Changes to Impaired Driving Laws In 2018, Bill C- 46 was passed and with it came significant changes to impaired driving laws in Canada. Bill C-46 repealed sections 249 to 261 of the Criminal Code and replaced it with Part VIII.1 – sections 320.11 to 320.4 The changes include three new offences referring to a blood drug concentration (BDC) over the legal limit. In addition changes were made to the offences of operating while impaired, operating while “over 80” and refusal to comply with a breath demand. Elements of all other transportation offences appear to be similar to their previous versions although there have been some language changes. The new provisions have also introduced some new and higher mandatory minimum fines and some higher maximum penalties for impaired driving offences. The new Part VIII.1 of the Criminal Code contains 10 basic transportation offences (those relating to impaired driving are highlighted): Dangerous operation of a conveyance (section 320.13); Operating a conveyance while impaired (paragraph 320.14(1)(a)); Having a blood alcohol concentration (BAC) of 80 mg of alcohol in 100 ml of blood or more within two hours of operating a conveyance (paragraph 320.14(1)(b)); Having a blood drug concentration (BDC) over the prescribed legal limit within two hours of operating a conveyance (paragraph 320.14(1)(c)); Having a combined BAC and BDC over the prescribed legal limit within two hours of operating a conveyance (paragraph 320.14 (1)(d)); Having a BDC over a prescribed limit that is lower than the BDC set under paragraph 320.14(1)(c) within two hours of operating a conveyance (subsection 320.14(4)); Refusing to comply with a demand (section 320.15); Failure to stop after an accident (section 320.16); Flight from peace officer (section 320.17); and Driving a conveyance while prohibited (section 320.18). Impaired Operation – s. 320.14(1)(a) While the wording of the offence has changed a bit, this sections remains the same as the previous law. It is an offence to operate a conveyance (vehicle) if a person’s ability is impaired by alcohol or a drug or a combination of alcohol and a drug “to any degree”. Operating with a BAC equal to or exceeding 80 mg of alcohol in 100 ml of blood within two hours of driving – s. 320.14 (1) (b) The terms “equal to or exceeding” is a new term that the government has included in response to concerns regarding the practice of truncating blood alcohol concentration (BAC) results (i.e., rounding the test results down to the nearest multiple of 10). The new formulation of the offence “operating at or over 80 within two hours of driving” changes the timeframe within which the offence can be committed and is an attempt by the government to eliminate the bolus drinking defence and the intervening drink defence. The bolus drinking defence arose when a driver claimed to have consumed alcohol just before driving and/or while driving. Although they admitted that their BAC was “over 80” at the time of testing, they would claim that the alcohol was still being absorbed and, at the time of driving, they were not “over 80”. The intervening drink defence would arise when a driver consumed alcohol after driving but before they provided a breath sample. This defence often came up when there had been a motor vehicle collision and the driver claimed that they were settling their nerves post accident. The only situation in which a driver can now rely on intervening consumption to avoid a conviction is captured in subsection 320.14(5) (or subsections (6) & (7) for drug consumption). The offence is not made out if all of the following conditions are met: The person consumed alcohol after ceasing to operate the conveyance; The person had no reasonable expectation that they would be required to provide a sample of breath or blood; and, Their alcohol consumption is consistent with their BAC at the time the samples were taken and with their having had a BAC of less than 80 at the time of operation. Penalties The proposed penalties and prohibitions for impaired driving and over 80 offences have also been changed. The mandatory minimum fines have gone up. A first conviction for impaired driving or having a blood alcohol concentration (BAC) of 80 to 119 is $1,000, which was the previous mandatory minimum for a first offence. However, there are now higher mandatory fines for first offenders with high BAC levels: $1,500 for a BAC of 120 to 159, and $2,000 for a BAC of 160 or more. The mandatory minimum fine for a first refusal to comply with a breath demand conviction has also been increased to $2,000. The current mandatory minimum penalties for repeat offenders remain the same as before: 30 days imprisonment for a second offence and 120 days imprisonment for a third or subsequent offence. The maximum penalty for all the transportation offences has been increased from 18 months to two years less a day on summary conviction, and from 5 years to 10 years on indictment. Operating a Conveyance with a BDC equal to or exceeding the legal limit within two hours of operating a conveyance – sections 320.14(1)(c), (d) and 320.14(4) There are three new criminal offences related to drug-impaired driving or when a motorist is impaired by drugs or a combination of drugs and alcohol. Section 320.14(1)(c) makes it an offence to have a BDC equal to or over the prescribed limit within two hours of operating a conveyance. Section 320.14(1)(d) makes it an offence to have a combined BAC and BDC equal to or over the prescribed limit within two