In Canada, you can be charged with “Care and Control” of a motor vehicle even if you were just sleeping off alcohol in the driver’s seat. Under the Criminal Code of Canada, the penalties are virtually identical to a standard DUI, including a mandatory minimum $1,000 CAD fine and a one-year driving prohibition.
After a night out at a local Markham bar or restaurant, making the decision not to drive is always the right choice. However, many people mistakenly believe that as long as the car is parked and the engine is off, they are safe from the law. In reality, the York Regional Police can and will arrest you if they find you intoxicated inside your vehicle, even if you never moved an inch.
This specific charge is known as “Care and Control” while impaired or over the legal limit (Over 80). The law is designed not just to punish drunk driving, but to prevent the risk of danger that an intoxicated person might suddenly change their mind and put the vehicle in motion. Understanding the nuances of this charge is vital for building a strong defence at the Newmarket Courthouse.
Step-by-Step Process: Understanding and Fighting the Charge
A Care and Control charge can feel incredibly unfair. You thought you were doing the responsible thing by “sleeping it off.” However, defending against this charge requires proving to the Crown Attorney that there was zero realistic risk of the car being put into motion. Here is how your defence lawyer builds that case.
Step 1: Understand the Legal Presumption
Under Canadian law, if you are found sitting in the driver’s seat, the court automatically presumes you were in care and control of the vehicle. The burden shifts to you to rebut this presumption. Your lawyer must prove that you did not occupy the driver’s seat for the purpose of setting the vehicle in motion, but rather for some other reason, like keeping warm or using the radio.
Step 2: Collect Evidence of Your Intent
Your intent matters immensely. Did you text your spouse saying, “I’m sleeping in the car until morning”? Do you have an Uber receipt showing you tried to order a ride but none were available in Markham? Did you throw your keys in the trunk or the backseat? Your lawyer will use this evidence to demonstrate that you had an alternate, safe plan and zero intention of driving.
Step 3: Analyze the “Risk of Danger”
Even if you were in the driver’s seat, the Supreme Court of Canada has ruled that the Crown must prove there was a realistic risk of danger to the public. If your car was broken down, out of gas, or completely blocked in by a snowplow, your lawyer can argue that it was physically impossible for you to put the vehicle in motion, thereby negating the risk.
Step 4: Negotiate at the Newmarket Courthouse
Most Care and Control cases are resolved through extensive negotiation. Your criminal defence lawyer will meet with the Crown Attorney during a Crown Pre-Trial. By highlighting the weaknesses in the police officer’s observations or presenting strong evidence of your safe intentions, your lawyer may convince the Crown to withdraw the charges or reduce them to a non-criminal traffic ticket (like careless driving).
What are the Costs of a Care and Control Conviction?
Because the Criminal Code treats Care and Control exactly the same as impaired driving, the financial penalties are severe.
| Penalty Type | Description | Estimated Cost (CAD) |
|---|---|---|
| Mandatory Court Fine | The minimum fine for a first-time conviction under federal law. | $1,000 to $2,000+ |
| Victim Surcharge | A mandatory government surcharge added to all criminal fines in Ontario. | 30% of the fine |
| Lawyer’s Defence Fees | The block fee a private defence law firm charges to fight a DUI charge. | $3,000 to $10,000+ |
Additionally, your auto insurance premiums will skyrocket, often doubling or tripling for up to five years. This “hidden cost” is why it is almost always worth hiring a lawyer to fight the charge. 💰
How Long Does the Process Take?
Upon your arrest, your licence is instantly suspended for 90 days under the Highway Traffic Act, and your vehicle is impounded for 7 days. Securing the police disclosure (the evidence) and scheduling court dates at the Newmarket Courthouse typically stretches the legal process out to 6 to 12 months. If your case proceeds to a full trial to debate your intention to drive, it could take over a year to resolve.
Frequently Asked Questions (FAQ)
What if the keys were not in the ignition?
You can still be charged. If the keys are in your pocket, on the passenger seat, or anywhere easily accessible within the vehicle, the police can argue you had the immediate ability to start the car and create a risk.
Can I be charged if I was sitting in the passenger seat?
If you are in the passenger or back seat, the automatic presumption that you had “care and control” does not apply. However, if the police can prove you had the keys and a plan to drive eventually, they might still lay the charge, though it is much harder for the Crown to prove.
Does a Care and Control conviction result in a criminal record?
Yes. Care and Control is a criminal offence under the federal Criminal Code. A conviction will leave you with a permanent criminal record, which can impact your employment and ability to cross the US border.
Should I just plead guilty to get it over with?
It is generally unwise to plead guilty without at least consulting a defence lawyer. Care and Control cases have strong legal defences available, and a lawyer can assess if your Charter rights were violated during the police interaction.
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