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Defend Drinking and Driving

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In Canada, a conviction for impaired driving can lead to hefty fines, lengthy driving prohibitions, jail time, and major increases in insurance rates. In recent years, the Canadian government has made changes to impaired driving laws, making it even easier to catch intoxicated drivers. For example, an officer has the right to make a demand for a breath sample to virtually any driver as long as the officer as an approved screening device on their person at the time. In practice, this means that an officer with a device can ask any driver to provide a breath sample at any time. Failing to provide an adequate sample without proper justification will lead to a charge for refusal to comply with demand. The penalties for a refusal conviction are virtually the same as the penalties for an impaired driving conviction.

In 2023, the Firm was retained by an individual charged with impaired driving and over .80 in R. v. J.P. [2023]. The accused was stopped and arrested after driving away from the scene of an accident, though he had not been the original driver. Stopped a short time later, the accused spoke with officers for a short time before they developed reasonable suspicion that he had consumed alcohol and made a demand for a breath sample, which the accused failed. The Firm ultimately resolved the matter by way of a careless driving ticket.

In 2013, the Firm successfully defended an individual who got into a serious single vehicle accident while impaired in R. v. R.B. [2023]. The accident was so severe the accused’s car split in two when he collided with a pole. Surprisingly, the accused walked away with minor injuries. While being evaluated at the hospital following the accident, police took a sample of the accused’s blood without a warrant. The accused’s blood alcohol level measured three times the legal limit. The Firm challenged the improper police conduct in collecting the accused’s blood sample without a warrant, successfully launching a section 8 Charter challenge. The blood evidence was excluded as a result of the Charter challenge, leaving the Crown without any evidence to prove their impaired driving case. The over .80 and impaired driving charges were withdrawn as a result.

In 2022, the Firm defended a client charged with impaired driving after driving while allegedly under the influence of cocaine and cannabis in R. v. B.M. [2022]. The accused was arrested after police out on a morning patrol witnessed him roll through a red light. The officers initiated a traffic stop and alleged that the accused took some time to pull over to the side of the road and almost struck the curb before coming to a stop. Upon approaching the vehicle, officers saw white powder on the accused and indicated he appeared to have red blood shot eyes and a slow reaction time. The Firm challenged parts of the Crown’s evidence in the case, securing the lowest resolution possible, despite a number of aggravating factors present in the case.

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In 2014, the Firm represented a high-profile investment banker charged with over .80 in R. v. M.V. [2014]. The accused was stopped during a RIDE check and asked to provide a roadside breath sample. He was placed under arrest when the approved screening device registered a fail. The Firm advanced the bolus drinking defence which suggests that the accused was not intoxicated at the time he was driving as he had just consumed alcohol immediately prior to driving. The defence presented affidavit evidence at a crown pre-trial, securing a withdrawal of the charge. Due to changes in impaired driving laws, such a defence may no longer be successful.

Due to the serious safety risk drinking and driving poses to the general public, prosecutors and the Crown take a harsh stance on impaired driving offences. Those convicted of an impaired driving offence, including refusal, on more than one occasion are likely to face a period of incarceration. Only in extraordinary circumstances will the court agree not to impose a period of custody for a second time offender.

Impaired driving is a public safety issue that impacts the city of Kitchener and the Waterloo Region just as much as the rest of the country. The consequences of impaired driving can be disastrous for both offenders and victims, their families, and the community as a whole. According to a report published by the WRPS impaired driving contributed to six deaths on regional roadways and accounted for seven hundred sixty-nine total charges in 2021 alone.

What’s a Crime in Canada?

In the case of R. v. A.A. [2022], the Firm successfully kept a second time impaired driver out of custody. The accused was arrested after causing an accident while driving intoxicated. The accused was also prohibited from driving at the time due to a prior conviction for impaired driving, which is considered seriously aggravating. The Crown initially sought a period of custody exceeding the mandatory minimum. The Firm engaged in approximately two years of Crown pre-trial negotiations and several judicial pre-trials due to extraordinary circumstances in the accused’s case before securing the end result.

