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Dangerous Driving, Criminal Negligence, Impaired Driving and Driving While Over 80 mgs. Lawyer in Toronto

Mississauga, Brampton and Newmarket Dangerous Driving, Criminal Negligence, Impaired Driving and Driving While Over 80 Mgs. Lawyer

Commonly Asked Questions

1. What is impaired driving/driving while over 80 mgs.?

2. What is the sentence for impaired driving/driving while over 80 mgs.?

3. What is dangerous driving;

4. What is the sentence for dangerous driving;

5. What is criminal negligence causing bodily harm or death?

6. What is the sentence for criminal negligence causing bodily harm or death?

7. Are sentences higher if there has been a prior conviction?

8. How does a driving prohibition and driving licence suspension work?

9. What are my Charter rights?

10. Can the Charter help my defence?

11. Can I get assistance from Legal Aid Ontario for my case?

A conviction for any type of criminal driving offence can carry severe penalties, including the loss of your driver's license, fines and jail time. Many people stopped by the police may not know their rights, particularly their right against arbitrary detention guaranteed by Section 9 of the Canadian Charter of Rights and Freedoms and their right against unreasonable search or seizure guaranteed by Section 8 of the Canadian Charter of Rights and Freedoms.

It is important that you have an experienced Toronto driving offence lawyer on your side who will work hard to see that your rights are protected. For more than 35 years, I have represented clients throughout the greater Toronto area in a variety of criminal driving offence cases. I have extensive knowledge and experience in these matters, and I am committed to doing everything legally possible to win your acquittal. My goal is always to win an acquittal for you, and I won't recommend a plea bargain unless I believe that it is the best option in your case.

I provide strong defences against a broad variety of driving charges, including:

  • Dangerous driving
  • Dangerous driving causing bodily harm
  • Dangerous driving causing death
  • Criminal negligence causing bodily harm while operating a motor vehicle
  • Criminal negligence causing death while operating a motor vehicle
  • Impaired driving
  • Driving while Over 80 mgs.
  • Fail or refuse to provide a breath sample
  • Refuse to comply with a demand to submit to an impairment evaluation

Call Defence Lawyer Anthony De Marco for a Free Consultation

Contact my Toronto, Ontario, office today to discuss your charge of dangerous driving or criminal negligence or impaired driving while over 80 mgs. I offer a free 30-minute consultation. For your convenience, I accept Visa and offer payment plans. You can reach me by phone at (416)651-2299 or toll free at 1-888-399-3164 or by email.

Recent amendments to the Criminal Code of Canada

The Criminal Code of Canada was recently amended so as to group various driving offences into a more streamlined framework. For purposes of these amendments, the word "conveyance" means a motor vehicle, a vessel, an aircraft or railway equipment. The word "operate" means, in respect of a motor vehicle, to drive it or to have care or control of it.

What is Dangerous Driving?

The criminal offence of dangerous driving is the offence of driving a motor vehicle in a manner dangerous to the public having regard to all of the circumstances.

Section 320.13 of the Criminal Code of Canada provides as follows:

320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.

(2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.

(3) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes the death of another person.

What is criminal negligence?

The offence of criminal negligence causing death or bodily harm may be committed while driving a motor vehicle or operating a vessel, an aircraft, or railway equipment. Usually, where someone is charged with criminal negligence causing death or bodily harm while driving a motor vehicle, the motor vehicle had a mechanical problem that the driver knew about.

Sections 219 and 220 of the Criminal Code of Canada provide as follows:

Sections 219 (1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

Causing death by criminal negligence

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

Causing bodily harm by criminal negligence

221 Every person who by criminal negligence causes bodily harm to another person is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) an offence punishable on summary conviction.

Criminal negligence causing death is also a form of culpable homicide, in other words, murder and manslaughter.

For purposes of subsection 219(1)(b), a "duty" may be set out in the Criminal Code of Canada, or other statute, or the duty may arise at common law. Breach of such a duty imposed by law can become the basis of a criminal negligence charge.

In the context of driving a motor vehicle, the offence of criminal negligence has been described by the Court of Appeal for Ontario in R. v. Sharp, [2006] O.J. No. 131 (Ont. C.A.) as requiring "proof of driving amounting to a marked and substantial departure from the standard of a reasonable driver in circumstances where the accused either recognized and ran an obvious and serious risk to the lives and safety of others or alternatively gave no thought to the risk."

