Impaired Driving Lawyer (DUI) in Brampton

In respect to the offence of “Impaired Driving” or “Impaired Operation”, the word “impaired” is not defined in the Criminal Code. Despite the wording in section 320.14(1)(a) that the impairment can be of “any degree”, this does not mean that every person who is just slightly impaired will be found guilty; the offence does not require that the driver themself be impaired, but rather that their ability to drive be impaired. In R. v. Bush, [2010] O.J. No. 3453, the Ontario Court of Appeal upheld a prior case’s interpretation of the term “impaired”: “slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgement, and regard for the rules of the world.”

Prior to the 2018 Amendments to the Criminal Code, to be convicted of an ‘Over 80’, the Crown had to prove an individual’s B.A.C. at the time of the driving. Given that the testing occurs at the station some time after the individual has driven, this was a hard burden to meet as the body naturally gets rid of alcohol over time. Thus, the Crown would have to either rely on an expert toxicologist to “read back” the B.A.C. from the breath samples to the time of driving, or rely on the presumptions of accuracy and identity. These presumptions required a number of preconditions to be raised, but if satisfied, would establish that the breath tests accurately set out one’s B.A.C., and that the B.A.C. at the time of driving was the same as when the breath samples were given. However, under the new section 320.14(1)(b), so long as the breath samples are provided within two hours of driving (and are 80 milligrams of alcohol per 100 millilitres of blood or over), the offence is made out.

Since the 2018 Amendments to the Criminal Code, police have been able to conduct Approved Screening Device demands on a traffic stop even without suspicion that the driver has been consuming alcohol. Section 327.27(2) of the Criminal Code allows any police officer who has such an Approved Screening Device in their possession, 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, to make a demand for the driver to immediately provide samples of breath. These “mandatory alcohol screenings” are only applicable to tests for alcohol; to make demands to test for the consumption of drugs, the officer must have reasonable suspicion that the driver has consumed drugs and has driven in the preceding three hours.

Reasonable suspicion is the lowest legal standard in the Criminal Code, and must be established on both a subjective and objective basis. As held by the Supreme Court in R. v. Chehil, [2013] 3 S.C.R. 220, a reasonable suspicion “means something more than mere suspicion and something less than a belief based upon reasonable and probable grounds.” This means that the police officer must have honestly suspected that the driver had consumed alcohol or drugs, and that belief must be objectively supported by the circumstances. For example, in R. v. Kapera, [2017] O.J. No. 1400, the driver had been driving relatively fast, come to a rolling stop at a stop sign, and slid into another lane after turning around a corner. The police were found not to have reasonable suspicion that the driver had consumed alcohol, even though they were patrolling the area near a beer garden; the weather conditions were poor, and there was a snowstorm, which could explain the rolling stop and sliding.

Where a police officer has reasonable suspicion that a driver has drugs in their system, they may demand that the driver perform certain physical coordination tests or provide samples of bodily substances to test for the presence of drugs. The physical coordination tests (called “standardized field sobriety tests” include a one-leg stand test, a walk-and-turn test, and a horizontal gaze nystagmus test. These tests are similar to an ASD test used for impaired by alcohol offences, but differ in that a “fail” result on an ASD will almost always give the officer reasonable and probable grounds that the driver has committed an ‘Over 80’ offence. On the other hand, the physical coordination tests do not provide concrete evidence, and it will often be up to the testing officer’s judgement to determine whether the driver is actually impaired by drugs.