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In Canada, the Criminal Code contains several impaired driving offences including impaired driving (drugs and/or alcohol), over .80, and refusal to comply with demand. An individual may be charged with impaired driving where their ability to operate a vehicle is impaired by drugs and/or alcohol. An individual may be charged with over .80 where their blood alcohol content is more than 80 mg of alcohol per 100 ml of blood. Finally, an individual is guilty of refusal to comply with demand where they refuse to provide a breath sample to officers when a lawful demand is made. Recent changes to the law allow a police officer with an Approved Screening Device on their person to demand a breath sample from virtually any driver on the road. Failure to provide an adequate sample is an offence that carries almost identical penalties to impaired driving offences.

In some cases, those arrested are charged with more than one offence. For example, it is common for accused individuals to be charged with both impaired driving and over .80. Donich Law has over a decade of experience defending clients charged with impaired driving offences including second time offenders and those with numerous charges at the same time. The Firm utilizes litigation strategy as well as risk management to obtain the best results for our clients.

In 2016, the Firm represented an individual charged with impaired driving after being in care and control of a Skyjack while intoxicated in R. v. F.B. [2016]. The accused was reported to law enforcement after passersby witnessed the intoxicated accused climb onto the skyjack. When police arrived on scene the accused was still in the driver’s seat with the keys in the ignition. The accused was charged with impaired driving because he was in care and control of the vehicle. This means he had the present ability to put the vehicle into motion. The Firm took the matter to trial and the Crown was unable to meet their burden of proof. The accused was acquitted.

In 2017, the Firm represented an individual who blew over 250 mg after being pulled over on a major Ontario highway in R. v. M.V. [2017]. The accused was charged after he struck an individual on a motorcycle while driving intoxicated. The Firm secured a joint position on penalty with the assigned Crown, resolving the matter with a fine and driving prohibition and avoiding jail time. At sentencing the presiding judge attempted to overrule the joint position, indicating it was too lenient given the aggravating factors in the case. Given the current law on joint penalties, however, the judge was precluded from overruling the position.

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In 2023, the Firm represented an individual charged with over .80 after leaving a golf course intoxicated in R. v. D.M. [2023]. Other motorists who saw the accused pull out of a parking lot called the police to report erratic driving. Officers who attended the scene caught up with the driver and witnessed similar behaviour. A traffic stop was initiated, and officers alleged that it took some time for the driver to pull over and that he seemed confused. The officers further alleged that the accused stopped his vehicle in a live lane of traffic on the highway rather than pulling off onto the shoulder. The accused was found to be significantly intoxicated with open containers of alcohol in his car. The Firm resolved the matter by way of guilty plea, securing the lowest possible fine and driving prohibition, despite numerous aggravating factors.

In 2021, the Firm represented an individual alleged to have been operating a motor vehicle while under the influence of marijuana and cocaine in R. v. B.M. [2021]. The client was stopped by police after officers alleged they witnessed him driving erratically. Upon initiating the stop, officers indicated that they noticed a white powder under the accused’s nose and that his eyes looked blood shot. He was taken to the station to undergo an evaluation by a drug recognition expert who was of the opinion that the accused was intoxicated. Toxicology results later confirmed this suspicion. The Firm resolved the matter successfully after almost two years of Crown pre-trial negotiations, with a small fine and driving prohibition.

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In 2013, the Firm successfully defended an accused individual who was involved in a serious, single vehicle accident in R. v. R.B. [2013]. The young driver was charged after police illegally collected his blood at the hospital following the wreck. The Firm launched a section 8 Charter challenge, arguing that the police had violated the accused’s right against unreasonable search and seizure by taking his blood without a warrant. The Firm argued that the evidence should be excluded as a result of the violation. The court agreed and the blood evidence was thrown out, meaning the Crown was unable to prove the over .80 offence.

In 2023, Donich Law represented a client charged with over .80 and impaired driving in the case of R. v. J.P. [2023]. The accused had been the passenger of a vehicle that was involved in a minor accident. Instead of waiting for police the accused got into the driver’s side and drove away. He was stopped a short time later and placed under arrest after officers developed suspicion that he had consumed alcohol. After lengthy negotiations with the Crown, Donich Law resolved the matter without an impaired driving conviction.

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Frequently Asked Questions

Can you be Charged with Impaired Driving for Being on Prescription Medication?

It is possible to be charged with impaired driving while on prescription medication. Section 320.14(1)(a) of the Criminal Code makes it an offence for an individual to drive while their ability to do so is negatively affected because of any drug, alcohol, or combination of the two. The focus on the act of driving and a person’s ability to do so is deemed more important than the exact substance causing the impairment. The law does not specify consequences beyond the classification of drug or alcohol.

It is a person’s personal responsibility to determine if and how their medication will affect them. Someone who knows their medication will impair their ability to drive should not be driving on the roads of Orangeville after taking a dose. Furthermore, ignorance of the impact a medication may have is no defence to an impaired driving charge because many, if not all, medications will have information or labels that indicate if a person should not be operating heavy machinery such as a car, while taking it.

What is a Field Sobriety Test?

A field sobriety test is a series of evaluations conducted by the police at the roadside to determine if a person is under the influence of drugs. They are usually used when a suspected impaired driver has been pulled over, but there is no indication that they have consumed alcohol and the mandatory screening conducted on an Approved Screening Device does not register a failure.

