Driving Offences

Supreme Court Finds Driver Guilty as Risks are Reasonably Foreseeable When Driving Three Times the Speed Limit

Written on Behalf of Affleck & Barrison LLP

Earlier this spring, the Supreme Court of Canada determined that a reasonable person should foresee the risk of excessive speeding towards a major intersection and that this behaviour can be a departure from the reasonable standard of care required of drivers in Canada.

The highest court in Canada found that the trial judge in the case of R. v. Chung made two errors of law in a case of dangerous driving causing death.

WHAT HAPPENED?

On November 14, 2015, Ken Chung (“Chung”) drove his vehicle almost three times the speed limit towards a major intersection in a mixed residential-commercial area in Vancouver.  Chung crashed into a left turning vehicle, resulting in the death of the driver at the scene of the accident. 

A dashboard camera video caught 4.9 seconds of the accident showing Chung passing one car on the right and accelerating from 50 km/h to 140km/h before entering the intersection.  Chung was observed almost hitting a Toyota that was making a right turn in front of him and then colliding with the victim’s vehicle at a speed of 119 km/h.

The trial judge concluded that Chung’s speeding through the intersection was objectively dangerous to the public and fulfilled the actus reus (the physical act of the crime) of dangerous driving.  However, there was reasonable doubt as to whether Chung’s conduct met the mens rea (the intention, knowledge or recklessness of the accused) requirement for the crime of dangerous driving.  The test for mens rea in driving cases refers to a marked departure from the standard of care of a reasonable person in similar circumstances.  The trial judge held that the momentariness of Chung’s speeding did not demonstrate criminal fault.

At his trial, Chung was acquitted of dangerous driving causing death under section 249(4) of the Criminal Code (this section has been repealed and replaced with section 320.13(3) of the Criminal Code).  This crime requires two components:

  1. The prohibited conduct:  Operating a motor vehicle in a dangerous manner resulting in death; and
  2. The required degree of fault:  A marked departure from the standard of care that a reasonable person would have exercised while driving in the circumstances when the incident occurred.

On appeal, it was found that the trial judge had erred in law by finding that Chung had lacked the mens rea of the driving offence, and in finding that the momentary acceleration in speed could not satisfy the mens rea component of the crime  Therefore, the acquittal was overturned and a dangerous driving conviction was entered.

Chung appealed the conviction and took his case to the Supreme Court of Canada (“SCC”).

THE SUPREME COURT OF CANADA DECISION

The SCC found that the trial judge made two errors of law by applying the wrong legal principle and by failing to apply the correct legal test by not assessing what a reasonable person would have foreseen and done in the circumstances.

Justice Sheilah Martin, writing for the majority of the SCC, found that Chung’s actions were not comparable to momentary mistakes that a reasonable driver may make.  She wrote:

A reasonable person would have foreseen that rapidly accelerating towards a major intersection at a high speed creates a very real risk of a collision occurring within seconds.  This is what actually occurred in Mr. Chung’s case.  Risky conduct at excessive speeds foreseeably can result in immediate consequences. 

… A reasonable person understands that driving is an inherently risky activity.  It is made all the more risky the faster we drive, the harder we accelerate, and the more aggressively we navigate traffic.  Although even careful driving can result in tragic consequences, some conduct is so dangerous that it deserves criminal sanctions.

The SCC concluded that the test for mens rea is whether a reasonable person would have foreseen the immediate risk of travelling almost three times the speed limit towards a major intersection.  Therefore, it held that Chung’s driving was a “marked departure from the norm”.

Justice Martin warned that there may be cases where excessive speed may not be a discrepancy from the standard of care.  She explained:

Only when there has been an active engagement with the full picture of what occurred can the trial judge determine whether the accused’s conduct was a marked departure from the conduct of a reasonable and prudent driver.

The SCC dismissed the appeal and restored Chung’s conviction.

If you have been charged with a driving related offence or have questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Changes in Crime Patterns During the Pandemic

Written on Behalf of Affleck & Barrison LLP

The COVID-19 pandemic and resulting shelter-in-place orders across Canada have changed the way we currently live.  According to police departments, this new reality has also changed crime rates across communities.

Since the State of Emergency has been declared, Durham Regional Police report that both emergency calls for service (down 11.3%) and urgent calls for service (down 5.5%) have decreased.  However, routine calls for service have increased by 13.5%.

Durham Regional Police report that they have received changes in the following type of calls for service during the time period between March 17 to April 22, 2020 when comparing it to the same time period in 2019:

  • Unwanted persons calls are up by 58%;
  • Suspicious persons calls are up by 38%;
  • Domestic and domestic-related calls are up by 14%;
  • Fight calls are down by 50%;
  • Theft calls are down by 21%; and
  • Motor vehicle collisions are down by 47%.

DOMESTIC VIOLENCE ON THE RISE

Under normal circumstances, a woman in Canada is killed by her intimate partner every six days according to the Canadian Women’s Foundation.  Given the current pandemic, across the globe reports of familial and intimate partner violence is increasing.  In response to this harsh reality, the Canadian government has recently invested $40 million in women’s shelters and sexual assault centres across the country.  The government has also reported that it is providing $10 million for emergency shelters for Indigenous women and children fleeing violence.

Although Durham Regional Police and York Regional Police (increase of 22%) report an increase in domestic violence calls, police departments in Brampton, Mississauga and Caledon are not seeing an increase of this nature.

