People are often surprised to learn that you can be charged with a driving offence for being under the influence of alcohol or drugs while sitting in a parked car. Just being in the driverโs seat with access to the car keys is enough to trigger a care and control charge.
What Is a Care and Control Charge in Ontario?
Care and control is not a separate crime; it is part of what the police and the Crown (the prosecution) can use to support a charge of impaired driving. This is the statutory framework:
- Section 320.14 of the Criminal Code of Canada makes it a crime to โoperateโ a vehicle while impaired by alcohol or drugs.
- However, โoperateโ does not only mean โdrive.โ Section 320.11 defines โoperationโ as having care or control of the vehicle, even if you are not driving.
- Section 320.35 stipulates that if you are in the driverโs seat, you are presumed to be in care or control of the vehicle.
In short, if you could potentially have set the vehicle in motion, either intentionally or accidentally, and you are impaired, you were in care and control of the vehicle and could face a care and control charge.
Penalties for a Care and Control Charge in Ontario
Criminal penalties for a care and control charge include fines, jail time, and a license suspension. You could also wind up with a criminal record, which can affect your current and future employment, your car insurance, and certain travel destinations. If you have been charged with impaired operation of a vehicle, even though you were not driving, you must take these charges seriously.
Beating a Care and Control Charge in Ontario
If you are dealing with a care and control charge, you can defend yourself by arguing that you had no intention to drive the vehicle and/or could not have moved it accidentally. Common defences are:
You Were Using the Car for Shelter or Safety
You might have been planning to rest in your car until it was safe for you to drive. If that is the case, you can argue that your car was the most secure place for you to do that and that you were keeping the safety of others in mind.
The Engine Was Off, and the Car Was Parked
If the car was, for example, in a private driveway and showed no signs of having recently been moved, you can use that as evidence that you were not planning to move it. If your car was blocked in by other cars, you can argue that you could not even have moved it accidentally.
The Keys Were Not Immediately Accessible
A care and control charge assumes that you could have put the vehicle in motion. If your keys were in the glove compartment or you had given them to a friend to hold for you, you can use that to show that you were not planning to drive.
You Were Not in the Driverโs Seat
If you were in the passenger seat or the back seat, it would be more difficult (although not impossible) for the Crown to prove that you intended to drive.
There Is Documentary Evidence or Witness Testimony of Your Claim.
You may have spoken to someone about sleeping it off in your car or have text messages to that effect. That can be used as evidence that you did not intend to move your car. If you can show that you ordered a taxi or an Uber while waiting in your car, that is further evidence that you took steps to avoid driving.
Having an experienced criminal lawyer on your team is key to beating a care and control charge. If you are arrested, contact one immediately.
How to Beat a Care and Control Charge: Case Example
One of the most well-known examples of someone beating a care and control charge is the case of R v Boudreault1, which went all the way to the Supreme Court of Canada in 2012.
The case involved Donald Boudreault, who was intoxicated after a night out with friends. Boudreault knew he was too impaired to drive and asked a friend to call a taxi. He waited for the taxi in his parked truck and turned the engine on to stay warm, subsequently falling asleep behind the wheel. He was charged with impaired operation of a vehicle when the taxi driver discovered him.
At trial, Boudreault was acquitted when the judge found there was no realistic risk he would have driven. The acquittal was supported by this evidence:
- He had already called a taxi and was waiting for it.
- He was parked in a private driveway, not a public road.
- The engine was on only for heat, not for driving.
- He took reasonable steps to avoid creating danger.
This case demonstrates how to beat a care and control charge with an excellent defence strategy in the hands of a skilled criminal lawyer.
How a Criminal Lawyer Can Help with Your Care and Control Case
The advice and counsel of a criminal lawyer are invaluable when the stakes are this high. Although you may believe in your innocence and feel that you can defend yourself, the criminal justice system can be extremely difficult to navigate without assistance. It is very easy to make a mistake that could compound the penalty you would otherwise have faced.
If you have been charged with impaired operation of a vehicle that was under your care and control, contact the team at Zamani Law. Led by renowned criminal lawyer Farid Zamani, Zamani Law has the resources, experience, and tenacity to defend you from these complex charges. We will protect your rights, investigate your case, and build a robust defence that will result in the best outcome possible for you.
Contact Zamani Law today for a free consultation.
References:
1 R v Boudreault, 2012 SCC 56, [2012] 3 SCR 157. Supreme Court of Canada https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/12636/index.do.
