Impaired Driving, Over 80 and Refusal Causing Bodily Harm or Death (Offence)

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Impaired Driving, Over 80 and Refusal Causing Bodily Harm or Death
s. 255 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

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

* Must be indictable. Preliminary inquiry also available.
Types of Release Judicial Release Only
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 + 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 10 years incarceration (harm)
Life (death)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to impaired driving, over 80 and refusal causing bodily harm or death are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 255 [impaired driving, over 80 and refusal causing bodily harm or death] Indictable Offence(s) N/A Yes

Offences under s. 255 are straight indictable. There is a Defence election of Court under s. 536(2).

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

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

s. 2 ID Crim. Act
s. 255 X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 255, the accused cannot be released by police under s. 497 or 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 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 attendance notice or a summons without a s. 496 arrest, and if arrested, can be released by the arresting officer under s. 497 on an attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The young person can also be released by order of a judge or justice under s. 515.

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)).

A peace officer who charges a person under s. 255 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
Offences under s. 255 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

255.
...[(1)]...
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).
...[(4), (5)]...
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

Proof of Offences

Proving Impaired driving causing bodily harm under s. 255(2) should include:

  1. underlying offence under s. 253(1)(a)
  2. the offence caused bodily harm of another person

Proving Blood alcohol level over legal limit — bodily harm under s. 255(2.1) should include:

  1. underlying offence under s. 253(1)(b)
  2. in committing the underlying offence, caused an accident
  3. the accident involved bodily harm to another person

Proving Failure or refusal to provide sample — bodily harm under s. 255(2.2) should include:

  1. underlying offence under s. 254(5)
  2. the culprit knew or ought to have known that the operation or care and control of vehicle caused accident resulting in bodily harm

Proving Impaired driving causing death under s. 255(3) should include:

  1. underlying offence under s. 253(1)(a)
  2. causes the death of another person as a result

Proving Blood alcohol level over legal limit — death under s. 255(3.1) should include:

  1. underlying offence under s. 253(1)(b)
  2. causes an accident resulting in the death of another person

Proving Failure or refusal to provide sample — death under s. 255(3.2) should include:

  1. underlying offence under s. 254(5)
  2. the accused knew or ought to have known that the operation or care and control of vehicle caused accident resulting in death

Interpretation of the Offence

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

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)).

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. 255(2), (2.1), or (2.2) [bodily harm] N/A 10 years custody
s. 255(3), (3.1), or (3.2) [death] N/A life in custody

Offences under s. 255 are straight indictable. The maximum penalty is 10 years incarceration [bodily harm] or life [death] .

Minimum Penalties
The mandatory minimums remain the same for s. 255(1). The minimum penalty is $1,000 with no prior convictions, 30 days jail with a single prior conviction, and 120 days for each subsequent conviction.

255
...
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).
...
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

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. 255
With Bodily Harm
N/A X Mark Symbol.png X Mark Symbol.png OK Symbol.png(*no priors) OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 255
With Death
N/A X Mark Symbol.png X Mark Symbol.png OK Symbol.png(*no priors) OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

If convicted under s. 255 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".

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

Where there is one or more prior convictions, there are no stand-alone fines, or conditional sentences.

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Previous Convictions

Punishment
255 (1)
...
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.
  • [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.


CCC

Ranges

see also: Impaired Driving, Over 80 and Refusal Causing Bodily Harm or Death (Sentencing Cases)

Bodily Harm

In New Brunwsick, the range for impaired driving causing bodily harm it has been suggested the proper range is 3 to 18 months imprisonment.[2]

In Manitoba, the range for impaired driving bodily harm without a record previously had a range of between 3 to 18 months and has been increased to about 6 to 24 months.[3]

  1. R v Berner, 2013 BCCA 188 (CanLII) at para 36
  2. R v Williams, 2009 NBPC 16 (CanLII)
  3. R v Smoke, 2014 MBCA 91 (CanLII) at para 51
    R v Anderson, 2016 MBPC 28 (CanLII) at para 23

Death

Caution should be taken to "rigidly" apply a range of sentence in cases involving impaired driving causing death.[1]

In New Brunswick, the range of sentence on impaired driving causing death for a person with no record is between 2 to 5 years with a 3 to 10 year driving prohibition.[2], 9 months to 7 years jail (British Columbia).[3]

In Ontario, sentences of 4 to 5 years have been upheld for causing death.[4] But have gone upwards of 9 years when multiple death are involved.[5]

Where there is a prior record the range is between 4 to 8 years with a 8 years to life driving prohibition.[6]

  1. R v Junkert, 2010 ONCA 549 (CanLII) at para 40 ("I begin by noting that courts should be cautious in rigidly applying "a range" of sentences in cases such as this, involving impaired driving causing death")
  2. R v Ruizfuentes 2010 MBCA 90 (CanLII)
  3. R v Johnson (1996), 84 BCAC 261 (*no CanLII links)
    R v Casimir, 2001 BCCA 310 (CanLII) stating its range is 3 to 6 years
    R v Smith, 2013 BCCA 173 (CanLII) sets range of 18 months to 8 years
  4. See R v Ramage
    R v Niganobe, 2010 ONCA 508 (CanLII)
    R v Hall, 2007 ONCA 8 (CanLII), (2007),83 O.R. (3d) 641
  5. R v Wood, 2005 CanLII 13779 (ONCA) - 9 year sentence for killing three and injuring one. Offender BAC was twice legal limit.
    R v Mascarenhas, 2002 CanLII 41625 (ONCA) - 9 year sentence for killing two pedestrians. Offender BAC was .339 and .353.
    R v Kummer, 2011 ONCA 39 (CanLII) - 8 year sentence for killing three people and injuring one.
  6. R v Ruizfuentes

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 255(2), (2.1), (2.2), (3), (3.1), (3.2)
Driving Prohibition Min. 1 year (1st time), 2 years (2nd time), 3 years (3rd time)
Delayed Parole Order
  • Periods of imprisonment of 2 years or more for convictions under s. 255(2) and (3) 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 mandatory 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 is discretionary based on ability to pay, and the minimum amounts are smaller (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

2000 to 2008

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

See Also

Offences

References