Under section 253(1) of the Criminal Code, every one commits an offence who operates a motor vehicle or has care or control of a motor vehicle
a) while the person’s ability to operate the vehicle is impaired by alcohol or drug; or
(b) having a blood-alcohol concentration that exceeds 80 mg of alcohol per 100 ml of blood.
The risk of danger is an essential element of “care or control” under s. 253(1) of the Code. Accordingly, conduct that presents no such risk falls outside the intended reach of the offence.
R. v. Boudreault, 2012 SCC 56 (CanLII), at para. 10 & 32.
Proving Care and Control
The Crown may prove “care or control” three ways:
1. prove that the accused was driving and thus necessarily in care or control.
2. that the accused occupied the driver’s seat of the vehicle triggering the s. 258(1)(a) presumption of care or control subject to rebuttal by the defence.
3. that the accused had care or control of the vehicle in circumstances that posed a risk of danger
If any of the above three prongs are met, the accused will be found to be in care and control of a motor vehicle.
The Statutory Presumption of Care and Control
An intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence. [FN1]
Section 258(1)(a) of the Code provides a presumption that an accused who occupies the driver’s seat of a motor vehicle is in care or control of that vehicle (as he is presumed to have an intention to drive).
Rebutting the Statutory Presumption of Care and Control
That presumption may be rebutted if the accused establishes on a balance of probabilities that he did not occupy that seat for the purpose of setting the vehicle in motion.
See R. v. Smits, 2012 ONCA 524 (CanLII), at para. 47.
The relevant timeframe for consideration of the accused’s intention is the time when the accused first entered and occupied the driver’s seat.
R. v. Hatfield (1997), 33. O.R. (3d) 350 at para. 19: “Where an intoxicated person is discovered occupying the driver’s seat of a vehicle, the presumption will apply unless the person can demonstrate that his or her occupancy began without the purpose of setting the vehicle in motion.”; See also, R v Miller, , OJ No 4896,(QL)(SCJ) at paras 21 to 29 aff’g , OJ No 1464 (QL)(Ont CA); R v Maslek,  OJ No 2770 (SCJ).
Rebutting the presumption does not afford a complete defence to the charge. Where the presumption is rebutted, the burden of proof shifts back to the prosecution to establish actual care or control beyond a reasonable doubt without the evidentiary aid provided by the 258(1)(a) presumption.
Although the presumption may be rebutted by proof of the absence of the requisite intention, the risk of danger remains relevant for the purpose of determining whether the accused’s conduct in relation to the vehicle presents a realistic risk of danger to persons or property so as to establish care or control under s. 253(1) of the Code:
R. v. Boudreault, at para. 41; R. v. O’Neill, 2016 ONCA 307, at para. 10.
What constitutes 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.
1. 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;
2. an inebriated person behind the wheel may unintentionally set the vehicle in motion;
3. through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.
R. v. Boudreault, at para. 42.
The risk of danger must be a realistic risk, not a speculative risk, although not necessarily a serious or probable or substantial risk either.
R. v. Boudreault, at paras. 34-35.
Factors to Consider
The issue of whether there is a realistic risk of danger is a question of fact and is to be determined by the trial judge after examining all the relevant evidence and after considering a number of factors.
R. v. Boudreault, paras. 11 & 50.
In short, the trier of fact must examine the facts and determine if the real risk exists. Assessing the risk may involve a variety of factual pieces.
In R. v. Szymanski, 2009 CanLII 45328 (ON SC), Durno J. provides a very useful, non-exhaustive list of factors a court might look at when engaging in a risk of danger analysis on the basis of circumstantial evidence [FN2]:
a) The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive;
b) Whether the keys were in the ignition or readily available to be placed in the ignition;
c) Whether the vehicle was running;
d) The location of the vehicle;
e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination;
f) The accused’s disposition and attitude;
g) Whether the accused drove the vehicle to the location where it was found;
h) Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving;
i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit;
j) Whether the accused had a stated intention to resume driving;
k) Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption;
l) Whether the accused was wearing his or her seatbelt;
m) Whether the accused failed to take advantage of alternate means of leaving the scene;
n) Whether the accused had a cell phone with which to make other arrangements and failed to do so.
The question the court must determine is whether any realistic risk of danger was created, not whether the accused had done “all that could be done to reduce the risk”.
R. v. Balogun-Jubril, 2016 ONCA 199, at para. 12.
A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger.
R. v. Boudreault, para. 41.
However, danger can come in many forms. The offence does not require that the vehicle be moved to create a risk of danger.
R. v. Wren, 2000 CanLII 5674 (ON CA), at para. 14.
Operation while impaired
253 (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control 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 person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
Proceedings under section 255
s. 258(1)(a) Where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, the accused shall be deemed to have had the care or control of the vehicle, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle in motion.
[FN1]: Where the presumption under s. 258(1)(a) is not rebutted, the Crown is not required to prove a realistic risk of danger because that risk is embedded in the presumption: R. v. Blair, 2014 ONSC 5327 (CanLII), 2014 ONSC 5327 (Ont. S.C.J.), Trotter J; see also R. v Gulak, 2017 ONSC 3576 (CanLII).
[FN2]: Approved by the ONCA in R. v. Smits, 2012 ONCA 524 (CanLII).