Criminal negligence offences must be distinguished from dangerous driving. They involve different degrees of moral blameworthiness, with criminal negligence requiring a reckless disregard and dangerous driving requiring only a "marked departure" from the standard of reasonable driving conduct. Alternatively, the distinction can be described as one between a "marked and substantial departure" as opposed to a "marked departure". The Court of Appeal for Ontario stated the following in R. v. L.(J.), [2006] O.J. No. 131 (Ont. C.A.) with respect to the difference between criminal negligence and dangerous driving in the context of driving a motor vehicle:

The offence of criminal negligence causing death is at the high end of a continuum of moral blameworthiness. A lesser offence along the same continuum is the dangerous operation of a motor vehicle in s. 249 [now section 320.13] of the Criminal Code which requires that the vehicle be driven, "in a manner that is dangerous to the public, having regard to all the circumstances. . . .". At the lower end of the continuum is careless driving under the Highway Traffic Act, R.S.O. 1990, c. H.8, s. 130. . . Whether specific conduct should be categorized as criminal negligence is one of the most difficult and uncertain areas in the criminal law.

The lesser offence of dangerous driving requires that the accused's conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation. If an explanation is offered by the accused for his driving, "the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.". . . The standard is the modified objective standard.

Criminal negligence requires a more elevated standard. The departure from the norm must be more marked in both the physical and the mental elements of the offence. . . The requirement for a greater marked departure in both the physical and mental elements is consistent with the higher level of moral blameworthiness associated with criminal negligence, namely, wanton or reckless disregard for the life or safety or others.

What is Impaired Driving/Driving While Over 80 mgs?

Impaired driving is the criminal offence of driving or having the care or control of a motor vehicle while the driver's ability to operate the motor vehicle is impaired to any degree because of the ingestion of alcohol or a drug.

The criminal offence of driving while over 80 mgs. is committed when a person drives or has care or control of a motor vehicle while having a blood alcohol concentration that exceeds 80 milligrams of alcohol per 100 millilitres of blood.

When building a defence for a drinking and driving charge, there are a number of issues that can be challenged. The prosecution must prove beyond a reasonable doubt that your ability to drive was impaired by alcohol or a drug, or that your blood alcohol concentration was over the legal limit, either while you were driving or while you had care or control of a motor vehicle. The evidence collected by the police must be reliable and obtained in a way that did not violate your Charter rights.

If the police officer did not have legal cause for the initial stop, I will seek to have any evidence obtained by the police excluded from your trial. If the police officer did not have reasonable and probable grounds (probable cause) to arrest you, I will again apply to have evidence excluded from your trial. The devices used to analyze the samples of your breath must also have been working properly and must have been used properly.

Section 320.14 (1) of the Criminal Code of Canada provides as follows:

320.14 (1) Everyone commits an offence who

(a) operates a conveyance while the person's ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;

(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;

(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or

(d) subject to subsection (7), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.

(2) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes bodily harm to another person.

(3) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes the death of another person.

(4) Subject to subsection (6), everyone commits an offence who has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph (1)(c).

(5) No person commits an offence under paragraph (1)(b) if

(a) they consumed alcohol after ceasing to operate the conveyance;

(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and

(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.

(6) No person commits an offence under paragraph (1)(c) or subsection (4) if

(a) they consumed the drug after ceasing to operate the conveyance; and

(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance.

(7) No person commits an offence under paragraph (1)(d) if

(a) they consumed the drug or the alcohol or both after ceasing to operate the conveyance;

(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance; and

(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration less than the blood alcohol concentration established under paragraph 320.38(c).

What is refusing or failing to comply with a police demand?

As set out in subsection 320.15, a person who refuses or fails to comply with a demand to provide a breath sample or who refuses to comply with a demand to submit to an impairment evaluation will be charged with a criminal offence. If found guilty, the person will suffer the same penalty as if found guilty of a drinking and driving offence.

If you are charged with a refusal offence, you need the help of an experienced lawyer who knows how to protect your Charter rights. I have this type of knowledge and experience. When you retain my legal services, I will investigate your case and put forward a strong defence and work hard to obtain your acquittal.

Failure or refusal to comply with demand

Section 320.15

(1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.

Accident resulting in bodily harm

(2) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in bodily harm to another person.

Accident resulting in death

(3) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in the death of another person or in bodily harm to another person whose death ensues.

(4) A person who is convicted of an offence under this section is not to be convicted of another offence under this section with respect to the same transaction.

What is failing to stop after an accident?

