Motor Vehicle Offences for Drugs and Alcohol (13:IX): Difference between revisions
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Motor Vehicle Offences for Drugs and Alcohol (13:IX) (view source)
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Similar amendments alter much of the ''MVA'' regulations for driving with alcohol in your system so that driving with a prescribed drug in your system can result in the same penalties. There is no blood drug concentration specified yet. It will be possible for a combination of drugs and alcohol to trigger penalties even if the blood concentration of each substance is less than the legal limit (section 94.1). | Similar amendments alter much of the ''MVA'' regulations for driving with alcohol in your system so that driving with a prescribed drug in your system can result in the same penalties. There is no blood drug concentration specified yet. It will be possible for a combination of drugs and alcohol to trigger penalties even if the blood concentration of each substance is less than the legal limit (section 94.1). | ||
==D. Federal Alcohol | ==D. Federal Alcohol Offences== | ||
The ''Criminal Code'' provides a number of federal criminal offences related to impaired driving. These are serious criminal offences, with significant possible penalties. Individuals facing ''Criminal Code'' charges are strongly encouraged to consult with a lawyer. | The ''Criminal Code'' provides a number of federal criminal offences related to impaired driving. These are serious criminal offences, with significant possible penalties. Individuals facing ''Criminal Code'' charges are strongly encouraged to consult with a lawyer. | ||
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===1. Impaired Driving/ Driving Over 80=== | ===1. Impaired Driving/ Driving Over 80=== | ||
Section 320.14(1)(a) of the ''Criminal Code'' makes it an offence either to operate | Section 320.14(1)(a) of the ''Criminal Code'' makes it an offence either to operate a motor vehicle while alcohol or drugs impair one’s ability to drive. Section 320.14(1)(b) makes it an offence to operate a motor vehicle with a blood-alcohol concentration equal to or exceeding 80 milligrams of alcohol per 100 millilitres of blood within 2 hours of driving.With a charge under s 320.14, the Crown must prove operation if operation is charged or prove care or control if care or control is charged. These are two separate and distinct offences and neither is included in the other: ''R v Henry'', (1971), 5 CCC (2d) 201 (BC Co Ct); ''[http://canlii.ca/t/gcqt9 R v James]'' (1974), 17 CCC (2d) 221 (BCSC); and ''[http://canlii.ca/t/g7hf3 R v Faer]'' (1975), 26 CCC (2d) 327 (Sask CA). Since it is difficult to conceive of a situation when driving is not also care or control, the Crown will almost always charge care or control. | ||
The court in ''[http://canlii.ca/t/1twxz R v Kienapple]'' [1974], 15 CCC (2d) 524 (SCC) held that an accused cannot have multiple convictions for the same act. The ''Criminal Code'' s 320.15(4) also states that a person who is convicted of an offence under this section cannot be convicted of another offence in this section for a single incident. '''Therefore, an accused cannot be convicted of both impaired driving and having a blood alcohol concentration exceeding 80 milligrams.''' | The court in ''[http://canlii.ca/t/1twxz R v Kienapple]'' [1974], 15 CCC (2d) 524 (SCC) held that an accused cannot have multiple convictions for the same act. The ''Criminal Code'' s 320.15(4) also states that a person who is convicted of an offence under this section cannot be convicted of another offence in this section for a single incident. '''Therefore, an accused cannot be convicted of both impaired driving and having a blood alcohol concentration exceeding 80 milligrams.''' | ||
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The Crown can establish acts of care or control by proving any use of the vehicle or its fittings and equipment or some course of conduct associated with the vehicle which creates the danger or risk of putting the vehicle in motion: [http://canlii.ca/t/1ftzx R v Toews], [1985], 2 S.C.R. 119. | The Crown can establish acts of care or control by proving any use of the vehicle or its fittings and equipment or some course of conduct associated with the vehicle which creates the danger or risk of putting the vehicle in motion: [http://canlii.ca/t/1ftzx R v Toews], [1985], 2 S.C.R. 119. | ||
A peace officer may demand a breath or blood sample pursuant to ''Criminal Code'' s 320.27 (1) if the peace officer has reasonable | A peace officer may demand a breath or blood sample pursuant to ''Criminal Code'' s 320.27 (1) if the peace officer has reasonable grounds to suspect the individual has alcohol or a drug in their body and they have operated a conveyance in the preceding 3 hours. Refusal to comply with a demand for a sample is a criminal offence (s 320.15(1)). Since Bill C-46 was passed in 2018, an officer no longer needs reasonable grounds to suspect an individual has drugs or alcohol in their body as long as the individual is operating a vehicle and the officer has an approved screening device in their possession (''Criminal Code'' s 320.17 (2)). | ||
For a charge under s 320.14, the Crown may prove a blood alcohol reading in excess of .08 by producing a valid certificate of analysis or providing ''vive voce'' testimony at trial from a registered analyst or breathalyser technician about the blood alcohol concentration at the time the accused provided a breath sample. | For a charge under s 320.14, the Crown may prove a blood alcohol reading in excess of .08 by producing a valid certificate of analysis or providing ''vive voce'' testimony at trial from a registered analyst or breathalyser technician about the blood alcohol concentration at the time the accused provided a breath sample. | ||
