Impaired Operation / Care and Control
Impaired operation or care and control charges involve proving that a person’s ability to operate a vehicle was impaired by alcohol or drugs. Even slight impairment may be sufficient to support a charge, but the Crown must prove impairment beyond a reasonable doubt. A lawyer assesses factors such as coordination, reaction time, speech, and other indicators of impairment to assess the evidence and available defences, which may include the use of expert witnesses.
There is a requirement of proof that a person’s ability to operate a vehicle or conveyance was impaired by alcohol or drugs at the time of operation or care and control. The impairment does not have to be egregious; even a slight impairment of a person’s ability to operate a vehicle or conveyance may be sufficient to support a charge. However, regardless of the level of impairment, the onus is on the Crown Attorney to prove it beyond a reasonable doubt, which is a very high standard.
Factors that are considered when assessing these types of offences include, but are not limited to: speech, smell of alcohol, balance, coordination, fine motor skills, judgment, physical movements, and reaction time.
If an individual is found not to be in care and control of a vehicle or conveyance, then it may follow that they would also be found not to have operated that vehicle or conveyance. However, the opposite may not be the case: an individual can be found not to have operated a vehicle or conveyance, yet be found to have been in care and control of that vehicle or conveyance.
Impairment of operation can be caused by drugs as well. “Drugs” can include non-prescription medication as well as prescription medication. There have been changes to the legislation since December 2018. Personal possession and use of marijuana became legal in Canada; however, it remains an offence to operate a motor vehicle or conveyance while impaired by cannabis. Roadside testing mechanisms for cannabis-related impairment may also be subject to legal scrutiny.
The prerogative of defence counsel through skilful advocacy is to ascertain what, if any, indicia of impairment were actually present at the time of the alleged offence, which may raise reasonable doubt in the Crown’s case. Furthermore, certain cases necessitate consultation with and/or the use of a toxicologist or accident reconstructionist to ensure our clients receive the best defence available against impaired driving charges.