Experts warn that despite the number of calls made to the police, violence within the home may still be occurring.  Specialists in the field of domestic violence are concerned that women who should leave abusive situations may be afraid to call for help.  Under normal circumstances, abused women can come up with reasons to make contact with shelters by saying they were going to work or dropping children off at school.  Given the pandemic, vulnerable women do not have this justification to leave the home as schools and workplaces are closed.

Abused women and children are stuck in their homes with their abusers.  They may also be at more of a risk due to the overwhelming stress of the current situation.  Individuals who lack coping skills might be more likely to lash out at others in their household.

Given the current situation, women who were saving money to leave an abusive situation may not be in a position to do so now as many have lost jobs and may be afraid they won’t receive child support payments given that courts are not prioritizing child support cases at this time. 

Yasmine Youssef, the National Manager for Nisa Homes, a transitional home for Muslim and immigrant women and children, reported:

We’re seeing reports coming out of China, Italy and other countries that the number of domestic violence cases have tripled since the pandemic started.  We know it’s definitely affection women that are [experiencing] abuse very heavily, because now the resources are very limited, and they’re stuck at home with their abuser 24/7.

Experts are afraid that the numbers from police departments are not reflective of the reality.  They believe that the majority of those affected by domestic violence do not call the police.  According to Marlene Ham, the executive direction of the Ontario Association of Interval and Transition Houses (OAITH):

Our fear is that there are a lot of women who are experiencing violence in their home and they may not be accessing any services or supports.  We really want women to know that those services and supports are available, and there are many entry points to getting the services they need.

For those that are experiencing abuse, in an emergency call 911 or contact the Assaulted Women’s Helpline at 1-866-863-0511 or dial #SAFE on your mobile phone.

TRAFFIC VIOLATIONS DURING THE PANDEMIC

Since the pandemic began, across Ontario there are reports of fewer traffic violations, less drunk driving and fewer cases of fraud, however, in addition to the increase in domestic violence, police are finding increases in commercial break-ins and stunt driving.

Given that the roadways are less congested, some are taking this as permission to engage in stunt driving and speeding more than 50 km/h over the limit.

Stunt driving is an offence found under the Highway Traffic Act and anyone found guilty of breaking this law can be subject to a fine between $2,000 to $10,000 and/or imprisonment for a term of not more than six months.  The driver’s licence may also be suspended if convicted.

Last weekend, OPP caught a 18-year-old driver and his 19-year-old passenger driving on the QEW near Burlington travelling at a speed of 308km/h.  The individual was charged with stunt driving under the Highway Traffic Act and was charged with dangerous driving under the Criminal Code.  His driver’s licence has been suspended for seven days and his vehicle has been impounded. 

If you have been charged with a driving related offence or a domestic violence offence, please contact the knowledgeable criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Muzzo Granted Day Parole Showing ‘Improved Understanding of Alcohol Abuse’

Written on Behalf of Affleck & Barrison LLP

The case of Marco Muzzo (“Muzzo”) returned to the headlines last week.  We have previously blogged about Muzzo’s impaired driving conviction.  After returning to Toronto on a private jet from his bachelor party in Miami, Muzzo was involved in a deadly motor vehicle accident while driving home to Woodbridge.  Muzzo, with blood-alcohol levels three times the legal limit to drive, drove through a stop sign and crashed into the driver’s side of a minivan killing three children and their grandfather, and injuring the children’s grandmother and great-grandmother.

Muzzo pleaded guilty in 2016 to four counts of impaired driving causing death, and two counts of impaired driving causing bodily harm.  He was sentenced to 10 years in prison.  Last week he attended a parole board hearing before the Parole Board of Canada.

As we have previously blogged, Muzzo was denied parole in November 2018 as he had a “lack of understanding on the issue of impairment” and a December 2019 psychiatric assessment found that he did “not meet the diagnostic criteria for an alcohol or substance use disorder of any kind”.

THE PAROLE BOARD HEARING

Following a two day virtual parole board hearing, the Parole Board of Canada granted Muzzo day parole.  Given the COVID pandemic, victims of the crime were allowed to call into the parole hearings and present victim impact statements for Parole Board of Canada members to consider in their decision-making.

Muzzo originally only applied for day parole, however, due to the circumstances surrounding the pandemic he was encouraged by Correctional Service Canada to apply for full parole.  It was Muzzo’s plan to live with his fiancée and work out of his family business headquarters.  The parole board decided that he was not ready for this form of release and therefore denied his request for full parole. 

Alternatively, the parole board decided to grant Muzzo a gradual release, which they concludedwill allow you to test your newfound knowledge with a higher level of supervision, support and monitoring than full parole would provide at this juncture.  You will likely face serious reintegration stressors upon release.  You will have to demonstrate your ability to deal with your stress adequately prior to consideration for full parole.”

The parole board reported that Muzzo’s behaviour while incarcerated has been “appropriate”.  Muzzo has completed two six-month periods of escorted absences from prison for community service.  He has undergone five urinalyses and none of them have returned positive for any banned substances.

Muzzo has undergone substance abuse counseling and the board found that he had improved his understanding of alcohol abuse. 

The parole board reported:

You indicated that it had helped to strengthen your resolve to abstain from alcohol and to be the best person you could be, not being consumed by what others thought of you and how you had to prove yourself to them.

