Operation vs Care or Control

• Author: Karen Jokinen/Peter Keen
• Pages: 253-271

253

Operation

vs Care or

Control

15

I. Introduction ............................................. 254

II. Operate vs Care or Control: Denitions ....................... 254

III. Importance of Care or Control ............................... 255

IV. What Is Care or Control? ................................... 255

V. Proof of Care or Control .................................... 256

VI. Criminal Code: Presumption of Operation (s 320.35) ............ 256

VII. Occupying the Driver’s Seat ................................ 257

VIII. Rebutting the Presumption: Standard of Proof ................. 257

A. Does the Accused Have to Testify to Rebut

the Presumption? ................................... 258

B. The Accused’s Evidence Aimed at Rebutting the Presumption

May Be Used to Assess De Facto Care or Control .......... 258

C. Relevant Time for Assessing the Accused’s

Intention to Drive ................................... 258

D. Impact of a Break in Continuum in Care or Control ........ 261

E. An Intent to Drive When Sober Will Not Rebut

the Presumption .................................... 262

F. Waiting for a Ride ................................... 262

G. The Crown Does Not Have to Prove a Realistic Risk of

Danger When the Presumption Applies ................. 263

H. De Facto Care or Control ............................. 264

I. Inoperable or Immovable Vehicles and Care or Control ..... 267

IX. Conclusion .............................................. 271

© 2023 Emond Montgomery Publications. All Rights Reserved.

254 Impaired Driving and Other Criminal Code Driving Oences

I. Introduction

Many drinking and driving trials involve individuals who were not driving but who

were either in the driver’s seat of the conveyance or had done something in relation

to the conveyance that suggested they might drive. These trials hinge on whether the

Crown can prove the accused was in “care or control” of the conveyance.

Under the old legislation, section 253(1) of the Criminal Code1 prohibited both driv-

ing or assuming care or control of a motor vehicle while impaired or “over 80.” Under

the new legislation, “operate” is defined to mean both to drive or to have “care or con-

trol.” This chapter analyzes the meaning of care or control, why it is important, and

how the Crown can prove an individual is in care or control. It also discusses the pre-

sumptions that establish care or control once an accused is found in the driver’s seat.

This chapter points out that the law in relation to care or control remains unchanged

under the new legislation. Accordingly, counsel can rely on pre-existing cases.

II. Operate vs Care or Control: Definitions

Under the previous sections in the Criminal Code, the terms “operate” and “care or

control” were found repeatedly in the charging provisions. For example:

253(1) Every one commits an oence who operates a motor vehicle or vessel or oper-

ates or assists in the operation of an aircraft or of railway equipment or has the care or con-

trol of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway

equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the per-

son’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

This language was cumbersome. One of the goals of Bill C-462 was to make the

language in the Criminal Code simpler without necessarily changing the meaning. It

accomplished this through definitions that encompassed a number of terms. “Oper-

ate” is defined in section 320.11 of the Criminal Code as follows:

operate means

(a) in respect of a motor vehicle, to drive it or to have care or control of it;

(b) in respect of a vessel or aircraft, to navigate it, to assist in its navigation or to

have care or control of it; and

(c) in respect of railway equipment, to participate in the direct control of its motion,

or to have care or control of it as a member of the equipment’s crew, as a person who

acts in lieu of a member of the equipment’s crew by remote control, or otherwise.

1 RSC 1985, c C-46.

2 An Act to amend the Criminal Code(oences relating to conveyances)and to make consequential

amendments to other Acts, 1st Sess, 42nd Parl, 2018 (assented to 21 June 2018), SC 2018, c 21.

© 2023 Emond Montgomery Publications. All Rights Reserved.