Section 320.16

(1) Everyone commits an offence who operates a conveyance and who at the time of operating the conveyance knows that, or is reckless as to whether, the conveyance has been involved in an accident with a person or another conveyance and who fails, without reasonable excuse, to stop the conveyance, give their name and address and, if any person has been injured or appears to require assistance, offer assistance.

Accident resulting in bodily harm

(2) Everyone commits an offence who commits an offence under subsection (1) and who at the time of committing the offence knows that, or is reckless as to whether, the accident resulted in bodily harm to another person.

Accident resulting in death

(3) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of committing the offence, knows that, or is reckless as to whether, the accident resulted in the death of another person or in bodily harm to another person whose death ensues.

What is flight from police?

Section 320.17

Everyone commits an offence who operates a motor vehicle or vessel while being pursued by a peace officer and who fails, without reasonable excuse, to stop the motor vehicle or vessel as soon as is reasonable in the circumstances.

What is Driving While Prohibited?

Section 320.18

(1) Everyone commits an offence who operates a conveyance while prohibited from doing so

(a) by an order made under this Act; or

(b) by any other form of legal restriction imposed under any other Act of Parliament or under provincial law in respect of a conviction under this Act or a discharge under section 730.

Exception

(2) No person commits an offence under subsection (1) arising out of the operation of a motor vehicle if they are registered in an alcohol ignition interlock device program established under the law of the province in which they reside and they comply with the conditions of the program.

What is the applicable sentence?

Impaired driving, drive while over 80 mgs., fail to comply with police demand

Section 320.19

(1) Every person who commits an offence under subsection 320.14(1) [impaired driving/driving while over 80 mgs.] or 320.15(1) [fail or refuse to comply with a police demand] is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of,

(i) for a first offence, a fine of $1,000,

(ii) for a second offence, imprisonment for a term of 30 days, and

(iii) for each subsequent offence, imprisonment for a term of 120 days; or

(b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to a minimum punishment of,

(i) for a first offence, a fine of $1,000,

(ii) for a second offence, imprisonment for a term of 30 days, and

(iii) for each subsequent offence, imprisonment for a term of 120 days.

(2) Everyone who commits an offence under subsection 320.14(4) is liable on summary conviction to a fine of not more than $1,000.

(3) Despite subparagraphs (1)(a)(i) and (b)(i), every person who commits an offence under paragraph 320.14(1)(b) is liable, for a first offence, to

(a) a fine of not less than $1,500, if the person's blood alcohol concentration is equal to or exceeds 120 mg of alcohol in 100 mL of blood but is less than 160 mg of alcohol in 100 mL of blood; and

(b) a fine of not less than $2,000, if the person's blood alcohol concentration is equal to or exceeds 160 mg of alcohol in 100 mL of blood.

(4) Despite subparagraphs (1)(a)(i) and (b)(i), every person who commits an offence under subsection 320.15(1) is liable, for a first offence, to a fine of not less than $2,000.

  • Information on minimum penalties for a drinking and driving conviction is available here.
  • Information on the Conduct Review Program (Interlock Program) is available here.
  • A summary of the requirements of the Conduct Review Program (Interlock Program) is available here.

Dangerous driving and other offences

(5) Every person who commits an offence under subsection 320.13(1) [dangerous driving] or 320.16(1) [fail to stop at the scene of an accident], section 320.17 [fail to stop for police in pursuit] or subsection 320.18(1) [driving while prohibited] is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) an offence punishable on summary conviction.

Sentencing in case of bodily harm

Section 320.2

Every person who commits an offence under subsection 320.13(2) [dangerous driving causing bodily harm], 320.14(2) [impaired driving/driving while over 80 mgs.], 320.15(2) [fail or refuse to comply with police demand where accident resulting in bodily harm] or 320.16(2) [fail to stop at scene of accident] is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of,

(i) for a first offence, a fine of $1,000,

(ii) for a second offence, imprisonment for a term of 30 days, and

(iii) for each subsequent offence, imprisonment for a term of 120 days; or

(b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to the minimum punishments set out in subparagraphs (a)(i) to (iii).

Sentence in case of death

Section 320.21

Everyone who commits an offence under subsection 320.13(3) [dangerous driving causing death], 320.14(3) [impaired driving/driving while over 80 mgs.], 320.15(3) [fail or refuse to comply with police demand where accident resulting in death] or 320.16(3) [fail to stop at scene of accident resulting in death] is liable on conviction on indictment to imprisonment for life and to a minimum punishment of,

(a) for a first offence, a fine of $1,000;

(b) for a second offence, imprisonment for a term of 30 days; and

(c) for each subsequent offence, imprisonment for a term of 120 days.

