“Among all provisions of Canadian impaired driving laws, ‘care and control’ is the most unfair on many levels,” says Greater Toronto Area criminal defence attorney Jeff Mass , managing partner of Mass Tsang LLP. “The law presupposes guilt in those who have not driven impaired and likely don’t intend to do so, thus disregarding the presumption of innocence. In turn, this unduly forces the defence to disprove intent. The law is unjustly punitive, especially in cases where the accused was purposefully not driving impaired. And the law’s vagueness encourages arbitrary police enforcement and judicial rulings.”
That said, the law is the law and should Ontario police charge you with a care and control DUI, you’ll need to mount an effective defence to escape the severe penalties and criminal record that come with an impaired driving conviction. Mass Tsang has defended hundreds of Greater Toronto Area clients against care and control charges in Ontario. As such, the firm’s impaired driving lawyers understand the nuances of the law and how to challenge it in court effectively. In this article, we share what we know about beating care and control DUI charges in court.
To say that the Criminal Code’s interpretation of care and control within DUI law is vague is almost an understatement. We say almost because it was even more vague until Bill C-46 revisions to the Code in 2018 clarified that a person should only be charged with care and control if seated in the driver’s seat. Before that, Canadian police sometimes charged people found impaired elsewhere in a car, though we assume most defendants successfully challenged their charges in court.
However, we are getting ahead of ourselves. The Criminal Code does not define “care and control” as a distinct offence but instead includes it in Section 320.11 as part of the definition of “operate.” Thus, to “operate” a motor vehicle is to drive or “have care or control of it.” This deems care and control as an offence within the context of Sections 320.14 to 320.4 of the Code covering impaired driving. The 2018 Section 320.35 amendment to the Code further defines what care and control means within these sections:
“In proceedings in respect of an offence under section 320.14 or 320.15 , if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates the 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 purposes of setting the conveyance in motion.”
The bottom line is that police can charge you with care and control DUI if they find you impaired in the driver’s seat of a parked motor vehicle, and the Crown will strive to convict you.
Given the vagueness and other issues concerning care and control DUI, the Canadian Supreme Court has periodically needed to clarify the intent and lawfulness of the law. Understanding the high court’s findings can help you strategize a care and control defence. Key rulings include:
| Case | Key Point |
|---|---|
| R v. Toews (1985) | Crown must prove realistic risk the vehicle could be put in motion |
| R v. Whyte (1988) | Law justified under Charter despite reversing presumption of innocence |
| R v. Boudreault (2012) | Risk must be realistic; conviction requires specific risk-based criteria |
To secure a care and control DUI conviction, the Crown must prove — beyond a reasonable doubt — that you were impaired above legal thresholds for alcohol and/or drugs and had the ability to set the vehicle in motion (from the driver’s seat), with either intent or a realistic risk that you might drive.
Your best defence lies in disproving any of these elements. You have a solid defence if you can outright disprove impairment, that you could easily set the car in motion or had any intent to drive. The first element may be difficult to disprove, especially if police have breathalyzer or drug screening results. Your ability to set the car in motion and potential intent to drive are nuanced, but know that being “too drunk” to drive will not fly. However, factors like where and how the car was parked, the location of the keys, the vehicle’s condition, your near- and long-term intentions, and potential alternative transportation arrangements can play a significant role in disproving the second two elements.
In large part, successfully challenging a care and control DUI relies on raising “reasonable doubts” about your intent to drive and whether you could easily put the car in motion. To prove their case, the Crown must prove all elements “beyond a reasonable doubt.”
“We love raising reasonable doubts,” says Mass Tsang managing partner Robbie Tsang . “In our care and control cases that actually proceed to trial, reasonable doubts are our bread and butter.”
When possible, you can also disrupt the Crown’s case and secure favourable outcomes if the police made any procedural mistakes or violated your Charter Rights.
| Element | Explanation |
|---|---|
| Impairment above legal threshold | Established through breath, blood, or drug test evidence |
| Occupying driver's seat | Physically being in the driver's seat when found impaired |
| Realistic risk vehicle could be driven | Ability to operate the vehicle or key in position |
| Intent to drive or risk implied by circumstances | Crown must demonstrate a plausible danger to safety |
If you’re facing care and control charges in Toronto and the GTA contact the experienced criminal defence DUI lawyers of Mass Tsang. Our firm has delivered positive case outcomes for thousands of our Greater Toronto Area clients. For all your impaired driving defence needs in Ontario, contact us today for a free consultation.