The parole board accepted that Muzzo was a low risk to reoffend given the support from his parole officer, his strong community network, supportive family, friends, co-workers and a fiancée, and a commitment from his addictions counsellor to continue with treatment upon his release.   

The decision stated:

The Board notes that you have a strong community network, with many family members, friends and co-workers actively expressing their support for you.  Your fiancée is known to be a strong support and has continued to visit you often and participated in daily phone calls.  You have mostly lived a pro-social and productive life.

In a statement issued by the law firm that represented Muzzo, he apologized to the family of the victims and stated:

I ruined their lives and I take full responsibility for what I have done.  I always will.  I was careless and irresponsible when I made the choice to drink and drive.  There is no way that I can undo the damage that I have caused.  I will live with this for the rest of my life.

PAROLE CONDITIONS

While on day parole, Muzzo will be housed in an undisclosed halfway house and will work as a general labourer with his family’s company.

According to the conditions of Muzzo’s day parole, he is forbidden from driving for 12 years following his release; he must stay away from members of the victims’ families and sites of memorials for 6 months; he is barred from entering the city of Brampton, King City community or the town of Aurora without permission from his parole officer; he must meet with a mental health professional; he must stay away from establishments that derive primary revenue from alcohol and not buy, possess or drink alcohol.

If you have been charged with impaired driving or a driving offence of any kind or have any questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Reduced Sentence for Drunk Driver Who Killed Three

Written on Behalf of Affleck & Barrison LLP

The driver of a vehicle who was involved in deadly car accident has had his sentence reduced from nine years to seven years by the Ontario Court of Appeal who found that the trial judge erred in reviewing punishments imposed in similar cases.

WHAT HAPPENED?

On April 10, 2016, Prithvi Randhawa (“Randhawa”), 22 years-old at the time, drove his vehicle, including four friends, at a high rate of speed through a residential neighbourhood after a night of drinking at Luxy night club in Concord.  Randhawa was found to have twice the legal limit of alcohol in his system.

Travelling at 135 km/h on Jane Street, Randhawa collided with a traffic signal pole near Sheppard Avenue West, the vehicle went airborne and crashed upside down.  The four passengers were all ejected from the vehicle.  Three of them died and one was serious injured.  The passengers ranged in age between 19 to 24 years-old.

The surviving passenger, Atul Verma, suffered a traumatic brain injury, a fractured ankle, knee damage, a lacerated liver and lumbar spine fractures.  At the time of the trial, he continued to suffer from constant pain, sleepless nights and the deprivation of some of the activities that he used to enjoy.

As a result of the crash, Randhawa sustained a traumatic brain injury and collapsed lung.   He regained consciousness in hospital two days following the accident.  Due to the injuries he suffered, he lost all memory of the events starting from his time inside the nightclub until he regained consciousness.

Randhawa was found guilty of three counts of impaired driving causing death and one count of impaired driving causing bodily harm.  Justice James Chaffe sentenced him to nine years in jail and a driving ban of 93 months.

Justice Chaffe reviewed three similar cases before imposing a sentence.  He held that Randhawa’s conduct was “egregious” and worse than the cases he reviewed. One of the cases reviewed by Justice Chaffe was the sentencing of Marco Muzzo who killed three children and their grandfather while impaired in 2016.  The sentence Justice Chaffe imposed on Randhawa was a year less than the sentence in the Muzzo case.

THE APPEAL

Randhawa appealed Justice Chaffe’s sentencing decision arguing that the trial judge erred in determining his sentence within the ranges available.  More specifically, it was argued that the sentencing judge failed to consider or misconstrued facts regarding other similar cases when considering an appropriate sentence.

On behalf of the Court of Appeal, Justice Nordheimer found that Justice Chaffe failed to explain why Randhawa’s offence was worse than two of the cases that he had reviewed.  Justice Nordheimer stated:

I am unable to find a basis upon which the sentencing judge’s finding could be supported.  This is of concern because, as I have said, it is this finding that clearly drove the sentencing judge to determine that a sentence of nine years was appropriate.

Justice Nordheimer ruled that Randhawa’s conduct was most similar to two of the cases under consideration, involving impairment, driving too fast and multiple deaths.  Justice Nordheimer also found that the sentencing judge failed to give consideration to Randhawa’s young age and the fact that Randhawa suffered very serious injuries, including a traumatic brain injury, in the crash.

Randhawa also argued that the sentencing judge did not consider that he will be facing numerous civil lawsuits arising from the accident, and subject to large judgments.  Justice Nordheimer did not find this to be an error made by the sentencing judge and is not a mitigating factor that is required to be considered when determining a sentence.

In a dissenting opinion, Justice Alexandra Hoy was of the opinion that the sentencing decision was appropriate.  She felt that it was within Justice Chaffe’s discretion to conclude that Randhawa’s conduct was more egregious than the drivers in two of the cases.  Furthermore, Randhawa was driving even faster than Muzzo and in a busier area.  She also made note that Randhawa had a worse driving record than Muzzo, including infractions for speeding and running a red light. 

If you have been charged with a driving related offence or have questions regarding your legal rights, please contact the knowledgeable criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week. Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Joyriding Teen Pleads Guilty to Manslaughter in 2011 Police Death

Written on Behalf of Affleck & Barrison LLP

A young man, known only as S.K., has recently pleaded guilty to charges of manslaughter for the death of York Regional Police Constable Garrett Styles. 

