Understanding Impaired Driving Offences

Saturday, October 01, 2016

When people talk about impaired driving, it’s often about someone getting a “DUI” or being stopped for “drunk driving.” While most people are generally aware that impaired driving is against the law, many are surprised to discover that the Canadian criminal driving regime is highly complicated and criminalizes activities they may not have expected. Unfortunately, ignorance of the law is not a valid defence. This post will cover the basics of some of the more common criminal driving offences and explain the differences between them.

Impaired Driving
An individual may be charged with impaired driving where there are reasonable grounds to believe that they have operated a motor vehicle (or used another specified mode of transport) while their ability to do so was impaired by a drug or alcohol¹. Impairment has a very specific meaning in this context and it must be proven by the Crown beyond a reasonable doubt.

Driving with a Blood Alcohol Level Over .08
Regardless of whether or not one is “impaired,” it is a criminal offence to operate a motor vehicle with a blood alcohol level that is over eighty milligrams of alcohol in one hundred millilitres of blood. Determining one’s blood alcohol level may be done in a number of ways. In over .08 trials, the most common forms of evidence on this issue are breath samples, blood samples and expert evidence.

Care and Control
In Canadian criminal law, there is a distinction between “operating” a vehicle and having “care and control” of a vehicle. The phrase “care and control” is a somewhat vague and can cover a wide variety of circumstances.

In order to be convicted of an offence involving care and control, the Crown must establish three things:

1. That the accused person undertook an intentional course of conduct associated with a motor vehicle; 
2. That the person was impaired (or had a blood alcohol level over the legal limit); and 
3. The circumstances were such that there was a risk of danger to persons or property². 

People will usually be charged with care and control (rather than operation) when they are found in or near a vehicle but not actively driving it. Every care and control case will be fact specific as the Courts can consider a number of factors when deciding whether someone is guilty of this offence.

It is important to note that when someone is found occupying the driver’s seat of a vehicle (regardless of whether or not the vehicle is running), that person is legally deemed to be in care and control. This means that the burden shifts from the Crown to the accused and the accused must establish that he or she did not occupy the seat for the purpose of setting the vehicle into motion.

Refusal
Impaired driving investigations almost always involve police demands for bodily samples (i.e. breath or blood). The police may demand a breath sample at the roadside (for screening purposes) or can demand an individual accompany them for the purpose of providing a sample elsewhere (usually at the police station or Checkstop bus). In the case of a blood demand, a blood sample is often taken at a medical facility and must be taken by a qualified medical practitioner. Whether or not a suspect has the right to speak to a lawyer prior to providing a sample will depend on the type of demand that is made and the circumstances of the case.

The precise types of demands that the police can make are set out in the Criminal Code. It is a criminal offence to fail or refuse to comply these demands without a reasonable excuse. However, as there is no obligation to comply with an unlawful demand, litigation in this area will often focus on whether or not the demand made was lawful in the circumstances³.

More Serious Criminal Driving Offences
Where a situation involves an accident, death or injuries, there are more serious charges (with higher penalties) that the police can lay. Examples of such charges would be impaired driving causing bodily harm, impaired driving causing death or even manslaughter.

Defences
While the concepts of “Drunk Driving” or getting a “DUI” are relatively simple and well known, criminal driving is one of the most complicated areas of Canadian law. The Criminal Code provisions are highly technical and difficult to understand even for many lawyers. Because of the complexity of the area, even if the Crown’s case appears straightforward or strong at first glance, there may be numerous defences available at trial. Defences may be evidentiary or involve seeking remedies under the Canadian Charter of Rights and Freedoms.

If You Have Been Charged
This post contains a very general introductory discussion only and does not cover many of the important aspects of this area of law. There is a huge body of case law devoted to criminal driving and even a straightforward case can raise a number of legal issues. There is no substitute for specialized legal advice that considers the unique circumstances of each case. If you have been charged with a criminal driving offence (or think that you may be charged), it is important to obtain advice from a lawyer who is familiar with this area. If you would like a free consultation from one of our lawyers, please contact us at your convenience.

1. This article is limited to a discussion of motor vehicles for simplicity. The offences discussed herein can involve motor vehicles, vessels, aircrafts and railway equipment.

2. See R v Boudreault, 2012 SCC 56.

3. R v Grant, [1991] SCJ No 78.

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