What are Aggravating circumstances for sentencing purposes?

Section 320.22

A court imposing a sentence for an offence under any of sections 320.13 to 320.18 shall consider, in addition to any other aggravating circumstances, the following:

(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;

(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;

(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;

(d) the offender was being remunerated for operating the conveyance;

(e) the offender's blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 ml of blood;

(f) the offender was operating a large motor vehicle; and

(g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.

Delay of sentencing

Section 320.23

(1) The court may, with the consent of the prosecutor and the offender, and after considering the interests of justice, delay sentencing of an offender who has been found guilty of an offence under subsection 320.14(1) or 320.15(1) to allow the offender to attend a treatment program approved by the province in which the offender resides. If the court delays sentencing, it shall make an order prohibiting the offender from operating, before sentencing, the type of conveyance in question, in which case subsections 320.24(6) to (9) apply.

Exception to minimum punishment

(2) If the offender successfully completes the treatment program, the court is not required to impose the minimum punishment under section 320.19 or to make a prohibition order under section 320.24, but it shall not direct a discharge under section 730.

What is a mandatory Driving Prohibition Order?

Section 320.24

(1) If an offender is found guilty of an offence under subsection 320.14(1) [impaired driving/driving while over 80 mgs.] or 320.15(1) [fail or refuse to comply with police demand], the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period to be determined in accordance with subsection (2).

Prohibition period

(2) The prohibition period is

(a) for a first offence, not less than one year and not more than three years, plus the entire period to which the offender is sentenced to imprisonment;

(b) for a second offence, not less than two years and not more than 10 years, plus the entire period to which the offender is sentenced to imprisonment; and

(c) for each subsequent offence, not less than three years, plus the entire period to which the offender is sentenced to imprisonment.

Discretionary order of prohibition - low blood drug concentration

(3) If an offender is found guilty of an offence under subsection 320.14(4), the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period of not more than one year.

Discretionary order of prohibition - other offences

(4) If an offender is found guilty of an offence under section 320.13 [dangerous driving], subsection 320.14(2) or (3), 320.15(2) or (3) or under any of sections 320.16 to 320.18, the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period to be determined in accordance with subsection (5).

Prohibition period

(5) The prohibition period is

(a) if the offender is liable to imprisonment for life in respect of that offence, of any duration that the court considers appropriate, plus the entire period to which the offender is sentenced to imprisonment;

(b) if the offender is liable to imprisonment for more than five years but less than life in respect of that offence, not more than 10 years, plus the entire period to which the offender is sentenced to imprisonment; and

(c) in any other case, not more than three years, plus the entire period to which the offender is sentenced to imprisonment.

(5.1) Subject to subsection (9), a prohibition order takes effect on the day that it is made.

(6) A court that makes a prohibition order under this section shall cause the order to be read by or to the offender or a copy of the order to be given to the offender.

(7) A failure to comply with subsection (6) does not affect the validity of the prohibition order.

(8) A prohibition order in respect of a motor vehicle applies only to its operation on a street, road or highway or in any other public place.

(9) If the offender is, at the time of the commission of the offence, subject to an order made under this Act prohibiting the offender from operating a conveyance, a court that makes a prohibition order under this section that prohibits the offender from operating the same type of conveyance may order that the prohibition order be served consecutively to that order.

Minimum absolute prohibition period

(10) A person may not be registered in an alcohol ignition interlock device program referred to in subsection 320.18(2) until the expiry of

(a) in the case of a first offence, a period, if any, that may be fixed by order of the court;

(b) in the case of a second offence, a period of three months after the day on which the sentence is imposed or any longer period that may be fixed by order of the court; and

(c) in the case of a subsequent offence, a period of six months after the day on which the sentence is imposed or any longer period that may be fixed by order of the court.

Stay of prohibition order pending appeal

Section 320.25

(1) Subject to subsection (2), if an appeal is taken against a conviction or sentence for an offence under any of sections 320.13 to 320.18, a judge of the court to which the appeal is taken may direct that the prohibition order under section 320.24 arising out of the conviction shall, on any conditions that the judge imposes, be stayed pending the final disposition of the appeal or until otherwise ordered by that court.

Appeals to Supreme Court of Canada

(2) In the case of an appeal to the Supreme Court of Canada, a direction may be made only by a judge of the court from which the appeal was taken.

