Impaired Driving

Man Sentenced to 6 Years in Prison for Impaired Operation of Canoe

Written on Behalf of Affleck & Barrison LLP

Last summer, David Sillars (“Sillars”), became the first Canadian to be convicted of impaired driving charges while paddling a canoe.  He was recently sentenced to six years in prison for the April 2017 death of an eight-year-old boy.

We have previously blogged about a landmark ruling by an Ontario judge who decided that a canoe is a “vessel” for the purposes of the definition of vessel found in the Criminal Code of Canada, which includes the criminal charges of impaired operation of a vessel causing death, operation of a vessel over 80, and the dangerous operation of a vessel.

WHAT HAPPENED?

On April 7, 2017, Sillars took his girlfriend’s son, Thomas Rancourt (“Rancourt”), for a canoe ride down the Muskoka River to teach him how to paddle a canoe.  Sillars was intending to paddle in the direction of and to retrieve a blue barrel, which appeared to be wedged against a barrier by debris.  The canoe capsized and Rancourt was swept downriver and went over a waterfall at High Falls, and then drowned.  Sillars, on the other hand, swam safely to the shore.

In his lengthy decision, Justice Peter C. West set out the following key findings of fact based upon the evidence presented in court:

  • Temperatures were between 3 and 4 degrees Celsius on April 7, 2017;
  • School buses were cancelled due to slush and ice, resulting in poor road conditions on April 7, 2017;
  • The majority of the ice on the river had melted, although small chunks were visible, resulting in a reasonable inference that the river water was extremely cold;
  • The water levels of the river were very high on April 7, 2017;
  • The current in the river was fast-flowing and extremely strong;
  • The yellow barrier is a warning to caution boaters of the danger created by the water flowing towards the High Falls;
  • Sillars was cautioned by two experienced individuals who warned him of the dangerous water conditions;
  • Sillars did not agree to take or wear an adult sized lifejacket;
  • The PDF worn by Rancourt was too small for him, especially given that he was wearing three layers of clothing beneath it, including his winter jacket;
  • Sillars had consumed alcohol and THC prior to operating the canoe on April 7, 2017;
  • Sillars intention was to paddle to the yellow barrier to retrieve a blue barrel, which was clearly wedged in debris and partially submerged; and
  • Rancourt looked up to Sillars as a father figure, and this relationship created a duty of care for Sillars towards Rancourt.

Based upon the evidence, the court ruled that:

David Sillars’ decision to canoe towards the yellow warning barrier, during the spring run-off with the described dangers and risks…, with the sole purpose to retrieve a blue barrel, partially submerged and wedged against the yellow warning barrier by other debris, was a significant contributing cause of Thomas Rancourt’s death.  …[B]ut for the decision of Mr. Sillars to go to the yellow barrier, Thomas Rancourt would not have fallen out of the canoe and wound not have gone over the waterfalls and drowned. 

With respect to the issue of impaired paddling, the court considered whether Sillars’ drinking impaired his ability to operate a canoe (Sillars’ minimum blood-alcohol content was 128 milligrams of alcohol in 100 mililitres of blood and he had 14 nanograms of THC in his blood).  The court concluded that Sillars’ intellectual abilities, specifically his reaction time, decision making abilities and his ability to respond to an emergency situation, were impaired by his consumption of alcohol.

The fact that Sillars ignored warnings by two individuals as to the potential danger of canoeing in the conditions on the river, refused to wear an adult lifejacket and failed to bring the required safety equipment in the canoe demonstrated to the court that he overestimated his canoeing abilities and underestimated the level of risk he was enduring, which further demonstrated how the alcohol and marijuana impaired his decision making abilities.

THE SENTENCING

Justice West found Sillars guilty of all four charges he was facing and was sentenced in October, 2019.  The Crown asked the court for a jail sentence of six to eight years and an order prohibiting Sillars from operating a vessel for 20 years.  Sillars’ defence team asked the court for a two-year jail term.

Justice West described numerous aggravating factors that he considered when deciding on the terms of Sillars’ sentence.  The fact that Sillars was in a position of trust and authority in relation to Rancourt was one such factors, as well as his previous criminal record. 

In his reasons, Justice West commented on how this is a “unique” case as there are no precedent cases of criminal negligence causing death or impaired operation causing death in the case of a capsized canoe.  However, Justice West used precedent cases of those who have been found guilty of operating a motor vehicle while impaired and sentenced Sillars to six years in prison, an order requiring that samples of bodily substances be taken for the purposes of forensic DNA analysis  and an order prohibiting Sillars from operating a vessel for 10 years.

Justice West stated:

In my view general deterrence and denunciation are particularly important in cases where alcohol or drugs have impacted an offender’s ability, as in this case, to operate a vessel and the factor that a motor vehicle was not … involved makes no difference.

Sillars has already filed an appeal and has been released on $1,500 bail pending his appeal.  He must remain at home under house arrest and abstain from drinking alcohol. 

We will continue to follow any developments that may arise in this case and will report any updates in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, please contact Affleck Barrison LLP online or at 905-404-1947.  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.

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.

Harsher Drinking and Driving Laws In Effect Next Week

Written on Behalf of Affleck & Barrison LLP

In Canada, impaired driving is the leading criminal cause of death and injury. Police report that in 2016, there were more than 70,000 impaired driving incidents, including almost 3,000 drug-impaired driving incidents.

On December 18, 2018, Part 2 of Canada’s new impaired driving legislation will come into force. These reforms to the impaired driving provisions of the Criminal Code include mandatory alcohol screening, facilitating the proof of blood alcohol concentration, eliminating and limiting defenses that reward risk-taking behaviour, and clarifying Crown disclosure obligations.

