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Digest of the week - “Warming while impaired”

R. c. Boudreault
2012 CarswellQue 10437
Supreme Court of Canada
Judgment: October 26, 2012


Proceedings: reversed R. c. Boudreault (2011), 2011 QCCA 2071, 2011 CarswellQue 12345, Bich, Bouchard, Wagner (Que. C.A.) Proceedings: reversed R. c. Boudreault (2010), 2010 CarswellQue 13757, 2010 QCCQ 11443, Daoust (C.Q.)

Criminal law | Offences | Impaired driving/care or control | Elements | Care or control

Accused was at woman's apartment and knew he was too drunk to drive — Woman called taxi for him and, as it was cold and windy, accused decided to wait in his pickup truck; he started motor and turned on heat — Taxi driver found accused asleep in driver's seat and noted that accused's ability to drive was manifestly impaired — Taxi driver called police, and accused was arrested and charged with having care or control of motor vehicle while his ability was impaired by alcohol and with more than 80 mg of alcohol in 100 mL of his blood, contrary to s. 253(1)(a) and (b) of Criminal Code — Trial judge was satisfied that accused would not have attempted to set his truck in motion before taxi arrived, and he acquitted him — Court of Appeal allowed Crown's appeal because it was of view that there was possibility that accused would decide to use his truck anyway out of poor judgment — Accused appealed to Supreme Court of Canada — Appeal allowed — Existence of realistic risk of danger to persons or property was essential element of "care or control" under s. 253(1) of Code — This was consistent with Parliament's intention to prevent danger to public safety — Only risk of danger in issue at trial was whether accused would have set his vehicle in motion — Majority noted that inebriated individual who is found behind wheel and has present ability to set vehicle in motion, without intending at that moment to do so, may present realistic risk of danger — However, conviction will be neither appropriate nor inevitable absent realistic risk of danger in particular circumstances of case — It was up to trial judge to determine whether there was realistic risk of danger to persons or property — Trial judge, applying correct legal test, found that no such risk existed here — Trial judge made no error of law alone, within meaning of s. 676(1)(a) of Code, therefore Crown had no right of appeal against acquittals, and acquittals should be restored.
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