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Defend Drinking and Driving

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Our Experience

Impaired driving offences are common in Guelph and across Canada and are considered a serious public safety hazard. Impaired driving offences have claimed the lives of thousands of Canadians over the years. As a result, the courts and Parliament have developed a zero tolerance policy for drinking and driving in recent years. Those convicted of drinking and driving more than once will face mandatory minimum jail sentences and will be prohibited from driving for a significant period of time. Donich Law has experience defending second time offenders charged with impaired driving related offences and regularly obtain favourable results for our clients.

In 2023, the Firm defended a client who was stopped by police leaving the scene of an accident in R. v. J.P. [2023]. While not the driver in the initial accident, the accused got into the driver’s side of the car and left the scene before police arrived. He was stopped a short time later and ultimately arrested for impaired driving. The Firm engaged in Crown negotiations, ultimately resolving the matter by way of a careless driving guilty plea.

In 2016, the Firm successfully defended an individual charged with impaired driving in the case of R. v. F.B. [2016]. The accused was arrested after concerned citizens saw the accused sitting in the driver’s seat of a Skyjack despite not looking like a construction worker and appearing intoxicated. When police arrived, they found the intoxicated accused sitting in the driver’s seat of the Skyjack with the keys in the ignition. The individual was arrested and charged with impaired driving and over .80. Some people may be surprised to discover that an individual may be charged with impaired driving even if they did not actually put the vehicle into motion. Having care and control of a vehicle and the present ability to put it into motion is enough for a conviction. The Firm ran a trial on the matter, successfully securing an acquittal.

In 2022, the Firm represented an individual charged with impaired driving – drugs in the case of R. v. B.M. [2022]. The driver was initially stopped by police officers after running a red light in downtown Toronto. Officers alleged that the accused had difficulty pulling his car over to the side of the road smoothly, and almost hit the curb. The accused was taken to the police station to be evaluated by a drug recognition expert who was of the opinion that he was intoxicated. Toxicology reports revealed cannabis and cocaine in his system. The Firm and the accused both completed a significant amount of up-front work prior to engaging in Crown pre-trial negotiations. Ultimately, the matter was resolved with the lowest possible fines and driving prohibition possible.

Impaired driving is a major problem that can profoundly change the lives of anyone involved, whether as the driver, a potential victim or a friend or family member. The dangers of impaired driving are something that every municipality and every person must deal with. According to the Guelph Police Service, there have been thirty instances of impaired driving in the city as of the beginning of May 2023. Recent history shows that there were one hundred twenty-two occurrences of impaired driving in 2021, and one hundred twenty-seven in 2022.

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In addition to representing first-time offenders charged with impaired driving offences, the Firm also has a significant amount of experience defending those who have been previously convicted of an impaired driving offence. Currently, those who are convicted of an impaired driving offence more than once will face mandatory minimum jail sentences on conviction. For example, an individual convicted of an impaired driving offence for a second time will face a mandatory minimum 30 days in jail.

In 2023, the Firm represented an individual charged for the second time with impaired driving and over .80 in the case of R. v. D.M. [2023]. The accused came to the attention of police after other drivers on the road witnessed him driving erratically and reported him to police. Police arrived on the scene, witnessed similar erratic driving, and initiated a stop. The arresting officer alleged that the accused initially did not pull over for some time and seem confused about why he was stopped. Empty alcohol containers were also found in the vehicle. The Firm moved quickly on the file to avoid having a notice of increased penalty filed by the Crown. The Crown missed the prior conviction the Firm resolved the matter with the lowest possible fine and driving prohibition possible.

What’s a Crime in Canada?

In 2016, the Firm represented an individual accused of causing a collision on a busy highway in R. v. D.E. [2018]. The accused was alleged to have been intoxicated when he hit another motorist on highway 401, injuring the other driver. The accused was then seen walking away from the scene of the accident, allegedly attempting to flee. Failing to remain at the scene of an accident where another driver is injured is not only an offence but will be seen as an aggravating factor by the courts. The Firm challenged the evidence provided in the disclosure package, successfully avoiding serious consequences for the accused.

