Can someone be convicted of an impaired driving offence while sitting behind the wheel of a vehicle that is physically incapable of moving? In Episode 464 of Driving Law, Kyla Lee and Paul Doroshenko examine a new Ontario Court of Appeal decision that says the Criminal Code’s presumption of operation can still apply.
The case involved a vehicle that had crashed into a telephone pole and become inoperable. Police later found the accused sitting in the driver’s seat, but there was sufficient uncertainty surrounding the collision that the Crown could not simply rely on proof that he had driven the vehicle beforehand. Instead, the case turned on the statutory presumption that a person occupying the driver’s seat is presumed to be operating the vehicle unless they establish that they did not occupy the seat for the purpose of setting it in motion.
The accused argued that the presumption should not apply because the vehicle could no longer move. The Ontario Court of Appeal disagreed. Looking at Parliament’s amendments to the Criminal Code, the Court concluded that lawmakers deliberately moved away from an approach focused on the immediate danger posed by the vehicle. The presumption can therefore apply even where the vehicle is mechanically incapable of being driven.
That produces a troubling result. A person could theoretically enter the driver’s seat of a completely disabled vehicle intending to try to drive it, even though there is no realistic possibility the vehicle could move, and still come within the criminal prohibition. Kyla and Paul discuss the tension this creates with the presumption of innocence and fundamental principles of criminal liability.
Importantly, the Court specifically emphasized that the appeal involved statutory interpretation, not a constitutional challenge. The accused had not asked the Court to strike down or read down the presumption under the Charter. That leaves open the possibility that a future case could directly challenge whether the provision is constitutional when it permits conviction despite the absence of any realistic danger of the vehicle being put in motion.
The episode also examines significant police enforcement surrounding two BC music festivals. Shambhala generated hundreds of traffic stops, more than 300 speeding tickets, roadside sobriety testing, drug-impaired driving investigations and numerous vehicle impoundments. Sunfest in Lake Cowichan also saw a substantial increase in Immediate Roadside Prohibitions compared with previous years. Kyla and Paul caution, however, against assuming higher numbers necessarily mean more dangerous behaviour; increased enforcement alone can dramatically increase the number of recorded offences.
Another case discussed in the episode raises a very different concern about fairness. After an Alberta judicial review hearing had concluded, counsel representing the Director of SafeRoads Alberta sent additional cases and approximately two pages of further legal argument directly to the court without obtaining leave and without giving the self-represented opposing party notice. The judge sharply criticized the communication, warning that government counsel appearing to have a privileged channel of access to a judge risks undermining public confidence that both sides stand equally before the court. Although the driver ultimately lost the judicial review, the government was ordered to pay costs because of the conduct.
And the Ridiculous Driver of the Week goes to a BMW spotted travelling on the Sea-to-Sky Highway with two large drums of vegetable oil strapped to its roof—an unusual load that appeared wider than the vehicle itself and raised some obvious questions about weight and load security.
