"Care and control" and when can the Crown appeal an acquittal at trial

R. v. Boudreault, 2012 SCC 56 deals with two important issues – the meaning of “care and control” in the context of a motor vehicle and when a Crown can appeal the acquittal of an accused.

 “Care or control” within the meaning of s. 253(1) of the Criminal Code signifies (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. With respect to the third element, the risk of danger must be realistic and not just theoretically possible. Parliament’s objective in enacting s. 253 of the Criminal Code was to prevent the risk of danger to public safety that normally arises from the mere combination of alcohol and automobile. Conduct that presents no such risk falls outside the intended reach of the offence. To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention.

 The existence of a realistic risk of danger is a matter of fact. In the absence of evidence to the contrary, a realistic risk of danger will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face a tactical necessity of adducing evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. The trial judge must examine all of the relevant evidence and may consider a number of factors, including whether the accused took care to arrange an alternate plan to ensure his safe transportation home.

 In this case, the trial judge, applying the correct legal test to the evidence he accepted, found as a fact that there was no realistic risk of danger. The trial judge’s conclusion on the facts, however surprising or unreasonable it may appear to another court, did not give rise to a question of law alone. This is the only ground upon which the Crown, pursuant to s. 676(1)(a) of the Criminal Code, can appeal the acquittal of an accused. Accordingly, the Court restored acquittals entered at trial.