Impaired driving Lawyers in Canada

The Crown is the prosecutor. A person charged with an offence is presumed innocent until proven guilty, and that is a right in section 11(d) of the Canadian Charter of Rights and Freedoms.

The offence is about operating a conveyance. Section 320.11 defines a conveyance as a motor vehicle, a vessel, an aircraft or railway equipment. To operate a motor vehicle means to drive it or to have care or control of it.

Section 320.14(1) sets out four ways to commit the offence. Paragraph (a) is operating while impaired to any degree by alcohol or a drug. Paragraph (b) is a blood alcohol concentration of 80 mg or more within two hours after ceasing to operate. Paragraphs (c) and (d) are blood drug levels, or a combination of alcohol and a drug, at levels prescribed by regulation. This page does not list the drug levels.

Section 320.15 is a different offence. It applies where a person, 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.

Sections 320.27 and 320.28 set out when a peace officer may make a demand. Under section 320.27(1), an officer who has reasonable grounds to suspect that a person has alcohol or a drug in their body, and has operated a conveyance within the preceding three hours, may demand coordination tests or a breath or drug-screening sample.

Section 320.27(2) is a separate power, called mandatory alcohol screening. An officer who has an approved screening device in their possession may, in the course of the lawful exercise of powers under an Act of Parliament, an Act of a provincial legislature or the common law, demand breath samples from the person operating a motor vehicle. Whether the officer was acting in the lawful exercise of those powers can be raised in court.

Section 320.28(1) covers the next step. Where an officer has reasonable grounds to believe that a person has operated a conveyance while impaired by alcohol, the officer may demand breath samples on an approved instrument as soon as practicable. Section 320.28(2) covers evaluations and blood samples in drug cases.

Section 320.19(1) sets the penalty for an offence under section 320.14(1) or 320.15(1). The offence can be prosecuted by summary conviction, with a fine of up to $5,000, imprisonment of up to two years less a day, or both, or on indictment, with a maximum of 10 years in prison. Either way the section sets minimum punishments: a fine of $1,000 for a first offence, 30 days in prison for a second offence and 120 days for each later offence.

Section 320.19(3) raises the minimum fine for a first offence under paragraph 320.14(1)(b) in two bands: not less than $1,500 where the concentration is 120 mg or more but under 160 mg of alcohol in 100 mL of blood, and not less than $2,000 at 160 mg or more. Under section 320.19(4), the minimum fine for a first offence under section 320.15(1) is $2,000.

Where bodily harm is caused, section 320.2 sets a maximum of 14 years on indictment, with the same minimum punishments. Where death is caused, section 320.21 sets a maximum of imprisonment for life on indictment, with the same minimums. A maximum is a ceiling, not a prediction of the sentence.

A finding of guilt also brings a driving prohibition. Under section 320.24, the sentencing court shall make an order prohibiting the offender from operating the type of conveyance in question. For a first offence it runs not less than one year and not more than three years, plus any imprisonment. For a second offence it is not less than two years and not more than 10 years, plus the imprisonment. For each later offence it is not less than three years, plus the imprisonment.

Charter rights apply from the start of an investigation. Section 8 gives everyone the right to be secure against unreasonable search or seizure, and section 9 the right not to be arbitrarily detained or imprisoned. Section 10 gives a person on arrest or detention the right to be informed promptly of the reasons and the right to retain and instruct counsel without delay and to be informed of that right.

Section 24(1) lets anyone whose Charter rights were infringed apply to a court for a remedy. Under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute.

The statute also contains exceptions. Under section 320.14(5), no person commits the offence in paragraph (1)(b) if three conditions are all met: they consumed alcohol after ceasing to operate the conveyance, they had no reasonable expectation after that of being required to provide a sample of breath or blood, and their alcohol consumption is consistent with a concentration under 80 mg at the time of operating. A lawyer can explain how any of this applies to a particular charge.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% of charges are completed there. The Superior Court of Justice generally tries only the most serious indictable offences.

A person who is arrested may be taken before a justice for a release decision. Under section 515, the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order should be made. Section 493.1 says the decision-maker gives primary consideration to release at the earliest reasonable opportunity and on the least onerous conditions.

After a conviction on indictment, an appeal goes to the court of appeal under section 675. A person may appeal as of right on a question of law alone. An appeal on a question of fact, or of mixed law and fact, needs leave, and so does an appeal against sentence. A summary conviction appeal in Ontario goes to the Superior Court of Justice sitting in the region, district or county where the case was decided, under sections 812 and 813.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel, a lawyer at the courthouse for that day, can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.