Care and Control (Balance of Probability)

Care or control

  A person does not need to be actually driving or operating their vehicle to be charged with a drinking and driving offense in Canada. It is also possible to be charged and convicted if a person is found to have in his/her possession the means to start a vehicle and be in or near the seating of the vehicle required to do this.  In the legal vernacular this is expressed as being in care or control of his/her vehicle.  Should the person exhibit signs of exceeding the "warn" range or the .08 level of alcohol in the body it is assumed that in every case the person does fully intend to actually start the vehicle and set it into motion.  This is not considered to be a speculative assumption but a hard fact.  There are no exceptions.  Should the individual be merely "sleeping it off" before seeking out motel accommodation the assumption "will" (not "may") apply.  The justification for this is the legal concept (originally to be found in civil law) of "Balance of Probability." In this case the Probability is the "Actus Reus" and the "Mens Rea" where the Highway Traffic Act is concerned.  The conviction and punishments which accompany a conviction of DUI, will be as harsh and all serious repercussions will apply.

 

Under section 11(d) of the criminal code any citizen is considered innocent until proven guilty. Consideration involves 2 concepts, Mens Rea and Actus Rea: Mens rea is Latin for "guilty mind".[1] In criminal law, it is viewed as one of the necessary elements of some crimes. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act is not culpable unless the mind is guilty". Thus, in jurisdictions with due process, there must be an actus reus, or "guilty act," accompanied by some level of mens rea to constitute the crime with which the defendant is charged (see the technical requirement of concurrence). As a general rule, criminal liability does not attach to a person who merely acted with the absence of mental fault. The exception is strict liability crimes.
In civil law, it is usually not necessary to prove a subjective mental element to establish liability for breach of contract or tort, for example. However, if a tort is intentionally committed or a contract is intentionally breached, such intent may increase the scope of liability as well as the measure of damages payable to the plaintiff.
Therefore, mens rea refers to the mental element of the offence that accompanies the actus reus
Mens rea - Wikipedia, the free encyclopedia
Now this of course is great to protect all for whom it would simply be easier to grab and charge. This protects the public from such issues as police not be arresting the guy with the hoodie hanging around the bank because they were positive that he was going to rob it. However our Charter of Rights and Freedoms has one weakness in it, Section 1.

“Section 1 is used every time a Charter infringement is argued. If a case involves three separate sections of the Charter, a section 1 analysis would occur after each section is argued. For example,if sections 7, 8 and 9 of the Charter are argued as being infringed, the government would have to argue a separate section analysis for each. In addition, the government must satisfy all of the steps in the Oakes Test.
THE OAKES TEST
The Oakes Test is a legal test created by the Supreme Court of Canada in the case R. v. Oakes (1986). R. v. Oakes provided the Court with the opportunity to interpret the wording of section 1 of the Charter and to explain how section 1 would apply to a case. The result was the Oakes Test –a test that is used every time a Charter violation is found.
However, the Supreme Court of Canada has identified specific situations where the government does not have to impair a Charter right as little as possible. The Court has found that in some situations it may be appropriate to take a deferential approach to government action. This means that the Court takes a flexible approach to the minimal impairment portion of the Oakes Test. Situations where deference may be given often occur where the legislature has to balance multiple interests. The Court has held that deference may be appropriate in situations where a legislature is better suited to weigh the evidence and policy considerations, and also, where the legislature has shown it has exercised judgment within a range of reasonableness. In other words, the Court acknowledges that the legislature, an elected body, is often in a better position to respond to the needs of Canadians. “
http://ccla.org/wordpress/wp-content...OJEN_Oakes.pdf

Now to simplify: In order to pick and choose any areas in the Charter where legislators feel have reached a level of popular support or seems to be politically correct, the Supreme court can back up the legislators to impose any exceptions to a section of the Charter. The Oakes Test despite the appearance of propriety and moral justification is simply a construct, a tool to justify legislators modifying the precepts of the Charter for any justification they may espouse. Under the Oakes Test the Supreme Court assumes such a test will exempt legislation from being held strictly to the spirit of the Charter.  Now things like hate speech would engender a public outcry so they are careful to avoid such areas. Not so for dui.
Now, in civil law, there is a concept referred to as "balance of probability" which is sometimes considered and allowed. And quite rightly as criminal and civil issues differ in a number of fundamentally different aspects. Where dui is concerned, the optics of drinking alcohol have been put into such a negative light that this process was employed to introduce this qualifier into the criminal code. What it means here for section 11(d) is that in some cases, if it looks like there might be even the slightest probability of an individual driving drunk in the future with a BAC of .08 (under certain circumstances) then that is the same as actually driving off into traffic drunk and posing a risk to other drivers. In one case a young fellow, rather than risk the lives of others decided to sleep it off in his car. He had a sleeping bag, got into it. And after putting the keys into the ignition to get some quiet music on the radio, drifted off to sleep. Police Officers examining vehicles found him this way. He was charged with dui. He was not driving but the new twist to the dui law determines that there was a probability that he was going to drive off drunk under the influence. This Care and Control law is such that being on the front seat of the automobile, over the limit and with keys in his/her possession warrants a dui charge, a subsequent conviction being replete with the penalties described above for second time offenders. Now there are members of society who support this brainless kind of thing unconditionally. This is how powerful special interest groups have become in influencing the opinions of the general public. This is issuing a criminal conviction on the basis of what someone might do – not what they have actually done. Pretty scary stuff.  

