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Defend Drinking and Driving

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Our Experience

The Firm regularly defends law-abiding citizens, without criminal records, who are confronted with allegations of impaired driving. We have represented institutional traders, business owners, regulated professionals, local construction union workers, hospital staff, students and many other young professionals faced with drinking and driving allegations. Impaired driving affects everyone, courts have raised penalties and eliminated defences in an effort to increase deterrence.

After nearly 3 years of litigation, the Firm secured a full acquittal at trial, in its R. v. F.B. [2016], where the accused was alleged to have operated a Skyjack on a construction site, for which keys were found in the ignition. The accused was found intoxicated and witnesses believed he was operating the motor vehicle. People are often surprised that a person can be charged for drinking and driving, even when they aren’t in a car. It’s also not necessary for the ignition to be on for there to be a conviction.

In the Firm’s R. v. M.V. [2017], it defended an impaired driving allegations where the driver struck a motorcyclist on the Toronto Gardiner Expressway and blew over 250 mgs. The Firm was able to avoid serious penalties and resolve the matter with a fine through a joint position. The sentencing Judge attempted to deviate form the plea deal but was prohibited based on the negotiations between the lawyers. Judges can only overrule lawyers in a plea deal in very limited circumstances. If there was a contested guilty plea, the court would have raised the sentence significantly given a motorist was hit.

The Firm further defended an impaired driving allegation in its R. v. D.E. [2018], where the driver was in a collision on the Toronto highway 401, injuring another driver and caught walking down the highway, ultimately blowing 160 mgs. The Firm was able to avoid serious consequences by challenging the evidence as the case proceeded to trial. Courts have a 0-tolerance approach to impaired driving, which means sentences have been increasing over the years.

In its R. v. R.B. [2013], on November 2, 2013, a car struck a poll on Clonmore Drive and sliced in two. The driver, walked away with minor injuries. At the hospital, the driver’s blood was seized without a warrant and registered close to 200 mgs of alcohol per 100 ml of blood. The Firm excluded the evidence on the allegation of Over 80 and dangerous driving at trial. The Crown was initially seeking a jail sentence given the serious collision and risk of injuries to others. The Firm was able to resolve the matter with a low fine through a joint submission, where the trial judge voiced concern with the lenient position. Courts are required to follow deals that lawyers make and can only overrule in some circumstances.

Stages of the Criminal Justice System

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According to a Statistics Canada report from 2021, as of 2019, police across Canada had reported a 19% annual increase in incidents of impaired driving. This ended a downward trend that had continued since 2011. Despite this increase, Toronto had one of the lowest rates of impaired driving among Canadian cities when adjusted for population. Per 100,000 people, Toronto only reported 73 instances of impaired driving, second lowest among Canadian cities. Over the past few years, the rates have declined again, most likely due to the COVID-19 pandemic.

Statistics suggest that men and young adults are the groups of people most likely to be charged with impaired driving. It was also found that alcohol-impaired driving peaks typically around late nights and weekends, but that drug-impaired driving remains fairly constant regardless of time of day or week.

In 2023, the Firm successfully represented an individual charged with impaired driving and over .80 offences in R. v. J.P. [2023]. After being the passenger in the car during a car accident, the client got into the driver’s seat and drove away from the scene of the accident. He was stopped a short time later by police as a result. During their investigation into the incident police developed a reasonable suspicion that the client was intoxicated and made a demand for a roadside breath sample which the client failed. The Firm exploited issues with the Crown’s case to secure a withdrawal of the impaired driving charges, resolving the matter by way of a careless driving plea.

What’s a Crime in Canada?

In the Firm’s R. v. M.V. [2014], it secured a withdrawal of Over 80 by high profile Bay Street Investment Banker charged at a RIDE stop with a bolus drinking defence. This result was achieved by obtaining affidavit evidence from witnesses at the party he attended. These people were able to provide details surrounding the time and quantity of alcohol consumed by the accused. There have been recent changes to this defence so it may no longer be an option for defence lawyers to use. A bolus defence essentially challenged the timing of drinking to show the driver was not impaired at the time of driving, but only when they blew into the breathalyzer.

