Canadian Criminal Law/Offences/Motor Vehicle Offences/Print version

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Contents[edit]

Motor Vehicle Offences[edit]

Offences/Impaired Driving and Over 80[edit]

Impaired Driving, Over 80 and Refusal
s. 254 253, 254 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Minimum $1,000 +
12 months Driving Prohib.(first)
30 days jail + 2 to 5 years Driving Prohib. (second)
120 days +
3 or more years Driving Prohib. (three or more)
Maximum 18 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum same as summary
Maximum 5 years jail
References
Offence Elements
Sentence Principles
Sentence Digests

Summary[edit]

Section 253 describes two distinct but related offences. The offence of "impaired driving" prohibits the operation or care and control of a vehicle while the person's ability to operate it is impaired by drug or alcohol. The offence of "over 80" prohibits the operation or care and control of a vehicle while the person's blood alcohol concentration (BAC) is over 80mg per 100mg of blood.

These offences are some of the most heavily litigated of all criminal offences. The proof of impaired driving has basis largely on the observational evidence of eye-witnesses, usually the investigating officer. They can become complicated when involving drugs rather than alcohol as it requires a Drug Recognition Expert. The proof of the Over 80 offence requires a procedure of taking a breath or blood sample and then extrapolating the estimated BAC at the time of the offence. There are several short cuts to proof that are available under s. 258.

Both offences have the common element of operation or care and control, which becomes most uncertain when examining whether there was care or control arising from the risk of the vehicle being put in motion. These offences also often engage Charter rights under s. 8 and 9, 10(b).

Legislation[edit]

Operation while impaired
253. (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

...

CCC

Failure or refusal to comply with demand
s. 254
...
(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

...

CCC

Proof of Offence[edit]

In addition to the essential elements of time and date, jurisdiction, and identity of the accused, the essential elements are:[1]

Note, the items in bold are essential elements.

Operating while impaired - 253(1)(a)[edit]

  1. Officer had reasonable suspicion that there was alcohol/drugs in body and so detained the accused
  2. The Accused was operating the Motor vehicle or in Care and Control of the vehicle
  3. there was any amount of impairment of the accused ability to drive at the time
  4. the impairment was by alcohol or drug at the time
  5. The accused voluntarily consumed the alcohol

Operating while BAC over 80 - 253(1)(b)[edit]

  1. The Accused was operating the Motor vehicle or in Care and Control of the vehicle
  2. Officer had reasonable suspicion that there was alcohol/drugs in body and so detained the accused
  3. The Accused's BAC was over 80 at the time
    1. each sample taken as soon as practicable after offence was committed
    2. first sample taken not later than two hours
    3. interval of at least 15 minutes between samples
    4. each sample received from suspect directly into instrument
    5. the instrument was an approved instrument
    6. the instrument was operated by a qualified technician
    7. the technician made an analysis of each sample

Refusal[edit]

In addition to the essential elements of time, jurisdiction, and identity, the crown should prove:[2]

  1. A proper demand was given and understood;
  2. there was a refusal or failure to provide a proper sample; (actus reus)
  3. the accused intended not to provide a proper sample; (mens rea) and
  4. there was no reasonable excuse for refusing.


  1. R. v. Andrews 1996 ABCA 23 at 31 [1] discusses impairment
  2. R v Lewko, 2002 SKCA 121 at 9

Interpretation[edit]

Mens Rea[edit]

The charge of impaired driving is a general intent offence. [1]

The mens rea of the offence of impaired driving is made out by the accused's voluntary consumption of alcohol for the purpose of becoming intoxication or the accused "acting recklessly, aware that impairment could result, but persisting despite the risk". [2]

It is not necessary that the accused have actual knowledge of the effects of drugs or alcohol. Proof of recklessness is sufficient.[3]

Where the voluntary consumption of alcohol is proven, there is a rebuttable presumption the mens rea is made out. [4]

The intent to be impaired can be negated in certain circumstances where the accused's drink may have been drugged.[5]

  1. R. v. Charles, 2013 BCSC 23 (CanLII) at para. 40
  2. R. v. Mavin 1997 CanLII 14625 (NL CA), (1997), 154 Nfld. & P.E.I.R. 242 at paras. 37-39
    R. v. Charles, 2013 BCSC 23 (CanLII) at para. 41
  3. R. v. Pomeroy, 2007 BCSC 142 (CanLII)
    R. v. Honish, 1993 CanLII 156 (SCC), [1993] 1 S.C.R. 458
  4. R. v. King, 1962 CanLII 16 (SCC), [1962] S.C.R. 746 at p.763
  5. e.g. R. v. Sitarz, 2012 ONCJ 561 (CanLII)

Motor Vehicle[edit]

Under s. 2, "motor vehicle" is defined as "a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment;" Certain vehicles, such as scooters, are powered by either pedal or motor, the crown will generally have to prove that the vehicle was being operated by motor power at the time of the offence.[1]

A vehicle that is inoperable, such as were it is out of gas, will still be a motor vehicle.[2]

  1. see for example R v Rookes, 2012 SKPC 80
  2. R v Lloyd, [1988] SJ No 216 (SKCA)

Issues[edit]

Kienapple Principle[edit]

Kienapple does not prevent a conviction for dangerous driving causing death or bodily harm and impaired driving causing bodily harm or death. The first offence concerns the ability to operate a vehicle while the second offence focuses on the manner in which the vehicle was operated.[1]

  1. R v Ramage, 2010 ONCA 488 at para. 59 to 66

See also[edit]


Offences/Impaired Driving and Over 80/Proof of Impairment[edit]

Proof of Impairment by Alcohol[edit]

The Crown need only prove any degree of impairment of the person's ability to drive, not matter how great or minor. [1]

This must be proven beyond a reasonable doubt.[2]

Impairment refers to the physiological of alcohol upon the mind. This is separate from intoxication, which refers to the observable physical signs of impairment. [3]

Note, however, impairment is relative to a particular task. It is not simply a degree of general impairment but rather the accused's ability to drive is impaired and that the impairment is caused by alcohol or a drug.[4] The judge should not assume that mere impairment of any functional ability is equivalent to impairment by alcohol.[5]

To prove any degree of impairment of ability to drive, the crown should present evidence of aberrant driving and consumption of alcohol. If evidence of driving is not available there is greater responsibility of establishing impairment through signs of the accused.[6]

Impairment cannot be inferred merely by the readings from the breath sample results.[7] A judge cannot take judicial notice that a certain reading necessarily means that the person is impaired.

It is not necessary to prove that the driver intended to become impaired.[8] Proof of the actus reus alone is sufficient to create a presumption that the accused intended to operate while impaired.[9]

Where fatigue is combined with alcohol, the only issue is whether the alcohol was a contributing factor to the impairment.[10]

  1. R. v. Stellato 1993 CanLII 3375 (ON CA), (1993), 78 C.C.C. (3d) 380 (Ont. C.A.)[2]; affirmed 90 C.C.C. (3d) 160 (S.C.C.)
    R. v. Brannan 1999 BCCA 669, (1999), 140 C.C.C. (3d) 394, ("the test for driving while impaired contrary to s. 253(a) is any impairment")
    see also R. v. Pijogge, 2012 NLTD(G) 94
    R. v. White (2004), 50 M.V.R. (4th) 177 (NLSC)
    R. v. Loveman (2005), 15 M.V.R. (5th) 280 (NLSC)
    R. v. Thompson, 2012 ONCJ 377 at para 13
  2. R. v. Czarnecki, 2000 Carswell Man. 215 (Q. B.)
    R. v. Stellato, 1994 CanLII 94 (SCC), [1994] 2 S. C. R. 478
  3. See Andrews [1996] AJ no 8 in the analysis section discussing this difference
  4. As observed in R. v. Raven, [1999] O.J. No. 48 (Gen. Div.) per Durno J. at paras. 47 and 50: it is incorrect to read Stellato as requiring only proof of a slight degree of impairment by alcohol as opposed to a slight degree of impairment of one’s ability to operate a motor vehicle as a result of the consumption of alcohol
  5. R. v. Andrews [1996] AJ No 8 (ABCA) at para. 17 (Courts "must not fail to recognize the fine but crucial distinction between ‘slight impairment’ generally, and ‘slight impairment of one’s ability to operate a motor vehicle.")
    R. v. Sampson, [2009] N.S.J. No. 280
  6. R. v. Polturak, (1988), 90 A.R. 158, 61 Alta. L.R. (2d) 306 (C.A.), at para. 3
    Beals v. R.(1956), 25 C.R. 85, 117 C.C.C. 22 (N.S.C.A.)
    R. v. E. (A.L.), 2009 SKCA 65; 359 Sask. R. 59
    R v Thomas, 2012 SKCA 30 at 13
  7. see R. v. Letford, [2000] O.J. No. 4841 (C.A.)
  8. R. v. Pomeroy, [2007] B.C.J. No. 170 (S.C. at para.44 R. v. Mavin 1997 CanLII 14625 (NL CA), (1997), 154 Nfld & P.E.I.R. 242, at para. 37
  9. R. v. King, 1962 CanLII 16 (SCC), [1962] S.C.R. 746
    R. v. Lamha, 2011 ABPC 303 -- impaired by a mix of drugs
  10. R. v. Christopher, (1982) BCJ No. 2008 (BCCA) at para 2-5
    R. v. Pelletier, (1989) SJ No. 493 (Sask. Q.B.)
    R. v. Payette, (1991) BCJ No. 795 (BCSC) at para 2 to 3
    R. v. Barry, (1991) BCJ No. 2212 (BCSC)
    R. v. Bartello, (1996) OJ No. 1000 (OCJ), appeal dismissed, (1997) OJ No. 2226 (ONCA) at 22
    R. v. Isley, (1997) BCJ No. 2678 (BCSC) at 23
    R. v. Cosentino, (2008) OJ No. 5263 (OSCJ) at 54, 92-93
    R. v. Comte, (2011) ABPC 131

Physical Signs of Impairment[edit]

Factors to consider include:[1]

  1. erratic or abnormal driving
  2. blood-shot or watery eyes
  3. flushed face
  4. odour of alcoholic beverage
  5. slurred speech
  6. a deterioration of the accused’s judgment, attention, or comprehension
  7. a loss of motor co-ordination or control,
  8. increased reaction times,
  9. diminished sensory perceptions, or
  10. inappropriate or abusive behaviour


  1. See R v Landes [1997] SJ 785 (SKQB) at para. 16

Equivocation of Signs[edit]

Where the evidence of impairment is equivocal on the totality of evidence, it would be dangerous to conclude beyond a reasonable doubt that there was impairment.[1] This would include circumstantial evidence alone or equivocal evidence of impairment that shows only a “slight deviation from normal conduct”.[2]


  1. R v Peterson, [2009] OJ No. 671 at 35 citing R . v. Andrews 1996 CanLII 6628 (AB CA)
  2. Andrews, supra

Proof of Impairment by Drugs[edit]

The standard to proving impairment by drugs is the same as impairment by alcohol. The main difference involves the manner of detecting the presence of drugs and presenting evidence that there is impairment.

The investigation of an impaired by drugs case commences with the initial investigation wherein an officer forms a reasonable suspicion of impairment by drugs.

Under s. 254(2), the officer may demand that the driver submit to screening test to determine if there is reasonable grounds to believe that the driver is committing an offence under s. 253 regarding drugs.

The investigating officer will generally have a Drug Recognition Expert (or Drug Recognition Evaluator) attend the scene of the investigation to perform a Standardized Field Sobriety Test (SFST) to determine if the driver may be impaired by drugs.

If the driver presents sufficient indicia of impairment then they will be given a demand to attend the police station to undergo the full 12 step assessment as set out in the Regulations.[1]

Standardized Field Sobriety Test[edit]

The Standardized Field Sobriety Test will frequently take place at the roadside, when it is safe to do so and where the officer has not already formed the requisite grounds to believe that an offence under s. 253 has been committed.

The SFST will involve the examination of the driver's eyes for signs of Horizontal Gaze Nystagmus, a heel-to-toe walk, and a one-legged standing test.

Drug Assessment[edit]

The Drug Recognition Expert follows a 12 step assessment process that is generally uniform across all of North America.[1]

  1. Breath Alcohol Test
  2. Interview of the Arresting Officer
  3. Preliminary Examination and First Pulse
  4. Eye Examination
  5. Divided Attention Psychophysical Tests
  6. Vital Signs and Second Pulse
  7. Dark Room Examinations
  8. Examination for Muscle Tone
  9. Check for Injection Sites and Third Pulse
  10. Subject’s Statements and Other Observations
  11. Analysis and Opinions of the Evaluator
  12. Toxicological Examination

See: DRE Symptom Chart; [23]

Blood or Urine Sample[edit]

Either a blood or urine sample will be taken during or after the Drug Assessment. The purpose of the sample is largely confirmatory of the independent conclusion of the DRE on whether there is impairment.


Case Digests[edit]

  • R. v. Conron, 2012 ONCJ 171 -- DRE impaired acquittal

See Also[edit]


Offences/Impaired Driving and Over 80/Screening Device[edit]

Introduction[edit]

The grounds to arrest on either s. 253(1)(a) or (b), requires that the officer have reasonable and probable grounds that:

  1. the offender was in care and control of a motor vehicle while his ability to operate the motor vehicle was impaired (s.253(1)(a)), or
  2. the offender was in care and control of a motor vehicle while his blood alcohol concentration was over 0.80

Signs of intoxication do provide some reasonable grounds to suspect impairment, but given that impairment does not imply a BAC over 80 and the strength of odour tells the observer nothing of the concentration in the body, a screening device will provide further information.