Following an appeal of his conviction and sentence, the Court of Appeal ordered a new trial for S.K.  Both the Crown prosecutors and lawyers for S.K. agreed on a plea deal.  S.K. was sentenced to two years probation and several conditions are in place regarding his operation of a motor vehicle. 

WHAT HAPPENED?

On June 28, 2011, 15 year-old S.K. took his father’s minivan for a drive with his friends, without his parents’ consent.

At 4:45 a.m., S.K. was stopped by Constable Styles for traveling 147 km/h in an 80 km/h zone.  S.K. was advised that the minivan would be impounded and he was repeatedly ordered to get out of the vehicle.  S.K. refused and pleaded with the officer to let him go.  Constable Styles proceeded to open the driver’s door and attempted to undo S.K.’s seat belt.  At that point, S.K.’s van began to move and Constable Styles was caught between S.K. and the steering wheel.  Constable Styles eventually jerked the steering wheel to the left causing the van to leave the highway, enter a ditch, proceed up an embankment, become airborne and roll 360 degrees.  Constable Styles was ejected from the van, which then fell on top of him.  He was pronounced dead shortly after arriving at the hospital.

As a result of this incident, S.K. suffered a spinal fracture that rendered him quadriplegic.

S.K. was charged with first-degree murder.  The key question at the trial was whether S.K. intended to drive away (alleged by the Crown prosecutor) or whether he accelerated by accident (alleged by the defence). 

S.K. was tried and a jury found that he intentionally accelerated and should have known that his actions were “likely” to lead to the death of the police officer.  S.K. was convicted and was sentenced to one day in custody in addition to time served (8 months) and a conditional supervision order for nine years to be served in the community. 

THE APPEAL

S.K. appealed his conviction on 5 separate grounds alleging that the trial judge made several legal errors. 

The three judge panel all agreed that the trial judge erred in failing to instruct the jury of the importance of S.K.’s age and level of maturity in assessing whether he knew his dangerous driving was likely to cause Constable Style’s death.

Justice Janet Simmons wrote:

This was a tragic case in which a police officer was killed as a result of the irresponsible acts of a headstrong 15-year-old.  In these circumstances, it was necessary for the trial judge to caution the jury that 15-year-olds do not have the same life experience as adults and that, as a result, a 15-year-old may not have the level of maturity to foresee the consequences of a particular course of action.

However, the judges of the appeal court panel disagreed as to whether the trial judge erred in excluding a statement that S.K. made to his father 26 days after the crash.  Following the crash, S.K. was intubated and unable to speak for three weeks. S.K. had told his father that he did not intentionally set the van in motion.  S.K.’s lawyers sought to introduce the statement as evidence of his state of mind during the police incident, however, the judge ruled against it.

Justice Simmons held that the statement should have been admitted “to respond to an implicit allegation of recent fabrication and to provide overall context for the jury about what the appellant had said close in time to the incident.” 

On the other hand, Justice Michael Tulloch and Justice David Brown ruled that the trial judge had made the right decision in not admitting the statement as evidence. 

On October 1, 2019, the appeal court allowed the appeal, set aside S.K.’s conviction and ordered a new trial.

GUILTY PLEA

Earlier this month, York Regional Police Services released a statement to confirm that a plea agreement had been reached between the Crown and S.K.  In coming to this decision, the Crown considered whether the family of Constable Styles could bear another trial and the impact another trial would have on witnesses, including first responders. 

Following numerous discussions between the parties, S.K. agreed to plead guilty to manslaughter and was sentenced to two years probation and conditions were placed on his ability to operate a motor vehicle.

If you have been charged with a driving related offence or have questions regarding your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  We offer a free consultation and are available 24 hours a day, seven days a week.  Trust our experienced criminal lawyers to handle your defence with diligence, strategy and expertise.

Increase In DUI Charges Following Festive R.I.D.E. Campaign in Durham Region

Written on Behalf of Affleck & Barrison LLP

The presents have been unwrapped and the new year’s confetti has been swept away at the same time as Durham Police’s Festive R.I.D.E. campaign has come to an end for 2019.

Durham Police ran their annual seven week R.I.D.E. campaign (Reduce Impaired Driving Everywhere), which concluded on New Year’s Day 2020.  As a result of this campaign, a grand total of 104 motorists were charged with drinking and driving offences, which was an increase from those charged in 2018.

Prior to the commencement of the Festive R.I.D.E. campaign, Durham Police have charged 644 motorists with impaired driving offences in 2019.  This is a 19% increase in charges from 2018.

CHARGES ARISING OUT OF TRAFFIC STOPS IN 2019

This past year, Durham Police stopped more than 19,000 vehicles during the 2019 R.I.D.E. campaign.  During these traffic stops, 787 motorists were given roadside breath tests.  Of those given breath tests, 86 motorists had their driver’s license suspended for three days for registering in the “warn” range.  There were 104 motorists charged with drinking and driving offences. 

In comparison to the 2018 winter holiday season, less vehicles were stopped by Durham Police this year.  In 2018, 25,110 vehicles were stopped during Durham Police’s annual RIDE campaign and 117 motorists were charged with drinking and driving offences in Durham.  During that year’s R.I.D.E. campaign, 111 motorists had their driver’s license suspended for three days after registering in the “waning range” during their roadside test.