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Frequently Asked Questions

What is Impaired Driving?

In Toronto and across Canada, driving while under the influence of alcohol and/or drugs is dealt with under ss. 320.14-320.15 of the Criminal Code. In general, an impaired driving offence is committed where a person’s ability to operate their vehicle is negatively affected after consuming drugs or alcohol. An offence will also be found where police learn that a person stopped driving within the last two hours, and an Approved Screening Device shows they have a blood alcohol level at or above 80 mg of alcohol in 100mL of blood. For drug-based charges, the offence depends on if someone’s blood drug concentration meets a level that changes according to the type of drug in their body.

Additionally, impaired driving offences have specific procedures if a person’s driving results in injury to or death of another person. As a result, punishments for impaired driving can be very different depending on the circumstances and severity of each case. Someone can also be charged if they knowingly refuse to comply with a demand made by police that involves the offence without a reasonable excuse. For example, this means that a person is guilty of an offence if they refuse to undergo any testing or screening procedures that a police officer demands they do.

What if I got Drunk After I was Done Driving?

Section  320.14(5-7) of the Criminal Code are exceptions to impaired driving offences. They state that no person can commit an impaired driving offence if they consume alcohol and/or drugs after they have stopped driving and they had no reason to believe they would be required by police to provide a bodily sample. Although, in cases where either an accident has occurred, there is video evidence of impaired driving, or another reason for the police to demand a sample; they can do so up to two hours after a person has stopped driving. As such, the exceptions can be limited by the facts of each case.

The case of R. v. Zachar, 2023 ONCJ 135 (CanLII), is one example of the exception defence being used to raise reasonable doubt that an accused was impaired while driving, but the fact that he had been in a single car collision meant that he could not have a reasonable expectation that he would not be asked to provide a breath sample when the police arrived. Therefore, the accused was convicted for having a blood alcohol level over the legal limit within two hours after driving due to the drink he had consumed between the time of the accident and the arrival of the police.

Can I get my Impaired Driving Charges Dropped, or Plead to a Lesser Offence?

It is very difficult to get impaired driving charges dropped or have an accused plead a lesser offence. Impaired driving is a serious offence treated as a public safety risk in Toronto and across Canada. The public’s view on these offences means the Crown takes these charges very seriously. Impaired driving is one of few offences under Canadian law that imposes mandatory minimum terms of imprisonment when sentencing repeat offenders. A second offence will result in imprisonment for 30 days, and each additional offence will result in a term of 120 days.

The nature of these offences also present challenges to accused persons. Because of the established screening and testing procedures, the Crown has strong evidence at its disposal in the form of test results. This means charges are rarely dropped. However, there is the remote possibility that the charges may be dropped because of a delay in the disclosure process and a resulting violation of an accused’s right to a timely trial under s. 11(b) of the Canadian Charter of Rights and Freedoms. There are also some instances where the circumstances of a case and an accused’s low blood alcohol levels could lead to them having the opportunity to plead guilty to a careless driving offence.

What are the Recent Changes to Impaired Driving Laws?

Bill C-46 received Royal Assent and came into effect in December of 2018. The bill made several amendments to the Criminal Code concerning impaired driving offences. Among the most important was that police now have the authority to demand a person undergo mandatory roadside screening and provide a breath sample if the officer has an Approved Screening Device in their possession. The amendment represents a significant increase in police powers. Under the old legislation, an officer could only make such a demand if they had a reasonable suspicion that a person had consumed alcohol. Such a suspicion may have come from observing an individual’s driving or from a conversation once the driver had been pulled over but because of the new law it is no longer necessary.

The amendment also introduced the timing considerations and additional offences around impaired driving, including the refusal to comply. From this came the exception defences to the offences for consumption after driving, as well as the two-hour window for the police to make a demand after a person had ceased driving.  Increased sentences and alternative penalties such as expanded prohibition powers were also introduced under Bill C-46.

