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Defend Drinking and Driving

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Our Experience

Drinking and driving is considered a serious offence in Canada due to the serious public safety risk it poses to citizens. The Canadian government has taken a zero tolerance position on impaired driving, including implementing mandatory minimum jail sentences for second time offenders, and mandatory minimum fines and driving prohibitions for anyone convicted. Donich Law has successfully defended second time offenders charged with impaired driving offences.

In 2022, the Firm represented a client charged as a second time offender with impaired driving offences in R. v. A.A. [2022]. Specifically, the accused was charged with drive while disqualified, impaired driving and over .80. The police issued a notice of increased penalty when the accused was released, which indicates that the Crown may seek an enhanced sentence for the accused because they are a second time offender. The case was initially screened for a jail sentence longer than the mandatory minimum due to aggravating factors in the case including the fact that the accused was involved in a minor car accident immediately prior to her arrest. The Firm negotiated with the Crown for more than two years in an attempt to avoid a jail sentence. Ultimately the Firm resolved the matter without the accused having to spend time in jail.

Impaired driving and related offences are a major concern for residents of Brampton, as is true across the country. Recent statistics from Peel Regional Police show that despite the public perception of these crimes, they are no less common in the region over the past few years. Despite fewer charges being laid in 2020 in part due to the COVID-19 pandemic (989), that number was higher in both 2021 and 2022. (1082 and 1008 charges respectively). Already in 2023, charges over the first two months of the year far outnumber those from the same period of last year. (168 against 118)

In 2023, the Firm represented another accused charged as a second time offender in the case of R. v. D.M. [2023]. The client was pulled over by police and charged with impaired driving and over .80 after other motorists reported his erratic driving. The arresting officer indicated it took some time to get the accused to pull over after initiating his lights and sirens, and that the accused appeared confused. It was further alleged that the accused had open and empty containers of alcohol in the front seat of the vehicle when he was pulled over. The Firm moved quickly on the file and was able to hide the prior record for impaired driving. The accused was sentenced to the minimum fine and driving prohibition available.

Stages of the Criminal Justice System

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In addition to individuals who have been charged with impaired driving on multiple occasions, the Firm also has experience defending individuals charged as first-time offenders. Many people in Canada hold misconceptions about impaired driving laws. For example, it is a common misconception that a driver has the right to consult with legal counsel before interacting with the officer at the roadside during an impaired driving investigation. In reality, a driver must immediately comply with the officer’s demand for a breath sample at the roadside. Failing to do so because of an erroneous belief that one has the right to speak with counsel right away is likely to lead to a charge for refusal to comply with demand.

In 2023, the Firm represented an individual charged with refusal in the case of R. v. J.B. [2023]. The accused was initially pulled over by police for failing to move over for an emergency vehicle on the highway. The officer developed suspicion that the driver was intoxicated after speaking with him for a few minutes and made a demand for a roadside breath sample. The driver incorrectly believed that he had the right to contact legal counsel before answering any questions or providing a breath sample. As this is not the case, the officer placed him under arrest. Upon running the accused’s license, it was discovered that his license was currently suspended, and a ticket was issued. The Firm successfully resolved the matter with the lowest possible fine and driving prohibition for the refusal. The Firm secured the withdrawal of the driving while suspended ticket, which carries a significant fine upon conviction.

What’s a Crime in Canada?

In 2023, the Firm successfully defended a client who was stopped by police and charged with impaired driving and over .80 in the case of R. v. J.P. [2023]. The client was involved, as a passenger, in a car accident. Prior to police arriving on scene the accused got into the driver’s seat and drove away. He was stopped a short time later and investigated for fleeing the scene of an accident. During their investigation the police developed reasonable suspicion that the driver was intoxicated and placed him under arrest. The Firm was able to resolve the matter by way of a plea to careless driving, avoiding a conviction for impaired driving.

In addition to first time offenders charged with more minor impaired driving offences, the Firm also represents individuals charged in more serious cases, including cases where the impaired driver has hit another motorist. Striking another driver or even property while driving intoxicated is seen as a seriously aggravating factor. Even more so when injuries result.

In 2017, the Firm represented an individual charged with impaired driving offences after hitting a motorcyclist on the Gardiner Expressway in Toronto in R. v. M.V. [2017]. Witnesses reported seeing the accused walking away from his vehicle down the shoulder of the highway. When police arrived, the accused failed a roadside breath test and was taken to the station to complete a breathalyzer test. The test revealed the accused had more than 250 mg of alcohol per 100 ml of blood, more than three times the legal limit. The Firm resolved the matter with a low position by way of a joint position on sentencing. The presiding judge was unhappy with the position and indicated he would have sentenced the accused more harshly, however, given the joint position he was prohibited from doing so.

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Frequently Asked Questions

What if I was in the Car but did not Intend to Drive?

If the police find an impaired individual in a car, they are legally allowed to assume that the person has committed an offence in certain cases. For example, if someone is in the driver’s seat. This is an example of the assumption that someone in the position of a driver has care or control over the vehicle, which is the necessary action to charge someone with an impaired driving offence. It would then be that person’s responsibility to convince the police that they did not intend to or could not drive the car at that time. This might be accomplished by showing the officer that you do not have the keys, or by demonstrating that the vehicle is completely inoperable.

The police may also charge someone with an impaired driving offence if they have de facto care and control of a vehicle. The case of R. v. Lochead, 2021 ONCJ 432 (CanLII) provides an example of this. In that case the accused had started drinking while waiting for her stuck vehicle to be rescued. The judge found she posed enough of a risk to commit an impaired driving offence if a tow truck had arrived to the scene to help her before police arrived. To deal with cases like this, Canadian law has developed a rule for de facto control where a person can be charged if they are impaired, if they have engaged in activity related to a vehicle and there is a real risk that they pose a danger to others.

