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Impaired driving offences are considered very serious in Canada and are one of the few offences that can carry a mandatory minimum jail sentence. An individual who is convicted of an impaired driving offence, including refusal, will face a mandatory minimum fine as well as a mandatory minimum driving prohibition for a first offence. Anyone convicted of impaired driving for a second or subsequent time will face a mandatory minimum jail sentence except in rare situations.

Donich Law has experience defending individuals charged with various impaired driving offences in Cobourg and Peterborough. We combine litigation and risk management strategies to achieve the best possible outcomes for our clients. If you have been charged with an impaired driving offence it is important to consult with legal counsel to better understand your rights and obligations as well as the various consequences of an impaired driving conviction.

In 2016, the Firm represented an individual charged with impaired driving on a construction site in R. v. F.B. [2016]. The accused was seen by witnesses operating a Skyjack after allegedly finding the keys in the ignition of the machine. Witnesses contacted law enforcement upon becoming suspicious that the man was not a construction worker and appeared intoxicated. Police attended the scene and placed the accused under arrest. The Firm set the matter down for trial after almost three years of litigation, ultimately securing an acquittal at trial.

In 2017, the Firm represented an individual charged with impaired driving after allegedly hitting an individual on a motorcycle in R. v. M.V. [2017]. The accident occurred on the Gardiner Expressway. When police attended the scene, they made a roadside breath demand which the accused failed. He was breathalysed at the police station where he blew over three times the legal limit. The Firm engaged in lengthy Crown pre-trial negotiations, securing a favourable deal through a joint position. A joint position means that the Crown and defence both agree on the appropriate sentence. During the sentencing hearing, the judge expressed distaste for the joint position, however case law prohibited him from overruling it.

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In 2023, the Firm represented an individual charged with over .80 and impaired driving in R. v. J.P. [2023]. The client was stopped by police after a witness called law enforcement to report a hit and run. The client had been the passenger in the car during the hit and run and had driven away from the scene in the car. Upon making contact with the client, police detected a strong odour of alcohol, among other things, and placed the accused under arrest. The Firm resolved the matter by way of a careless driving provincial offences ticket.

In many impaired driving cases, there is no real defence to the allegations. Often, the only times to beat a charge is to launch a Charter challenge. There are very specific rules regarding impaired driving investigations. Officer’s must make specific demands during specific time periods. If there is a failure to follow proper procedure, and that failure amounts to a Charter breach, it is possible to utilize the breach to defeat the case.

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In 2013, the Firm represented an individual charged with over .80 and dangerous driving in R. v. R.B. [2013]. The driver was arrested at the hospital after getting into a serious accident that caused his vehicle to split in two. Despite minor injuries, he was taken to hospital where police took a blood sample without a warrant. The Firm challenged the warrantless search, arguing that the client’s section 8 Charter right had been violated, successfully causing the evidence to be excluded. The Crown’s initial position on sentence involved custody due to the serious nature of the collision and the fact that the driver’s blood alcohol level was 2.5 times the legal limit. Ultimately, the Firm resolved the matter with only a small fine, avoiding a jail sentence.

In 2022, the Firm represented a client charged with impaired driving and over .80 in R. v. A.A. [2022]. The accused was arrested after police attended the scene of a minor collision between the accused and another car and became concerned the driver was intoxicated. As a second time offender, the Crown sought a period of custody for the accused. After almost two years of litigation, the Firm negotiated with the Crown to keep the accused out of custody.

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Frequently Asked Questions

How Does the Crown Prove a Refusal Offence in Cobourg?

Section 320.15(1) of the Criminal Code makes it an offence for any person to fail or refuse to comply with a demand made by police. One such demand can be made where the police require someone to provide a breath sample on an Approved Screening Device as part of mandatory screening for impaired driving. The police have the power to pull over any driver at any time to make such a demand. They can even come to a person’s home to make a demand if they have evidence that suggests a person has driven while impaired within the last two hours.

