DEFENCE

Care or Control Not Proven

Overview

This page contains information about use of the "Driving (or care or control) not proven" defence for various criminal charges in Canada. It was written and prepared by experienced criminal defence lawyers in Toronto but does not consist of legal advice.

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What”Driving or Care or Control Not Proven” Means

It has not been proven that the accused was driving or in care or control of a conveyance (a conveyance is defined as a motor vehicle, an aircraft, a vessel or
railway equipment).

For any case in which you are charged with a driving offence (including a drinking and driving related offence, driving while impaired by drug, dangerous driving, failure to stop after accident, flight from police and driving while prohibited) the judge or jury has to be satisfied beyond a reasonable doubt that you were either driving or in care or control of a motor vehicle.

For example, for an impaired driving case, even if there is no doubt that your ability to drive was impaired by alcohol or a drug, the Crown may not be able to prove beyond a reasonable doubt that you were driving or in care or control.

Two common scenarios where this defence would be raised are:

Scenario #1: Driving has not been proven.

This scenario could arise in circumstances were there was a motor vehicle collision but no witnesses can reliably identify who was driving the vehicle. Consider for example, a single motor vehicle collision that no one witnessed and by the time the police arrive on the scene, there is no one in the vehicle. Or consider an allegation of failure to remain at the scene of the accident where a witness calls the police and reports the licence plate of the vehicle involved. The police show up at the registered owner’s address and arrest the owner of the vehicle but the Crown cannot prove that the owner was driving the vehicle when the accident occurred.

Scenario #2: Care or Control has not been proven.

Many people are surprised to learn that they can be found guilty of a driving related offence, simply because they were in a motor vehicle, even though they were not actually driving. For example, consider a scenario where the police are called to investigate someone who is observed to be asleep in the driver’s seat of their car. The police arrive and see you asleep or passed out in your car. They knock on the window and wake you up. After speaking you, the police smell an odour of alcohol on your breath, notice some signs of impairment and see that the car keys are in the ignition and the engine is on. You are charged with impaired operation of a conveyance even though no one ever saw you driving.

In this scenario, because you were observed to be in the driver’s seat, the presumption contained in section 320.25 of the Criminal Code applies which deems you to be in care or control unless you can establish that you did not occupy the driver’s seat for the purpose of setting the vehicle in motion. In order to successfully raise the defence that you were not in care or control, you would have to prove on a balance of probabilities that when you sat in the driver’s seat, you did not intend to move the vehicle. If you successfully rebut the presumption, the Crown could still prove the charge against you if they can prove beyond a reasonable doubt that your conduct in relation to the vehicle created a realistic risk of danger. For example, that there was a realistic risk that you would accidentally set the vehicle in motion or that you would change your mind and decide to drive, even if that had not originally been your intention.

Important to Note

If the arresting police officer had reasonable and probably grounds to believe that you were driving or in care or control of a motor vehicle while impaired or with a blood alcohol concentration over the legal limit and made a valid breath demand, you can still be found guilty of refusing to provide a breath sample, even if the Crown does not prove beyond a reasonable doubt that you were driving or in care or control.

Charged with a Criminal Offence? Get Every Defence.

Do not plead guilty without discussing your case with a lawyer. Many criminal offences have mandatory minimum sentences and a conviction will often result in a lengthy jail sentence. Being found guilty may result in negative employment, immigration and personal consequences to you and your family for years to come.

You are presumed innocent. With over 25 years of successful trial experience, Norm and Marcus will argue for every defence available to you and ensure that all of your rights are protected. We will fight for the positive result you need to move on with your life.

Speak with Norm and Marcus. Call (416) 855-7799 or email us at [email protected]. We accept calls 24 hours a day, 7 days a week. Confidentiality guaranteed. Free consultations. Meeting by appointment only.

