Can I Be Charged With Impaired Driving Even If I Wasn’t Driving?

This is a common question criminal lawyers receive. The answer is yes because of a presumption in the Criminal Code.  

Section 320.35 of the Criminal Code creates a “presumption of operation” relating to the offence of impaired driving when a person occupies the driver’s seat of a vehicle. This presumption also applies to immediate roadside prohibitions. The most common situation where this issue arises is when someone, who has been drinking, decides to sleep in the driver’s seat of a vehicle. 

In circumstances like that where the presumption applies, in practice an accused person will almost surely have to provide evidence that they did not intend to drive and there was no risk that they might change their mind and choose to drive or set the vehicle in motion accidentally. 

Care and Control of a Motor Vehicle

The language often used in these circumstances is that the person in the driver’s seat is in care and control.

The reason for the presumption is the broad public safety focus of the offence of impaired driving. The Supreme Court of Canada in R. v. Whyte, [1988] 2 S.C.R. 3 has explained that the objective of criminalizing impaired driving is to "discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion”. The presumption is rebuttable because there must be “a way for a person to avoid liability when there was a reason for entering the vehicle other than to set it in motion”.

When the presumption applies and the issue is care and control a judge (when it’s an impaired driving charge) or adjudicator (for immediate roadside prohibition reviews) must examine all of the relevant evidence and may consider a number of factors, including whether the accused person took care to arrange an alternate plan to ensure their safe transportation home, whether they had the keys, whether the ignition was on and the location of the vehicle to name a few.