You Don’t Have to Be Driving
The Criminal Code impaired driving offence under section 320.14(1)(a) applies to anyone who operates or has care or control of a conveyance while impaired. The offence does not require the Crown to prove you were driving. If you were sitting in a parked car, sleeping in the driver’s seat, or warming up the engine in a parking lot, you can be charged with the same criminal offence — carrying the same penalties — as someone caught driving on the highway.
This surprises most people. The logic behind it is preventative: Parliament intended to capture situations where an impaired person has the ability to set a vehicle in motion, creating a risk even if they have not yet started driving.
What “Care or Control” Means in Law
The Criminal Code does not define “care or control” explicitly. The meaning has been developed through case law, most importantly by the Supreme Court of Canada in R v. Boudreault (2012).
In Boudreault, the Supreme Court held that care or control requires the Crown to prove that the accused’s actions or course of conduct created a realistic risk of danger — a risk that the vehicle could be set in motion. The Court rejected the broader interpretation that any act involving a vehicle (such as using it as a shelter) automatically constitutes care or control.
The test focuses on whether there was a realistic risk that the accused would set the vehicle in motion. Factors courts consider include:
- Whether the accused was in the driver’s seat
- Whether the keys were in the ignition (or accessible in a push-button start vehicle)
- Whether the engine was running
- Whether the accused had an intention to drive
- Whether the accused had made alternative arrangements to get home (a cab was called, someone was coming to pick them up)
- Whether the accused was using the vehicle for a non-driving purpose (sleeping, charging a phone, seeking warmth)
The Presumption — and How to Rebut It
The Criminal Code creates a presumption of care or control: if you are found occupying the driver’s seat, you are presumed to have had care or control of the vehicle. This presumption shifts the evidentiary burden to the defence.
However, the presumption can be rebutted. The accused can lead evidence showing that they did not intend to put the vehicle in motion and that there was no realistic risk of the vehicle being set in motion. If the defence successfully rebuts the presumption, the Crown must prove care or control without relying on the presumption.
Examples of evidence that can rebut the presumption:
- The accused had called a taxi or rideshare and was waiting for it to arrive
- The keys were in the trunk, glove box, or with another person
- The vehicle was inoperable (flat tire, dead battery, stuck in snow)
- The accused was asleep and had taken steps to avoid driving (set an alarm, told someone not to let them drive)
- The accused was in the back seat using the vehicle as shelter
Common Scenarios
Sleeping in a Running Car
This is the classic care or control scenario. A person has been drinking, decides not to drive, and gets in their car to sleep it off — often with the engine running for heat or air conditioning. Police find them in the driver’s seat with the engine on. The Crown argues care or control based on the presumption.
The defence turns on whether there was a realistic risk the vehicle would be set in motion. If the accused was deeply asleep, the car was in park, and there is no evidence of an intention to drive, the presumption may be rebutted. But the engine running is a significant factor — it demonstrates that the vehicle was capable of being moved and that the accused had activated it.
Sitting in a Parked Car
A person sitting in the driver’s seat of a parked car with the engine off and the keys in the ignition or on the dashboard can still face a care or control charge. The Crown’s case is weaker than the running-engine scenario, but the presumption still applies if the accused is in the driver’s seat. The defence focuses on what the accused was doing (waiting for a ride, using their phone, charging a device) and whether the keys were accessible.
Warming Up the Vehicle
Starting the engine to warm up the car — even with no intention of driving — is one of the strongest indicators of care or control from the Crown’s perspective. The act of turning the key demonstrates that the accused had the present ability to set the vehicle in motion. Defence arguments in this scenario typically focus on the accused’s plan (was a sober driver coming?) and whether alternative arrangements had been made.
Defences to Care or Control Charges
No Realistic Risk of Danger
Following Boudreault, the defence can argue that there was no realistic risk the vehicle would be set in motion. This is the primary defence in most care or control cases. If the accused can show they had no intention to drive and had taken steps to prevent driving, the charge should fail.
Not Impaired
Care or control still requires the Crown to prove impairment. All of the defences available in a standard impaired driving case — challenging the officer’s observations, alternative explanations for physical symptoms, medical conditions — apply equally to care or control charges.
Charter Violations
The same Charter protections apply: right to counsel under section 10(b), protection against arbitrary detention under section 9, and protection against unreasonable search under section 8. If police approached the vehicle without lawful authority, demanded a breath sample without proper grounds, or failed to provide the right to counsel, the evidence may be excluded under section 24(2).
Penalties
Care or control carries the same penalties as impaired driving: a mandatory minimum $1,000 fine and one-year driving prohibition for a first offence, 30 days imprisonment for a second, and 120 days for a third or subsequent. The consequences are identical: criminal record, interlock device, Back on Track program, insurance increases, and US travel ban. There is no reduced penalty for “only” having care or control versus actually driving.
Why These Charges Are Worth Fighting
Care or control cases are among the most defensible impaired driving charges. The “realistic risk of danger” test from Boudreault gives the defence meaningful room to argue. Unlike cases where the accused was caught driving erratically, care or control cases often involve people who were trying to do the right thing — sleep it off instead of drive — and the facts frequently support a defence argument.
RH Criminal Defence has defended care or control charges by challenging the presumption, presenting evidence of alternative arrangements, and arguing that there was no realistic risk the vehicle would be set in motion. If you have been charged, the specific facts of your situation — where the keys were, which seat you were in, whether the engine was running, and what you told the officer — are the foundation of the defence.