Although the number of motorists charged with impaired driving was lower this year than last year, the rate of impaired charges laid increased.  In 2019, one in every 188 motorists stopped by the police was charged with an offence of drinking and driving in comparison to one in every 214 motorists charged with an offence in 2018.

Durham Police also laid 379 charges for various Highway Traffic Act offences during their traffic stops.  Police also charged 4 motorists with drug offences and 7 motorists with offences related to the Cannabis Act.

ALLEGED IMPAIRED DRIVING ACCIDENTS THAT OCCURRED OVER THE HOLIDAYS

Festive R.I.D.E. campaigns ran throughout the Greater Toronto Area this past holiday season.  Despite these efforts, numerous motor vehicle accidents occurred during the holiday season as a result of suspected impaired drivers in the GTA.

On the evening of December 22, 2019, two international students were killed while walking on the sidewalk when a driver lost control of his vehicle, jumped the curb and plowed down the pedestrians in Scarborough.  A third pedestrian was also injured in the accident and was taken to hospital in serious condition.  Michael Johnson of Pickering was arrested at the scene of the collision and is facing nine charges, including two counts of impaired driving causing death and one count of impaired driving causing bodily harm. 

On the evening of December 26, 2019, a four-vehicle collision occurred on the Queen Elizabeth Way in Oakville.  Four individuals were transported to hospital with minor injuries.  One motorist was taken into custody on suspicion of drunk driving.

On December 27, 2019, a man was taken into custody on suspicion of impaired driving after he lost control of his vehicle, veered off the road and slammed into a TTC bus shelter that had people inside of it in the area of Sheppard Avenue and Progress Avenue in Scarborough.   There were no reported injuries as a result of this accident.

On New Year’s Eve, a 68-year-old man died at the scene of a car accident when a suspected impaired driver collided with his Toyota in the area of Elgin Mills Road and Ninth Line in York Region.  Stanley Choy of Whitchurch-Stouffville was charged with impaired driving causing death, operation with a blood alcohol concentration 80 plus causing death, and dangerous operation causing death.

TIPS TO AVOID IMPAIRED DRIVING CHARGES

Impaired driving is a crime under the Criminal Code of Canada and the consequences are very serious.  In Canada, the maximum legal blood alcohol concentration for fully licensed drivers is 80 milligrams of alcohol in 100 millilitres of blood (0.08).  In Ontario, motorists can face serious penalties if their blood alcohol concentration is found to fall between 0.05 and 0.08, considered the “warn” range.

The legal team at Affleck & Barrison LLP would like to provide the following tips to avoid the consequences of an impaired driving charge:

  • Always have a plan to return home safely, either a designated driver, public transit, calling a friend or loved one, a ride share or taxi, or plan to stay overnight and sleep it off;
  • Tell your family and friends about your plan to get home safely;
  • Do not over-indulge in alcohol or cannabis;
  • Be sure to drink plenty of water;
  • Ask your doctor or pharmacist whether there are any side effects related to driving when using prescription medication;
  • Parents should model safe driving behaviours by avoiding driving a vehicle while impaired; and
  • Be aware that fatigue and stress may affect your ability to operate a vehicle safely.

If you have been charged with a driving offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Ontario Judge Strikes Down Mandatory Minimum Sentence for Indigenous Offender Convicted for Impaired Driving

Written on Behalf of Affleck & Barrison LLP

Justice Paul Burstein has declared that Canada’s impaired driving laws are unconstitutional.

Justice Burstein ruled in the case of R. v. Luke that the mandatory requirement for a criminal conviction of a first impaired driving offence violates the Charter of Rights and Freedoms protections against cruel and unusual punishment.

WHAT HAPPENED?

Morgan Luke (“Luke”) is a 22-year-old Indigenous woman from the Mississaugas of Scugog Island First Nation.  She was raised by her mother and maternal grandparents.  Her Aboriginal ancestry is derived from her father, who she did not see much as she was growing up.  He was a drug addict, alcoholic and had a lengthy criminal record. 

As she grew older, Luke began to spend time at the Scugog Island reserve, participating in cultural activities and working summer jobs.  She also had contact with her paternal family on the reserve.

Luke’s mother became ill when she was 15 years old, at which point she began spending more time with her father and moved to the Scugog Island reserve for 2 years.  She began abusing drugs and alcohol and dating an older man who was a serious drug addict.

On November 4, 2017, Luke took her mother’s car without consent.  She accelerated quickly out of the parking lot, causing the back of the car to slide out.  She overcorrected and the car hit a curb and left the ground.  The car landed on the sidewalk, just missing a lamp post. 

Luke proceeded along Highway 7A when she was stopped by the police.  The officer noticed a strong odour of alcohol on her breath and she admitted to having consumed alcohol.  She was arrested for impaired driving and breath tests showed that her blood alcohol concentration was almost three times the legal limit. 

According to Luke, she had been drinking all afternoon as she was upset after seeing her cousin with her boyfriend.

Following her arrest, Luke began counselling with two professionals associated with the Scugog First Nation.  She has stopped using drugs and alcohol and has plans to finish high school and become a youth worker on the reserve.

THE CONSTITUTIONAL ARGUMENTS

Luke pleaded guilty to the charge of driving while impaired by alcohol.  Section 255(1) of the Criminal Code provides a mandatory minimum sentence of a fine of not less than $1,000 to an individual who has been found guilty of impaired driving for the first time.  This would result in a conviction and a criminal record.