There is no right to counsel on a roadside screening demand.[1]

  1. R v. Thomsen [1988] 1 S.C.R. 640

Roadside Screening[edit]

A police officer may employ a road-side screening test on a suspect under s. 254(2):

s.254

...

Testing for presence of alcohol or a drug
(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

...

(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

CCC

For there to be a valid screening device demand under s.254(2) the demand must be:

  1. must be made by a peace officer;
  2. with reasonable grounds to suspect
    1. that a person has alcohol or a drug in their body; and
    2. that person has within the preceding three hours operated or had care and control of a motor vehicle.

This second requirement was brought in with the July 2, 2008 amendments. Prior to the amendments it was necessary that the officer find the accused in the state of operation or care and control. This amendment is not retrospective as it provides the police with a new power.

"Reasonable grounds to suspect"/"Reasonable Suspicion" that Alcohol is in the Body[edit]

A police officer may demand that a person who is found in care and control or in operation of a vehicle undergo a roadside screening test for alcohol. The officer must have "reasonable grounds" to suspect (or "reasonable suspicion") that alcohol is in their body to make a roadside test demand.[1] The quantity of alcohol and the level of impairment is irrelevant.

The burden is on the Crown to prove that there were grounds to administer the test on a balance of probabilities.

Where an officer administers an ASD without reasonable suspicion, a Charter violation under s. 8 and 9 result. [2]

The standard required for the ASD test under 254(3)(a)(i) is not a “standard of proof” as understood in judicial proceedings.[3]

  1. R. v. Maslanko, 2011 ABPC 202 [3]
    R. v. Haas 2005 CanLII 26440 (ON CA)
    R. v. Church, [2008] BCSC 686 at 6
    R. v. Gaudaur, [2008] BCSC 981 at 40-42
    R. v. Lemma, 2011 ABPC 312 [4] (no grounds)
    R. v. Beechinor, [2004] S.J. No. 187 (SKPC)
  2. e.g. R. v. Zoravkovic, [1997] O.J. No. 1010 (Ont. C.J.), 1998 CanLII 3202 (ON CA)
    R. v. Hendel, [1997] O.J. No. 2849 (Ont. C.J.)
    R. v. Smith, [1997] O.J. No. 3677 (Ont. C.J.)
    R. v. O’Flanagan, [2009] S.J. No. 55, 2009 SKPC 14
    R. v. Thompson, [2003] S.J. No. 240, 2003 SKPC 56
  3. R v Loewen, 2010 ABCA 255 at 13

Reasonable Suspicion Test[edit]

A reasonable suspicion lies between a mere suspicion and reasonable and probable grounds. [1]

Reasonable suspicion does not require that it be the only possibility, but merely one possible conclusion based on supported facts.[2]

The standard only requires a belief on the presence of alcohol and not the amount consumed or the effects.[3]

Reasonable suspicion can rely on information that is less reliable than for establishing "reasonable and probable grounds".[4]

Reasonable suspicion must include objective reasonableness. [5]

The assessment is based on the totality of the evidence-all surrounding circumstances-rather than piece by piece consideration of whether the evidence is consistent with the factors. [6] This means considering not only evidence suggestive of alcohol in the body but also evidence suggesting otherwise as well as the absence of evidence.

The officer who makes the demand does not need to be the officer who had initial contact with the accused.[7] However, the officer making the demand must be the one who formed a reasonable suspicion that the accused has alcohol in his system.[8] This basis can be based on information received from another officer.

  1. R. v. Kang-Brown, 2008 SCC 18 (CanLII), [2008] 1 S.C.R. 456, at para. 75
    see R. v. Monteyne, 2008 SKPC 20 (re suspicion)
    R. v. Donald, [2010] S.J. No. 564, 2010 SKPC 123 at 18
  2. R v Chipchar (2009) AJ No 1058
  3. R v Gilroy 1987 ABCA 185; R v Thomas 2008 ABQB 610
  4. R v Kang-Brown [2008] SCJ No 18 at para 75 at 79
  5. R. v. Smith, [2011] S.J. No. 650 (Sask. Prov. Ct.) at para 44
    R. v. Ajula 2011 ONCJ 10
  6. R. v. Todd, 2007 BCCA 176
    R. v. Wong, 2001 BCCA 13
    R. v. Usher, 2011 BCCA 271
    R. v. Nahorniak, 2010 SKPC 68 at para 23 R. v. Cuthbertson, 2003 ABPC 83 at 46
  7. R. v. Telford 1979 ABCA 244
  8. R. v. Sahota [2000] OJ No 3943 (ONCJ)
    R v Telford, supra

Subjective Component[edit]

There should not simply be signs of consumption of alcohol, but also signs of impaired driving skills. Once both are established, the analysis must consider the degree of each and the totality of the circumstances. </ref>R. v. Baltzer, 2011 ABQB 84 at 40-41</ref>

Impairment to driving skills requires that on an objective basis there is impairment “such as coordination, comprehension and a poor (but not simply illegal) driving pattern.” If any one of these is found as well as evidence of alcohol consumption, then there is an objective basis to conclude the driver’s ability to drive is impaired by alcohol.[1]

Alternate explanations or imprecise descriptions do little to reduce the value of the observations. This is because the observations to not need to meet a formal burden of proof. Also, most any signs can be explained by something other than alcohol.[2]

An admission of "two drinks", without any indication of the time of these drinks, was enough to support a reasonable suspicion.[3]

An admission of “two drinks” is not relevant to establishing impairment. It is only where there is an admission of many drinks, that the inference of impairment can be made.[4]

Evidence of an amount of consumption can also be enough to create a reasonable suspicion.[5]

Grounds should include more than simply an admission of the accused that they had drank alcohol within the past three hours. [6]

The subjective belief for the demand is a question of fact.[7]

  1. R. v. Baltzer, 2011 ABQB 84 at 38
  2. R v Baltzer 2011 ABQB 84 at 36-37
  3. R v Kimmel 2008 ABQB 594
    R v Thomas 2008 ABQB 610
    R v Ross 2011 ABPC 173
    c.f. R v Dyer 2007 ABPC 116
  4. R v Baltzer at 36-37
  5. R. v. Gilroy, (1987), 79 A.R. 318 (C.A.), leave to appeal to S.C.C. refused;
    R. v. Stauch, ABQB 85
  6. R. v. Mowat, 2010 BCPC 430 [5]
    R. v. Baker, [2004] A.J. No. 1355, R. v. Hnetka, [2007] A.J. No. 806, R. v. Klontz, [2007] A.J. No. 1283, R. v. Hemery 2008 ABPC 209
  7. R v Bernshaw, supra
    R v MAL [2003] OJ No 1050
    R v Shephard [2009] SCJ 35 at para 18 to 20
    R v Biccum [2012] AJ No 234 (CA) at para. 9 to 10

Objective Component[edit]

The judge is permitted to consider the police officer's training and personal experience in determining objective reasonableness[1]However, the evidence of a police officer is no less worthy of scrutiny.

The officer himself cannot dictate what is reasonable and what is not. [2]

To be reasonable it does not need to be the only conclusion derived from the circumstances. The court considers whether a reasonable person in the circumstances would have a suspicion that the person was impaired by alcohol.

The smell of alcohol on the breath of the driver, by itself, is sufficient to support the suspicion that the driver was operating the vehicle while impaired.[3]

The grounds need not be proven a on balance of probabilities.[4]

It is not necessary to consider the timing at which the suspected alcoholic beverage was consumed.[5]

The lack of evidence of consumption can weigh against the formation of a reasonable suspicion.[6]

An officer need not spell out his subjective suspicion that there is alcohol in the accused’ body using the words of s. 254(2). The court may infer the suspicion based on all of the evidence.[7]

It is generally considered that the “point in time” for the issue of reasonable grounds is at the time of the arrest. Certain cases have concerned the moment being at the time at the time of the demand.[8]

If the accused had drank alcohol within 15 minutes of the first test may render the ASD test unreliable. The mere possibility of consuming alcohol within 15 minutes does not affect the reliability of the ASD.(R v Einarson, (2004) 183 CCC (3d) at para 35) The main issue is whether there was any evidence which may have caused the officer to investigate when the accused had his last drink. If "credible evidence" exists the the officer should delay test for 15 minutes to ensure reliability.[9]

  1. R. v Rajaratnam, 2006 ABCA 333 at para. 25
    R. v Juan, 2007 BCCA 351 at paras. 18-21, 222 CCC (3d) 289.
    R. v MacKenzie, 2011 SKCA 64
  2. R. v Payette, 2010 BCCA 392 at para. 29
  3. R v Stauch (2007) AJ No 142 (QB)
    R v Carson (2009) OJ No 660
    R v Gannon 2007 ABPC 65
    R v Redstar (2009) ABPC 79
    R v Tellefson 2009 ABPC 159
  4. R v Loewen, 2010 ABCA 255 at 18
  5. R. v. Aujla, 2011 ONCJ 10 at para 36 [6]
  6. R. v. Zoravkovic 1998 CanLII 3202 (ON CA), (1998), 112 O.A.C. 119 (Ont. C.A.)
  7. R. v. Imanse, 2010 BCSC 446; R. v. Gibbons, 2009 ONCJ 354;
    R. v. Dietz, [1993] A.J. No. 45 (C.A.);
    R. v. Church, 2008 BCSC 686
    R. v. Donald (No.2), 2010 SKPC 123 (CanLII)
  8. R. v. Shaw, 2011 SKQB 425
  9. R v Szybunka, 2005 ABCA 422 at para 8

Observational evidence[edit]

Compelled Admissions[edit]

A person compelled by statute to make admissions with respect to the operation of a motor vehicle cannot be used as grounds to administer a roadside test, or arrest.[1]

A statement compelled by statute must be proven on a balance of probabilities that: [2]

  1. That he was in fact compelled by statute to provide a report.
  2. That the statements he made were a “report” within the meaning of the compelling statute.
  3. That he gave his report with the honest and reasonable belief he was compelled by the statute to do so.

Short and straightforward questions by the police about alcohol consumption for the purpose of screening without giving access to a lawyer is a reasonable limitation to a persons s. 10(b) Charter right.[3]

See also: Canadian Criminal Evidence/Admissions and Confessions/Right Against Self-crimination

  1. R v. Soules, [2011] O.J. No. 2500 - admission of driving and drinking
    R v. White, 1999 CanLII 689 (SCC), (1999) 2 S.C.R. 417 - admissions to striking and killing pedestrian excluded due to compelled admissions
    R v. Powers, (2006) 213 C.C.C. (3d) 315 - admission of operation in collision case excluded
  2. R v. Parol, [2011] O.J. No. 2641
  3. R. v. Ellerman 2000 ABCA 47, (2000), 255 AR 149: The court stated the inquiry was prescribed by law under the provincial Highway Act

Physical signs of impairment[edit]

It is not usually sufficient to observe signs of alcohol consumption. [1] However, cases have that the smell of alcohol on a person’s breath alone is enough to create a reasonable suspicion.[2]

The smell of alcohol on a driver's breath alone can be sufficient to create a reasonable suspicion.[3]

Where an officer states there is a sign of slurred speech but fails to provide details on what words were slurred, this can be used against the reliability of the evidence.[4]

Determination of impairment is on an objective standard of “an ordinary citizen” or a “reasonable person”. Observations to consider include:[5]

  1. evidence of improper or abnormal driving by the accused;
  2. presence of bloodshot or watery eyes;
  3. presence of a flushed face;
  4. odour of an alcohol beverage;
  5. slurred speech;
  6. lack of coordination and inability to perform physical tests;
  7. lack of comprehension; and
  8. inappropriate behaviour.

The odour of alcohol originates from the non-alcoholic content of the drink. There is no relationship between the amount of alcohol consumed and the odour. A stronger odour tends to show more recent consumption. [6]

  1. R. v. Forsberg, [2000] Sask. J. No. 154 [7]
  2. R. v. Butchko, 2004 SKCA 159[8]
    R. v. Skwarchuk, [2010] A.J. No. 894 (Alta. P.C.)[9]
    R. v. Lindsay 1999, 134 C.C.C. (3d) 159 [10]
    R. v. Gilroy, [1987] A.J. No. 822
    R. v. Mowat, 2010 BCPC 430 at 10
  3. R. v. Lindsay 1999 CanLII 4301 (ON CA), (1999), 134 C.C.C. (3d) 159 (Ont. C.A.);
    R. v. Butchko, 2004 SKCA 159
  4. eg. R. v. Hizsa, 2011 ABPC 358 at footnote 8 and para 14
  5. R. v. Landes 1997 CanLII 11314 (SK QB) at 16
  6. R. v. Landes (T.) 1997 CanLII 11314 (SK QB) at para. 21

Limitation on evidence collected during roadside test[edit]

The right to retain counsel under s. 10(b) is effectively suspended during the roadside demand.[1] The trade-off of this is that the test results can only be used to provide grounds of arrest and demand under s.254(3).[2] Alternatively, where the tests and statements constitute the actus reus of the offence.[3] Otherwise, the evidence is inadmissible. This includes for the use of credibility.[4]

  1. This violation of s.10(b) was saved under s.1 due to operational necessities of the roadside testing regime.
    See the roadside “trilogy”: R. v. Elias and Orbanski 2005 SCC 37 (CanLII), (2005), 196 C.C.C. (3d) 481 at para. 58 (S.C.C.)
    R. v. Milne 1996 CanLII 508 (ON CA), (1996), 107 C.C.C. (3d) 118 (Ont. C.A.)
    R. v. Coutts 1999 CanLII 3742 (ON CA), (1999), 136 C.C.C. (3d) 225 (Ont. C.A.)
  2. R. v. Bleta, 2012 ONSC 1235 at 5
  3. See: R. v. Rivera (2011), 270 C.C.C. (3d) 469 (Ont. C.A.)
    R. v. Stapleton, (1982), 66 C.C.C. (2d) 231 (Ont. C.A.)
    R. v. Hanneson, (1989), 49 C.C.C. (3d) 467 (Ont. C.A.)
    R. v. Ha, 2010 ONCA 433
  4. Summarized R. v. Bijelic (2008), 77 W.C.B. (2d) 118 at para. 31 (Ont. S.C.J.)