In those instances, police will call for a drug recognition expert to come conduct a field sobriety test. The exact nature of these tests can vary, but they are all aimed to test a person’s alertness and coordination. As is often seen in movies or other media, the tests might include having the driver walk a straight line, maintain their balance when standing on one leg, or reciting the alphabet backwards. Failing these tests will result in a person being arrested for impaired driving and brought to the police station for further testing. An example of a field sobriety test can be seen in the Provincial Court of Nova Scotia case of R. v. Rowe, 2022 NSPC 15 at paras 11-12.

What is a Drug Recognition Examination?

A drug recognition examination is the next step following a failed field sobriety test and an arrest for an impaired driving offence. It is also conducted by an expert, as would a traditional breathalyzer test. As part of the examination, the expert will take notice of the accused’s appearance, including such indicators of drug impairment as glassy or bloodshot eyes, slurred or excited speech patterns, or agitated behaviour. The expert will also ask questions of the accused to determine their mental state. Finally, the expert may ask the accused to provide a blood or urine sample to determine if they have drugs and/or alcohol in their system, as well as the type and concentration where necessary.

The results of the drug recognition examination are usually the main evidence that an impaired driving offence has been committed. The case of R. v. Rowe, referenced above, describes the content of a drug recognition examination at paragraphs 13-27. Though that case did not include any bodily samples being taken.

What is the Difference Between an Approved Screening Device and a Breathalyzer Machine?

An Approved Screening Device or ASD is a device carried by police that can be used to determine a range for a person’s blood alcohol concentration (BAC) once they provide a breath sample following a legal demand made by police, typically on the roadside. The ASD will indicate if a person’s BAC is either below the legal limit, within the warn range of 0.05-0.079 mg of alcohol in 100 mL of blood, or if the BAC exceeds 80 mg, which is the threshold for a criminal charge. If a person’s sample registers a failure on the ASD, that will be sufficient grounds to arrest an individual and take them to the police station for further testing.

Once at the station, the accused will undergo an official breathalyzer test. These tests are overseen by certified experts and require a person to provide two breath samples, at least 20 minutes apart. The breathalyzer will then determine a person’s exact BAC and these results are the main evidence of an impaired driving offence. The Ontario Court of Justice case of R. v. Lochead, 2021 ONCJ 432 provides an example of this two-stage process at paragraphs 10 and 13-14.

Can the Police Take a Blood Sample Without a Warrant?

After being arrested and as part of a drug recognition examination, the police can take a blood sample in one of two ways. Under s.320.27(1) of the Code, the police can demand that a person provide a blood sample and they must comply or else be charged with refusing a demand under s. 320.15 of the Code.

Or, the sample can be acquired according to the process set out in s. 320.29(1) of the Code which states the police can obtain a warrant to authorize them to, “ require a qualified medical practitioner or a qualified technician to take the samples of a person’s blood.

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Recent Cases

R. v. Ferguson-Kellum, 2023 ONCJ 119

The Ontario Court of Justice case of R. v. Ferguson-Kellum deals with determining the appropriate sentence for an individual convicted of an impaired driving offence. The facts of the case revolved around a single vehicle collision that resulted in significant injuries to a passenger. The sentence for this offence was set at twenty-one months conditional imprisonment served under house arrest and a three-year driving prohibition once that term had expired. This represents a more lenient punishment than the eighteen-month imprisonment term argued for by the Crown.

When deciding on a sentence, judges must apply the principles of sentencing, which includes denouncing criminal behaviour through strong punishments, deterring others from behaving similarly, providing victims with a sense of justice, and allowing the offender a chance to assume responsibility for their actions and begin rehabilitation. The sentencing process also accounts for the unique circumstances of a case by evaluating the facts in favour and against a strong punishment. These are known as aggravating and mitigating factors. In this case, even though the offence resulted in significant injury to the victim, the offender’s young age, status as a first-time offender, genuine remorse and efforts at rehabilitation, and the fact they were raised in a “chaotic and dysfunctional family setting,” [at para 60], were compelling reasons to impose a less restrictive sentence. This case shows how sentencing needs to do more than reflect the seriousness of impaired driving, it also needs to balance the rights and interests of the offender and victim to best represent the principles of the Canadian criminal justice system.

R. v. Nogue, 2022 SKPC 37

The Provincial Court of Saskatchewan case of R. v. Nogue explores the extent to which the law seeks to protect against the possibility that someone might drive while impaired. The facts concerned the police responding to a complaint of an impaired driver and finding the accused sitting in their car with the keys in their pocket. After the accused admitted they had been drinking, the police made a demand for a breath sample and found that the accused had a blood alcohol concentration over the legal limit. He was then arrested for committing an offence under s. 320.14(1)(b) of the Code.

When discussing the issue that an impaired driving offence can be proven by establishing that a impaired person could potentially drive, the judge said the following [ at paras 23-24], “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.”

This concept of care and control is best suited to address the dangers and unpredictability of impaired drivers. Finding an offence where there is a possibility and risk that a person may drive reflects the seriousness of impaired driving offences and how they are treated under Canadian law.

R. v. Chaulk, 2022 CanLII 111252

The Provincial Court of Newfoundland and Labrador case of R. v. Chaulk deals with similar facts as the case above. The circumstances leading to the accused’s conviction for an impaired driving offence were that the police discovered them unconscious in their car in a parking lot while the keys were in the ignition. There were pills and drug paraphernalia in the accused’s possession and they were under the influence of several substances.

In reaching a decision, the judge referenced the leading case on the topic of care and control, R. v. Boudreau. [at para 64] The following passage clearly sets out the reasons that the standard was created. “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 reasoning demonstrates exactly why the assumption that a person in the driver’s seat can drive is so strong under Canadian law.

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.