If a person refuses the demand to provide a sample, the Crown only needs to prove two specific elements to establish that a refusal offence occurred. First, that the police made a lawful demand and second, that the person, knowing the demand was made, did not provide the sample. The Provincial Court of Newfoundland and Labrador case of R. v. Gardner, 2021 CanLII 78781 (NL PC) provides an example of how a refusal offense is proven. [at paras 34-38]

What are the Penalties for Impaired Driving, Over 80 and Refusal in Peterborough?

The penalties for impaired driving and these related offences are contained in s. 320.19 of the Code. These offences are known as hybrid offences, which allows the Crown to elect how to prosecute each offence based on its severity and other context. The Crown can elect to prosecute the offence as a summary offence which carries lesser penalties upon conviction, ranging from a mandatory minimum fine of $1,000 for a first offence to a maximum punishment of a $5,000 fine and two years less a day of imprisonment. The minimum punishment for a second offence is a 30-day prison term and 120 days for each additional offence. The minimum fine can also be increased depending on the blood alcohol concentration (BAC) of the offender when they were arrested. If an offender is arrested with a BAC between 120-159 mg of alcohol in 100mL of blood, they will receive a $1,500 fine, and a $2,000 fine if their BAC is equal to or over 160mg.

For more serious impaired driving or related offences, the Crown can elect to prosecute what is known as an indictable offence. These offences are prosecuted where the offender’s conduct deserves a punishment greater than the maximum possible under a summary offence. Indictable offence impaired driving carries a maximum sentence of ten years imprisonment. It also carries the same minimum penalties mentioned above. The exact sentence will be different in every case based on the facts in favour or against a strong punishment, known in law as aggravating and mitigating factors. Some aggravating factors are specific to impaired driving offences and are set out under s. 320.22 of the Code.

What are the Penalties if an Impaired Driving Incident Injures or Kills Someone?

Sections 320,14(2-3) of the Code establish separate offences for when impaired driving causes bodily harm or death to another person respectively. Bodily harm is defined in s. 2 of the Code as, “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.” This means that to establish bodily harm, any injuries sustained by a victim need to be significant and have some lasting effect on their health for at least a short period of time. This definition would not include minor injuries such as scrapes or bruises.

Because of the serious nature of the consequence of impaired driving where bodily harm or death is caused, a stronger penalty is called for under the law. This reason for the increase in penalty is known in law as an aggravating factor. Section 320.20 of the Code classifies impaired driving causing bodily harm as a hybrid offence. It carries the same minimum and maximum punishments for a summary conviction as set out in the question above. When treated as an indictable offence, the maximum sentence is 14 years imprisonment.

Section 320.21 of the Code sets out that impaired driving causing death can only be prosecuted as an indictable offence. The maximum sentence for this offence is life imprisonment. The minimum sentences set out above still apply for this offence as well.

Will an Impaired Driving Charge Impact Travel to Another Country?

An impaired driving offence will result in a person receiving a criminal record, which can make traveling to another country difficult. If someone is planning an international vacation leaving from Cobourg, they need to be aware that each country reserves the right to refuse entry to individuals with criminal records, but in most cases individuals with records consisting of an impaired driving charge are not often not prioritized on the list of inadmissible persons.

Travel to the United States can be another matter. People are admitted to the U.S. on a case-by-case basis. It is not uncommon for a person with a criminal record for impaired driving to be allowed into the country several times, only to be refused entry by a customs official one time. To help avoid these issues, a Canadian with a criminal record traveling to the US can file an application for advanced permission to enter the country with U.S. Customs and Border Protection.

What Happens if Someone is Unconscious and Cannot Provide a Breath Sample?

If someone in Peterborough has committed an impaired driving offence resulting in bodily harm to or the death of another person, but is unable to provide a breath sample to police because they are unconscious and cannot be revived, s. 320.29(1) of the Code sets out the procedure the police must follow to obtain a blood sample that is evidence of the offence. According to that section the police must go before a judge who may authorize a warrant that allows a qualified professional to take a blood sample for analysis to determine a person’s BAC and/or blood drug concentration.

