• Lewis Waring

The Presumption of “Care or Control” - Rhiannon Swan

In 2016, the Criminal Code (“the Code”) contained a section which has since been repealed, section 258(1)(a), which read “where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle…the accused shall be deemed to have had the care or control of the vehicle” [emphasis added]. This definition of “care or control” applied to the also-repealed section 253 of the Code, making it an offence to operate a motor vehicle under the influence of drugs or alcohol. In 2021, this onus still exists under a new section of the Code, section 320.35, which restates the presumption of “care or control” for impaired driving provisions in section 320.14 if the accused is in the vehicle’s driver’s seat. The section and the definition of the phrase “care or control” has been contested over the years as a reverse onus which violates section 11(d) of the Canadian Charter of Rights and Freedoms (“the Charter”). The burden of proof for this offence is put upon the accused, who must demonstrate on a balance of probabilities that they were not in “care or control” of the vehicle after being found in the driver’s seat. As it would be impractical to make the Crown prove beyond a reasonable doubt that an accused actually had care or control of a vehicle for such a serious issue of public safety, this presumption has been upheld as constitutionally valid under section 1 of the Charter by the Supreme Court of Canada (“the Court”).


In care and control in a snowbank


The judgment from the Manitoba Court of Queen’s Bench (“the MBQB”) in the case of R v Truthwaite (“Truthwaite”) was delivered December 12, 2020. In December of 2016, the accused in Truthwaite had been found by an RCMP officer in the driver’s seat of a running vehicle stuck in the snow. The accused had a blood alcohol content of 130 milligrams per cent. After being approached by police, the accused got out of the car and made comments to the officer about “spinning out” and attempting to get unstuck. Although the officer testified he noticed the vehicle’s tires spinning when he approached the car, this was not written in his notes, and the trial judge did not rely on this evidence in making his decision.

The trial judge in Truthwaite concluded the presumption of care or control had not been rebutted by the accused. The trial judge acknowledged the need to consider the intent of the accused at the time he was found by the officer but concluded, based on the location of the accused and his comments to the officer about trying to get out of the snow, that he had been in care or control of the vehicle. The trial judge also rejected the accused’s argument that, because the vehicle was effectively stuck, this was equivalent to it being inoperable and as a result that the presumption of care or control had been rebutted.

The accused in Truthwaite alleged that it was unreasonable for the trial judge not to find the presumption rebutted. Based on the evidence, the accused suggested it could be inferred he had abandoned the intent to drive by the time the officer showed up and that the accused had instead been waiting for a tow truck. However, based on the entirety of all the evidence and the factual differences in cases of successful rebuttal of the section’s presumption such as R v Boudreault (“Boudreault”) and R v Burbella, the MBQB found the trial judge had not erred in his judgement and that the accused had not rebutted his onus.


The Necessity of a Reverse Onus


In 2014, drunk drivers killed 66 Manitobans, and 1,558 people across Canada. As a Manitoban with family and friends who use the province’s roadways, it is reassuring to have the reverse onus to drunk driving as a part of the Code as such a presumption make our streets and highways safer. We want to hold intoxicated drivers criminally responsible. However, as a law student who has had the importance of Charter rights continually emphasized in many classes, I am skeptical that a burden of proof imposed upon an accused is ever acceptable in criminal law.

Section 11(d) of the Charter states that “[a]ny person charged with an offence has the right...to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” The Court’s decision of R v Oakes (“Oakes”) outlined the three components to this presumption of innocence: an accused must be proven guilty to a standard of beyond a reasonable doubt; the Crown must bear the onus of this proof; and criminal prosecutions must be carried out in accordance with lawful procedures and principles of fairness. Any provision which imposes a burden of proof onto an accused inherently violates this right guaranteed by the Charter.

The statute in question in Oakes was ultimately struck down. What makes the presumption that an accused sitting in the driver’s seat has “care or control” of said vehicle any different, and why was it not challenged in Truthwaite? “Innocent until proven guilty” is something our criminal law system should honour. Unlike regulatory law, the primary purpose of criminal law is not to make society safer but to punish those who commit morally abhorrent acts. The argument could be made that increasing the risk of the incarceration of innocent individuals to improve public safety should not be a focus for criminal law. After all, how can criminal law convict an individual while a reasonable doubt concerning their innocence still exists?

But enough playing devil’s advocate. At the end of the day, as demonstrated in Truthwaite, the onus placed on an accused to rebut they possessed “care or control” is not that burdensome nor is it unreasonable. Firstly, the presumption does not demand too much of an accused. The Court in Boudreault made it clear that a morally innocent accused who is intoxicated in the driver’s seat for reasons other than to drive will not be held criminally responsible. In R v Whyte (“Whyte”), Dickson CJ made it very clear that an accused’s presence in a driver's seat will not lead “inexorably” to concluding there was care or control.

In Truthwaite, the trial judge was careful; he examined all evidence and considered it together. When questions were raised about the accuracy of the officer’s testimony about the spinning tires, he chose to exclude the evidence from his decision. The presumption was not imposing an unachievable task upon the accused in Truthwaite, nor was evidence in his favour treated lightly. In fact, it is interesting to imagine if the accused (who most of us outside the courtroom would consider had been “guilty” of driving while impaired based on the available background) would have been acquitted had he not made comments to an RCMP officer about attempting to free himself from the snowbank. Realistically, the onus this presumption places upon an accused does not mean more innocent individuals will be convicted.


Protecting the public


Additionally, we must consider the rights of other Canadians, specifically, the right to be free from harm while using public services like the roadways. Criminal law is public law, and it serves all Canadians for crimes committed against them. In Whyte, the focus of the Court’s section 1 analysis, which justified infringing the accused’s rights under section 11(d) of the Charter, centred heavily around the serious issue of impaired driving. The practicality of expecting the Crown to prove beyond a reasonable doubt an accused’s care or control of a vehicle is too difficult to properly regulate the harmful offence of impaired driving. This importance again holds true in Truthwaite. What if the impaired driving provision had required the officer to actually witness the accused driving his car to establish the “care or control” necessary for a conviction? In this situation, the accused would have been acquitted because the trial judge (fairly) made the choice not to include the RCMP officer’s observations of the spinning tires. Without punishing this behaviour, the accused could have gone on to continue to drive impaired. This would be an impermissible danger to the public. Potentially, the officer in Truthwaite may have just left the accused to wait for a tow truck. What if, then, the accused had gotten back into his car, become unstuck, and driven off to hurt himself or someone else that night?

What is now section 320.35 of the Code is necessary for impaired driving offences, not only to protect Canadians, but also to hold drunk drivers responsible. This presumption will not risk conviction of the innocent but it will lead to more drunk drivers being held responsible. Although criminal law must presume the accused innocent, it must also not let criminals get away with their morally blameworthy actions. Truthwaite is a perfect example of how our criminal law system sometimes must resort to presumptions which impose a reverse onus to maintain a lawful society.

Check out the Robson Crim MLJ
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