(3) The imposition of conditions on a stay of a prohibition order does not operate to decrease the prohibition period provided in the prohibition order.

Earlier and subsequent offences

Section 320.26

In determining, for the purpose of imposing a sentence for an offence under subsection 320.14(1) or 320.15(1), whether the offence is a second, third or subsequent offence, any of the following offences for which the offender was previously convicted is considered to be an earlier offence:

(a) an offence under any of subsections 320.14(1) to (3) or section 320.15; or

(b) an offence under any of sections 253, 254 and 255, as those sections read from time to time before the day on which this section comes into force.

What is a police demand to comply with testing for alcohol or a drug?

Section 320.27

(1) 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 conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

(b) to immediately provide the samples of breath that, in the peace officer's opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

(c) to immediately provide the samples of a bodily substance that, in the peace officer's opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

Mandatory alcohol screening

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer's opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

What is a police demand to provide a sample of breath or a sample of blood?

Section 320.28

(1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person's ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable,

(a) require the person to provide, as soon as practicable,

(i) the samples of breath that, in a qualified technician's opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or

(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 take one, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person's blood alcohol concentration; and

(b) require the person to accompany the peace officer for the purpose of taking samples of that person's breath or blood.

Evaluation and samples of blood - drugs

(2) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person's ability to operate it was impaired to any degree by a drug or by a combination of alcohol and a drug, or has committed an offence under paragraph 320.14(1)(c) or (d) or subsection 320.14(4), the peace officer may, by demand, made as soon as practicable, require the person to comply with the requirements of either or both of paragraphs (a) and (b):

(a) to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person's ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose; or

(b) to provide, as soon as practicable, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person's blood drug concentration, or the person's blood drug concentration and blood alcohol concentration, as the case may be, and to accompany the peace officer for that purpose.

Samples of breath - alcohol

(3) An evaluating officer who has reasonable grounds to suspect that a person has alcohol in their body may, if a demand was not made under subsection (1), by demand made as soon as practicable, require the person to provide, as soon as practicable, the samples of breath that, in a qualified technician's opinion, are necessary to enable a proper analysis to be made by means of an approved instrument.

Samples of bodily substances

(4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe that one or more of the types of drugs set out in subsection (5) - or that a combination of alcohol and one or more of those types of drugs - is impairing the person's ability to operate a conveyance, the evaluating officer shall identify the type or types of drugs in question and may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of oral fluid or urine that, in the evaluating officer's opinion, is necessary to enable a proper analysis to be made to ascertain the presence in the person's body of one or more of the types of drugs set out in subsection (5); or

(b) the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to ascertain the presence in the person's body of one or more of the types of drugs set out in subsection (5) or to determine the person's blood drug concentration for one or more of those types of drugs.

Types of drugs

(5) For the purpose of subsection (4), the types of drugs are the following:

(a) a depressant;

(b) an inhalant;

(c) a dissociative anaesthetic;

(d) cannabis;

(e) a stimulant;

(f) a hallucinogen; or

(g) a narcotic analgesic.

(6) A sample of blood may be taken from a person under this section only by a qualified medical practitioner or a qualified technician, and only if they are satisfied that taking the sample would not endanger the person's health.

(7) A sample of blood shall be received into an approved container that shall be subsequently sealed.

(8) A person who takes samples of blood under this section shall cause one of the samples to be retained for the purpose of analysis by or on behalf of the person from whom the blood samples were taken.

(9) A failure to comply with subsection (7) or (8) does not by itself affect the validity of the taking of the sample or of an analysis made of the sample.

(10) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction shall, on the summary application of the person from whom samples of blood were taken under this section, made within six months after the day on which the samples were taken, order the release of any sample that was retained to the person for the purpose of examination or analysis, subject to any terms that the judge considers appropriate to ensure that the sample is safeguarded and preserved for use in any proceedings in respect of which it was taken.

DNA and Other Forensic Evidence

Forensic evidence, such as DNA evidence, is just one type of evidence that the Crown can try to introduce against a person accused of a crime. The defence can challenge the admissibility of forensic evidence on the basis of relevance, prejudice or that there is a lack of a sufficient scientific foundation to make the evidence reliable and worthy of being admitted, in other words, the forensic evidence is inadmissible because it is based on "junk science".

Over the years, there have been several types of forensic evidence that have been rejected by the courts in the United States and, to a lesser extent, Canada, including voice print identification, comparative bullet lead analysis and several indicators of arson dependent on visual cues.

