Under Canadian law, those convicted of an impaired driving offence including over .80 and refusal to comply with a demand for a second or subsequent time will face a mandatory minimum period of custody. Those convicted for a second time will typically face at minimum 30 days in jail, while those convicted for a third or subsequent offence will face increased penalties for each additional conviction. Only in rare circumstances can a jail sentence be avoided for a second or subsequent offender.
What is Care and Control?
Impaired driving offences are concerned with the act of operating a vehicle. Section 320.11 of the Code defines “operate” as, “in respect of a motor vehicle to drive it or to have care or control of it.” Care and control is a broader term than driving that allows the law to punish a wider range of criminal behaviour.
Under the law, care and control can be established in two ways. First, police are allowed to assume that anyone in the driver’s seat of a vehicle has care and control of it unless that person can prove that they could not possibly drive. Such proof may be that the keys to the vehicle were not accessible or in the possession of the accused. Secondly, care and control can be inferred if a person is impaired beyond the legal limit, they have engaged in a course of conduct that concerns a vehicle and they pose a realistic risk to other people and property.
The Provincial Court of Nova Scotia case of R. v. Lewis, 2021 NSPC 2 (CanLII) [at paras 17-18] provides an excellent example of when the law finds an accused person has care and control of a vehicle even if they never actually drove it.
Turning to Mr. Lewis. Was he a realistic danger while behind the wheel of the vehicle on the night in question? It is clear he was in the driver’s seat. It is also clear he was very impaired with a blood alcohol level above the legal limit.
The realistic risks of danger were clear and present that evening with Mr. Lewis behind the wheel. The keys to the vehicle were in an easy position to access between the seat and the door. The vehicle was a manual whose stick shift could realistically been moved to allow the vehicle to be put in motion.