Drinking in Cold Places: The Impacts of Care and Control (Part 1/2) - Samantha Harvey

We have all heard of drinking with friends in low places, but what about drinking with friends in cold places? This is a narrative familiar to many Manitobans, especially those of us living in rural areas. Someone drives to a house party but decides to have a couple of drinks despite the fact that they drove there. Later, they realize they are too intoxicated to drive and do not have any easy transit home. As such, the decision is made to sleep or wait in their vehicle for a ride. When the temperature drops, however, this decision becomes more dangerous as it may end up being too cold to sleep or wait in a vehicle for a long period of time. Thus, sometimes people decide to stay in their vehicle with the engine running so they can keep the heat on and make it through the night with their toes intact. The issue, then, becomes whether these individuals truly pose a realistic risk of danger to warrant a conviction for operating a motor vehicle while impaired.

R v Perry, 2021 MBPC 54, is a recent case that came through the Manitoban court system that discussed the issue of care and control. Ms. Perry was charged with operating a conveyance while her ability to operate said conveyance was impaired to any degree by alcohol contrary to section 320.14(1)(a) of the Criminal Code of Canada. She was also charged with having a blood-alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 millilitres of blood within two hours after ceasing to operate a conveyance contrary to section 320.14(1)(b) of the Criminal Code.[1] At first glance, this case appears to be an ordinary situation of driving while impaired. However, the central question in this case was whether Ms. Perry had legally been "operating" the vehicle to a sufficient degree to be charged with the offence. This was an issue because Ms. Perry was not driving the vehicle when she was stopped by the police officers; in fact, she was observed by the officers to be lying in the back seat of her vehicle. Unfortunately, Ms. Perry had turned on the engine to let the heat run as it was cold outside and she was not dressed warm enough for the weather. As a result, it was assumed that Ms. Perry had care and control of the vehicle.[2]

To obtain a conviction under either section 320.14(1)(a) or (b) of the Criminal Code, the Crown was required to prove beyond a reasonable doubt that Ms. Perry was “operating a motor vehicle, by having “care or control” of it.”[3] The court in R v Perry outlined the requirements for care and control from the case of R c Boudreault. The case of Boudreault indicates that care and control 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, as opposed to a remote possibility, of danger to persons or property.[4] In this case, the first and second factors were easily made out by the Crown. First, the Court found that Ms. Perry had intentionally set out to get into the vehicle, turn the engine on, get into the back seat, lay down, and fall asleep. Second, Ms. Perry was given a Breathalyzer on the scene that read 90 milligrams of alcohol in 100 millilitres of blood, which was over the legal limit. Judge Carlson noted that any degree of impairment, ranging from slight to great is sufficient to prove the “impaired” element required by section 320.14 of the Criminal Code. Thus, the Crown had demonstrated that Ms. Perry was impaired under the meaning of the section.

However, the most pressing concern in this case was the analysis of the third Boudreault factor and whether Ms. Perry, asleep in the back seat of her running vehicle, posed a realistic risk of danger to persons or property. Judge Carlson clarifies that this risk can be the result of intentional or accidental actions.[5] Thus, if Ms. Perry was in a position that would allow her to accidentally knock her vehicle into gear, then a realistic risk of danger may have been posed. However, it is important to note that “realistic” is not the same as “theoretically possible.” Is it theoretically possible that Ms. Perry could have set the car into motion from her position? Yes. However, she would have had to wake from her sleep, sit up, move into the front seat from the back seat, engage the brake, shift the lever, and depress the accelerator in order to set the vehicle in motion.[6] The Court found that, based on the number of positive steps that were required of Ms. Perry in order to set the vehicle into motion, there was no realistic risk to any persons or property. Thus, since there was a lack of evidence pointing to any realistic risk of danger, Ms. Perry was acquitted on both charges.

Ms. Perry’s case is one of many care and control cases that have arisen in previous years. However, the issue of care and control becomes a bit more complex when the individual is found to be sitting or sleeping behind the wheel of a motionless vehicle. Section 320.35 of the Criminal Code sets out the “presumption of operation” which states that “if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.” Therefore, this section places the burden on the accused to prove that they did not in fact intend to set the vehicle into motion, despite the fact that they were sitting behind the wheel of the vehicle.