hours of operating a conveyance. Section 320.14(4) makes it a less serious offence to operate a conveyance with a lower level of drug impairment than prescribed by s. 320.14(1)(c), but that is equal to or over an amount prescribed by regulation. Penalties The penalties for driving with a BDC over the legal limits depend on the drug type and the levels of drug or the combination of alcohol and drugs. The levels are set by regulation. With some drugs – including LSD, ketamine, PCP and cocaine – it is an offence to have any detectable amount of the substance in your system within two hours of driving. For cannabis and THC (the main psychoactive compound in cannabis), the legal limits and the respective penalties are the following: Under s. 320.14(1)(c), having 5 nanograms (ng) or more of THC per ml of blood within two hours of driving would be a hybrid offence. Hybrid offences are offences that can be prosecuted either by indictment, in more serious cases, or by summary conviction, in less serious cases. Under s. 320.14(1)(d), having a blood alcohol concentration (BAC) of 50 milligrams of alcohol per 100 ml of blood (or more), combined with a THC level of 2.5 ng per ml of blood or higher within two hours of driving is a hybrid offence. The hybrid offences under s. 320.14(1)(c) and (d) would be punishable by mandatory penalties of $1,000 for a first offence and escalating penalties for repeat offenders (as with alcohol impairment and over 80 offences – 30 days imprisonment on a second offence and 120 days on a third or subsequent offence). The maximum penalties are imprisonment for two years less a day on summary conviction (up from 18 months), and to 10 years on indictment (up from 5 years). Under s. 320.14(4), having at least 2 nanograms (ng) of THC but less than 5 ng of THC per millilitre (ml) of blood within two hours of driving would be a less serious summary conviction criminal offence, punishable by a fine of up to $1,000. In addition to the mandatory minimum fines and imprisonment penalties, impaired and over the legal limit offences (for both alcohol and drugs) also continue to carry with them mandatory driving prohibition orders. These penalties are now contained in section 320.24 of the Criminal Code. Charter and other Concerns Numerous aspects of the new impaired driving regime will face scrutiny under the Canadian Charter of Rights and Freedoms. It is anticipated that cases involving these offences will be challenged in the courts and the constitutionality of the new provisions will eventually be decided by the Supreme Court of Canada. Here are several aspects of the new laws that will likely be debated in the courts: Mandatory Alcohol Screening – s.320.27(2) Under the previous law, the police had to have a reasonable suspicion of alcohol in the body to be able to demand a roadside alcohol screening. A significant change with the new law is the introduction of mandatory alcohol screening under s.320.27(2). With this new section, a police officer who has lawfully stopped a driver is able to demand that the driver provide a breath sample into an Approved Screening Device (ASD) without needing to have a reasonable suspicion that the driver has alcohol in the body. This provision has drawn significant criticism from the criminal defence bar and civil liberty advocates. Critics of the provision argue that it amounts to an arbitrary use of police power. Taking away the “reasonable suspicion” previously required by the police will be challenged as a violation of one’s Charter rights, notably their right to be free from unreasonable search and seizure. The New Language “Within Two Hours of Operating a Conveyance” This new provision making it an offence to have a certain BAC and or BDC within two hours of driving has also drawn heavy criticism. It goes without saying that criminalizing drinking after one has been driving will be vigorously challenged in the courts. In attempting to take away previously used defences (such as bolus drinking and the intervening drink defence), the federal government is now potentially criminalizing individuals who have not been drinking and driving. At the very least, the new section appears to put an onus on the public under sections 320.14 (5), (6) and (7) to show several things, including that they started drinking and/or consuming drugs after they drove and that they had no reasonable expectation they would be required to provide a breath sample. Do the new offences of “BDC over a prescribed limit” actually catch those who are impaired as it relates to cannabis? The new prescribed limits for cannabis/THC are controversial. Critics have argued that there is not a clear link between the level of THC in the blood and the degree of impairment, as there is with alcohol. Competing scientific evidence and argument over whether the present prescribed levels of THC blood concentration actually establish “impairment” are likely. If you or someone you know has been charged with impaired driving, or any criminal offence, please contact criminal defence lawyer David Schell at 416-446-5096 or david.schell@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawMarch 19, 2019July 5, 2023