If you have been charged with an impaired driving offence in Guelph it is important to consult with legal counsel prior to making any decisions in your case. With recent changes in the laws, impaired driving charges can be very difficult to beat. Often, the best strategy is to launch a Charter challenge. Donich Law can assist you in reviewing your disclosure to determine whether there is a viable Charter challenge available.

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Frequently Asked Questions

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

If the police discover an impaired individual sleeping in their car, that individual may still be charged with an impaired driving offence. Section 320.14(1)(b) of the Criminal Code contains the offence someone could be charged with if they have a blood alcohol concentration over the legal limit of 80 mg of alcohol in 100mL of blood within two hours after they have been driving.  The wording of the offence uses the term, “operate” instead of “drive”. Operate has a wider meaning which applies any time a person can be said to have care or control over a vehicle.

For example, a person has care and control even if they are not driving but are in the driver’s seat and the keys are with them in the car. Canadian law allows the police to assume that people in the driver’s seat are capable of driving unless those individuals can prove that they cannot in fact or did not intend to drive. This is a strong and difficult to disprove assumption.

Alternatively, it can be argued that a person can have what is known as de facto care and control of a vehicle. If it can be proven that they were impaired, they had taken some action concerning a vehicle and there was a real risk of danger to other people or property, that is enough to constitute an offence. In the context of an impaired person sleeping in the back of their vehicle with their keys in the car, there is still a realistic chance that they may wake up and try to drive, thus committing an offence. The case of R. v. Day, 2020 NWTTC 18 (CanLII) out of the Northwest Territories explores how the law applies to facts like these. [at paras 40-45]

Will my License be Suspended? For how Long?

According to the Government of Ontario, the police may suspend your license immediately for 90 days if they find that you have a Blood Alcohol Concentration (BAC) over the legal limit after pulling you over and conducting roadside screening. A license may also be suspended for a shorter period if you provide a sample that has a BAC in the warning range between 0.05-0.079. Similar short-term suspensions can be given to drivers under twenty-one years of age or commercial drivers who, by law. cannot have any drugs or alcohol in their systems while driving.

If a person is convicted of impaired driving, their licence will be suspended for one year. A second conviction within ten years carries a three-year suspension. A third conviction in ten years can result in a lifetime driving ban, but that may be reduced if the accused meets certain conditions. Finally, a fourth conviction in ten years will lead to a non-negotiable lifetime suspension. A person who has had their license suspended must also pay a licence reinstatement fee every time their licence is suspended.

Will an Impaired Driving Charge Affect my Insurance?

Regardless of if someone lives in Guelph or elsewhere, an impaired driving conviction will affect insurance coverage. Typically, the charge will result in an increase in the amount paid for at least two years. It is important remember that the law in Ontario says that driving is a privilege and not a right. As such, a change in insurance coverage because of an impaired driving conviction is the consequence of abusing that privilege.

What are the Common Penalties for Impaired Driving and Refusal?

The penalties for impaired driving and refusal to comply with a police demand for a breath sample are the same. Impaired driving offences are an example of what is known as hybrid offences. This gives the Crown lawyers a choice to decide what penalties are best suited for every case. The options they have are either to choose to prosecute a summary offence which leads to lesser penalties, or an indictable offence which are more punitive. A conviction could result in either fines or jail time along with a licence suspension. The specific penalty depends on the facts of the case and the circumstances of the offender.

Section s. 320.19 of the Code contains the minimum and maximum penalties a person faces for an impaired driving offence. For summary offences a person can be liable to a fine of up to $5,000 and imprisonment for two years less a day. Indictable offence impaired driving carries a maximum prison term of ten years. The minimum sentence for a first offence of either type is a $1,000 fine. However, a refusal offence carries a minimum fine of $2,000. A second and third offence carry a mandatory prison term of thirty and one hundred twenty days respectively. It is also worth noting that impaired driving cases that involve causing the bodily harm to or death of another person can result in even larger sentences under ss. 320.20-.21.

