Accused acquitted of care and control by Nova Scotia Provincial Court Judge where accused found sleeping in car with engine running

R. v. MacDonald 2013 NSPC 18 – A Nova Scotia Provincial Court Judge has acquitted the accused of  (a) having the care and control of a motor vehicle and (b) having the care or control of a motor vehicle while in either case he was impaired by alcohol or drug or by having consumed alcohol in such a quantity that his blood alcohol concentration exceeded the legal limit.  At Trial, the accused did not deny that he was intoxicated or that his blood alcohol level exceeded the legal limit.  Rather, he submitted that, in the circumstances of his case, there was no realistic risk of danger to the public by him setting the vehicle in motion. Therefore, it could not be found that, in law, he was in care and control of a motor vehicle.

On New Year’s Eve of 2010, the accused travelled via his car from Yarmouth to Halifax to be with his friend. They had planned to celebrate the New Year together at a local bar.  His friend was staying at a local hotel where the accused went to his room to freshen up before a night of drinking. The agreement was that the accused would stay in the room after they had visited the bar but his friend did not give him an access key.  At some point in time, at the bar, they got separated and the accused, after closing time, thinking that his friend had returned to the hotel room also went there. However, when he knocked on the door he received no response. He, nonetheless, surmised that his friend had gone to buy a pizza so he went into the hotel’s lobby to await his return. The hotel staff, however, informed him that he could not stay in the lobby.  The accused had only $20.00, was intoxicated, and now had no place to stay.  It was very cold outside, so he decided to enter his vehicle in order to keep warm and to await his friend’s arrival. His vehicle was a Honda Civic with standard gear shift and it was legally parked on the street across from the hotel. He occupied the driver’s seat, reclined it and, from habit, put on the seatbelt. Likewise, he put the gear shift into neutral and pulled up the hand brake and turned the engine and heater fan on to keep warm. His intention was to wait for his friend, but he fell asleep.

The running engine, and also the windshield wipers working, caught the attention of a pedestrian, who after checking and seeing the accused asleep in the vehicle, called the police. When the police arrived, they awoke the accused and arrested him, took him to the police station where upon demand he provided breath samples that showed that his blood alcohol concentration exceeded the legal limit. Also, at the police station, he encountered his friend who had been arrested earlier, at the bar, for being involved in a drunken brawl.

At Trial, the Trial Judge set out the essential elements of “care and control” under s. 253(1) of the Criminal Code as ruled in the Supreme Court of Canada decision in R. v. Boudreault 2012 SCC 56:

(1) an intentional course of conduct associated with a motor vehicle;

(2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;
(3) in circumstances that create a realistic risk of danger to persons or property.

Quoting from the Boudreault decision, the Trial Judge also affirmed that the risk of danger must be realistic and not just theoretically possible, but nor need the risk be probable, or even serious or substantial.

  • To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention to prevent a danger to public safety. To require only that the risk be “theoretically possible” is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct.

Additionally, it was affirmed:

  • A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control. On the other hand, an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion — without intending at that moment to do so — may nevertheless present a realistic risk of danger.
  • In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, 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; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.
  • The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger. Likewise, use of the vehicle for a manifestly innocent purpose should not attract the stigma of a criminal conviction.

The Trial Judge found and did not doubt that the accused made arrangements with his friend to spend the night at his friend’s hotel room after a night of celebration. Likewise, the judge found that the accused had a plan that objectively was concrete and reliable. Further, the judge found that the accused tried to implement that plan because after the accused left the bar, he went straight to the hotel room but his friend, unbeknown to him earlier had been arrested. He now found himself in a quandary. He had only $20.00, knew no one else in the city and could not wait for his friend in the hotel’s lobby. Furthermore it was a very cold night – minus ten degrees.

In addition, the judge did not doubt and found that the accused’s blood alcohol level exceeded the legal limit and that he entered his vehicle and occupied the driver’s seat and reclined it. Likewise, the judge accepted and found that his intention was to keep warm from the inclement weather and to await his friend’s return to the hotel. He fell asleep. Further, the judge accepted and found that he put the gear into neutral and firmly applied the hand brakes, and that where his vehicle was parked was a level portion of the highway.

From the above accepted facts, it seemed to the judge that the accused took care not only to ensure that he had a plan to make sure that he would not drive after consuming alcohol, but also when he had no alternative but to wait in his vehicle, he took the precaution to make sure that the handbrake was securely applied and that the car was in neutral gear. This precaution, said the judge, would seem to have immobilized the vehicle as best as he could so that it would not pose a realistic risk of him unintentionally or inadvertently putting it into motion. Further, the judge noted, the accused neither drove to the bar, nor from it, but had previously parked his vehicle. Also, he walked back to the hotel. These factors would, in the judge’s mind, reinforce the notion that, on a reasonable inference, he had no intention to drive his vehicle after his consumption of alcohol.

Even so, the judge commented, it should be clear that it is settled law that the intention to drive the vehicle is not an essential element of the offence.  Thus, as a matter of law, a person found in the driver’s seat of a vehicle is presumed to have its care or control unless he can establish that he did not occupy that seat for the purpose of setting it in motion.  Here, the Trial Judge said that the only relevant argument submitted by the Crown was that at some point, the accused might awake and decide to drive his vehicle. However, the judge reiterated that such a risk must “be realistic and not theoretically possible.” Furthermore, it sets too low a bar as the mere proof of occupying the driver’s seat does not necessarily mean that it can be concluded, without doubt, that such a person, in law, has the care or control of the vehicle.

As a result and applying the principles enunciated in Boudreault to the facts as the judge accepted and found, he concluded that in the circumstances, the accused could not at any point intentionally set the vehicle in motion. Thus, in the judge’s opinion, there was no realistic risk of danger to the public and found him not guilty as charged and entered acquittals on the record.

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