I Only watched, I didn’t do it, I was there but it wasn’t me, it’s not my fault.
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By Michael K. E. Thiele
Ottawa, Ontario, Canada
Copyright November 2011
This particular article is intended for the many young people who are cautious, generally law abiding, smart, funny, intelligent, good students, respectful of authority, wishing to do the right things and being seen to do the right things. And of this group, this article is specifically intended for those who are also a little bit wild, like to party, and have a very good time living it up.
Why focus on this group of young persons? Well, using the precision of anecdotal science, it appears that group dynamics may indeed encourage the all around good young person to pursue irrational behaviours when it comes to driving and alcohol. The issue is not that these particular people drink, get drunk, get behind the wheel and operate a motor vehicle while impaired. This group of people already understands the MADD message, understands that getting caught driving drunk leads to serious charges, licence suspension, as well as the loss of insurance or incredibly increased insurance premiums that have the effect of a licence suspension. This group of people already understand that the line is crossed when you get behind the wheel while impaired by alcohol or drugs.
Oddly, in this same group of people there is a dynamic, a thrill, a "bad boy" mind-set, that excuses the idea of riding with, or encouraging a drunk driver. Riding with a drunk driver, while fraught with risk, does not seem to be illegal. Ultimately, the risks of being caught belong to the driver and not the passenger. And whether true or not, most times the drunk driver gets to where they’re going without incident.
This dynamic leads to a rationalization that in effect encourages "someone else" to drive drunk. These rationalizations are employed to create a tacit encouragement to drive drunk. It happens by handing the drunk person keys, walking to the car with them, urging that "we" go to another bar, party, or home, guilting the driver with references to the expectations of parents, references to promises to being the driver "tonight" or saying "it’s your turn". Simply jumping into the passenger seat and urging the impaired driver to get in and "lets go" may indeed be sufficient pressure to make the drunk driver do something they might not otherwise do—i.e. drive drunk. All the while leaving the real issue of whether the person should be driving un-spoken.
For the person who never drives drunk–but who is in the group where people do drive drunk, who is sometimes in the car that is being driven drunk, who sometimes meets up with the group in the car that is being driven by an impaired driver, or who can honestly say "I only watched, I didn’t do it, I was there but it wasn’t me, it’s not my fault" there is something they should know.
Not just morally–but in fact legally, criminally, go to jail for real–– actively watching may be enough, just being there can be a crime, and in fact you get to share the fault–and the consequences. The Criminal Code of Canada states that a person has committed a criminal offence if they have done or omitted to do anything for the purpose of aiding (helping) any person to commit it; or, abets (encourages) any person in committing it.
What does this mean? Well, as in many countries of the Commonwealth and the United States, it is fairly clear that passengers or others who encourage a person to drive drunk, who participate, help, or encourage a situation that puts a drunk driver behind the wheel of a car, may indeed suffer the same criminal consequences as the driver of the vehicle. Does this seem surprising?
Perhaps so, but the law of aiding and abetting has broad application, the principles apply very much to the people peripheral to the commission of a criminal act and the law may look closely at those people to see what they did, or didn’t do, that actively allowed the criminal act to happen. Chief Justice Dickson of the Supreme Court of Canada provides us with a good idea of what it means to aid and abet in the commission of a criminal act. Can you see how these principles apply? In the case of R. v. Dunlop the Court stated:
Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit.
Using these concepts, other courts have said:
Even though only one person can be engaged in the physical operation of a motor vehicle at one time, and even though another may be incompetent in person to commit the crime, it is plain that such other, though not engaged in such physical act, may have caused or aided in the operation by the drunken person, and hence be liable to indictment therefore.
And then, more than 100 years ago a Court of Appeal in England (on which our Canadian law is based) said in relation to aiding and abetting:
... for an offence of aiding and abetting causing death by dangerous driving. It seems to us an important and powerful weapon in the armoury deployed to discourage owners of a vehicle permitting those who have been drinking from driving. Anyone who does so runs the risk of not merely a prosecution for aiding and abetting driving with excess alcohol but, should tragedy occur, for a far more serious offence.
So what do I hope that you take from this? For those who understand the dynamic to which this article refers, and for those who experience that dynamic, be aware that from a legal perspective you can’t get as close to the fire as you may think. Just being there, not actually being the one doing the driving, just watching, tacitly encouraging others, can indeed lead to criminal charges that may carry severe sanction as if you were the one actually behind the wheel.
Of course, there are very many good reasons to dissuade people from driving drunk—which simply put is just the right thing to do. Query though, whether there is a legal duty to dissuade if not prevent a person from driving drunk where circumstances would allow. That being said, the focus of this article is on the opposite end of the spectrum–that being aiding and abetting aka helping and encouraging. In the grand scheme of things I think that dissuading the occurrence of drinking and driving is helped by all people understanding that failing to dissuade or prevent such conduct when circumstances permit may indeed be the slippery slope that leads to legal culpability for that scourge which is drunk driving.
1. This article isn’t a legal memo. It is a collection of thoughts meant to identify and describe an unfortunate group behaviour–and hopefully it will add into the mix of factors that influence decision making– a legal consequence that is not well known. For a legal analysis on these issues the reader may wish to refer to the article by Brian Manarin " Let’s Party: Passenger Culpability as an Aider or Abettor to Impaired Driving" 95 M.V.R. (5th) 184.
1. This article isn’t a legal memo. It is a collection of thoughts meant to identify and describe an unfortunate group behaviour–and hopefully it will add into the mix of factors that influence decision making– a legal consequence that is not well known. For a legal analysis on these issues the reader may wish to refer to the article by Brian Manarin " Let’s Party: Passenger Culpability as an Aider or Abettor to Impaired Driving" 95 M.V.R. (5th) 184.
Drinking and not Driving