What Kinds of Information Will be Disclosed to Me as Evidence?

There are several pieces of information that may be included in a disclosure package provided to a person that is accused of an impaired driving offence. A package will commonly include evidence such as the results of the mandatory screening conducted on an Approved Screening Device that the accused completed in compliance with a police demand (typically included in officer’s notes from the scene). The results of the screening are what lead the police to bring the accused to the police station for a breathalyzer test. As such, disclosure will also include the official breathalyzer results that were administered by a qualified person and obtained after the accused was brought to the station. The accused will also receive the results of any criminal background or driving record check that the police have conducted.

Depending on the circumstances of a case, disclosure may include witness statements that contain eye-witness descriptions of the events surrounding the offence. A statement will also be provided that was made by one individual who is deemed the complainant in a case. The accused may also receive the summaries of any 911 calls regarding the offence and any notes made by the arresting officer. Any available body or dashboard camera footage of the event will be provided to the accused as well.

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Recent Cases

R. v. Febbo, 2023 ONCJ 162

In the Ontario Court of Justice Case of R. v. Febbo, the offender was convicted of one count of impaired driving causing bodily harm and one count of failing to remain at the scene of a collision. The two counts came from two different collisions that occurred a few minutes apart. The offender was received a sentence of thirty-three months imprisonment, thirty of which came from the impaired driving conviction. A three-year prohibition order was also issued to prevent the offender from driving after he is released from custody.

In deciding the appropriate sentence, the judge weighed several factors that impacted its content and length, both for and against the offender. They included the fact that this was a first offence, and that the offender had a decent chance at rehabilitation because of the social supports he had available and his attempts to meaningfully address his substance abuse issues. However, it was found that the seriousness of the matter and his continuing to drive while impaired even after the initial collision was more important considering the severe injuries sustained by the victim. [at paras 29-31]

The judge ultimately concluded based on sentencing principles, [t]hese offences lean more heavily towards the denunciation and deterrence side of the ledger than other offences…” [at para 32] This demonstrates how importantly the Canadian legal system views impaired driving offences.

R. v. Madadi-Farsijiani, 2021 ONCJ 196

In the Ontario Court of Justice case of R. v. Madadi-Farsijani, the offender was charged with impaired driving with a blood-alcohol concentration over the legal limit. The offender attempted to rely on the post-driving alcohol consumption defence. He argued that he had only drunk some alcohol that he had recently purchased while waiting for the police to arrive at the scene because of a post-traumatic response triggered by memories of a previous accident.

In analyzing this defence, the judge found that the offender consumed large amounts of alcohol prior to the collision. The court then turned to the issue of needing to have a reasonable expectation not to undergo roadside screening. Even accounting for the offender’s past, the judge determined that because the police were called to the scene and there was obvious damage to the vehicle, it was only reasonable to expect screening to be conducted [at para 30]. This case clearly shows that to successfully use the post-driving consumption defence; a person must have a plainly obvious reason not to expect to undergo roadside screening based on the facts of their individual case. As such, this defence is very difficult to rely on in most instances.

R. v. Gray, 2019 ONCJ 661

In the Ontario Court of Justice case of R. v. Gray, the accused was charged with driving while impaired by a drug. Important to the sentencing in this case was the fact that the accused had a previous criminal record and a record of multiple driving offences. The judge determined that the criminal record was for an offence not related to impaired driving and could not be used as an aggravating factor to increase the offender’s sentence. However, the judge highlighted several cases where the presence or lack of a driving record worked both for and against accused persons in changing the sentence for an offence.

In this instance, the judge found that because the sentence was for a driving offence and the offender’s driving record showed a patten of disregard for the rules of the road, the record was relevant to the sentencing decision. “In these narrow circumstances, the driving record speaks to the need for specific deterrence and the likelihood of recidivism.  It also potentially rebuts the notion of good driving character.” [at para 12]. Based on this, the offender was sentenced to a two-month conditional sentence and a two-year driving prohibition. This case shows the range of information that a court can will use to inform their decisions.

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.