“Defence of Others” Raised In Fatal Hit And Run Case After a number of court appearances there has been a major development in the case involving a man who claims he ran over someone to save a woman’s life. On June 7, 2017, Anthony Kiss made a decision while behind the wheel of his vehicle, that left one person dead, and another woman praising his actions as she believed she was about to be stabbed to death. Mr. Kiss was at a red light in the area of Black Creek Drive and Eglinton Avenue West, when he and his girlfriend noticed a man, Dario Romero, had pulled a knife on Alicia Aquino, at a bus stop and began to try and stab her. Mr. Romero ran after Ms. Aquino onto the roadway. At that moment Mr. Kiss drove forward and struck Romero with his vehicle. Mr. Kiss fled the scene and made his way back to his home in Wasaga Beach until police pulled him over on the highway near Barrie and brought him in custody. Romero was killed after being struck by the vehicle and Kiss was charged with manslaughter, impaired operation of a motor vehicle causing death, over 80mgs operation of a motor vehicle causing death and failure to stop at the scene of an accident causing death. More recently, on Tuesday November 14th, the Crown withdrew the manslaughter charge against Kiss which carried the possibility of life in prison as a penalty. The lawyer for Mr. Kiss outlined that the Crown will be laying new, but less serious charges in relation to the incident. The new charges include the impaired and over 80 offences with the “causing death” element removed and an additional charge of dangerous driving. This case highlights the issue of criminal responsibility in the context of defending another person. The defences of self-defence and defence of others are contained in the Criminal Code under section 34. That section outlines the following: A person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (c) the act committed is reasonable in the circumstances. Section 34 (2) of the Criminal Code outlines a number of factors the court can consider to determine whether the actions of the accused are reasonable in the circumstances. These include the extent to which the use of force was imminent, whether there were other means available to the accused to respond to the potential use of force and whether any party to the incident used or threatened to use a weapon. To put it simply, if someone commits an offence (IE. assault) in self-defence or in defence of another, they will not be guilty of the offence if a court determines their actions were reasonable in the circumstances. In the Kiss case, it appears his claim that he was “defending another” had some legitimacy and likely influenced the decision of the Crown to withdraw the more serious charges. If you require representation for criminal disputes, please contact Devry Smith Frank LLP’s criminal lawyers or contact David Schell directly at 416-446-5096. For all other legal services and inquiries, please visit our website or call us directly at 416-449-1400. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawNovember 23, 2017June 17, 2020
If My Guests Drive Drunk/Stoned, Am I Responsible? October is here, and over the next few months, there will be a number of family gatherings and work events that may involve the consumption of alcohol/drugs. When your guest leaves your house and drives while impaired, can you be held responsible if they injure themselves or others? Being a host, you should always be concerned about how your guests are getting home, who is the designated driver, and always be ready to offer up your couch or blow-up mattress for the night. Luckily, we have options like Uber, taxis, and even a service called Safe-T-Ride that will pick you up and drive you home (IN YOUR OWN CAR!) so that you and your vehicle arrive home safely. Morally, as responsible and caring hosts, we should ensure the safety of our guests while in our care in or around our home. The case law is fairly clear about that but once your guest leaves your home does that duty end? The short answer is probably (but don’t take chances and keep your guest and the public safe!). The Supreme Court of Canada in Childs v. Desormeaux confirmed that social host liability probably does not exist in Canada. The homeowner that has a party serving alcohol may have no duty of care to members of the public who may be injured by the activities of the impaired guest after they have left the care of the host. This reasoning may also apply with parties where marijuana or other drugs are used. Regrettably we may see an increase in impaired driving with legalization of marijuana use for non-medicinal purposes. According to Marc Spivak, lawyer and managing partner of Devry Smith Frank LLP’s personal injury group, the Supreme Court of Canada decision may leave open liability on the host if: all of the alcohol that was served was supplied by the host and consumed there and there was some sort of relationship between the host of the party and the guest whereby the host would have control over the extent of the alcohol consumption and whether the guest was intoxicated upon leaving the home. Social host liability cases can take years to litigate with appeals to higher courts by the upset loser of the litigation. These cases cost hundreds of thousands of dollars to litigate and reflect the loss of life or loss of enjoyment of life that nobody should have to experience. If you are hosting a party this season, be prudent and take steps to avoid such possible accidents. Plan before your guests arrive and ensure your guests have safe transportation home. Judgment ability may change during your festivities. Make sure that won’t affect your guest’s safety and what happens after leaving your home. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal Law, Personal InjuryOctober 6, 2017June 18, 2020