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Defending Impaired Driving

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Frequently Asked Questions

Impaired driving offences are considered a serious public safety risk to Canadians. As a result, courts across the country have taken a harsh stance on sentencing including regularly sentencing offenders to jail. Donich Law has experience defending individuals from all walks of life charged with various impaired driving offences including refusal. We regularly obtain favourable results for our clients including those who have been charged as first time and second time offenders.

Can I Refuse to Blow?

A person cannot simply refuse a demand to provide a breath sample for roadside screening. Section 320.15 of the Criminal Code makes it a criminal offence for anyone to knowingly refuse to comply with a police demand to undergo mandatory screening. The penalties for that offence are the same as for an impaired driving offence where a demand was complied with.

There is an exception to this rule for people who are physically incapable of providing a breath sample for medical reasons. For example, any person who would be unable to generate the ten seconds of air flow necessary to register a reading on an Approved Screening Device because of extreme respiratory issues like asthma can refuse to provide a sample. However, to successfully refuse the demand would require a person to have medical documentation on their person to show the police as proof of their condition. If proof is not available at the time, an individual would be arrested. They must then introduce that evidence through the trial process as a defence to the charge against them.

When determining the appropriate sentence for an individual convicted of impaired driving or refusal, the Court will consider all relevant aggravating and mitigating factors. The more aggravating factors present in a case, the more likely it is that the accused will be sentenced to a period of custody. For example, where the driver was involved in an accident, there was property damage, or someone was injured, the offender is more likely to be sentenced to a period of custody. Further, the level of impairment will also play a role in sentencing. Where the accused was only slightly over the legal limit, they are more likely to be treated with leniency than someone who was significant intoxicated. Whether or not the accused is a second time offender will also play a significant role in sentencing. Those convicted of a second or subsequent impaired driving offence will face mandatory minimum jail sentences.

Disclosure – Why Does it Takes so Long?

Disclosure is a lengthy process that begins at the police station after someone has been arrested for impaired driving. Once arrested, the police start a case file and compile all the evidence against a person pertaining to the offence they committed. For an impaired driving case, this will include the results of the mandatory screening done by the accused on the police officer’s Approved Screening Device. The file will also include the official breathalyzer test results, as well as any other evidence such as witness or victim statements. The process for completing the file can often several weeks. After the file is complete, it is sent to the Crown.

Once the Crown has possession of the file, they begin a two-stage process. The first stage is known as vetting. Vetting means that the Crown must review all available evidence, making sure that there is no contact or personal information included from victims or third parties that would be given to the accused. Once vetting has been completed, the next stage is screening. Screening is where the Crown determines their position concerning what sentence an accused person is facing for their offence. Overall, since the COVID-19 pandemic, the entire disclosure process can take up to several months to complete and be provided to the accused.

Stages of the Criminal Justice System

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Disclosure – What is the Process for Getting it? 

There are several ways to obtain a disclosure package. The rules for obtaining them are specific to individual courthouses and they can usually be acquired before a person’s first or second court appearance. One way to obtain disclosure is for an accused person to go to the Crown office at a courthouse in person to pick up a physical copy of the package. Initial disclosure packages are often lengthy documents between 50-100 pages long.

It is also possible to receive an electronic copy of the package if requested by the accused person or their lawyer. Defence counsel can send a request for disclosure to specific emails run by the Crown. Once that request has been processed, the person or their lawyer will receive an electronic version of the disclosure package once it has been uploaded to the Ontario Disclosure Hub database.

When can Police Stop Me and Demand a Breath Test?

Under s. 320.27(2) of the Criminal Code, the police have the authority to conduct mandatory alcohol screening and stop an individual if they have in their, “possession an approved screening device, [they] may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature… by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in [their] opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.”

This gives police the power to stop any person on the road at any time if they have the necessary equipment to conduct the screening. If they suspect impaired driving but do not have a device, they may call to have one brought to the scene. This power granted to the police by the Code is shown in the Ontario Superior Court of Justice case of R. v. Khandakar, 2023 ONSC 1971 (CanLII), which involved the police stopping the accused to conduct mandatory screening with an approved screening device. It also clarifies that the consequence for refusal as a different offence than impaired driving.

What’s a Crime in Canada?

What if I was not Driving or at my Car when I was Asked?

Section 320.14(1) (b-d) of the Code are provisions that makes it an offence to have a blood alcohol concentration, blood drug concentration or a mixture of the two over the legal limit for up to two hours after a person has stopped driving or “operating” a vehicle. A person will not be convicted of these offences if they have truly stopped driving and have no reason to believe a police offer may demand that they produce a breath sample. However, if a person has driven within the required time frame while over the legal limit and has reason to believe a demand will be made, they will have committed an offence.

To enforce this law, police officers are authorized to make a demand of a person to complete mandatory screening even if they are not currently driving or in their car. The Code uses the word “operating” because it has a wider meaning than just driving. To operate something according to s. 320.11 means to, “drive… or have care or control of it.” In practice, this means that if the police encounter a person who is over the legal limit in or near their car with their keys, but not actually driving, there is a strong likelihood that the police will find the person has committed an offence because they could drive.

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Our Experience

R. v. D.M. [2023]

In 2023, the Firm represented an individual charged as a second time offender with impaired driving in R. v. D.M. [2023]. The client was pulled over by police after he was seen driving erratically on a major highway in the GTA. Upon stopping the driver, the officer alleged that the driver seemed confused and did not understand why he was being pulled over. The officer further alleged that the accused had open containers of alcohol including empty containers in the front seat of his vehicle. The Firm was able to avoid the mandatory minimum jail sentence prescribed for second time offenders, resolving the matter with the lowest fine and driving prohibition possible by way of a joint position on sentencing.

