Full Text:Volume 1.1E

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Contents

Offences by Category

Offences

See also: Offences by Penalty

Public Order Offences

Offence Section Offence Page Sentencing Digests
High Treason 46(1), 47(1) and 745 Offence N/A
Treason (overthrow gov't) s. 47 (2)(a), (c), or (d) and 745 Offence N/A
Treason (espionage while at war) s. 47 (2)(b) or (e) and 745 Offence N/A
Piracy 74, 75 Offence N/A
Hijacking 76 Offence N/A
Endangering safety of aircraft or airport 77 Offence N/A
Seizing control of ship or fixed platform 78.1(1) Offence N/A
Violent act on board a shop or platform 78.1(2) Offence N/A
False information re safe navigation 78.1(3) Offence N/A
Threats to commit offences at 78.1(2) 78.1(4) Offence N/A
Breach of duty of care re explosives endangering life 80(a) Offence Sentencing Digests
Intending to cause explosion or use corrosive substance with intent to cause death or serious harm 81(1)(a), (b) and 81(2)(a) Offence Sentencing Digests
Possession, etc., of nuclear material, radioactive material or device 82.3 Offence Sentencing Digests
Use or alteration of nuclear material, radioactive material or device 82.4 Offence Sentencing Digests
Commission of indictable offence to obtain nuclear material, etc. 82.4 Offence Sentencing Digests

Organized Crime and Terrorism Offences

Offence Section Offence Page Sentencing Digests
Financing Terrorist Activity 83.02, 83.03 Offence Sentencing Digests
Committing an Offence for a Terrorist Group 83.2 Offence Sentencing Digests
Participating in Terrorist Activity 83.18-23 Offence Sentencing Digests
Instructing activity for terrorist group 83.21(1) Offence Sentencing Digests
Instructing terrorist activity 83.22(1) Offence Sentencing Digests
Counselling commission of terrorism offence 83.221 Offence Sentencing Digests
Hoax Regarding Terrorist Activity (no death) 83.231 Offence Sentencing Digests
Hoax re terrorist activity (causing death) 83.231(4) Offence Sentencing Digests
Participating in a Criminal Organization 467.11 Offence Sentencing Digests
Conspiracy 465 Offence Sentencing Digests

Weapons Offences

Offence Section Offence Page Sentencing Digests
Use or Possession of Explosives 81, 82 Offence Sentencing Digests
Use of Firearm in Commission of an Offence 85 Offence Sentencing Digests
Careless Use or Storage of a Firearm 86 Offence Sentencing Digests
Pointing a Firearm 87 Offence Sentencing Digests
Possession of a Weapon for a Dangerous Purpose 88 Offence Sentencing Digests
Carrying a Concealed Weapon 90 Offence Sentencing Digests
Unauthorized Possession of a Firearm 91 Offence Sentencing Digests
Possession of Unauthorized Firearm 92 Offence Sentencing Digests
Possession of a Firearm in an Unauthorized Place 93, 94 Offence Sentencing Digests
Possession of a Restricted or Prohibited Firearm 95 Offence Sentencing Digests
Weapons Trafficking 99, 100 Offence Sentencing Digests
Possession of a Weapon Contrary to an Order 117.01 Offence Sentencing Digests
Discharging a Firearm 244, 244.1 Offence Sentencing Digests

Sexual Offences

Offence Section Offence Page Sentencing Digests
Sexual Interference 151 Offence Sentencing Digests
Invitation to Sexual Touching 152 Offence Sentencing Digests
Sexual Exploitation 153 Offence Sentencing Digests
Incest 155 Offence Sentencing Digests
Bestiality 160 Offence Sentencing Digests
Voyeurism 162 Offence Sentencing Digests
Distribution of Intimate Images 162.1 Offence Sentencing Digests
Obscenity 163 Offence Sentencing Digests
Child Pornography 163.1 Offence Sentencing Digests
Parent or Guardian Procuring Sexual Activity 170 Offence Sentencing Digests
Householder Permitting Sexual Activity 171 Offence Sentencing Digests
Making Sexually Explicit Materials Available to Child 171.1 Offence Sentencing Digests
Child Luring 172.1 Offence Sentencing Digests
Agree or Arrange a Sexual Offence Against Child 172.2 Offence Sentencing Digests
Keeping a Common Bawdy-house 210 Offence Sentencing Digests
Solicitation 213 Offence Sentencing Digests
Sexual Assault 271 Offence Sentencing Digests
Sexual Assault with a Weapon 272 Offence Sentencing Digests
Sexual Assault Causing Bodily Harm 272 Offence Sentencing Digests
Aggravated Sexual Assault 273 Offence Sentencing Digests
Commodification of Sexual Services 286.1-5 Offence Sentencing Digests

Disorderly Conduct

Offence Section Offence Page Sentencing Digests
Interfering with reading of riot proclamation or refusing to cease participation in riot 68 Offence Sentencing Digests
Unlawful Assembly and Rioting 63, 64 Offence Sentencing Digests
Indecent Act 173 Offence Sentencing Digests
Causing a Disturbance 175 Offence Sentencing Digests
Trespassing at Night 177 Offence Sentencing Digests

Employer Liability

Offences of Violence

Offence Section Offence Page Sentencing Digests
Failing to Provide the Necessities of Life 215 Offence Sentencing Digests
Abandoning Child 218 Offence Sentencing Digests
Criminal Negligence 220 Offence Sentencing Digests
Assisted Dying Offences 241.3, 241.4 Offence Sentencing Digests
Administering a Noxious Substance 245 Offence Sentencing Digests
Overcoming Resistance 246 Offence Sentencing Digests
Criminal Harassment 264 Offence Sentencing Digests
Uttering Threats 264.1 Offence Sentencing Digests
Common Assault 266 Offence Sentencing Digests
Assault Causing Bodily Harm 267 Offence Sentencing Digests
Assault with a Weapon 267 Offence Sentencing Digests
Aggravated Assault 268 Offence Sentencing Digests
Assault Peace Officer 270 Offence Sentencing Digests
Kidnapping and Unlawful Confinement 279 Offence Sentencing Digests
Trafficking in Persons 279.01-04 Offence Sentencing Digests
Hostage Taking 279.1 Offence Sentencing Digests
Abduction of a Young Person 280-286 Offence Sentencing Digests
Extortion 346 Offence Sentencing Digests
Intimidation 423 Offence Sentencing Digests
Animal Cruelty 445, 446 Offence Sentencing Digests

Homicide

Offence Section Offence Page Sentencing Digests
Homicide 234, 235, 236 Offence Sentencing Digests
Manslaughter Offence Sentencing Digests
Infanticide 237 and 238 Offence Sentencing Digests
Attempted Murder 239 Offence Sentencing Digests

Gambling and Gaming

Offence Section Offence Page Sentencing Digests
Gambling Offences 201(1), 202 and 203 Offence Sentencing Digests
Lottery Offences 206, 207, and 209 Offence Sentencing Digests
Prize Fights 83 Offence Sentencing Digests

Hate Speech and Libel

Offence Section Offence Page Sentencing Digests
Defamatory Libel 299, 300 Offence Sentencing Digests
Public Incitement of Hatred 319 Offence Sentencing Digests

Administration of Justice Offences

Offence Section Offence Page Sentencing Digests
Breach of Public Trust 122 Offence Sentencing Digests
Disobeying a Statute or Court Order 127 Offence Sentencing Digests
Obstruction of a Peace Officer 129 Offence Sentencing Digests
Personating a Peace Officer 130 Offence Sentencing Digests
Disarming a Peace Officer 270.1 Offence Sentencing Digests
Breach of Undertaking, Recognizance, or Probation 145, 733 Offence Sentencing Digests
Failure to Attend Court or Appear 145 Offence Sentencing Digests
Escape from Lawful Custody 145(1) Offence Sentencing Digests
Perjury 131 Offence Sentencing Digests
Giving Contradictory Evidence 136 Offence Sentencing Digests
Fabricating Evidence 137 Offence Sentencing Digests
Giving a False Sworn Statement 134 Offence Sentencing Digests
Obstructing Justice 139 Offence Sentencing Digests
Public Mischief 140 Offence Sentencing Digests
Prison Breach 144 Offence Sentencing Digests
Intercept of Private Communications 184 Offence Sentencing Digests
Intimidation of a Justice System Participant 423.1 Offence Sentencing Digests
Breach of Publication and Access Bans 486.6 Offence Sentencing Digests
Breach of Preservation Obligations 487.0197 Offence Sentencing Digests
Breach of DNA Orders 487.0552 and 487.08 Offence Sentencing Digests
Breach of SOIRA Orders 490.031 and 490.0311 Offence Sentencing Digests
Contempt of Court 708 Offence Sentencing Digests
Offence Section Offence Page Sentencing Digests
Inducing a Young Person 136 YCJA Offence Sentencing Digests
Breach of a Youth Order 137, 138 YCJA Offence Sentencing Digests

Motor Vehicle Offences

Offence Section Offence Page Sentencing Digests
Offence Section Offence Page Sentencing Digests
Dangerous Operation of a Motor Vehicle 320.13(1) Offence Sentencing Digests
Flight from a Peace Officer 320.17 Offence Sentencing Digests
Failure to Stop or Remain at Scene of Accident 320.16(1) Offence Sentencing Digests
Impaired Driving and Over 80 320.14(1) Offence Sentencing Digests
Impaired Driving, Over 80 and Refusal Causing Bodily Harm or Death 320.14(2); 320.15(2) Offence Sentencing Digests
Refusal 320.15(1) Offence Sentencing Digests
Driving While Disqualified 320.18(1) Offence Sentencing Digests
Street Racing 249.2, 249.3, 249.4 Offence Sentencing Digests

Property Offences

Offence Section Offence Page Sentencing Digests
Telecommunication Offences 327, 342.1, 342.2, 372, 430 Offence Sentencing Digests
Robbery 344 Offence Sentencing Digests
Break and Enter 348 Offence Sentencing Digests
Unlawfully in a Dwelling 349 Offence Sentencing Digests
Possession of Break-in Instruments 351 Offence Sentencing Digests
Forcible Entry 74 Offence Sentencing Digests
Motor Vehicle Theft 333.1 Offence Sentencing Digests
Theft 334 Offence Sentencing Digests
Theft and Forgery of a Credit Card 342 Offence Sentencing Digests
Possession of Stolen Property 355 Offence Sentencing Digests
Trafficking in Stolen Property 355.2, 355.4 Offence Sentencing Digests
Obtaining Property by False Pretences 362 Offence Sentencing Digests
Forgery 366, 367, 368 Offence Sentencing Digests
Counterfeiting 449, 450, 452 Offence Sentencing Digests
Breach of Trust 336 Offence Sentencing Digests
Fraud 380 Offence Sentencing Digests
Mischief 430 Offence Sentencing Digests
Arson 433, 434 Offence Sentencing Digests
Possession of Incendiary Materials 436.1 Offence Sentencing Digests
Unauthorized Use of Computer 342.1 Offence Sentencing Digests
Identity Theft 402.2 Offence Sentencing Digests
Identity Fraud 403 Offence Sentencing Digests
Money Laundering 462.31 Offence Sentencing Digests
Procuring and Trafficking Government Documents 56.1 Offence Sentencing Digests

Corruption Offences

Offence Section Offence Page Sentencing Digests
Bribery 119, 120 Offence Sentencing Digests
Frauds on the Government 121 Offence Sentencing Digests
Secret Commissions 426 Offence Sentencing Digests

Drug Offences

Offence Section Offence Page Sentencing Digests
Drug Possession 4 CDSA Offence Sentencing Digests
Drug Production 7 CDSA Offence Sentencing Digests
Importing and Exporting Drugs 6 CDSA Offence Sentencing Digests
Drug Trafficking 5 CDSA Offence Sentencing Digests
Schedule I 5 CDSA Drug Trafficking Drug Trafficking (Schedule I) (5 CDSA)
Schedule II 5 CDSA Drug Trafficking Drug Trafficking (Schedule II) (5 CDSA)
Schedule III 5 CDSA Drug Trafficking Drug Trafficking (Schedule III) (5 CDSA)
Schedule IV 5 CDSA Drug Trafficking Drug Trafficking (Schedule IV) (5 CDSA)

Misc Offences

Offence Section Offence Page Sentencing Digests
Attempts and Accessories After the Fact 463 Offence Sentencing Digests

Repealed and Unconstitutional Offences

Offence Section Offence Page Sentencing Digests
Indecent Assault 149, 156 Offence Sentencing Digests
Sexual Intercourse with Step-Daughter 158 Offence Sentencing Digests
Gross Indecency Offence Sentencing Digests
Abortion Offence Sentencing Digests
Anal Intercourse Offence Sentencing Digests
Counselling or Aiding Suicide Offence Sentencing Digests
Procuring and Living on the Avails of Prostitution Offence Sentencing Digests
Rape Offence Sentencing Digests

Miscellaneous Offences by Topic

See also

MOTOR VEHICLE OFFENCES

History Conveyance Offences

Overview

The predecessor to alcohol-related driving offences is the summary offence of "driving while intoxicated" initially found in the 1921 Criminal Code.

Chronology

In 1921, inotixcated driving first became a criminal offence by the enactment of s 285c. The offence had a minimum penalty of 7 days jail and a maximum penalty of 30 days with no prior record. With prior conviction meant a minimum of 3 months and maximum of 12 months.[1]

In 1925, the offence was expanded to include drugs and to include "care and control".[2]

In 1927, there was an additional offence of dangerous driving causing bodily harm and failing to remain at the scene of accident and “joy riding”. Section 285c was moved to 285.4.[3]

In 1930, the offence was made into a hybrid offence.

In 1947, a presumption of care and control where the accused was found in the driver's seat was created. This is now found in s. 258(1)(a).

In 1951, the offence was split into two separate offences of "impaired driving" and "care and control"

In 1969, the additional offence of driving while "over 80" was created as well all drivers were required to give a breath sample on demand.

In 1976, the penalties for "over 80" and refusal were made the same.

On July 2, 2008, Bill C-2 came into force,[4]. It made the following changes:

  • amending s. 258(1)(c) and (d), removing references to “evidence to the contrary” and added “conclusive proof”. The effect of this was to remove the effect of s. 25 of the Interpretation Act which permitted the defence to present “evidence to the contrary” once s. 258(1)(c) is established;
  • gave the police power to demand that a driver perform a standard field sobriety test for both alcohol and drugs;
  • altered the requirements for "reasonable suspicion" under s. 254(2) for a ASD demand. The new version requires the additional component that the officer suspect that the driver was in care and control of the vehicle within the preceding 2 hours;
  • added s. 254.1 which permits the creation of regulations.
  1. See An Act to Amend the Criminal Code, SC 1921, c 25, s 3
    McRae v. McLaughlin Motor Car Company, 1926 CanLII 221 (AB QB) at p. 379 (DLR)
  2. see SC 1925, c 38, s 5.
  3. see An Act Respecting the Criminal Law, SC 1927 c 36
  4. Tackling Violent Crime Act, SC 2008 c.6

Changes in Text

Section 253 to 255 (2000 to 2008)

Operation while impaired

253. Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

R.S., 1985, c. C-46, s. 253; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 59.

CCC

Definitions

254. (1) In this section and sections 255 to 258,
“analyst” means a person designated by the Attorney General as an analyst for the purposes of section 258;
“approved container” means

(a) in respect of breath samples, a container of a kind that is designed to receive a sample of the breath of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada, and
(b) in respect of blood samples, a container of a kind that is designed to receive a sample of the blood of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada;


“approved instrument” means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada;
“approved screening device” means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada;
“qualified medical practitioner” means a person duly qualified by provincial law to practise medicine;
“qualified technician” means,

(a) in respect of breath samples, a person designated by the Attorney General as being qualified to operate an approved instrument, and
(b) in respect of blood samples, any person or person of a class of persons designated by the Attorney General as being qualified to take samples of blood for the purposes of this section and sections 256 and 258.
Testing for presence of alcohol in the blood

(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person’s body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.

Samples of breath or blood where reasonable belief of commission of offence

(3) Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding three hours has committed, as a result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable

(a) such samples of the person’s breath as in the opinion of a qualified technician, or
(b) where the peace officer has reasonable and probable grounds to believe that, by reason of any physical condition of the person,
(i) the person may be incapable of providing a sample of his breath, or
(ii) it would be impracticable to obtain a sample of the person’s breath,

such samples of the person’s blood, under the conditions referred to in subsection (4), as in the opinion of the qualified medical practitioner or qualified technician taking the samples are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person’s blood, and to accompany the peace officer for the purpose of enabling such samples to be taken.

Exception

(4) Samples of blood may only be taken from a person pursuant to a demand made by a peace officer under subsection (3) if the samples are taken by or under the direction of a qualified medical practitioner and the qualified medical practitioner is satisfied that the taking of those samples would not endanger the life or health of the person.

Failure or refusal to provide sample

(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.

Only one conviction for failure to comply with demand

(6) A person who is convicted of an offence committed under subsection (5) for a failure or refusal to comply with a demand made under subsection (2) or paragraph (3)(a) or (b) in respect of any transaction may not be convicted of another offence committed under subsection (5) in respect of the same transaction.
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble).

CCC

Punishment

255. (1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,

(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than six hundred dollars,
(ii) for a second offence, to imprisonment for not less than fourteen days, and
(iii) for each subsequent offence, to imprisonment for not less than ninety days;
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) where the offence is punishable on summary conviction, to imprisonment for a term not exceeding six months.
Impaired driving causing bodily harm

(2) Every one who commits an offence under paragraph 253(a) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Impaired driving causing death

(3) Every one who commits an offence under paragraph 253(a) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for life.

Previous convictions

(4) Where a person is convicted of an offence committed under paragraph 253(a) or (b) or subsection 254(5), that person shall, for the purposes of this Act, be deemed to be convicted for a second or subsequent offence, as the case may be, if the person has previously been convicted of

(a) an offence committed under any of those provisions;
(b) an offence under subsection (2) or (3); or
(c) an offence under section 250, 251, 252, 253, 259 or 260 or subsection 258(4) of this Act as this Act read immediately before the coming into force of this subsection.
Conditional discharge

*(5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under section 253, after hearing medical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcohol or drugs and that it would not be contrary to the public interest, by order direct that the person be discharged under section 730 on the conditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs.

*[Note: In force in the Provinces of Nova Scotia, New Brunswick, Manitoba, Prince Edward Island, Saskatchewan and Alberta and in the Yukon Territory and the Northwest Territories, see SI/85-211 and SI/88-24.]

R.S., 1985, c. C-46, s. 255; R.S., 1985, c. 27 (1st Supp.), s. 36; R.S., 1985, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 18; 1999, c. 32, s. 3(Preamble); 2000, c. 25, s. 2.

CCC

Section 253 to 255 (2008 to 2018)

Operation while impaired

253 (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
For greater certainty

(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.
R.S., 1985, c. C-46, s. 253; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 59; 2008, c. 6, s. 18.

CCC

Definitions

254 (1) In this section and sections 254.1 to 258.1,

analyst means a person designated by the Attorney General as an analyst for the purposes of section 258; (analyste)

approved container means

(a) in respect of breath samples, a container of a kind that is designed to receive a sample of the breath of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada, and
(b) in respect of blood samples, a container of a kind that is designed to receive a sample of the blood of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada; (contenant approuvé)

approved instrument means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada; (alcootest approuvé)

approved screening device means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada; (appareil de détection approuvé)

evaluating officer means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1); (agent évaluateur)

qualified medical practitioner means a person duly qualified by provincial law to practise medicine; (médecin qualifié)

qualified technician means,

(a) in respect of breath samples, a person designated by the Attorney General as being qualified to operate an approved instrument, and

(b) in respect of blood samples, any person or person of a class of persons designated by the Attorney General as being qualified to take samples of blood for the purposes of this section and sections 256 and 258. (technicien qualifié)

Testing for presence of alcohol or a drug

(2) 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 comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and
(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
Video recording

(2.1) For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a).

Samples of breath or blood

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,
(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or
(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; and
(b) if necessary, to accompany the peace officer for that purpose.
Evaluation

(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.

Video recording

(3.2) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1).

Testing for presence of alcohol

(3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph (2)(b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer’s opinion, will enable a proper analysis to be made by means of an approved instrument.

Samples of bodily substances

(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or
(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.
Condition

(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person’s life or health.

Failure or refusal to comply with demand

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

Only one determination of guilt

(6) A person who is convicted of an offence under subsection (5) for a failure or refusal to comply with a demand may not be convicted of another offence under that subsection in respect of the same transaction.

R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

Regulations

254.1 (1) The Governor in Council may make regulations

(a) respecting the qualifications and training of evaluating officers;
(b) prescribing the physical coordination tests to be conducted under paragraph 254(2)(a); and
(c) prescribing the tests to be conducted and procedures to be followed during an evaluation under subsection 254(3.1).
Incorporated material

(2) A regulation may incorporate any material by reference either as it exists on a specified date or as amended from time to time.

Incorporated material is not a regulation

(3) For greater certainty, material does not become a regulation for the purposes of the Statutory Instruments Act because it is incorporated by reference.

2008, c. 6, s. 20.

Punishment

255 (1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,

(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than $1,000,
(ii) for a second offence, to imprisonment for not less than 30 days, and
(iii) for each subsequent offence, to imprisonment for not less than 120 days;
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.
Impaired driving causing bodily harm

(2) Everyone who commits an offence under paragraph 253(1)(a) and causes bodily harm to another person as a result is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

Blood alcohol level over legal limit — bodily harm

(2.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

Failure or refusal to provide sample — bodily harm

(2.2) Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

Impaired driving causing death

(3) Everyone who commits an offence under paragraph 253(1)(a) and causes the death of another person as a result is guilty of an indictable offence and liable to imprisonment for life.

Blood alcohol level over legal limit — death

(3.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in the death of another person is guilty of an indictable offence and liable to imprisonment for life.

Failure or refusal to provide sample — death

(3.2) Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in the death of another person, or in bodily harm to another person whose death ensues, is guilty of an indictable offence and liable to imprisonment for life.

Interpretation

(3.3) For greater certainty, everyone who is liable to the punishment described in any of subsections (2) to (3.2) is also liable to the minimum punishment described in paragraph (1)(a).

Previous convictions

(4) A person who is convicted of an offence committed under section 253 or subsection 254(5) is, for the purposes of this Act, deemed to be convicted for a second or subsequent offence, as the case may be, if they have previously been convicted of

(a) an offence committed under either of those provisions;
(b) an offence under subsection (2) or (3); or
(c) an offence under section 250, 251, 252, 253, 259 or 260 or subsection 258(4) of this Act as this Act read immediately before the coming into force of this subsection.
Conditional discharge
  • (5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under section 253, after hearing medical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcohol or drugs and that it would not be contrary to the public interest, by order direct that the person be discharged under section 730 on the conditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs.
  • [Note: In force in the provinces of Nova Scotia, New Brunswick, Manitoba, Prince Edward Island, Saskatchewan and Alberta and in the Yukon Territory, the Northwest Territories and the Nunavut Territory, see SI/85-211 and SI/88-24.]

R.S., 1985, c. C-46, s. 255; R.S., 1985, c. 27 (1st Supp.), s. 36; R.S., 1985, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 18; 1999, c. 32, s. 3(Preamble); 2000, c. 25, s. 2; 2008, c. 6, s. 21, c. 18, ss. 7, 45.2.

Section 258 (1997 to 2008)

Proceedings under section 255

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3),

(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;
(b) the result of an analysis of a sample of the breath or blood of the accused (other than a sample taken pursuant to a demand made under subsection 254(3)) or of the urine or other bodily substance of the accused may be admitted in evidence notwithstanding that, before the accused gave the sample, he was not warned that he need not give the sample or that the result of the analysis of the sample might be used in evidence;
(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(i) [Not in force]
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses;

(d) where a sample of the blood of the accused has been taken pursuant to a demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to a warrant issued under section 256, if
(i) at the time the sample was taken, the person taking the sample took an additional sample of the blood of the accused and one of the samples was retained, to permit an analysis thereof to be made by or on behalf of the accused and, in the case where the accused makes a request within six months from the taking of the samples, one of the samples was ordered to be released pursuant to subsection (4),
(ii) both samples referred to in subparagraph (i) were taken as soon as practicable after the time when the offence was alleged to have been committed and in any event not later than two hours after that time,
(iii) both samples referred to in subparagraph (i) were taken by a qualified medical practitioner or a qualified technician under the direction of a qualified medical practitioner,
(iv) both samples referred to in subparagraph (i) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed, and
(v) an analysis was made by an analyst of at least one of the samples that was contained in a sealed approved container,

evidence of the result of the analysis is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was the concentration determined by the analysis or, where more than one sample was analyzed and the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses;

(d.1) where samples of the breath of the accused or a sample of the blood of the accused have been taken as described in paragraph (c) or (d) under the conditions described therein and the results of the analyses show a concentration of alcohol in blood exceeding eighty milligrams of alcohol in one hundred millilitres of blood, evidence of the result of the analyses is, in the absence of evidence tending to show that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed did not exceed eighty milligrams of alcohol in one hundred millilitres of blood, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed exceeded eighty milligrams of alcohol in one hundred millilitres of blood;
(e) a certificate of an analyst stating that the analyst has made an analysis of a sample of the blood, urine, breath or other bodily substance of the accused and stating the result of that analysis is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;
(f) a certificate of an analyst stating that the analyst has made an analysis of a sample of an alcohol standard that is identified in the certificate and intended for use with an approved instrument and that the sample of the standard analyzed by the analyst was found to be suitable for use with an approved instrument, is evidence that the alcohol standard so identified is suitable for use with an approved instrument without proof of the signature or the official character of the person appearing to have signed the certificate;
(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating
(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,
(ii) the results of the analyses so made, and
(iii) if the samples were taken by the technician,
(A) [Not in force]
(B) the time when and place where each sample and any specimen described in clause (A) was taken, and
(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

(h) where a sample of the blood of the accused has been taken pursuant to a demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to a warrant issued under section 256,
(i) a certificate of a qualified medical practitioner stating that
(A) the medical practitioner took the sample and that before the sample was taken he was of the opinion that the taking of blood samples from the accused would not endanger the life or health of the accused and, in the case of a demand made pursuant to a warrant issued pursuant to section 256, that by reason of any physical or mental condition of the accused that resulted from the consumption of alcohol, the accident or any other occurrence related to or resulting from the accident, the accused was unable to consent to the taking of his blood,
(B) at the time the sample was taken, an additional sample of the blood of the accused was taken to permit analysis of one of the samples to be made by or on behalf of the accused,
(C) the time when and place where both samples referred to in clause (B) were taken, and
(D) both samples referred to in clause (B) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed and that are identified in the certificate,
(ii) a certificate of a qualified medical practitioner stating that the medical practitioner caused the sample to be taken by a qualified technician under his direction and that before the sample was taken the qualified medical practitioner was of the opinion referred to in clause (i)(A), or
(iii) a certificate of a qualified technician stating that the technician took the sample and the facts referred to in clauses (i)(B) to (D)

is evidence of the facts alleged in the certificate without proof of the signature or official character of the person appearing to have signed the certificate; and

(i) a certificate of an analyst stating that the analyst has made an analysis of a sample of the blood of the accused that was contained in a sealed approved container identified in the certificate, the date on which and place where the sample was analyzed and the result of that analysis is evidence of the facts alleged in the certificate without proof of the signature or official character of the person appearing to have signed it.
No obligation to give sample except as required under section 254

(2) No person is required to give a sample of urine or other bodily substance for analysis for the purposes of this section except breath or blood as required under section 254, and evidence that a person failed or refused to give such a sample or that such a sample was not taken is not admissible nor shall such a failure or refusal or the fact that a sample was not taken be the subject of comment by any person in the proceedings.

