Introduction
Impaired Driving Causing Bodily Harm is a one of the more serious charges one can face in the DUI realm.
The criminal offence of Impaired Driving Causing Bodily Harm has the same elements as Impaired driving, with the addition of an aggravating feature of bodily harm being involved to one or more individuals. Typically, the harm is caused to: (a) passengers in a vehicle; (b) passengers in another vehicle or (c) bystanders.
What is “Bodily Harm”?
Bodily harm is defined under the definition section in the Criminal Code of Canada (s. 2), and includes the following: “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”.
What is “Causation”?
Culpability for the offence of Impaired Driving Causing Bodily harm is based on the commission of the offence of impaired driving, and, additionally, the causing of bodily harm as a result of the offence.
Courts require a link between the impairment of the accused’s ability to operate motor vehicle and the bodily harm in question. It is not sufficient that a person operate a vehicle in an impaired fashion and bodily harm simply ensued.
The test for causation is that the act has to be a significant contributing cause (see R. v. Nette). Evidence that an act was possibly a cause cannot provide an evidentiary basis for a finding beyond a reasonable doubt that the act significantly contributed to the bodily harm.
Eligibility of a Conditional Sentence
Sentencing Range
There is no “set” or minimum punishment for Impaired Driving Causing Bodily Harm (unlike Impaired Driving simpicitor). There is a range of different types of punishments that may be imposed, and where someone falls within the sentencing range will often be determined by the following factors:
- Whether they blew over the legal limit, and if so, what the readings were
- The number of victims
- The extent of the accident, if another vehicle was struck
- The extent of injuries, often evidenced by both medical reports and victim impact statements
- The nature of the driving leading up to the offence
- The offender’s prior criminal antecedents
- The offender’s age
At the low end of the sentencing range, there are cases in which individuals have received fines and probation (see, for example R. v. Smith ONCJ 11 where a Suspended Sentence and Probation was imposed where relatively serious injuries were sustained).
One step up in sentence severity, you will find Conditional Sentences of Imprisonment being imposed (see, for example, R. v. Swanson, 2013 ONSC 3287). Typically, conditional sentences are imposed where there a number of aggravating features in the case (serious injuries, bad driving, etc), but some unique mitigating factor(s) that lead the Court to determine that actual jail is not warranted.
That said, it is fair to say that anyone charged with Impaired Driving Causing Bodily harm is at least subject to the risk of a jail sentence, even if there are a wide range of mitigating circumstances. Parliament and Courts are gradually taking a more rigid, crime-control stance against Drinking and Driving, as it is a crime that can be avoided, yet one that happens in high numbers daily.
Jail sentences range from 90 days to high end penitentiary sentences.
Proving Impairment
There is no exact formulae for a court to apply in order to assess whether impairment of driving ability has been established. Courts will often assess the testimony of witnesses, both civilian and officer, and analyze what impact, if any, the consumption of alcohol had on attributes such as:
- Speech
- Movement
- Driving ability
- Dexterity
- Physical appearance
In R. v. Bulland, 2019 ONSC 1157 (at para. 81), the Court outlined a list of model jury instructions which pertain to this issue:
“The following principles inform the determination of this issue:
o The ability of a person to operate a motor vehicle is impaired by alcohol if, due to the consumption of alcohol, the person drove with less ability than an ordinary, careful driver in similar circumstances;
o A person’s ability to drive may be impaired by alcohol even though there is no evidence of bad driving. Conversely, people may drive badly without being impaired.
o Accordingly, the issue is not whether the Defendant drove his motor vehicle improperly but rather whether his ability to drive the motor vehicle at the time of the collision was impaired by alcohol;
o Operating a motor vehicle requires a person to exercise both physical and mental ability;
o Physical ability refers to the ability of the driver to perform normal driving functions in a proper and timely way, for example:
o Steering
o Braking
o Reacting to changing circumstances and conditions and so on.
o Mental ability has to do with
o Perception
o Judgment
o Prompt and accurate assessment of existing or changing circumstances and conditions
o To decide whether the Defendant’s ability to operate a motor vehicle was impaired by alcohol, you must consider all the evidence including:
o What and how much the Defendant had to drink and how quickly he did so;
o The actual manner in which the Defendant drove;
o The physical symptoms that the Defendant displayed;
o The Defendant’s general conduct and appearance;
o The presence or absence of a smell of alcohol on the Defendant’s breath;
o The results of any scientific tests; and
o The evidence of experts about blood alcohol concentration and the effect of alcohol consumption on physical and mental abilities: See David Watt, Watt’s Manual of Criminal Jury Instructions, (Toronto: Thomson Carswell, 2015), 2d ed., at pp. 866-867.”
Cross-examination of Police Witnesses – Fighting Impaired Driving Allegations
Almost always, the Crown’s case rests on circumstantial evidence of impairment rather than direct evidence. In order for the Crown to prove a charge while resting on evidence that is entirely circumstantial, a legal rule exists which requires the trier of fact (Judge or jury) to determine that there are no other reasonable explanations for the conduct in question besides the accused having committed the offence. In the context of Impaired Driving, this means that the Crown must prove, beyond a reasonable doubt, that there are no other reasonable explanations for the accused’s driving besides their driving being impaired by drugs or alcohol.
This evidence generally rests on observations of eye-witnesses, usually police officers, who can be cross-examined on these observations. Below is a list of some of the observations witnesses commonly make of impaired driving suspects, and some of the ways in which the observations can be challenged at trial:
- “There was an odour of alcohol on his/her breath” à All this tells us is that alcohol was consumed, but not that the alcohol affected ability to drive
- “The accused had bloodshot, watery or glassy eyes” à These observations can be explained by a number of factors, like fatigue
- “The accused’s speech was slurred” à The witness often does not know how the accused speaks when sobor and therefore can’t always evaluate what is slurred speech versus what is not
- “There was an accident, so they must have been impaired” à First, the accident may not have been witnessed, including the driving leading up to the accident. Second, accidents can be caused by other factors (e.g. speed, using a cell phone, etc).
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