The issues around impaired driving, or DUI (driving under the influence as it is commonly called though this is an unnecessary Americanism) are never settled. The Supreme Court of Canada sought to resolve one of the most contentious in its 2012 decision of R. v. Boudreault which it was thought finally would define the issue of what constituted care and control of a motor vehicle while impaired. The contentious wording in section 258 of the Criminal Code related to the presumption of guilt of care and control for one found impaired in the drivers seat unless it could be established that occupant had no intention of setting the vehicle in motion.
So often the factual situation was an individual would drink, find himself or herself impaired, realize the serious nature of attempting to drive, intelligently deciding not to drive and fall asleep in the drivers seat with the unstated to anyone else intention of sleeping it off. Too often this would happen in a cold Canadian winter and at some point the engine would be started to prevent freezing. Along would come the police and the charge of impaired care and control would be laid.
The courts would then often perform judicial gymnastics to convict. It would be said that guilt could be established because the person might wake and decide to drive. Maybe the person would set the vehicle in motion even when asleep.The game revolved around the speculation of what might transpire in many cases, not what was actually happening which was almost invariably nothing at the time of awakening by the police. People in effect were being criminalized for their attempt to avoid being criminalized. The message was almost being sent that it was just as preferable to drive home which in many cases could have been done rather than adopt the more responsible case of deciding not to risk serious consequences of driving while impaired.
In R.v. Boudreault, the Supreme Court of Canada adopted the test of what was a realistic risk. If the court found no reasonable risk in sleeping in a car when impaired, even with the engine running, an acquittal should be given. Each case would be decided on its own facts, but the overriding criterion was an objective look at reasonable risk in the circumstances.
Almost immediately, the courts reacted to maintain the narrowing of that decision. Lists of factors were put forward to determine what would constitute a reasonable risk, indulging the exercise in calculating factors as leaning towards acquittal or conviction, in a sense moving towards the civil balance of probability test rather than proof beyond a reasonable doubt. It seems no court wants to be seen as lenient on impaired driving, even at the cost of common sense.