Evidence of failure to comply with demand

(3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(a) or in any proceedings under subsection 255(2) or (3), evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made to him by a peace officer under section 254 is admissible and the court may draw an inference therefrom adverse to the accused.

Release of specimen for testing

(4) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction shall, on the summary application of the accused made within six months from the day on which samples of the blood of the accused were taken, order the release of one of the samples for the purpose of an examination or analysis thereof, subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the sample and its preservation for use in any proceedings in respect of which it was retained.

Testing blood for presence of drugs

(5) Where a sample of blood of an accused has been taken pursuant to a demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to a warrant issued under section 256, the sample may be tested for the presence of drugs in the blood of the accused.

Attendance and right to cross-examine

(6) A party against whom a certificate described in paragraph (1)(e), (f), (g), (h) or (i) is produced may, with leave of the court, require the attendance of the qualified medical practitioner, analyst or qualified technician, as the case may be, for the purposes of cross-examination.

Notice of intention to produce certificate

(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h) or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10.

CCC

Section 258 (2008 to 2018

Proceedings under section 255

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;
(b) the result of an analysis of a sample of the accused’s breath, blood, urine or other bodily substance — other than a sample taken under subsection 254(3), (3.3) or (3.4) — may be admitted in evidence even if the accused was not warned before they gave the sample that they need not give the sample or that the result of the analysis of the sample might be used in evidence;
(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(i) [Repealed before coming into force, 2008, c. 20, s. 3]
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

(d) if a sample of the accused’s blood has been taken under subsection 254(3) or section 256 or with the accused’s consent and if
(i) at the time the sample was taken, the person taking the sample took an additional sample of the blood of the accused and one of the samples was retained to permit an analysis of it to be made by or on behalf of the accused and, in the case where the accused makes a request within six months from the taking of the samples, one of the samples was ordered to be released under subsection (4),
(ii) both samples referred to in subparagraph (i) were taken as soon as practicable and in any event not later than two hours after the time when the offence was alleged to have been committed,
(iii) both samples referred to in subparagraph (i) were taken by a qualified medical practitioner or a qualified technician under the direction of a qualified medical practitioner,
(iv) both samples referred to in subparagraph (i) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed, and
(v) an analysis was made by an analyst of at least one of the samples,

evidence of the result of the analysis is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the samples were taken and at the time when the offence was alleged to have been committed was the concentration determined by the analysis or, if more than one sample was analyzed and the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the analysis was performed improperly, that the improper performance resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;

(d.01) for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused’s blood was performed improperly, does not include evidence of
(i) the amount of alcohol that the accused consumed,
(ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or
(iii) a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged to have been committed;
(d.1) if samples of the accused’s breath or a sample of the accused’s blood have been taken as described in paragraph (c) or (d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused’s blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused’s consumption of alcohol was consistent with both
(i) a concentration of alcohol in the accused’s blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and
(ii) the concentration of alcohol in the accused’s blood as determined under paragraph (c) or (d), as the case may be, at the time when the sample or samples were taken;
(e) a certificate of an analyst stating that the analyst has made an analysis of a sample of the blood, urine, breath or other bodily substance of the accused and stating the result of that analysis is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;
(f) a certificate of an analyst stating that the analyst has made an analysis of a sample of an alcohol standard that is identified in the certificate and intended for use with an approved instrument and that the sample of the standard analyzed by the analyst was found to be suitable for use with an approved instrument, is evidence that the alcohol standard so identified is suitable for use with an approved instrument without proof of the signature or the official character of the person appearing to have signed the certificate;
(f.1) the document printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made the analysis of a sample of the accused’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person appearing to have signed it;
(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating
(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,
(ii) the results of the analyses so made, and
(iii) if the samples were taken by the technician,
(A) [Repealed before coming into force, 2008, c. 20, s. 3]
(B) the time when and place where each sample and any specimen described in clause (A) was taken, and
(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

(h) if a sample of the accused’s blood has been taken under subsection 254(3) or (3.4) or section 256 or with the accused’s consent,
(i) a certificate of a qualified medical practitioner stating that
(A) they took the sample and before the sample was taken they were of the opinion that taking it would not endanger the accused’s life or health and, in the case of a demand made under section 256, that by reason of any physical or mental condition of the accused that resulted from the consumption of alcohol or a drug, the accident or any other occurrence related to or resulting from the accident, the accused was unable to consent to the taking of the sample,
(B) at the time the sample was taken, an additional sample of the blood of the accused was taken to permit analysis of one of the samples to be made by or on behalf of the accused,
(C) the time when and place where both samples referred to in clause (B) were taken, and
(D) both samples referred to in clause (B) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed and that are identified in the certificate,
(ii) a certificate of a qualified medical practitioner stating that the medical practitioner caused the sample to be taken by a qualified technician under his direction and that before the sample was taken the qualified medical practitioner was of the opinion referred to in clause (i)(A), or
(iii) a certificate of a qualified technician stating that the technician took the sample and the facts referred to in clauses (i)(B) to (D)

is evidence of the facts alleged in the certificate without proof of the signature or official character of the person appearing to have signed the certificate; and

(i) a certificate of an analyst stating that the analyst has made an analysis of a sample of the blood of the accused that was contained in a sealed approved container identified in the certificate, the date on which and place where the sample was analyzed and the result of that analysis is evidence of the facts alleged in the certificate without proof of the signature or official character of the person appearing to have signed it.
Evidence of failure to give sample

(2) Unless a person is required to give a sample of a bodily substance under paragraph 254(2)(b) or subsection 254(3), (3.3) or (3.4), evidence that they failed or refused to give a sample for analysis for the purposes of this section or that a sample was not taken is not admissible and the failure, refusal or fact that a sample was not taken shall not be the subject of comment by any person in the proceedings.

Evidence of failure to comply with demand

(3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(1)(a) or in any proceedings under subsection 255(2) or (3), evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 254 is admissible and the court may draw an inference adverse to the accused from that evidence.

Release of sample for analysis

(4) If, at the time a sample of an accused’s blood is taken, an additional sample is taken and retained, a judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction shall, on the summary application of the accused made within six months after the day on which the samples were taken, order the release of one of the samples for the purpose of examination or analysis, subject to any terms that appear to be necessary or desirable to ensure that the sample is safeguarded and preserved for use in any proceedings in respect of which it was taken.

Testing of blood for concentration of a drug

(5) A sample of an accused’s blood taken under subsection 254(3) or section 256 or with the accused’s consent for the purpose of analysis to determine the concentration, if any, of alcohol in the blood may be tested to determine the concentration, if any, of a drug in the blood.

Attendance and right to cross-examine

(6) A party against whom a certificate described in paragraph (1)(e), (f), (f.1), (g), (h) or (i) is produced may, with leave of the court, require the attendance of the qualified medical practitioner, analyst or qualified technician, as the case may be, for the purposes of cross-examination.

Notice of intention to produce certificate

(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h) or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.

R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.

2018 to December 18, 2018

Operation while impaired

253. (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
For greater certainty

(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.

Operation while impaired — blood drug concentration

(3) Subject to subsection (4), everyone commits an offence who has within two hours after ceasing to operate a motor vehicle or vessel or after ceasing to operate or to assist in the operation of an aircraft or of railway equipment or after ceasing to have the care or control of a motor vehicle, vessel, aircraft or railway equipment

(a) a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation;
(b) a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph (a); or
(c) a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.
Exception

(4) No person commits an offence under subsection (3) if

(a) they consumed the drug or the alcohol or both after ceasing to operate a motor vehicle or vessel, or after ceasing to operate or assist in the operation of an aircraft or railway equipment or after ceasing to have the care or control of a motor vehicle, a vessel, an aircraft or railway equipment; and
(b) after ceasing the activities described in paragraph (a), they had no reasonable expectation that they would be required to provide a sample of a bodily substance.

R.S., 1985, c. C-46, s. 253; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 59; 2008, c. 6, s. 18; 2018, c. 21, s. 1.

CCC

Failure or refusal to comply with demand

s. 254
...
(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
...
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

CCC

Punishment

255. (1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,

(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than $1,000,
(ii) for a second offence, to imprisonment for not less than 30 days, and
(iii) for each subsequent offence, to imprisonment for not less than 120 days;
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.

...
R.S., 1985, c. C-46, s. 255; R.S., 1985, c. 27 (1st Supp.), s. 36; R.S., 1985, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 18; 1999, c. 32, s. 3(Preamble); 2000, c. 25, s. 2; 2008, c. 6, s. 21, c. 18, ss. 7, 45.2.

CCC

Dangerous Operation of a Motor Vehicle


Dangerous Operation of a Motor Vehicle
s. 320.13(1), (2) and (3) of the Crim. Code
Election / Plea
Crown Election Indictment (death)
Hybrid (other than death)
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)

(* varies)
Minimum $1,000 fine or 30/120 days jail
Maximum 2 years less a day
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)

(* varies)
Minimum $1,000 fine or 30/120 days jail
Maximum 10, 14 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to dangerous operation of a motor vehicle are found in Part VIII.1 of the Criminal Code concerning "Offences Relating to Conveyances".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 320.13(1) [dangerous op. - no bodily harm or death] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)
s. 320.13(2) [dangerous op. - cause bodily harm] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) OK Symbol.png (14 years max)
s. 320.13(3) [dangerous op. - cause death] Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (life max)

Offences under s. 320.13(1) [dangerous op. - no bodily harm or death] or (2) [dangerous op. - cause bodily harm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 320.13(3) [dangerous op. - cause death] are straight indictable. There is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 320.13(1) [dangerous op. - no bodily harm or death] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 320.13(2) [dangerous op. - cause bodily harm] or (3) [dangerous op. - cause death] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 320.13(1), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

When charged under s. 320.13(2) or (3), the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 320.13 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 320.13(1) X Mark Symbol.png OK Symbol.png OK Symbol.png (Indictment) X Mark Symbol.png
s. 320.13(2) or (3) X Mark Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 320.13(2) or (3) are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

320.13

Dangerous operation

(1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.

Operation causing bodily harm

(2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.

Operation causing death

(3) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes the death of another person.

2018, c. 21, s. 15

CCC

Punishment

320.19...

Punishment — dangerous operation and other offences

(5) Everyone who commits an offence under subsection 320.13(1) [dangerous operation] or 320.16(1) [failure to stop after accident], section 320.17 [flight from peace officer] or subsection 320.18(1) [operation while prohibited] is liable

(a) on conviction on indictment, to imprisonment for a term of not more than 10 years; or
(b) on summary conviction, to imprisonment for a term of not more than two years less a day.

2018, c. 21, s. 15.

CCC

Punishment in case of bodily harm

320.2 Everyone who commits an offence under subsection 320.13(2) [dangerous operation causing bodily harm], 320.14(2) [impaired operation causing bodily harm], 320.15(2) [refusal where collision results in bodily harm] or 320.16(2) [fail to stop at accident resulting in bodily harm] is liable on conviction on indictment or on summary conviction

(a) to the following minimum punishment, namely,
(i) for a first offence, a fine of $1,000,
(ii) for a second offence, imprisonment for a term of 30 days, and
(iii) for each subsequent offence, imprisonment for a term of 120 days;
(b) if the offence is prosecuted by indictment, to imprisonment for a term of not more than 14 years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.

2018, c. 21, s. 15.

CCC

Punishment in case of death

320.21 Everyone who commits an offence under subsection 320.13(3) [dangerous operation causing death], 320.14(3) [impaired operation causing death], 320.15(3) [refusal where collision results in death] or 320.16(3) [fail to stop at accident resulting in death] is liable on conviction on indictment to imprisonment for life and to a minimum punishment of,

(a) for a first offence, a fine of $1,000;
(b) for a second offence, imprisonment for a term of 30 days; and
(c) for each subsequent offence, imprisonment for a term of 120 days.

2018, c. 21, s. 15.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving dangerous operation of a motor vehicle under s. 320.13(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit operated a motor vehicle
  5. the manner the accused operated the vehicle was dangerous to the public in the circumstances
    1. driving over the road lines / driving over curbs
    2. failure to obey road-signs, including stop signs, stop lights and speed limits
    3. driving in close proximity with other vehicles (i.e. "tailgating")
    4. collision with other car(s), bikers, pedestrians / collision with inanimate objects
    5. swerving while driving
  6. the culprit knew or ought to have known that the manner of driving was dangerous

Proving dangerous operation of a motor vehicle under s. 320.2 should include:

  1. same elements as s. 320.13(1);
  2. another person suffers bodily harm;
  3. the harm was "caused" by the alleged act;

Proving dangerous operation of a motor vehicle under s. 320.21 should include:

  1. same elements as s. 320.13(1);
  2. another person dies;
  3. the death was "caused" by the alleged act;

Interpretation of the Offence

Proving the operation of the vehicle where there are no first-hand observers of the accused driving, can be determined through inference by the officer touching the hood of the car to detect recent operation of the vehicle and observing the accused in the vicinity.

The purpose of criminalizing dangerous driving is to "capture any circumstances that enhance the dangerousness to the public of the manner of driving."[1]

Definitions

Section 2 defines "motor vehicle", "bodily harm", and "railway equipment". Section 214 defines "aircraft", "vessel", and "operates".

Constitutionality

The offence under s. 320.13(1) does not violate s. 7 of the Charter for vagueness.[2]

  1. R v Bradley, 2020 ONCA 206 (CanLII)(complete citation pending), per curiam, at para 7 ("Section 249(1) uses the term “including” to make clear that the expressed illustrations are not exhaustive. Both the natural meaning of the phrase, “a manner that is dangerous to the public”, and the purpose of the provision of criminalizing dangerous driving, capture any circumstances that enhance the dangerousness to the public of the manner of driving")
  2. R v Demeyer, 1986 ABCA 104 (CanLII), per Laycraft CJ - applying to s. 249(1)(a)

Actus Reus

Actus reus of the offence:

The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place."[1]

There must be a "marked departure" from the standard of a reasonable person[2]

The focus of analysis is upon the "risks created by the accused’s manner of driving, not the consequences".[3]

The judge must make "meaningful inquiry into the manner of driving".[4] This could include such considerations as: [5]

  • the traffic conditions at the time;
  • the accused's speed of travel;
  • nature of the road; and
  • the weather conditions.

Failure on the part of the judge to inquire into the manner of driving may result in a finding of an unreasonable verdict.[6]

Failure to do so may result

  1. R v Beatty, 2008 SCC 5 (CanLII), [2008] 1 SCR 49, per Charron J, at paras 43, 46 and 49
    see also R v Settle, 2010 BCCA 426 (CanLII), per D Smith JA and Bennet JA, at paras 39 to 41 for history of law pre-Beatty
  2. R v MacGillivray, 1995 CanLII 139 (SCC), [1995] 1 SCR 890, per Cory J
  3. R v Roy, 2012 SCC 26 (CanLII), per Cromwell J, at para 34
  4. Roy, ibid., at para 34
  5. R v Zaba, 2016 ONCA 167 (CanLII), per Huscroft JA
  6. e.g. Zaba, ibid.

Mens Rea

The mens rea has been established is stated as follows:

The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.[1]
  1. Beatty, supra

Factors

Personal attributes such as age, experience driving and education are generally not relevant.[1] However, they may be relevant where the accused's personal attributes go to the accused's ability to appreciate or avoid risk.[2]

Falling asleep at wheel is not necessarily a criminal offence.[3] In fact, what the vehicle does after the accused falls asleep cannot be attributed as part of the dangerous driving but rather only as a consequence to the initial conscious driving.[4]

Depending on the circumstances, speed alone can amount to a "marked departure" from the standard of care of a reasonable person.[5]

  1. R v Beatty, 2008 SCC 5 (CanLII), per Charron J
  2. R v Roy, 2012 SCC 26 (CanLII), per Cromwell J
  3. R v Chan, 2009 ONCJ 598 (CanLII), per Hogan J
  4. e.g. R v Jiang, 2007 BCCA 270 (CanLII), per Smith JA
  5. R v BJC, 2008 ABCA 331 (CanLII), per Ritter JA
    R v Richards, 2003 CanLII 48437 (ON CA), per curiam

Other Issues

Sleeping Driver

A driver who is sleeping "is not driving of his or her own volition and acts committed while in that automatic state of mind cannot form the actus reus of dangerous driving".[1]

If the sleeping driver was consciously "embarking on driving or in continuing to drive in the face of a real risk of falling asleep" then the offence can be made out.[2] There must still be a marked departure from the standard of a reasonable person.[3]

Evidence of Alcohol Consumption

The Court may consider evidence of consumption of alcohol even where the accused was acquitted for impaired driving.[4]

  1. R v Jiang, 2007 BCCA 270 (CanLII), per Smith JA, at para 17
  2. Jiang
  3. R v Roberts, 2009 BCSC 146 (CanLII), per Meiklem J
  4. R v Settle, 2010 BCCA 426 (CanLII), per D Smith JA and Bennett JA - denies claim of issue estoppel

Causes Bodily Harm or Death

See also: Causation

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 259(2)), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 320.13(1) [dangerous op. - no bodily harm or death] Summary Election two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 320.13(1) [dangerous op. - no bodily harm or death] Indictable Election 5 years custody
s. 320.13(2) [dangerous op. - cause bodily harm] N/A 14 years custody
s. 320.13(3) [dangerous op. - cause death] N/A life in custody

Offences under s. 320.13(1) are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) .

Offences under s. 320.13(2) or (3) are straight indictable. The maximum penalty is 14 years under s. 320.13(2) or life incarceration under s. 320.13(3).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 320.13(1) any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 320.13(2) or (3) N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

For offences under s. 320.13(1) , all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

If convicted under s. 320.13(2) or 320.13(3) a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 320.13(2) or 320.13(3) are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

The Court’s primary emphasis is placed on general deterrence.[1]

When an offender has a history of improper driving, specific deterrence will be emphasized.[2]

The Dangerous Operation offences are classified as more serious than impair driving and less than criminal negligence.[3]

The sentence must be proportionate to the nature of the harm inflicted. [4]

There must be an emphasis on denunciation and general deterrence, particularly where the consequences are devastating, in order to make clear that these are "true crimes" rather than mere accidents. [5]

In R v Grenke, 2012 ABQB 198 (CanLII), [2012] AJ No 323 (QB), per Germain J, a number of principles have been set out:

  1. while jail sentences of less than two years exist, appeals taken from these sentences often result in the sentence being increased to a three to four-year range;
  2. lower or lighter sentences are handed out for dangerous driving causing death or bodily harm where there is any involvement of alcohol or drugs, and the driving pattern is at the lower end of riskiness;
  3. an early plea of guilt, as a sign of remorse, is often mentioned in lower sentences but I hasten to add that an accused should not be treated more harshly, than the appropriate range of sentence, for exercising their constitutional right to a fair trial;
  4. where an offender has a previous record that involves drinking and driving or other dangerous tendencies relating to the rules of the road, sentences tend to be harsher;
  5. where an offender is a youthful and less experienced driver, more emphasis may be placed on rehabilitation and less on punishment and deterrence; and
  6. where there are multiple convictions the courts should ensure that no one gets a free crime simply because one offence is eclipsed with a more serious one, but, in total and globally the sentence should not be excessive; the sentencing levers of consecutive and concurrent sentences may be used to ensure that, globally, the sentence is appropriate.
  1. R v Fox, 2001 ABCA 64 (CanLII), per curiam, at para 27 ("We agree that denunciation and deterrence are principal objectives in a case of this nature. However, the rehabilitation of the offender must also be considered.")
    R v Hindes, 2000 ABCA 197 (CanLII), per curiam, at para 43 (In reference to the law as it was then relating to conditional sentences: "While the offence is one which calls for deterrence and denunciation we do not exclude the consideration of a conditional sentence.")
    R v Reynolds, 2016 SKQB 21 (CanLII), per Acton J, at para 24 ("Members of the public must be deterred from driving dangerously, particularly in less than ideal conditions, which put other members of the public at danger of injury or death, even though they may be driving in a defensive and completely appropriate manner")
    R v Grenke, 2012 ABQB 198 (CanLII), per Germain J, at para 22 ("Repeatedly our Canadian courts including our Alberta Court of Appeal have emphasized that the crafting of a fit sentence for this type of motor vehicle offence [of dangerous driving causing bodily harm] must focus on denunciation and deterrence")
  2. see R v Squires, 1995 CanLII 9848 (NL CA), [1995] N.J. No. 157 (C.A.), per Gushue JA
    R v Strickland, [1997] N.J. No. 398 (S.C.) (*no CanLII links)
  3. R v Woodward (1993), 1993 CanLII 8183 (NL CA), 109 Nfld & PEIR 240 (NLCA), per Steele JA at 30
  4. R v Rhyason, 2007 ABCA 119 (CanLII) , [2007] AJ No. 372 (CA), per curiam, at para 29 ("[Proportionality] is the fundamental sentencing factor: [citation omitted]. A sentence is to reflect the gravity of the offence and the degree of responsibility of the respondent.")
    R v Christink, 2012 ONCA 141 (CanLII), [2012] OJ No 989 (CA), per curiam, at para 5
  5. R v Biancofiore, 1997 CanLII 3420 (ONCA), per Rosenberg JA ("condemnation of these types of offences must be clear and, where the offence has devastating consequences, it must be loud...")

Causing Bodily Harm or Death

Where bodily harm is involved, it is among the more serious of motor vehicle offences as it places the public, including completely innocent bystanders at risk of harm.[1]

Primacy is given to denunciation and deterrence .[2]

There is an inherent danger in an object such as a motor vehicle moving at high speed in areas where people frequent.[3]

The regular range for dangerous driving or impaired driving causing bodily harm is between a conditional sentence and two years less a day.[4]

  1. R v McMertry, (1987), 21 O.A.C. 68(*no CanLII links) , at para 11
    R v Rawn, 2012 ONCA 487 (CanLII), [2012] OJ No 3096 (Ont. C.A.), per Epstein JA
  2. Rawn, ibid., at para 45
    R v Grenke, 2012 ABQB 198 (CanLII), per Germain J, at para 22 ("Repeatedly our Canadian courts including our Alberta Court of Appeal have emphasized that the crafting of a fit sentence for this type of motor vehicle offense [dangerous driving causing bodily harm] must focus on denunciation and deterrence")
  3. R v Field, 2011 ABCA 48 (CanLII), 499 A.R. 178, per Watson JA, at para 23 ( “[d]riving a ton of glass and metal through spaces where people can be expected to be present and at a speed where it is likely to be impossible to stop the vehicle in time to avoid calamity cannot be treated as a youthful indiscretion”)
  4. R v Puyenbroek, 2007 ONCA 824 (CanLII), per Feldman JA, at paras 59 to 61

Factors

Section 320.2 sets out aggravating factors:

Aggravating circumstances for sentencing purposes

320.22 A court imposing a sentence for an offence under any of sections 320.13 to 320.18 [all conveyance offences] shall consider, in addition to any other aggravating circumstances, the following:

(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;
(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;
(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;
(d) the offender was being remunerated for operating the conveyance;
(e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;
(f) the offender was operating a large motor vehicle; and
(g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.

2018, c. 21, s. 15.

CCC

The court-established aggravating factors to consider include:[1]

  1. the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a “motorised pub crawl”;
  2. greatly excessive speed; racing; competitive driving against another vehicle; “showing off'”;
  3. disregard of warnings from fellow passengers;
  4. a prolonged, persistent and deliberate course of very bad driving
  5. aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking);
  6. driving while the driver's attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held);
  7. driving when knowingly suffering from a medical condition which significantly impairs the offender's driving skills;
  8. driving when knowingly deprived of adequate sleep or rest;
  9. driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns;
  10. other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle;
  11. previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving;
  12. more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable);
  13. serious injury to one or more victims, in addition to the death(s);
  14. behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape;
  15. causing death in the course of dangerous driving in an attempt to avoid detection or apprehension;
  16. offence committed while the offender was on bail; and
  17. dangerous driving while in a residential area or in area where people frequent.

Potential mitigating factors include: [2]

  1. a good driving record;
  2. the absence of previous convictions;
  3. a timely plea of guilty;
  4. genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);
  5. the offender's age (but only in cases where lack of driving experience has contributed to the commission of the offence), and
  6. the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.
  1. R v Bennett, 2007 CanLII 11290 (NL PC), per Gorman J citing R v Cooksley, [2004] 1 Cr App(S) 1, at para 15
  2. Cooksley, ibid., at para 15

Ranges

see also: Dangerous Operation of a Motor Vehicle (Sentencing Cases)

In Alberta, the period of incarceration for motor vehicle offence causing death or injury is usually between 3 to 4 years.[1]

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 249(2), (3), (4)
Driving Prohibition Orders s. 320.13(1), (2) or (3)
  • if under 249(1), (2): Max 3 years / Min. 1 year (1st time), 2 years (2nd time), 3 years (3rd time)
  • if under 249(3), (4): Max 10 years
Delayed Parole Order s. 249(3) or (4)
  • Periods of imprisonment of 2 years or more for convictions under s. 249(3) and (4) are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
Forfeiture of Vehicle
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

Until December 18, 2018, the relevant section was s. 249, which read:

Dangerous operation of motor vehicles, vessels and aircraft

249. (1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;
(b) a vessel or any water skis, surf-board, water sled or other towed object on or over any of the internal waters of Canada or the territorial sea of Canada, in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of those waters or sea and the use that at the time is or might reasonably be expected to be made of those waters or sea;
(c) an aircraft in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of that aircraft or the place or air space in or through which the aircraft is operated; or
(d) railway equipment in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of the equipment or the place in or through which the equipment is operated.
Punishment

(2) Every one who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
Dangerous operation causing bodily harm

(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Dangerous operation causing death

(4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., 1985, c. C-46, s. 249; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 57; 1994, c. 44, s. 11.

CCC

The change in language from s. 249 to 320.13(1) preserved the substance of the offence, but used simpler language.

Section 249.4 was entirely repealed December 18, 2018. It previously read:

Dangerous operation of motor vehicle while street racing

249.4 (1) Everyone commits an offence who, while street racing, operates a motor vehicle in a manner described in paragraph 249(1)(a).

Punishment

(2) Everyone who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
Dangerous operation causing bodily harm

(3) Everyone who commits an offence under subsection (1) and thereby causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Dangerous operation causing death

(4) Everyone who commits an offence under subsection (1) and thereby causes the death of another person is guilty of an indictable offence and liable to imprisonment for life.
2006, c. 14, s. 2.

CCC

See Also

Related Offences
References

Flight from a Peace Officer


Flight from a Peace Officer
s. 320.17 of the Crim. Code
Election / Plea
Crown Election Hybrid / Indictable
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 2 years less a day
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum None
Maximum 10, 14 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to flight from a peace officer are found in Part VIII.1 of the Criminal Code concerning "Offences Relating to Conveyances".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 320.17 [flight from peace officer] Hybrid Offence(s) Yes OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 320.17 [flight from peace officer] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 320.17 [flight from peace officer] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 320.17 [flight from peace officer], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 320.17 [flight from peace officer] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Designations

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Flight from peace officer

320.17 Everyone commits an offence who operates a motor vehicle or vessel while being pursued by a peace officer and who fails, without reasonable excuse, to stop the motor vehicle or vessel as soon as is reasonable in the circumstances.

2018, c. 21, s. 15.

CCC

Punishment

320.19 ...

Punishment — dangerous operation and other offences

(5) Everyone who commits an offence under subsection 320.13(1) [dangerous operation] or 320.16(1) [failure to stop after accident], section 320.17 [flight from peace officer] or subsection 320.18(1) [operation while prohibited] is liable

(a) on conviction on indictment, to imprisonment for a term of not more than 10 years; or
(b) on summary conviction, to imprisonment for a term of not more than two years less a day.