Screening Demand[edit]

A typical screening request will go as follows:

Approved screening Device Demand

"I demand that you forthwith provide me with a sample of your breath, suitable for analysis by an approved screening device, and to accompany me to <location of ASD> for the purpose of obtaining a sample of your breath. Should you refuse this demand, you will be charged with the offence of refusal.
Do you understand?"

For discussion on the requirements of a valid demand, see: Breath Sample Demand

Timing of Screening Demand ("forthwith")[edit]

"Forthwith" should be "as soon as possible and before there is any realistic possibility that the subject could successfully contact counsel and get legal advice”. [1]

A delay in the "forthwith" requirement is permitted where "proper analysis" may not be immedilately possible, such as where the sample might be contaminated by cigarette smoke or recent consumption of alcohol. In such cases a short delay is permitted so that an accurate test can be taken.[2]

It is not necessary for the ASD machine to be on scene to violate s.254(2).

A wait of 5 minutes between a demand for a ASD and the arrival of the ASD on the scene can be forthwith.[3]

The ASD device does not need to on scene at the time of forming the grounds. However, where the an officer performing a roadside check did not keep an ASD at the scene out of convenience resulted in a violation of the "forthwith" requirement.[4]

Where the "forthwith" requirement is complied with, the period of time from the demand to the test is a justifiable infringement of the section 10(b) Charter rights.[5]

The consideration of “forthwith” requirement under s. 254(2), summarized in R v Quansah [2012] ON 779 (ONCA), requires that:

  1. contextual analysis taking in mind the legislation’s balance between the interest to eradicate drunk driving and the protection of Charter rights.
  2. the demand must be made promptly once the officer has reasonable suspicion there is alcohol in the driver’s body;
  3. the “forthwith” requires a prompt demand and an immediate response from the driver. However, the circumstances may dictate the need for greater flexibility. In such case the time must be no more “than is reasonably necessary to enable the officer to discharge” his duty.
  4. the immediacy requirement must take all circumstances into account. For example, short delay in administering the ASD due to a need for accurate results or articulable and legitimate safety concerns is permissible. The delay must be “no more than is reasonably necessary to enable to officer to discharge his...duty”.
  5. the circumstances must not allow for the police to realistically have implemented the accused’s 10(b) rights.

Further principles were summarized in R. v. Mastromartino[6]:

  1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.
  2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
  3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.
  4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.
  5. Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer’s belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.
  6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.
  7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.
  8. If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.
  1. R. v. Ritchie, 2004 SKCA 9 at 17
    See also R. v. Janzen 2006 SKCA 111, (2006), 285 Sask. R. 296
  2. R. v. Pierman 1994 CanLII 1139 (ONCA)
  3. R v Higgens 1994 CanLII 6405 (MBCA), 88 CCC 3d 232
    R. v. Misasi, (1993), 79 CCC (3rd) 339
  4. R. v. Megahy, 2008 ABCA 207
  5. R v Degiorgio, 2011 ONCA 527 at para. 46
  6. 2004 CanLII 28770 (ON SC), (2004), 70 O.R. (3d) 540 (S.C.J.) per Durno J. at para 23

Access to Counsel[edit]

The right to retain counsel under s. 10(b) is effectively suspended during the roadside demand.[1]Consequently, the is no right to counsel before or during the administration of the screening device so long as it is being properly administered.

However, if any of the requirements for a valid screening demand are not met, such as a failure to use the screening device "forthwith", will render the demand invalid and so will revoke the s. 10(b) rights suspension and consequently result in a breach of 10(b).[2]

See Canadian Criminal Procedure and Practice/Arrest and Detention/Right to Counsel

  1. This violation of s.10(b) was saved under s.1 due to operational necessities of the roadside testing regime.
    See the roadside “trilogy”: R. v. Elias and Orbanski 2005 SCC 37 (CanLII), (2005), 196 C.C.C. (3d) 481 at para. 58 (S.C.C.)
    R. v. Thomsen 1988 CanLII 73 (SCC), (1988), 40 C.C.C. (3d) 411 (S.C.C.)
  2. R. v. Grant 1991 CanLII 38 (SCC), (1991), 67 C.C.C. (3d) 268 (S.C.C.)

Approved Screening Device[edit]

The crown must present at least some evidence establishing that the device used was an "approved screening device". It cannot simply be assumed.[1] Nevertheless, assertion by the officer can be sufficient.[2] It will often be conclusive where the issue is not challenged on cross-examination or evidence to the contrary. Details about the make, model and similar do not need to be completely accurate for the judge to accept the evidence. It is only necessary that the officer reasonably believed it was an approved device.[3]

If there is some evidence establishing that the device is an approved screening device, it is for the defence to prove on a balance of probabilities that the device was not reliable.

Factors relating to the functioning of the machine:[4]

  • whether the device booted up normally
  • whether machine appeared to be working (the machine would likely signal if it wasn't working)
  • the expiry date of the machine (i.e. when it was due for re-calibration) [5]
  • if past expiry, the number of days past expiry
  • if past expiry, whether there was access to another machine readily
  1. R. v. Arsenault, [2005] N.B.J. No. 529 (N.B.C.A.), at para. 21
  2. R. v. Gill, 2011 BCPC 355 at 27
  3. See R. v. Gundy, [2008] O.J. No. 1410 (Ont. C.A.), at paragraphs 44 to 50
    R. v. Kosa, [1992] O.J. No. 2594 (Ont. C.A.)
    Followed in:
    R. v. Graham 2009 ABQB 100
    R. v. Balough 2009 ABPC 10
    R. v. Kestner 2010 ABPC 3
    R. v. Stafford 2010 ABPC 85
    R. v. Chipesia 2010 ABPC 75
    R. v. Ference 2010 ABPC 99
    R. v. Halabi 2011 ABPC 99
    R. v. Menjivar 2011 ABPC 355
    R. v. Winters 2011 ABPC 327
    R. v. Donald 2011 SKQB 408
    R. v. Helm 2011 SKQB 32
    R. v. Kukrudz 2011 SKPC 141
    R. v. MacLeod 2009 YKCA 5
    R. v. Korn, 2012 ABPC 20
  4. eg.R v Biccum 2012 ABCA 80 at 25
  5. note even if it is past expiry by a few days, is not on its own enough, see Biccum at 24-6

Calibration[edit]

Calibration of an ASD is done by applying a solution with a known alcohol concentration level to the ASD. The calibration is adjusted until the readings are correctly measured two times in a row.[1]

The frequency of calibration of the machine varies on police policies. A typical frequency is 14 days.[2]

The list of Approved Screening Devices can be found in the Approved Screening Devices Order, Regulation SI/85-200.

  1. e.g. R. v. Black, 2011 ABCA 349 at 8
  2. Biccum 2012 ABCA 80 at 27

Timing of ASD Test ("Forthwith")[edit]

Where the ASD is not readily on hand, the delay waiting for the device may result in invalidating the demand. The question is whether the delay afforded time to have a "realistic opportunity to consult counsel".[1]

There is generally no difference between the word "forthwith" and "as soon as practicable".[2]

A delay of 11 minutes to clear the driver's lungs after recently smoking is reasonable.[3]

The question of whether the ASD was administered forthwith is a question of fact and warrants deference to the trial judge on a standard of "palpable and overriding error".[4]

  1. R v George [2004] OJ 3287 (ONCA)
  2. R v Seo [1986] OJ 178 (ONCA)
  3. R v Kaczmarek, [1994] OJ 9
  4. R. v. Rienguette, 2012 ONSC 4633 at para. 11

Administering the ASD test[edit]

Results[edit]

A “failed” test of an Approved Screening Device will be considerd along with other indicia of imapirment as forming reasonable grounds to demand a breath sample. Normally, a “fail” alone is sufficient to form the grounds for the demand.[1]

The crown should prove a part of its case that a failed ASD test was accurately recorded.[2] To prove this the officer must have had an honest basis to believe that the machine was accurate and the belief was reasonable. There is no burden, however, to prove that the machine was in fact measuring accurately. [3]

  1. R. v. Bernshaw 1995 CanLII 150 (SCC), (1994), 95 C.C.C. (3d) 193
  2. R. v. Gill, 2011 BCPC 355
  3. see R. v. Coutts, [1999] O.J. No. 2013 (Ont. C.A.), at paras. 20 to 21.


Offences/Impaired Driving and Over 80/Breath Sample Demand[edit]

Introduction[edit]

As part of the offence of "Over 80" under s. 253(1)(b), the crown must prove the accused's Blood Alcohol Content (BAC) is over 0.08 per millilitres.

Under s. 254(3), a sample of breath, urine or blood can be taken for measurement. The sample can be analysed and a blood alcohol level can be measured. This measurement can be used to infer the BAC level at the time that the accused was operating a motor vehicle.

The procedure required for a proper demand under s. 254(3) must be followed. The taking of a sample counts as a search and if the procedure is not followed then it will amount to a search not authorized by law, and therefore violate s. 8 of the Charter.

The timing of the sample is of great importance. The timing must be in relation to the time in which the accused was in care and control of the vehicle and in relation to the time where the officer initially forms grounds of suspicion and belief.

Breath Sample[edit]

Under s. 254(3), a peace officer may demand an Intoxilyzer breath sample where the offifcer has “reasonable and probable grounds” to believe that the person is committing, or has committed in the last three hours, an impaired driving offence.

s.254

...

Samples of breath or blood
(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,
(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or
(ii) ...; and
(b) if necessary, to accompany the peace officer for that purpose.

CCC

"Reasonable grounds to believe" an offence has been committed[edit]

Under s. 254(3), a officer may demand that an accused give a sample of his breath where he had reasonable and probable grounds to believe that he has committed an offender under s. 253(1)(a) or 253(1)(b) within the proceeding 3 hours.

“Reasonable and probable grounds” lays below proof beyond reasonable doubt and a prima facie case.[1] It is a standard that is a "reasonably-based probability".[2]

The three hour limit has nothing to do with the two hour limit required for the application of s. 258(1)(c), the presumption of identity.   The grounds must be established objectively and subjectively. The subjective component requires the officer to have an honest belief of the commission of the offence (that the accused’s ability to operate a motor vehicle was impaired to any amount by a drug or alcohol.[3] The objective component requires that the belief be supported by objective evidence.[4]

The officer form grounds based on hearsay evidence.[5]

In determining reasonable and probable grounds to make the demand the officer must consider everything that he had seen or knew at the time the demand was made. [6]

This obviously excludes from consideration information that may not have been known at the time as it cannot be analysis from hindsight.[7]

It is not necessary for the officer to make full enquiry into the accused's version of events to form reasonable and probable grounds.[8]

Only the facts known or available to the peace officer at the time he formed his reasonable belief that the accused was impaired is applicable.[9]

The officer should take into account all that is available to him and is entitled to disregard information that he has reason to believe is unreliable.[10]

The crown does not need to prove reasonable and probable grounds where no Charter challenge has been made. In other words, a challenge to the reasonable grounds must come by way of a Charter application. Without such an application, the judge cannot take into account whether or not there were grounds to make the demand.[11] The lack of reasonable and probable grounds does not invalidate or render inadmissible the certificate of analysis.[12]

It is irrelevant whether the offence did in fact occur within the past three hours, it only matters whether he subjectively believed it and was reasonable in the belief.

The officer may question the suspect about alcohol consumption without giving them a right to counsel.[13] However, the response may only be used for the purpose of establishing grounds for demand and not for the purpose of establishing impairment. There is still the obligation to inform the suspect of the reason for detaining them.[14]


  1. R. v. Censoni [2001] O.J. No. 5189 (S.C.) at para. 31
    R. v. Shepherd 2009 SCC 35 at para. 23
    R. v. Wang, 2010 ONCA 435 at para. 17
  2. R v Hall (1995) 22 OR (3d) 289 (CA)
    R v Reilly [2008] OJ No 164 (SCJ)
  3. R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254 at para. 51
  4. R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3
  5. R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at p. 1167 and 1168;
    R. v. Lewis 1998 CanLII 7116 (ON CA), (1998), 38 O.R. (3d) 540 (C.A.) at paras. 15
    Censoni, [2001] O.J. No. 5189 (S.C.)  at para. 57
  6. R. v. Singer 1999 CanLII 12875 (SK QB), (1999), 25 C.R. (5th) 374 (Sask. Q.B.)
    R. v. Oduneye (1995), 169 A.R. 353
  7. R. v Cornell, 2010 SCC 31 at 4, 23
  8. R v Rodriguez [2001] OJ No 2592 (ONSC)
  9. R v Musurichan (1990) 56 CCC (3d) 570 (ABCA) at p.574
    R v McClelland (1995) 29 Alta LR (3d) 351 (ABCA), 1995 ABCA 199 at para. 21, 22
    R v Oduneye, (1995) 169 AR 353 (ABCA) at para. 20
    R v Waters (2011) 37 Alta LR (5th) 136 (ABQB) at para. 22
  10. R v Golub 1997 CanLII 6316 (ONCA)
  11. R. v. Charette, 2009 ONCA 310
  12. R. v. Rilling (1975), 24 C.C.C. (2d) 81
  13. R. v. Orbanski; R. v. Elias, 2005 SCC 37
  14. Orbanski at para. 31

Blood or Breath Sample Demand[edit]

The demand informs the accused of the intention to take a sample of blood or breath. A typical sample demand under s. 254(3) will go as follows:

Breathalyzer Demand

"I demand you to accompany me to <location of breathalyzer> and to provide samples of your breath, suitable to enable an analysis to be made in order to determine the concentration, if any, of alcohol in your blood. Should you refuse this demand, you will be charged with the offence of refusal.
Do you understand?"

