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IMPAIRED CARE OR CONTROL - SCC MODIFIES TEST

R. v. Boudreault, 2012 SCC 56 (CanLII)

...


B was inebriated and unfit to drive when it was time for him to return home after a night of drinking.  At B’s request, a taxi was called for him, for which he had to wait outside.  It was a cold and windy February morning.  B got into his truck, started the engine, turned on the heat and fell asleep.  When the taxi arrived, the driver called the police.  B was arrested and charged with having care or control of a motor vehicle (1) while his ability was impaired by alcohol and (2) with more than 80 mg of alcohol in 100 mL of his blood, contrary to ss. 253(1)(a) and (b) of the Criminal Code.  He was acquitted on both counts at trial but the Court of Appeal allowed the Crown’s appeal, set aside the acquittals and entered convictions.


                   Held (Cromwell J. dissenting):  The appeal should be allowed and the acquittals restored.


                   Per LeBel, Deschamps, Fish, Abella, Moldaver and Karakatsanis JJ.: “Care or control” within the meaning of s. 253(1) of the Criminal Code signifies

(1) an intentional course of conduct associated with a motor vehicle;

(2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;

(3) in circumstances that create a realistic risk of danger to persons or property.  

With respect to the third element, the risk of danger must be realistic and not just theoretically possible.  Parliament’s objective in enacting s. 253 of the Criminal Code was to prevent the risk of danger to public safety that normally arises from the mere combination of alcohol and automobile.  Conduct that presents no such risk falls outside the intended reach of the offence.  To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention.


                   The existence of a realistic risk of danger is a matter of fact.  In the absence of evidence to the contrary, a realistic risk of danger will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion.  To avoid conviction, the accused will in practice face a tactical necessity of adducing evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case.  The trial judge must examine all of the relevant evidence and may consider a number of factors, including whether the accused took care to arrange an alternate plan to ensure his safe transportation home.


                   In this case, the trial judge, applying the correct legal test to the evidence he accepted, found as a fact that there was no realistic risk of danger.  The trial judge’s conclusion on the facts, however surprising or unreasonable it may appear to another court, did not give rise to a question of law alone.  This is the only ground upon which the Crown, pursuant to s. 676(1)(a) of the Criminal Code, can appeal the acquittal of an accused.  This Court is therefore bound, as a matter of law, to allow B’s appeal, to set aside the judgment of the Court of Appeal, and to restore the acquittals entered at trial.



Jim O'Neil, LL.B.

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