You do not have to be driving to be charged with a DUI offence in Ottawa. Someone who is found by the police in the back-seat of a car, or outside a car, can be charged with impaired / over 80 “care and control” in Ontario. The case law on when an accused person will be found to be in “care and control” can be confusing. The Ontario Court of Appeal’s recent decision in R. v. Smits helpfully summarizes the facts which courts will consider in assessing “care and control”.

In R. v. Smits, the accused was found  passed out in the rear seat of a minivan. The van was on the side of a rural road. The key was in the ignition, but the engine was not running, although it was still warm. The police said the accused was disoriented, his eyes were bloodshot and glassy, his breath smelled of alcohol, and he swayed. The Court of Appeal upheld the accused’s conviction based on the risk that he might decide to drive the vehicle.

 The dangers of “care and control”

The Court of Appeal identified three risks of danger where an intoxicated individual uses a motor vehicle for a non-driving purpose:

 1. The risk that the vehicle will unintentionally be set in motion.

2. The risk that through negligence a stationary or inoperable vehicle may endanger the individual or others.

3. The risk that the individual who has decided not to drive will change his or her mind and drive while still impaired.

Factors for assessing “care and control”

The Court of Appeal approved of a list of factors a court might look at when engaging in a risk of danger analysis:

(a) 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;

(b) Whether the keys were in the ignition or readily available to be placed in the ignition;

(c) Whether the vehicle was running;

(d) The location of the vehicle;

(e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination;

(f) The accused’s disposition and attitude;

(g) Whether the accused drove the vehicle to the location where it was found;

(h) Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving;

(i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit;

(j) Whether the accused had a stated intention to resume driving;

(k) Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption;

(l) Whether the accused was wearing his or her seatbelt;

(m) Whether the accused failed to take advantage of alternate means of leaving the scene;

(n) Whether the accused had a cell phone with which to make other arrangements and failed to do so.