2018, c. 21, s. 15.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving flight from a peace officer under s. 320.17 and 320.19 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit operated a motor vehicle;
  5. the police pursued the vehicle in their own vehicle;
  6. the culprit knew a peace officer was pursing them;
  7. the culprit failed to stop as soon as reasonably possible in the circumstances;
  8. the absence of a reasonable excuse for failing to stop;
  9. the culprit failed to stop in order to evade the police;
  10. the speed of the chase;
  11. signs of dangerous driving and whether any other persons were at risk.


  1. R v Kulchisky, 2007 ABCA 110 (CanLII), per Berger JA, at para 4

Interpretation of the Offence

The passenger can be liable along with the driver where the passenger had “the exercise of a directing authority”. [1]

A “reasonable excuse” for flee police provides a justification for the offence and does not negate any essential element of the offence itself. [2] For example, a desire to think things through goes to motive and still results in a conviction.[3]

Warrantless entry into a dwelling was not permitted when a possibly mentally ill individual reports people breaking into his house.[4]

  1. R v Slessor, 1969 CanLII 248 (ON CA), [1969] OJ No 1514 (C.A.), per Gale CJ
  2. R v Armstrong, 2011 ONCA 709 (CanLII), per Watt JA, at para 9
  3. R v Kulchisky, 2007 ABCA 110 (CanLII), per Berger JA, at para 10
    R v Fonseca, 2012 BCPC 13 (CanLII), per Dhillon J, at para 81
    See also Reasonable Excuse
  4. R v Larson, 2011 BCCA 454 (CanLII), per Groberman JA

Causation

See Causation

Misc Definitions

Section 2 defines "bodily harm", "motor vehicle", "peace officer".

s. 214
...
“operate”

(a) means, in respect of a motor vehicle, to drive the vehicle,
(b) means, in respect of railway equipment, to participate in the direct control of its motion, whether
(i) as a member of the crew of the equipment,
(ii) as a person who, by remote control, acts in lieu of such crew, or
(iii) as other than a member or person described in subparagraphs (i) and (ii), and
(c) includes, in respect of a vessel or an aircraft, to navigate the vessel or aircraft;

...
R.S., 1985, c. C-46, s. 214; R.S., 1985, c. 27 (1st Supp.), s. 33, c. 32 (4th Supp.), s. 56; 2002, c. 13, s. 9.

CCC

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 320.17 and 320.19 [flight from peace officer] Summary Conviction two years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 320.17 and 320.19 [flight from peace officer] Indictable Conviction 10 years custody

Offences under s. 320.17 [flight from peace officer] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) .

Minimum Penalties

Offences under s. 320.17 [flight from peace officer] have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 320.17 [flight from peace officer] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

This offence will often attract a sentence that will be consecutive to other convictions that arise out of the same interaction.[1]

  1. R v Roberts, 2005 ABCA 11 (CanLII), per Côté JA
    R v Mozylisky, 2009 SKCA 94 (CanLII), per Smith JA
    R v Akapew, 2009 SKCA 137 (CanLII), per Hunter JA

Factors

Aggravating circumstances for sentencing purposes

320.22 A court imposing a sentence for an offence under any of sections 320.13 to 320.18 [all conveyance offences] shall consider, in addition to any other aggravating circumstances, the following:

(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;
(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;
(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;
(d) the offender was being remunerated for operating the conveyance;
(e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;
(f) the offender was operating a large motor vehicle; and
(g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.

2018, c. 21, s. 15.

CCC

Offence-specific Factors
  • whether there were pedestrians or other vehicles on the road
  • condition of the road at the time
  • whether blood alcohol level above 0.120 (see s. 320.22(e))

Ranges

see also: Flight from a Peace Officer (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 249.1(2), (4)
Driving Prohibition Orders (s. 320.24)


General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

Until December 18, 2018, the offence read as follows:

Flight

249.1 (1) Every one commits an offence who, operating a motor vehicle while being pursued by a peace officer operating a motor vehicle, fails, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as is reasonable in the circumstances.

Punishment

(2) Every one who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
Flight causing bodily harm or death

(3) Every one commits an offence who causes bodily harm to or the death of another person by operating a motor vehicle in a manner described in paragraph 249(1)(a), if the person operating the motor vehicle was being pursued by a peace officer operating a motor vehicle and failed, without reasonable excuse and in order to evade the police officer, to stop the vehicle as soon as is reasonable in the circumstances.

Punishment

(4) Every person who commits an offence under subsection (3)

(a) if bodily harm was caused, is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years; and
(b) if death was caused, is guilty of an indictable offence and liable to imprisonment for life.

2000, c. 2, s. 1.

CCC


See Also

Related Offences

Failure to Stop or Remain at Scene of Accident


Failure to Stop or Remain at Scene of Accident
s. 320.16(1), (2) or (3) of the Crim. Code
Election / Plea
Crown Election Hybrid / Indictable
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 2 years less a day
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum None
Maximum 5 years incarceration
10, 14 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to failure to stop or remain at scene of accident are found in Part VIII.1 of the Criminal Code concerning "Offences Relating to Conveyances".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 320.16(1) [failure to stop at accident] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)
s. 320.16(2) [failure to stop at accident involving bodily harm] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) OK Symbol.png (14 years max)
s. 320.16(3) [failure to stop at accident involving death] Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (life max)

Offences under s. 320.16(1) [failure to stop at accident] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 320.2 [failure to stop with bodily harm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 320.21 [conveyance offences causing bodily harm] are straight indictable. There is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 320.16(1) [failure to stop at accident] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 320.16(2) [failure to stop at accident involving bodily harm] or
s. 320.16(3) [failure to stop at accident involving death]
X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 320.16(1) [failure to stop at accident] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

When charged under s. 320.16(2) [failure to stop at accident involving bodily harm] or (3) [failure to stop at accident involving death], the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 320.16 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 320.16(1) [failure to stop at accident] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png
s. 320.16(2) [failure to stop at accident involving bodily harm] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png
s. 320.16(3) [failure to stop at accident involving death] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Failure to stop after accident

320.16 (1) Everyone commits an offence who operates a conveyance and who at the time of operating the conveyance knows that, or is reckless as to whether, the conveyance has been involved in an accident with a person or another conveyance and who fails, without reasonable excuse, to stop the conveyance, give their name and address and, if any person has been injured or appears to require assistance, offer assistance.

Accident resulting in bodily harm

(2) Everyone commits an offence who commits an offence under subsection (1) [failure to stop after accident] and who at the time of committing the offence knows that, or is reckless as to whether, the accident resulted in bodily harm to another person.

Accident resulting in death

(3) Everyone commits an offence who commits an offence under subsection (1) [failure to stop after accident] and who, at the time of committing the offence, knows that, or is reckless as to whether, the accident resulted in the death of another person or in bodily harm to another person whose death

2018, c. 21, s. 15.
[annotation(s) added]

CCC

320.19...

Punishment — dangerous operation and other offences

(5) Everyone who commits an offence under subsection 320.13(1) [dangerous operation] or 320.16(1) [failure to stop after accident], section 320.17 [flight from peace officer] or subsection 320.18(1) [operation while prohibited] is liable

(a) on conviction on indictment, to imprisonment for a term of not more than 10 years; or
(b) on summary conviction, to imprisonment for a term of not more than two years less a day.

2018, c. 21, s. 15; 2019, c. 25, s. 402.

CCC

Punishment in case of bodily harm

320.2 Everyone who commits an offence under subsection 320.13(2) [dangerous operation causing bodily harm], 320.14(2) [impaired operation causing bodily harm], 320.15(2) [refusal where collision results in bodily harm] or 320.16(2) [fail to stop at accident resulting in bodily harm] is liable on conviction on indictment or on summary conviction

(a) to the following minimum punishment, namely,
(i) for a first offence, a fine of $1,000,
(ii) for a second offence, imprisonment for a term of 30 days, and
(iii) for each subsequent offence, imprisonment for a term of 120 days;
(b) if the offence is prosecuted by indictment, to imprisonment for a term of not more than 14 years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.

2018, c. 21, s. 15; 2019, c. 25, s. 402.

CCC

Punishment in case of death

320.21 Everyone who commits an offence under subsection 320.13(3) [dangerous operation causing death], 320.14(3) [impaired operation causing death], 320.15(3) [refusal where collision results in death] or 320.16(3) [fail to stop at accident resulting in death] is liable on conviction on indictment to imprisonment for life and to a minimum punishment of,

(a) for a first offence, a fine of $1,000;
(b) for a second offence, imprisonment for a term of 30 days; and
(c) for each subsequent offence, imprisonment for a term of 120 days.

2018, c. 21, s. 15.

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving Failure to Stop or Remain at Scene of Accident under s. 320.16(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused must be the operator of one of the vehicles
  5. the make and model of the vehicle driven by accused
  6. there must be an accident with a person, vehicle, or cattle
  7. the condition of the objects before and after a collision
  8. the culprit must be aware of the accident
  9. the accused did not stop, give his name/address or offer assistance to any injured persons
  10. the accused must flee for the purpose of escaping criminal or civil liability in relation to the accident

Proving Failure to Stop or Remain at Scene of Accident under s. 320.16(2) should include:

  1. underlying elements of s. 320.16(1)
  2. the culprit knew that "bodily harm has been caused to another person involved in the accident"

Proving Failure to Stop or Remain at Scene of Accident under s. 320.16(3) should include:

  1. underlying elements of s. 320.16(1)
  2. the culprit "knows that another person involved in the accident is dead" or "knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the death of the other person results from that bodily harm, and the death of that other person so results".

Interpretation of the Offence

Duty

The offence imposes a duty upon all people to stop their vehicles, provide their name and address, and offer assistance to injured persons. A failure to do any of these duties will make out the mens rea of the offence.[1]

Mens Rea

Actual subjective knowledge of the accident is necessary.[2]

Circumstances of the Offence

It is not necessary for the Crown to prove that there was any damage or injury.[3]

Section 320.16(1) can include a single vehicle accident where "another person" refers to the passenger of the vehicle.[4]

  1. R v Parks, 1979 ABCA 242 (CanLII), per Harradence JA, at paras 7 to 8
    R v Steere, (1972) 6 CCC (2d) 403 (BCCA), 1972 CanLII 1256 (BC CA), per MacFarlane JA
  2. R v Slessor, 1969 CanLII 248 (ON CA), [1970] 2 CCC 247 (Ont. C.A.), per Laskin JA, at pp. 260-61
    R v Faulkner (No. 2) (1977), 37 CCC (2d) 217 (N.S. Co. Ct.), 1977 CanLII 1976 (NS SC), per McLellan J
    R v MacDonald (1972), 8 CCC (2d) 16 (B.C.S.C.), 1972 CanLII 1286 (BC SC), per Berger J, at p. 18 - ("The test therefore is a subjective one. Did the accused know he had been involved in an accident?")
    see also R v Bartlett, 1994 CanLII 4427 (NL SCTD), per Barry J
  3. R v Chase, 2006 BCCA 275 (CanLII), per Rowles JA, at para 40
  4. R v McColl, 2008 ABCA 287 (CanLII), per Hunt JA, at para 28 - referring to old legislation
"Liability"

"Liability" refers to liability that flows from the accident, not simply any liability that may arise from unrelated acts.[1]

  1. R v Hofer, 1982 CanLII 2378 (SK CA), (1982), 2 CCC (3d) 236 (Sask. C.A.), per Hall JA - judge found sole reason for failing to stop was to avoid arrest due to outstanding warrants

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 320.16(1) [failure to stop at accident] Summary Election Two years less a day
s. 320.16(1) [failure to stop at accident] Indictable Election 10 years custody
s. 320.16(2) [failure to stop at accident involving bodily harm] N/A 14 years custody
s. 320.16(3) [failure to stop at accident involving death] N/A life in custody

Offences under s. 320.16(1) are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) .

Offences under s. 320.16(2) and (3) are straight indictable. The maximum penalty is 14 years under s. 320.16(2) or life under s. 320.16(3).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 320.16(1) [failure to stop at accident] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 320.16(2) [failure to stop at accident involving bodily harm] N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 320.16(3) [failure to stop at accident involving death] N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

For offences under s. 320.16(1) [failure to stop at accident] or (2) [failure to stop at accident involving bodily harm], all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

If convicted under s. 320.16(3) [failure to stop at accident involving death] a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 320.16(3) [failure to stop at accident involving death] are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Failure to Stop or Remain at Scene of Accident (Sentencing Cases)
Aggravating circumstances for sentencing purposes

320.22 A court imposing a sentence for an offence under any of sections 320.13 to 320.18 [all conveyance offences] shall consider, in addition to any other aggravating circumstances, the following:

(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;
(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;
(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;
(d) the offender was being remunerated for operating the conveyance;
(e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;
(f) the offender was operating a large motor vehicle; and
(g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.

2018, c. 21, s. 15.

CCC

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 320.16(1) [failure to stop at accident] - regardless of election
s. 320.16(2) [failure to stop at accident involving bodily harm] - only on indictable election
s. 320.16(3) [failure to stop at accident involving death]
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 320.16 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

Until December 18, 2018, the offence read as follows:

Failure to stop at scene of accident

252. (1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with

(a) another person,
(b) a vehicle, vessel or aircraft, or
(c) in the case of a vehicle, cattle in the charge of another person,

and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.

Punishment

(1.1) Every person who commits an offence under subsection (1) in a case not referred to in subsection (1.2) or (1.3) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.

Offence involving bodily harm

(1.2) Every person who commits an offence under subsection (1) knowing that bodily harm has been caused to another person involved in the accident is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Offence involving bodily harm or death

(1.3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life if

(a) the person knows that another person involved in the accident is dead; or
(b) the person knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the death of the other person results from that bodily harm, and the death of that other person so results.


...
R.S., 1985, c. C-46, s. 252; R.S., 1985, c. 27 (1st Supp.), s. 36; 1994, c. 44, s. 12; 1999, c. 32, s. 1(Preamble).

CCC

See Also

References

Operation While Impaired by Alcohol or Drug (Offence)


Operation While Impaired by Alcohol or Drug
s. 320.14 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)

(* varies)
Minimum $1,000 + 12 months Driving Prohib.(first)
30 days jail + 2 to 5 years Driving Prohib. (second)
120 days + 3 or more years Driving Prohib. (three or more)
Maximum 2 years less a day or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum same as summary
Maximum 10, 14 years or life incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to Operation While Impaired by Alcohol or Drug are found in Part VIII.1 of the Criminal Code concerning "Offences Relating to Conveyances".

Section 320.14 describes 4 distinct but related offences.

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry

s. 320.14(1)(a) [peration while impaired]
s. 320.14(1)(b) [operation while over 80]
s. 320.14(1)(c) [operation while blood drug exceeds regs re drug]
s. 320.14(1)(d) [operation while blood drug exceeds regs re blood]

Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

s. 320.14(4) [operation with low blood drug concentrations]

Summary Offence(s) X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Offences under s. 320.14(1) [operation while impaired offences] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 320.14(4) [operation with low blood drug concentrations] are straight summary conviction offence. The trial must be held in provincial court.

Before the statutory increased penalties can be applied for convictions under s. 320.14 , notice of increased penalty under s. 727 must be given.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 320.14(1)(a) [peration while impaired]

s. 320.14(1)(b) [operation while over 80]
s. 320.14(1)(c) [operation while blood drug exceeds regs re drug]
s. 320.14(1)(d) [operation while blood drug exceeds regs re blood]

OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 320.14(4) [operation with low blood drug concentrations] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 320.14(1) [operation while impaired offences] and (4) [operation with low blood drug concentrations], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 320.14 [all operation offences[1] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 320.14(1) [operation while impaired offences] OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 320.14(4) [operation with low blood drug concentrations] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Offence wording as of December 18, 2018, see History below for previous versions.

Operation while impaired

320.14 (1) Everyone commits an offence who

(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
(b) subject to subsection (5) [operation while impaired – exception for alcohol], has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;
(c) subject to subsection (6) [operation while impaired – exception for drugs], has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or
(d) subject to subsection (7) [operation while impaired – exception for alcohol and drugs], has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.

[omitted (2) and (3)]

Operation — low blood drug concentration

(4) Subject to subsection (6) [operation while impaired – exception for drugs], everyone commits an offence who has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph (1)(c) [impaired operation – within 2 hrs BAC exceeding regulations].

Exception — alcohol

(5) No person commits an offence under paragraph (1)(b) [impaired operation – within 2 hrs BAC exceeding 80] if

(a) they consumed alcohol after ceasing to operate the conveyance;
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and
(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) [proof by inference from breath samples or blood samples] or (2) [proof by inference from breath samples or blood samples] and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.
Exception — drugs

(6) No person commits an offence under paragraph (1)(c) [impaired operation – within 2 hrs BAC exceeding regulations] or subsection (4) [operation with low blood drug concentration] if

(a) they consumed the drug after ceasing to operate the conveyance; and
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance.
Exception — combination of alcohol and drug

(7) No person commits an offence under paragraph (1)(d) [impaired operation – within 2 hrs BAC and drugs exceeding regulations] if

(a) they consumed the drug or the alcohol or both after ceasing to operate the conveyance;
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance; and
(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) [proof by inference from breath samples or blood samples] or (2) [proof by inference from breath samples or blood samples] and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration less than the blood alcohol concentration established under paragraph 320.38(c) [power to make regs re blood alcohol and blood drug concentration].

2018, c. 21, s. 15.
[annotation(s) added]

CCC

Punishment

320.19 (1) Everyone who commits an offence under subsection 320.14(1) [impaired operation] or 320.15(1) [refusal to provide a sample] is liable on conviction on indictment or on summary conviction

(a) to the following minimum punishment, namely,
(i) for a first offence, a fine of $1,000,
(ii) for a second offence, imprisonment for a term of 30 days, and
(iii) for each subsequent offence, imprisonment for a term of 120 days;
(b) if the offence is prosecuted by indictment, to imprisonment for a term of not more than 10 years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.
Summary conviction

(2) Everyone who commits an offence under subsection 320.14(4) [operation with low blood drug concentration] is liable on summary conviction to a fine of not more than $1,000.

Minimum fines for high blood alcohol concentrations

(3) Despite subparagraph (1)(a)(i) [x], everyone who commits an offence under paragraph 320.14(1)(b) [impaired operation – within 2 hrs BAC exceeding 80] is liable, for a first offence, to

(a) a fine of not less than $1,500, if the person’s blood alcohol concentration is equal to or exceeds 120 mg of alcohol in 100 mL of blood but is less than 160 mg of alcohol in 100 mL of blood; and
(b) a fine of not less than $2,000, if the person’s blood alcohol concentration is equal to or exceeds 160 mg of alcohol in 100 mL of blood.

...
2018, c. 21, s. 15.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offences

Proving operating while impaired by drug or alcohol under s. 320.14(1)(a) should include:[2]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. The Culprit was operating a conveyance
  5. the culprit was impaired at the time of operation
  6. the impairment was by alcohol or drug
  7. The accused voluntarily consumed the alcohol or alcohol

Proving operating while BAC over 80 under s. 320.14(1)(b) should include:[3]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. The culprit was operating a conveyance
  5. The Accused's BAC was over 80 at the time
    1. each sample taken as soon as practicable after offence was committed
    2. first sample taken not later than two hours


Proving operation while blood drug exceeds regs re drug under s. 320.14(1)(c) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. ...

Proving operation while blood alcohol and drug exceeds regs re blood under s. 320.14(1)(d) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. ...

Proving Operation with low blood drug concentrations under s. 320.14(4) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. ...

If there is a blended voir dire Charter application on detention (e.g. sufficiency of grounds), arrest, or right to counsel, then the Crown should prove:

  1. ...


  1. Except after summary election has been made
  2. R v Andrews, 1996 ABCA 23 (CanLII), per Conrad JA (2:1), at para 31 discusses impairment
  3. Andrews, ibid., at para 31 discusses impairment

Interpretation of the Offence

Generally, the "evil" that the offence seeks to address is the combination of alcohol and motor vehicles as it tends to "breed danger".[1]

The objective of criminalizing impair driving is to "discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion, while at the same time providing a way for a person to avoid liability when there was a reason for entering the vehicle other than to set it in motion".[2]

The police do not simply have the statutory authority to investigate driver sobriety, but also have a legal duty to investigate.[3]

  1. Saunders v The Queen, 1967 CanLII 56 (SCC), [1967] SCR 284, per Fauteux J
  2. R v Whyte, 1988 CanLII 47 (SCC), [1988] 42 CCC (3d) 97, per Dickson CJ, at para 47
  3. R v Orbanski, 2005 SCC 37 (CanLII), per Charron J

Investigation

There is a two-stage process whereby an officer may demand that a driver take a roadside screening test where the officer has reasonable suspicion that the driver has alcohol in his body. The second step allows the officer to demand a breathalyzer test where the officer has reasonable grounds to believe that the driver committed an impaired driving offence.[1]

The roadside screening device is not necessary in all circumstances. Its purpose is only to assist in forming reasonable grounds, which can sometimes be obtained by other means.[2]

Investigation of Impairment/Over 80



  1. R v Flight, 2014 ABCA 185 (CanLII), per Veldhuis JA, at paras 31 to 33
  2. e.g. R v Fogarty, 2015 NSCA 6 (CanLII), per Fichaud JA - example of RPG formed without roadside screening

Mens Rea of Impaired Driving

The charge of impaired driving is a general intent offence. [1]

Part of the mens rea of the offence of impaired driving is made out by the accused's voluntary consumption of alcohol for the purpose of becoming intoxication or the accused "acting recklessly, aware that impairment could result, but persisting despite the risk". [2]

It is not necessary that the accused have actual knowledge of the effects of drugs or alcohol. Proof of recklessness is sufficient.[3]

Where the voluntary consumption of alcohol is proven, there is a rebuttable presumption the mens rea is made out. [4]

The intent to be impaired can be negated in certain circumstances where the accused's drink may have been drugged.[5]

  1. R v Charles, 2013 BCSC 23 (CanLII), per Sigurdson J, at para 40
  2. R v Mavin, 1997 CanLII 14625 (NL CA), (1997), 154 Nfld. & P.E.I.R. 242, per Marshall JA, at paras 37 to 39
    Charles, supra, at para 41
  3. R v Pomeroy, 2007 BCSC 142 (CanLII), per Romilly J
    R v Honish, 1993 CanLII 156 (SCC), [1993] 1 SCR 458, per Lamer CJ
  4. R v King, 1962 CanLII 16 (SCC), [1962] SCR 746, per Ritchie J, at p. 763
  5. e.g. R v Sitarz, 2012 ONCJ 561 (CanLII), per Caldwell J

Motor Vehicle

Under s. 2, "motor vehicle" is defined as "a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment;" Certain vehicles, such as scooters, are powered by either pedal or motor, the crown will generally have to prove that the vehicle was being operated by motor power at the time of the offence.[1]

A vehicle that is inoperable, such as were it is out of gas, will still be a motor vehicle. It is not relevant whether the vehicle is functioning or operable.[2]

An e-bike that is not being pedaled will be a "motor vehicle" under s. 2.[3]

  1. see for example R v Rookes, 2012 SKPC 80 (CanLII), per Hinds J
  2. R v Lloyd, 1988 CanLII 5326 (SK CA), [1988] SJ No 216 (SKCA), per Wakeling JA
    R v Saunders, 1967 CanLII 56 (SCC), [1967] SCR 284, per Fauteux J, at p. 290
  3. R v Clifford, 2014 ONSC 2388 (CanLII), per Koke J
    R v Kulbacki, 2012 ONCJ 532 (CanLII), per Radley-Walters J
    cf. Rookes, supra

Issues

Prior to December 2018

Kienapple Principle

Kienapple does not prevent a conviction for dangerous driving causing death or bodily harm and impaired driving causing bodily harm or death. The first offence concerns the ability to operate a vehicle while the second offence focuses on the manner in which the vehicle was operated.[1]

The offence of impaired care and control of a motor vehicle is an included offence of impaired operation of a motor vehicle.[2]

  1. R v Ramage, 2010 ONCA 488 (CanLII), per Doherty JA, at paras 59 to 66
  2. R v Pawluk, 2017 ONCA 863 (CanLII), per Paciocco JA

Available Defences

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 320.14 and 320.19 Summary Election 2 years less a day incarceration
s. 320.14 and 320.19 Indictable Election 10 years incarceration

Offences under s. 320.14 and 320.19 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 10 years less a day jail.

Minimum Penalties

For offences under s. 320.14 and 320.19, the minimum penalty is a $1,000 fine, 30 days jail with a prior conviction, or 120 days jail with two or more prior convictions.

There is some suggestion that a jail sentence can substitute for a fine, where there is no prior record.[1]

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 320.19 any OK Symbol.png (**) X Mark Symbol.png OK Symbol.png (**) OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

[2]

For offences under s. 320.19 without any prior convictions, discharges are not available.

For offences under s. 320.19 with a prior conviction, discharges, suspended sentences, stand-alone fines and conditional sentences are not available.

Despite any mandatory minimum penalties, the judge has discretion to substitute a mandatory sentence with a curative discharge for convictions under s. 253, which includes impaired driving and operating a vehicle with BAC level over 80mg/ml.[3]

Section 731(1)(a) precludes the use of suspended sentences where there are mandatory minimums.[4]

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Earlier and subsequent offences

320.26 In determining, for the purpose of imposing a sentence for an offence under subsection 320.14(1) [impaired operation] or 320.15(1) [refusal to provide a sample], whether the offence is a second, third or subsequent offence, any of the following offences for which the offender was previously convicted is considered to be an earlier offence:

(a) an offence under any of subsections 320.14(1) to (3) [x] or section 320.15 [refusal to provide a sample]; or
(b) an offence under any of sections 253 [operation while impaired], 254 [taking samples of breath/blood] and 255 [x], as those sections read from time to time before the day on which this section comes into force.