Blood Sample Demand

"I demand you to accompany me to <location> and to provide such samples of your blood, as in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to determine the concentration, if any, of alcohol in your blood. Should you refuse this demand, you will be charged with the offence of refusal.
Blood samples will only be taken by or under the direction of a qualified medical practitioner and if the qualified medical practitioner is satisfied that the taking of the samples will not endanger your life or health.
Do you understand?"

The demand must be in plain language, sufficient for the accused to understand what is required of them. [1] There is no fixed formula or magic wording, rather sufficiency can be inferred on the surrounding circumstances of the demand. [2]

A variety of variations on demand are available.[3]

The key requirement is that the demand not be a invitation or request. It must be unequivocal. [4]

There is no requirement that the word "forthwith" be used, but the meaning must be conveyed by word or conduct.[5]

It is not more restrictive or meaningful to say "sample" instead of "samples".[6]

Whether the demand was unequivocal is a question of fact.[7]

The demand should always involve an advisement that the sample will be taken by a qualified practitioner. [8] However, it is not necessary to inform the accused of all requirements regarding qualified medical practitioners.[9]

A Breathalizer demand can be made at any location and need not be at the location of the approved machine.[10]

The officer should take steps to ensure that the accused understands the questions of the demand and is able to respond in a meaningful way.[11]

The validity or invalidity of a second demand made by the Qualified Technician does not affect the validity or invalidity of the initial demand of the investigating officer and vice versa.[12]

It is generally sufficient evidence for the officer to give testimony that a "breath demand" was made without giving a full verbatim reading of what was said.[13]

  1. R. v. Harasym 2008 ABQB 649 at para. 30
  2. R v Nicholson (1970) 8 CCC (2d) 170 (NSCA) - no special words are needed, only must be clear that there is no choice
    R v Flegel (1972) 7 CCC (2d) 55 (SKCA)
    R v Boucher (1986) 47 MVR 173 (SKCA)
    R. v. Langdon 1992 CanLII 2776 (NL CA), (1992), 74 C.C.C. (3d) 570, 16 W.C.B. (2d) 571 (Nfld. C.A.)
    R. v. Phelan 1997 CanLII 14611 (NL CA), (1997), 151 Nfld. & P.E.I.R. 169, 35 W.C.B. (2d) 175 (Nfld. C.A.) at paras. 12 and 13
    R. v. Truscott, 2009 BCSC 364 (CanLII), 2009 BCSC 364 at paras 19 and 20
    R. v. Ghebretatiyos (2000), 8 M.V.R. (4th) 132, 48 W.C.B. (2d) 365 (Ont. Sup. Ct. J.) at para 19
    A.-G. Alta v. Kozicky, (1972), 9 C.C.C. (2d) 146 at p. 149, [1972] 6 W.W.R. 623 at p.626
    R. v. Rentoul (1977), 37 C.C.C. (2d) 78 (Alta. S.C.T.D.) MacDonald J. at p. 83
    R. v. Showell (1971), 4 C.C.C. (2d) 252 at p. 255, [1971] 3 O.R. 460, 15 C.R.N.S. 305 at p. 308(“For a demand to be made pursuant to s. 223(1) [now s. 235(1)] it is sufficient merely for the officer to say he is asking for a breath sample pursuant thereto.”)
  3. e.g. R. v. Bourns, [1993] O.J. No. 2687 (Ont. Gen. Div.)
    R. v. McKeen 2001 NSCA 14 (CanLII), (2001), 151 C.C.C. (3d) 449 (N.S.C.A.)
    R. v. Dotremont (2011), 12 M.V.R. (6th) 239 (Man. Q.B.)
  4. R. v. Boucher (1986), 47 M.V.R. 173 (N.B.Q.B.) at p. 176
    R v Nicholson (1970) 8 CCC (2d) 170 (NSCA) - no special words are needed, only must be clear that there is no choice
  5. R v Torsney [2006] OJ 2228 (ONSC)
  6. R v Rentoul (1977) 37 CCC (2d) 78 (ABQB)
  7. R v Barwick [2009] QJ 1876 (QCCA)
  8. R v Jackson 2005 ABQB 268 at 47
  9. R v Barrett, [2012] NJ 61 (CA)
  10. R. v. Kitchemonia, [1973] 5 W.W.R. 669 (SKCA)
  11. R v Squires 2002 CanLII 44982 (ONCA) at para 32
  12. R v Townsend [2007] OJ 1686 (CA)
  13. R v Stewart [2009] OJ 11
    R v Benson [2008] OJ 3056 (ONSC)
    R v Tash [2008] OJ 200
    R v Antoniak [2007] OJ 4816

Timing of demand ("as soon as practicable")[edit]

A breath demand amounts to a warrantless search and so is prima facie unreasonable, thus the burden is on the Crown to establish the validity.[1]

Under s. 254(3), "as soon as practicable" means "within a reasonably prompt time" given the circumstances.[2]

The inquiry is upon "whether the police acted reasonably".[3] There is no need for the police to explain every minute that that the accused is in custody.[4]

Where the investigating officer failed to make a valid demand, the qualified technician can still make a valid breath demand. The qualified technician must have the same requisite grounds and must make the demand "as soon as practicable" upon getting the grounds.[5]

See: Canadian_Criminal_Law/Offences/Impaired_Driving_and_Over_80/Breath_Sample_Evidence#As_Soon_as_Practicable

  1. R. v. Breland, 2011 SKPC 54 at 22
  2. R. v. Squires 2002 CanLII 44982 (ON CA), (2002), 59 O.R. (3d) 765 (C.A.) R. v. Phillips 1988 CanLII 198 (ON CA), (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156
  3. R. v. Vanderbruggen 2006 CanLII 9039 (ON CA), (2006), 206 C.C.C. (3d) 489 (Ont. C.A.) at para. 12 and 13 (the “touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably”)
  4. See R. v. Letford 2000 CanLII 17024 (ON CA), (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20
    R. v. Seed [1998] O.J. No. 4362 (C.A.) at para. 7
    R. v. Cambrin 1982 CanLII 353 (BC CA), (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3
    R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.)
  5. R v Chilton, [2009] OJ 3655 (SC)
    R v Gill [2007] OJ 4098 at para. 37 to 40
    R v Dhaliwal [2005] OJ 1129 at para. 23 to 26

See Also[edit]


Offences/Impaired Driving and Over 80/Breath Sample Evidence[edit]

General Principles[edit]

As part of the offence of "Over 80" under s. 253(1)(b), the crown must prove the accused's Blood Alcohol Content (BAC) is over 0.08 per millilitres. The crown must also establish that this occurred while operating a motor vehicle.[1]

Where a breath or blood sample was taken and complies with all the requirements of s. 258(1)(c) and 258(1)(d.1), the results are, with some exception, deemed conclusive as to the BAC while in operating the vehicle.

Presumption of Identity s. 258(1)(c)[edit]

Section 258(1)(c) creates a presumption that is known as the presumption of identity which is a short cut to establishing the driver's BAC at the time of the offence.[2] If the Crown can satisfy the preconditions of this section, there is a presumption created that the "accused’s blood alcohol level at the time of the offence was the same as at the time of testing."[3] However, if the presumption is not available, the crown must prove the accused's blood alcohol level at the time of the offence.[4] This usually requires expert testimony of a toxicologist.

A crown is always permitted to rely both on the presumption and also call evidence of the technician in the same trial.[5]

Section 258(1)(c) states:

258. (1)

...

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(i) [Not in force]
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; [emphasis added]

...

CCC

258. (1)

...

(d.1) if samples of the accused’s breath or a sample of the accused’s blood have been taken as described in paragraph (c) or (d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused’s blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused’s consumption of alcohol was consistent with both

(i) a concentration of alcohol in the accused’s blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and
(ii) the concentration of alcohol in the accused’s blood as determined under paragraph (c) or (d), as the case may be, at the time when the sample or samples were taken;

CCC

The requirements are summarized as:

  1. a demand was made under s. 254(3)
  2. each sample was made as soon as practicable after the time of the offence
  3. the first sample was "no later than two hours after [the time of the offence]"
  4. each sample is taken no less than 15 minutes apart
  5. each sample was received directly into an approved container or approved instrument
  6. the container or instrument was operated by a qualified technician.
  7. analysis of each sample was made by means of the approved machine operated by a qualified technician.

Where the requirements are satisfied, then the BAC level is made out. Much of the case law revolves around whether these elements are made out. If they are deficient in any way, then the presumption cannot be relied upon and it would be necessary for the Crown to present expert evidence on the disbursement of alcohol in the blood system over time to make the inference that the alcohol level was over 80 at the time of the offence.

  1. see R. v. MacConnell reflex, (1980), 54 C.C.C. (2d) 188 (Ont. C.A.))
  2. R. v. Charette, 2009 ONCA 310 at para 4
    see R. v. St. Pierre, 1995 CanLII 135 (SCC), [1995] 1 S.C.R. 791
  3. R. v. Charette, 2009 ONCA 310 at para 4
  4. see R v Grosse, 1996 CanLII 6643, 107 CCC (3d) 97 (ONCA)
  5. R. v. Smith, 2012 ONSC 4492 (CanLII)

Sample Taken As Soon as Practicable[edit]

Under s. 258(1)(c)(ii), proceedings in respect of an offence under s. 253, 254(5), 255(2) to (3.2) in which samples of breath are taken pursuant to a 254(3) demand each sample must be "taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time".

This creates a right to be subject to the demand within a time limit or else the accused rights will be violated.

A test done "as soon as practicable" requires that the test be made “within a reasonably prompt time under the circumstances”. [1] This comes down to whether the police acted reasonably.[2]

Where a delay is prima facie unreasonable the crown must prove beyond a reasonable doubt that the delay does not violate s. 258(1)(c)(iii) in order to rely on the presumption of identity.[3]

If the delay is explained satisfactorily, the presumption of identity can still be relied upon.[4]

Essentially, the court asks whether the police have taken the sample reasonably promptly? This standard does not mean “as soon as possible”. [5]

It also does not require the Crown to explain every detail or every minute of delay.[6] However, there should be an obligation "to demonstrate that – in all the circumstances – the breath samples were taken within a reasonably prompt time"[7] This is necessary to afford meaningful appellate review of the Trial Judge’s decision.[8]

The delay should be in “as limited time as is reasonably possible”[9] which can be a very flexible range of time.[10]

Under s. 258(1)(c)(ii), the Crown must be prepared to demonstrate that in the circumstances were taken in a reasonable time, including by showing the way the police are organized and why the samples were prompt.[11]

Where the peace officer reasonably believes that there is a risk to the security of the vehicle or its contents, a delay due to efforts to secure the vehicle will be a justifiable delay.[12]

Delay due to the officer's regular duties, such as making notes, searching car, basic questioning, and adjusting handcuffs, is generally considered reasonable.[13]

Delay due to controlling a difficult accused can be acceptable.[14]

  1. R. v. Vanderbruggen, 2006 CanLII 9039 at 12 to 16
    See R. v. Phillips 1988 CanLII 198 (ON CA), (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156;
    R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351;
    R. v. Coverly, (1979), 50 C.C.C. (2d) 518 (Alta. C.A.) at 522
  2. R. v. Letford 2000 CanLII 17024 (ON CA), (2000), 150 C.C.C. (3d) 225 (Ont. C.A.), at para. 17 See R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552;
    R. v. Carter, (1981), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453;
    R. v. Van Der Veen (1988), 44 C.C.C. (3d) 38 (Alta.C.A.) at 47;
    R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and
    R. v. Seed, [1998] O.J. No. 4362, 1998 CanLII 5146 (ON CA) (C.A.) at 7 (In all the circumstances, did the police act "reasonably and expeditiously?")
  3. R. v. C.A.J., 2004 ABQB 838 at 27
  4. R v Carter, [1981] SJ No 1337 (CA)
  5. R v Altaseimer (1982) 1 CCC (3d) 7 (ONCA)
    R v Payne, (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) R v Squires 2002 CanLII 44982 (ON CA), [2002] OJ No 2314
    R. v. Letford 2000 CanLII 17024 (ON CA)
  6. See R. v. Letford 2000 CanLII 17024 (ON CA), (2000), 150 C.C.C. (3d) 225 (Ont. C.A.), at para. 20
    R. v. Cambrin 1982 CanLII 353 (BC CA), (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-63
    R. v. Vanderbruggen, 2006 CanLII 9039 at 16
  7. R. v. Vanderbruggen, 2006 CanLII 9039 at 16
  8. e.g. R. v. Rienguette, 2012 ONSC 4633 para. 19 to 24 - judge gave limited reasons for "forthwith"
  9. R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640
    R. v. Kachmarchyk, (1995), 165 A.R. 314 at 234
  10. R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254
  11. R. v. Letford, 2000 CanLII 17024 (ON CA)[11]
  12. R v Hafermehl [1993] AJ No 981 (CA); R v Wetzel 2012 SKQB 24 at 29
  13. R v Papa [2006] OJ 1497 - 14 min between arrest and demand ("We expect more of a police officer than simply to make an arrest")
  14. R v Iyoupe, (1972), 8 C.C.C. (2d) 198 - 15 min delay after arrest due to difficulty with accused

Sample within Two Hours[edit]

Where the sample was taken outside of the two hour limit, the Crown can only prove the BAC levels by making an inference from the measured BAC level.This requires a qualified expert on the absorption, distribution and elimination of ethanol alcohol by the human body.

