On June 20, 2011, the CBC reported an arrest for impaired driving after an accident in downtown St. John's NL the day before. The driver apparently lost control of the car and crashed into a home. There were no deaths or injuries, nor was there a lot of damage done to the house. What made this accident a newsworthy subject for a national media outlet was the fact that the 20-year-old man charged with impaired driving was a passenger in the vehicle, not the driver.
The Highway Traffic Act of Newfoundland and Labrador
The 18-year-old woman who was operating the vehicle was a learner or Novice Driver. Under provincial legislation there are two categories of Novice Drivers in Newfoundland and Labrador; Level I and Level II. Both levels have certain restrictions and regulations that attach to their permits that do not apply to those who have a regular driver's licence.
After a person receives a Level I permit, they must drive for at least one year prior to taking the written driver's examination. The driver must be accompanied at all times by another person who must have a Class 5 licence that authorizes them to drive passenger vehicles or small trucks. In addition, the accompanying driver must have at least four years driving experience.
A Level I novice cannot have any alcohol in their blood while the accompanying driver is permitted to have Blood Alcohol Content (BAC) of less than .05 percent.
A novice driver who passes the road test moves up to Level II for a period of 12 months before they qualify for a regular Class 5 licence. Level II drivers only need an accompanying driver if they drive between the hours of midnight and 5 a.m., unless driving a motor vehicle for purposes of employment.
While a learner who is accompanied by another driver who has a BAC greater than .05 percent, is breaching the conditions of the licence, this does not end the matter. The offence of impaired driving is found not under the provincial Highway Traffic Act, but under the Criminal Code of Canada.
Impaired Driving and Care and Control
Under s.253 of the Criminal Code, it is an offence to operate a motor vehicle or have the care or control of a motor vehicle, whether the vehicle is in motion or not, while the person's ability to operate it is impaired by alcohol or a drug. It is a basic rule of statutory interpretation that "care or control" must mean something other than driving or else Parliament would have limited the offence to driving. Care or control carries the same penalties as does impaired driving. And the courts have held that it is not necessary for a person to be actually driving the vehicle to be guilty of the offence of impaired driving.
Convictions have been upheld where a vehicle is not moving but the driver is found behind the driver's seat. All that is needed is the intention to drive or evidence that the person performed some acts with the fittings or equipment in the car. Persons have been convicted of the offence even when they were outside of the vehicle; for example when the person is entering the vehicle with the intention of putting it in motion.
Newfoundland and Labrador, like many other provinces imposes conditions on learners or novice drivers and the need to be accompanied by a fully licensed experience driver is a common one. The accompanying driver is there for a purpose other than mere presence in the car; to assist the novice or learner if necessary. If they were allowed to be passed out drunk, it would defeat the purpose of their being present in the vehicle. The accompanying driver is there to exercise a degree of care or control over a vehicle operated by an inexperienced driver.
Although it may seem strange that a passenger could be guilty of impaired driving, it is no different than other cases where people have been convicted of being in care or control of a vehicle while their ability is impaired.
Arthur Weinreb - Weinreb is an author, associate editor and columnist with Canada Free Press and the Canadian Affairs Feature Writer for Suite 101.
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