Canadian Criminal Law/Offences/Impaired Driving, Over 80 and Refusal

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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]