The opinion sought by the crown would be the BAC level while driving in light of :

  • the accused gender, age, height and weight
  • the time of driving
  • the time and readings of tests
  • whether any alcohol was consumed between driving and the tests, and what effect it would have on the readings
  • any evidence on the accused's drinking around the time of the incident
  • the timing of and amount of drinking needed to produce the readings without having BAC over 0.8 while driving

It is expected that an expert testifying will be relying on a number of assumptions, such as:[1]

  1. A rate of elimination of between X and Y milligrams of alcohol in one hundred millilitres of blood per hour (varying depending on the age, gender, height and weight of the individual)
  2. A two hour plateau;
  3. No consumption of alcohol between the time of driving until after the last test; and
  4. No significant consumption of alcohol just prior to, or an instant before the moment the accused was established as in care and control.

The expert should be able to testify to the number of “standard drinks” needed to be consumed at specific times prior to operating the vehicle for the readings to be generated. However it may not be necessary to prove the actual case.[2]

Where such expert evidence is needed to establish BAC at the time of driving, the evidence may include the possibility of the BAC being either just below or just above 0.8. This is known as straddle evidence.

This evidence is considered admissible and may still be sufficient to support a conviction. The courts may consider the evidence, along with other factors relating to impairment, to determine whether this evidence raises a reasonable doubt rebutting the presumption in s. 258(1)(d.1).[3]

It is generally understood that the elimination rates is 20 mg of alcohol in 100 ml of blood per hour.[4]

  1. e.g. R. v. Baxter, 2012 ONCJ 91 at 13
  2. e.g. R. v. Baxter, 2012 ONCJ 91 at 26
  3. R. v. Gibson, 2008 SCC 16
  4. See R. v. Paszczenko, [http://canlii.ca/t/2cpjc 2010 ONCA 615 at para. 42]

Interval Between Samples[edit]

The test involves the taking of three breath samples of no less than 15 minutes apart.

Where the gap between samples is greater than 20 minutes some explanation is required or else it may be not as soon as practicable in compliance with the requirements of s. 258(1)(c)(ii).[1]

The police are required to monitor the accused for the 15 minutes leading up to the breath test in order to ensure that there is no burping, vomiting, or belching that would give artificially high readings.[2]

A failure to wait 17 minutes after an "invalid sample" can invalidate the presumption.[3]


  1. R. v. Kunsenhauser, 2006 ONCJ 382, [2006] O.J. No. 4092 (C.J.)
  2. see R. v. Guichon 2010 BCPC 335 where the point was argued to partial success
  3. R. v. Nadesapillai, [2006] O.J. No. 3124 (O.C.J.), R. v. Asim, [2008] O.J. No. 3075 (O.C.J.) and R. v. Kirby, [2009] O.J. No. 5796 (O.C.J.)

Samples Directly into Instrument[edit]

Under s.258(1)(c)(iii), the Crown must prove beyond a reasonable doubt that sample was provided "directly into an approved instrument".[1] This can be proven by inference as a matter of logic and common sense based on surrounding evidence.[2]

  1. R v Burns [2001] OJ No 1050 (ONSC)
  2. R v Triantos, [1994] OJ No 803

Taken by Qualified Technician[edit]

Section 254(3)(1)(a) requires that the "qualified technician" have an opinion that the samples properly administered and were sufficient for "a proper analysis" of the alcohol concentration.

Analysis by Approved Instrument[edit]

Under s. 258 (1)(c)(iv), “an analysis of [a] sample was made by means of an approved instrument operated by a qualified technician” is a necessary element to establish “conclusive proof” of the BAC level at the time of operation.

It is not necessary to prove beyond a reasonable doubt that the device is working properly. [1]

The test has both a subjective and an objective component. The officer must have an honest belief which is demonstrated and the belief must be objectively reasonable.

A described device or instrument is not fatal so long as it is believed by the officer that it is an approved screening device.[2]

Factors that go to whether the officer knew that the test was reliable include the familiarity of the effect and measure of the temperature at the time the test was taken.[3]

Failure to operate the machine in compliance with the manual may raise doubt as to the reasonable belief that the machine results are accurate.[4] However, it is not necessary that the operator strictly follow the operating manual where the officer's training experience and belief go beyond what is in the manual.[5]

For details on the test procedure see: R v Moriaux, 2012 MBPC 20 at 19 - 39

The list of approved devices are found in SI/85-201 Approved Breath Analysis Instruments Order].

Inconsistencies in the evidence of naming the device a "Intoxilizer 8000C" and "Intoxilizer 8000", of which only one of them is approved, may have the effect of raising doubt on the element.[6]

  1. R. v. D’Alfonso, 2012 BCSC 1051
  2. R v Gundy, 2008 ONCA 284 (2008) 231 CCC (3d) 26 (ONCA)
  3. R. v. Gill, 2011 BCPC 355 at 17 to 19
  4. R. v. Nadesapillai, [2006] O.J. No. 3124 (O.C.J.)
  5. R. v. Smith, 2012 ONSC 4492 (CanLII) at para. 24
  6. R. v. Almeida, 2012 ONCJ 360 at para. 11 to 13

Where Presumption Does Not Apply[edit]

Where the presumption under s. 258(1)(c) does not apply, the crown needs to prove the BAC at the time of the offence by inference. This generally requires the calling of an expert witness who can testify as to the BAC level at the time of the offence given the reading and the timing of the reading of the breath sample.

Admission of Breath Test Results[edit]

The breath test results can be admitted into evidence either by way of 1) viva voce evidence of the qualified technician; or 2) tendering the Certificate of the qualified technician under s. 258(1)(g).

The crown is permitted to rely the results proven both ways.[1]

Section 258(1)(g) states that:

s. 258 (1)...

(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating
(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,
(ii) the results of the analyses so made, and
(iii) if the samples were taken by the technician,
(A) [Repealed before coming into force, 2008, c. 20, s. 3]
(B) the time when and place where each sample and any specimen described in clause (A) was taken, and
(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

CCC

To rely upon s. 258(1)(g) requires:[2]

  1. the analysis of each samples has been made by means of an approved instrument
  2. the instrument was operated by the technician
  3. the technician ascertained it to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument
  4. the results of the analyses are made out
  5. the time and place of each sample was made out
  6. each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician
  1. R v Staples [1997] OJ 4565 (CA)
  2. R v Lightfoot, [1981] 1 SCR 566

Presumption of Accuracy[edit]

The presumption of accuracy is the presumption that the readings of the Certificate are an accurate representation of the accused's BAC unless there is "evidence to the contrary". Although, the presumption is not contained within s. 258, it arises out of operation of the application of s. 25 of the Interpretation Act to s. 258(1)(g). Thus, the presumption only applies where the evidence of readings are admitted through the tendering of the Certificate of the qualified technician.[1]

The presumption means forgoing the need for the testimony of the breath technician to testify to validate the certificate.[2] The Crown may introduce the "certificate as prima facie proof of the facts contained therein, without the need to prove the signature or the official character of the person signing the certificate."[3]

The only way to defeat this presmuption once the evidence is establishsed is by presenting evidence tending to show all of the following:[4]

  1. That the approved instrument was malfunctioning or was operated improperly,
  2. That the malfunctioning or improper operation resulted in the determination that the concentration of alcohol in the defendant's blood exceeded 80 milligrams of alcohol in 100 millilitres of blood,
  3. That the concentration of alcohol in the accused's blood would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood.

With the amendments of s. 258 in July, 2008 in Bill C-2, the presumption is generally not applicable, as there is no longer any option to present "evidence to the contrary".

  1. R v Kernighan [2010] OJ 2671
    R v Chow [2010] OJ 2527 (CA)
  2. R. v. Boucher, 2005 SCC 72, [2005] 3 SCR 499
  3. R. v. Charette, 2009 ONCA 310 at para. 6
  4. R. v. Jenabfar, 2012 ONCJ 26 at 17

Certificate of Analysis[edit]

The Certificate of Analysis is the document setting out the readings from the breath test. It can be admissible as evidence without calling the breath technician to give viva voce evidence where it can be established where:

  1. the sample was taken in compliance with the requirements of s. 258(1)(c) and 258(1)(d.1), 258(1)(g)[1]
  2. notice of intention to produce the Certificate of Analysis

Section 258(7) provides a requirement for notice before a "shortcut" can be taken in proving blood‑alcohol content.

The provision requires two things. First, that the accused be given reasonable notice of intention to produce the Certificate of Analysis at trial, and second, that the accused be given a copy of the Certificate.

s. 258

...

Notice of intention to produce certificate
(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h) or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.

R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.

CCC

It is mostly accepted that the certificate must be proven on a balance of probabilities.[2]

The Certificate given to the accused does not need to be signed as a duplicate. It is acceptable as long as it "is a true copy in all essential particulars and conveys to the defendant all of the required information."[3]

The term "copy" must mean "true copy" as an untrue copy would not even be a copy.[4]

The officer can be challenged on whether he served the accused with a true copy. The police officer must be able to confirm that he had verified that it was a true copy or else the Certificate would not be admissible.[5] Merely glancing at the documents is not enough to ensure it was an exact reproduction.[6] However, word for word comparison is not necessary either.[7] There is suggestion that service of a carbon copy can be considered a duplicate and so may not need review.[8] Photocopies are generally sufficient.[9] However, they must be legible to be valid.[10]

When serving notice is it necessary that the officer be satisfied that the accused understood the notice. This is particularly relevant where there are language difficulties recognized by the officer.[11]

In determining the admissibility of the certificate, the court may consider the contents of the certificate.[12]

  1. R v Hruby (1980) 4 MVR 192, 1980 ABCA 20 (CA)
    R v Pickles (1973) 11 CCC (2d) 210 (ONCA)
  2. Balance of probabilities:
    R. v. Redford, 2012 ABPC 19 - comprehensive summary of the law
    R. v. Buffalo (2010), 480 A.R. 284 (Alta. Q.B.)
    R. v. Nelson [2006] A.J. No. 467 (Alta. Q.B.)
    R v Mokelky, 2008 ABPC 343
    R. v. MacKinnon, [2003] O.J. No. 3896 at para 2
    c.f. beyond a reasonable doubt:
    R.v. Duplessis 2006 ABQB 297, (2007), 49 MVR (5th) 252 (Alta. QB)
  3. R v Glass [1973] 5 W.W.R. 761, 12 C.C.C. (2d) 450
  4. R v Barratt (1977), 35 C.C.C. (2d) 174 (Ont. H.C.) per Maloney J. at p. 175 concerning s. 237(5): ("...that the accused was served with a copy of the certificate of analysis within the meaning of s-s. (5) and, as I have said, that means a true copy")
  5. R v Vogel 2010 SKPC 185
  6. R v Stewart, 2012 SKPC 39 at 47
  7. R. v. McEvoy 2001 ABQB 851 at 26
  8. R. v. Bergen 2009 ABPC 106
  9. See R. v. Baird, [2005] S.J. No. 225 (Sask. Prov. Ct.)
  10. See R. v. Leeson, [1985] B.C.J. No. 1630 (B.C. Co.Ct.) - illegible photocopy held invalid
  11. R v Singh, 2012 ABPC 91 at 36
  12. R v Schlegel, 1985 CanLII 652 (BCCA) at para 19 and page 447

Errors in Certificate[edit]

Errors in the certificate are not necessarily fatal.

Typographical errors in the certificate can be corrected.[1] They can be corrected by presenting extrinsic credible evidence which provides a basis to establish that there was an error and what the correction would be. This will normally be through viva voce evidence. It should not be be done merely by inference.[2] The evidence can come from someone other than the technician.[3]

The scratching out of a number and insertion of a number is an error that needs to be clarified by viva voce evidence.[4]

An error in citing the criminal code provision regarding the designation of the certificate does not invalidate the certificate.[5]

An errror in checking off the right box identifying the qualification of the technician can be fatal without some additional evidence on their qualification somewhere on the certificate.[6]

  1. R. v. Ryden 1993 ABCA 356 (CanLII), (1994) 86 C.C.C. (3d) 57
  2. R. v. Reutov, 2000 ABPC 112 (CanLII) at para. 26
  3. R v Reutov
  4. R. v. Gabayne, 2012 ABPC 206 (CanLII)
  5. R v Ticknor (1990) MJ No 717
  6. R. v. Fedun [1993] S.J. No. 502 (Sask. Q.B.)

"Evidence to the Contrary"[edit]

Carter Evidence[edit]

"Carter" evidence sometimes described as the "Carter defence", refers to defence evidence that is admitted for the purpose of presenting "evidence to the contrary", rebutting presumption of accuracy and presumption of identity.