Is it Better if I Refuse to Blow?

It will not improve the situation of an accused person if they refuse to provide a breath sample when the police demand one. Section 320.15 of the Criminal Code makes it an offence for someone to refuse to comply with a demand for a breath sample. The penalties for this offence are the same for other impaired driving offences. So, a person refusing to provide a sample is still potentially facing the same fine, term of imprisonment or driving prohibition either way.

It is also important to remember that the police can stop anyone at any time on the road to make a demand and conduct mandatory roadside screening. The only exception that allows a person to refuse a demand to blow is if they are medically incapable of doing so and can provide proof of that claim. Even then, a person would most likely only be able to do that after beginning the trial process because most people do not always carry the necessary documentation with them.

Can the Police Show up at my House and Ask for a Breath Sample?

As mentioned above, the police have the authority to stop anyone on the road at any time to demand a breath sample. This power also applies off the road as well and that allows police to show up to your home in Brampton, or elsewhere, to demand a sample under specific conditions. For the demand to be legally valid and issued at a person’s home, the police must make it within two hours after someone has stopped driving. This will usually require the police to issue a demand while following up on a complaint or witness statement about an accident or erratic driving.

The offence the person would then be charged with would be having a blood alcohol concentration over the limit within two hours after driving. However, this offence requires the accused to have a reasonable expectation that the police may make a demand for a breath sample to them. If a person has no such reasonable expectation of a demand, perhaps because of mistaken identity or the fact that no accident or erratic driving actually happened, they may not be charged. An example of the police going to a private residence to make a demand is the Alberta case of Garang (Re), 2022 ABSRA 892 (CanLII).

What do I do if the Police Come to my House and Demand a Sample?

If the police do arrive at a personal residence, make contact with the resident and make a demand for a breath sample, the person must comply if the demand is made within two hours of them driving. As discussed in the last question, a person will not be found guilty of an offence for having a blood alcohol concentration over the limit if they had no reasonable expectation that they would be required to provide a sample. The medical exception for failing to comply with the demand, described above, also applies in this scenario.

What do I do if I am Pulled Over for Impaired Driving?

If a person is pulled over by the police for impaired driving, they must comply with any demand made of them. The only exception to this rule is for medical incapacity. The police have broad powers to stop anyone to conduct screening for impaired driving. They also have the power to stop drivers to check their license, registration and insurance number under the Highway Traffic Act. The Act clearly states under s. 31 that driving is a privilege enjoyed by all Canadian drivers, including residents of Brampton. It is therefore not a right that every person is entitled to.

Once a person has been pulled over, they should remember that they cannot refuse to comply with police demands by asserting their right to a lawyer. That right, guaranteed under s. 10(b) of the Canadian Charter of Rights and Freedoms, only applies once an individual has been arrested. It cannot be used to prevent or delay someone from providing a breath sample on the roadside.

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Recent Cases

R. v. Tripp, 2021 ONCJ 153

The Ontario Court of Justice case of R. v. Tripp centred around an accused who was convicted of an impaired driving offence after they were found impaired with their vehicle partially off the road. The main issue of the case concerned whether the accused should have been immediately given the ability to speak to a lawyer after being informed of her rights. The judge found that some delays in providing access to a lawyer are acceptable depending on the facts of the case.

In this instance, some time had to be taken to ensure that a tow truck arrived to deal with the vehicle that was out of fuel and partially blocking the road. On top of other small delays, there was a period of forty-seven minutes between the time that the accused was informed of and finally acted on her rights. It was determined that this delay was entirely reasonable [at paras 90-95]. The idea of reasonableness allows for the justice system to account for different facts and cases instead of setting a standard for immediate perfection that is unrealistic.

R. v. Johnson, 2021 ONCJ 383

The Ontario Court of Justice case of R. v. Johnson dealt with an offender who killed two pedestrians and injured a third because of a collision caused by impaired driving and a high rate of speed. The case applies the principles of sentencing in determining the appropriate punishment for the offence committed. [at para 35] Essentially, a sentence should make a strong statement against the nature of the crime, keep others from repeating the mistake, provide a sense of justice for the victims, and allow the offender to acknowledge their responsibility and begin to fix their mistake.

In applying these principles, the judge looked to factors in favour of a stronger sentence for the offender and a more lenient one. In this case, the relevant facts were the accused’s high level of intoxication and the speed with which he was driving, along with the impact on the victims of the crime. It was also important that the accused acknowledged that he should be punished and had begun to take steps toward rehabilitation. In making a decision that accounted for these and other factors, the accused was sentenced to six years in prison.

R. v. Ferguson-Kellum, 2023 ONCJ 119

The Ontario Court of Justice case of R. v. Ferguson-Kellum is another example of how sentencing is determined in the context of impaired driving. This case addressed a single vehicle collision where it was caused by impaired driving and resulted in significant internal injuries to the accused’s passenger. This is an offence under s. 320.14(2) of the Code. Using the same set of principles as in Johnson, the judge settled on a conditional sentence of twenty-one months imprisonment, and a three-year probation order to go with a three-year prohibition on driving.

The conditional sentence, which was allowed to be served under house arrest and under GPS monitoring, imposed on the accused was a mitigation from the Crown’s argument for eighteen months imprisonment. The leniency was granted because the accused was a young, first-time offender from a “chaotic and dysfunctional family setting,” [at para 60]. She had also made significant efforts toward her rehabilitation while awaiting trial. This case demonstrates the different ways in which sentencing balances the interests of the accused and society.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.