According to section 730 of the Criminal Code, a court may grant an absolute or conditional discharge when it is in the best interest of the individual and is not against the public interest.  A discharge of this nature does not result in a criminal conviction or a criminal record.   However, under this section of the Criminal Code, discharges are not available to offenders who have been found guilty of offences that hold a mandatory minimum punishment.

Luke challenged the constitutionality of section 255 of the Criminal Code as it applies to the sentencing in her case.  It was Luke’s position that section 255(1), which prevents the consideration of a discharge, violates her rights under the Charter.   It was argued that the legislation provides a mandatory minimum sentence rather than allowing for a consideration of a discharge, thus allowing a punishment that is “grossly disproportionate” to an otherwise appropriate sentence.

On the other hand, the prosecuting Crown lawyers argued that section 255 does not violate the Charter, given the seriousness of the offence of impaired driving.  Although the mandatory minimum punishment may seem disproportionate in some cases, it is not “grossly” disproportionate, which is the requirement for a Charter violation. 

It is well-established law that legislative provisions which provide mandatory minimum sentences that are “grossly disproportionate” to an appropriate sentence will be found to infringe the Charter.  A court must consider the following in these circumstances:

  1. What would be the appropriate sentence for the offence taking into account the circumstances of the offence and of the offender?
  2. Is the prescribed mandatory minimum sentence grossly disproportionate to the otherwise appropriate sentence for the offender?
  3. If not grossly disproportionate for the offender before the court, could “reasonable foreseeable applications” of the mandatory minimum sentence result in grossly disproportionate sentences for other hypothetical offenders?

If the court finds that the mandatory minimum sentence would be grossly disproportionate for either the offender or another hypothetical offender, it must find that the provision is inconsistent with section 12 of the Charter.

OFFENDER’S INDIGENOUS STATUS CONSIDERED IN RULING

Justice Burstein stated that the mandatory minimum sentence prevents him from considering several factors fundamental to a just and appropriate sanction, including:

  1. She is a young first time offender with strong rehabilitative potential;
  2. The offence was motivated by her alcohol addiction and her continued treatment is expected to effectively deal with this issue; and
  3. The offence was connected to her Aboriginal background and her Aboriginal heritage provides for rehabilitative and restorative sentencing options.

Justice Burstein found that imposing the shame of a criminal record for impaired driving would amount to a grossly disproportionate sentencing implication for Luke.  Justice Burstein wrote:

On the facts of this particular case, I find that it would not be contrary to the public interest to grant Ms. Luke a conditional discharge and thereby relieve her of the lasting consequences of a criminal record.  I am satisfied that a driving prohibition and two years of probation will adequately achieve the level of denunciation and deterrence required in this particular case, while still respecting the importance of Ms. Luke’s rehabilitative potential.

Justice Burstein granted Luke a conditional discharge with various conditions, including to attend counselling and treatment, perform community service work, attend school or maintain a job, and to only operate a motor vehicle when travelling to or from work, school or counselling appointments.

If you have been charged with impaired driving or any other driving offence, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We offer 24-hour phone service to ensure you have access to justice at all times.

Can I Be Charged for Being Impaired While Canoeing?

Written on Behalf of Affleck & Barrison LLP

Justice Peter West is the first judge in Canada to provide a ruling that a canoe is a “vessel” for the purposes of the criminal charges of impaired operation of a vessel causing death, operation of a vessel over 80, and the dangerous operation of a vessel.

According to the Canadian Red Cross, following 18 years of research on all deaths involving boats in Canada, more than 40% of recreational boating deaths are alcohol related.

WHAT HAPPENED?

On April 7, 2017, Thomas Rancourt (“Rancourt”), eight-years-old at the time, had gone for a canoe ride with his mother’s boyfriend, David Sillars (“Sillars”), on the Muskoka River on a cold spring day in Bracebridge, Ontario. 

The canoe capsized and Sillars was able to escape and swim to shore.  However, Rancourt continued down the river and had gone over the falls.  A search led to the discovery of Rancourt, where he was pulled from the icy water, CPR was immediately  administered and he was rushed to hospital.  He died shortly thereafter. 

Rancourt did not know how to swim and was wearing a lifejacket that was too small for him. 

Sillars was charged with impaired operation of a vessel causing death, operating a vessel with more than 80 mg of alcohol in 100 mL of blood, dangerous operation of a vessel, and criminal negligence causing death.

Sillars pleaded not guilty to all four criminal charges.  The Judge in this case has reserved his judgment.  We will provide information regarding the judgment in this case and any updates in this blog when they become available.

THE RULING THAT A CANOE IS A ‘VESSEL’ UNDER THE CRIMINAL CODE

Last fall, Justice West was asked to consider whether a canoe is included in the term “vessel” contained in the specific sections of the Criminal Code related to the case against Sillars.

The definition of vessel in section 214 of the Criminal Code of Canada does not specifically include a canoe, it merely states that a vessel “includes a machine designed to derive support in the atmosphere primarily from reactions against the earth’s surface of air expelled from the machine”. 