Before the July 2, 2008 amendments to s. 258(1)(c), the “Carter defence” was available for any offence of over 80. This allowed an accused to present evidence of consumption as well as expert evidence inferring the likely blood alcohol level.[1] Now such evidence is specifically inadmissible where the presumption of identity is being relied upon.[2]

Instead the accused may only present evidence showing that the approved instrument “was malfunctioning, or was operating improperly” and resulted in BAC over 80 when it otherwise would not have.

  1. R v Carter [1985] OJ No 1390 (ONCA)
  2. s.258(1)(d.01)

Bolus Drinking[edit]

Bolus drinking is the significant consumption of alcohol just prior driving. It is considered a relatively rare occurrence.[1] The Crown must disprove the possibility of bolus drinking. This is usually done by common sense inferences.[2] Thus, absence any evidence on the record to the contrary, the Crown may simply rely upon the common sense inference that people do not normally ingest a large amount of alcohol immediately prior or during the operation of a motor vehicle.[3]

See R. v. Calabretta, 2008 ONCJ 27 for a detailed consideration on Bolus drinking

  1. R. v. Paszczenko, [2010] O.J. No. 3974 (C.A.), 2010 ONCA 615 at 27
  2. Paszczenko 2010 ONCA 615 at 29
  3. R. v. Paszczenko, [2010] O.J. No. 3974 (C.A.), 2010 ONCA 615 R. v. Lima, [2010] O.J. No. 3974 (C.A.) at para 27-31

Blood / Urine tests[edit]

A blood sample can be obtained by a) a demand under s. 254(3)(a)(ii),[1] b) by consent, or c) by a blood sample warrant under s. 256.

The blood sample test results can be proven by oral evidence through the normal rules of evidence or by documentary evidence of a certificate of a qualified medical practitioner or qualified technician. The certificate must comply with s. 258(1)(h).

For more details, see Canadian Criminal Procedure and Practice/Search and Seizure/Bodily Samples and Canadian Criminal Procedure and Practice/Search and Seizure/Warrantless Searches/Consent Search.

  1. "(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood;"

See also[edit]


Offences/Impaired Driving and Over 80/Care and Control[edit]

Operation[edit]

Section 214 defines "operate" as:

“operate”

(a) means, in respect of a motor vehicle, to drive the vehicle,
(b) means, in respect of railway equipment, to participate in the direct control of its motion, whether
(i) as a member of the crew of the equipment,
(ii) as a person who, by remote control, acts in lieu of such crew, or
(iii) as other than a member or person described in subparagraphs (i) and (ii), and
(c) includes, in respect of a vessel or an aircraft, to navigate the vessel or aircraft;

CCC

A vehicle which is completely unable to be moved in any direction cannot be operated within the meaning of s. 214.[1] However, a vehicle that is stuck and can only move a matter of 1 or 2 feet is still in operation.[2]

A passenger who grabs the steering wheel and controls the direction of the vehicle operates it.[3]

The use of the steering wheel of a vehicle that is being towed constitutes operation.[4]

  1. R v Danji, [2005] OJ No 917 (ONCJ)
  2. R v Bui, [2006] OJ No 2869 (ONCJ) car in snowbank can only move 1-2 feet
  3. R v Belanger, [1970] SCR 567
  4. R v Morton, [1970] BCJ No 532 (BCPC)

Care and Control[edit]

An essential element to proving an offence under s. 253 or 254, the Crown must prove that the accused was in "care and control" of the motor vehicle at the relevant time.[1]

Care and control can be proven by showing actual use of the vehicle or actions which present a risk of putting the car in motion.[2]

"Care or control" under s. 253(1) requires:[3]

  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 realistic risk of danger to persons or property.

Alternatively, the care and control can be proven through the presumption created by establishing that a person was in the driver's seat under s. 258(1)(a):[4]

"Risk of danger" requires proof that the risk is "realistic" and "not just theoretically possible".[5]

Many acts that are less than driving can constitute care and control.[6]

Proof of care and control absent the presumption under s. 258(1)(a) requires:[7]

  1. an act involving the use of the motor vehicle, its fittings or equipment, or a course of conduct associated with the vehicle
  2. an element of risk of setting the vehicle in motion, either intentionally or unintentionally; and,
  3. element of dangerousness arising from the risk of setting the vehicle in motion

Where it is less than actual driving, to establish "care and control" it must be determined whether, as part of the actus reus, the accused's use of a motor vehicle or its "fittings and equipment" or the accused's conduct would involve the risk of putting the vehicle into motion and become dangerous.[8]

Danger is an essential part of care and control. Even where the accused did not specifically intend to put the vehicle in motion, where some operation of the vehicle creates the risk that the vehicle will be set in motion, even if by accident, will satisfy the requirements of care and control.[9]

Not all operation of the "fittings and equipment" will result in care and control.[10] However, certain acts such as turning on the ignition will "almost always" be characterized as an act of care and control.[11]


  1. R. v. Penno, supra, page 124
  2. The Queen v. Toews, [1985] 2 SCR 119 at 10 1985 CanLII 46
    R. v. Vansickle, [1988] O.J. No. 2935
  3. R. v. Boudreault 2012 SCC 56 (CanLII)
  4. R. v. Toews, [1985] 2 SCR 119 1985 CanLII 46
    R. v. Ford, [1982] 1 SCR 231 1982 CanLII 16
    R. v. Penno [1990] 2 SCR 865 1990 CanLII 88
  5. Boudreault at para. 34, 35
  6. R. v. Ford, 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231
    R. v. Buckingham, 2007 SKCA 32 (CanLII) at 11
  7. R. v. Smith, [2005] N.S.J. No. 307 (N.S.S.C.)
  8. See R. v. Ford, 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231
    R. v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119 Buckingham, 2007 SKCA 32, [2007] 6 W.W.R. 73
    see also: R. v. Wren 2000 CanLII 5674 (ON CA), (2000), 144 C.C.C. (3d) 374 (Ont. C.A.) R. v. Anderson, 2012 SKCA 37, [2012] S.J. No. 184 at para 5
  9. R v Burbella (2002) 167 CCC (3d) 495, 2002 MBCA 106 (CanLII) (MBCA)
    R v Decker (2002) 162 CCC (3d) 503 (NLCA)
  10. R v Mannemann, [2001] OJ No 1686 (ONSC)
  11. R v Mannemann, supra, at para. 51

Presumption in Driver's Seat[edit]

Proceedings under section 255
258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;

...

CCC

The presumption is established by proving that the seat was occupied at the time the accused entered the vehicle, not simply when the accused was found.[1] This presumption can be rebutted by calling evidence that the driver's seat was not occupied for the purpose of operating the vehicle on the balance of probabilities.[2]

If the presumption has been rebutted, the accused may still be convicted where there was a danger that the accused could have put the vehicle in motion. [3]  

Dangers include the risk of the vehicle being set in motion unintentionally, negligently, or intentionally where the driver changes his or her mind not to drive.[4]Where an accused was found in a stationary vehicle, it is not necessary for the Crown to prove that the accused intended to set the vehicle in motion.[5]

The Crown however must establish that the accused performed "some act or series of acts involving the use of the car, its fittings or equipment...whereby the vehicle may unintentionally be set in motion creating the danger the section is designed to prevent.”[6] The key to the determination is the risk of setting the vehicle in motion and become dangerous.[7]

The determination is highly contextual and so the "[c]ircumstances in which acts of care and control may be found will vary widely."[8]

The presumption will be in effect even where the driver's seat has been fully reclined.[9]

The presumption will not be available where the accused is sleeping across the front seats.[10]

Evidence that the vehicle is immobile is not generally sufficient to rebut the presumption.[11]

Where the presumption is engaged, it is not necessary to establish a risk was set out in Wren.[12] It is not relevant whether the vehicle is immobile.[13]

If the accused is unconscious following an accident it is "impossible" to rebut this presumption.[14]

  1. R. v. Hatfield, 1997 CanLII 2938 (ON CA)
  2. R. v. Whyte, [1988] 2 SCR 3 1988 CanLII 47
    R. v. Miller, [2004] O.J. No.1464 (C.A.) aff’g [2002] O.J. No. 4896 (S.C.J.);
    R. v. Saulteaux, [2000] S.J. No. 633 (Q.B.)
  3. R. v. Wren 2000 CanLII 5674 (ON CA), (2000), 144 C.C.C. (3d) 374 (Ont.C.A.)
  4. R. v. Ferguson, [2005] O.J. No. 182 (S.C.J.)
    R. v. McLachlan, 2009 BCSC 431, 242 C.C.C. (3d) 362 (BCSC) [12]
  5. R. v. Ford, supra, p 399
    R. v. Buckingham, para. 11 (“An intention to drive is not an essential element of the offence.”)
  6. R. v. Ford, p 399
  7. R. v. Barlow, 2006 SKQB 220 at 32, 33
  8. R. v. Toews, 1985 CanLII 46 (SCC) p 220
  9. R v Hatfield, [1997] OJ No 1327
  10. R v Toews, supra
    R v Volk [1985] SJ No 842
  11. R v Danji, [2005] OJ No 917 at para. 36
  12. R v Hayes, 2008 NSCA 23 at para. 29
    R v Mallery 2008 NBCA 18 at para. 46
    R v Ferguson [2005] 15 MVR (5th) 74 (ONSC) at para. 13
    R v Smith (2004) 3 MVR (5th) 101 (ONSC) at para. 20, 25
    R v Mark [2002] OJ No 870 (ONSC)
  13. R v Amyotte [2009] OJ 5122 (ONSC) at para. 127 R v Weir [2005] BCJ No 2845 (BCSC)
  14. R v Weir [2005] BCJ No 2845 (BCSC)

Rebutting Presumption[edit]

There is a division in the case law on the time at which the mens rea is established.

Rebuttal of the presumption is on the balance of probabilities.[1]

Ontario cases suggest that the accused must establish that the occupancy began without the intention to put the vehicle in motion.[2] The fact that the accused intended to sleep at the time of discovery does not rebut the presumption.[3]

The initial intention upon the entry into the vehicle establishes the mens rea.[4] A change of intention does not rebut the presumption.[5]

Saskatchewan cases suggest that the time to assess intention is the "overlap period" in the proceeding 2 hours before the breath test.[6]


Indecision of the accused does not rebut the presumption.[7]

It is not sufficient that there be a "bald assertion" that the accused did not intent to drive.[8]

The driver who says "I'll only drive when I am sober" will not rebut the presumption.[9]

  1. R v Whyte (1988) 42 CCC (3d) 97 (SCC)
    R v Appleby (1971) 3 CCC (2d) 354
  2. R v Hatfield (1997) 115 CCC (3d) 47 (ONCA)
  3. R v Hatfield (1997) 115 CCC (3d) 47 (ONCA)
  4. R v Decker (2002) 162 CCC (3d) 503 (NLCA) at para. 6
  5. R v Ahunu-Kumi [2006] OJ No 2285 (ONSC)
  6. R v Shuparski (2003) 173 CCC (3d) 97 (SKCA)
  7. R v Weir [2005] BCJ 2845 at para. 37 ("mere indecision as to whether to drive or to sleep will be indecision to rebut presumption")
    R v George (1994) 5 MVR (3d) 1 (NLCA)
  8. R v Nicholson [2007] AJ No 1261 (ABCA)
  9. R v Szymanski [2009] OJ 3623 (ONSC) at para. 59 to 65

Factors of Risk[edit]

Where the accused is not in actual operation of the vehicle, the court must consider the risk of danger that the accused poses. The risk of danger that an intoxicated person poses has been broken down into three categories:[1]

  1. The risk that the vehicle will unintentionally be set in motion[2]
  2. The risk that through negligence a stationary or inoperable vehicle may endanger the individual or others[3]
  3. The risk that the individual who has decided not to drive will change his or her mind and drive while still impaired[4]

When considering whether an accused was at risk of danger by putting the vehicle in motion, the court may consider the following factors:[5]

  1. The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive;
  2. Whether the keys were in the ignition or readily available to be placed in the ignition;
  3. Whether the vehicle was running;
  4. The location of the vehicle;
  5. Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination;
  6. The accused’s disposition and attitude;
  7. Whether the accused drove the vehicle to the location where it was found;
  8. Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving;
  9. Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit;
  10. Whether the accused had a stated intention to resume driving;
  11. Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption;
  12. Whether the accused was wearing his or her seatbelt;
  13. Whether the accused failed to take advantage of alternate means of leaving the scene;
  14. Whether the accused had a cell phone with which to make other arrangements and failed to do so.