Recent Successes

Care or Control not Proven Charges Dismissed Impaired Driving Our Case

R. v. D.V – Driving not proven, Charges Dismissed

A vehicle registered to our client was involved in a collisions with another vehicle. The driver of the vehicle drove away from the accident scene without stopping to give her name and address or checking to see if anyone had been injured or appeared to need assistance. A short while later the police attended at our client’s address where they observed her damaged vehicle parked outside. The police spoke with our client who admitted that she had been driving her vehicle at the time that of the collision and that she had fled the scene because she was scared. While speaking with the police, the police smelled alcohol on our client’s breath and arrested her for Impaired Driving and Fail to Stop After an Accident. She was taken to a police station to do breath tests after which she was also charged with Driving with a Blood Alcohol Concentration that was Equal to or Over 80. At trial, the judge excluded our client’s admission to the police that she was the driver of her vehicle due to a Charter breach. The judge also found that the descriptions provided by the civilian witnesses were not sufficient to identify our client as the driver beyond a reasonable doubt. As a result, all of the charges against our client were dismissed.

Care or Control not Proven Charges Dismissed Impaired Driving Our Case

R. v. E.W. – Care or control not proven, Charge Dismissed

Our client was charged with Care or Control of a Motor Vehicle while Impaired by Alcohol. Shortly after last call, on a cold winter night, the police observed a motor vehicle parked in a parking lot outside a bar, with the engine running and the windows fogged up. The police knocked on the window and our client rolled down his window. It appeared to the officers like our client had just woken up. They smelled alcohol coming from his breath and observed signs of impairment. The police arrested our client for impaired care or control. At trial our client testified that he had been drinking at the bar with his friends and had originally planned to be the designated driver but then ended up drinking more that he should have. His friends called taxis while our client called his parents who had agreed to come and pick him up and drive his car home. Because it was a cold night, our client had turned on the engine of his car so he could have the heater on. The police arrested our client before his parents arrived. At trial, our client and his parents testified about the plan and we presented phone records to corroborate it. The judge accepted that the presumption set out in 320.25 was rebutted and had a reasonable doubt on the issue of there being a realistic risk of danger created by our client’s conduct in relation to the vehicle. The charge against our client was dismissed.

Care or Control not Proven Charges Dismissed Impaired Driving Our Case

R. v. V.R. — Care or control not proven, charges dismissed

Our client was charged with Care or Control of a Motor Vehicle while Impaired by Alcohol. On a Sunday evening, a homeowner called 911 to report that across the street from his house, someone appeared to be passed out in the driver’s seat of a car with loud music playing on what was normally a quiet residential street. The homeowner claimed that he was concerned that the occupant of the vehicle may be suffering from a medical condition. Firefighters and police arrived on scene and, after some effort, were able to wake up our client who was observed to be showing signs of intoxication. The police arrested our client for impaired care or control of a motor vehicle. At trial, our client and his wife testified that they had gotten into an argument that evening due to the fact that our client had been home drinking all day. They both testified that our client had been home all day with his family and that he had been putting furniture together (and drinking beer). Our client testified that because he wanted to keep drinking and did not want to continue arguing with his wife, he brought a beer with him to his car that was parked on the street around the corner from his house. Although the homeowner who called police claimed that the engine was running, the firefighter who had woken up our client testified that had taken the key out of the ignition and that it was in the auxiliary mode so that the radio had power but the engine was off. The judge rejected the evidence that the engine was running because of the contradictory evidence from the firefighter and because it was unlikely that anyone would have heard the engine if it had been running because of how loud the music was. We successfully rebutted the presumption set out in section 320.25 of the Criminal Code as the judge accepted that our client had intended to sit in his car and drink beer while listening to music and that he had not intended to drive anywhere. The judge also had a reasonable doubt on the issue of there being a realistic risk of danger because the car was parked safely at the side of the road, the car was in park and there was no realistic risk that our client would accidentally put the car in motion. The judge also found that there was no realistic risk that our client would change his mind and decide to drive because he had nowhere to go and was so close to his home. The charge against our client was dismissed.