In R c Boudreault, a man had discovered that he was too intoxicated to drive home after going to the apartment of a woman that he had met at the bar earlier in the night. The woman then called a taxi to take Mr. Boudreault home. After several minutes of waiting, the woman ended up having to call another taxi, as the first did not arrive. At that point, the woman no longer wanted Mr. Boudreault to wait in her apartment. Thus, he was forced to wait for the taxi outside. Mr. Boudreault decided to wait in his vehicle, in the driver’s seat, in an attempt to shelter from the “bitter cold and howling winds” outside.[7] He then started the engine of the vehicle to allow the heat to run.[8] When the taxi driver finally arrived, after roughly seventy minutes from the time of the first call, the taxi driver found Mr. Boudreault asleep behind the wheel and decided to call the police. Unsurprisingly, when the officers arrived, they arrested Mr. Boudreault with having care and control of a motor vehicle while impaired. The Court indirectly questioned the decision of the taxi driver to not wake Mr. Boudreault and escort him home, but instead to call officers to the scene. However, similar to the case of R v Perry, the “realistic risk of danger” factor was the focus of the case. In this case, the trial court believed Mr. Boudreault’s plan to wait for the taxi, as the plan could be corroborated by the woman who phoned the taxi and by the taxi driver who made the report. Therefore, Mr. Boudreault was acquitted, as the Court believed there was no realistic risk that Mr. Boudreault would set the vehicle in motion even in his impaired state.

Similarly, in R v Hamen, after a night out at a pub, the accused had gotten into her vehicle with a friend despite being intoxicated and turned on the vehicle. The accused claimed she was only in the vehicle because it was too cold to wait outside for the taxi that they had called.[9] In this case, the trial judge found that there was no realistic risk of danger, although the credibility of the accused was in question; she had lied to the police regarding how much she drank that night. However, the accused’s plan—to wait for the taxi—was corroborated by the taxi operator who had received the call. The accused was therefore acquitted.

Further, in R v Hannemann, after unsuccessfully trying to locate hotel accommodations or transport back to his out-of-town residence, the accused decided to sleep in his vehicle overnight.[10] The accused made a plan with his associates to have them pick him up from that parking lot the next day. Later, at night, the vehicle became very cold. Mr. Hannemann turned on the engine to heat the vehicle. Police officers then arrived and found him asleep in his running vehicle and charged the accused with operation while impaired. After a lengthy discussion of the many factors that may affect a finding of care and control, the trial judge ruled that, based on the specific circumstances, the accused was not in care and control of the vehicle. Some of these factors included the accused removing certain parts of his clothing, engaging the parking brake, and telling his associates of his plan to sleep in the vehicle for the night. Further, the Court noted that this was not the kind of case that might encourage others to behave in a dangerous manner; there were no significant social factors weighing in favour of a conviction.

Throughout all of these cases, a common trend appears; an intoxicated person, sheltering from the cold, steps into the vehicle with a plan to get a ride or find a safe way home. In reading R v Perry, it appears that the trial judge placed significant importance on the fact that the accused had a plan in place to get herself home. The judge stated: “I accept that Ms. Perry had a plan to get home without driving herself, that she had put that plan into motion and was just waiting to be picked up. There is no evidence that she intended to drive. Her plan was objectively concrete and reliable.”[11] This sentence appears to indicate that the judge determined whether there was a realistic risk to the public based at least in some part of the fact that the accused had an established plan to get home. The judge continues: “as long as Ms. Perry consistently followed through with the plan to wait in the vehicle for her mother to pick her up, without driving herself, there was no realistic risk of danger.”[12] Ms. Perry’s plan was also corroborated by her mother. Ms. Perry’s mother stated that her daughter had called her for a ride and that Ms. Perry’s mother was on her way to pick up her daughter. However, by the time she arrived, Ms. Perry had already been arrested by the officers. In R v Hamen and R c Boudreault, the accused’s plans to take taxis home were corroborated by the taxi drivers and helped to establish the lack of a realistic risk of danger. Lastly, in R v Hanneman the accused’s plan to be picked up was corroborated by his associates whom he had asked to come pick him up the following morning.

Continued in Part 2.

[1] R v Perry, 2021 MBPC 54 at para 1 [Perry]. [2] Ibid at para 2. [3] Ibid at para 20. [4] Perry, supra note 1 at para 35. [5] Ibid at para 42. [6] Ibid at para 41. [7] R c Boudreault, 2012 SCC 56, at para 2 [Boudreault]. [8] Ibid. [9] R v Hamen, 2016 CarswellNfld 473 at para 12, 135 WCB (2d) 150. [10] R v Hannemann, 2001 CarswellOnt 1538, [2001] OJ No. 1686. [11] Perry, supra note 1 at para 4. [12] Ibid at para 45.