Conveyance Offence Causing Bodily Harm or Death (Offence)

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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.
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 Offences Causing Bodily Harm or Death are found in Part VIII.1 of the Criminal Code concerning "Offences Relating to Conveyances".

Pleadings
Template:PleadingsHybridListTemplate:PleadingsHybridListTemplate:PleadingsIndictableList
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)

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

Summary Offence(s) N/A N/A

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(3) [Operation while impaired and causing death] are straight indictable. 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. 320.2 or 320.21, 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. 320.2 [Conveyance Offence Causing Bodily Harm]

s. 320.21 [Conveyance Offence Causing Death]
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]

Template:ReleaseProfileAll
s. 320.14(2) [Operation while impaired and causing bodily harm] Template:ReleaseProfileBailOnly
s. 320.14(3) [Operation while impaired and causing death] Template:ReleaseProfileBailOnly
s. 320.14(4) [Operation with low blood drug concentrations] Template:ReleaseProfileAll
  1. REDIRECT Template:ReleaseOptions-Hybrid

Template:ReleaseOnlyBail

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 Serious Criminality
Offence
s. 36 IRPA
s. 320.2 OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 320.21 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.


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

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 custody
s. 320.14 and 320.19 Indictable Election 10 years custody

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]


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

See Also

References
  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