The risk of danger of a change of mind has been described as a "real risk"[6], a "realistic risk"[7] and a risk "going beyond mere possibility", "more than speculative" and “concrete and tangible”.[8]

The risk does not need to be immediate.[9]

A risk of a change of mind must be established by the crown. There must be a "real risk that the particular accused would change his or her mind and intentionally set the vehicle in motion."</ref>R v Szymanski [2009] OJ 3623 (ONSC)
See also: R v Coleman, 2012 SKCA 65
</ref>

  1. R v Smits, 2012 ONCA 524
  2. see R. v. Ford, [1982] 1 S.C.R. 231
  3. see R. v. Vansickle, [1990] O.J. No. 3235 (C.A.), aff’g [1988] O.J. No. 2935 (Dist. Ct.)
  4. see R. v. Pelletier (2000), 6 M.V.R. (4th) 152 (C.A.)
  5. R. v. Smits, 2012 ONCA 524 at para 63
    R v Szymanski,(2009), 88 M.V.R. (5th) 182 (S.C.) at para. 93
  6. see R. v. Szymanski (2009), 88 M.V.R. (5th) 182 (S.C.), at para. 91
  7. R. v. Ferguson (2005), 15 M.V.R. (5th) 74 (S.C.), at para. 24
  8. see R. v. Ross, 2007 ONCJ 59, 44 M.V.R. (5th) 275, at para. 13
    R. v. Sandhu (2008), 76 M.V.R. (5th) 305 (S.C.), at para. 71
    for all examples see R. v. Smits, 2012 ONCA 524
  9. R v Banks 2009 ONCA 482

Sleeping in vehicle[edit]

There has been some debate about whether sleeping in the driver's seat with no intention to drive should be caught under the impair driving offences.[1] However, much case law leans towards the conclusion that where a person is found in the driver's seat, and no evidence is lead of a specific plan to support a changed intent to drive, the presumption will be allowed.[2] So for example, a person who sits in the drivers seat of a vehicle to sleep off the effects of alcohol will be in care and control.[3]

Thus, to overcome this finding some evidence is necessary. The distinction can be made where the accused is merely a custodial of the vehicle and there is no risk of the car being set in motion.[4]

Courts have found persons sleeping in their vehicle will not amount to care and control in the following circumstances:

  • accused had not place to stay and so slept in vehicle; vehicle was off [5]
  • the vehicle was turned on to keep accused warm [6]
  • car off and keys in ignition[7]

See also:

  • R. v. Hannemann, 2001 CanLII 28423 (ON SC) [24]
  • R. v. Geoffroy, 2003 ABPC 50 (CanLII) [25]
  • R. v. Coleman, 2011 SKQB 262 [26]
  • R. v. Jonsson, 2011 ABPC 301 [27]

Courts have found persons sleep in their vehicle were in care and control in the following circumstances:

  • sleeping in front seat with vehicle off; keys were accessible[8]
  • car running but intended to turn it off/no intention to drive[9]
  1. R. v. Chung, 2011 ONCJ 757 at 13
  2. R. v. Miller, [2004] O.J. No. 1464
    R. v. Hatfield, [1997] O.J. No. 1327 (C.A.)
    R. v. Ahunu-Kumi, [2006] O.J. No. 2285 (S.C.J.)
    R. v. Szymanski, [2009] O.J. No. 3623 (S.C.J.)
  3. R. v. Rousseau 1997 CanLII 10217 (QC CA), (1997), 121 C.C.C. (3d) 571
  4. R. v. Decker 2002 NFCA 9 (CanLII), (2002), 162 C.C.C. (3d) 503, [2002] N.J. No. 38 (NLCA) -- found there were too many steps to get vehicle started to be a risk
  5. R. v. Bird, 1999 CanLII 12387 (SK PC) [13]
    R. v. Sherbrook, 1998 CanLII 13896 (SK QB) [14]
    R. v. Barber, [1998] S.J. No. 708 (Prov.Ct.)
    R. v. Grover, 2000 ABQB 779
    R. v. Gerrard, 2000 ABPC 182
  6. R. v. Amendt, 1997 CanLII 1624 (BC SC) [15]
    R. v. Boyd, [1990] N.S.J. No. 517
    R. v. McNabb, 2003 SKPC 118 (CanLII) [16]
  7. R. v. Martindale, 1995 CanLII 1928 (BC SC) [17]
  8. R. v. Diotte, 1991 CanLII 2407 (NB CA) [18]
    R. v. Pilon, 1998 CanLII 4717 (ON CA) [19]
    R. v. Ferrier, 2011 ABPC 289 [20]
  9. R. v. Lockerby, 1999 NSCA 122 (CanLII) [21]

Car disabled[edit]

Where a vehicle is immobilized due to a flat tire, the driver has often been found not to be in care and control.[1]

  1. R. v. Dowse, [2011] OJ No. 2935

Outside vehicle[edit]

In certain circumstances a person can be in care and control of a vehicle without being found inside the vehicle.

An accused found near the car while in possession of the vehicle's keys can be sufficient.[1] Where the accused is directing tow truck, it may be care and control.[2]

  1. R v Rupolo (1970) 2 CCC (2d) 327
    R v McQuarrie [1980] NSJ 38
  2. R v Lackovic [1988] OJ No 1732

Cases[edit]

  • R v Andersen, 2012 SKCA 37 -- guilty -- asleep in drivers seat, engine running, doors locked
  • R v Page, 2011 SKPC 152 -- guilty
  • R. v. Zmurchyk, 2010 ABPC 359 [28] -- guilty -- review of case law
  • R. v. Yakobchuk 2005 ABPC 189 [29] - not guilty
  • R. v. Brahniuk, 2002 SKCA 104 -- guilty -- turned on truck, locked door and passed out across the front seats. Risk of putting in motion.
  • R. v. Sherbrook, [1998] S.J. No. 88 (Sask.Q.B.) -- not guilty


Offences/Refusal[edit]

Impaired Driving, Over 80 and Refusal
s. 254 253, 254 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Minimum $1,000 +
12 months Driving Prohib.(first)
30 days jail + 2 to 5 years Driving Prohib. (second)
120 days +
3 or more years Driving Prohib. (three or more)
Maximum 18 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum same as summary
Maximum 5 years jail
References
Offence Elements
Sentence Principles
Sentence Digests

Summary[edit]

Section 253 describes two distinct but related offences. The offence of "impaired driving" prohibits the operation or care and control of a vehicle while the person's ability to operate it is impaired by drug or alcohol. The offence of "over 80" prohibits the operation or care and control of a vehicle while the person's blood alcohol concentration (BAC) is over 80mg per 100mg of blood.

These offences are some of the most heavily litigated of all criminal offences. The proof of impaired driving has basis largely on the observational evidence of eye-witnesses, usually the investigating officer. They can become complicated when involving drugs rather than alcohol as it requires a Drug Recognition Expert. The proof of the Over 80 offence requires a procedure of taking a breath or blood sample and then extrapolating the estimated BAC at the time of the offence. There are several short cuts to proof that are available under s. 258.

Both offences have the common element of operation or care and control, which becomes most uncertain when examining whether there was care or control arising from the risk of the vehicle being put in motion. These offences also often engage Charter rights under s. 8 and 9, 10(b).

Legislation[edit]

Operation while impaired
253. (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

...

CCC

Failure or refusal to comply with demand
s. 254
...
(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

...

CCC

Proof of Offence[edit]

In addition to the essential elements of time and date, jurisdiction, and identity of the accused, the essential elements are:[1]

Note, the items in bold are essential elements.

Operating while impaired - 253(1)(a)[edit]

  1. Officer had reasonable suspicion that there was alcohol/drugs in body and so detained the accused
  2. The Accused was operating the Motor vehicle or in Care and Control of the vehicle
  3. there was any amount of impairment of the accused ability to drive at the time
  4. the impairment was by alcohol or drug at the time
  5. The accused voluntarily consumed the alcohol

Operating while BAC over 80 - 253(1)(b)[edit]

  1. The Accused was operating the Motor vehicle or in Care and Control of the vehicle
  2. Officer had reasonable suspicion that there was alcohol/drugs in body and so detained the accused
  3. The Accused's BAC was over 80 at the time
    1. each sample taken as soon as practicable after offence was committed
    2. first sample taken not later than two hours
    3. interval of at least 15 minutes between samples
    4. each sample received from suspect directly into instrument
    5. the instrument was an approved instrument
    6. the instrument was operated by a qualified technician
    7. the technician made an analysis of each sample

Refusal[edit]

In addition to the essential elements of time, jurisdiction, and identity, the crown should prove:[2]

  1. A proper demand was given and understood;
  2. there was a refusal or failure to provide a proper sample; (actus reus)
  3. the accused intended not to provide a proper sample; (mens rea) and
  4. there was no reasonable excuse for refusing.


  1. R. v. Andrews 1996 ABCA 23 at 31 [22] discusses impairment
  2. R v Lewko, 2002 SKCA 121 at 9

Interpretation[edit]

Mens Rea[edit]

The charge of impaired driving is a general intent offence. [1]

The mens rea of the offence of impaired driving is made out by the accused's voluntary consumption of alcohol for the purpose of becoming intoxication or the accused "acting recklessly, aware that impairment could result, but persisting despite the risk". [2]

It is not necessary that the accused have actual knowledge of the effects of drugs or alcohol. Proof of recklessness is sufficient.[3]

Where the voluntary consumption of alcohol is proven, there is a rebuttable presumption the mens rea is made out. [4]

The intent to be impaired can be negated in certain circumstances where the accused's drink may have been drugged.[5]

  1. R. v. Charles, 2013 BCSC 23 (CanLII) at para. 40
  2. R. v. Mavin 1997 CanLII 14625 (NL CA), (1997), 154 Nfld. & P.E.I.R. 242 at paras. 37-39
    R. v. Charles, 2013 BCSC 23 (CanLII) at para. 41
  3. R. v. Pomeroy, 2007 BCSC 142 (CanLII)
    R. v. Honish, 1993 CanLII 156 (SCC), [1993] 1 S.C.R. 458
  4. R. v. King, 1962 CanLII 16 (SCC), [1962] S.C.R. 746 at p.763
  5. e.g. R. v. Sitarz, 2012 ONCJ 561 (CanLII)

Motor Vehicle[edit]

Under s. 2, "motor vehicle" is defined as "a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment;" Certain vehicles, such as scooters, are powered by either pedal or motor, the crown will generally have to prove that the vehicle was being operated by motor power at the time of the offence.[1]

A vehicle that is inoperable, such as were it is out of gas, will still be a motor vehicle.[2]

  1. see for example R v Rookes, 2012 SKPC 80
  2. R v Lloyd, [1988] SJ No 216 (SKCA)

Issues[edit]

Kienapple Principle[edit]

Kienapple does not prevent a conviction for dangerous driving causing death or bodily harm and impaired driving causing bodily harm or death. The first offence concerns the ability to operate a vehicle while the second offence focuses on the manner in which the vehicle was operated.[1]

  1. R v Ramage, 2010 ONCA 488 at para. 59 to 66

See also[edit]


Offences/Failure to Stop at Scene of Accident[edit]

Failure to Stop or Remain at Scene of Accident
s. 252 of the Crim. Code
Election / Plea
Crown Election Hybrid, Indictable (harm or death)
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Maximum 6 months jail or $5,000 fine (259)
Indictable Dispositions
Avail. Disp. same as summary
Maximum 5 years jail
10 years jail (harm)
life in jail(death)
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Failure to stop at scene of accident
252. (1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with

(a) another person,
(b) a vehicle, vessel or aircraft, or
(c) in the case of a vehicle, cattle in the charge of another person,

and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.
Punishment
(1.1) Every person who commits an offence under subsection (1) in a case not referred to in subsection (1.2) or (1.3) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.
Offence involving bodily harm
(1.2) Every person who commits an offence under subsection (1) knowing that bodily harm has been caused to another person involved in the accident is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Offence involving bodily harm or death
(1.3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life if

(a) the person knows that another person involved in the accident is dead; or
(b) the person knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the death of the other person results from that bodily harm, and the death of that other person so results.

Evidence
(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability. ...


CCC

Proof of Offence[edit]

Including the time and date of the incident as well as the identity of the accused, the Crown must prove:

  1. the accused must be the operator of one of the vehicles
  2. the make and model of the vehicle driven by accused
  3. there must be an accident with a person, vehicle, or cattle
  4. the condition of the objects before and after collision
  5. the accused must be aware of the accident
  6. the accused did not stop, give his name/address or offer assistance to any injured persons
  7. the accused must flee for the purpose of escaping criminal or civil liability in relation to the accident

Interpretation[edit]

Presumption
Section 252(2) creates a presumption where there is evidence of the accused failing to stop that is proof of intent to escape criminal or civil liability. This presumption can be negated by evidence of intoxication.[1]


  1. R. v. Nolet (1980), OJ No. 3027 (Ont.CA).

Sentencing[edit]

Offences/Impaired Driving and Over 80[edit]

Impaired Driving, Over 80 and Refusal
s. 254 253, 254 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Minimum $1,000 +
12 months Driving Prohib.(first)
30 days jail + 2 to 5 years Driving Prohib. (second)
120 days +
3 or more years Driving Prohib. (three or more)
Maximum 18 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum same as summary
Maximum 5 years jail
References
Offence Elements
Sentence Principles
Sentence Digests

Summary[edit]

Section 253 describes two distinct but related offences. The offence of "impaired driving" prohibits the operation or care and control of a vehicle while the person's ability to operate it is impaired by drug or alcohol. The offence of "over 80" prohibits the operation or care and control of a vehicle while the person's blood alcohol concentration (BAC) is over 80mg per 100mg of blood.

These offences are some of the most heavily litigated of all criminal offences. The proof of impaired driving has basis largely on the observational evidence of eye-witnesses, usually the investigating officer. They can become complicated when involving drugs rather than alcohol as it requires a Drug Recognition Expert. The proof of the Over 80 offence requires a procedure of taking a breath or blood sample and then extrapolating the estimated BAC at the time of the offence. There are several short cuts to proof that are available under s. 258.

Both offences have the common element of operation or care and control, which becomes most uncertain when examining whether there was care or control arising from the risk of the vehicle being put in motion. These offences also often engage Charter rights under s. 8 and 9, 10(b).

