Case Study: Care or Control Over 80 / Impaired
Our client, Mr. B., came to the office shortly after being charged with impaired care or control and care or control over 80. Mr. B. had been found at his truck by the side of a road that led to an abandoned correctional facility. Police officers had alleged that they saw him in the driver’s seat when they approached him while on regular patrol. Police had used their powerful spotlight on the vehicle which had a blinding and debilitating effect on Mr. B. One of the officers noted that Mr. B. stumbled while outside the vehicle. Mr. B. was then made to sit on the grass while police searched his name on CPIC. Two minutes later Mr. B. was arrested without police administering the roadside breath testing instrument otherwise known as the Approved Screening Device (ASD). He was then taken to the Peterborough Police Service Station where he provided samples of his breath that resulted in readings in excess of 80 ml of alcohol per 100 ml of blood. When Mr. B. came to see us he provided us with important context and gave a clear explanation as to why he was at his vehicle and what he had planned to do just before police arrived.
Mr. B. was charged with Care or Control over 80, contrary to s. 253(1)(b) of the Criminal Code as well as Impaired Driving, contrary to s. 253(1)(a) of the Criminal Code.
This being Mr. B.’s fourth criminal driving offence, the Crown sought the mandatory minimum of four months custody followed by a three year driving prohibition and three years Interlock. The Crown would not resolve on any other terms.
Mr. B. was a father of two young children. He was also a student in the middle of a trades program at Fleming College. Given that the Crown was seeking a sentence of over 90 days, Mr. B. would not have been eligible to serve his sentence on weekends.
It was clear to us that Mr. B.’s name had been searched before police decided to arrest him. In the time the search was being conducted, no further indicia of impairment were noted by the officers. We, therefore, filed a Charter notice alleging that the arrest was made without “reasonable and probably grounds” resulting in breaches of s. 8 (unreasonable search) and s. 9 (arbitrary detention) of the Charter of Rights and Freedoms. As a remedy for the breach, we requested that Mr. B.’s breath readings be excluded from evidence.
While, in our view, this was a good Charter issue, there was far more to Mr. B.’s defence. To be found “in care or control” of his motor vehicle, the Crown would first need to prove that Mr. B. was in the driver’s seat. If it could be proven that Mr. B. occupied the driver’s seat, he could still rebut the presumption of care or control with his version of events as he had no intention of moving the vehicle from its resting point. Further, according to Mr. B., the vehicle was incapable of starting without an alternative source of electricity as the battery in the vehicle had been dead for several years. So the plan was to fight a battle on two fronts. 1) Get the breath readings excluded via our Charter argument and 2) Show the court that Mr. B. was not in care or control of his truck. This would include calling the tow truck driver as a witness as his anticipated evidence was that the vehicle would not start on the scene when he went to tow it.
Mr. B. was acquitted on both counts. Mr. B. testified that he had parked his vehicle a short distance from his house on an adjacent road because he was advised there would be construction in the area and his vehicle would be blocked into the driveway if he left it there. He told the court that he had been drinking beer in his garage while he worked on repairing one of his dirt bikes when he realized that he had forgotten his cell phone in the truck. He said that once he reached his truck he located the phone on the passenger’s side of the centre console and had been leaning into the truck when police arrived. After the Crown and defence asked for a ruling on the care or control issue, the presiding justice ruled in favour of Mr. B. The judge accepted Mr. B.’s testimony that he was not in the driver’s seat and had no intention of driving. Further, because of the vehicle’s positioning at the side of what was essentially an abandoned road, Mr. B.’s truck posed no danger to other traffic or pedestrians.
Having been acquitted on both counts, Mr. B. was able to avoid a four month jail sentence and a very lengthy driving prohibition. He was overjoyed and not shy about expressing it. His lawyer is still recovering from a giant courtroom bear hug.