Justice West ruled that it was clear that as a result of growing concern that the public was not taking the regulations as set out in the Small Vessel Regulations under the Canada Shipping Act seriously that the term vessel was added to a number of offences in the Criminal Code in 1961, including the offence of dangerous operation of a vessel, impaired operation of a vessel, and operating a vessel with the blood alcohol concentration over 80 mg.  The wording was added to provoke members of the public to take the safe operation of pleasure crafts more seriously and therefore attach a criminal stigma to these offences.

Vessel was also added to these offences due to the increase in the number of pleasure crafts being used on waterways throughout Canada.

Justice West stated:

[O]perating any type of vessel on a lake or river or sea requires some level of competency and knowledge as to the proper operation of the vessel and an awareness of the rules and regulations which govern safety on the water.

The danger of harm is to the person or persons operating the canoe, or the passengers in the canoe or other persons operating small vessels in the vicinity or those coming to assist when an emergency occurs as a result of the person operating the canoe being impaired, over 80 or operating dangerously.

The fact is, like impaired drivers, the impaired operation of a pleasure craft presents a continuing danger on the waterway.  The goal is to screen operators of a vessel before there is an accident or emergency situation.  These inherent dangers of operating a ‘vessel’ on the water affect all operators of small vessels on Canada’s lakes and rivers and territorial waterways.

Justice West ruled that that the danger of harm is no different when one’s ability is impaired whether they are operating a motor boat with a five horsepower motor, a motor boat with a 150 horesepower motor, or a canoe.  Each of these acts justifies the stigma of a criminal sanction.

DRUNK BOATING IN ONTARIO

Drunk boating is equivalent to drunk driving.  Under the Criminal Code, if you are operating a boat, including a canoe, while impaired (80 mg of alcohol per 100 mg of blood), you are committing an offence under the law. 

Marine police can perform spot checks on waterways, the same as police do on our roadways.  Police can look for signs that a paddler is impaired.  The same rules that apply on land, apply on water.  In Ontario, if you are convicted of impaired operation of your boat, the consequences will extend to your privileges to drive your automobile.

If you have been charged with an impaired driving or any other driving offence, whether on land or water, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.  Contact our office online or at 905-404-1947.

Police Services Launch Project ERASE to Target Dangerous Drivers

Written on Behalf of Affleck & Barrison LLP

On May 10, 2019, Durham Regional Police, OPP and police services across Ontario launched their annual campaign “Project E.R.A.S.E.” to eliminate street racing from our roadways. 

The operation utilizes police in the air and on the ground to stop dangerous driving that endangers the safety of the participants, spectators and other innocent vehicles on the streets.

WHAT IS PROJECT ERASE?

ERASE stands for “Eliminate Racing Activity on Streets Everywhere”.  This campaign started in 1996 and includes 22 police services (some of which include York, Durham, Peel, Halton, South Simcoe, Barrie, Waterloo and Toronto), the Ministry of the Environment and the Ministry of Transportation.  These police forces work together and provide resources such as planes, helicopters, unmarked vehicles and specially trained officers aimed at cracking down on street racing, stunt and aggressive driving in Ontario.

High speeds on our roadways is extremely dangerous.  Driving in this manner makes it difficult to stop safely if there is an emergency, if a car pulls out in front of the driver, or if a child runs into the roadway. 

Excessive speed was directly related to 10,000 motor vehicle collisions on OPP-patrolled roads last year alone.  In 2018, OPP laid a total of 5770 street racing charges.   According to the OPP, there have been more than 750 stunt driving charges laid in the Greater Toronto Area this year.

York Regional Police Insp. Ed Villamere stated:

Our mission is to change aggressive driving behaviour through education, awareness and strict enforcement of both the Highway Traffic Act and the Criminal Code of Canada. … If you are hooked on street racing, rest assured you will be hooked up in handcuffs, your car will be hooked up and impounded, and your driver’s licence will be suspended.

WHAT IS STREET RACING AND STUNT DRIVING?

Street racing is illegal and is defined under the Ontario Highway Traffic Act (section 172(1)):

No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.

A regulation entitled “Races, Contests and Stunts” found in the Highway Traffic Act provides a list of behaviours that can encompass “stunt driving”.  Such behaviours that violate the law may include:

  • Exceeding the speed limit by 50 km/h or more;
  • Causing a vehicle to spin or circle;
  • Causing one or more wheels of a vehicle to leave the ground;
  • Driving without due care or attention;
  • Preventing another vehicle from passing;
  • Two or more vehicles driving side-by-side where at least one of the vehicles occupies a lane intended for oncoming traffic;
  • High speeds decreasing a driver’s ability to react to pedestrians and other motorists;
  • Loss of control of a vehicle because of speed or unsafe maneuvers;
  • Rollover hazards.

Unlike a typical speeding ticket, if you are charged with street racing or stunt driving, you will be subject to a 7 day administrative driving suspension, a 7 day vehicle impound and impound fees. 

If you are convicted of these offences, pursuant to section 172(2) of the Highway Traffic Act, there are even more severe penalties, which may include:

  • A fine ranging from $2,000 to $10,000; and/or
  • Imprisonment for a term of not more than six months; and
  • A driving suspension, which can last up to 10 years in some cases.

The consequences of street racing and stunt driving become even more serious if charges of careless driving or careless driving causing bodily harm or death are involved. 

If a driver is convicted of careless driving, he/she will face a fine of up to $2,000, six demerit points, and/or a jail term of six months, and a licence suspension of up to two years.

