Care and Control DUI Charges in Canada
Driving under the influence (DUI), or impaired driving, charges are quite serious in Canada. Impaired driving involves operating a vehicle while impaired by alcohol, drugs or a combination of the two. Many individuals mistakenly believe that your blood alcohol concentration (BAC) or blood drug level needs to be over the legal limit to be charged with impaired driving.
However, an individual may be impaired even if their consumption of alcohol or certain drugs is below the legal limit; it matters if the influence of alcohol, drugs or both has compromised their ability to drive. In the case of care and control, you don’t need to be driving to be charged. As long as you were in care and control of the vehicle while you were impaired by alcohol, drugs, or a combination of the two. Care and control may include sitting in or standing near the vehicle without actually operating it.
What is Care and Control?
Under subsection 320.14(1) of the Criminal Code:
Operation while impaired
320.14 (1) Everyone commits an offence who
(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;
(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or
(d) subject to subsection (7), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.
To operate a vehicle can refer to care and control thereof:
320.11 operate means
(a) in respect of a motor vehicle, to drive it or to have care or control of it;
Penalties for Care and Control
Care and control charges carry a mandatory minimum penalty across the country.
While some of the penalties will vary depending if this is your first, second or third offence, the maximum punishment includes:
- Impaired driving: Up to 10-years imprisonment;
- Impaired driving causing bodily harm: Up to 14-years imprisonment;
- Impaired driving causing death: Up to life imprisonment.
- Impaired driving: Up to 2-years less a day imprisonment;
- Impaired driving causing bodily harm: Up to 2-years less a day imprisonment.
The mandatory minimum punishment for care and control charges are as follows:
- First offence: $1,000-$2,000 fine;
- Second offence: 30-day imprisonment; and
- Third offence: 120-day imprisonment.
In addition to the penalties listed above, drivers may receive roadside sanctions for impaired driving.
While the penalties will vary by province, they may include:
- Licence suspension;
- Vehicle seizure and associated costs;
- Participation in remedial or educational courses; and
- Participation in an Ignition Interlock Device program.
Defences to Care and Control
While it will ultimately depend on the facts of your case, there are several defences available for care and control charges.
Some of these include:
- Lack of evidence of you behind the wheel
- Disputing reasonable suspicion
- Submitting a Charter application
Lack of Evidence of You Behind the Wheel
The police may come upon the scene of an accident but not witness you behind the wheel of the vehicle. In this situation, the police may not be able to demonstrate that you were driving while impaired unless the police can collect some other evidence, such as statements from witnesses, that you were the driver of the crashed vehicle.
Even if the police cannot demonstrate that you drove while impaired, they might attempt to show that you were under the care and control of the vehicle while impaired. If this is the case, you might demonstrate that there was no realistic risk of danger to the public because the vehicle was inoperable.
Disputing Reasonable Suspicion
Under section 320.27 of the Criminal Code, a police officer must have reasonable grounds to suspect that the individual is impaired and has been operating a vehicle within the preceding 3 hours. The officer may try to form reasonable suspicion by asking the driver some questions or observing the driver’s behaviour. If the officer has reasonable suspicion, they may demand further tests, such as a breath sample. If the officer did not have reasonable suspicion, there may be grounds to challenge the demand.
Typically, your Charter rights kick in from the moment of your detention. However, some of your Charter rights are suspended during impaired driving roadstops.
Nevertheless, one or more of the following Charter rights may have been violated:
- Section 8: Right to be secure against unreasonable research and seizure
- Section 9: Right not to be arbitrarily detained
- Section 10(b): Right to counsel
- Section 11(b): Right to be tried within a reasonable time
Section 10(b): Right to Counsel
In impaired driving cases, immediately upon arrest, the police must inform the individual of their right to counsel and allow them to exercise that right. If the police did any of the following, then you may be able to exclude any evidence that they collected during the course of the transaction:
- Failure to Provide Rights: The police did not inform you of your right to counsel
- Delay in Providing Rights: The police waited too long to inform you of your right to counsel.
- Failure to Provide Opportunity to Exercise Rights: The police did not allow you to contact counsel.
- Delay in Providing Opportunity to Exercise Rights: The police waited too long to allow you to contact counsel.
The police cannot use any statements you make against you at trial before they inform you of your rights. However, they may use your statements to form the reasonable suspicion necessary to demand roadside tests.
What does care and control mean?
Many individuals mistakenly believe that you must be driving a vehicle in order to be charged with impaired driving. However, this belief is not the case. You may also be charged with impaired driving if you are in care and control of the vehicle.
Being in care and control of the vehicle can refer to standing next to it, sitting inside the car without driving it or being within the general proximity of the vehicle.
What does care and control mean in the Criminal Code?
To be charged with care and control under the Criminal Code, you must meet two requirements:
- Your ability to drive has been compromised by alcohol, drugs or a combination of the two; and
- You are in care and control of the vehicle.
It is not enough to say that you weren’t driving at the time of the incident or that you were utilizing your car to rest or sleep. Being within the proximity of your car can be sufficient to establish a care and control conviction. The idea behind care and control is while you may not have been driving at the time, there was a realistic danger to the public that you might have driven the vehicle while impaired.