To obtain this type of warrant, the police must prove to the judge that there are reasonable grounds to believe that the person has driven while impaired by alcohol and/or drugs within the last eight hours and that they were involved in accident that caused bodily harm to someone including themselves or death to another. The police must also demonstrate that it is the opinion of the qualified professional taking the sample that the person’s condition renders them unable to consent to a sample being taken and that taking the sample will not endanger the person’s health. If each of these conditions are met to the judge’s satisfaction, they will issue a warrant to take a blood sample from the unconscious person for analysis.

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Recent Cases

R. v. Ferguson-Kellum, 2023 ONCJ 119

The Ontario Court of Justice case of R. v. Ferguson-Kellum is an example of how a sentence is issued for an impaired driving offence. In this case the offender was convicted of an impaired driving causing bodily harm offence after a single vehicle collision led to the offender’s passenger suffering significant internal injuries. The offender was sentenced to 21 months of conditional imprisonment that could be served under house arrest and a three-year driving prohibition following the initial term of imprisonment. The sentence represents a less restrictive alternative to the 18-month prison sentence argued for by the Crown.

When arriving at this decision, the judge had to apply the principles of sentencing. They include making a statement denouncing the criminal behaviour, deterring others from similar behaviour, aiming to give the victims a sense of justice, and allowing the offender to take responsibility for their actions and begin rehabilitation. These principles are applied after considering the aggravating and mitigating factors in each case. While the significant injury to the victim was a significant aggravating factor here, the judge emphasized the fact that the offender was a first offender who was 21 years old and was raised in a “chaotic and dysfunctional family setting”. [at para 60]

Also important was the remorse that the offender had shown following the offence and the significant efforts they had taken towards their rehabilitation. This case demonstrates that the Canadian criminal justice system prioritizes more than just punishment for misdeeds. It also attempts to strike a balance between the rights and interests of the offender and victims as each case demands.

R. v. Johnson, 2021 ONCJ 383

The Ontario Court of Justice case of R. v. Johnson demonstrates a scenario where a sentence for an impaired driving offence can be more severe. The offender in this case was sentenced to six years in prison following an accident caused by impaired driving that resulted in the death of two individuals and severe injuries to a third. As is explained above on this page, impaired driving leading to injury or death is an aggravating factor contained within the Code that suggests offenders in that circumstance will be faced with a heavier sentence.

When the principles of sentencing were applied to the context of the aggravating and mitigating factors, the reason for the discrepancy in sentence between this case and the one discussed above becomes obvious. The offender here was also being convicted of a first offence and had expressed remorse while beginning the rehabilitation process. However, the aggravating factors in favour of a stronger sentence were overwhelming. Beyond the tragic results of the offence and the impact on the victims, the high rate of speed the offender was driving at and their level of intoxication being significantly over the legal limit upon arrest where persuasive factors in determining the appropriate sentence.

Cherniwchan (Re), 2023 ABSRA 346

The SafeRoads Alberta decision of Cherniwchan (Re) deals with issues surrounding inability to comply with a police demand and the production of bodily samples. The case concerns a driver who had received an administrative penalty for a failure to comply with a police demand for a breath sample. The driver contested that they were unable to provide a sample because of asthma and a history of smoking. Instead, they attempted to argue that a blood sample should have been taken before issuing a notice of administrative penalty. It was determined that the driver did not successfully establish a medical reason for their failure to comply. It was found that the failure was a result of the driver not using the police’s approved screening device correctly.

Regarding the issue of taking a blood sample in place of a breath sample, the adjudicator stated at paragraph 16, “To summarize, peace officers do not have the authority to compel a blood sample unless they have reasonable grounds to believe a person is impaired by alcohol or a drug while operating a motor vehicle and nor is this process expedient. An ASD is a screening device whereas blood samples are evidentiary in nature and engage certain rights temporarily suspended during an ASD roadside screening test. Further, I am not aware of any legislated requirement for a peace officer to offer a blood test to the subject of a MAS demand, or that the Recipient may determine the method of his compliance with the demand.”

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.