We are all on side about how important it is to prevent drunk driving. Sure, there may be debates about what alcohol level might be an appropriate threshold, whether it is .05 or .08, but generally speaking we all agree that drunk people should not be driving.
Equally, we are all on side that laws ought to operate fairly.
What about when those two values conflict?
Section 253(1)(a) of the Criminal Code prohibits having care or control of a motor vehicle while impaired. Having “care or control” of a motor vehicle while impaired is just as criminal as actually “driving” a motor vehicle while impaired.
On first blush, that makes a lot of sense. We don’t want drunk people having “care or control” of motor vehicles!
I am going to offer you a scenario that might cause you to reconsider.
What about if you absolutely, fundamentally, totally against drunk driving to the point that you wouldn’t drive a car even if you had taken one sip from a beer. You plan ahead to ensure that you have a designated driver or other transportation alternatives if you expect to be in circumstances when you might consume alcohol.
Friends invite you to a house party. You drive yourself to the party intending to take a cab home.
You call for a cab in the wee hours of the morning, when the bars are emptying out and cabs are scarce. The hosts want to go to bed, and you are uncomfortable keeping them up for the hour you will have to wait for a cab.
You decide to wait in your car. It’s the middle of February, and it’s cold. You start the engine to run the heater for a while. You start to nod off, so you lay the seat back. You fall asleep.
An RCMP officer comes by before the cab gets there. Have you committed a criminal offence?
First of all, this is not a far-fetched scenario. I happen to have a clear recollection of going to a “barn” party in Saskatchewan as a teenager and sleeping the night in my car because I had been drinking, and I don’t think I’m unique. I chose this column topic this week because a local fellow has recently had his vehicle impounded and license suspended in similar circumstances.
I have also researched case law related to this issue and can tell you that many people have faced criminal charges in such scenarios.
Back to the question: have you committed a criminal offence? My answer is that “It depends”. Judges hearing these cases have interpreted the “care or control” offence as requiring a consideration of all relevant factors to determine the risk of danger arising from the possibility of intentionally or unintentionally setting the vehicle in motion, including the possibility that you might have changed your mind at some point, perhaps on the cab never arriving, and chosen to drive home.
I don’t like “it depends” when it comes to whether or not certain conduct is criminal.
I also dislike the prospect of people being charged for criminal offences when they have no idea that what they are doing might be criminal. Did you know that sleeping off alcohol impairment in your vehicle could result in a criminal conviction?
These dislikes of mine led to this column, to warn about the “care or control” provisions of the Criminal Code and hopefully prevent good people from unknowingly putting themselves in situations that could result in a criminal charge and conviction.
If you are interested in reading a recent judgment of our Court considering this provision of the Criminal Code, please e-mail me and I will send it to you.
Published February 13, 2011 in the Kelowna Capital News
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