Likewise, there are various other types of forensic evidence which are possibly unreliable, such as microscopic hair comparison, and "pattern comparison" evidence such as bite marks, tire marks and handwriting.

Even in cases where the forensic evidence is ruled admissible, the defence can still try to weaken the impact of the evidence by arguing, for example, that the results of the forensic testing were the subject of "motivated perception". In other words, the scientist who did the testing interpreted the results so as to support his or her expectations or the expectations of the police or Crown prosecutors. The defence can argue, or call evidence to show, that the forensic examiner should have first tested the evidence blindly without knowing anything about the case in order to avoid a subconscious bias. Studies have shown that even the opinion of fingerprint analysts can be affected by the analysts' preconceived notions about the case. Also, there is always a risk of a false positive. Moreover, if the laboratory that completed the testing, such as the Centre of Forensic Sciences, is known to have made errors on occasion in the past, the defence can argue that the error rates should also be entered in evidence.

In appropriate cases, and where funds permit, the evidence can be re-tested by an independent laboratory for verification.

A good defence lawyer should know the weaknesses of specific scientific techniques or seek out an appropriate defence consulting expert to learn about and present evidence regarding those weaknesses.

Pre-Trial Charter Applications

Often, the best defence to a criminal charge involves a challenge to the investigation that resulted in the arrest of the accused or the collection of evidence against the accused. The police are not allowed to breach the rights that are guaranteed to the accused by the Canadian Charter of Rights and Freedoms.

I will investigate any possible Charter breaches by carefully reviewing the Crown disclosure documents, including the documents used by the police to obtain search warrants for the home, car or other property of the accused, and the documents used by the police to obtain production orders, such as for cell phone records and wiretap authorizations.

If I detect any violation of the Charter rights of the accused or violation of acceptable investigative procedures established by the courts, I will proceed with an application asking for the exclusion of evidence from the trial of the accused obtained illegally by the police, including the statements of the accused and other evidence seized during the investigation.

I have an established reputation for success in pre-trial applications. Winning a Charter application will result in the exclusion of evidence if the court determines that not excluding the evidence will bring the administration of justice into disrepute. The exclusion of evidence often results in a finding of not guilty if the Crown's remaining evidence is insufficient to prove that the accused committed the offence beyond a reasonable doubt.

I have the necessary experience, research skills, writing skills, and advocacy skills to prepare and effectively argue pre-trial Charter applications. The value of legal writing skills cannot be overstated since proceeding with pre-trial Charter applications will require the preparation of several documents including a Notice of Application, an Affidavit, and a Factum setting out the relevant facts and summarizing the relevant case law.

Electing to Have a Preliminary Inquiry

In cases in which a Defendant is exposed to a possible period of 14 years or more in jail, the Defendant will have the right to proceed with a preliminary inquiry in the Ontario Court of Justice and then a trial in the Superior Court of Justice before a court composed of a Judge sitting with a jury or without a jury. In the past, this level of court was referred to as "High Court".

The completion of a preliminary inquiry is not mandatory. The Defendant has the right to waive the preliminary inquiry and to proceed directly to trial in either the Ontario Court of Justice or the Superior Court of Justice. If the trial is to be completed in the Superior Court of Justice, the waiver of the preliminary inquiry will require the consent of the Crown.

At a preliminary inquiry, the Crown is required to call some evidence upon which a properly instructed jury, acting reasonably, may return a verdict of guilt. This is an easy test for the Crown to meet in the vast majority of cases. Accordingly, it is relatively rare for someone who proceeds with a preliminary inquiry to be discharged with respect to all of the charges which he or she is facing. The real value in having a preliminary inquiry is not in the hope of being entirely discharged, thereby bringing the entire criminal proceedings to an end, but in being able to better prepare the case for trial. The defence lawyer will have an opportunity to cross-examine and test the evidence of the primary Crown witnesses. An experienced and skilled defence lawyer can discover the strengths and weaknesses of the Crown witnesses and commence building an effective defence strategy. A preliminary inquiry is especially valuable for the defence in cases involving young, infirm, unreliable or unsavory Crown witnesses.

Call Defence Lawyer Anthony De Marco for a Free Consultation

Contact my Toronto, Ontario, office today to discuss your charge of dangerous driving or criminal negligence or impaired driving or driving while over 80 mgs. I offer a free 30-minute consultation. For your convenience, I accept Visa and offer payment plans. You can reach me by phone at (416) 651-2299 or toll free at 1-888-399-3164 or by e-mail.