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=== 2. Refusing to Provide a Sample === | === 2. Refusing to Provide a Sample === | ||
There are two ways that an officer can demand a sample: the first is a roadside mandatory demand, which requires that the officer have an approved screening device in their possession and does not require them to suspect the driver of having alcohol or drugs in their system (s 320.27(2)). The purpose of this test is for screening. An individual does not have the right to counsel before providing a roadside breath sample. The second type of demand under s 320.27(1) is both subjective and objective. The peace officer has | There are two ways that an officer can demand a sample: the first is a roadside mandatory demand, which requires that the officer have an approved screening device in their possession and does not require them to suspect the driver of having alcohol or drugs in their system (s 320.27(2)). The purpose of this test is for screening. An individual does not have the right to counsel before providing a roadside breath sample. The second type of demand under s 320.27(1) is both subjective and objective. The peace officer has reasonable grounds to suspect the driver has alcohol or a drug in their body and they operated a conveyance within the preceding 3 hours (based on ''Criminal Code'' s 320.27(1) and ''Charter'' s 8 (protection against unreasonable search and seizure) as interpreted in [http://canlii.ca/t/1frmf ''R. v. Bernshaw''], [1995] 1 S.C.R. 254. | ||
:'''NOTE:''' '''Providing a breath sample is not a voluntary procedure''': the peace officer demands the sample. The driver may refuse only if they have a “reasonable excuse”. | :'''NOTE:''' '''Providing a breath sample is not a voluntary procedure''': the peace officer demands the sample. The driver may refuse only if they have a “reasonable excuse”. | ||
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The length of time constituting a sufficient and reasonable opportunity for an accused to exercise the right to retain and instruct counsel will depend on the circumstances of each case. An otherwise short period of time may not be unreasonable due to the behaviour and attitude of the individual under investigation by the police. Police officers are always mindful of the fact that they must take a breath sample within two hours of the time the offence was allegedly committed (''R v Dupray'', (1987), 46 MVR (2d) 39 (BC Co Ct)). | The length of time constituting a sufficient and reasonable opportunity for an accused to exercise the right to retain and instruct counsel will depend on the circumstances of each case. An otherwise short period of time may not be unreasonable due to the behaviour and attitude of the individual under investigation by the police. Police officers are always mindful of the fact that they must take a breath sample within two hours of the time the offence was allegedly committed (''R v Dupray'', (1987), 46 MVR (2d) 39 (BC Co Ct)). | ||
Breach of ''Charter'' s 10(a) (failure to be informed of reason of arrest) may also result in exclusion of evidence under s 24(2) of the Charter. | Breach of ''Charter'' s 10(a) (failure to be informed of reason of arrest) may also result in exclusion of evidence under s 24(2) of the Charter. | ||
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*A driver who has over 5 ng of THC per mL of blood is considered impaired and risks facing a criminal conviction, a $1000 fine and a one-year driving prohibition; and | *A driver who has over 5 ng of THC per mL of blood is considered impaired and risks facing a criminal conviction, a $1000 fine and a one-year driving prohibition; and | ||
*A driver who has a combination of THC above 2.5 ng per mL of blood and a blood alcohol concentration of over 50 mg | *A driver who has a combination of THC above 2.5 ng per mL of blood and a blood alcohol concentration of over 50 mg of alcohol per 100 mL is also considered impaired and risks facing a criminal conviction, a $1000 fine and a one-year driving prohibition. | ||
=== 4. Penalties === | === 4. Penalties === | ||
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If you are convicted of a federal criminal impaired driving or refusal offence under ss 320.14(1) or 320.15(1) of the Criminal Code, you may be prohibited from driving as follows (s 320.24(1)): | If you are convicted of a federal criminal impaired driving or refusal offence under ss 320.14(1) or 320.15(1) of the Criminal Code, you may be prohibited from driving as follows (s 320.24(1)): | ||
* upon | * upon 1st Conviction — not less than 1 year and not more than 3 years, plus the entirety of the period of time that the offender is imprisoned | ||
* upon | * upon 2nd Conviction — not less than 2 years and not more than 10 years, plus the entirety of the period of time that the offender is imprisoned | ||
* upon | * upon 3rd Conviction and any subsequent convictions after that — not less than 3 years, plus the entirety of the period of time that the offender is imprisoned (there is no maximum period) | ||
Note that these prohibitions are in addition to any other penalty that applies. | Note that these prohibitions are in addition to any other penalty that applies. | ||
