 SKCA 37 -- guilty -- asleep in drivers seat, engine running, doors locked
  • R v Page, 2011 SKPC 152 -- guilty
  • R. v. Zmurchyk, 2010 ABPC 359 -- guilty -- review of case law
  • R. v. Yakobchuk 2005 ABPC 189 - not guilty
  • R. v. Brahniuk, 2002 SKCA 104 -- guilty -- turned on truck, locked door and passed out across the front seats. Risk of putting in motion.
  • R. v. Sherbrook, [1998] S.J. No. 88 (Sask.Q.B.) -- not guilty
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