Introduction

The criminal offence of Impaired Driving (or Operation) occurs where a person operates a motor vehicle while his or her ability to operate the vehicle is impaired to any degree, ranging from slight to great, by either alcohol or drugs.

Section 320.14(1) of the Criminal Code sets out the offence, and states the following:

“320.14 (1) Everyone commits an offence who

  • (a)operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug”

The Crown Attorney, like all other criminal offences, is required to prove the offence beyond a reasonable doubt.

Impairment Need Not Be Significant

Parliament has made it clear that the impairment can be of any degree to ground liability – you don’t need to be “fall down” drunk to risk liability for an impaired driving charge!

In Uduma, 2019 ONSC 2350, on a summary conviction appeal, Barnes J. stated (at para. 11):

At the time of trial, the offence of impaired operation of a motor vehicle was set out in s. 253(1) of the Criminal Code, which is now s. 320.14(1). The amendment did not change the role of impairment in assessing guilt of this offence. There is no special test for determining impairment: this offence is made out where there is evidence establishing “any degree of impairment from slight to great” on the accused’s ability to operate a motor vehicle: R. v. Stellato, 1993 CanLII 3375 (ON CA), 1993 ONCA 3375, 12 O.R. (3d) 90, at para. 14, aff’d 1994 CanLII 94 (SCC), [1994] 2 SCR 478. Impairment by itself is not a crime; rather, it is its impact on a person’s ability to operate a motor vehicle which is the crux of the analysis. It is in this context that the term “impairment” is used.

While impairment need not be significant, the Crown must prove that the impairment in question affected the accused’s ability to operate their vehicle (or conveyance).

What Is a Conveyance

A conveyance is defined under s. 320.11 in the definition section of the amended DUI provisions of the Criminal Code, and includes:  motor vehicles, vessels , aircrafts or railway equipment.  It has been held that non-motorized transportation methods, such as a canoe, can qualify as a “vessel” and trigger liability for a Drinking and Driving offence (see, for example, R. v. Sillars, 2022 ONCA 51).

Care or Control

Based on the amendments to the Criminal Code in 2018, operating a vehicle entails that the person also has care or control of the vehicle: s 320.11 of the Criminal Code.

Moreover, a person is presumed to operate a motor vehicle if it is proved that the accused occupied the driver seat, unless they can establish that they did not occupy the seat for the purpose of setting the vehicle in motion: s 320.35 of the Criminal Code.

In short, you can be liable for Impaired Driving or Driving with Excess Blood Alcohol (80 Plus) even if you are not driving a motor vehicle.  The same penalties apply if you have care or control as they would for operation.

The Crown Attorney has two routes to take in order to establish that someone has care or control of a vehicle:

  • Using the presumption under s. 320.35, where the accused is found sitting in the front seat of the vehicle
  • Proving “actual” care or control

Regarding actual care or control, criminal liability may attach where the Crown proves that the acts or conduct of the accused in relation to the motor vehicle could cause the vehicle to become a danger whether by setting the motor vehicle in motion or in some other way: R. v. Wren (2000), 2000 CanLII 5674 (ON CA), 144 C.C.C. (3d) 374 (Ont. C.A.).

An intention to drive the vehicle is not an essential element of the offence of care or control: Ford v. The Queen,1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231, at pp. 248-49. It is, however, part of the conduct of the accused that is relevant to the determination of whether that conduct in relation to the motor vehicle had created a risk of danger: R v. Ruest, [2009] O.J. No. 5108 (C.A.).

According to the Supreme Court of Canada in R. v. Boudreault [2012] 3 S.C.R. 157, at para 33, the phrase “care or control” signifies three possible scenario:

  1. an intentional course of conduct associated with a motor vehicle
  2. By a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit
  3. In circumstances that create a real risk, as opposed to a remote possibility, of danger to persons or property.  The risk of danger, as opposed to the intention to drive, is an essential element of the care or control offence

The risk of danger, according to Boudreault, can be explained as follows:  The risk must be realistic and not just theoretically possible.   But nor need the risk be probable, or even serious or substantial.  To require that the risk be realistic is to establish a low threshold consistent with Parliament’s intention to prevent a danger to public safety.  To require only that the risk k be theoretically possible is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct. (paras. 34-35)

In Boudreault, the SCC held that in the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least 3 ways:

  1. a) An inebriated individual who initially does not intend to drive may later, while still impaired, change his mind and proceed to do so
  2. b) An inebriated person behind the wheel may unintentionally set the vehicle in motion
  3. c) Through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property

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:

  • 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;
  • 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.
  • 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;
  • Operating a motor vehicle requires a person to exercise both physical and mental ability
  • Physical ability refers to the ability of the driver to perform normal driving functions in a proper and timely way, for example:
    • Steering
    • Braking
    • Reacting to changing circumstances and conditions and so oN
  • Mental ability has to do with
    • Perception
    • Judgment
    • Prompt and accurate assessment of existing or changing circumstances and conditions
  • To decide whether the Defendant’s ability to operate a motor vehicle was impaired by alcohol, you must consider all the evidence including:
    • What and how much the Defendant had to drink and how quickly he did so;
    • The actual manner in which the Defendant drove;
    • The physical symptoms that the Defendant displayed;
    • The Defendant’s general conduct and appearance;
    • The presence or absence of a smell of alcohol on the Defendant’s breath;
    • The results of any scientific tests; and
  • 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).

Impaired By Drugs

Impaired driving can be either by alcohol or drug (prescription or illicit substances).  There are unique aspects to Impaired by Drug prosecutions that are not involved (or less frequently involved) in Impaired by Alcohol ones, including:

  • The use of Standard Field Sobriety Tests by police, rather than Approved Screening Devices
  • The use of Drug Recognition Evaluators, who are officers that conduct a number of specific tests at the police station (including both physical and coordination tests)
  • The use of urine samples, as there has to be proof that there were drugs in the accused’s system

Impaired by drug offences carry the same punishments as impaired by alcohol ones, except that an individual is not eligible for any government operated programs that reduce driving prohibitions (such as the Ignition Interlock program operated by the Ministry of Transportation).

Impaired Driving Punishments – First and Subsequent Offenders

Sections 320.19(1) and 320.24 of the Criminal Code set out the punishments for Impaired driving for first time and repeat offenders.

First offenders:   There is a minimum fine of $1,000 for any Impaired Driving conviction on a first offence, as well as a 12 month driving prohibition

Second offenders:  There is a minimum 30 day jail sentence and a two year driving prohibition

Subsequent offenders: There is a 120 day jail sentence and a three year driving prohibition.

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