2018, c. 21, s. 15.
[annotation(s) added]

CCC

  1. R v Hatcher, 2000 NFCA 38 (CanLII), per Wells CJ (3:0), at para 19
  2. (**) Availability may vary
  3. Discharges are not available in British Columbia, Ontario, Quebec, or Newfoundland
  4. R v Berner, 2013 BCCA 188 (CanLII), per curiam, at para 36

Principles

Impaired driving is the leading criminal cause of death and injury in Canada.[1]

There is a "pressing" need to address the problems that impaired driving creates.[2]

Impaired driving causes "the most significant social loss to the country".[3] Every impaired driver is a "potential killer".[4] Every years impaired driving leaves a trail of "death, injury, heartbreak and destruction".[5]

The predominant objectives to be considered is general deterrence and denunciation.[6]

The lack of bodily harm or death is not necessarily eliminate the need to protect the public.[7] The Court can consider the risk of potential harm from the offender's conduct.[8]

Deterrence and denunciation are especially important objectives when bodily harm is caused to another person.[9]

  1. Government of Canada, Health Canada “Backgrounder: Changes to Impaired Driving Laws” [1]
  2. R v Ladouceur, [2] , [1990] 1 SCR 12, at para 42(complete citation pending)
  3. e.g. R v Beaudry, 2007 SCC 5 (CanLII), [2007] 1 SCR 190, per Charron J, at para 42
    R v Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 SCR 254 ("a far greater impact on Canadian society than any other crime")
  4. R v Lahiry, 2011 ONSC 6780 (CanLII), per Code J, at para 89
  5. Bernshaw, supra, per Cory J, at para 16 ("Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.")
  6. R v Clouthier, 2016 ONCA 197 (CanLII), per Watt JA, at para 54
    R v Squires, 1995 CanLII 9848 (NL CA), [1995] N.J. No. 157 (C.A.), per Gushue JA, at p. 5
    R v McVeigh, 1985 CanLII 115 (ON CA), per MacKinnon CJ, at p. 150
    R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 S.C.R. 61, per Lamer CJ, at para 129
    R v Lépine, 2007 QCCA 70 (CanLII)(complete citation pending), at para 21
    R v Brutus, 2009 QCCA 1382 (CanLII), per curiam, at para 18
    R v Stimson, 2011 ABCA 59 (CanLII), 499 A.R. 185, per curiam, at para 21
    R v McIlwrick, 2008 ABQB 724 (CanLII), 461 A.R. 16, per Ross J, at para 69
    R v Junkert, 2010 ONCA 549 (CanLII), 103 O.R. (3d) 284, per O'Connor ACJ, at paras 46 to 47
    R v Ruizfuentes, 2010 MBCA 90 (CanLII), 258 Man. R. (2d) 220, per Chartier JA, at para 36
    R v Lacasse, [2015] 3 SCR 1089, 2015 SCC 64 (CanLII), per Wagner J, at para 5 ("In the context of offences such as the ones in the case at bar, namely impaired driving causing either bodily harm or death, courts from various parts of the country have held that the objectives of deterrence and denunciation must be emphasized in order to convey society’s condemnation")
  7. R v Riggs, 2011 NLTD 26 (CanLII), per Handrigan JA, at para 37
    R v Jacobs, 1982 ABCA 204 (CanLII), (1982), 70 CCC (2d) 569 (Alta. C.A.), per Laycraft JA (3:0)
    R v Connolly, 2002 CanLII 41923 (NL PC), [2002] N.J. No. 40 (P.C.), per Gorman J, at para 18
    R v Alexson (1987), 1987 CanLII 4900 (SK CA), 7 M.V.R. (2d) 95 (Sask. C.A.), per Tallis JA (3:0)
  8. R v Woodward, 1993 CanLII 8183 (NL CA), (1993), 108 Nfld & PEIR 240 (N.L.C.A.), per Steele JA
  9. R v Clouthier, at para 54 ("The predominant sentencing objectives in determining a fit sentence for alcohol-driving offences, especially those in which bodily harm is caused to a fellow human being, are general deterrence and denunciation")
    R v Junkert, 2010 ONCA 549 (CanLII), 103 O.R. (3d) 284, per O'Connor ACJ (3:0), at paras 42 and 47
    R v Biancofiore (1997), 1997 CanLII 3420 (ON CA), 35 O.R. (3d) 782 (C.A.), per Rosenberg JA (3:0), at pp. 790-92

Factors

Aggravating circumstances for sentencing purposes

320.22 A court imposing a sentence for an offence under any of sections 320.13 to 320.18 [all conveyance offences] shall consider, in addition to any other aggravating circumstances, the following:

(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;
(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;
(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;
(d) the offender was being remunerated for operating the conveyance;
(e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;
(f) the offender was operating a large motor vehicle; and
(g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.

2018, c. 21, s. 15.

CCC

Aggravating factors:

  • BAC reading, esp. if exceeding 160mg (s. 255.1)
  • other signs of a high degree of impairment
  • injuries to other persons
  • prior alcohol-related convictions, including dates

See also: R v Musseau, 2010 CanLII 2539 (NL PC), [2010] N.J. No. 25 (P.C.), per Gorman J


Ranges

see also: Impaired Driving, Over 80 and Refusal (Sentencing Cases)

Generally, a custodial sentence is required when bodily harm is caused.[1]

In Manitoba, impaired causing bodily harm will typically involve a range of sentence from 3 to 18 months.[2]

In Nova Scotia, the range of sentence for impaired driving causing death with no prior record is 2 to 5 years.[3]

Persistent or Repeat Offenders

The protection of the public is paramount in sentencing "offenders who persistently drive motor vehicles when they are impaired or disqualified."[4]

  1. R v Clouthier, 2016 ONCA 197 (CanLII), per Watt JA, at para 55
    R v Biancofiore (1997), 35 O.R. (3d) 782 (C.A.), 1997 CanLII 3420 (ON CA), per Rosenberg JA, at p. 791
  2. R v MacDonald, 1999 CanLII 5083 (MB CA), (1999), 139 CCC (3d) 524 (Man. C.A.), per Twaddle JA (2:1)
  3. R v Morine, 2011 NSSC 46 (CanLII), per Rosinski J, at para 79
  4. R v Clarke, 2013 SKCA 130 (CanLII), per Jackson JA (3:0), at para 10

Curative Discharges

The only exception to the mandatory minimums is where a curative discharge is ordered by the court (only available in certain provinces).

Delay of sentencing

320.23 (1) The court may, with the consent of the prosecutor and the offender, and after considering the interests of justice, delay sentencing of an offender who has been found guilty of an offence under subsection 320.14(1) [impaired operation] or 320.15(1) [refusal to provide a sample] to allow the offender to attend a treatment program approved by the province in which the offender resides. If the court delays sentencing, it shall make an order prohibiting the offender from operating, before sentencing, the type of conveyance in question, in which case subsections 320.24(6) to (9) apply.

Exception to minimum punishment

(2) If the offender successfully completes the treatment program, the court is not required to impose the minimum punishment under section 320.19 or to make a prohibition order under section 320.24 [mandatory prohibition order], but it shall not direct a discharge under section 730 [order of discharge].

2018, c. 21, s. 15
[annotation(s) added]

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders

s. 320.14(1)(a) [Operation while impaired],
320.14(1)(b) [operation while over 80],
320.14(1)(c) [operation while blood drug exceeds regs re drug],
320.14(1)(d) [operation while blood drug exceeds regs re blood],

Driving Prohibition (320.24) s. 320.14(1) or 320.15(1) Min. 1 year (1st time), 2 years (2nd time), 3 years (3rd time or more)
Forfeiture of Vehicle

Offences under 320.14(4) [Operation with low blood drug concentrations] are not eligible for a DNA Order.

General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

References

Conveyance Offence Causing Bodily Harm or Death (Offence)


Conveyance Offences Causing Bodily Harm or Death
s. 320.2 and 320.21 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)

(* varies)
Minimum $1,000 + 12 months Driving Prohib.(first)
30 days jail + 2 to 5 years Driving Prohib. (second)
120 days + 3 or more years Driving Prohib. (three or more)
Maximum 2 years less a day or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum same as summary
Maximum 10, 14 years or life incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to conveyance use causing bodily harm or death are found in Part VIII.1 of the Criminal Code concerning "Offences Relating to Conveyances".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 320.2 [conveyance offences causing bodily harm] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)
s. 320.21 [conveyance offences causing bodily harm] Indictable Offence(s) OK Symbol.png N/A X Mark Symbol.png (under 14 years max)

Offences under s. 320.2 [conveyance offences causing bodily harm] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 320.21 [conveyance offences causing bodily harm] are straight indictable. There is a Defence election of Court under s. 536(2).

Before the statutory increased penalties can be applied for convictions under s. 320.2 [conveyance offences causing bodily harm] or 320.21 [conveyance offences causing bodily harm] , notice of increased penalty under s. 727 must be given.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 320.14(2) [operation while impaired and causing bodily harm] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png
s. 320.14(3) [operation while impaired and causing death] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 320.2 and 320.21, the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 320.2 and 320.21 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 320.2 [conveyance offences causing bodily harm] OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 320.21 [conveyance offences causing bodily harm] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Offence Wording

Offence wording as of December 18, 2018, see History below for previous versions.

Punishment in case of bodily harm

320.2 Everyone who commits an offence under subsection 320.13(2) [dangerous operation causing bodily harm], 320.14(2) [impaired operation causing bodily harm], 320.15(2) [refusal where collision results in bodily harm] or 320.16(2) [fail to stop at accident resulting in bodily harm] is liable on conviction on indictment or on summary conviction

(a) to the following minimum punishment, namely,
(i) for a first offence, a fine of $1,000,
(ii) for a second offence, imprisonment for a term of 30 days, and
(iii) for each subsequent offence, imprisonment for a term of 120 days;
(b) if the offence is prosecuted by indictment, to imprisonment for a term of not more than 14 years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.

2018, c. 21, s. 15.
[annotation(s) added]

CCC

Punishment in case of death

320.21 Everyone who commits an offence under subsection 320.13(3) [dangerous operation causing death], 320.14(3) [impaired operation causing death], 320.15(3) [refusal where collision results in death] or 320.16(3) [fail to stop at accident resulting in death] is liable on conviction on indictment to imprisonment for life and to a minimum punishment of,

(a) for a first offence, a fine of $1,000;
(b) for a second offence, imprisonment for a term of 30 days; and
(c) for each subsequent offence, imprisonment for a term of 120 days.

2018, c. 21, s. 15.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
320.21 "... contrary to section 320.21 of the Criminal Code."

Proof of the Offences

Proving Operation while impaired and causing bodily harm under s. 320.14(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. ...

Proving Operation while impaired and causing death under s. 320.14(3) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. ...

Interpretation of the Offence

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 320.14 and 320.19 Summary Election 2 years less a day incarceration
s. 320.14 and 320.19 Indictable Election 10 years incarceration

Offences under s. 320.14 and 320.19 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 10 years less a day jail.

Minimum Penalties

For offences under s. 320.14 and 320.19, the minimum penalty is a $1,000 fine, 30 days jail with a prior conviction, or 120 days jail with two or more prior convictions.


Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 320.2 any OK Symbol.png (**) X Mark Symbol.png OK Symbol.png (**) OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 320.21 any OK Symbol.png (**) X Mark Symbol.png OK Symbol.png (**) OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

[1]

For offences under s. 320.19 without any prior convictions, discharges are not available.

For offences under s. 320.19 with a prior conviction, discharges, suspended sentences, stand-alone fines and conditional sentences are not available.

Despite any mandatory minimum penalties, the judge has discretion to substitute a mandatory sentence with a curative discharge for convictions under s. 253, which includes impaired driving and operating a vehicle with BAC level over 80mg/ml.[2]

Section 731(1)(a) precludes the use of suspended sentences where there are mandatory minimums.[3]

  1. (**) Availability may vary
  2. Discharges are not available in British Columbia, Ontario, Quebec, or Newfoundland
  3. R v Berner, 2013 BCCA 188 (CanLII), per curiam, at para 36

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders

s. 320.14(1)(a) [Operation while impaired],
320.14(1)(b) [operation while over 80],
320.14(1)(c) [operation while blood drug exceeds regs re drug],
320.14(1)(d) [operation while blood drug exceeds regs re blood],
320.14(2) [Operation while impaired and causing bodily harm],
320.14(3) [Operation while impaired and causing death],

Driving Prohibition (320.24) s. 320.14(1) or 320.15(1) Min. 1 year (1st time), 2 years (2nd time), 3 years (3rd time or more)
Forfeiture of Vehicle

Offences under 320.14(4) [Operation with low blood drug concentrations] are not eligible for a DNA Order.

General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

References

Driving While Prohibited (Offence)


Driving While Prohibited
s. 320.18 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 2 years less a day
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to driving while prohibited are found in Part VIII.1 of the Criminal Code concerning "Offences Relating to Conveyances".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 320.18 [driving while prohibited] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 320.18 [driving while prohibited] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 320.18 [driving while prohibited] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 320.18 [driving while prohibited] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 320.18 [driving while prohibited] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 320.18 [driving while prohibited] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Operation while prohibited

320.18 (1) Everyone commits an offence who operates a conveyance while prohibited from doing so

(a) by an order made under this Act; or
(b) by any other form of legal restriction imposed under any other Act of Parliament or under provincial law in respect of a conviction under this Act or a discharge under section 730 [order of discharge].
Exception

(2) No person commits an offence under subsection (1) [operation while prohibited] arising out of the operation of a motor vehicle if they are registered in an alcohol ignition interlock device program established under the law of the province in which they reside and they comply with the conditions of the program.

2018, c. 21, s. 15.
[annotation(s) added]

CCC

320.19...

Punishment — dangerous operation and other offences

(5) Everyone who commits an offence under subsection 320.13(1) [dangerous operation] or 320.16(1) [failure to stop after accident], section 320.17 [flight from peace officer] or subsection 320.18(1) [operation while prohibited] is liable

(a) on conviction on indictment, to imprisonment for a term of not more than 10 years; or
(b) on summary conviction, to imprisonment for a term of not more than two years less a day.

2018, c. 21, s. 15.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving driving while prohibited under s. 320.18 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit operated a vehicle
  5. that the vehicle was a "motor vehicle"
  6. operation occurred on a "street, road, highway or other public place"
  7. the culprit's licence was suspended by a court order at the time (use certificate of suspension)
  8. time and date of the prohibition
  9. that a copy of the order was given to the culprit (or mailed to him)
  10. that the order was read to the culprit
  11. the culprit was not registered in the alcohol ignition interlock device program, or was not in compliance with the conditions of the program

Interpretation of the Offence

Once the Crown makes out the essential elements of the case, the accused should be convicted unless there is evidence showing a lack of knowledge of the suspension.[1]

There has been mixed views on whether the prosecution must prove that the accused was not registered in the provincial interlock program.[2]

The Criminal Code cannot impose criminal penalties for breaches of provincial disqualification or prohibition from driving. The penalty must arise from a criminal offence.[3]

One of the essential elements of the offence includes proof that the acute was not "registered in an alcohol ignition interlock device program" or if registered, was not in compliance with the conditions of the program.[4]

  1. R v Gale, [1995] AJ No 295(*no CanLII links)
    R v Lock, 1974 CanLII 517 (ON CA), [1974] OJ No 1938 (ONCA), per Martin JA
  2. R v Liptak, 2009 ABPC 342 (CanLII), per Fradsham J (acquitted)
    R v Whatmore, 2011 ABPC 320 (CanLII), per Rosborough J (convicted)
    R v Johnston, 2011 MBPC 64, per Carlson J (convicted)
  3. R v Boggs, 1981 CanLII 39 (SCC), [1981] 1 SCR 49, per Estey J
  4. R v Liptak, 2009 ABPC 342 (CanLII), per Fradsham J

Available Defences

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 320.18 [driving while prohibited] Summary Election 2 years less a day
s. 320.18 [driving while prohibited] Indictable Election 10 years custody

Offences under s. 320.18 [driving while prohibited] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day.

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 320.18 [driving while prohibited] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Drivers who "continuously ignore driving prohibitions imposed in the context of drinking and driving offences must be deterred by the imposition of a significant custodial term."[1] In these cases the focus is on denunciation and deterrence.[2]

  1. R v Bighead, 2013 SKCA 63 (CanLII), per Herauf JA, at para 6
  2. Bighead, ibid., at para 6

Factors

Aggravating circumstances for sentencing purposes

320.22 A court imposing a sentence for an offence under any of sections 320.13 to 320.18 [all conveyance offences] shall consider, in addition to any other aggravating circumstances, the following:

(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;
(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;
(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;
(d) the offender was being remunerated for operating the conveyance;
(e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;
(f) the offender was operating a large motor vehicle; and
(g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.

2018, c. 21, s. 15.
[annotation(s) added]

CCC

Ranges

see also: Driving While Prohibited (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 320.18
Driving Prohibition - Min. 1 year (1st time), 2 years (2nd time), 3 years (3rd time)
Forfeiture of Vehicle
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.
==Record Suspensions and Pardons== 

Convictions under s. 320.18 [driving while prohibited] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences. The exception to this would be where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

References

Impaired Driving, Over 80 and Refusal


Operation While Impaired by Alcohol or Drug
s. 320.14 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)

(* varies)
Minimum $1,000 + 12 months Driving Prohib.(first)
30 days jail + 2 to 5 years Driving Prohib. (second)
120 days + 3 or more years Driving Prohib. (three or more)
Maximum 2 years less a day or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum same as summary
Maximum 10, 14 years or life incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to Operation While Impaired by Alcohol or Drug are found in Part VIII.1 of the Criminal Code concerning "Offences Relating to Conveyances".

Section 320.14 describes 4 distinct but related offences.

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry

s. 320.14(1)(a) [peration while impaired]
s. 320.14(1)(b) [operation while over 80]
s. 320.14(1)(c) [operation while blood drug exceeds regs re drug]
s. 320.14(1)(d) [operation while blood drug exceeds regs re blood]

Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

s. 320.14(4) [operation with low blood drug concentrations]

Summary Offence(s) X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

Offences under s. 320.14(1) [operation while impaired offences] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 320.14(4) [operation with low blood drug concentrations] are straight summary conviction offence. The trial must be held in provincial court.

Before the statutory increased penalties can be applied for convictions under s. 320.14 , notice of increased penalty under s. 727 must be given.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 320.14(1)(a) [peration while impaired]

s. 320.14(1)(b) [operation while over 80]
s. 320.14(1)(c) [operation while blood drug exceeds regs re drug]
s. 320.14(1)(d) [operation while blood drug exceeds regs re blood]

OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 320.14(4) [operation with low blood drug concentrations] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 320.14(1) [operation while impaired offences] and (4) [operation with low blood drug concentrations], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 320.14 [all operation offences[1] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 320.14(1) [operation while impaired offences] OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 320.14(4) [operation with low blood drug concentrations] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Offence wording as of December 18, 2018, see History below for previous versions.

Operation while impaired

320.14 (1) Everyone commits an offence who

(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
(b) subject to subsection (5) [operation while impaired – exception for alcohol], has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;
(c) subject to subsection (6) [operation while impaired – exception for drugs], has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or
(d) subject to subsection (7) [operation while impaired – exception for alcohol and drugs], has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.

[omitted (2) and (3)]

Operation — low blood drug concentration

(4) Subject to subsection (6) [operation while impaired – exception for drugs], everyone commits an offence who has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph (1)(c) [impaired operation – within 2 hrs BAC exceeding regulations].

Exception — alcohol

(5) No person commits an offence under paragraph (1)(b) [impaired operation – within 2 hrs BAC exceeding 80] if

(a) they consumed alcohol after ceasing to operate the conveyance;
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and
(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) [proof by inference from breath samples or blood samples] or (2) [proof by inference from breath samples or blood samples] and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.
Exception — drugs

(6) No person commits an offence under paragraph (1)(c) [impaired operation – within 2 hrs BAC exceeding regulations] or subsection (4) [operation with low blood drug concentration] if

(a) they consumed the drug after ceasing to operate the conveyance; and
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance.
Exception — combination of alcohol and drug

(7) No person commits an offence under paragraph (1)(d) [impaired operation – within 2 hrs BAC and drugs exceeding regulations] if

(a) they consumed the drug or the alcohol or both after ceasing to operate the conveyance;
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance; and
(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) [proof by inference from breath samples or blood samples] or (2) [proof by inference from breath samples or blood samples] and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration less than the blood alcohol concentration established under paragraph 320.38(c) [power to make regs re blood alcohol and blood drug concentration].

2018, c. 21, s. 15.
[annotation(s) added]

CCC

Punishment

320.19 (1) Everyone who commits an offence under subsection 320.14(1) [impaired operation] or 320.15(1) [refusal to provide a sample] is liable on conviction on indictment or on summary conviction

(a) to the following minimum punishment, namely,
(i) for a first offence, a fine of $1,000,
(ii) for a second offence, imprisonment for a term of 30 days, and
(iii) for each subsequent offence, imprisonment for a term of 120 days;
(b) if the offence is prosecuted by indictment, to imprisonment for a term of not more than 10 years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.
Summary conviction

(2) Everyone who commits an offence under subsection 320.14(4) [operation with low blood drug concentration] is liable on summary conviction to a fine of not more than $1,000.

Minimum fines for high blood alcohol concentrations

(3) Despite subparagraph (1)(a)(i) [x], everyone who commits an offence under paragraph 320.14(1)(b) [impaired operation – within 2 hrs BAC exceeding 80] is liable, for a first offence, to

(a) a fine of not less than $1,500, if the person’s blood alcohol concentration is equal to or exceeds 120 mg of alcohol in 100 mL of blood but is less than 160 mg of alcohol in 100 mL of blood; and
(b) a fine of not less than $2,000, if the person’s blood alcohol concentration is equal to or exceeds 160 mg of alcohol in 100 mL of blood.

...
2018, c. 21, s. 15.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offences

Proving operating while impaired by drug or alcohol under s. 320.14(1)(a) should include:[2]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. The Culprit was operating a conveyance
  5. the culprit was impaired at the time of operation
  6. the impairment was by alcohol or drug
  7. The accused voluntarily consumed the alcohol or alcohol

Proving operating while BAC over 80 under s. 320.14(1)(b) should include:[3]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. The culprit was operating a conveyance
  5. The Accused's BAC was over 80 at the time
    1. each sample taken as soon as practicable after offence was committed
    2. first sample taken not later than two hours


Proving operation while blood drug exceeds regs re drug under s. 320.14(1)(c) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. ...

Proving operation while blood alcohol and drug exceeds regs re blood under s. 320.14(1)(d) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. ...

Proving Operation with low blood drug concentrations under s. 320.14(4) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. ...

If there is a blended voir dire Charter application on detention (e.g. sufficiency of grounds), arrest, or right to counsel, then the Crown should prove:

  1. ...


  1. Except after summary election has been made
  2. R v Andrews, 1996 ABCA 23 (CanLII), per Conrad JA (2:1), at para 31 discusses impairment
  3. Andrews, ibid., at para 31 discusses impairment

Interpretation of the Offence

Generally, the "evil" that the offence seeks to address is the combination of alcohol and motor vehicles as it tends to "breed danger".[1]

The objective of criminalizing impair driving is to "discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion, while at the same time providing a way for a person to avoid liability when there was a reason for entering the vehicle other than to set it in motion".[2]

The police do not simply have the statutory authority to investigate driver sobriety, but also have a legal duty to investigate.[3]

  1. Saunders v The Queen, 1967 CanLII 56 (SCC), [1967] SCR 284, per Fauteux J
  2. R v Whyte, 1988 CanLII 47 (SCC), [1988] 42 CCC (3d) 97, per Dickson CJ, at para 47
  3. R v Orbanski, 2005 SCC 37 (CanLII), per Charron J

Investigation

There is a two-stage process whereby an officer may demand that a driver take a roadside screening test where the officer has reasonable suspicion that the driver has alcohol in his body. The second step allows the officer to demand a breathalyzer test where the officer has reasonable grounds to believe that the driver committed an impaired driving offence.[1]

The roadside screening device is not necessary in all circumstances. Its purpose is only to assist in forming reasonable grounds, which can sometimes be obtained by other means.[2]

Investigation of Impairment/Over 80



  1. R v Flight, 2014 ABCA 185 (CanLII), per Veldhuis JA, at paras 31 to 33
  2. e.g. R v Fogarty, 2015 NSCA 6 (CanLII), per Fichaud JA - example of RPG formed without roadside screening

Mens Rea of Impaired Driving

The charge of impaired driving is a general intent offence. [1]

Part of the mens rea of the offence of impaired driving is made out by the accused's voluntary consumption of alcohol for the purpose of becoming intoxication or the accused "acting recklessly, aware that impairment could result, but persisting despite the risk". [2]

It is not necessary that the accused have actual knowledge of the effects of drugs or alcohol. Proof of recklessness is sufficient.[3]

Where the voluntary consumption of alcohol is proven, there is a rebuttable presumption the mens rea is made out. [4]

The intent to be impaired can be negated in certain circumstances where the accused's drink may have been drugged.[5]

  1. R v Charles, 2013 BCSC 23 (CanLII), per Sigurdson J, at para 40
  2. R v Mavin, 1997 CanLII 14625 (NL CA), (1997), 154 Nfld. & P.E.I.R. 242, per Marshall JA, at paras 37 to 39
    Charles, supra, at para 41
  3. R v Pomeroy, 2007 BCSC 142 (CanLII), per Romilly J
    R v Honish, 1993 CanLII 156 (SCC), [1993] 1 SCR 458, per Lamer CJ
  4. R v King, 1962 CanLII 16 (SCC), [1962] SCR 746, per Ritchie J, at p. 763
  5. e.g. R v Sitarz, 2012 ONCJ 561 (CanLII), per Caldwell J

Motor Vehicle

Under s. 2, "motor vehicle" is defined as "a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment;" Certain vehicles, such as scooters, are powered by either pedal or motor, the crown will generally have to prove that the vehicle was being operated by motor power at the time of the offence.[1]

A vehicle that is inoperable, such as were it is out of gas, will still be a motor vehicle. It is not relevant whether the vehicle is functioning or operable.[2]

An e-bike that is not being pedaled will be a "motor vehicle" under s. 2.[3]

  1. see for example R v Rookes, 2012 SKPC 80 (CanLII), per Hinds J
  2. R v Lloyd, 1988 CanLII 5326 (SK CA), [1988] SJ No 216 (SKCA), per Wakeling JA
    R v Saunders, 1967 CanLII 56 (SCC), [1967] SCR 284, per Fauteux J, at p. 290
  3. R v Clifford, 2014 ONSC 2388 (CanLII), per Koke J
    R v Kulbacki, 2012 ONCJ 532 (CanLII), per Radley-Walters J
    cf. Rookes, supra

Issues

Prior to December 2018

Kienapple Principle

Kienapple does not prevent a conviction for dangerous driving causing death or bodily harm and impaired driving causing bodily harm or death. The first offence concerns the ability to operate a vehicle while the second offence focuses on the manner in which the vehicle was operated.[1]

The offence of impaired care and control of a motor vehicle is an included offence of impaired operation of a motor vehicle.[2]

  1. R v Ramage, 2010 ONCA 488 (CanLII), per Doherty JA, at paras 59 to 66
  2. R v Pawluk, 2017 ONCA 863 (CanLII), per Paciocco JA

Available Defences

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 320.14 and 320.19 Summary Election 2 years less a day incarceration
s. 320.14 and 320.19 Indictable Election 10 years incarceration

Offences under s. 320.14 and 320.19 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 10 years less a day jail.

Minimum Penalties

For offences under s. 320.14 and 320.19, the minimum penalty is a $1,000 fine, 30 days jail with a prior conviction, or 120 days jail with two or more prior convictions.

There is some suggestion that a jail sentence can substitute for a fine, where there is no prior record.[1]

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 320.19 any OK Symbol.png (**) X Mark Symbol.png OK Symbol.png (**) OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

[2]

For offences under s. 320.19 without any prior convictions, discharges are not available.

For offences under s. 320.19 with a prior conviction, discharges, suspended sentences, stand-alone fines and conditional sentences are not available.

Despite any mandatory minimum penalties, the judge has discretion to substitute a mandatory sentence with a curative discharge for convictions under s. 253, which includes impaired driving and operating a vehicle with BAC level over 80mg/ml.[3]

Section 731(1)(a) precludes the use of suspended sentences where there are mandatory minimums.[4]

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Earlier and subsequent offences

320.26 In determining, for the purpose of imposing a sentence for an offence under subsection 320.14(1) [impaired operation] or 320.15(1) [refusal to provide a sample], whether the offence is a second, third or subsequent offence, any of the following offences for which the offender was previously convicted is considered to be an earlier offence:

(a) an offence under any of subsections 320.14(1) to (3) [x] or section 320.15 [refusal to provide a sample]; or
(b) an offence under any of sections 253 [operation while impaired], 254 [taking samples of breath/blood] and 255 [x], as those sections read from time to time before the day on which this section comes into force.

