Impaired Driving, Care and Control - Gustavo da Roza

Impaired driving is the leading criminal cause of death and injury in Canada. Thus, the importance of deterring individuals from driving while impaired by alcohol and/or drugs has been reflected in the Criminal Code of Canada where the penalties for the offense of driving impaired range from a mandatory minimum fine to life imprisonment, depending on the severity of the offence. One key factor in determining an impaired driver is whether they had care or control of the vehicle, which was the issue in appeal for the case of R. v. Truthwaite (“Truthwaite”) before the Manitoba Court of Queen’s Bench (“MBQB”).

Furthermore, even though Truthwaite was decided recently in 2020, the facts of this case occurred in 2016, which was before the significant changes to the impaired driving laws of the Criminal Code that occurred in 2018. One such major change that I would like to address and that is also related to the “care or control of the vehicle” as reviewed in Truthwaite, is the new section 320.14(1)(b) “Operating with a BAC equal to or exceeding 80 mg of alcohol in 100 ml of blood within two hours of driving.” This new section potentially poses serious risks to rights guaranteed under the Charter of Rights and Freedoms (“Charter”), which I will discuss further below.

A crashed car and a drunk driver

At approximately 2 a.m., a police officer who was patrolling Highway 44 in Manitoba came upon a vehicle that appeared to be stuck in a snowbank just off the side of the highway. Once the police officer got closer to the vehicle, he observed that the vehicle engine was running, lights were turned on, and the tires were spinning as if the driver was trying to dislodge the vehicle from the snowbank. The police officer approached the vehicle and saw a person sitting in the driver’s seat of the vehicle, who then got out of the vehicle – this was David Truthwaite.

Once Truthwaite saw the approaching police officer and got out of the vehicle, he acknowledged the officer and said he was “spinning out here” and that he had been “backing up, going forward, trying to get unstuck.” The officer testified that Truthwaite said at one point that his vehicle probably had to be towed or his vehicle was getting towed. Subsequently, the officer had a reasonable suspicion that Truthwaite had been drinking, and evidently Truthwaite had a blood alcohol concentration (“BAC”) of 130 milligrams per cent, exceeding the Criminal Code limit of 80 milligrams per cent (0.08).

An accused found in care and control of his vehicle

Once the case went to trial, the judge found Truthwaite guilty of care or control of a vehicle over the 0.08 BAC limit as per section 258 of the Criminal Code (note that this section has since been replaced by section 320). To be guilty of this offence, the Crown needed to prove that the person – having been tested above the BAC limit – had occupied the driver’s seat of the vehicle and thereby had care or control of the vehicle. The accused could rebut this presumption on a balance of probabilities by establishing that he did not occupy the seat for the purpose of setting the vehicle in motion. However, even if the accused did rebut the presumption, the Crown may still have been able to convict if it proved beyond a reasonable doubt that there had been a realistic risk of danger to persons or property (Note: this does not need to be proven if the accused has not rebutted the presumption of care or control).

The trial judge, relying on the police officer’s testimony as the facts, found that no presumption of care or control had been rebutted since the vehicle was running, the lights were turned on, Truthwaite was sitting in the driver’s seat, and, most importantly, he had indicated that he was trying to get “unstuck” from the snowbank and had called a tow truck. Based on these circumstances as described by the testimonial evidence, the trial judge concluded Truthwaite’s intention was to get the vehicle out of the snow and continue on his way.

An appeal based upon a recent acquittal

Truthwaite appealed the decision, arguing that the verdict was unreasonable in regard to the trial judge’s conclusion that he had control of the vehicle. More specifically, Truthwaite argued that (1) there was a reasonable inference of the facts available that a presumption of care or control had been rebutted, and (2) that the Crown could not establish that there was a realistic risk of danger to still convict in lieu of point (1).

Truthwaite argued that a reasonable inference of the evidence available was that he had abandoned the intention to drive and was waiting for a tow truck. He relied on an argument from R. v. Burbella (“Burbella”), in which an accused was found impaired in the driver’s seat attempting to assist the tow truck get his vehicle out of the snow. The Crown’s argument in Burbella that the accused was in care and control was rejected. Even though Burbella was impaired, the vehicle was “wholly inoperable” and “not capable of constituting a danger to the public.” There was no evidence that Truthwaite’s vehicle was inoperable.

I agree with the Justice here because it was clear in Burbella that his vehicle was inoperable. Also, in this case the vehicle had still been running, tires spinning, and there had been no evidence that the vehicle could not have been extricated either by Truthwaite or by a tow truck. Thus, it was not unreasonable for the trial judge to conclude that the presumption of care and control had not been rebutted. In addition, if the vehicle did become unstuck, Truthwaite in his impaired state could have easily been a risk of danger to the public if he had opted to hop back into his vehicle and drive away.

Truthwaite also relied on the case of R. v. Boudreault (“Boudreault”) to argue that he was just waiting in the driver’s seat of his vehicle for the tow truck to come pick him up. The MBCB in Truthwaite rejected this argument from Boudreault because, in that case, Boudreault had made alternative plans for a taxi to come pick him up, despite being found intoxicated sitting in the driver’s seat of a running vehicle that was parked. At the time of Boudreault’s police interaction, he had been merely sitting waiting for them to arrive.

I question Boudreault’s rejection because, although a taxi is a more legitimate alternative plan for travel than a tow truck, a tow truck can still drive you home. It is not unreasonable to call a tow truck driver to pull your vehicle out of the snow and tow the vehicle to your home while hitching a ride. Furthermore, tow trucks are often “24/7” operations and may be the only option for a ride if no taxi service in the area. However, even if my position on the presumption rebuttal was accepted, the Crown could still convict based on the realistic risk of danger. There is definitely a risk that Truthwaite, before the tow truck showed up, could have successfully dislodged the vehicle out of the snowbank and hit a passing car or pedestrian while impaired.

Unintended consequences two hours after driving

As described above, the care or control of a vehicle while impaired by alcohol or drugs requires a clear rebuttal presumption and no risk of danger to the public to avoid conviction. Additionally, a driver could use the “intervening drink” defence, that is, when a driver claims to have consumed alcohol after operating the vehicle but before testing. This defence is most commonly used after an accident where a driver claims to have drunk to “calm their nerves” after the accident. If, hypothetically, Truthwaite had had liquor on him and argued that he had started drinking after crashing into the snowbank, would he still be found guilty? Unfortunately, this defence has a potential for abuse if an individual had conveniently been in possession of unopened liquor in the vehicle. In an attempt to eliminate this defence (in addition to other stricter impaired driving statutes), the federal government created section 320.14(1)(b) of the Criminal Code, “[o]perating with a BAC equal to or exceeding 80 mg of alcohol in 100 ml of blood within two hours of driving.”

This provision is potentially very troubling in that individuals could be convicted of impaired driving despite being sober while driving. This has essentially extended the care or control of the vehicle by two hours after driving. For example, say you were driving erratically on your way home (yet were sober). Once you got home, assume you then decided to drink some beers. In the meantime, assume that someone had reported your erratic driving to the police and that the police then decided to investigate, arriving at your home after you had consumed three beers in one hour’s time. If the police in such a hypothetical case were to demand an alcohol screening test (which also does not require a reasonable suspicion anymore as per section 320.27(2)) and you were above the BAC limit then the onus would be reversed. In such a case, it would be on you to prove your innocence. Both of these new sections are possible infringements of sections 7 and 8 of the Charter. There is no doubt that impaired driving is a serious issue for all Canadians, however are these new Criminal Code provisions in violation of our Charter rights?