Série de facteurs pertinents à l'analyse du risque réaliste de danger en matière d'infraction de garde et contrôle

Roy c. R., 2014 QCCS 6240 (CanLII)

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[49]        Dans l'affaire Fisher, émanant de l'Alberta, une série de facteurs pertinents à l'analyse du risque réaliste de danger sont énoncés :

[28] Durno J. in R. v. Szymanski, 2009 CanLII 45328 (ON SC), [2009] OJ No 3623, 88 MVR (5^th) 182 (Ont.S.C.J.) [Szymanski], noted that it was difficult to define what evidence would establish or refute the creation of a realistic risk. After examining the jurisprudence, Durno J. provided a non-exhaustive list of factors that a court might look at when determining if a real risk had arisen (at paragraph 93). These factors were cited with approval by the Court in Smits, supra, at paragraph 63:

(a) The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive;

(b) Whether the keys were in the ignition or readily available to be placed in the ignition;

(c) Whether the vehicle was running;

(d) The location of the vehicle;

(e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination;

(f) The accused’s disposition and attitude;

(g) Whether the accused drove the vehicle to the location where it was found;

(h) Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving;

(i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit;

(j) Whether the accused had a stated intention to resume driving;

(k) Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption;

(l) Whether the accused was wearing his or her seatbelt;

(m) Whether the accused failed to take advantage of alternate means of leaving the scene;

(n) Whether the accused had a cell phone with which to make other arrangements and failed to do so.