2018, c. 21, s. 15.
[annotation(s) added]

CCC

  1. R v Hatcher, 2000 NFCA 38 (CanLII), per Wells CJ (3:0), at para 19
  2. (**) Availability may vary
  3. Discharges are not available in British Columbia, Ontario, Quebec, or Newfoundland
  4. R v Berner, 2013 BCCA 188 (CanLII), per curiam, at para 36

Principles

Impaired driving is the leading criminal cause of death and injury in Canada.[1]

There is a "pressing" need to address the problems that impaired driving creates.[2]

Impaired driving causes "the most significant social loss to the country".[3] Every impaired driver is a "potential killer".[4] Every years impaired driving leaves a trail of "death, injury, heartbreak and destruction".[5]

The predominant objectives to be considered is general deterrence and denunciation.[6]

The lack of bodily harm or death is not necessarily eliminate the need to protect the public.[7] The Court can consider the risk of potential harm from the offender's conduct.[8]

Deterrence and denunciation are especially important objectives when bodily harm is caused to another person.[9]

  1. Government of Canada, Health Canada “Backgrounder: Changes to Impaired Driving Laws” [3]
  2. R v Ladouceur, [4] , [1990] 1 SCR 12, at para 42(complete citation pending)
  3. e.g. R v Beaudry, 2007 SCC 5 (CanLII), [2007] 1 SCR 190, per Charron J, at para 42
    R v Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 SCR 254 ("a far greater impact on Canadian society than any other crime")
  4. R v Lahiry, 2011 ONSC 6780 (CanLII), per Code J, at para 89
  5. Bernshaw, supra, per Cory J, at para 16 ("Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.")
  6. R v Clouthier, 2016 ONCA 197 (CanLII), per Watt JA, at para 54
    R v Squires, 1995 CanLII 9848 (NL CA), [1995] N.J. No. 157 (C.A.), per Gushue JA, at p. 5
    R v McVeigh, 1985 CanLII 115 (ON CA), per MacKinnon CJ, at p. 150
    R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 S.C.R. 61, per Lamer CJ, at para 129
    R v Lépine, 2007 QCCA 70 (CanLII)(complete citation pending), at para 21
    R v Brutus, 2009 QCCA 1382 (CanLII), per curiam, at para 18
    R v Stimson, 2011 ABCA 59 (CanLII), 499 A.R. 185, per curiam, at para 21
    R v McIlwrick, 2008 ABQB 724 (CanLII), 461 A.R. 16, per Ross J, at para 69
    R v Junkert, 2010 ONCA 549 (CanLII), 103 O.R. (3d) 284, per O'Connor ACJ, at paras 46 to 47
    R v Ruizfuentes, 2010 MBCA 90 (CanLII), 258 Man. R. (2d) 220, per Chartier JA, at para 36
    R v Lacasse, [2015] 3 SCR 1089, 2015 SCC 64 (CanLII), per Wagner J, at para 5 ("In the context of offences such as the ones in the case at bar, namely impaired driving causing either bodily harm or death, courts from various parts of the country have held that the objectives of deterrence and denunciation must be emphasized in order to convey society’s condemnation")
  7. R v Riggs, 2011 NLTD 26 (CanLII), per Handrigan JA, at para 37
    R v Jacobs, 1982 ABCA 204 (CanLII), (1982), 70 CCC (2d) 569 (Alta. C.A.), per Laycraft JA (3:0)
    R v Connolly, 2002 CanLII 41923 (NL PC), [2002] N.J. No. 40 (P.C.), per Gorman J, at para 18
    R v Alexson (1987), 1987 CanLII 4900 (SK CA), 7 M.V.R. (2d) 95 (Sask. C.A.), per Tallis JA (3:0)
  8. R v Woodward, 1993 CanLII 8183 (NL CA), (1993), 108 Nfld & PEIR 240 (N.L.C.A.), per Steele JA
  9. R v Clouthier, at para 54 ("The predominant sentencing objectives in determining a fit sentence for alcohol-driving offences, especially those in which bodily harm is caused to a fellow human being, are general deterrence and denunciation")
    R v Junkert, 2010 ONCA 549 (CanLII), 103 O.R. (3d) 284, per O'Connor ACJ (3:0), at paras 42 and 47
    R v Biancofiore (1997), 1997 CanLII 3420 (ON CA), 35 O.R. (3d) 782 (C.A.), per Rosenberg JA (3:0), at pp. 790-92

Factors

Aggravating circumstances for sentencing purposes

320.22 A court imposing a sentence for an offence under any of sections 320.13 to 320.18 [all conveyance offences] shall consider, in addition to any other aggravating circumstances, the following:

(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;
(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;
(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;
(d) the offender was being remunerated for operating the conveyance;
(e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;
(f) the offender was operating a large motor vehicle; and
(g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.

2018, c. 21, s. 15.

CCC

Aggravating factors:

  • BAC reading, esp. if exceeding 160mg (s. 255.1)
  • other signs of a high degree of impairment
  • injuries to other persons
  • prior alcohol-related convictions, including dates

See also: R v Musseau, 2010 CanLII 2539 (NL PC), [2010] N.J. No. 25 (P.C.), per Gorman J


Ranges

see also: Impaired Driving, Over 80 and Refusal (Sentencing Cases)

Generally, a custodial sentence is required when bodily harm is caused.[1]

In Manitoba, impaired causing bodily harm will typically involve a range of sentence from 3 to 18 months.[2]

In Nova Scotia, the range of sentence for impaired driving causing death with no prior record is 2 to 5 years.[3]

Persistent or Repeat Offenders

The protection of the public is paramount in sentencing "offenders who persistently drive motor vehicles when they are impaired or disqualified."[4]

  1. R v Clouthier, 2016 ONCA 197 (CanLII), per Watt JA, at para 55
    R v Biancofiore (1997), 35 O.R. (3d) 782 (C.A.), 1997 CanLII 3420 (ON CA), per Rosenberg JA, at p. 791
  2. R v MacDonald, 1999 CanLII 5083 (MB CA), (1999), 139 CCC (3d) 524 (Man. C.A.), per Twaddle JA (2:1)
  3. R v Morine, 2011 NSSC 46 (CanLII), per Rosinski J, at para 79
  4. R v Clarke, 2013 SKCA 130 (CanLII), per Jackson JA (3:0), at para 10

Curative Discharges

The only exception to the mandatory minimums is where a curative discharge is ordered by the court (only available in certain provinces).

Delay of sentencing

320.23 (1) The court may, with the consent of the prosecutor and the offender, and after considering the interests of justice, delay sentencing of an offender who has been found guilty of an offence under subsection 320.14(1) [impaired operation] or 320.15(1) [refusal to provide a sample] to allow the offender to attend a treatment program approved by the province in which the offender resides. If the court delays sentencing, it shall make an order prohibiting the offender from operating, before sentencing, the type of conveyance in question, in which case subsections 320.24(6) to (9) apply.

Exception to minimum punishment

(2) If the offender successfully completes the treatment program, the court is not required to impose the minimum punishment under section 320.19 or to make a prohibition order under section 320.24 [mandatory prohibition order], but it shall not direct a discharge under section 730 [order of discharge].

2018, c. 21, s. 15
[annotation(s) added]

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders

s. 320.14(1)(a) [Operation while impaired],
320.14(1)(b) [operation while over 80],
320.14(1)(c) [operation while blood drug exceeds regs re drug],
320.14(1)(d) [operation while blood drug exceeds regs re blood],

Driving Prohibition (320.24) s. 320.14(1) or 320.15(1) Min. 1 year (1st time), 2 years (2nd time), 3 years (3rd time or more)
Forfeiture of Vehicle

Offences under 320.14(4) [Operation with low blood drug concentrations] are not eligible for a DNA Order.

General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

References

Refusal (Offence)


Refusal
s. 320.15 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 2 years less a day
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to refusal are found in Part VIII.1 of the Criminal Code concerning "Offences Relating to Conveyances".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 320.15 [refusal] Hybrid Offence(s) Yes OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 320.15 [refusal] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release By
Peace Officer
On Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a release order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 320.15 [refusal] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 320.15 [refusal] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 320.15 [refusal] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 320.15 [refusal] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Failure or refusal to comply with demand

320.15 (1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 [testing for presence of alcohol or drug] or 320.28 [sample and evalution of breath and/or blood].

Accident resulting in bodily harm

(2) Everyone commits an offence who commits an offence under subsection (1) [refusal to provide a sample] and who, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in bodily harm to another person.

Accident resulting in death

(3) Everyone commits an offence who commits an offence under subsection (1) [refusal to provide a sample] and who, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in the death of another person or in bodily harm to another person whose death ensues.

Only one conviction

(4) A person who is convicted of an offence under this section is not to be convicted of another offence under this section with respect to the same transaction.

2018, c. 21, s. 15.
[annotation(s) added]

CCC

Punishment

320.19 (1) Everyone who commits an offence under subsection 320.14(1) [impaired operation] or 320.15(1) [refusal to provide a sample] is liable on conviction on indictment or on summary conviction

(a) to the following minimum punishment, namely,
(i) for a first offence, a fine of $1,000,
(ii) for a second offence, imprisonment for a term of 30 days, and
(iii) for each subsequent offence, imprisonment for a term of 120 days;
(b) if the offence is prosecuted by indictment, to imprisonment for a term of not more than 10 years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.

...

Minimum fine — subsection 320.15(1)

(4) Despite subparagraph (1)(a)(i) [x], everyone who commits an offence under subsection 320.15(1) [refusal to provide a sample] is liable, for a first offence, to a fine of not less than $2,000.

...
2018, c. 21, s. 15.
[annotation(s) added]

CCC

Punishment in case of bodily harm

320.2 Everyone who commits an offence under subsection 320.13(2) [dangerous operation causing bodily harm], 320.14(2) [impaired operation causing bodily harm], 320.15(2) [refusal where collision results in bodily harm] or 320.16(2) [fail to stop at accident resulting in bodily harm] is liable on conviction on indictment or on summary conviction

(a) to the following minimum punishment, namely,
(i) for a first offence, a fine of $1,000,
(ii) for a second offence, imprisonment for a term of 30 days, and
(iii) for each subsequent offence, imprisonment for a term of 120 days;
(b) if the offence is prosecuted by indictment, to imprisonment for a term of not more than 14 years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.

2018, c. 21, s. 15.
[annotation(s) added]

CCC

Punishment in case of death

320.21 Everyone who commits an offence under subsection 320.13(3) [dangerous operation causing death], 320.14(3) [impaired operation causing death], 320.15(3) [refusal where collision results in death] or 320.16(3) [fail to stop at accident resulting in death] is liable on conviction on indictment to imprisonment for life and to a minimum punishment of,

(a) for a first offence, a fine of $1,000;
(b) for a second offence, imprisonment for a term of 30 days; and
(c) for each subsequent offence, imprisonment for a term of 120 days.

2018, c. 21, s. 15.
[annotation(s) added]

CCC

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving driving while prohibited under s. 320.15 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)

Interpretation of the Offence

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 320.15 [refusal] Summary Election Two years less a day
s. 320.15 [refusal] Indictable Election 10 years incarceration

Offences under s. 320.15 [refusal] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is Two years less a day.

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 320.15 [refusal] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Earlier and subsequent offences

320.26 In determining, for the purpose of imposing a sentence for an offence under subsection 320.14(1) [impaired operation] or 320.15(1) [refusal to provide a sample], whether the offence is a second, third or subsequent offence, any of the following offences for which the offender was previously convicted is considered to be an earlier offence:

(a) an offence under any of subsections 320.14(1) to (3) [x] or section 320.15 [refusal to provide a sample]; or
(b) an offence under any of sections 253 [operation while impaired], 254 [taking samples of breath/blood] and 255 [x], as those sections read from time to time before the day on which this section comes into force.

2018, c. 21, s. 15.
[annotation(s) added]

CCC

Principles

Factors

Aggravating circumstances for sentencing purposes

320.22 A court imposing a sentence for an offence under any of sections 320.13 to 320.18 [all conveyance offences] shall consider, in addition to any other aggravating circumstances, the following:

(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;
(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;
(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;
(d) the offender was being remunerated for operating the conveyance;
(e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;
(f) the offender was operating a large motor vehicle; and
(g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.

2018, c. 21, s. 15.

CCC

Ranges

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.


History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

References

Refusal to Give a Sample (Until December 13, 2018)

General Principles

The offence under 254(5) states:

254
...

Failure or refusal to comply with demand

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
...
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

CCC

This is a single offence that can be committed in several different ways.[1]

s.258
...

Evidence of failure to give sample

(2) Unless a person is required to give a sample of a bodily substance under paragraph 254(2)(b) [roadside screening test] or subsection 254(3) [taking samples of breath or blood within 3 hrs], (3.3) [demand breath sample outside 3 hours] or (3.4) [demand urine or blood sample], evidence that they failed or refused to give a sample for analysis for the purposes of this section or that a sample was not taken is not admissible and the failure, refusal or fact that a sample was not taken shall not be the subject of comment by any person in the proceedings.

Evidence of failure to comply with demand

(3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(1)(a) [impaired operation] or in any proceedings under subsection 255(2) [impaired driving causing bodily harm] or (3) [impaired driving causing death], evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 254 [taking samples of breath/blood] is admissible and the court may draw an inference adverse to the accused from that evidence.
...
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.
[annotation(s) added]

CCC

The offence can be committed in two ways, either by refusing or failing to comply with the demand.[2]

There remains conflicting case law on whether the offence is a specific or general intent offence.[3]However, the more recent case law has largely fallen on the side of refusal being a general intent offence and so requires no more than a recklessness or knowledge of the mens rea.[4]

  1. R v Angrignon (2002), 2002 SKQB 477 (CanLII), 32 M.V.R. (4th) 196 (Sask. Q.B.), per Allbright J, at p. 199: ("...s. 254(5) creates the single offence of non-compliance which may be committed either by failure or refusal, and the subsection creates only one offence, the gravamen of which is non-compliance with a demand under the subsection.")
  2. R v MacNeil (1978) 41 CCC (2d) 46 (ONCA), 1978 CanLII 2464 (ON CA), per Dubin JA, at paras 6 to 7
  3. R v Butler, 2013 ONSC 2403 (CanLII), per Durno J, at para 42
    Specific intent cases:
    R v Lewko, 2002 SKCA 121 (CanLII), (2002), 169 CCC (3d) 359 (Sask. C.A.), per Bayda CJ
    R v Sullivan, [2001] OJ No 2799 (C.J.)(*no CanLII links)
  4. R v Buffalo, [2002] AJ 1641 (QB)(*no CanLII links)
    R v White, 2005 NSCA 32 (CanLII), [2005] NSJ 62 (NSCA), per Chipman JA
    R v Warnica (1980) 56 CCC (2d) 100 (NSCA), 1980 CanLII 2897 (NS CA), per MacKeigan CJ
    R v Porter, 2012 ONSC 3504 (CanLII), per Code J, at para 34
    Butler, supra, at paras 43 to 45

Valid Demand to Comply

See also Breath Sample Demand.

There is no requirement to have evidence as to the extent of chances available to a person who changes their mind.[1] Moreover, where the refusal is unequivocal there is no obligation for a "last chance" warning.[2]

There is no requirement that the police officer explain all the consequences of non-compliance to a valid demand.[3]

It is unclear whether the authority to make a demand under s. 254(3) includes the authority to have the accused taken to the location of the device or whether the accused must choose to accompany them.[4] However, a failure or refusal to accompany the officer to the device may not amount to a full refusal.[5]

  1. R v Kitchener, 2012 ONSC 4754 (CanLII), per Di Tomaso J, at para 23
    R v McNab, [2001] OJ No 4738 (S.C.J)(*no CanLII links)
    R v Gutierrez, [2001] OJ No 3659 (S.C.J.)(*no CanLII links)
  2. Kitchener, supra, at para 31 citing R v Woods, 2005 SCC 42 (CanLII), per Fish J at 45
  3. R v Danychuk, [2004] OJ No 615 (C.A.), 2004 CanLII 12975 (ON CA), per Blair JA, at para 2
  4. see R v Mandryk, 2012 ONSC 3964 (CanLII), per Code J
  5. , ibid.

Refusal to Comply

The refusal to comply with the demand for a breath sample must be unequivocal.[1]

In a refusal case (as opposed to a "failing" case), it is irrelevant whether or not the breathalyzer was functioning properly. [2] However, in a fail case, it may be a valid defence to show that the device or instrument was not properly functioning.[3]

It is possible to refuse by body language such as turning away and closing eyes.[4] Or refuse by silence.[5]

Evidence should show that the device was working properly. This should include evidence that the device had been previously tested including the mouthpiece for obstructions. [6] }} A refusal which is equivocal and closely followed by an offer, then the offence is not made out.[7]

It has been found that a reasonable excuse is not made out on the basis of officially induced error from an accused accepting the bad advice from duty counsel to refuse the breathalyser.[8]

In assessing the totality of the circumstances, the judge may consider the evidence of the accused's silence in response to a lawful demand.[9]

An unlawful refusal of the screening device will still amount to an offence even if the device is not at the scene.[10]

  1. R v Desharnais, 1988 ABCA 167 (CanLII), per curiam
    R v Cunningham (1989), 97 A.R. 81 (C.A.), 1989 ABCA 163 (CanLII), per Côté JA (2:1)
  2. R v Ealey, (1992), 101 Sask. R. 199 (Sask. Q. B.), 1992 CanLII 7862 (SK QB), per Hunter J
  3. R v Kosa (1992) 42 MVR (2d) 290 (ONCA)(*no CanLII links)
    cf. R v Young [2007] OJ 1776(*no CanLII links)
  4. R v Page [1982] AJ 920, Page, 1982 ABCA 230 (CanLII), per Harradence JA
  5. R v Lawson, [2011] BCJ 1262 (SC), 2011 BCSC 876 (CanLII), per Adair J
  6. see R v Dolphin, 2004 MBQB 252 (CanLII), per Scurfield J, at para 12 – police failed to give evidence of the testing of the machine
  7. R v Sagh (1981), 62 CCC (3rd) 521(Alta. C.A.), 1981 CanLII 1210 (AB QB), per Wachowich J
  8. R v Hizsa, 2011 ABPC 358 (CanLII), per Fradsham J, at to 41 paras 34 to 41{{{3}}}
  9. Lawson, supra
  10. R v Degiorgio, 2011 ONCA 527 (CanLII), per LaForme JA

Failure to Comply

A failure to comply with the demand arises where a suspect makes either genuine or faked attempts at providing a sample.

Feigning or Faking Attempts

When an accused may be feigning his attempts to provide a sample, the "totality of the circumstances including any explanation advanced at the time of the attempt or in court must be considered."[1]

An intention to fake a sample must be proven by the Crown beyond a reasonable doubt.[2]

  1. R v Butler, 2013 ONSC 2403 (CanLII), per Durno J, at para 41
    R v Bijelic, 2008 CanLII 17564 (ON SC), [2008] OJ No 1911 (S.C.J.), per Hill J, at para 30
    R v Porter, 2012 ONSC 3504 (CanLII), [2012] OJ No 2841 (S.C.J.), per Code J, at paras 30 to 31
  2. R v Sceviour, 2010 NLCA 47 (CanLII), per Rowe JA, at para 14

Change of Mind

A refusal almost immediately followed by a change of heart may not amount to a full refusal.[1]

A shorter turn around time of 5 minutes can be seen as equivocal.[2]

Where there is a full refusal and after 15 minutes an offer to take the test, then the offence is made out. The two events are entirely separate.[3]

Where there is an unequivocal refusal, there is no requirement on the officer to offer a second chance at giving the ASD test.[4]

  1. R v Cunningham, 1989 ABCA 163 (CanLII), (1989), 49 CCC (3rd) 521, per Côté JA (2:1)
  2. R v Hiebert, 2012 MBPC 5 (CanLI), per Sandhu J
  3. R v Butt (1983), 44 Nfld. & PEIR 297(*no CanLII links)
  4. R v Komenda, 2012 BCSC 536 (CanLII) citing numerous cases on the issue
    cf. R v Domik (1979), 2 M.V.R. 301 (Ont. H.Ct.J.), aff’d [1980] OJ No 710 (CA)(*no CanLII links)

Reasonable Excuse

See also: Reasonable Excuse

Once the crown proves the essential elements beyond a reasonable doubt, the burden shifts to the accused to establish on a balance of probabilities that there is a reasonable excuse for failing to provide a breath sample.[1]

It is of some debate whether an explanation for not providing a sample is a reasonable excuse or a failure to prove the mens rea.[2]

The burden of proving there was no reasonable excuse is simply on raising a doubt.[3]

For a reasonable excuse to exist there must be something in the circumstances that renders "compliance with the demand either extremely difficult or likely to involve a substantial risk to the health of the person on whom the demand has been made".[4]

An offer to provide a sample through other means such as a blood sample is not sufficient to be a “reasonable excuse”.[5]

A person who refuses the breathalyser on the basis of advice from the duty counsel phone call cannot amount to a reasonable excuse. [6]

An accused may be permitted to refuse to provide a sample where the officer has shown some "malice to the person whose breath was to be tested or if he had threatened some unfairness or illegality". [7] The basis of the belief of the threat must be reasonable.[8]

Reasonable excuses have been found when:

  • The technician had dirty hands and refused to clean them prior to administering the test.[9]
  • the accused had been previously assaulted by police and was reasonably fearful of further violence[10]
  • rough handling by police[11]
  • reasonable fear that an unsatisfactory result would incur violence by police[12]

Reasonable doubt about intention to refuse to provide a sample for the screening device has been found on the basis of the accused nervousness and anxiety.[13]

An honestly held religious belief cannot be used as a reasonable excuse.[14]

Reliance on poor legal advice is generally not a defence of officially induced error.[15]

  1. R v Butler, 2013 ONSC 2403 (CanLII), per Durno J, at para 39
    R v Moser, 1992 CanLII 2839 (ON CA), (1992), 7 O.R. (3d) 737 (C.A.), per Brooke JA, at 18 paras , 18{{{3}}} and 42
    R v Rai, 2005 CanLII 14143 (ON SC), (2005), 17 M.V.R. (5th) 296 (S.C.J.), per Hill J
    R v Malicia, [2004] OJ No 6016 (S.C.J.)(*no CanLII links)
  2. R v Westerman, 2012 ONCJ 9 (CanLII), per Durno J, at para 16
    Butler, supra, at para 42
  3. R v Goleski, 2011 BCSC 911 (CanLII), per Leask J appealed to 2014 BCCA 80 (CanLII), per Frankel JA
  4. R v Davidson, 2003 SKPC 101 (CanLII), per Halderman J, at para 15
    R v Nadeau (1974) 19 CCC (2d) 199 (N.B.C.A.), 1974 CanLII 1538 (NB CA), per Hughes CJ, at p. 201
  5. R v Taylor, 1993 CanLII 1603 (BC CA), (1993) BCJ No. 365 (CA), per Southin JA
    R v Weir, 1993 CanLII 3153 (NS CA), (1993) NSJ No. 58 (CA), per Freeman JA
  6. R v Hizsa, 2011 ABPC 358 (CanLII), per Fradsham J at 34-41
  7. R v Dawson, 1996 CanLII 11036 (NL CA), per Cameron JA
  8. Dawson, ibid., at para 12
  9. R v Prout, 1971 CanLII 391 (ON SC), (1971), 5 CCC (2d) 272 (Ont. Co. Ct.), per Jacob J
  10. R v Burkitt, [1972] 6 W.W.R. 251 (Man. Co. Ct.) (*no CanLII links)
  11. R v Pye (1993), 46 M.V.R.(2d) 181 (Alta. Q.B.)(*no CanLII links)
    R v Wall (1982), 17 M.V.R. 87 (Nfld. Dist. Ct.)(*no CanLII links)
  12. R v Gorrill (1980), 39 N.S.R.(2d) 533; 71 A.P.R. 533; 7 M.V.R. 141 (Co. Ct.)(*no CanLII links)
  13. R v Schwartz, 2009 ABPC 120 (CanLII), per Malin J
  14. R v Chomokowski (1973), 11 CCC (2d) 562, [1973] 5 W.W.R.184 (Man. C.A.), 1973 CanLII 1489 (MB CA), per Hall JA
  15. R v Pea, 2008 CanLII 89824 (ONCA), per Gillese JA
    R v Suter, 2015 ABPC 269 (CanLII), per Anderson J

Other Issues

Where the suspect offers to give a blood sample instead of giving a breath sample in the ASD or breathalyser, the officer is at liberty to seek a voluntary blood sample. The officer may only demand a blood sample in place of a breathalyser sample if the officer believes that the "suspect is incapable of providing breath samples".

The officer may also demand that that the suspect perform a physical coordination test in place of a roadside demand (s. 254(2)(a)).

Operation, Care or Control of a Vehicle (Until December 13, 2018)

General Principles

The offence of having care or control of a vehicle under s. 253(1) is considered a separate offence from the offence of driving while impaired under the same section.[1]

  1. R v Toews, 1985 CanLII 46 (SCC), [1985] 2 SCR 119, per McIntyre J, at para 9 ("As I have noted earlier, the offence of having care or control of a motor vehicle while the ability to drive is impaired by alcohol or a drug is a separate offence from driving while the ability is impaired.")

Operation

Section 214 definition of "operate" was repealed by 2018, c. 21, s. 13. It previously read:

Definitions

...
“operate”

(a) means, in respect of a motor vehicle, to drive the vehicle,
(b) means, in respect of railway equipment, to participate in the direct control of its motion, whether
(i) as a member of the crew of the equipment,
(ii) as a person who, by remote control, acts in lieu of such crew, or
(iii) as other than a member or person described in subparagraphs (i) and (ii), and
(c) includes, in respect of a vessel or an aircraft, to navigate the vessel or aircraft;


...
R.S., 1985, c. C-46, s. 214; R.S., 1985, c. 27 (1st Supp.), s. 33, c. 32 (4th Supp.), s. 56; 2002, c. 13, s. 9.

CCC

The definition only applies to Part VIII of the Code, which includes offences that relate to motor vehicles.

A vehicle which is completely unable to be moved in any direction cannot be operated within the meaning of s. 214.[1] However, a vehicle that is stuck and can only move a matter of 1 or 2 feet is still in operation.[2]

A passenger who grabs the steering wheel and controls the direction of the vehicle operates it.[3]

The use of the steering wheel of a vehicle that is being towed constitutes operation.[4]

  1. R v Danji, 2005 ONCJ 70 (CanLII), [2005] OJ No 917 (ONCJ), per Feldman J
  2. R v Bui, 2006 ONCJ 265 (CanLII), [2006] OJ No 2869 (ONCJ), per Kenkel J car in snowbank can only move 1-2 feet
  3. R v Belanger, [1970] SCR 567, 1970 CanLII 222 (SCC), [1970] RCS 567, per Ritchie J
  4. R v Morton, [1970] BCJ No 532 (BCPC)(*no CanLII links)

Care and Control

An essential element to proving an offence under s. 253 or 254, the Crown must prove that the accused was in "care and control" of the motor vehicle at the relevant time.[1]

Care and control of a vehicle is criminalized on the basis that an impaired person has a recognized diminished capacity to make safe decisions and may attempt to drive, putting others at risk.[2]

Care and control can be proven by showing actual use of the vehicle or actions which present a risk of putting the car in motion.[3]

"Care or control" under s. 253(1) generally requires:[4]

  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; and,
  3. in circumstances that create a realistic risk of danger to persons or property.