In the case of R. v. D.M. [2023], the Firm secured the lowest possible fine and driving prohibition possible for an impaired driving case, despite the accused being a second time offender. The Firm acted quickly on the file entering an early guilty plea, avoiding the Crown filing a notice of increased penalty and imposing a jail sentence due to his second time offender status. The case involved several aggravating factors including open and empty containers of alcohol in the front of the vehicle at the time the accused was pulled over.

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Frequently Asked Questions

What if I am a Second Time Offender?

If a person is convicted of multiple impaired driving offences under section 320.14(1) of the Criminal Code, failure or refusal to comply with a police demand under section 320.15(1), or a related offence over their life, they will face a different set of penalties than those for a first offender. Impaired driving is one of few offences in Canadian law that imposes mandatory minimum sentences for repeat offenders.  Section 320.19(1) of the Code sets those repeat offence punishments as a thirty-day term of imprisonment. A third or subsequent conviction will result in a mandatory one hundred twenty-day imprisonment term. By comparison, the minimum punishment for first offenders is a $1,000 fine.

It may be possible that an accused individual facing a second conviction may avoid the mandatory penalty, but to do so would require an exceptional circumstance. Other countries have that relief available under law. In Canada, the basis of this exception would be the constitutional right enjoyed by all Canadians, including the people of Kitchener, to be free from cruel and unusual punishment at the hands of the government. This right is enshrined in Section 12 of the Canadian Charter of Rights and Freedoms. It would be difficult to establish that a mandatory sentence for impaired driving would rise to the level of a rights violation and would require strong facts in the favour of the accused.

Can I get my Charge Dropped?

Impaired driving charges are some of the most difficult to have dropped. The public view of impaired driving and the need to strongly denounce it led the government to word the offences in the Code broadly to include as much undesirable behaviour as possible. As part of this effort, the police have been given powers which allow them to conduct roadside screening to check a person’s blood alcohol concentration, as well as breathalyzer tests and the equivalent tests for drug detection. These procedures provide strong evidence that the Crown can use to seek a conviction on a charge. Many other offences do not produce such consistently strong evidence.

There is occasionally an alternative to a dropped charge. In Canada, Section 11(b) of the Charter guarantees that everyone faced with a criminal charge will be tried within a reasonable time. As established in the Supreme Court of Canada case of R. v. Jordan, 2016 SCC 27 (CanLII), that timeline is set to eighteen months following arrest if the matter is heard before a provincial court or thirty months in a superior court. If the Crown fails to bring a case to trial in that timeframe without good reason, the court will order a stay and end the proceedings against the accused. However, the timeline can be extended if the Crown successfully argues that the case is especially complex, the delay was unavoidable, or some other exigent circumstance. It is also a requirement that the accused cannot have played an active role in the lengthening the delay. Any delay caused by the accused will be deducted from the timeline.

Will I get a Fine and How Much Would it be?

If a person is convicted of an impaired driving offence, s. 320.19 of the Code states they will have to pay a minimum fine of $1,000 for a first offence. An offence stemming from a refusal to comply with a police demand for a breath sample carries a $2,000 fine. Additionally, if the accused person had an exceptionally high blood alcohol (BAC) when they are arrested, they may be liable for a larger fine. A BAC between 120 mg and 159 mg of alcohol in 100 mL of blood leads to a minimum fine of $1,500. A BAC exceeding 160 is subject to a fine of $2,000. If the Crown choses to treat the offence as a summary offence, the maximum fine a person may receive is $5,000.

The exact fine a person will receive for impaired driving depends on the facts of their case. The amount will depend on if there are more factors, known as aggravating factors. that suggest a stronger penalty than factors that suggest a lesser one, known as mitigating factors, or vice versa. Factors may be aggravating or mitigating depending on the situation and could include such things as: the size of the vehicle, the speed it was being driven, the previous record or age of the offender, and their expressed remorse and attempts at rehabilitation.

Can I get an Interlock in Kitchener?

Ontario’s Ignition Interlock Program is mandatory for anyone convicted of an impaired driving offence. The interlock device requires an individual to provide a breath sample that has a BAC under 0.02 to start and continue driving a car. First-time offenders will have a minimum condition period of one year, which may be increased if the individual violates certain conditions. The time that an interlock remains installed increases with each additional impaired driving offence.

