On this site, you will often find resources and strategies published for free in order to assist people – accused individuals or even other defence lawyers – with understanding their rights and options in defending Impaired Driving charges in Toronto. The tip in this article is an important one, and it relates to understanding the rules by which Crown Attorneys (the prosecutors in a criminal case) must “play” in Drinking and Driving / Impaired Driving cases.

The Crown Policy Manual – Drinking and Driving Charges

One very critical thing that every Toronto Impaired Driving Lawyer (and every self-represented person) must know is what the Crown Policy Manual says about Drinking and Driving charges.

The police can be found online and is a publicly accessible resource. Review the manual carefully. One important part of it relates to the limits on Crown Attorneys in negotiating resolutions to impaired driving charges in Ontario.

The policy stipulates that,

Absent exceptional circumstances and then only with the prior approval of the Crown Attorney or designate, the Prosecutor must not:

  1. withdraw a Criminal Code driving offence that relates to the impairment of the driver in exchange for a guilty plea to an offence under the Highway Traffic Act or a Criminal Code offence that does not address the impairment of the driver
  2. withdraw charges of “Over 80” solely because the readings are low
  3. withdraw fail to remain or drive while disqualified charge in exchange for a guilty plea to impaired or “Over 80” or vise-versa.

COVID RECOVERY POLICY – CROWN ATTORNEY

Despite the factors above, the COVID pandemic introduced new strains on an already burdened criminal justice system, leading to additional case backlog and volumes of work on the plates of Crown Attorneys that at times may be unmanageable. A new COVID Recovery policy was introduced, and part of it relates to resolutions in impaired driving cases. The most critical part of the policy is copied below:

In reviewing alcohol impaired driving cases, Prosecutors must consider the impact of the COVID-19covid 19 pandemic as an exceptional circumstance justifying the withdrawal of the Criminal Code driving offence in exchange for a guilty plea to the Highway Traffic Act (HTA) offence of careless driving.

Where the exceptional circumstance justifying a careless driving resolution is the impact of the COVID-19, an accused is ineligible for the resolution if any of the following deemed aggravating factors under the Criminal Code and other factors are present:

  • bodily harm or death resulted
  • the accused’s blood alcohol concentration is equal to or more than 120 mg within two hours after operating a vehicle
  • the accused has a prior criminal or HTA record for similar offences
  • the accused is prohibited or suspended from driving under a federal or provincial act
  • a collision or significant bad driving was reported
  • the accused has a prior HTA ‘warn’ or ‘ADLS’ licence suspension
  • the accused was being paid for driving at the time
  • a person under the age of 16 years was a passenger in the vehicle
  • the accused refused to provide a breath or blood sample
  • the accused was driving a large motor vehicle
  • the impairment was caused by drugs or a combination of drugs and alcohol

A decision to accept a careless driving resolution must be approved by the Crown Attorney or designate. The protection of the public is the primary concern at every stage of the prosecution of impaired driving offences.

NEGOTIATING TACTICS ON RESOLUTION

If you are attempting to negotiate a resolution to your Impaired Driving case, aiming to convince the Crown to offer a plea to a Careless Driving (traffic) ticket, a careful review of the factors above should occur before a proposal is made. For example, in the past, Crown Attorneys in many courts would shy away from offering a Careless Driving resolution where blood alcohol levels exceeded 100 mg of alcohol in 100 ml of blood. Here, you can point to the cut off being 120 mg if a Crown is suggesting a reading of 100 mg, or something in that territory, is “too high”.

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