Found in the Back Seat: Why "Care or Control" Isn't Automatic

My client was found in the back seat of his car with the keys. He was charged with impaired driving and refusing a breath sample. The judge agreed he was not in care or control of the vehicle and acquitted him. No record and no driving ban.

Most people assume impaired driving means driving. It doesn't have to. Canada's Criminal Code defines "operating" a vehicle to include having care or control of it, even if it never moves. That means a person can be charged while parked, sitting in the car or sleeping in it.

But care or control is not automatic just because someone is in or near a car with the keys. The Crown still has to prove it, and that is where many of these cases are won.

The driver's seat matters

The Criminal Code contains a presumption. If the accused was in the seat ordinarily occupied by the driver, the court presumes they were operating the vehicle. The accused can rebut it by showing they were not in that seat for the purpose of setting the vehicle in motion.

The presumption only applies to the driver's seat. Someone found in the back seat or the passenger seat does not start with that presumption against them. The Crown has to prove care or control on the evidence.

What the Crown has to prove

In R v Boudreault, 2012 SCC 60, the Supreme Court of Canada explained what care or control means. The Crown must prove an intentional course of conduct connected with the vehicle, by a person whose ability to drive was impaired or whose blood alcohol was over the legal limit, in circumstances that create a realistic risk of danger to people or property.

That realistic risk is the key. The court asks whether there was a real chance that the vehicle could be set in motion, on purpose or by accident, or that the person might change their mind and drive while still impaired. A theoretical risk is not enough.

The facts the court looks at include where the person was sitting, where the keys were, whether the engine was running, whether the vehicle could actually move, and whether the person had another plan to get home, such as a ride or a taxi.

Why refusing a breath sample is tied to the same question

My client was also charged with refusing to provide a breath sample. Police can only make a breath demand in certain circumstances, and the refusal charge in these cases turns on the same facts. When the evidence did not show care or control, the refusal charge did not stand either.

Why it matters

An impaired driving or refusal conviction carries a criminal record, a mandatory minimum fine and a driving prohibition of at least a year for a first offence. Those consequences can cost a person their job. Ontario also imposes roadside licence suspensions and vehicle impoundment separately from the criminal case.

If you were found in or near a parked car and charged, the details matter: where you sat, where the keys were and what your plan was. Don't assume the case is hopeless. Speak to a criminal defence lawyer before your first court date.