Mr. Boudreault got drunk at a bar. He met a woman and they went back to her place. The next morning she kicked him out. He called a taxi service which specialized in getting impaired drivers and their cars home. It was a cold winter morning. Mr. Boudreault started the engine. The taxi driver found Mr. Boudreault asleep behind the wheel and called the police. The police charged him with impaired “care and control”.

Was Mr. Boudreault in “care or control” of the vehicle? A trial he was found not guilty. The Quebec Court of Appeal disagreed. The Supreme Court of Canada restored the acquittal in an October 2012 decision.

Someone in the driver’s seat is presumed to be in “care and control”

Section 258(1)(a) of the Criminal Code requires a court to presume that someone sitting in the driver’s seat had “care or control” of the vehicle, unless the driver explains that he had some other purpose than setting the vehicle in motion. Mr. Boudreault’s explanation obviously fit the exception. The presumption did not apply to Mr. Boudreault. But, could Mr. Boudreault be convicted based on the risk of danger he posed?

What is a “realistic danger”?

Before Mr. Boudreault’s case, some provincial appeal courts held that an accused person who was using a car could still be convicted of “care and control” even if his conduct posed no risk of danger.

In the Boudreault case, the Supreme Court clarified that to be convicted of “care and control” the circumstances of the inebriated person must create a “realistic risk of danger to persons or property.” Simply using the fittings or equipment of the car is not enough. The risk of danger must be realistic and not just theoretically possible. On the other hand, “the risk does not have to be probable, or even serious or substantial.”

The Supreme Court stated that that a “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”.

The Supreme Court recognized that a realistic risk of danger may arise in at least three ways absent a present intention to drive, for example where:

(1) 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;

(2) an inebriated person behind the wheel may unintentionally set the vehicle in motion; and

(3) through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

How to be found not guilty of “care and control” in Ontario

To avoid conviction, an accused must present credible and reliable evidence proving that no realistic risk of danger existed in the particular circumstances of the case. An accused may be found not guilty where they show:

• The vehicle was inoperable.

• The vehicle could, under no reasonably conceivable circumstances, pose a risk of danger because of its location.

• The vehicle was used for an innocent purpose, like sleeping, and the inebriated accused would not change his mind and begin to drive.

• The accused took care to arrange a reliable “alternate plan” to ensure his safe transportation home.