SLEEPING IT OFF DEFENCE LIKELY TO BE OF LITTLE USE
Resting in driver’s seat while intoxicated will result in charges, David Booth writes.
We all know that driving while intoxicated is a no-no. A big nono. More specifically, it’s Article 253(1) of the Canadian Criminal Code, which sets out the offence of “operating a motor vehicle while impaired by alcohol or drug.”
More broadly, however, it says that it is unlawful to be in the driver’s seat of a vehicle with diminished capacity. It doesn’t matter whether the vehicle is in operation or not. In fact, Article 258(1) specifically says that you are in said care and control if you are sitting in the driver’s seat. Just to be absolutely clear: No matter how thoroughly you read Section 258, you’ll find no mention of whether the car’s engine is running, the keys are in the ignition or even whether you were awake or not. If you are in the driver’s seat, you can be charged. It is, in a strict reading of statute, as simple as that.
Part of Article 258 actually goes even further, specifically stating that you are guilty of an impaired offence “unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle … in motion.”
In other words, if you are sitting behind the wheel of your car and you are inebriated, the traditional presumption of innocence is thrown out the window.
Indeed, over the years, Article 258 has been one of the most hotly contested motor vehicle infractions, the question always — as in 100 per cent of the cases Motor Mouth perused — hinging on whether the person in the driver’s seat had an intention to operate the vehicle or was clearly just sleeping it off. And it’s always — absolutely always — up to you to prove you are innocent.
In 2009, Donald Boudreault was, according to court documents, “too drunk to drive — and knew it” when he was asked to leave the apartment of Danye Dubois, whom he had met earlier at a bar. He asked her to call a taxi, which she promptly did, specifically calling Taxic, which, according to court records, sends two drivers, “one to take the inebriated motorist home, and the other to drive his vehicle.”
Unable to wait in the apartment (it seems Dubois had enough of his intoxication), Boudreault waited outside.
Since it was Jonquiere, Que., on a particularly frigid February morning (it was -15 C outside with howling winds, according to the police report), he chose to wait in his vehicle. He started the engine and, according to court documents, “turned on the heat.”
Forty-five minutes after being called, by which time Boudreault had passed out behind the wheel, the taxi showed up. But instead of giving Boudreault a ride home, the cabbie called the police. Boudreault was arrested and charged.
Initially acquitted, the Quebec Court of Appeal reversed the decision and found Boudreault guilty. He subsequently took his case to the Supreme Court of Canada. The Supreme Court reaffirmed the lower court’s finding and found Boudreault not guilty, mainly on the basis that there was no “realistic risk of danger.” In other words, the highest court in the land agreed with the trial judge in determining that Boudreault had no intention of driving and was therefore not in “care and control” of his pickup.
Nonetheless, this is a cautionary tale. Boudreault’s case has some prophetic words for anyone thinking of sleeping it off in their car. In disagreeing with the trial judge and the Supreme Court, the appeal court prosecutors posited that “risk of danger is not an element of ‘care or control’ under s. 253(1) of the Code.”
And herein lies the lesson of “drunk parking.”
If you are found behind the wheel of car, even if it is not being operated, chances are you are going to be charged with an impaired offence. Yes, if you can prove you had no intention of driving, you may — and I cannot stress that last word enough — eventually be found not guilty. But that doesn’t mean you won’t get charged. You probably will have to hire a lawyer. And you may be without your car for quite some time. I’ll leave it up to you to determine which of those is the more unpleasant experience.