Definition
- Care or control of a motor vehicle while impaired by alcohol or a drug or being over the legal limit is a criminal offence under section 253(1)(a) and (b) of the Criminal Code, respectively.
- An intention to drive is not part of the offence. For example, care or control may be exercised without an intention to drive where a person performs 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.
- An example would be where an individual who is impaired by alcohol or by a drug is sitting parked in the driver’s seat with the car engine running. Depending on the exact factual situation, a court could clearly find that there is a risk that the vehicle could be set in motion even though the person may not have an intention to drive.
- This is a very complex area of drinking and driving/impaired by a drug law with reverse onus provisions and case law which is difficult to understand and reconcile. Defending a care or control case requires the expertise of an impaired driving lawyer who is well versed and has extensive courtroom experience in this area of law.
Defences
There are various defences which can be advanced to show you were not in care or control. For example, depending on the particular fact situation, a person sleeping may or may not be in care or control and convicted or acquitted. A person who is sitting in the driver’s seat of a running car may be able to create a reasonable doubt by testifying that they had a clear plan not to drive and there was no risk of the car being put in motion. For example, they may have phoned a taxi to come and pick them up from the bar minutes before the police arrived and were simply waiting in the driver’s seat with the heat on and listening to music. The Supreme Court of Canada carefully analyzed the law of care and control in a recent decision called R. v. Bouldreault. The bottom line is that every care or control case turns upon its own particular facts. At Kruse Law Firm, an experienced Ontario OVI lawyer will work with you to defend your OVI offence.
Michael Kruse is a seasoned criminal defence lawyer with more than 36 years of experience in Ontario. A former Assistant Crown Attorney, Mike brings decades of courtroom and trial experience to the defence of serious criminal charges. He leads Kruse Law Firm with a strategic, practical approach focused on strong advocacy and achieving the best possible outcome for every client.
