Operation While Impaired [C.C. section 320.14(1)]
In 2018, the laws regarding “drunk driving” were amended, with new legislation taking effect in respect of impaired operation of a conveyance (i.e. a motor vehicle or vessel). Impairment can be by drug, alcohol or a combination thereof. Section 320.14(1) provides that it is a criminal offence to:
(a) Operate a conveyance while your ability to do so is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug; or
(b) Within two hours after ceasing to operate a conveyance, have a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood; or
(c) Within two hours after ceasing to operate a conveyance, have a blood drug concentration that is equal to or exceeds the [prescribed legal limit]; or
(d) Within two hours after ceasing to operate a conveyance, have a blood alcohol concentration and a blood drug concentration that is equal to or exceeds [prescribed legal limit] for instances where alcohol and that drug are combined.
Note that there are exceptions to the above provisions. Specifically, respecting subsections (b), (c) and (d), you are not liable for the offence if: (i) you consumed alcohol and/or drugs after ceasing to operate the conveyance; (ii) after ceasing to operate the conveyance, you had no reasonable expectation that you would be required to provide a sample of breath / blood / bodily substance; and in the case of 320.14(1)(b)&(d), (iii) your alcohol consumption is consistent with your blood alcohol concentration being less than 80 mg of alcohol in 100 mL of blood while operating the conveyance.
Operation while Impaired offences can be very technical and complex in nature. As such, it is important you consult an experienced lawyer before deciding to plead guilty. There are often many defences that can be raised to challenge the manner in which the police obtained the breath sample.
Daniel Freudman is able to effectively argue these defences, and where appropriate, raise Charter violation issues which could lead to exclusion of the evidence (i.e. the breath sample would be inadmissible as evidence at trial, which may result in an acquittal or withdrawal of charges).
Potential penalty upon conviction:
(i) if Crown proceeds by indictment: maximum of 10 years jail
(ii) if Crown proceeds summarily: maximum of two years less a day
Note: The penalty for Operation while Impaired can be as high as 14 years’ jail if bodily harm is caused to the complainant, and as high as imprisonment for life if death ensues.
Failure or Refusal to Comply with Demand [C.C. section 320.15(1)]
Where an officer makes a demand for breath or blood samples, whether at the roadside or police station, it is an offence to fail or refuse to comply with that demand, unless there is a reasonable excuse for such non-compliance.
Prior to the legislative amendments in 2018, to make a roadside demand for a breath sample, an officer needed a “reasonable suspicion” that the suspect had recently been drinking alcohol. However, since the amendments, this law has been modified to allow officers to make such a demand even without such a reasonable suspicion, provided they have an approval alcohol screening device in their possession and are acting in accordance with the law. In other words, police are now more readily able to demand samples of your breath, and if/when they do so, you can be criminally charged if you inexcusably fail to comply.
It is important to note that, in order to be convicted of this offence, the breath sample demand made by the police must be lawful. If the police officer lacks the requisite grounds to make the demand, or if the demand is otherwise not authorized by law, you cannot be convicted of the offence. Daniel Freudman has experience attacking the lawfulness of breath sample demands, and will fight to get you acquitted of your drug and/or alcohol-related driving charges.
Potential penalty upon conviction:
(i) if Crown proceeds by indictment: maximum of 10 years jail
(ii) if Crown proceeds summarily: maximum of two years less a day in jail
Note: The penalty for Refusal to Comply with Demand can be as high as 14 years jail if bodily harm is caused to the complainant, and as high as life in jail if death ensues.
Dangerous Operation [C.C. Section 320(13)(1)]
It is an offence to operate a conveyance (i.e. a motor vehicle or vessel) in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the road, as well as the amount of traffic in the vicinity.
For the operation of a conveyance to be considered “dangerous”, there must be a “marked departure” from the standard of care ordinarily demonstrated by a reasonable person. Mere unsafe or reckless operation of a motor vehicle may amount to the offence of Careless Driving under the Highway Traffic Act, but would not constitute the criminal offence of Dangerous Operation.
Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.
The offence of Dangerous Operation is considered more severe when it causes bodily harm or death and is considered a separate offence in the Criminal Code.
Potential penalty upon conviction:
(i) if Crown proceeds by indictment: maximum of 10 years jail
(ii) if Crown proceeds summarily: maximum of two years less a day jail
Note: The penalty for Dangerous Operation can be as high as 14 years jail if bodily harm is caused to the complainant, and as high as life imprisonment if death ensues.
Careless Driving [H.T.A. s 130]
It is an offence to drive a vehicle on a highway without due care and attention or without reasonable consideration for other persons using the highway.
The term “highway” is defined by the Highway Traffic Act to include a common and public highway, street, avenue, parkway, driveway, (etc.), any party of which is intended for or used by the general public for the passage of vehicles. This means that one could not rightfully be convicted of Careless Driving if the driving occurred on private property, such as a private road, sidewalk, driveway or parking lot.
In Careless Driving cases, the defendant’s driving is measured against a “reasonable and ordinary standard of skill”, rather than a standard of “perfection”. As such, a momentary lapse in judgement will not suffice to justify a conviction for Careless Driving. Additionally, the fact that an accident and/or injury may have resulted from the driving is not, in itself, proof of a departure from the reasonable standard of care so as to justify a finding of Careless Driving.
Potential penalty upon conviction:
(a) Fine (minimum $400, maximum $2,000) and/or 6 months jail;
(b) License suspension (up to 2 years)
Penalties upon conviction of Impaired Driving / Over 80 / Refusal to Blow
1st offence | 2nd offence | Subsequent offence(s) | |
Driving Prohibition Eligible for Ignition Interlock after --- | 1 year Judge’s discretion | 2 years 3 months | 3 years 6 months |
Fine | $1,000 (if BAC is between 80 and 119) $1,500 (if BAC is between 120 and 159) $2,000 (if BAC is 160 or higher) $2,000 if convicted of Failure to Comply with Demand | Judge’s discretion | Judge’s discretion |
Minimum jail sentence | No minimum | 30 days | 120 days |
Despite the above-listed minimums, the Judge (on consent of the Crown and the Offender), may delay sentencing of the Offender to allow him/her to attend a treatment program. During the delay, the Offender will be prohibited from driving. If the Offender successfully completes the treatment program, the Judge need not impose the above-listed minimum penalties / prohibitions. However, a conviction is still required as the Offender is not entitled to a Discharge. Note: the above-listed penalties are prescribed by the Criminal Code of Canada. There are supplementary and additional penalties prescribed in Ontario by the Ministry of Transportation. These include but are not limited to an immediate 90-day roadside suspension, 7-day vehicle impoundment, monetary penalty, license reinstatement fee, prolonged license suspensions and ignition interlock conditions. For further details, visit the Ontario Ministry of Transportation website. In addition to the above penalties as set out by the Criminal Code of Canada and Ontario Ministry of Transportation, convictions for driving offences will have disastrous impacts on your insurance premiums, and may even preclude you from coverage. For this reason, having a criminal defence lawyer well-versed in impaired driving laws is critical every step of the way. Call Daniel Freudman today to discuss how he can help with your case.