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.