Under certain conditions, installing an interlock can alter and reduce an otherwise complete driving suspension. Provided a person is a first- or second-time offender who was sentenced within ninety days of the offence, an interlock can be installed, allowing a vehicle to be operated. This would allow a convicted first-time offender to drive with an interlock for nine months after serving the first three months of their suspension. It is important to note that an individual must follow the application process and pay any costs both to join the program and to have the interlock removed.

What if I Drive for a Living and Live in Kitchener?

A person’s career has no impact on whether they would be convicted for impaired driving. It may however be relevant to any sentence or driving suspension that is received. For example, an aggravating factor specifically written into s. 320.22(d) of the Code states that a person who commits an impaired driving offence while driving a commercial vehicle they are paid to drive may face a stronger punishment. Employment in general is also routinely seen as a factor that impacts sentencing which can give insight into a person’s potential for rehabilitation. A person with steady employment may be unlikely to reoffend and that may help to convince a judge to impose a lesser sentence. For an example of this, see the New Brunswick Court of Queen’s Bench case of R. v. Hargrove, 2022 NBQB 102 (CanLII) at paragraph 7.

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Recent Cases

R. v. Lochead, 2021 ONCJ 432

The Ontario Court of Justice case of R. v. Lochead explores the concepts of care and control of a vehicle and when the police can make a demand for a breath sample in the context of impaired driving. The offender in this case was charged with having a BAC over the legal limit within two hours after they had been driving. The charge came about because the accused had swerved off the road to avoid an animal and had gotten their car stuck in a field. While waiting for rescue, they began to drink alcohol that was in the car.

The police eventually discovered the vehicle and made a demand for the accused to provide a breath sample. As part of the decision to convict the accused the judge made two important findings. First, because of the accident and the state of the car when it was discovered, the accused could not rely on the defence of consuming alcohol after driving where there is no reasonable expectation that a demand for a breath sample would be made. It was plainly obvious that a police officer might make a demand in the situation that the accused found themselves in. Secondly, the judge stated that the accused could still be said to have care and control of their car because if a tow truck had rescued them before the police arrived, there was a realistic risk that they would then proceed to drive the car while impaired.

R. v. Pankovcin, 2020 ONCJ 142

In the Ontario Court of Justice Case of R. v. Pankovcin, the offender was also charged with exceeding the legal limit two hours after driving. The incident leading to the charge involved the accused colliding with two parked cars and proceeding to block one lane of traffic. The accused was found on the scene trying to restart the vehicle and drive away. The main takeaway from this case concerns an assumption that Canadian law allows the police to make in cases of impaired driving.

That assumption is that a person in the driver’s seat of a vehicle is capable of driving. It is a strong assumption that the accused must disprove using convincing evidence that demonstrates they could not in fact drive the vehicle. Even if that assumption is disproved, the Crown can still prove that the accused still had de facto care of control. To do so, it must be proven that the accused was impaired and that they have engaged in conduct related to a vehicle that shows the accused poses a realistic risk to other persons or property. This standard, also used in Lochead, allows the law to account for the unpredictability of impaired drivers and the possibility that they may drive if they have the option.

R. v. Tripp, 2021 ONCJ 153

The Ontario Court of Justice case of R. v. Tripp examines how a person’s legal rights apply in cases of impaired driving. The case dealt with an accused who was charged and convicted of an impaired driving offence after the police discovered their vehicle partially off the road and out of fuel. After they had been arrested, they expressed that they would like to take advantage of their right to a lawyer granted under section 10(b) of the Canadian Charter of Rights and Freedoms.

The issue in the case dealt with how soon the right could have been reasonably acted on. The circumstances of the case led to a forty-seven-minute delay before a lawyer was contacted at the police station. The delay happened because the officer needed to arrange for a tow truck and transportation for the accused’s passenger on the roadside following the arrest. The judge hearing the case examined this explanation and found that the delay was reasonable and therefore not a violation of the accused’s rights. [at paras 90-95] This idea of reasonableness is important in the Canadian legal system because it reflects the fact that every case is unique. It allows the police and other officials to not to have to operate on a standard of perfection and immediacy. Instead, a delay is acceptable for practical reasons if it doesn’t unfairly disadvantage the accused in any significant way.

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.