Operation While Impaired by Alcohol or Drug and Refusal (Repealed Offence)
- REPEALED DECEMBER 2018
|Impaired Driving, Over 80 and Refusal|
|s. 253, 254 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||18 months incarceration or $5,000 fine|
|Avail. Disp.||same as summary|
|Minimum||same as summary|
|Maximum||5 years incarceration|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offences
- 4 Interpretation of the Offence
- 5 Kienapple Principle
- 6 Available Defences
- 7 Participation of Third Parties
- 8 Sentencing Principles and Ranges
- 9 Ancillary Sentencing Orders
- 10 History
- 11 See Also
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).
|Crown Election||Defence Election
|s. 253 and 254||Hybrid Offence(s)||(* only if Crown proceeds by Indictment)||(under 14 years max)|
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.
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. 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 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)).
- 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
|AG Consent Required||Serious Criminality|
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.
Proof of the Offences
Proving operating while impaired under s. 253(1)(a) should include:
Proving operating while BAC over 80 under s. 253(1)(b) should include:
Proving refusal to give a sample under s. 254 should include:
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.
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.
- R v Charles, 2013 BCSC 23 (CanLII), per Sigurdson J, at para 40
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
R v Pomeroy, 2007 BCSC 142 (CanLII), per Romilly J
R v Honish, 1993 CanLII 156 (SCC),  1 SCR 458, per Lamer CJ(7:0)
R v King, 1962 CanLII 16 (SCC),  SCR 746, per Ritchie J, at p. 763
- e.g. R v Sitarz, 2012 ONCJ 561 (CanLII), per Caldwell J
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.
- see for example R v Rookes, 2012 SKPC 80 (CanLII), per Hinds J
R v Lloyd, 1988 CanLII 5326 (SK CA),  SJ No 216 (SKCA), per Wakeling JA
R v Saunders, 1967 CanLII 56 (SCC),  SCR 284, per Fauteux J, at p. 290
R v Clifford, 2014 ONSC 2388 (CanLII), per Koke J
R v Kulbacki, 2012 ONCJ 532 (CanLII), per Radley-Walters J
cf. R v Rookes, 2012 SKPC 80 (CanLII), per Hinds J
- 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
- Disclosure of Calibration Records of Screen Devices and Approved Instruments
Regulations Relating to Investigations
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.
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
s. 606(4.1), (4.2)
|Victim Notice |
of Impact Statement
|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
|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
s. 718.3, 787
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.
The predominant objectives to be considered is general deterrence and denunciation.
Deterrence and denunciation are especially important objectives when bodily harm is caused to another person.
e.g. R v Beaudry, 2007 SCC 5 (CanLII),  1 SCR 190, per Charron J at 42
R v Bernshaw, 1995 CanLII 150 (SCC),  1 SCR 254, per Cory J ("a far greater impact on Canadian society than any other crime")
R v Lahiry, 2011 ONSC 6780 (CanLII), per Code J, at para 89
R v Clouthier, 2016 ONCA 197 (CanLII), per Watt JA (3:0), at para 54
R v Squires, 1995 CanLII 9848 (NL CA),  N.J. No. 157 (C.A.), per Gushue JA, at p. 5
R v McVeigh, 1985 CanLII 115 (ON CA), per MacKinnon ACJ, at p. 150
R v Riggs, 2011 NLTD 26 (CanLII), per Handrigan J, 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),  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
- R v Woodward, 1993 CanLII 8183 (NL CA), (1993), 108 Nfld. & P.E.I.R. 240 (N.L.C.A.), per Steele JA
Clouthier, supra, 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, 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
- 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
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."
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
- R v MacDonald, 1999 CanLII 5083 (MB CA), (1999), 139 CCC (3d) 524 (Man. C.A.), per Twaddle JA (2:1)
- R v Morine, 2011 NSSC 46 (CanLII), per Rosinski J, at para 79
- R v Clarke, 2013 SKCA 130 (CanLII), per Jackson JA (3:0), at para 10
The only exception to the mandatory minimums is where a curative discharge is ordered by the court (only available in certain provinces).
Ancillary Sentencing Orders
- Offence-specific Orders
|DNA Orders||s. 254(5), 255||
|Driving Prohibition||Min. 1 year (1st time), 2 years (2nd time), 3 years (3rd time or more)|
|Forfeiture of Vehicle|
- 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 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.|