Legislation[edit]

Operation while impaired
253. (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

...

CCC

Failure or refusal to comply with demand
s. 254
...
(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

...

CCC

Proof of Offence[edit]

In addition to the essential elements of time and date, jurisdiction, and identity of the accused, the essential elements are:[1]

Note, the items in bold are essential elements.

Operating while impaired - 253(1)(a)[edit]

  1. Officer had reasonable suspicion that there was alcohol/drugs in body and so detained the accused
  2. The Accused was operating the Motor vehicle or in Care and Control of the vehicle
  3. there was any amount of impairment of the accused ability to drive at the time
  4. the impairment was by alcohol or drug at the time
  5. The accused voluntarily consumed the alcohol

Operating while BAC over 80 - 253(1)(b)[edit]

  1. The Accused was operating the Motor vehicle or in Care and Control of the vehicle
  2. Officer had reasonable suspicion that there was alcohol/drugs in body and so detained the accused
  3. The Accused's BAC was over 80 at the time
    1. each sample taken as soon as practicable after offence was committed
    2. first sample taken not later than two hours
    3. interval of at least 15 minutes between samples
    4. each sample received from suspect directly into instrument
    5. the instrument was an approved instrument
    6. the instrument was operated by a qualified technician
    7. the technician made an analysis of each sample

Refusal[edit]

In addition to the essential elements of time, jurisdiction, and identity, the crown should prove:[2]

  1. A proper demand was given and understood;
  2. there was a refusal or failure to provide a proper sample; (actus reus)
  3. the accused intended not to provide a proper sample; (mens rea) and
  4. there was no reasonable excuse for refusing.


  1. R. v. Andrews 1996 ABCA 23 at 31 [1] discusses impairment
  2. R v Lewko, 2002 SKCA 121 at 9

Interpretation[edit]

Mens Rea[edit]

The charge of impaired driving is a general intent offence. [1]

The mens rea of the offence of impaired driving is made out by the accused's voluntary consumption of alcohol for the purpose of becoming intoxication or the accused "acting recklessly, aware that impairment could result, but persisting despite the risk". [2]

It is not necessary that the accused have actual knowledge of the effects of drugs or alcohol. Proof of recklessness is sufficient.[3]

Where the voluntary consumption of alcohol is proven, there is a rebuttable presumption the mens rea is made out. [4]

The intent to be impaired can be negated in certain circumstances where the accused's drink may have been drugged.[5]

  1. R. v. Charles, 2013 BCSC 23 (CanLII) at para. 40
  2. R. v. Mavin 1997 CanLII 14625 (NL CA), (1997), 154 Nfld. & P.E.I.R. 242 at paras. 37-39
    R. v. Charles, 2013 BCSC 23 (CanLII) at para. 41
  3. R. v. Pomeroy, 2007 BCSC 142 (CanLII)
    R. v. Honish, 1993 CanLII 156 (SCC), [1993] 1 S.C.R. 458
  4. R. v. King, 1962 CanLII 16 (SCC), [1962] S.C.R. 746 at p.763
  5. e.g. R. v. Sitarz, 2012 ONCJ 561 (CanLII)

Motor Vehicle[edit]

Under s. 2, "motor vehicle" is defined as "a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment;" Certain vehicles, such as scooters, are powered by either pedal or motor, the crown will generally have to prove that the vehicle was being operated by motor power at the time of the offence.[1]

A vehicle that is inoperable, such as were it is out of gas, will still be a motor vehicle.[2]

  1. see for example R v Rookes, 2012 SKPC 80
  2. R v Lloyd, [1988] SJ No 216 (SKCA)

Issues[edit]

Kienapple Principle[edit]

Kienapple does not prevent a conviction for dangerous driving causing death or bodily harm and impaired driving causing bodily harm or death. The first offence concerns the ability to operate a vehicle while the second offence focuses on the manner in which the vehicle was operated.[1]

  1. R v Ramage, 2010 ONCA 488 at para. 59 to 66

See also[edit]


Offences/Refusal[edit]

Impaired Driving, Over 80 and Refusal
s. 254 253, 254 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Minimum $1,000 +
12 months Driving Prohib.(first)
30 days jail + 2 to 5 years Driving Prohib. (second)
120 days +
3 or more years Driving Prohib. (three or more)
Maximum 18 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum same as summary
Maximum 5 years jail
References
Offence Elements
Sentence Principles
Sentence Digests

Summary[edit]

Section 253 describes two distinct but related offences. The offence of "impaired driving" prohibits the operation or care and control of a vehicle while the person's ability to operate it is impaired by drug or alcohol. The offence of "over 80" prohibits the operation or care and control of a vehicle while the person's blood alcohol concentration (BAC) is over 80mg per 100mg of blood.

These offences are some of the most heavily litigated of all criminal offences. The proof of impaired driving has basis largely on the observational evidence of eye-witnesses, usually the investigating officer. They can become complicated when involving drugs rather than alcohol as it requires a Drug Recognition Expert. The proof of the Over 80 offence requires a procedure of taking a breath or blood sample and then extrapolating the estimated BAC at the time of the offence. There are several short cuts to proof that are available under s. 258.

Both offences have the common element of operation or care and control, which becomes most uncertain when examining whether there was care or control arising from the risk of the vehicle being put in motion. These offences also often engage Charter rights under s. 8 and 9, 10(b).

Legislation[edit]

Operation while impaired
253. (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

...

CCC

Failure or refusal to comply with demand
s. 254
...
(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

...

CCC

Proof of Offence[edit]

In addition to the essential elements of time and date, jurisdiction, and identity of the accused, the essential elements are:[1]

Note, the items in bold are essential elements.

Operating while impaired - 253(1)(a)[edit]

  1. Officer had reasonable suspicion that there was alcohol/drugs in body and so detained the accused
  2. The Accused was operating the Motor vehicle or in Care and Control of the vehicle
  3. there was any amount of impairment of the accused ability to drive at the time
  4. the impairment was by alcohol or drug at the time
  5. The accused voluntarily consumed the alcohol

Operating while BAC over 80 - 253(1)(b)[edit]

  1. The Accused was operating the Motor vehicle or in Care and Control of the vehicle
  2. Officer had reasonable suspicion that there was alcohol/drugs in body and so detained the accused
  3. The Accused's BAC was over 80 at the time
    1. each sample taken as soon as practicable after offence was committed
    2. first sample taken not later than two hours
    3. interval of at least 15 minutes between samples
    4. each sample received from suspect directly into instrument
    5. the instrument was an approved instrument
    6. the instrument was operated by a qualified technician
    7. the technician made an analysis of each sample

Refusal[edit]

In addition to the essential elements of time, jurisdiction, and identity, the crown should prove:[2]

  1. A proper demand was given and understood;
  2. there was a refusal or failure to provide a proper sample; (actus reus)
  3. the accused intended not to provide a proper sample; (mens rea) and
  4. there was no reasonable excuse for refusing.


  1. R. v. Andrews 1996 ABCA 23 at 31 [22] discusses impairment
  2. R v Lewko, 2002 SKCA 121 at 9

Interpretation[edit]

Mens Rea[edit]

The charge of impaired driving is a general intent offence. [1]

The mens rea of the offence of impaired driving is made out by the accused's voluntary consumption of alcohol for the purpose of becoming intoxication or the accused "acting recklessly, aware that impairment could result, but persisting despite the risk". [2]

It is not necessary that the accused have actual knowledge of the effects of drugs or alcohol. Proof of recklessness is sufficient.[3]

Where the voluntary consumption of alcohol is proven, there is a rebuttable presumption the mens rea is made out. [4]

The intent to be impaired can be negated in certain circumstances where the accused's drink may have been drugged.[5]

  1. R. v. Charles, 2013 BCSC 23 (CanLII) at para. 40
  2. R. v. Mavin 1997 CanLII 14625 (NL CA), (1997), 154 Nfld. & P.E.I.R. 242 at paras. 37-39
    R. v. Charles, 2013 BCSC 23 (CanLII) at para. 41
  3. R. v. Pomeroy, 2007 BCSC 142 (CanLII)
    R. v. Honish, 1993 CanLII 156 (SCC), [1993] 1 S.C.R. 458
  4. R. v. King, 1962 CanLII 16 (SCC), [1962] S.C.R. 746 at p.763
  5. e.g. R. v. Sitarz, 2012 ONCJ 561 (CanLII)

Motor Vehicle[edit]

Under s. 2, "motor vehicle" is defined as "a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment;" Certain vehicles, such as scooters, are powered by either pedal or motor, the crown will generally have to prove that the vehicle was being operated by motor power at the time of the offence.[1]

A vehicle that is inoperable, such as were it is out of gas, will still be a motor vehicle.[2]

  1. see for example R v Rookes, 2012 SKPC 80
  2. R v Lloyd, [1988] SJ No 216 (SKCA)

Issues[edit]

Kienapple Principle[edit]

Kienapple does not prevent a conviction for dangerous driving causing death or bodily harm and impaired driving causing bodily harm or death. The first offence concerns the ability to operate a vehicle while the second offence focuses on the manner in which the vehicle was operated.[1]

  1. R v Ramage, 2010 ONCA 488 at para. 59 to 66

See also[edit]


Offences/Failure to Stop at Scene of Accident[edit]

Failure to Stop or Remain at Scene of Accident
s. 252 of the Crim. Code
Election / Plea
Crown Election Hybrid, Indictable (harm or death)
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Maximum 6 months jail or $5,000 fine (259)
Indictable Dispositions
Avail. Disp. same as summary
Maximum 5 years jail
10 years jail (harm)
life in jail(death)
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Failure to stop at scene of accident
252. (1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with

(a) another person,
(b) a vehicle, vessel or aircraft, or
(c) in the case of a vehicle, cattle in the charge of another person,

and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.
Punishment
(1.1) Every person who commits an offence under subsection (1) in a case not referred to in subsection (1.2) or (1.3) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.
Offence involving bodily harm
(1.2) Every person who commits an offence under subsection (1) knowing that bodily harm has been caused to another person involved in the accident is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Offence involving bodily harm or death
(1.3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life if

(a) the person knows that another person involved in the accident is dead; or
(b) the person knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the death of the other person results from that bodily harm, and the death of that other person so results.

Evidence
(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability. ...


CCC

Proof of Offence[edit]

Including the time and date of the incident as well as the identity of the accused, the Crown must prove:

  1. the accused must be the operator of one of the vehicles
  2. the make and model of the vehicle driven by accused
  3. there must be an accident with a person, vehicle, or cattle
  4. the condition of the objects before and after collision
  5. the accused must be aware of the accident
  6. the accused did not stop, give his name/address or offer assistance to any injured persons
  7. the accused must flee for the purpose of escaping criminal or civil liability in relation to the accident

Interpretation[edit]

Presumption
Section 252(2) creates a presumption where there is evidence of the accused failing to stop that is proof of intent to escape criminal or civil liability. This presumption can be negated by evidence of intoxication.[1]


  1. R. v. Nolet (1980), OJ No. 3027 (Ont.CA).


Cases/Impaired Driving and Over 80[edit]

Impaired Driving[edit]

Case Citation s.8 s.9 s.10(b) s.24 Summary
R. v. Lee 2011 BCPC 88 Y - - Y s.8 violation on ASD, removed from evidence
Paterson 2010 BCCA 442 Y - - ? s.8 no grounds of arrest
R. v. White 2009 BCPC 312 ? ? Y N
R. v. Hannigan 2011 ABPC 305 Y - Y N

grounds to administer Screening Device

Drug Recognition Experts

Breathalyzer certificate

  • R. v. Holland 2010 BCPC

As soon as practicable

  • R. v. Mailey, 2012 ABQB 138 -- good overview of history of "soon as practicable" - 25 min of a 37 min delay was due to driver sitting on a Check Stop bus
  • R. v. Hughes, 2011 BCPC 263 judicial stay
  • R. v. Malenfant, 2011 ONCJ 510 no violation
  • R. v. McGonigal, 2011 ABPC 183: 45 minute wait for tow truck
  • R. v. Kleinsasser, 2011 ABPC
  • R. v. Thompson, 2011 BCPC 202
  • R. v. Megahy, 2008 ABCA 207 -- 34 minute delay resulted in Charter violation
  • R. v. Lemarchant [2009] O.J. No. 4297 (S.C.J.)
  • R. v. Forsythe [M.J.] No. 428 (MBQB)
  • R v Guenter 2011 OJ 2233 - collision with injuries, officer was distracted and forgot to make the demand until 60 minutes after arrest when it was done by the qualified technician
  • R. v. Chung [2009] O.J. No. 1546 (S.C.J.)
  • R. v. Price [2010] O.J. No. 1587 (S.C.J.).
  • R v Singleton [2006] OJ 4332 - 29 minute delay - not ASAP - driver failed ASD, transported to station, demand read at station 29 minutes later. Officer fails to explain the full delay.
  • R v Squires 2002 CanLII 44982 (ON CA), [2002] OJ No 2314 -- 59 minutes after arrest -- vehicle collision, driver taken to hospital by ambulance, police delayed until patient available to speak
  • R v Janssen (1997) OJ 758 - 93 minute delay after encountering driver - vehicle collision, ambulance takes driver to hospital, accused claims to have had a stroke.

Intoxilyzer

  • R. v. Zeller 2010 SKPC -- results as "milligrams percent" is not sufficient


Cases/Motor Vehicle Offences[edit]

Canadian Criminal Law/Cases/Motor Vehicle Offences