And actually this concept of balance of probability has manifested itself, if not in the criminal code, then in the spirit itself, of what may be termed Administrative Initiatives.  In Ontario, an individual may present him/herself to a hospital as a first step in leaving, what they may believe to be, the excess consumption of alcohol behind them or perhaps for a liver check due to their concern.  Now this individual was not stopped by police or in an accident of any kind.  In other words there are none and never have been any charges related to DUI.  That said, doctors are asked to report any diagnosis of alcohol dependency to the Medical branch of the Ministry of Transport.  On the balance of probability that this individual will, however, in the future, drive drunk and pose a risk in public, the drivers license  of that individual is suspended for up to one year.  Further, should an individual who does not have a drivers license, present themselves in the same fashion, a record is kept and should they ever present themselves for a license in the future (no matter how much time has elapsed or whether they have long ago completed a rehab program) they will be subject to similar sanctions before being able to apply.  The difference here is that the sanctions imposed here are arbitrarily defined as administrative not convictions under The Highway Traffic Act.  In this way there are no protections under the Charter of Rights and Freedoms.  Just few decades ago, if anyone would have told me that, we might suffer penalties under the law, not for what we have done but for what we might do in the future,  I would never have believed it.  How could we ever have arrived at this point?

 

Expanding the scope of police powers

Another example of the Criminal Code amendments:

“If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to [accompany the officer for sobriety testing and/or breath testing].

(Criminal Code, s. 254(2), as amended)

One concern here (as evidenced by the following example) is that, based on the section of the criminal code quoted above, an officer only has to suspect that a driver had operated his/her vehicle 3 hours in the past to qualify for a breath test in the present.  Indeed it is possible that after returning home the driver had consumed several drinks over the three hour period.  Further to this the driver may have consumed a considerable amount of alcohol in as short a period of time as twenty minutes.  Negative life issues can result in a motive for many people.  This does not qualify that a person was operating a vehicle while under the influence or what their BAC may have been in the last short period of time.  The section quoted above allows for an officer to remove a person from their dwelling for testing.  Witness the following scenario:

One of the latest developments is a campaign by MADD to encourage anyone to report impaired drivers. Traffic signs brandishing this exhortation are going up on light standards and elsewhere by the roadside. It has not achieved widespread practice yet but perhaps we will soon see more examples of this as increasing numbers of people click into the possibilities.

Take a case in point: It is an unfortunate fact of life that there are occasions where neighbours living side by side are in bitter conflict. One of the neighbours has friends over for a social occasion. The alcohol flows freely as evidenced by the boistrous deportment of all. The party ends, all leave before 11 o'clock. Shortly after, the neighbour notices the host going out to his car, unlocking the door and

• sitting in the front seat to rummage around in the glove compartment for some article.
• or backing the car up ten feet to be able to get the lawnmower into the garage
• or entering the drivers side of the car with keys in his possession for any reason.

Though the host is not exhibiting any outward signs of intoxication, the neighbour calls his wife over to observe then calls the police to report the host as having care and control while under the influence. The host goes back into the house and has several more drinks.  Some time after (up to three hours is allowed by law), the police arrive at the host's door, call him out and administer a roadside breathalyzer. The neighbours are interviewed and statements taken from each. The host blows over .08, is taken to the station where he is again tested then charged with dui (Care and Control). His license is removed for three months, his vehicle impounded for a week and a trial date set. The penalties upon conviction are exactly the same as if he had been driving down main street weaving wildly, and stopped by police and also if he had exited the vehicle with speech slurred and was staggering. With the amendments described above, the fact that he had no intention to drive the streets is not pertinent. Unfortunately the public is largely unaware of this possibility. Is this scenario really plausible? I personally am aware of one incident similar to this scenario. Though the person in question was not charged formally for DUI the resultant guilty plea to a lesser charge resulted in 8 months of driving restrictions and close to $10,000.00 in fines, vehicle impoundment and legal fees not to mention costs associated with the inconvenience of the initial three month suspension (exclusive of the 8 month driving restrictions) imposed by the police.  

Since precedent is such an important element in the interpretation of our laws and protections under the Charter of Rights and Freedoms, one might be concerned as to the possibility of using Balance of Probability to set precedent in other areas of the law in our judicial system.  Though this possibility may be pooh! poohed! within the legal community it would be interesting to assess the rationale behind such assurances, keeping in mind, of course that many of us haven't fallen off the proverbial "turnip truck!"