Wait? Do I have to have a sober supervisor to be a designated driver with my L?

Recently, a story made headlines after a sober driver saw his passenger given a driving prohibition because she was drunk… even though she was not driving! This story has raised a lot of questions about what your obligations are as a supervisor and as an L driver.

The reality is that the actions of the police officer in this case were wrong. There is no legal authority to issue a driving prohibition to a passenger in a vehicle who has not been driving. And while people can appreciate why the officer’s actions were wrong, many seem to think there is some responsibility that either the driver or passenger bear for these circumstances.

So what does the law say?

Class 7L drivers are not permitted to drive without a qualified supervisor in the passenger seat. This is a condition of the license, which is set out in Regulation 30.071 of the Motor Vehicle Act Regulations. There is nothing in the Regulations that require the supervising passenger to be sober.

Rather, the regulations only require that the supervisor be at least 25 years of age, or licensed driving instructor. The supervisor must also hold a valid license and sit in the front passenger seat, next to the driver.

Nothing in the law mentions that the supervisor must be sober, or even awake. It is legally enough to have a licensed adult in the passenger seat. Therefore, the driver in such a case could not be ticketed for having no supervisor, as the supervisor is legally entitled to be intoxicated.

So the next question becomes, is there a world in which a person could be considered to be operating a motor vehicle when they are in the passenger seat and acting as a supervisor? If so, the definition of operating might expose the passenger to some legal liability.

Well, the prohibited act is “operating” a motor vehicle without a supervisor. Operating is not defined in the Motor Vehicle Act.

However, “operate” is defined in the Criminal Code. There, the definition reads:

(a) in respect of a motor vehicle, to drive it or to have care or control of it;

Now, obviously an intoxicated passenger does not drive the motor vehicle. But they may have care or control of the vehicle, depending on the circumstances.

Care and control is defined as an intentional course of conduct associated with a motor vehicle, in circumstances that create a realistic risk that the vehicle may be set in motion. If the intoxicated passenger reached over and grabbed the steering wheel – not unheard of, by the way – then the intoxicated passenger would be engaged in an intentional course of conduct associated with the vehicle that created a risk.

So does the mere presence of an intoxicated passenger create an inherent risk? In R. v. Boudreault, the Supreme Court of Canada recognized that, in some respects, an intoxicated person in a vehicle always poses a risk of driving. But, that risk also has to be realistic. And the “realistic” nature of the risk can be rebutted by adducing or pointing to evidence to show the risk is mitigated.

For example, in Boudreault, Mr. Boudreault had called a taxi and fell asleep waiting in his vehicle for a taxi that never came. The fact that he had made alternative arrangements by calling for a sober driver was sufficient evidence to rebut the inherent risk posed by his occupation of a vehicle in an intoxicated state.

In a case involving an intoxicated person who has arranged for a sober driver, the simple act of putting someone sober in the driver’s seat is enough to clearly rebut any realistic risk posed by the driver.

Unless the intoxicated passenger actually does something to take control of the vehicle, there is no legal liability that either the passenger or the driver can face under the Motor Vehicle Act or the Criminal Code.

The only person that deserves any blame for what happened in the unfortunate situation last week is the police officer who acted beyond the scope of his authority in issuing the prohibition.

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