Section 258(1)(a) creates a presumption of care and control where the accused is found in the driver's seat.[5]

Proof of care and control absent the presumption under s. 258(1)(a) requires:[6]

  1. an act involving the use of the motor vehicle, its fittings or equipment, or a course of conduct associated with the vehicle
  2. an element of risk of setting the vehicle in motion, either intentionally or unintentionally; and,
  3. element of dangerousness arising from the risk of setting the vehicle in motion

Dangers include the risk of the vehicle being set in motion unintentionally, negligently, or intentionally where the driver changes his or her mind not to drive.[7]Where an accused was found in a stationary vehicle, it is not necessary for the Crown to prove that the accused intended to set the vehicle in motion.[8]

The Crown, however, must establish that the accused performed "some act or series of acts involving the use of the car, its fittings or equipment...whereby the vehicle may unintentionally be set in motion creating the danger the section is designed to prevent.”[9] The key to the determination is the risk of setting the vehicle in motion and become dangerous.[10]

Where it is less than actual driving, to establish "care and control" it must be determined whether, as part of the actus reus, the accused's use of a motor vehicle or its "fittings and equipment" or the accused's conduct would involve the risk of putting the vehicle into motion and become dangerous.[11]

The determination is highly contextual and so the "[c]ircumstances in which acts of care and control may be found will vary widely."[12]

Risk of Danger

Danger is an essential part of care and control. Even where the accused did not specifically intend to put the vehicle in motion, where some operation of the vehicle creates the risk that the vehicle will be set in motion, even if by accident, will satisfy the requirements of care and control.[13]

"Risk of danger" requires proof that the risk is "realistic" and "not just theoretically possible".[14]

Operations of Fittings and Equipment

Many acts that are less than driving can constitute care and control.[15]

Not all operation of the "fittings and equipment" will result in care and control.[16] However, certain acts such as turning on the ignition will "almost always" be characterized as an act of care and control.[17]

  1. R v Penno, 1990 CanLII 88 (SCC), [1990] 2 SCR 865, page 124
  2. R v Coleman, 2012 SKCA 65 (CanLII), per Richards JA
    R v Pelletier, (2000), 6 MVR (4th) 152; [2000] OJ 848 (CA), 2000 CanLII 4181 (ON CA), per curiam
  3. The Queen v Toews, 1985 CanLII 46, [1985] 2 SCR 119, per McIntyre J, at para 10
    R v Vansickle, [1988] OJ No 2935 (*no CanLII links)
  4. R v Boudreault, 2012 SCC 56 (CanLII), per Fish J
  5. see below for details
  6. R v Smith, 2005 NSSC 191 (CanLII), [2005] NSJ No. 307 (N.S.S.C.), per Warner J
  7. R v Ferguson, 2005 CanLII 1060 (ON SC), [2005] OJ No 182 (S.C.J.), per Thomas J
    R v McLachlan, 2009 BCSC 431 (CanLII), 242 CCC (3d) 362 (BCSC), per Ker J
  8. Ford, supra, p 399
    R v Buckingham, 2007 SKCA 32 (CanLII), at para 11 (“An intention to drive is not an essential element of the offence.”)
  9. Ford, supra, p 399
  10. R v Barlow, 2006 SKQB 220 (CanLII), per Allbright J, at paras 32, 33
  11. See Ford, supra
    R v Toews, 1985 CanLII 46 (SCC), [1985] 2 SCR 119, per McIntyre J
    Buckingham, supra
    see also: R v Wren, 2000 CanLII 5674 (ON CA), (2000), 144 CCC (3d) 374 (Ont. C.A.), per Feldman JA R v Anderson, 2012 SKCA 37 (CanLII), [2012] S.J. No. 184, per Caldwell JA, at para 5
  12. Toews, supra, at p. 220
  13. R v Burbella, 2002 MBCA 106 (CanLII), (2002) 167 CCC (3d) 495, per Scott CJ
    R v Decker, 2002 NFCA 9 (CanLII), (2002) 162 CCC (3d) 503 (NLCA), per Cameron JA
  14. Boudreault, supra, at paras 34, 35
  15. Ford, supra
    Buckingham, supra, at para 11
  16. R v Hannemann, 2001 CanLII 28423 (ON SC), per Hill J
  17. Hannemann, ibid., at para 51

Presumption in Driver's Seat

Care and control can be proven through the presumption created by establishing that a person was in the driver's seat under s. 258(1)(a).[1]

Proceedings under section 255

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;

...
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.

CCC

The presumption is engaged at the time the driver's seat was first occupied, not simply when the accused was observed by police.[2] This presumption can be rebutted by calling evidence that the driver's seat was not occupied for the purpose of operating the vehicle on the balance of probabilities.[3]

The purpose of the presumption is to "discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion" while still excluding those who enter a car for reasons other than to set the car in motion.[4]

The presumption will be in effect even where the driver's seat has been fully reclined.[5]

The presumption will not be available where the accused is sleeping across the front seats.[6]

Where the presumption is engaged, it is not necessary to establish a risk was set out in Wren.[7] It is not relevant whether the vehicle is immobile.[8]

  1. R v Toews, [1985] 2 SCR 119, 1985 CanLII 46, per McIntyre J
    R v Ford, [1982] 1 SCR 231, 1982 CanLII 16, per Ritchie J
    R v Penno, [1990] 2 SCR 865, 1990 CanLII 88
  2. R v Hatfield, 1997 CanLII 2938 (ON CA)
  3. R v Whyte, [1988] 2 SCR 3, 1988 CanLII 47, per Dickson CJ
    R v Miller, 2004 CanLII 24819 (ON CA), [2004] O.J. No.1464 (C.A.), per curiam aff’g [2002] OJ No 4896 (S.C.J.)
    R v Saulteaux, 2000 SKQB 470 (CanLII), [2000] S.J. No. 633 (Q.B.), per MacLeod J
  4. Whyte, ibid., at para 47
  5. R v Hatfield, 1997 CanLII 2938 (ON CA), [1997] OJ No 1327, per Goudge JA
  6. Toews, supra
    R v Volk, 1985 CanLII 2713 (SK QB), [1985] SJ No 842, per McIntyre J
  7. R v Hayes, 2008 NSCA 23 (CanLII), per Hamilton JA, at para 29
    R v Mallery, 2008 NBCA 18 (CanLII), per Robertson JA, at para 46
    R v Ferguson, 2005 CanLII 1060 (ON SC), [2005] 15 MVR (5th) 74 (ONSC), per Thomas J, at para 13
    R v Smith (2004) 3 MVR (5th) 101 (ONSC), 2004 CanLII 34316 (ON SC), per Thomas J, at paras 20, 25
    R v Mark, [2002] OJ No 870 (ONSC)(*no CanLII links)
  8. R v Amyotte, 2009 CanLII 66900 (ON SC), [2009] OJ 5122 (ONSC), per Durno J , at para 127
    R v Weir, 2005 BCSC 1740 (CanLII), [2005] BCJ No 2845 (BCSC), per MacKenzie J

Rebutting Presumption

Rebutting the presumption requires the accused to establish under s. 258(1)(a) "that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be". This requires evidence negating the mens rea of the offence.

Rebuttal of the presumption is on the balance of probabilities.[1]

There is a division in the case law on the time at which the mens rea is established.

Some say that the initial intention upon the entry into the vehicle establishes the mens rea.[2] A change of intention does not rebut the presumption.[3]

Saskatchewan cases suggest that the time to assess intention is the "overlap period" in the proceeding 2 hours before the breath test.[4]

It is not sufficient that there be a "bald assertion" that the accused did not intent to drive.[5]


If the presumption has been rebutted, the accused may still be convicted where there was a danger that the accused could have put the vehicle in motion. [6]  

Ontario cases suggest that the accused must establish that the occupancy began without the intention to put the vehicle in motion.[7] The fact that the accused intended to sleep at the time of discovery does not rebut the presumption.[8]

Evidence that the vehicle is immobile is not generally sufficient to rebut the presumption.[9]

Indecision of the accused does not rebut the presumption.[10]

If the accused is unconscious following an accident it is "impossible" to rebut this presumption.[11]

The driver who says "I'll only drive when I am sober" will not rebut the presumption.[12]

  1. R v Whyte, 1988 CanLII 47 (SCC), [1988] 2 SCR 3, (1988) 42 CCC (3d) 97 (SCC), per Dickson CJ
    R v Appleby, [1972] SCR 303, 1971 CanLII 4 (SCC), per Ritchie J
  2. R v Decker, 2002 NFCA 9 (CanLII), (2002) 162 CCC (3d) 503 (NLCA), per Cameron JA, at para 6
  3. R v Ahunu-Kumi', [2006] OJ No 2285 (ONSC) (*no CanLII links)
  4. R v Shuparski, 2003 SKCA 22 (CanLII), (2003) 173 CCC (3d) 97 (SKCA), per Bayda JA
  5. R v Nicholson, 2007 ABCA 373 (CanLII), [2007] AJ No 1261 (ABCA), per Berger JA
  6. R v Wren, 2000 CanLII 5674 (ON CA), (2000), 144 CCC (3d) 374 (Ont.C.A.), per Feldman JA
  7. R v Hatfield, 1997 CanLII 2938 (ON CA), (1997) 115 CCC (3d) 47 (ONCA), per Goudge JA
  8. Hatfield, ibid.
  9. R v Danji, 2005 ONCJ 70 (CanLII), [2005] OJ No 917, per Feldman J, at para 36
  10. R v Weir, 2005 BCSC 1740 (CanLII), [2005] BCJ No 2845 (BCSC), per MacKenzie J, at para 37 ("mere indecision as to whether to drive or to sleep will be indecision to rebut presumption")
    R v George, 1994 CanLII 4529 (NL CA), (1994) 5 MVR (3d) 1 (NLCA), per Goodridge JA
  11. Weir, ibid.
  12. R v Szymanski, 2009 CanLII 45328 (ON SC), [2009] OJ 3623 (ONSC), per Durno J, at paras 59 to 65

Factors of Risk

The risk of danger of a change of mind has been described as a "real risk"[1], a "realistic risk"[2] and a risk "going beyond mere possibility", "more than speculative" and “concrete and tangible”.[3]

The risk does not need to be immediate.[4]

A risk of a change of mind must be established by the crown. There must be a "real risk that the particular accused would change his or her mind and intentionally set the vehicle in motion."[5]

Where the accused is not in actual operation of the vehicle, the court must consider the risk of danger that the accused poses. The risk of danger that an intoxicated person poses has been broken down into three categories:[6]

  1. The risk that the vehicle will unintentionally be set in motion[7]
  2. The risk that through negligence a stationary or inoperable vehicle may endanger the individual or others[8]
  3. The risk that the individual who has decided not to drive will change his or her mind and drive while still impaired[9]

When considering whether an accused was at risk of danger by putting the vehicle in motion, the court may consider the following factors:[10]

  1. 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;
  2. Whether the keys were in the ignition or readily available to be placed in the ignition;
  3. Whether the vehicle was running;
  4. The location of the vehicle;
  5. Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination;
  6. The accused’s disposition and attitude;
  7. Whether the accused drove the vehicle to the location where it was found;
  8. Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving;
  9. Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit;
  10. Whether the accused had a stated intention to resume driving;
  11. Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption;
  12. Whether the accused was wearing his or her seatbelt;
  13. Whether the accused failed to take advantage of alternate means of leaving the scene;
  14. Whether the accused had a cell phone with which to make other arrangements and failed to do so.
  1. see R v Szymanski, 2009 CanLII 45328 (ON SC), [2009] OJ 3623 (ONSC), per Durno J, at para 91
  2. R v Ferguson, 2005 CanLII 1060 (ON SC), (2005), 15 M.V.R. (5th) 74 (S.C.), per Thomas J, at para 24
  3. see R v Ross, 2007 ONCJ 59 (CanLII), 44 M.V.R. (5th) 275, per Duncan J, at para 13
    R v Sandhu, 2008 CanLII 59324 (ON SC), (2008), 76 M.V.R. (5th) 305 (S.C.){perONSC|Thomas J}}, at para 71
    for all examples see Smits, supra
  4. R v Banks, 2009 ONCA 482 (CanLII), per curiam
  5. Szymanski, supra
    See also: R v Coleman, 2012 SKCA 65 (CanLII), per Richards JA
  6. R v Smits, 2012 ONCA 524 (CanLII), per Brown RSJ
  7. see R v Ford, 1982 CanLII 16 (SCC), [1982] 1 SCR 231, per Ritchie J
  8. see R v Vansickle, [1990] OJ No 3235 (C.A.)(*no CanLII links) aff’g [1988] OJ No 2935 (Dist. Ct.)
  9. see R v Pelletier, 2000 CanLII 4181 (ON CA), (2000), 6 M.V.R. (4th) 152 (C.A.), per curiam
  10. Smits, supra, at para 63 citing Szymanskiinfra
    Szymanski, supra, at para 93

Sleeping in Vehicle

There has been some debate about whether sleeping in the driver's seat with no intention to drive should be caught under the impair driving offences.[1] However, much case law leans towards the conclusion that where a person is found in the driver's seat, and no evidence is lead of a specific plan to support a changed intent to drive, the presumption will be allowed.[2] So for example, a person who sits in the driver's seat of a vehicle to sleep off the effects of alcohol will be in care and control.[3]

Thus, to overcome this finding some evidence is necessary. The distinction can be made where the accused is merely a custodian of the vehicle and there is no risk of the car being set in motion.[4]

Courts have found persons sleeping in their vehicle will not amount to care and control in the following circumstances:

  • accused had not place to stay and so slept in vehicle; vehicle was off [5]
  • the vehicle was turned on to keep accused warm [6]
  • car off and keys in ignition[7]

Courts have found persons sleep in their vehicle were in care and control in the following circumstances:

  • sleeping in front seat with vehicle off; keys were accessible[8]
  • car running but intended to turn it off/no intention to drive[9]
  1. R v Chung, 2011 ONCJ 757 (CanLII), per Pringle J , at para 13
  2. R v Miller, [2004] OJ No 1464(*no CanLII links)
    R v Hatfield, 1997 CanLII 2938 (ON CA), [1997] OJ No 1327 (C.A.), per Goudge JA
    R v Ahunu-Kumi, [2006] OJ No 2285 (S.C.J.)(*no CanLII links)
    R v Szymanski, 2009 CanLII 45328 (ON SC), per Durno J
  3. R v Rousseau, 1997 CanLII 10217 (QC CA), (1997), 121 CCC (3d) 571, per curiam
  4. R v Decker, 2002 NFCA 9 (CanLII), (2002), 162 CCC (3d) 503, [2002] N.J. No. 38 (NLCA), per Cameron JA -- found there were too many steps to get vehicle started to be a risk
  5. R v Bird, 1999 CanLII 12387 (SK PC), per Goliath J
    R v Sherbrook, 1998 CanLII 13896 (SK QB), per Smith J
    R v Barber, 1998 CanLII 13333 (SK PC), [1998] S.J. No. 708 (Prov.Ct.), per Diehl J
    R v Grover, 2000 ABQB 779 (CanLII), per LoVecchio J
    R v Gerrard, 2000 ABPC 182 (CanLII), per Fraser J
  6. R v Amendt, 1997 CanLII 1624 (BC SC), per Meiklem J
    R v Boyd, [1990] NSJ No. 517 (*no CanLII links)
    R v McNabb, 2003 SKPC 118 (CanLII), per Henning J
  7. R v Martindale, 1995 CanLII 1928 (BC SC), per Oliver J
    R v Coleman, 2011 SKQB 262 (CanLII), per Smith J
  8. R v Diotte, 1991 CanLII 2407 (NB CA), per Stratton CJ
    R v Pilon, 1998 CanLII 4717 (ON CA), per Morden CJ
    R v Ferrier, 2011 ABPC 289 (CanLII), per Groves J
  9. R v Lockerby, 1999 NSCA 122 (CanLII), per Cromwell JA

Car Disabled

Where a vehicle is immobilized due to a flat tire, the driver has often been found not to be in care and control.[1] Similarly, where a car is found in mobilized in a ditch there is no "risk of danger" that would result in the accused being in care and control. [2]

  1. R v Dowse, [2011] OJ No. 2935 (*no CanLII links)
  2. R v Banks, 2008 CanLII 60700 (ON SC), per Corbett J

Outside Vehicle

In certain circumstances, a person can be in care and control of a vehicle without being found inside the vehicle.

An accused found near the car while in possession of the vehicle's keys can be sufficient.[1] Where the accused is directing tow truck, it may be care and control.[2]

  1. R v Rupolo, 1970 CanLII 546 (ON SC), (1970) 2 CCC (2d) 327, per Sprague J
    R v McQuarrie, [1980] NSJ 38 (*no CanLII links)
  2. R v Lackovic, [1988] OJ No 1732, 1988 CanLII 7075 (ON CA), per Griffiths J

Case Digests

Screening Device

  1. REDIRECT Screening for Drugs or Alcohol

Reasonable Grounds Under Section 254(3)

General Principles

See also: Impaired Driving, Over 80 and Refusal (Offence), Breath Sample Demand, Reasonable and Probable Grounds, and Reasonable Suspicion

254.
...

Samples of breath or blood

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 [impaired driving] as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person [to give a sample of breath]...
...
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.
[annotation(s) added]

CCC

Under s. 254(3), a officer may demand that an accused give a sample of his breath where he had reasonable and probable grounds to believe that he has committed an offender under s. 253(1)(a) or 253(1)(b) within the proceeding 3 hours.

The three hour limit has nothing to do with the two hour limit required for the application of s. 258(1)(c), the presumption of identity.   It is irrelevant whether the offence did in fact occur within the past three hours, it only matters whether he subjectively believed it and was reasonable in the belief.

When Grounds Must be Proven

The Crown does not need to prove reasonable and probable grounds where no Charter challenge has been made. In other words, a challenge to the reasonable grounds must come by way of a Charter application. Without such an application, the judge cannot take into account whether or not there were grounds to make the demand.[1] The lack of reasonable and probable grounds does not invalidate or render inadmissible the certificate of analysis.[2]

Burden

The burden is upon the Crown to prove the existence of reasonable grounds to make the demand under s. 254(3) since the knowledge of the grounds is in the "peculiar knowledge" of the Crown.[3]

Standard of Proof

Where the accused challenges the sufficiency of the grounds supporting a breath demand, the issue for the judge is "whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officer would have believed the individual’s ability to operate a motor vehicle was impaired".[4]

In the context of a breath demand, the standard of reasonable grounds is not considered "onerous".[5]

“Reasonable and probable grounds” lays below proof beyond reasonable doubt and a prima facie case.[6] It is a standard that is a "reasonably-based probability".[7] It should be at the level of trial evidence.[8] However, it should not be so low that it "threatens individual freedoms".[9]

The grounds must be established objectively and subjectively. The subjective component requires the officer to have an honest belief of the commission of the offence (that the accused’s ability to operate a motor vehicle was impaired to any amount by a drug or alcohol.[10] The objective component requires that the belief be supported by objective evidence.[11]

The question is never whether the officer could have investigated further, only whether there were sufficient grounds.[12]

"Totality of the Evidence"

Each indicia may in isolation have other reasonable inferences to be drawn, the question to be asked is whether on the "totality of the evidence" the officer was reasonable to draw the inference required under s. 254(3).[13] It is an error of law to consider each indicia independently of the other.[14]

There is no fixed formula or list of indicia that must be applied mathematically.[15] The factors however should not be treated as a "mathematical formula" or a "scorecard" to make a conclusion of reasonable grounds.[16]

There is no obligation that the accused must be "in a state of extreme intoxication" before the officer can have grounds.[17]

Subjective Considerations

In determining reasonable and probable grounds to make the demand the officer must consider everything that he had seen or knew at the time the demand was made. [18] This obviously excludes from consideration information that may not have been known at the time as it cannot be analysis from hindsight.[19]

The officer should take into account all that is available to him and is entitled to disregard information that he has reason to believe is unreliable.[20]

The officer need not dispel reasonable alternative inferences from the evidence.[21]

Duration of Investigation

There is nothing "surprising or unusual" about an officer being able to form a belief in less than a minute of observations.[22]

Valid Indicia of Impairment

The Court may consider factors including:[23]

  1. Poor Driving (including collision with curb, driving outside lines)
  2. Failure to Stop Immediately for Police
  3. Odor of Alcohol in Vehicle
  4. Unsteadiness on Feet
  5. Fumbling or Dropped Driver’s Licence
  6. Odor of Alcohol on Breath
  7. Admitted Consumption of Alcohol
  8. Geographical Confusion
  9. Slowed or Slurred Speech
  10. Experienced Opinion of Officer

Evidence of eyes and speech may be problematic where the officer has no prior contact with the accused.[24]

Absence of Indicia

The absence of typical indicia will not necessarily undermine the reasonableness of the grounds based on observations.[25]

Irrelevant Factors

It is not relevant whether the officer chose not to conduct a roadside screening into whether the grounds existed.[26] There is no obligation for the officer to take a roadside sample.[27]

It is not necessary for the officer to make full inquiry into the accused's version of events to form reasonable and probable grounds.[28]

Timing

Only the facts known or available to the peace officer at the time he formed his reasonable belief that the accused was impaired is applicable.[29]

There is no requirement that the Crown show that the officer continued to observe signs of impairment after the grounds have been formed and the demand has been made.[30] Failure to present evidence of impairment after forming grounds does not undermine the reliability of the officer's grounds.[31] However, evidence of the presence or absence impairment can go to the reliability of the grounds. Gunn, supra </ref>

  1. R v Charette, 2009 ONCA 310 (CanLII), per Moldaver JA
  2. R v Rilling, [1976] 2 SCR 183, 1975 CanLII 159 (SCC), per Judson J
  3. Shepherd, supra, at para 16
  4. R v Gunn, 2012 SKCA 80 (CanLII), per Caldwell JA, at paras 7 to 8
  5. see R v Wang, 2010 ONCA 435 (CanLII), per Rouleau JA, at para 17
  6. R v Censoni, [2001] OJ No 5189 (S.C.)(*no CanLII links) , at para 31
    R v Shepherd, 2009 SCC 35 (CanLII), per McLachlin CJ and Charron J, at para 23
    Wang, supra, at para 17
  7. R v Hall (1995) 22 OR (3d) 289 (CA), 1995 ABCA 348 (CanLII), per Conrad JA
    R v Reilly, 2008 CanLII 1177 (ON SC), [2008] OJ No 164 (SCJ), per Tulloch J
  8. R v Bush, 2010 ONCA 554 (CanLII), [2010] OJ No 3453, per Durno J, at para 43
  9. Bush, ibid., at para 43
  10. R v Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 SCR 254, per Sopinka J, at para 51
  11. R v Berlinski, 2001 CanLII 24171 (ON CA), [2001] OJ No 377 (C.A.), per curiam, at para 3
  12. Bush, supra, at para 70
  13. R v Huddle, 1989 ABCA 318 (CanLII), per curiam ("True, the smell of alcohol does not show impairment; slurred speech alone does not show impairment by alcohol; glassy eyes may be associated with crying; but, the question is whether the total of the evidence offered provided reasonable and proper grounds, on an objective standard.")
  14. Usher, supra, at paras 31, 38
  15. Bush, supra, at para 56
  16. R v Pavlovsky, 2013 ONSC 6800 (CanLII), per Campbell J, at para 7
  17. R v Deighan, 1999 CanLII 2574 (ON CA), [1999] OJ No 2413 (C.A.), per curiam , at para 1
  18. R v Singer, 1999 CanLII 12875 (SK QB), (1999), 25 C.R. (5th) 374 (Sask. Q.B.), per Dawson J
    R v Oduneye (1995), 169 A.R. 353, 1995 ABCA 295 (CanLII), per curiam
  19. R v Cornell, 2010 SCC 31 (CanLII), per Cromwell J, at paras 4, 23
  20. R v Golub, 1997 CanLII 6316 (ONCA), per Doherty JA
  21. Gunn, supra, at para 22 ("dispel innocent or innocuous inferences which might also be reasonably drawn from his or her observations")
  22. Bush, supra, at para 70
  23. summarized in Pavlovsky, supra, at para 8
  24. R v Donaldson, 2009 ONCJ 337 (CanLII), per Beninger J
  25. R v Costello (2002), 2002 CanLII 32350 (ON CA), 22 M.V.R. (4th) 165 (Ont. C.A.), per curiam, at para 2
    Wang, supra, at para 21
  26. Gunn, supra , at para 21
  27. Bush, supra, at para 60
    Gunn, supra, at para 21 ("roadside-test will certainly permit the arresting officer and the courts to better ascertain the objective reasonableness of the officer’s subjective belief, it cannot be said that the conduct of any such test is intrinsic to an objectively reasonable belief of impairment")
  28. R v Rodriguez, [2001] OJ No 2592 (ONSC)(*no CanLII links)
  29. R v Musurichan, 1990 ABCA 170 (CanLII), (1990) 56 CCC (3d) 570 (ABCA), per McClung JA, at p. 574
    R v McClelland (1995) 29 Alta LR (3d) 351 (ABCA), 1995 ABCA 199 (CanLII), per McFadyen JA (2:1), at paras 21, 22
    R v Oduneye (1995), 1995 ABCA 295 (CanLII), 169 AR 353 (ABCA), per curiam, at para 20
    R v Waters (2011) 37 Alta LR (5th) 136 (ABQB)(*no CanLII links) , at para 22
  30. Gunn, supra, at para 20
  31. Gunn, supra

Evidence Considered

The officer can form grounds based on hearsay evidence.[1]

Limitations on Orbanski Evidence

The officer may question the suspect about alcohol consumption without giving them a right to counsel.[2] However, the response about alcohol consumption may only be used for the purpose of establishing grounds for demand and not for the purpose of establishing impairment. [3] There does not appear to be any limitation on utterances not specifically about alcohol consumption.[4]

The Orbanski limitation only applies to evidence that was "obtained from compelled direct participation by the motorist in the roadside test" authorized by provincial legislation.[5] It does not include incidental observations made by the officer in "while carrying out other authorized duties".[6]

The distinction between compelled participation evidence and incidental observations, depends on an analysis to "identify the purpose for the officer's directions to the motorist after the roadside stop".[7]

Despite the suspension of 10(b) rights, there is still the obligation to inform the suspect of the reason for detaining them.[8]

Orbanski limitations do not apply to those incidental observations arising from compelled utterances required under the provincial legislation, such as the detainee "having difficulty spelling her name, or that she spoke rapidly".[9]

  1. R v Debot, 1989 CanLII 13 (SCC), [1989] 2 SCR 1140, per Wilson J, at pp. 1167 and 1168
    R v Lewis, 1998 CanLII 7116 (ON CA), (1998), 38 O.R. (3d) 540 (C.A.), per Doherty JA, at para 15
    R v Censoni, [2001] OJ No 5189 (S.C.)(*no CanLII links) , at para 57
    R v Strongquill (1978), 1978 CanLII 1815 (SK CA), 4 C.R. (3d) 182 (Sask. C.A.), per Culliton JA, at paras 7, 9 (hearsay evidence is "admissible to establish the state of mind of the officer that there were probable and reasonable grounds for his belief that the respondent had been the driver of the motor vehicle.")
  2. R v Orbanski; R v Elias, 2005 SCC 37 (CanLII), per Charron J -- suspect stated he had "one beer that night" without being given right to counsel
  3. Orbanski, ibid., at para 59
  4. Orbanski, ibid., at para 59 - The
  5. R v Milne, 1996 CanLII 508 (ONCA), 197 CCC (3d) 118 (ONCA), per Moldaver JA
  6. Milne, ibid., at p. 132
  7. R v Visser, 2013 BCCA 393 (CanLII), per D Smith JA, at para 64
  8. Orbanski, ibid., at para 31
  9. R v Rochon, 2018 ONSC 1394 (CanLII), per Maranger J, at paras 6 to 10

See Also

Forthwith Under Section 254

General Principles

See also: Proof of Impairment by Alcohol and Screening Device

Section 254(2) requires that once the officer has reasonable suspicion he must seek to have the suspect "provide forthwith" a sample of breath or a physical coordination test. It states:

254
...

Testing for presence of alcohol or a drug

(2) 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 comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and
(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.