If a driver is convicted of careless driving causing bodily harm or death, he/she will face a fine of no less than $2,000 to the maximum of $50,000, six demerit points, and/or imprisonment up to two years, and a licence suspension of up to five years.

STREET RACES AND SOCIAL MEDIA

Some drivers communicate and coordinate illegal activities, such as street racing, through social media. 

OPP Supt. Tony Cristilli advises:

They run so-called qualifying races in municipalities around the GTA and often hold final races on our 400 series highways patrolled by the OPP.  Take it to the race track where it belongs.

Police are encouraging the public to report any information regarding street racing activity or videos found on social media of street racing or dangerous driving behaviours in Ontario.

According to OPP Supt. Tony Cristilli:

There are different forms of communication these days and social media is definitely one platform that’s used to communicate these activities.  Obviously that reaches a broad spectrum of people that are out there that’s on social media who could easily advise the police.

If you are facing a street racing or stunt driving charge or any another driving offence, please call the experienced criminal lawyers at Affleck & Barrison LLP at 905-404-1947 or contact us online.  We offer a free consultation, and are available 24 hours a day, seven days a week.

Truck Driver in Brocos Bus Crash Sentenced to Prison

Written on Behalf of Affleck & Barrison LLP

Last week, Jaskirat Singh Sidhu (“Sidhu”) was sentenced to eight years in prison after pleading guilty in January to 16 counts of dangerous driving causing death and 13 counts of dangerous driving causing bodily harm.

Sidhu was the semi-truck driver involved in the Humboldt Broncos bus crash in rural Saskatchewan on April 6, 2018.

WHAT HAPPENED?

The accident occurred when Sidhu drove through a stop sign and collided with a bus carrying the Humboldt Broncos junior hockey team that was heading to a playoff game. Sidhu was traveling between 86 and 96 km/h. He passed four signs warning him about the upcoming intersection that had an oversized stop sign with a flashing light.

A forensic collision report found that Sidhu did not brake at the intersection of Highway 335 and 35 before colliding with the bus. The report also indicated that Sidhu’s view of the intersection was not impeded by any environmental factors, such as trees or sunlight.

At the conclusion of the four day sentencing hearing, Sidhu apologized to his victims and took full responsibility for the crash. He stated that the accident occurred due to his inexperience as a truck driver.

More than 90 victim impact statements were presented to the court by friends and families of the victims and hours of arguments were made by lawyers. The victim statements were emotional with some families stating that they were able to forgive Sidhu, while others admitted that they would never be able to forgive him for his role in the accident.

Sidhu’s lawyer explained that he had been hired by a small Calgary trucking company three weeks prior to the accident. He spent two weeks with another trucker and then began driving on his own. Sidhu was apparently distracted by a tarp flapping on the trailer of the truck which resulted in his missing the four warning signs regarding the upcoming intersection. His lawyer advised the court that sentencing in cases of dangerous driving ranged from 18 months to 4 ½ years.

The Crown prosecutor argued that Sidhu had enough time to slow down and stop and described Sidhu’s driving as entering the intersection “like a rocket”.  He argued that Sidhu should receive a 10-year prison sentence, followed by a 10-year driving ban.

THE SENTENCE

Judge Inez Cardinal provided her sentencing decision in a makeshift courthouse at the Kerry Vickar Centre. The victim’s family and friends wore Broncos jerseys with the last names of their loved ones on the back.  Judge Cardinal began handing down her sentencing decision by reading the names of each of the victims aloud. She described the victims as:

…gifted athletes, community leaders, and team builders with hopes and dreams for the future…Some were dreaming of having a family, while others were already raising their families.

 Judge Cardinal recognized that there has been no similar case in Saskatchewan or Canada given the number of fatalities and injuries. She acknowledged that Sidhu’s remorse and guilty plea spared the victims’ families a lengthy trial and saved him from a maximum sentence of 14 years.

Judge Cardinal stated:

It is baffling, and incomprehensible, that a professional driver, even one with little experience, could miss so many markers over such a long distance. His inattention displays risky behaviour given he saw the signs but they did not register because he continued to focus on the trailers behind him.

Sidhu was sentenced to eight years for each count of causing death, and five years for each count of dangerous driving causing bodily harm. The sentences are to be served concurrently as they all arise from the same circumstances, which means the sentences will be served simultaneously.  Sidhu was also given a 10-year driving ban, a firearms prohibition, and is required to provide bodily samples for the purpose of DNA analysis.

WHAT COMES NEXT?

Sidhu grew up in India and came to Canada in 2013. He is a permanent resident, not a Canadian citizen. As a result of his conviction and sentence, Sidhu will face deportation to India.

Under Canada’s federal law, permanent residents cannot remain in Canada if they commit a crime for which the maximum sentence is at least 10 years or their jail sentence is more than six months.

As a result of this accident, the Saskatchewan government has undertaken to make changes to the intersection where the crash occurred, promising to add rumble strips and better signage.  The government has also promised to put millions of dollars into improvements at other intersections.

Although there is mandatory training for semi-truck drivers in Ontario, training for semi-truck drivers in Saskatchewan only became mandatory last week. Training for drivers across the rest of the country will also become mandatory in 2020.

If you are facing a dangerous driving charge or need to speak with an experienced criminal defence lawyer about criminal charges laid against you or your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week. We are available when you need us most.