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.
There are valid public policy reasons why a person can still end up charged with drunk driving even though they have not driven a vehicle. The main rationale for this is that there is often a risk that an impaired person will change their mind (remember, alcohol compromises your ability to make good decisions) and decide to drive. In certain circumstances there can also be a risk that the vehicle could accidentally be set in motion and pose a danger to the public. So instead of making it an offence only to drive while the ability to do so is impaired, Parliament has decided to say that it is an offence to be in care and control of a motor vehicle while impaired.
What is care and control anyway?
Care and control refers to conduct that falls short of actual driving, but still poses a risk to the public. It is defined as a realistic risk that a person, either accidentally or through a change of intention, will set the vehicle in motion or interacting with the fittings or equipment of the vehicle in some way so as to create that realistic risk. The danger has to be realistic and not merely theoretically possible. This is often the line that these cases are decided on; whether the danger was realistic or theoretical in the particular circumstances of the case.
There are presumptions in the Criminal Code that relate to care and control. A person is deemed to be in care and control of a vehicle if they are in the driver's seat of the vehicle, unless it can be shown that they occupied the driver's seat for a purpose other than setting the vehicle in motion. There are two leading cases on care and control from the Supreme Court of Canada: R. v. Boudreault and R. v. Toews.
In Boudreault, the Court considered the case of a man who was kicked out of a woman's house after a night of drinking. He called a taxi, because he was drunk and could not drive. While waiting for the taxi, he sat in his vehicle with the engine running to keep warm. When the taxi driver arrived, Mr. Boudreault had fallen asleep. Ever the saint, the taxi driver called the police who arrested Mr. Boudreault and he was subsequently charged with impaired care and control. The Court ultimately found that he should be acquitted, but commented that there is a tactical burden on an accused person in these cases to establish that the risk did not exist.
Under the Motor Vehicle Act and in the Immediate Roadside Prohibition scheme there were no such presumptions. So just because a person is in the driver's seat of the vehicle does not automatically mean they are in care and control unlike in a criminal investigation. The problem with the Immediate Roadside Prohibition scheme is that without cross-examination, it is often difficult to get out the kind of evidence that will show there was no realistic risk. As a practical matter, police will assume you are in care and control if they find you in the driver's seat and will usually issue you the IRP to sort out later. You don't want that.
What can I do to avoid being in care and control?
Obviously the best way to avoid being in care and control is to make alternative arrangements in advance. Book a hotel, call a taxi, or have a designated driver service drive you home in your vehicle. It might seem expensive but it will pale in comparison to the consequences if you end up convicted of impaired driving. If you do have to sleep or stay in your vehicle, however, there is no way to guarantee that you will not be charged or investigated for impaired care and control.
Since the Criminal Code presumptions are related to occupying the driver's seat, the best way to still sleep in your vehicle and minimize your risk of being charged is to sleep in the back seat or the passenger seat. I've frankly never understood why people found the driver's seat the most comfortable place to sleep anyway. If it's warm enough that you do not need to use the heat, don't start the car. Many clients start the engine to play the radio but that just leads to problems. A wise idea is to put the keys in the backseat, or on the passenger seat. Don't leave them in the ignition.
If you do have to start the engine to keep warm, take some steps to make it very difficult to put the vehicle in motion and again, stay away from the driver's seat. If you do have to be in the driver's seat, then take some steps to show that you do not intend to drive. Take your shoes off. Recline the seat. Do not put on your seatbelt. Cover the steering wheel with a jacket.
Nothing will guarantee you do not end up charged, but if you truly do not intend to drive then you need to put yourself in the best position to show that there was no realistic risk in your case. And if you do end up with a charge, an experienced driving lawyer can assist you in the process and help you to prepare the best case possible.