In R. v. Boudreault, the Supreme Court of Canada (“SCC”) dealt with a situation where the accused was inebriated and unfit to drive when it was time for him to return home after a night of drinking. At his request, a taxi was called for him, for which he had to wait outside. It was a cold and windy February morning. He got into his truck, started the engine, turned on the heat and fell asleep. When the taxi arrived, the driver called the police. He was arrested and charged with having care or control of a motor vehicle while impaired. He was acquitted at trial, but the Court of Appeal allowed the Crown’s appeal, set aside the acquittal and entered a conviction. The SCC allowed the appeal and restored the acquittal.

The SCC concluded that “care or control” signifies an intentional course of conduct associated with a motor vehicle by a person whose ability to drive is impaired that creates a realistic risk, as opposed to a remote possibility, of danger to persons or property.

The Court held “The existence of a realistic risk of danger is a matter of fact. In this case, the trial judge, applying the correct legal test, found as a fact that there was no such risk. I recognize, as the trial judge did, that a conviction will normally ensue where the accused, as in this case, was found inebriated behind the wheel of a motor vehicle with nothing to stop the accused from setting it in motion, either intentionally or accidentally. Impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol or drugs. Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger. In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case. That is what happened here. The trial judge was satisfied that [the accused] would not, in fact, have set his vehicle in motion.”

Note: This summary is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.