Operation While Impaired by Alcohol or Drug and Refusal (Repealed Offence)

• < Criminal Law
• < Offences
• < Operation While Impaired by Alcohol or Drug

• < Criminal Law
• < Offences
• < Repealed Offences

REPEALED DECEMBER 2018

Impaired Driving, Over 80 and Refusal
s. 253, 254 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	18 months incarceration or $5,000 fine
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	same as summary
Maximum	5 years incarceration
Reference
Offence Elements Sentence Digests

Overview

Section 253 describes two distinct but related offences. The offence of "impaired driving" prohibits the operation or care and control of a vehicle while the person's ability to operate it is impaired by drug or alcohol. The offence of "over 80" prohibits the operation or care and control of a vehicle while the person's blood alcohol concentration (BAC) is over 80mg per 100ml of blood.

These offences are some of the most heavily litigated of all criminal offences. The proof of impaired driving has basis largely on the observational evidence of eye-witnesses, usually the investigating officer. They can become complicated when involving drugs rather than alcohol as it requires a Drug Recognition Expert. The proof of the Over 80 offence requires a procedure of taking a breath or blood sample and then extrapolating the estimated BAC at the time of the offence. There are several short cuts to proof that are available under s. 258.

Both offences have the common element of operation or care and control, which becomes most uncertain when examining whether there was care or control arising from the risk of the vehicle being put in motion. These offences also often engage Charter rights under s. 8 and 9, 10(b).

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 253 and 254	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)

Offences under s. 253 and 254 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Before the statutory increased penalties can be applied for convictions under s. 253 and 254 , 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. 253 or 254

When charged under s. 253 or 254 , 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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Fingerprints and Photos

A peace officer who charges a person under s. 253 or 254 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. 253 or 254			(under 10 years max)

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

Offence Wording

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 (CanLII), (DOJ)

---

Failure or refusal to comply with demand

s. 254
[omitted (1), (2), (3) and (4)]
(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
[omitted (6) and (7)]
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 (CanLII), (DOJ)

---

Punishment

255 (1) Every one who commits an offence under section 253 [operation while impaired] or 254 [taking samples of breath/blood] 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.

[omitted (2), (2.1), (2.2), (3), (3.1), (3.2), (3.3), (4) and (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 (CanLII), (DOJ)

---

Proof of the Offences

Proving operating while impaired under s. 253(1)(a) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ Officer had reasonable suspicion that there was alcohol/drugs in body and so detained the accused ☐ The Accused was operating the Motor vehicle or in Care and Control of the vehicle ☐ there was any amount of impairment of the accused ability to drive at the time ☐ the impairment was by alcohol or drug at the time ☐ The accused voluntarily consumed the alcohol

Proving operating while BAC over 80 under s. 253(1)(b) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ The Accused was operating the Motor vehicle or in Care and Control of the vehicle ☐ Officer had reasonable suspicion that there was alcohol/drugs in body and so detained the accused ☐ The Accused's BAC was over 80 at the time ☐ each sample taken as soon as practicable after offence was committed ☐ first sample taken not later than two hours ☐ interval of at least 15 minutes between samples ☐ each sample received from suspect directly into instrument ☐ the instrument was an approved instrument ☐ the instrument was operated by a qualified technician ☐ the technician made an analysis of each sample

Proving refusal to give a sample under s. 254 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ A proper demand was given and understood; ☐ there was a refusal or failure to provide a proper sample; (actus reus) ☐ the culprit intended not to provide a proper sample; (mens rea) and ☐ there was no reasonable excuse for refusing.

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."

The objective of the offence under s. 253(1)(b) 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."

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

Investigation

Section 254 creates a two-stage process whereby an officer may demand that a driver take a roadside screening test (s. 254(2)) 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.

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.

Mens Rea of Impaired Driving

The charge of impaired driving is a general intent offence.

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".

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

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

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

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.

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.

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

Issues

• Arrest and Detention
• Proof of Impairment by Alcohol
• Proof of Impairment by Drugs
• Screening Device
• Breath Sample Demand
• Blood Sample Seizure in Impaired Driving Investigations
• Proof of Blood Alcohol Levels
• Operation, Care or Control of a Vehicle
• Refusal
• Disclosure of Calibration Records of Screen Devices and Approved Instruments

Regulations Relating to Investigations

Regulations

253.1 The Governor in Council may make regulations

(a) prescribing the blood drug concentration for a drug for the purposes of paragraph 253(3)(a);

(b) prescribing the blood drug concentration for a drug for the purposes of paragraph 253(3)(b); and

(c) prescribing a blood alcohol concentration and a blood drug concentration for a drug for the purposes of paragraph 253(3)(c).

2018, c. 21, s. 2.

– CCC (CanLII), (DOJ)

---

Approval — Attorney General of Canada

254.01 The Attorney General of Canada may, by order, approve

(a) a device that is designed to ascertain the presence of alcohol in a person’s blood;

(b) equipment that is designed to ascertain the presence of a drug in a person’s body;

(c) an instrument that is designed to receive and make an analysis of a sample of a person’s breath to determine their blood alcohol concentration; and

(d) a container that is designed to receive a sample of a person’s blood for analysis.

2018, c. 21, s. 4.

– CCC (CanLII), (DOJ)

---

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.

– CCC (CanLII), (DOJ)

---

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.

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

Refusal

254
[omitted (1), (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (4) and (5)]

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.

– CCC (CanLII), (DOJ)

---

Available Defences

• Necessity

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

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. x [x]

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. 255	summary election	18 months custody
s. 255	indictable election	5 years incarceration

Offences under s. 255 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months jail.

Minimum Penalties

For offences under s. 255, 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.

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	any	(**)		(**)

For offences under s. 255 without any prior convictions, discharges are not available.

For offences under s. 255 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.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Impaired driving causes "the most significant social loss to the country." Every impaired driver is a "potential killer."

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

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

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

255
[omitted (1), (2), (2.1), (2.2), (3), (3.1), (3.2) and (3.3)]

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.

[omitted (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; [[List of Criminal Code Amendments|2008, c. 6, s. 21, c. 18, ss. 7, 45.2.]]

– [http://canlii.ca/t/7vf2#sec255

---

Factors

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 (NLPC), [2010] NJ No 25 (P.C.), per Gorman J

Aggravating circumstances for sentencing purposes

255.1 Without limiting the generality of section 718.2, where a court imposes a sentence for an offence committed under this Act by means of a motor vehicle, vessel or aircraft or of railway equipment, evidence that the concentration of alcohol in the blood of the offender at the time when the offence was committed exceeded one hundred and sixty milligrams of alcohol in one hundred millilitres of blood shall be deemed to be aggravating circumstances relating to the offence that the court shall consider under paragraph 718.2(a).
1999, c. 32, s. 4(Preamble).

– [http://canlii.ca/t/7vf2#sec255.1

---

Ranges

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

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

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

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

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."

Curative Discharges

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

255
[omitted (1), (1.1), (2), (2.1), (2.2), (3), (3.1), (3.2), (3.3) and (4)]

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; 2008, c. 6, s. 21, c. 18, ss. 7, 45.2.

– CCC (CanLII), (DOJ)

---

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 254(5), 255	For conviction under s. 254(5), a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b). If an offence under s. 255 is prosecuted by indictment, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
Driving Prohibition		Min. 1 year (1st time), 2 years (2nd time), 3 years (3rd time or more)
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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

History

• History Impaired Driving and Over 80 Offences

See Also

• Impaired Driving and Over 80 (Offence Cases)
• Causation

References

• Pre-Trial and Trial Motions Checklist