A call that I frequently get from clients is whether they should dispute a 90-day driving prohibition for DUI. Many people are concerned that because they blew “Fail” into two different breathalyzers or because they admitted to consuming alcohol to the police that they will not have any chance of success in their driving prohibition dispute. The reality is that this could not be further from the truth.
 
I have an excellent track record of success in disputing DUI charges and driving prohibitions, and so this blog post will outline a few of the reasons why you should not count yourself out before consulting with a lawyer.

Since there have been several cases now of people ticketed for having cannabis in a vehicle, and since I have now received several inquiries from clients charged with these provincial offences, I thought it would be prudent to write a short blog post outlining your right to transport cannabis in your vehicle.

The law is a funny thing. It applies in all sorts of really interesting scenarios, and much of it seems rather straightforward. But sometimes the law can be weird and wacky. Sometimes the law can apply in strange circumstances that do not make much sense at all. Or, the particular facts of a case and be so unusual that they will make you laugh. Or cry. Or both.

For that reason, I've started a new weekly blog series called Weird and Wacky Wednesdays. In this series, I will do a roundup of a few cases that are weird, wacky, or otherwise strange and interesting. My hope is to provide a quick summary of the case and a discussion about some interesting legal issues that arise in the case.

So here we go with Round One!

This morning, the Provincial Government finally unveiled its regulatory framework for dealing with the issue of marijuana-impaired driving, come legalization of recreational cannabis. The purpose of this blog post is to explain the changes to BC’s Motor Vehicle Act that are being proposed to deal with cannabis legalization. And, as usual, to offer my opinion on why these changes are not appropriate or effective.

As we move into the fall and winter months and the weather becomes colder the issue of sleeping in a running vehicle after drinking also becomes more prevalent. A lot of clients have found themselves with an Immediate Roadside Prohibition or facing criminal charges after making the decision to sleep in their vehicle.

This is a complex area of the law. The purpose of this post is to add some clarity to the issue so that people can understand how sleeping in your vehicle can quickly turn into an impaired driving investigation.

I'm not sure if you've read this article, written by a former police officer. He indicates that a supervisor, sitting in the passenger seat of a vehicle and supervising a learner driver, could be charged with impaired care and control of a motor vehicle. He states: "I know, I investigated and prosecuted an impaired beginner and supervisor out of the same vehicle in the early 1980s."

Well, things may have been different in the early 1980s. I wasn't a lawyer then. I wasn't even born then. But according to the criminal law now, there doesn't appear to be any avenue by which a prosecution of a passenger could be successful, even if the passenger was supervising the driver.

Care and control is established by the prosecution in two ways. Typically, a person is observed driving the motor vehicle. So the proof is relatively easy. In other cases, however, the vehicle is not being driven but there is some course of conduct that leaves the driver in "care and control" such that there is a risk to the public. There is a presumption in the Criminal Code that any person who occupies the driver's seat of a motor vehicle does so for the purpose of setting it in motion. That presumption can be rebutted by evidence to the contrary, i.e., evidence that there was some other reason to occupy the driver's seat or that the subject did not have the means to readily set the vehicle in motion.

The recent Supreme Court of Canada decision, R. v. Boudreault 2012 SCC 56, sets out the test for care and control of a motor vehicle. There, the Court wrote:

"For the reasons that follow, I have concluded that “care or control”, within the meaning of s. 253(1) of the Criminal Code, signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property."

In Mr. Boudreault's case, he had fallen asleep in the driver's seat of his vehicle while waiting for a taxi. The engine was running so that he could stay warm while he waited. A taxi, apparently, never arrived. Mr. Boudreault was awakened by police who commenced an impaired driving investigation. The Court found that given the steps he had taken to ensure that he did not drive, he had rebutted the presumption.

Another leading case on the issue of care and control is The Queen v. Toews, [1985] 2 S.C.R. 119, which states that:

"acts of care or control, short of driving, are acts which involve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous."

Thus, it is clear that there needs to be some course of conduct associated with the vehicle itself that creates a danger. Sitting in the passenger seat, supervising the driver, does not meet this standard. There is no realistic risk in the circumstances of a supervisor and a passenger that the vehicle will become dangerous. And there is no use of the car, its fittings, or equipment by the supervisor that could in any way constitute a danger to the public.

So I disagree with what Mr. Schewe suggests in his article. The elements of the offence just cannot be made out on those facts.
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