[annotation(s) added]

The assumption is that the demand was made at the first possible opportunity after the formation of suspicion. The "clock begins to run" from this point onward.[1]

If the officer is not in a position to require a breath sample "before any realistic opportunity to consult counesl, then the officer's demand is not a demand made under s. 254(2).".[2]

"Forthwith" means "immediately or "without delay". It connotes a prompt demand and an immediate response.[3]

"Forthwith" should be "as soon as possible and before there is any realistic possibility that the subject could successfully contact counsel and get legal advice”. [4] The term has the same meaning as "without delay" as worded in s. 10(b) Charter (right to counsel).[5]

A demand that is not "forthwith" is not authorized by s. 254(2), is not a lawful demand and is not in compliance with s. 8 of the Charter.[6]

Where the "forthwith" requirement is complied with, the period of time from the demand to the test is a justifiable infringement of the section 10(b) Charter rights.[7]

Constitutionality

The obligation on the detainee to comply with a breath test or physical coordination forthwith without first having a right to counsel violates s. 10(b) of the Charter of Rights and Freedoms, but is upheld as a justifiable limitation under s. 1.[8]

Where any element of s. 254(2) have not been met, the detainee has a right to counsel prior to complying with the demand.[9]

  1. R v Dallago, [2001] OJ No 5683(*no CanLII links) , at para 23 (“…for the purposes of determining whether there has, in fact, been any opportunity for the detainee to consult counsel, the court should treat the demand as having been made at the first possible point after the formulation of the suspicion. The legal consequence, therefore, is to deem that the clock begins to run from this point in time.")
  2. R v Cote, 1992 CanLII 2778 (ON CA), [1992], 70 CCC (3d) 280, per Arbour J
  3. R v Yamka, 2011 ONSC 405 (CanLII), per Durno J
  4. R v Ritchie, 2004 SKCA 9 (CanLII), per Sherstobitoff JA, at para 17
    See also R v Janzen, 2006 SKCA 111 (CanLII), (2006), 285 Sask. R. 296
  5. R v Brownridge, [1972] SCR 926, 1972 CanLII 17 (SCC), per Ritchie J
  6. Yamka, supra
  7. R v Degiorgio, 2011 ONCA 527 (CanLII), per LaForme JA, at para 46
  8. R v Thomsen, [1988] 1 SCR 640, 1988 CanLII 73 (SCC), per Le Dain J
  9. 'R v DeBaie, 2000 CanLII 7309 (NS PC), per Gibson J

Reasonable Delays

A delay in the "forthwith" requirement is permitted where "proper analysis" may not be immediately possible, such as where the sample might be contaminated by cigarette smoke or recent consumption of alcohol. In such cases, a short delay is permitted so that an accurate test can be taken.[1]

A wait of 5 minutes between a demand for a ASD and the arrival of the ASD on the scene can be forthwith.[2]

The consideration of “forthwith” requirement under s. 254(2),[3] requires that:

  1. There is a contextual analysis, keeping in mind the legislation’s balance between the interest to eradicate drunk driving and the protection of Charter rights.
  2. the demand must be made promptly once the officer has reasonable suspicion there is alcohol in the driver’s body;
  3. the “forthwith” requires a prompt demand and an immediate response from the driver. However, the circumstances may dictate the need for greater flexibility. In such case the time must be no more “than is reasonably necessary to enable the officer to discharge” his duty.
  4. the immediacy requirement must take all circumstances into account. For example, short delay in administering the ASD due to a need for accurate results or articulable and legitimate safety concerns is permissible. The delay must be “no more than is reasonably necessary to enable to officer to discharge his...duty”.
  5. the circumstances must not allow for the police to realistically have implemented the accused’s 10(b) rights.

Further principles were summarized in R v Mastromartino[4]:

  1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.
  2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
  3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.
  4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.
  5. Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer’s belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.
  6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.
  7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.
  8. If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.

In most cases a delay becomes unreasonable when in excess of 10 minutes.[5]

Delay Due to Unavailability of ASD

The ASD device does not need to be on scene at the time of forming the grounds. However, where the officer is performing a roadside check did not keep an ASD at the scene out of convenience resulted in a violation of the "forthwith" requirement.[6]

Where the ASD is not readily on hand, the delay waiting for the device may result in invalidating the demand. The question is whether the delay afforded the time to have a "realistic opportunity to consult counsel".[7]

Delays in the range of 15 minutes between the demand and the test is reasonable for dealing with the "exigencies of the use of the equipment".[8]

Delay Between Forming Suspicion and the Screening Demand

A "flexible approach" requires that the screening demand should be made "promptly" upon forming the requisite grounds. There is no need that the demand be "immediate".[9]

A reasonable delay between reasonable suspicion and demand can be for purpose of learning more about the amount of alcohol consumed, and potentially letting the person on his way.[10] Also, where there is a legitimate public safety issue or related problems that justify a brief delay.[11]

However, an unexplained delay for as little as 9 minutes can be found to be an unreasonable delay.[12]

Access to cell phones

The availability of a cell phone or nearby landline is not relevant where the officer is able to administer the test forthwith. However, delays in administration will make the availability of a phone relevant.[13]

An officer may permit a detainee to contact counsel if they possess a cell phone.[14]

As compared with "As Soon As Practicable"

There is generally no difference between the word "forthwith" and "as soon as practicable".[15]

A delay of 11 minutes to clear the driver's lungs after recently smoking is reasonable.[16]

Standard of Review

The question of whether the ASD was administered forthwith is a question of fact and warrants deference to the trial judge on a standard of "palpable and overriding error".[17]

  1. R v Pierman, 1994 CanLII 1139 (ONCA), per Galligan JA (2:1)
  2. R v Higgens, 1994 CanLII 6405 (MBCA), 88 CCC (3d) 232, per Scott CJ
    R v Misasi, 1993 CanLII 8577 (ON CA), (1993), 79 CCC (3rd) 339, per Finlayson JA
  3. summarized in R v Quansah, 2012 ONCA 123 (CanLII), [2012] ON 779 (ONCA), per LaForme JA
  4. 2004 CanLII 28770 (ON SC), (2004), 70 O.R. (3d) 540 (S.C.J.), per Durno J, at para 23
  5. e.g. R v Janzen, 2006 SKCA 111 (CanLII)
    R v Singh, 2005 CanLII 40877 (ON CA)
  6. R v Megahy, 2008 ABCA 207 (CanLII), per Martin JA
  7. R v George, 2004 CanLII 6210 (ON CA), [2004] OJ 3287 (ONCA), per Gillese JA
    e.g. R v Tinker (1992) 137 A.R. 16 (Alta.Q.B.)(*no CanLII links) - 9 minutes waiting was acceptable
  8. R v Fildan, 2009 CanLII 45315 (ON SC), 2009 O.J. No.3604, per Hill J, at para 40
  9. Fildan, ibid., at para 40
    R v Woods, [2005] 2 SCR 205, 2005 SCC 42 (CanLII), per Fish J
    Megahy, supra
  10. Megahy, supra, at para 17
  11. R v Kleinsasser, 2011 ABPC 206 (CanLII), per LeGrandeur J, at para 20
  12. e.g. see R v Marshall, 2011 ABPC 188 (CanLII), [2011] O.J. No.652, (Alta.P.C.), per Fradsham J -- 9 minutes found unreasonable
  13. R v George, 2004 CanLII 6210 (ON CA), per Gillese JA
  14. R v Murphy, 2005 CanLII 2944 (ON SC), [2005] OJ No 411, per Howden J, at para 9
  15. R v Seo, 1986 CanLII 109 (ON CA), [1986] OJ 178 (ONCA), per Finlayson JA
  16. R v Kaczmarek, 1994 CanLII 7217 (ON SC), [1994] OJ 9, per Hayes J
  17. R v Rienguette, 2012 ONSC 4633 (CanLII), per Gordon J, at para 11

Operation, Care or Control of a Vehicle

General Principles

The offence of having care or control of a vehicle under s. 253(1) is considered a separate offence from the offence of driving while impaired under the same section.[1]

  1. R v Toews, 1985 CanLII 46 (SCC), [1985] 2 SCR 119, per McIntyre J, at para 9 ("As I have noted earlier, the offence of having care or control of a motor vehicle while the ability to drive is impaired by alcohol or a drug is a separate offence from driving while the ability is impaired.")

Operation

Section 214 definition of "operate" was repealed by 2018, c. 21, s. 13. It previously read:

Definitions

...
“operate”

(a) means, in respect of a motor vehicle, to drive the vehicle,
(b) means, in respect of railway equipment, to participate in the direct control of its motion, whether
(i) as a member of the crew of the equipment,
(ii) as a person who, by remote control, acts in lieu of such crew, or
(iii) as other than a member or person described in subparagraphs (i) and (ii), and
(c) includes, in respect of a vessel or an aircraft, to navigate the vessel or aircraft;


...
R.S., 1985, c. C-46, s. 214; R.S., 1985, c. 27 (1st Supp.), s. 33, c. 32 (4th Supp.), s. 56; 2002, c. 13, s. 9.

CCC

The definition only applies to Part VIII of the Code, which includes offences that relate to motor vehicles.

A vehicle which is completely unable to be moved in any direction cannot be operated within the meaning of s. 214.[1] However, a vehicle that is stuck and can only move a matter of 1 or 2 feet is still in operation.[2]

A passenger who grabs the steering wheel and controls the direction of the vehicle operates it.[3]

The use of the steering wheel of a vehicle that is being towed constitutes operation.[4]

  1. R v Danji, 2005 ONCJ 70 (CanLII), [2005] OJ No 917 (ONCJ), per Feldman J
  2. R v Bui, 2006 ONCJ 265 (CanLII), [2006] OJ No 2869 (ONCJ), per Kenkel J car in snowbank can only move 1-2 feet
  3. R v Belanger, [1970] SCR 567, 1970 CanLII 222 (SCC), [1970] RCS 567, per Ritchie J
  4. R v Morton, [1970] BCJ No 532 (BCPC)(*no CanLII links)

Care and Control

An essential element to proving an offence under s. 253 or 254, the Crown must prove that the accused was in "care and control" of the motor vehicle at the relevant time.[1]

Care and control of a vehicle is criminalized on the basis that an impaired person has a recognized diminished capacity to make safe decisions and may attempt to drive, putting others at risk.[2]

Care and control can be proven by showing actual use of the vehicle or actions which present a risk of putting the car in motion.[3]

"Care or control" under s. 253(1) generally requires:[4]

  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; and,
  3. in circumstances that create a realistic risk of danger to persons or property.

Section 258(1)(a) creates a presumption of care and control where the accused is found in the driver's seat.[5]

Proof of care and control absent the presumption under s. 258(1)(a) requires:[6]

  1. an act involving the use of the motor vehicle, its fittings or equipment, or a course of conduct associated with the vehicle
  2. an element of risk of setting the vehicle in motion, either intentionally or unintentionally; and,
  3. element of dangerousness arising from the risk of setting the vehicle in motion

Dangers include the risk of the vehicle being set in motion unintentionally, negligently, or intentionally where the driver changes his or her mind not to drive.[7]Where an accused was found in a stationary vehicle, it is not necessary for the Crown to prove that the accused intended to set the vehicle in motion.[8]

The Crown, however, must establish that the accused performed "some act or series of acts involving the use of the car, its fittings or equipment...whereby the vehicle may unintentionally be set in motion creating the danger the section is designed to prevent.”[9] The key to the determination is the risk of setting the vehicle in motion and become dangerous.[10]

Where it is less than actual driving, to establish "care and control" it must be determined whether, as part of the actus reus, the accused's use of a motor vehicle or its "fittings and equipment" or the accused's conduct would involve the risk of putting the vehicle into motion and become dangerous.[11]

The determination is highly contextual and so the "[c]ircumstances in which acts of care and control may be found will vary widely."[12]

Risk of Danger

Danger is an essential part of care and control. Even where the accused did not specifically intend to put the vehicle in motion, where some operation of the vehicle creates the risk that the vehicle will be set in motion, even if by accident, will satisfy the requirements of care and control.[13]

"Risk of danger" requires proof that the risk is "realistic" and "not just theoretically possible".[14]

Operations of Fittings and Equipment

Many acts that are less than driving can constitute care and control.[15]

Not all operation of the "fittings and equipment" will result in care and control.[16] However, certain acts such as turning on the ignition will "almost always" be characterized as an act of care and control.[17]

  1. R v Penno, 1990 CanLII 88 (SCC), [1990] 2 SCR 865, page 124
  2. R v Coleman, 2012 SKCA 65 (CanLII), per Richards JA
    R v Pelletier, (2000), 6 MVR (4th) 152; [2000] OJ 848 (CA), 2000 CanLII 4181 (ON CA), per curiam
  3. The Queen v Toews, 1985 CanLII 46, [1985] 2 SCR 119, per McIntyre J, at para 10
    R v Vansickle, [1988] OJ No 2935 (*no CanLII links)
  4. R v Boudreault, 2012 SCC 56 (CanLII), per Fish J
  5. see below for details
  6. R v Smith, 2005 NSSC 191 (CanLII), [2005] NSJ No. 307 (N.S.S.C.), per Warner J
  7. R v Ferguson, 2005 CanLII 1060 (ON SC), [2005] OJ No 182 (S.C.J.), per Thomas J
    R v McLachlan, 2009 BCSC 431 (CanLII), 242 CCC (3d) 362 (BCSC), per Ker J
  8. Ford, supra, p 399
    R v Buckingham, 2007 SKCA 32 (CanLII), at para 11 (“An intention to drive is not an essential element of the offence.”)
  9. Ford, supra, p 399
  10. R v Barlow, 2006 SKQB 220 (CanLII), per Allbright J, at paras 32, 33
  11. See Ford, supra
    R v Toews, 1985 CanLII 46 (SCC), [1985] 2 SCR 119, per McIntyre J
    Buckingham, supra
    see also: R v Wren, 2000 CanLII 5674 (ON CA), (2000), 144 CCC (3d) 374 (Ont. C.A.), per Feldman JA R v Anderson, 2012 SKCA 37 (CanLII), [2012] S.J. No. 184, per Caldwell JA, at para 5
  12. Toews, supra, at p. 220
  13. R v Burbella, 2002 MBCA 106 (CanLII), (2002) 167 CCC (3d) 495, per Scott CJ
    R v Decker, 2002 NFCA 9 (CanLII), (2002) 162 CCC (3d) 503 (NLCA), per Cameron JA
  14. Boudreault, supra, at paras 34, 35
  15. Ford, supra
    Buckingham, supra, at para 11
  16. R v Hannemann, 2001 CanLII 28423 (ON SC), per Hill J
  17. Hannemann, ibid., at para 51

Presumption in Driver's Seat

Care and control can be proven through the presumption created by establishing that a person was in the driver's seat under s. 258(1)(a).[1]

Proceedings under section 255

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;

...
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.

CCC

The presumption is engaged at the time the driver's seat was first occupied, not simply when the accused was observed by police.[2] This presumption can be rebutted by calling evidence that the driver's seat was not occupied for the purpose of operating the vehicle on the balance of probabilities.[3]

The purpose of the presumption is to "discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion" while still excluding those who enter a car for reasons other than to set the car in motion.[4]

The presumption will be in effect even where the driver's seat has been fully reclined.[5]

The presumption will not be available where the accused is sleeping across the front seats.[6]

Where the presumption is engaged, it is not necessary to establish a risk was set out in Wren.[7] It is not relevant whether the vehicle is immobile.[8]

  1. R v Toews, [1985] 2 SCR 119, 1985 CanLII 46, per McIntyre J
    R v Ford, [1982] 1 SCR 231, 1982 CanLII 16, per Ritchie J
    R v Penno, [1990] 2 SCR 865, 1990 CanLII 88
  2. R v Hatfield, 1997 CanLII 2938 (ON CA)
  3. R v Whyte, [1988] 2 SCR 3, 1988 CanLII 47, per Dickson CJ
    R v Miller, 2004 CanLII 24819 (ON CA), [2004] O.J. No.1464 (C.A.), per curiam aff’g [2002] OJ No 4896 (S.C.J.)
    R v Saulteaux, 2000 SKQB 470 (CanLII), [2000] S.J. No. 633 (Q.B.), per MacLeod J
  4. Whyte, ibid., at para 47
  5. R v Hatfield, 1997 CanLII 2938 (ON CA), [1997] OJ No 1327, per Goudge JA
  6. Toews, supra
    R v Volk, 1985 CanLII 2713 (SK QB), [1985] SJ No 842, per McIntyre J
  7. R v Hayes, 2008 NSCA 23 (CanLII), per Hamilton JA, at para 29
    R v Mallery, 2008 NBCA 18 (CanLII), per Robertson JA, at para 46
    R v Ferguson, 2005 CanLII 1060 (ON SC), [2005] 15 MVR (5th) 74 (ONSC), per Thomas J, at para 13
    R v Smith (2004) 3 MVR (5th) 101 (ONSC), 2004 CanLII 34316 (ON SC), per Thomas J, at paras 20, 25
    R v Mark, [2002] OJ No 870 (ONSC)(*no CanLII links)
  8. R v Amyotte, 2009 CanLII 66900 (ON SC), [2009] OJ 5122 (ONSC), per Durno J , at para 127
    R v Weir, 2005 BCSC 1740 (CanLII), [2005] BCJ No 2845 (BCSC), per MacKenzie J

Rebutting Presumption

Rebutting the presumption requires the accused to establish under s. 258(1)(a) "that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be". This requires evidence negating the mens rea of the offence.

Rebuttal of the presumption is on the balance of probabilities.[1]

There is a division in the case law on the time at which the mens rea is established.

Some say that the initial intention upon the entry into the vehicle establishes the mens rea.[2] A change of intention does not rebut the presumption.[3]

Saskatchewan cases suggest that the time to assess intention is the "overlap period" in the proceeding 2 hours before the breath test.[4]

It is not sufficient that there be a "bald assertion" that the accused did not intent to drive.[5]


If the presumption has been rebutted, the accused may still be convicted where there was a danger that the accused could have put the vehicle in motion. [6]  

Ontario cases suggest that the accused must establish that the occupancy began without the intention to put the vehicle in motion.[7] The fact that the accused intended to sleep at the time of discovery does not rebut the presumption.[8]

Evidence that the vehicle is immobile is not generally sufficient to rebut the presumption.[9]

Indecision of the accused does not rebut the presumption.[10]

If the accused is unconscious following an accident it is "impossible" to rebut this presumption.[11]

The driver who says "I'll only drive when I am sober" will not rebut the presumption.[12]

  1. R v Whyte, 1988 CanLII 47 (SCC), [1988] 2 SCR 3, (1988) 42 CCC (3d) 97 (SCC), per Dickson CJ
    R v Appleby, [1972] SCR 303, 1971 CanLII 4 (SCC), per Ritchie J
  2. R v Decker, 2002 NFCA 9 (CanLII), (2002) 162 CCC (3d) 503 (NLCA), per Cameron JA, at para 6
  3. R v Ahunu-Kumi', [2006] OJ No 2285 (ONSC) (*no CanLII links)
  4. R v Shuparski, 2003 SKCA 22 (CanLII), (2003) 173 CCC (3d) 97 (SKCA), per Bayda JA
  5. R v Nicholson, 2007 ABCA 373 (CanLII), [2007] AJ No 1261 (ABCA), per Berger JA
  6. R v Wren, 2000 CanLII 5674 (ON CA), (2000), 144 CCC (3d) 374 (Ont.C.A.), per Feldman JA
  7. R v Hatfield, 1997 CanLII 2938 (ON CA), (1997) 115 CCC (3d) 47 (ONCA), per Goudge JA
  8. Hatfield, ibid.
  9. R v Danji, 2005 ONCJ 70 (CanLII), [2005] OJ No 917, per Feldman J, at para 36
  10. R v Weir, 2005 BCSC 1740 (CanLII), [2005] BCJ No 2845 (BCSC), per MacKenzie J, at para 37 ("mere indecision as to whether to drive or to sleep will be indecision to rebut presumption")
    R v George, 1994 CanLII 4529 (NL CA), (1994) 5 MVR (3d) 1 (NLCA), per Goodridge JA
  11. Weir, ibid.
  12. R v Szymanski, 2009 CanLII 45328 (ON SC), [2009] OJ 3623 (ONSC), per Durno J, at paras 59 to 65

Factors of Risk

The risk of danger of a change of mind has been described as a "real risk"[1], a "realistic risk"[2] and a risk "going beyond mere possibility", "more than speculative" and “concrete and tangible”.[3]

The risk does not need to be immediate.[4]

A risk of a change of mind must be established by the crown. There must be a "real risk that the particular accused would change his or her mind and intentionally set the vehicle in motion."[5]

Where the accused is not in actual operation of the vehicle, the court must consider the risk of danger that the accused poses. The risk of danger that an intoxicated person poses has been broken down into three categories:[6]

  1. The risk that the vehicle will unintentionally be set in motion[7]
  2. The risk that through negligence a stationary or inoperable vehicle may endanger the individual or others[8]
  3. The risk that the individual who has decided not to drive will change his or her mind and drive while still impaired[9]

When considering whether an accused was at risk of danger by putting the vehicle in motion, the court may consider the following factors:[10]

  1. 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;
  2. Whether the keys were in the ignition or readily available to be placed in the ignition;
  3. Whether the vehicle was running;
  4. The location of the vehicle;
  5. Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination;
  6. The accused’s disposition and attitude;
  7. Whether the accused drove the vehicle to the location where it was found;
  8. Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving;
  9. Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit;
  10. Whether the accused had a stated intention to resume driving;
  11. Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption;
  12. Whether the accused was wearing his or her seatbelt;
  13. Whether the accused failed to take advantage of alternate means of leaving the scene;
  14. Whether the accused had a cell phone with which to make other arrangements and failed to do so.
  1. see R v Szymanski, 2009 CanLII 45328 (ON SC), [2009] OJ 3623 (ONSC), per Durno J, at para 91
  2. R v Ferguson, 2005 CanLII 1060 (ON SC), (2005), 15 M.V.R. (5th) 74 (S.C.), per Thomas J, at para 24
  3. see R v Ross, 2007 ONCJ 59 (CanLII), 44 M.V.R. (5th) 275, per Duncan J, at para 13
    R v Sandhu, 2008 CanLII 59324 (ON SC), (2008), 76 M.V.R. (5th) 305 (S.C.){perONSC|Thomas J}}, at para 71
    for all examples see Smits, supra
  4. R v Banks, 2009 ONCA 482 (CanLII), per curiam
  5. Szymanski, supra
    See also: R v Coleman, 2012 SKCA 65 (CanLII), per Richards JA
  6. R v Smits, 2012 ONCA 524 (CanLII), per Brown RSJ
  7. see R v Ford, 1982 CanLII 16 (SCC), [1982] 1 SCR 231, per Ritchie J
  8. see R v Vansickle, [1990] OJ No 3235 (C.A.)(*no CanLII links) aff’g [1988] OJ No 2935 (Dist. Ct.)
  9. see R v Pelletier, 2000 CanLII 4181 (ON CA), (2000), 6 M.V.R. (4th) 152 (C.A.), per curiam
  10. Smits, supra, at para 63 citing Szymanskiinfra
    Szymanski, supra, at para 93

Sleeping in Vehicle

There has been some debate about whether sleeping in the driver's seat with no intention to drive should be caught under the impair driving offences.[1] However, much case law leans towards the conclusion that where a person is found in the driver's seat, and no evidence is lead of a specific plan to support a changed intent to drive, the presumption will be allowed.[2] So for example, a person who sits in the driver's seat of a vehicle to sleep off the effects of alcohol will be in care and control.[3]

Thus, to overcome this finding some evidence is necessary. The distinction can be made where the accused is merely a custodian of the vehicle and there is no risk of the car being set in motion.[4]

Courts have found persons sleeping in their vehicle will not amount to care and control in the following circumstances:

  • accused had not place to stay and so slept in vehicle; vehicle was off [5]
  • the vehicle was turned on to keep accused warm [6]
  • car off and keys in ignition[7]

Courts have found persons sleep in their vehicle were in care and control in the following circumstances:

  • sleeping in front seat with vehicle off; keys were accessible[8]
  • car running but intended to turn it off/no intention to drive[9]
  1. R v Chung, 2011 ONCJ 757 (CanLII), per Pringle J , at para 13
  2. R v Miller, [2004] OJ No 1464(*no CanLII links)
    R v Hatfield, 1997 CanLII 2938 (ON CA), [1997] OJ No 1327 (C.A.), per Goudge JA
    R v Ahunu-Kumi, [2006] OJ No 2285 (S.C.J.)(*no CanLII links)
    R v Szymanski, 2009 CanLII 45328 (ON SC), per Durno J
  3. R v Rousseau, 1997 CanLII 10217 (QC CA), (1997), 121 CCC (3d) 571, per curiam
  4. R v Decker, 2002 NFCA 9 (CanLII), (2002), 162 CCC (3d) 503, [2002] N.J. No. 38 (NLCA), per Cameron JA -- found there were too many steps to get vehicle started to be a risk
  5. R v Bird, 1999 CanLII 12387 (SK PC), per Goliath J
    R v Sherbrook, 1998 CanLII 13896 (SK QB), per Smith J
    R v Barber, 1998 CanLII 13333 (SK PC), [1998] S.J. No. 708 (Prov.Ct.), per Diehl J
    R v Grover, 2000 ABQB 779 (CanLII), per LoVecchio J
    R v Gerrard, 2000 ABPC 182 (CanLII), per Fraser J
  6. R v Amendt, 1997 CanLII 1624 (BC SC), per Meiklem J
    R v Boyd, [1990] NSJ No. 517 (*no CanLII links)
    R v McNabb, 2003 SKPC 118 (CanLII), per Henning J
  7. R v Martindale, 1995 CanLII 1928 (BC SC), per Oliver J
    R v Coleman, 2011 SKQB 262 (CanLII), per Smith J
  8. R v Diotte, 1991 CanLII 2407 (NB CA), per Stratton CJ
    R v Pilon, 1998 CanLII 4717 (ON CA), per Morden CJ
    R v Ferrier, 2011 ABPC 289 (CanLII), per Groves J
  9. R v Lockerby, 1999 NSCA 122 (CanLII), per Cromwell JA

Car Disabled

Where a vehicle is immobilized due to a flat tire, the driver has often been found not to be in care and control.[1] Similarly, where a car is found in mobilized in a ditch there is no "risk of danger" that would result in the accused being in care and control. [2]

  1. R v Dowse, [2011] OJ No. 2935 (*no CanLII links)
  2. R v Banks, 2008 CanLII 60700 (ON SC), per Corbett J

Outside Vehicle

In certain circumstances, a person can be in care and control of a vehicle without being found inside the vehicle.

An accused found near the car while in possession of the vehicle's keys can be sufficient.[1] Where the accused is directing tow truck, it may be care and control.[2]

  1. R v Rupolo, 1970 CanLII 546 (ON SC), (1970) 2 CCC (2d) 327, per Sprague J
    R v McQuarrie, [1980] NSJ 38 (*no CanLII links)
  2. R v Lackovic, [1988] OJ No 1732, 1988 CanLII 7075 (ON CA), per Griffiths J

Case Digests

Presumption of Identity Under Section 258

General Principles

Section 258(1)(c) creates a presumption that is known as the presumption of identity which is a short cut to establishing the driver's BAC at the time of the offence.[1] If the Crown can satisfy the preconditions of this section, there is a presumption created that the "accused’s blood alcohol level at the time of the offence was the same as at the time of testing."[2] However, if the presumption is not available, the crown must prove the accused's blood alcohol level at the time of the offence.[3] This usually requires expert testimony of a toxicologist.

A crown is always permitted to rely both on the presumption and also call evidence of the technician in the same trial.[4]

Section 258(1)(c) states:

Proceedings under section 255

258. (1)
...

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3) [taking samples of breath or blood within 3 hrs], if
(i) [Not in force]
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things —* that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed*; [emphasis added]

...
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.
[annotation(s) added]

CCC

258. (1)
...
(d.1) if samples of the accused’s breath or a sample of the accused’s blood have been taken as described in paragraph (c) or (d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused’s blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused’s consumption of alcohol was consistent with both

(i) a concentration of alcohol in the accused’s blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and
(ii) the concentration of alcohol in the accused’s blood as determined under paragraph (c) or (d), as the case may be, at the time when the sample or samples were taken;

...
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.

CCC

Requirements

The requirements under s. 258(1)(c) are summarized as:

  1. a demand was made under s. 254(3)
  2. each sample was made as soon as practicable after the time of the offence
  3. the first sample was "no later than two hours after [the time of the offence]"
  4. each sample is taken no less than 15 minutes apart
  5. each sample was received directly into an approved container or approved instrument
  6. the container or instrument was operated by a qualified technician.
  7. analysis of each sample was made by means of the approved machine operated by a qualified technician.

Where the requirements are satisfied, then the BAC level is made out. Much of the case law revolves around whether these elements are made out. If they are deficient in any way, then the presumption cannot be relied upon and it would be necessary for the Crown to present expert evidence on the disbursement of alcohol in the blood system over time to make the inference that the alcohol level was over 80 at the time of the offence.

