|
Criminal - Impaired Driving (6). R. v. Grkovski
In R. v. Grkovski (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown criminal appeal, here brought against "acquittals on: two counts of impaired operation of a conveyance causing death under s. 320.14(3), two counts of impaired operation of a conveyance causing bodily harm under s. 320.14(2), two counts of criminal negligence causing death under s. 220(b), and two counts of criminal negligence causing bodily harm under s. 221(a) of the Criminal Code".
Here the court considers elements of the 'impaired operation of a conveyance' charges [CCC 320.14], focussing on the meaning of 'care or control':i. Impaired operation offences
[18] The respondent was charged with impaired operation of a vessel causing bodily harm or death, respectively under s. 320.14(2) and (3) of the Criminal Code. Those sections make it an offence for anyone to cause bodily harm or death while operating a conveyance while impaired by alcohol or drugs.
[19] The elements of the offence were set out by the majority of the Supreme Court in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157, at para. 33:(1) an intentional course of conduct associated with a motor vehicle;
(2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;
(3) in circumstances that create a realistic risk of danger to persons or property.[1] [Emphasis in original.] [20] With respect to the impaired driving charges, the Crown argues that the trial judge misconstrued the meaning of “care or control”. “Care or control” appears in s. 320.11 as part of the definition of operating a conveyance for the purposes of the impaired operation offences under s. 320.14. To “operate a conveyance”, or in this case, a vessel, means: “to navigate it, to assist in its navigation or to have care or control of it”.
[21] While “care or control” is not further defined in the Criminal Code, its meaning is not restricted to the other two media of operation - navigating or assisting in the navigation of a vessel. It is meant to be broader: R. v. Maniatis, 2026 ONCA 567, at para. 13. This distinction is made clear by the comma in the French language version of the section which separates “care or control” from the other media of the operation of a vessel: “le piloter ou aider à son pilotage, ou en avoir la garde ou le contrôle” (emphasis added).
[22] Further, the language of the section encompasses the possibility that more than one person may be operating a vessel at the same time, namely, be in care or control, navigating or helping to navigate. For example, in R. v. Sillars, 2022 ONCA 510, 162 O.R. (3d) 664, at paras. 41-42, leave to appeal refused, [2022] S.C.C.A. No. 431, this court rejected the argument that a canoe could not constitute a vessel because multiple people could influence its speed and direction. This broad meaning makes sense given the nature of a boat’s operation. As the facts here demonstrate, it is possible for multiple drivers to alternate operating a boat with particular ease. Unlike in motor vehicles, different drivers may assume control of a boat relatively easily and without a need to interrupt the boat’s motion.
[23] In the context of impaired driving offences, “care or control” has been interpreted broadly. The expansive interpretation of “care or control” serves Parliament’s objective to prevent a risk of danger to public safety and “directed at the inherent danger that normally arises from the ‘mere combination of alcohol and [conveyance]’”: Boudreault, at paras. 32 and 40. Parliament’s goal is to stop intoxicated or otherwise impaired individuals from endangering themselves and the public by having care or control of a conveyance: R. v. Coleman, 2012 SKCA 65, 288 C.C.C. (3d) 429, at para. 34.
[24] As noted by the Supreme Court in R. v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119, at p. 125, it is not possible to set out an exhaustive list of acts that could qualify as acts of care or control of a conveyance, but courts have provided helpful illustrations. For example, in R. v. Price (1978), 1978 CanLII 2288 (NB CA), 40 C.C.C. (2d) 378 (N.B.C.A.), Limerick J.A., speaking for the court, at pp. 383-84, said:The word "care" is defined in the Oxford English Dictionary as "having in charge or protection". "Control", on the other hand, is defined as "the fact of controlling or of checking and directing action"; also as "the function or power of directing and regulating; domination, command, sway."[2] [25] The word "care" has also been interpreted to mean custody, charge, safekeeping, preservation, oversight or attention: R. v. Henley (1962), 3 C.C.C. 360 (N.S. Co. Ct.), at p. 366. An example of “control" of a vehicle was described as follows: “The man who is in a car and has within his reach the means of operating it is in control of it”: R. v. Thomson (1940), 1940 CanLII 292 (NB CA), 75 C.C.C. 141 (N.B.C.A.), per Baxter C.J., at pp. 143-44.
[26] Exercising “care or control” of a conveyance for the purposes of the impaired operation offences includes engaging in the intentional course of conduct associated with a conveyance in circumstances that “create a realistic risk of danger to persons or property”: Boudreault, at para. 33 (emphasis removed). The broad issue to be determined is “whether any acts by the accused could cause the vehicle to become a danger whether by putting it in motion or in some other way”: R. v. Wren (2000), 2000 CanLII 5674 (ON CA), 47 O.R. (3d) 544 (C.A.), at para. 29 (emphasis added), leave to appeal refused, [2000] S.C.C.A. No. 235.
[27] The concept of care or control is not restricted either in law or in logic to a precise moment in time: R. v. Martins, 2007 ABCA 270, 52 M.V.R. (5th) 134, at paras. 29-32. For example, a realistic risk of danger may arise because an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so: Boudreault, at para. 42. Or an impaired operator may exercise the notoriously diminished judgment of someone who is inebriated in relation to decisions involving and in the course of the operation of a conveyance that endanger themselves and the public: Boudreault at para. 42; Maniatis at paras. 15-16; Coleman, at para. 24.
[28] Further, absent evidence to the contrary, impairment by alcohol or drugs combined with an ability to drive creates an inherent risk of danger. To avoid conviction “the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case”: Boudreault, at para. 13 (emphasis in original).
|
