There must be a realistic risk of danger of setting a vehicle in motion before a conviction of impaired care or control will follow.

In R. v. Boudreault, 2012 SCC 56 the accused, inebriated and unfit to drive, decided to leave the apartment of a lady he had met earlier at a bar. He asked her to call for a taxi and it was expected that two drivers would attend – one to take him home and the other to drive his vehicle. He left the apartment into minus 15 degrees Celsius weather with blowing wind at 40 km/h, got into his truck – which was in a private driveway, on level terrain, in park – started the engine, turned on the heat and fell asleep.

The taxi driver arrived about 45 minutes after the first call and saw Boudreault sleeping in the driver’s seat. Instead of waking him, the cabbie called police. Boudreault’s ability to drive was manifestly impaired, he was arrested and subsequently provided two breathalyzer test samples of 250mg% and 242mg%. He was charged with impaired care or control and over 80mg% under s. 253(1) of the Criminal Code.

The Court of Quebec trial judge held there was no risk of Boudreault putting the vehicle in motion and therefore care or control within the meaning of s. 253(1) had not been established. Although Boudreault was intoxicated, he knew what he was doing, took all the necessary precautions and had a concrete and reliable plan to get home without driving, which was thwarted when the very taxi driver he had been summoned called police. Boudreault was acquitted of both counts.

The Crown’s appeal was allowed. The Quebec Court of Appeal considered that an intention to drive wasn’t an essential element to impaired care or control and the trial judge had therefore erred in considering a lack of intention to drive as proof that there was no risk of setting the vehicle in motion. In the Appeal Court’s view, “there was such a risk given the (accused’s) advanced state of intoxication, since his blood alcohol level was more than three times the legal limit and this might have greatly affected his judgment had he woken up.” Convictions were entered.

Boudreault appealed to Canada’s highest court seeking the restoration of his acquittals. The Crown countered, submitting that a risk of danger wasn’t an essential element of the offence of care or control under s. 253(1). In the Crown’s view, even where the presumption of “care or control” under s. 258(1)(a) is not engaged, it only needed to prove the voluntary consumption of alcohol beyond the legal limit or leading to impairment and “some use of the car or its fittings and equipment.” Justice Fish, speaking for himself and five other justices, disagreed. In his view, a realistic risk of danger is an essential element of “care or control.”

Risk of danger?

Justice Fish noted that Parliament’s objective in enacting s. 253 was “to prevent a risk of danger to public safety.” Thus, an accused’s “conduct that presents no such risk falls outside the intended reach of the offence” because Parliament’s intention was to criminalize only conduct that creates a realistic risk of danger.

The essential elements of “care or control” under the section are:

An intentional course of conduct associated with a motor vehicle by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit, in circumstances that create a realistic risk of danger to persons or property.

As noted, this risk of danger must be realistic and not just theoretically or remotely possible. However, the level of risk need not be probable, or even serious or substantial. Justice Fish stated:

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 (para. 35).

And further:

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 (paras. 41-42).

The six member majority held that “anyone found inebriated and behind the wheel with a present ability to drive will – and should – almost invariably be convicted.” However, a conviction will not be “automatic” unless a realistic risk of danger (which is a finding of fact), in the particular circumstances of the case, is established by the Crown. This is a low threshold which will normally be established by impairment or an excessive blood alcohol ratio behind the wheel of a motor vehicle with nothing to stop an accused from setting it in motion, either intentionally or accidentally.

To avoid conviction, an accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that the inherent risk of danger is not a realistic risk in the particular circumstances of the case. For example, an accused may escape conviction “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.”

Alternate plan

In this case, Boudreault had an “alternate plan” to ensure his safe transportation home. Its affect on the risk involved depends on two considerations. First, whether the accused’s plan was objectively concrete and reliable and second, was it implemented? Justice Fish continued:

A plan may seem watertight, but the accused’s level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward.

Even where it is probable that the taxi will appear at some point and the accused occupied the driver’s seat with a valid excuse or reasonable explanation, the trial judge may nonetheless be satisfied beyond a reasonable doubt that there remained a realistic risk of danger in the circumstances (reference omitted, paras. 52-53).

In this case, the Crown only alleged that Boudreault would, at some point, intentionally set his vehicle in motion, thereby causing a risk of danger. The trial judge applied the correct legal test to the evidence and concluded there was no risk that he would at any point intentionally set the vehicle in motion.

He also correctly recognized that the absence of an intention to drive was only relevant to rebutting the presumption in s. 258(1)(a) and that a risk of danger was an essential element of care or control. Even if the trial judge’s findings of fact were viewed unsatisfactory or unreasonable to others, they were not reviewable on a Crown appeal.

Boudreault’s appeal was allowed, the judgment of the Quebec Court of Appeal set aside and the acquittals restored.

A different view

Justice Cromwell, delivering a dissenting judgment, was of the opinion that a risk of danger, whether realistic or otherwise, wasn’t an element of the offence of care or control. He found that such an interpretation would seriously undercut the provision’s preventive purpose. In his view, a person “is in care or control of a motor vehicle when one acts to assume the present ability to operate the vehicle or has its superintendence or management.”

Finally, even if the creation of a risk was an essential element of the offence, Justice Cromwell concluded that the trial judge erred in law by finding that it had not been proven in this case. He would have dismissed Boudreault’s appeal.