Conveyance Offence Causing Bodily Harm or Death (Offence): Difference between revisions
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==Proof of the Offences==
==Proof of the Offences==
Revision as of 23:22, 11 March 2020
|Conveyance Offences Causing Bodily Harm or Death|
|s. 320.2 and 320.21 of the Crim. Code|
|Election / Plea|
summary proceedings must initiate within 12 months of the offence (786(2))
Sup. Court w/ Jury (*)
|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|
|Avail. Disp.||same as summary|
|Minimum||same as summary|
|Maximum||10, 14 years or life incarceration|
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".
|Crown Election||Defence Election
|s. 320.2 [conveyance offences causing bodily harm]||Hybrid Offence(s)||(* only if Crown proceeds by Indictment)||(under 14 years max)|
|s. 320.21 [conveyance offences causing bodily harm]||Indictable Offence(s)||N/A||(under 14 years max)|
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.
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
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]||Template:ReleaseProfile-BailOnly|
|s. 320.14(3) [operation while impaired and causing death]||Template:ReleaseProfile-BailOnly|
- 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
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 320.2 [conveyance offences causing bodily harm]|
|s. 320.21 [conveyance offences causing bodily harm]|
Offence wording as of December 18, 2018, see History below for previous versions.
Draft Form of Charges
|"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:
Proving Operation while impaired and causing death under s. 320.14(3) should include:
Interpretation of the Offence
Participation of Third Parties
- 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
|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
s. 718.3, 787
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.
Section 731(1)(a) precludes the use of suspended sentences where there are mandatory minimums.
Ancillary Sentencing Orders
- Offence-specific Orders
s. 320.14(1)(a) [Operation while impaired],
|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
|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 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 His Majesty the King 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.|