R. v. B.M. [2022]

In 2022, the Firm represented an individual charged as a first-time offender with being impaired by drugs while operating a motor vehicle in R. v. B.M. [2022]. Police officers initiated a stop on the accused after they witnessed him drive through a red light. The officers alleged that the driver had difficulty pulling over and almost went up onto the curb before coming to a stop. They further alleged that the accused had red eyes, white powder on his face and seemed confused. At the police station a drug recognition expert formed the opinion that the accused was intoxicated by drugs, which toxicology results later confirmed. The Firm avoided a jail sentence despite numerous aggravating factors, resolving the matter with a fine and a short driving prohibition.

R. v. A.A. [2022]

In the case of R. v. A.A. [2022], the Firm represented a second time offender charged with impaired driving, over .80 and drive while disqualified. There were several aggravating factors present in the case which factored into the Crown seeking several months of custody. The Crown noted that the accused was a second time offender, that she was significantly intoxicated at the time of her arrest, that she had been involved in a minor car accident while intoxicated, and that she had been driving while prohibited. The Firm and the client completed a significant amount of up-front work and provided the Crown with relevant medical evidence. Ultimately, the Firm resolved the matter with two of the three charges being withdrawn and avoiding jail time for the accused.

R. v. K.M. [2021]

In 2021, the Firm represented an individual charged with impaired driving and over .80 after being involved in an accident in R. v. K.M. [2021]. The accused was stopped by law enforcement while driving and failed a roadside breathe test. Officers later discovered that the accused had been in an accident prior to being stopped by police and had fled the scene. The accused was charged with impaired driving and several HTA offences. The Firm negotiated with the Crown assigned to the case, and despite several aggravating factors alleged, resolved the case with the lowest possible penalty outlined in the Code.

R. v. F.B. [2016]

In 2016, the Firm successfully defended an individual found operating a Skyjack on a construction site while intoxicated in R. v. F.B. [2016]. Citizens witnessed the accused, who did not appear to be a construction worker, get into the Skyjack and begin to move it around. The contacted police believing that the accused may injure himself or someone else. When police arrived, the accused was still inside the Skyjack and was placed under arrest for impaired driving. An individual can be charged with impaired driving for operating any vehicle while impaired. The Firm set the matter down for trial and secured an acquittal.

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Recent Cases

R. v. Lochead, 2021 ONCJ 432

The Ontario Court of Justice case of R. v. Lochead dealt with an offender charged and convicted of having a blood alcohol concentration over the legal limit within two hours after driving. The case arose because a woman had swerved off the highway to avoid hitting an animal. In doing so she got her car stuck in a field and was unable to remove it. While waiting for help, she consumed some alcohol that was in the car which prompted her to blow over the limit when the police found her.

The main issues of the case concerned whether the accused met the requirements for a conviction. Either because she had care or control of the vehicle, or because there was a reasonable expectation to have a demand for a breath sample made of her by police. The judge concluded that there was a realistic risk that she might drive the car again if it had been rescued by a tow truck and returned to the road, which suggests the accused would then have care and control of the car. Alternatively, the judge decided that the facts of the case showed that the accused should have had a reasonable expectation of a demand being made when the police found her after the accident. Therefore, under both scenarios the judge was persuaded to convict the offender.

R. v. Pankovcin, 2020 ONCJ 142

In the Ontario Court of Justice Case of R. v. Pankovcin, the accused was charged and convicted for having a blood alcohol concentration above the legal limit within two hours after driving. The offence came from a collision between the accused’s vehicle and two parked cars, which resulted in a blocked lane on the road. This case explores an assumption that the law makes regarding impaired driving. Specifically, where an accused person is found in the driver’s seat of a car, it can be assumed that they have care and control of it. It is the responsibility of the accused to try and prove they did not occupy the seat to drive.

There is a second way to establish that a person has care and control of a vehicle that does not require that assumption. Instead, the Crown can try to prove de facto care or control by showing that the accused was a person who should not have been driving because of drug or alcohol consumption that did something concerning a vehicle; and that that conduct presented a real risk to other people or property. Lochead and Pankovcin are cases where a judge was willing to find that an accused met the standard for de facto care or control.

R. v. Kranz, 2021 ONSC 25

The Ontario Superior Court of Justice case of R. v. Kranz concerned an accused individual who tried to get their conviction overturned on appeal because the arresting officer charged him with the wrong offence and may have wrongfully demanded a breath sample. The offender argued that the conviction violated his rights to be protected from arbitrary search and seizure and not to be arbitrarily detained under ss. 8-9 of the Canadian Charter of Rights and Freedoms. The charge was for being over the legal limit rather than impaired driving under an old version of the Code.

The judge decided that because the two offences dealt with in this case were similar, there was no need to address the issue of arbitrary detention for the wrong offence. An offence was committed by the accused, and it involved an acceptable breach of the right against search and seizure. It was more important that the breath demand was done properly. The officer’s mistaken charge was not a significant example of police misconduct, the breath demand did not impact the accused’s freedom in a meaningful way given the facts of the case, and it was in society’s interest to admit the evidence that came from the breath sample. On these factors, the judge decided to dismiss the appeal and uphold the conviction.

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.