Rebutting the Presumption

The presumption of identity can be rebutted by defence by establishing that:

  1. the BAC was consistent with a level below the legal BAC limit and
  2. consumption is consistent with the results.[5]
Effect of Charter Violations on the Presumption

Even where it is found that there was no reasonable and probable grounds to believe the suspects ability to drive was impaired, the presumption of identity still applies and a conviction will result so long as the certificate is not excluded under s. 24(2) of the Charter.[6]

(*) Constitutionality of s. 258

Section 258(1)(c)(d.01) and (d.1) of the Code are all constitutional. They violate s. 11(d) of the Charter but are justified under s. 1 of the Charter so long as the follow phrases are struck:[7]

  • "all of the following three things -" (258(1)(c))
  • "that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed" (258(1)(c))
  1. R v Charette, 2009 ONCA 310 (CanLII), per Moldaver JA, at para 4
    see R v St. Pierre, 1995 CanLII 135 (SCC), [1995] 1 SCR 791, per Iacobucci J
  2. R v Charette, 2009 ONCA 310 (CanLII), per Moldaver JA, at para 4
  3. see R v Grosse, 1996 CanLII 6643, 107 CCC (3d) 97 (ONCA), per curiam
  4. R v Smith, 2012 ONSC 4492 (CanLII), per Wein J
  5. R v St. Onge Lamoureux, 2012 SCC 57 (CanLII), per Deschamps J
    nb: this formulation is the test as it relates to the presumption after the 2008 amendments.
  6. R v Anderson, 2013 QCCA 2160 (CanLII), per Belanger JA
    R v Rilling, [1976] 2 SCR 183, 1975 CanLII 159 (SCC), per Judson J
  7. St Onge Lamoureux

Sample Taken As Soon as Practicable

Under s. 258(1)(c)(ii), proceedings in respect of an offence under s. 253, 254(5), 255(2) to (3.2) in which samples of breath are taken pursuant to a 254(3) demand each sample must be "taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time".

This creates a right to be subject to the demand within a time limit or else the accused rights will be violated.

A test done "as soon as practicable" requires that the test be made “within a reasonably prompt time under the circumstances”. [1] This comes down to whether the police acted reasonably.[2]

It does not mean that the test must be taken at the very earliest moment.[3]

Where a delay is prima facie unreasonable the crown must prove beyond a reasonable doubt that the delay does not violate s. 258(1)(c)(iii) in order to rely on the presumption of identity.[4]

If the delay is explained satisfactorily, the presumption of identity can still be relied upon.[5]

Essentially, the court asks whether the police have taken the sample reasonably promptly? This standard does not mean “as soon as possible”. [6]

It also does not require the Crown to explain every detail or every minute of delay.[7] However, there should be an obligation "to demonstrate that – in all the circumstances – the breath samples were taken within a reasonably prompt time"[8] This is necessary to afford meaningful appellate review of the Trial Judge’s decision.[9]

The delay should be in “as limited time as is reasonably possible”[10] which can be a very flexible range of time.[11]

Under s. 258(1)(c)(ii), the Crown must be prepared to demonstrate that in the circumstances were taken in a reasonable time, including by showing the way the police are organized and why the samples were prompt.[12]

Where the peace officer reasonably believes that there is a risk to the security of the vehicle or its contents, a delay due to efforts to secure the vehicle will be a justifiable delay.[13]

Delay due to the officer's regular duties, such as making notes, searching car, basic questioning, and adjusting handcuffs, is generally considered reasonable.[14]

Delay due to controlling a difficult accused can be acceptable.[15]

Waiting for a tow truck will not necessarily violate the practicable requirement.[16]

Whether samples were taken "as soon as practicable" is a question of fact.[17]

  1. R v Vanderbruggen, 2006 CanLII 9039 (ONCA), per Rosenberg JA, at paras 12 to 16
    See R v Phillips, 1988 CanLII 198 (ON CA), (1988), 42 CCC (3d) 150 (Ont. C.A.), per Blair JA at 156;
    R v Ashby (1980), 57 CCC (2d) 348 (Ont. C.A.), 1980 CanLII 2920 (ON CA), per Martin JA at 351
    R v Coverly (1979), 1979 ABCA 269 (CanLII), 50 CCC (2d) 518 (Alta. C.A.), per Morrow JA at 522
  2. R v Letford, 2000 CanLII 17024 (ON CA), (2000), 150 CCC (3d) 225 (Ont. C.A.), per Goudge JA, at para 17 See R v Payne (1990), 56 CCC (3d) 548 (Ont. C.A.), 1990 CanLII 10931 (ON CA), per Griffiths JA, at p. 552;
    R v Carter (1981), 1981 CanLII 2063 (SK CA), 59 CCC (2d) 450 (Sask. C.A.), per Culliton JA at 453;
    R v Van Der Veen (1988), 1988 ABCA 277 (CanLII), 44 CCC (3d) 38 (Alta.C.A.), per Hetherington JA at 47;
    R v Clarke, [1991] OJ No 3065 (C.A.)(*no CanLII links)
    R v Seed, [1998] OJ No 4362, 1998 CanLII 5146 (ON CA) (C.A.), per curiam at 7 (In all the circumstances, did the police act "reasonably and expeditiously?")
  3. R v Mudry; R v Coverly (1979), 1979 ABCA 269 (CanLII), 50 CCC (2d) 518 (Alta.C.A.), per Morrow JA
    R v Carter, 1980 CanLII 329 (BC CA), (1980) 55 CCC (2d) 405 (B.C. C.A.), per MacDonald JA
  4. R v CAJ, 2004 ABQB 838 (CanLII), per Marceau J, at para 27
  5. R v Carter, 1981 CanLII 2063 (SK CA), [1981] SJ No 1337 (CA), per Culliton JA
  6. R v Altseimer, 1982 CanLII 2065 (ON CA), (1982) 1 CCC (3d) 7 (ONCA), per Zuber JA
    R v Payne, (1990), 56 CCC (3d) 548 (Ont. C.A.), 1990 CanLII 10931 (ON CA), per Griffiths JA
    R v Squires, 2002 CanLII 44982 (ON CA), [2002] OJ No 2314, per MacPherson JA
    Letford, supra
  7. See Letford, supra, at para 20
    R v Cambrin, 1982 CanLII 353 (BC CA), (1982), 1 CCC (3d) 59 (BCCA), per Craig JA at 61-63
    R v Vanderbruggen, 2006 CanLII 9039 (ONCA), per Rosenberg JA, at para 16
  8. Vanderbruggen, ibid., at para 16
  9. e.g. R v Rienguette, 2012 ONSC 4633 (CanLII), per Gordon J, at paras 19 to 24 - judge gave limited reasons for "forthwith"
  10. R v Thomsen, 1988 CanLII 73 (SCC), [1988] 1 SCR 640, per Le Dain J
    R v Kachmarchyk (1995), 1995 ABCA 155 (CanLII), 165 A.R. 314, per curiam at 234
  11. R v Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 SCR 254, per Sopinka J
  12. Letford, supra
  13. R v Hafermehl, 1993 ABCA 394 (CanLII), [1993] AJ No 981 (CA), per Fraser CJ
    R v Wetzel, 2012 SKQB 24 (CanLII), per Laing J, at para 29
  14. R v Papa [2006] OJ 1497(*no CanLII links) - 14 min between arrest and demand ("We expect more of a police officer than simply to make an arrest")
  15. R v Iyoupe (1972), 8 CCC (2d) 198, 1972 CanLII 1363 (NS CA), per Cooper JA - 15 min delay after arrest due to difficulty with accused
  16. R v Wetzel, 2013 SKCA 143 (CanLII), per Jackson JA
  17. See R v Lightfoot (1980) 4 M.V.R. 238 (Ont.C.A.)(*no CanLII links)
    R v Renda, 2005 CanLII 11969 (ON CA), [2005] O.J. No.1453 (C.A.), per curiam

Sample within Two Hours

Where the sample was taken outside of the two hour limit, the Crown can only prove the BAC levels by making an inference from the measured BAC level. This requires a qualified expert on the absorption, distribution and elimination of ethanol alcohol by the human body.

The opinion sought by the crown would be the BAC level while driving in light of :

  • the accused gender, age, height and weight
  • the time of driving
  • the time and readings of tests
  • whether any alcohol was consumed between driving and the tests, and what effect it would have on the readings
  • any evidence on the accused's drinking around the time of the incident
  • the timing of and amount of drinking needed to produce the readings without having BAC over 0.8 while driving

It is expected that an expert testifying will be relying on a number of assumptions, such as:[1]

  1. A rate of elimination of between X and Y milligrams of alcohol in one hundred millilitres of blood per hour (varying depending on the age, gender, height and weight of the individual)
  2. A two hour plateau;
  3. No consumption of alcohol between the time of driving until after the last test; and
  4. No significant consumption of alcohol just prior to, or an instant before the moment the accused was established as in care and control.

The expert should be able to testify to the number of “standard drinks” needed to be consumed at specific times prior to operating the vehicle for the readings to be generated. However, it may not be necessary to prove the actual case.[2]

Where such expert evidence is needed to establish BAC at the time of driving, the evidence may include the possibility of the BAC being either just below or just above 0.8. This is known as straddle evidence.

This evidence is considered admissible and may still be sufficient to support a conviction. The courts may consider the evidence, along with other factors relating to impairment, to determine whether this evidence raises a reasonable doubt rebutting the presumption in s. 258(1)(d.1).[3]

It is generally understood that the elimination rates is 20 mg of alcohol in 100 ml of blood per hour.[4]

  1. e.g. R v Baxter, 2012 ONCJ 91 (CanLII), per Schwarzl J, at para 13
  2. e.g. Baxter, supra, at para 26
  3. R v Gibson, 2008 SCC 16 (CanLII), per Charron J
  4. See R v Paszczenko, 2010 ONCA 615 (CanLII), per Blair JA, at para 42

Interval Between Samples

The test involves the taking of three breath samples of no less than 15 minutes apart.

Where the gap between samples is greater than 20 minutes some explanation is required or else it may be not as soon as practicable in compliance with the requirements of s. 258(1)(c)(ii).[1]

The police are required to monitor the accused for the 15 minutes leading up to the breath test in order to ensure that there is no burping, vomiting, or belching that would give artificially high readings.[2]

A failure to wait 17 minutes after an "invalid sample" can invalidate the presumption.[3]

A delay in excess of 15 minutes is "prima facie unreasonable" and requires an explanation.[4]

  1. R v Kunsenhauser, 2006 ONCJ 382 (CanLII), [2006] OJ No 4092 (C.J.), per Brophy J
  2. see R v Guichon, 2010 BCPC 335 (CanLII), per Bayliff J where the point was argued to partial success
  3. R v Nadesapillai, [2006] OJ No 3124 (O.C.J.)(*no CanLII links)
    R v Asim, [2008] OJ No 3075 (O.C.J.), 2008 ONCJ 345 (CanLII), per Robertson J
    R v Kirby, [2009] OJ No 5796 (O.C.J.)(*no CanLII links)
  4. R v Dickinson, 2011 ABPC 12 (CanLII), per Semenuk J, at para 45

Samples Directly into Instrument

Under s.258(1)(c)(iii), the Crown must prove beyond a reasonable doubt that sample was provided "directly into an approved instrument".[1] This can be proven by inference as a matter of logic and common sense based on surrounding evidence.[2]

  1. R v Burns, [2001] OJ No 1050 (ONSC)(*no CanLII links)
  2. R v Triantos, [1994] OJ No 803(*no CanLII links)

Taken by Qualified Technician

Section 254(3)(1)(a) requires that the "qualified technician" have an opinion that the samples properly administered and were sufficient for "a proper analysis" of the alcohol concentration.

Failure to operate the machine in compliance with the manual may raise doubt as to the reasonable belief that the machine results are accurate.[1] However, it is not necessary that the operator strictly follow the operating manual where the officer's training experience and belief go beyond what is in the manual.[2]

Proof of "qualified technician" for purposes under s. 258(1)(c) can be done in one of four ways:[3]

  1. by relying on the special rule of evidence prescribed in the equivalent of s. 258(1)(g);
  2. by calling the Attorney General or his deputy, which, of course, is not practicable;
  3. by relying on s. 22(1) of the Canada Evidence Act, RSC 1985, c C-5, and filing a copy of the official Gazette or a copy of the appointment or certified copy of the appointment; or
  4. by relying on certain presumptions of law and rules of evidence developed by the common law including the maxim omnia praesumuntur rite esse acta.
"qualified technician"
Definition

254(1)...
qualified technician means,

(a) in respect of breath samples, a person designated by the Attorney General as being qualified to operate an approved instrument, and
(b) in respect of blood samples, any person or person of a class of persons designated by the Attorney General as being qualified to take samples of blood for the purposes of this section and sections 256 and 258. (technicien qualifié)

CCC

"presumptions of law"

It is available to prove the person was a qualified technician by showing "that the man in question had acted in the requisite capacity".[4]

  1. R v Nadesapillai, [2006] OJ No 3124 (O.C.J.)(*no CanLII links)
  2. R v Smith, 2012 ONSC 4492 (CanLII), per Wein J, at para 24
  3. R v Lange, 2016 SKCA 70 (CanLII), per Whitmore JA
    R v Adams, 1986 CanLII 3266 (SK CA), per Bayda CJ
  4. Adams, supra, at para 3 citing Cross on Evidence (4th ed. 1974), p. 112

Analysis by Approved Instrument

Under s. 258 (1)(c)(iv), “an analysis of [a] sample was made by means of an approved instrument operated by a qualified technician” is a necessary element to establish “conclusive proof” of the BAC level at the time of operation.

The test has both a subjective and an objective component. The officer must have an honest belief which is demonstrated and the belief must be objectively reasonable.

Factors that go to whether the officer knew that the test was reliable include the familiarity of the effect and measure of the temperature at the time the test was taken.[1]

The procedure for approving a device is set by the Attorney General of Canada. The Canadian Society of Forensic Sciences' Alcohol Test Committee vets the device for approval. The standards of the committee are published in the Recommended Standards and Procedures of the Canadian Society of Forensic Alcohol Test Committee, Can. Soc. Forensic Sci. J. Vol 46. No. 1 (2013) pp. 1-3 [2]

For details on the test procedure see: R v Moriaux, 2012 MBPC 20 (CanLII), per Harapiak J, at paras 19 to 39

Approved Breath Analysis Instruments

The list of approved devices are found in SI/85-201 Approved Breath Analysis Instruments Order:

Approved Instruments

2 The following instruments, each being an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person, are hereby approved as suitable for the purposes of section 258 of the Criminal Code:

(a) to (c) [Repealed, SOR/2012-237, s. 1]
(d) to (g) [Repealed, SOR/2013-107, s. 1]
(h) Intoxilyzer ® 5000 C;
(i) [Repealed, SOR/2012-237, s. 1]
(j) [Repealed, SOR/2013-107, s. 1]
(k) BAC Datamaster C;
(l) Alco-Sensor IV-RBT IV;
(m) [Repealed, SOR/2013-107, s. 1]
(n) Alco-Sensor IV/RBT IV-K;
(o) Alcotest 7110 MKIII Dual C;
(p) Intoxilyzer® 8000 C;
(q) DataMaster DMT-C; and
(r) Intox EC/IR II.

SI/92-105, s. 2; SI/92-167, s. 1; SI/93-61, s. 1; SI/93-175, s. 1; SOR/94-422, s. 1; SOR/94-572, s. 1; SOR/95-312, s. 1; SOR/2000-200, s. 1; SOR/2002-99, s. 1; SOR/2007-197, s. 1; SOR/2008-106, s. 1; SOR/2009-205, s. 1; SOR/2012-237, s. 1; SOR/2013-107, s. 1.

ABAIO

Functioning Device

It is not necessary to prove beyond a reasonable doubt that the device is working properly. [3]

Description of the Device

The officer is not required to testify to the exact model of the device. And failure to do so does not undermine the testimony. The important part is that they believe the device was an "approved" one.[4]

A described device or instrument is not fatal so long as it is believed by the officer that it is an approved screening device.[5]

Inconsistencies in the evidence of naming the device a "Intoxilizer 8000C" and "Intoxilizer 8000", of which only one of them is approved, may have the effect of raising doubt on the element.[6]

  1. R v Gill, 2011 BCPC 355 (CanLII), per Howard J, at paras 17 to 19
  2. R v Sutton, 2013 ABPC 308 (CanLII), per Henderson J , at para 15
  3. R v D’Alfonso, 2012 BCSC 1051 (CanLII), per N Brown J
  4. R v Gundy, 2008 ONCA 284 (CanLII), per Rosenberg JA, at para 50
  5. Gundy, ibid.
  6. R v Almeida, 2012 ONCJ 360 (CanLII), per Duncan J, at paras 11 to 13

Where Presumption Does Not Apply

Where the presumption under s. 258(1)(c) does not apply, the crown needs to prove the BAC at the time of the offence by inference. This generally requires the calling of an expert witness who can testify as to the BAC level at the time of the offence given the reading and the timing of the reading of the breath sample.

A toxicologist report will commonly rely upon the four assumptions[1]

  1. no "bolus drinking" (rapid drinking of large amount of alcohol shortly before incident);
  2. no consumption of alcohol between the incident and the breath test;
  3. an "elimination rate" of 10 to 20 milligrams of alcohol in 100 millilitres of blood per hour; and
  4. a 2 hour "plateau" after drinking where the rate of elimination does not change.

Assumption of the elimination rate and plateau do not need case specific evidence to rely upon. This can be taken as judicial notice. However, the assumption against bolus drinking and post-incident drinking require evidence.[2]

  1. R v Paszczenko, 2010 ONCA 615 (CanLII), [2010] OJ No 3974, per Blair JA
  2. Paszczenko, ibid.

Proof of Blood Alcohol Levels

General Principles

As part of proving the offence of "Over 80" under s. 253(1)(b), the Crown must prove the accused's Blood Alcohol Content (BAC) at the time was over 0.08 milligrams of alcohol per millilitre of blood. This must have occurred while operating or in care and control of a motor vehicle.[1]

Traditionally, proving the blood alcohol level required expert evidence from the breath technician who took the sample. Section 258(1)(g) was added to remove the need for a breath technician to testify. Where a breath or blood sample was taken and complies with all the requirements of s. 258(1)(c), 258(1)(d.1), and 258(7), the results are, with some exception, deemed conclusive as to the BAC while in operating the vehicle removing the need for a breath technician to testify.

It is also necessary that the sample be taken pursuant to a breath demand under s. 254(3).

The provisions admitting the certificate without the breath technician must be interpreted strictly as it removes the right to cross-examine and put the burden upon the accused to prove the inaccuracy of the analysis.[2] However, the judge should still be "pragmatic" when it comes to omissions and typographical errors. Errors that do not prejudice the accused, having regard to the circumstances, are not necessarily sufficient.[3]

A breath technician is not permitted to compel a suspect to stand on the scale to disclose their weight for the purposes of calculating blood alcohol level. [4]

  1. see R v MacCannell, (1980), 54 CCC (2d) 188 (Ont. C.A.), 1980 CanLII 2883 (ON CA), per Martin JA
  2. R v Noble, 1977 CanLII 169 (SCC), [1978] 1 SCR 632, per Ritchie J (9:0)
  3. R v Rebelo, 2003 CanLII 15215 (ON SC), per Durno J, at para 38
  4. R v McLachlan, 2017 ONSC 1471 (CanLII), per Labrosse J

Presumption of Identity s. 258(1)(c)

See also: Presumption of Identity Under Section 258

Section 258(1)(c) creates a presumption that is known as the presumption of identity which is a short cut to establishing the driver's BAC at the time of the offence. If the Crown can satisfy the preconditions of this section, there is a presumption created that the accused’s blood alcohol level at the time of the offence was the same as at the time of testing.

Admission of Breath Test Results

The breath test results can be admitted into evidence either by way of 1) viva voce evidence of the qualified technician; or 2) tendering the Certificate of the qualified technician under s. 258(1)(g).

The crown is permitted to rely the results proven both ways.[1]

Section 258(1)(g) states that:

Proceedings under section 255

s. 258 (1)
...

(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating
(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,
(ii) the results of the analyses so made, and
(iii) if the samples were taken by the technician,
(A) [Repealed before coming into force, 2008, c. 20, s. 3]
(B) the time when and place where each sample and any specimen described in clause (A) was taken, and
(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;
...
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24; 2018, c. 21, s. 7.

CCC

To rely upon s. 258(1)(g) requires:[2]

  1. the analysis of each samples has been made by means of an approved instrument
  2. the instrument was operated by the technician
  3. the technician ascertained it to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument
  4. the results of the analyses are made out
  5. the time and place of each sample was made out
  6. each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician
  1. R v Staples, 1997 CanLII 1312 (ON CA), [1997] OJ 4565 (CA), per curiam
  2. R v Lightfoot, [1981] 1 SCR 566, 1981 CanLII 47 (SCC), per Laskin CJ

Approved Container

Definitions

254 (1) In this section and sections 254.1 to 258.1,
approved container means

(a) in respect of breath samples, a container of a kind that is designed to receive a sample of the breath of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada, and
(b) in respect of blood samples, a container of a kind that is designed to receive a sample of the blood of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada; (contenant approuvé)


...
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

CCC

The Order Approving Blood Sample Containers, SOR/2005-37 was enacted under the definition of "approved containers" found in s. 254(1), states:

Approved Containers

1 The following containers, being containers of a kind that is designed to receive a sample of blood of a person for analysis, are hereby approved as suitable, in respect of blood samples, for the purposes of section 258 of the Criminal Code:

(a) Vacutainer® XF947;
(b) BD Vacutainer™ 367001;
(c) Vacutainer® 367001;
(d) Tri-Tech Inc. TUG10;
(e) BD Vacutainer® REF 367001; and
(f) TRITECHFORENSICS TUG10.

SOR/2010-64, s. 1; SOR/2012-60, s. 1.

OABSC

Presumption of Accuracy

The presumption of accuracy is the presumption that the readings of the Certificate are an accurate representation of the accused's BAC unless there is "evidence to the contrary". Although, the presumption is not contained within s. 258, it arises out of operation of the application of s. 25(1) of the Interpretation Act to s. 258(1)(g).[1] Thus, the presumption only applies where the evidence of readings are admitted through the tendering of the Certificate of the qualified technician.[2]

The presumption means forgoing the need for the testimony of the breath technician to testify to validate the certificate.[3] The Crown may introduce the "certificate as prima facie proof of the facts contained therein, without the need to prove the signature or the official character of the person signing the certificate."[4]

Admission of a certificate under s. 258(1)(g) "is evidence of [the technician's] status as a qualified technician".[5]

"Approved Instrument"

The term "approved instrument" is defined in s. 254 as:

254 (1) In this section and sections 254.1 to 258.1,
...
approved instrument means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada; ...
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

CCC

"Qualified Technician"

The term "qualified technician" is defined in s. 254 as:

254 (1) In this section and sections 254.1 to 258.1,
...
qualified technician means,

(a) in respect of breath samples, a person designated by the Attorney General as being qualified to operate an approved instrument, and
(b) in respect of blood samples, any person or person of a class of persons designated by the Attorney General as being qualified to take samples of blood for the purposes of this section and sections 256 and 258.

...
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.

CCC

Rebuttal of Presumption

To rebut the presumption of accuracy the defence must raise a reasonable doubt that:[6]

  1. the approved instrument was functioning properly and operated properly;
  2. the malfunctioning or improper operation resulted in the determination that the concentration of alcohol in the defendant's blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, and
  3. the concentration of alcohol in the accused's blood would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood.

With the amendments of s. 258 in July, 2008 in Bill C-2, the presumption is generally not applicable, as there is no longer any option to present "evidence to the contrary".

  1. Section 25(1) states:
    "; Documentary evidence 25 (1) Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and the fact is deemed to be established in the absence of any evidence to the contrary.
    ...
    R.S., c. I-23, s. 24. see IA
  2. R v Kernighan, 2010 ONCA 465 (CanLII), [2010] OJ 2671
    R v Chow, 2010 ONCA 442 (CanLII), [2010] OJ 2527 (CA)
  3. R v Boucher, 2005 SCC 72 (CanLII), [2005] 3 SCR 499, per Deschamps J (5:4)
  4. R v Charette, 2009 ONCA 310 (CanLII), per Moldaver JA (3:0) , at para 6
  5. R v Lange, 2016 SKCA 70 (CanLII), per Whitmore JA (3:0), at para 17
  6. R v St. Onge Lamoureux, 2012 SCC 57 (CanLII), per Deschamps J (5:2)
    see also R v Jenabfar, 2012 ONCJ 26 (CanLII), per Bourque J, at para 17

Oral Evidence of the Breath Technician

The officer cannot simply give evidence stating that the readings were in "milligrams percent" without specifying what substances are being measured.[1]

  1. R v Zeller, 2010 SKPC 99 (CanLII), per Morgan J - oral evidence failed state that the measurement was alcohol in blood.

Certificate of Analysis

The Certificate of Analysis is the document setting out the readings from the breath test. It can be admissible as evidence without calling the breath technician to give viva voce evidence where it can be established where:

  1. the sample was taken in compliance with the requirements of s. 258(1)(c) and 258(1)(d.1), 258(1)(g)[1]
  2. notice of intention to produce the Certificate of Analysis

In determining the admissibility of the certificate, the court may consider the contents of the certificate.[2]

In agreeing to admit the toxicologist report does not amount to a concession of the essential elements or facts against them. [3]

"analyst"
Section 254 defines "analyst", used in s. 258(d), (e), (f), and (i), as:

Definitions

254 (1) In this section and sections 254.1 to 258.1,
analyst means a person designated by the Attorney General as an analyst for the purposes of section 258; (analyste)
...

CCC

  1. R v Hruby (1980) 4 MVR 192, 1980 ABCA 20 (CA)
    R v Pickles (1973) 11 CCC (2d) 210 (ONCA), 1973 CanLII 1357 (ON CA), per Gale CJ
  2. R v Schlegel, 1985 CanLII 652 (BCCA), at para 19 and page 447
  3. R v Legris, 2008 CanLII 64386 (ON SC), per Rutherford J, at para 9

Notice

Section 258(7) provides a requirement for notice before a "shortcut" can be taken in proving blood‑alcohol content.

The provision requires two things. First, that the accused be given reasonable notice of intention to produce the Certificate of Analysis at trial, and second, that the accused be given a copy of the Certificate.

s. 258
...

Notice of intention to produce certificate

(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h) or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.

CCC

It is mostly accepted that the certificate must be proven on a balance of probabilities.[1]

The Certificate given to the accused does not need to be signed as a duplicate. It is acceptable as long as it "is a true copy in all essential particulars and conveys to the defendant all of the required information."[2]

The term "copy" must mean "true copy" as an untrue copy would not even be a copy.[3]

The officer can be challenged on whether he served the accused with a true copy. The police officer must be able to confirm that he had verified that it was a true copy or else the Certificate would not be admissible.[4] Merely glancing at the documents is not enough to ensure it was an exact reproduction.[5] However, word for word comparison is not necessary either.[6] There is suggestion that service of a carbon copy can be considered a duplicate and so may not need review.[7] Photocopies are generally sufficient.[8] However, they must be legible to be valid.[9]

When serving notice is it necessary that the officer is satisfied that the accused understood the notice. This is particularly relevant where there are language difficulties recognized by the officer.[10]

Receipt of Notice

Service of a notice under s. 258(7) does not require the accused to have continued control in possession of the certificate after receiving notice.[11] However, a separate line of cases suggests that the accused must have personal possession for a sufficient period of time.[12]

  1. Balance of probabilities:
    R v Redford, 2012 ABPC 19 (CanLII), per Henderson J - comprehensiv