Will I Go to Jail in Guelph?

In the context of impaired driving offences, imprisonment is only mandatory if it is a repeat offence committed by the offender, as mentioned above. The sentence an accused person receives should be fair and reflect the uniqueness of their case. To determine the appropriate penalty for an offence, a judge will look at all the facts and hear evidence brought by both the Crown and the accused. Counsel, such as our lawyers in Guelph, can present evidence before a court that makes an argument for the accused to receive a lesser penalty. This evidence is called mitigating factors. The Crown, arguing for stronger sentencing, presents aggravating factors.

Section 718.2 of the Code describes general aggravating and mitigating factors that apply to all crimes. They include evidence that the crime was motivated by bias or hate, if the offender harmed a child, etc. s. 320.22 sets out specific aggravating factors to be examined for impaired driving offences. They include: the presence of bodily harm or death, the size of the vehicle, or the age of any passengers, or if the driver had a BAC more than .012. Cases that feature more aggravating factors than mitigating factors will result in heavier sentences.

Take for example, the cases of R. v. Johnson, 2021 ONCJ 383 (CanLII) and R. v. Ferguson-Kellum, 2023 ONCJ 119 (CanLII). The first case concerned an offender that was sentenced to six years in prison because the driver killed two people and seriously injured a third. The sentence was imposed even though it was a first offence. The second dealt with a young woman who seriously injured a friend when she crashed her vehicle. However, her sentence was only twenty-one months because she was also a first-time offender, was young, came from a difficult family situation and made significant efforts toward her rehabilitation prior to her conviction. These cases demonstrate the flexibility that allows judges to consider the context of the situation during sentencing.

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Recent Cases

R. v. Nogue, 2022 SKPC 37

The case of R. v. Nogue from the Provincial Court of Saskatchewan explores the law around care and control of a vehicle. The case dealt with a police complaint about a suspected impaired driver. The officer responding to the complaint found the accused sitting in his car, with the keys in his pocket. The accused admitted to the officer that he had been drinking at a bar earlier that evening, which prompted the officer to make a demand for a breath sample. The sample indicated that the accused’s BAC was over the legal limit. He was then charged with being over the legal limit within two hours after driving under s. 320.14(1)(b) of the Code.

As part of their decision to convict the accused, the judge said the following about the assumption that a person has care and control of a vehicle, “I need hardly reiterate that “realistic risk” is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. As to the practical effect of its view of “care or control”, the Supreme Court stressed that intoxicated persons found behind the wheel of a vehicle will almost always face conviction.” [at paras 23-24] This quote shows the strength of the assumption of care and control regarding impaired driving. As such, an accused person would need strong and clear evidence in their favour just to counter the mere fact that they are sitting in the driver’s seat and could drive.

R. v. Chaulk, 2022 CanLII 111252 (NL PC)

The case of R. v. Chaulk from the Provincial Court of Newfoundland and Labrador is similar to Nogue. In this case, the accused was charged and convicted of an impaired driving offence because she was under the influence of several different types of drugs. The police found the offender’s vehicle in a parking lot with her unconscious in the driver’s seat and the keys in the ignition. There were also pills on her person and drug paraphernalia in the car.

In addressing the care and control issue and realistic risk of danger at paragraph sixty-four, the judge referenced a passage from the leading case on the topic, R. v. Boudreau, “An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion – without intending at that moment to do so – may nevertheless present a realistic risk of danger. In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.” This quote demonstrates that the law of impaired driving sets such strong standards for care and control of a vehicle because it must anticipate the unpredictability of impaired people. Therefore, the law deals with both actual actions and possibilities when dealing with accused individuals.

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.