Can you get a DUI in Ontario for sleeping in your car?

• Can you get a DUI in Ontario for sleeping in your car?
• The answer is yes.
• As surprising as that sounds, that is the law in Ontario and the law in Canada.
• I’m going to explain 5 things you need to know about getting a DUI in Ontario for sleeping in your car.

1/  Key elements of a DUI charge

• It’s important to have some context about DUIs in Canada.
• In Ontario, DUI charges are known as Impaired Driving by Alcohol or Drug, Over 80 and Refusing a Breathalyzer or Blood Sample Test.
• In simple terms, there are 2 key elements to convict you of a DUI in Ontario.
• First, you must have alcohol or drugs in your system beyond certain defined limits.
• And second, you must be operating a motorized vehicle.

2/  It’s all about “Care and Control”

• Where people get confused is what it means to operate a vehicle.
• Intuitively you would think that operation must be movement.
• In other words, you are driving your case.  But that is not true.
• In the Criminal Code of Canada, the definition of operation of a vehicle includes what is known as “to have care or control”.
• In plain English, the Crown does NOT need to prove that you were driving.
• The Crown only needs to prove that you were in a position where you COULD have driven while you were impaired.

3/  It’s about realistic risk

• In 2012, the Supreme Court of Canada came out with a decision that dealt with care and control in the context of a DUI.
• The Supreme Court of Canada said there must be circumstances that create a “realistic risk of danger.”  
• In other words, the risk must be “realistic” and not “theoretical.”  
• The Court agreed that a realistic risk of danger exists even when someone who is intoxicated does not intend to drive because that person may change their mind later.
• Or, they might accidentally put the car into motion.
• This logic led the Court to agree that in most cases where someone is above the alcohol or drug limit, they are still in the care and control of the car even if it’s not moving.

4/  Fight the DUI based on “no realistic risk of danger”

• The Supreme Court of Canada said that if the accused could produce “credible and reliable” evidence that there was no realistic risk of danger, then the Crown would not be able to prove the DUI case.
• The Supreme Court gave examples such as if the car was inoperable or positioned to make it impossible to pose a risk of danger.
• So the specific details of what happened in your DUI charge are critical to creating doubt as to whether there was no realistic risk of danger.

5/  Here’s what happened in that Supreme Court of Canada Case

• So, in 2012, the Supreme Court of Canada ruled on a DUI care and control case.  (You can read the case here, R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157.)
• Here are the facts.
• After an evening of drinking, Mr. Donald Boudreault realized he was too drunk to drive home.
• So he arranged to have a cab service pick him up with two drivers.
• One driver to take him home.  And one driver to take his car home.
• It was a very cold February day in Quebec.  As Mr. Boudreault waited for the drivers, he got into his car, turned on the heat, and fell asleep.
• He was woken up by the Police and taken to the Police station, where he blew three times over the limit.
• The Police then charged him with a DUI based on the fact that he was in the care and control of the car.
• The Supreme Court of Canada ruled that Mr. Boudreault was not guilty.
• The Court ruled that Boudreault had provided credible evidence that he sought to escape the cold while waiting for his taxi.
• The fact that Mr. Boudreault planned to take a taxi home and implemented the plan was enough evidence for the Court to conclude that he had no realistic risk of putting his vehicle in motion.