MANDATORY ALCOHOL SCREENING

The new reforms will implement mandatory alcohol screening in Canada. According to Canada’s Department of Justice website, research shows that up to 50% of drivers with a blood alcohol concentration above the legal limit are not detected at roadside check stops. Furthermore, other jurisdictions have found a significant decrease in fatal road accidents where mandatory alcohol screening was enacted.

With these changes, police officers will have an approved screening device on hand to test a breath sample of any driver they lawfully stop, even without reasonable suspicion that the driver has alcohol in their body. Under the current law, police officers must have reasonable suspicion that a driver has alcohol in their body before doing any roadside testing. Drivers who refuse to provide a breath sample could be subject to a criminal offence.

The Honourable Bill Blair, Minister of Border Security and Organized Crime Reduction, stated:

Giving law enforcement the ability to demand a breath sample from anyone following a lawful stop will make it easier to detect impaired drivers and get these drivers off of our roads. Those who get behind the wheel after using alcohol, or a combination of alcohol and drugs, will face serious legal consequences. Do your part in keeping yourself and loved ones safe and don’t mix alcohol or drugs with driving.

PENALTIES FOR IMPAIRED DRIVERS

Starting December 18, 2018, although mandatory minimum terms of imprisonment have not changed, there will be new mandatory minimum penalties including fines, and some higher maximum fines.

The new legislation for first time offenders with high blood alcohol concentrations that have not caused bodily harm or death is as follows:

  • With blood alcohol concentration (“BAC”) of 80 to 119 mg of alcohol per 100 mL of blood, first time offenders are subject to a mandatory fine of $1,000;
  • With BAC of 120 to 159 mg of alcohol per 100 mL of blood, first time offenders are subject to a mandatory fine of $1,500;
  • With BAC of 160 mg or over of alcohol per 100 mL of blood, first time offenders are subject to a mandatory fine of $2,000; and
  • A first time offender who refuses to comply with a lawful demand for a breath sample is subject to a $2,000 minimum fine.

For alcohol-impaired driving that does not cause bodily harm or death, the new mandatory minimum penalties for a second offence include a mandatory minimum 30 days imprisonment, and for third and subsequent offences a mandatory minimum penalty of 120 days imprisonment.

Drivers will also face the maximum penalty of life imprisonment for those convicted of dangerous driving causing death, which is a stiffer penalty than the current laws of a maximum of 14 years in jail.

DURHAM REGIONAL POLICE RELEASE NAMES OF ACCUSED IMPAIRED DRIVERS

Beginning November 15, 2018, Durham Regional Police launched their Festive R.I.D.E. program. Police officers have been conducting R.I.D.E. checks in Ajax, Pickering, Whitby, Oshawa, and Clarington.

Since commencing this campaign, Durham Police have been releasing the names of those charged with impaired driving every Monday under “Hot Topics” on their website. Those drivers that have been charged are identified by their name, age, gender, city, and the specific charges laid against them.

Earlier this month, York Regional Police also reported that they have adopted a “name-and-shame” campaign to keep impaired drivers off of the roads. York Regional Police will now release the names of those charged with impaired driving every Monday for the foreseeable future.

Durham Regional Police reported that its fourth week of the Festive R.I.D.E. program has led to 20 drivers being charged with drinking and driving offences after stopping more than 4,100 vehicles. In total, Durham Police has charged 63 drivers with drinking and driving offences during the four weeks of the R.I.D.E. program (down from 72 drivers charged at the same time last year). They also report that 51 motorists registered a WARN on a roadside screening device and had their driver’s licence suspended for 3 days.

If you have been charged with a driving offence of any kind or have any questions regarding your legal rights, please contact the experienced and 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.

Convicted Drunk Driver Marco Muzzo Could Receive Parole Next Month

Written on Behalf of Affleck & Barrison LLP

Marco Muzzo (“Muzzo”), an Ontario man convicted of impaired driving in a 2015 accident that killed three children and their grandfather, is scheduled to appear for a parole hearing on November 7, 2018.

Muzzo is seeking day parole and is eligible to apply for full parole in May 2019 and statutory release on June 18, 2022.

The children’s parents, Jennifer Neville-Lake and Ed Lake, plan to attend the parole hearing at the Beaver Creek Institution in Gravenhurst.

WHAT HAPPENED?

On September 27, 2015, Muzzo had returned home on a private jet from his bachelor party in Miami and picked up his Jeep SUV from the airport parking lot. He was speeding when he drove through a stop sign and plowed into the driver’s side of a minivan transporting the Neville-Lake family.

Muzzo was driving at least 120 km/h on a 60 km/h road at the time of the accident. Muzzo’s blood-alcohol content ranged from 0.19 to 0.25 per cent at the time of the crash, which is more than twice the legal limit in Ontario. Police officers at the scene reported that Muzzo smelled of alcohol, his eyes were glassy, he used the car to keep his balance, he was unable to understand instructions from the officers, and he urinated on himself.

Muzzo pleaded guilty to four counts of impaired driving causing death and two counts of impaired driving causing bodily harm for the crash that killed nine-year-old Daniel Neville-Lake, his five-year-old brother Harrison, his two-year-old sister Milly, and the children’s 65-year-old Grandfather, Gary Neville.

Neriza Neville, the children’s grandmother, and Josefina Frias, the children’s great-grandmother, were also injured in the accident, but survived the crash.

Ontario Superior Court Justice Michelle Fuerst sentenced Muzzo to 10-years in prison and banned him from driving for 12 years after he gets out of prison. This was the harshest sentence in Canadian history for an impaired driver without a prior record.

Justice Fuerst intended for her sentence to send a message to deter others from committing the same crime. She considered the aggravating factors of Muzzo choosing to drive drunk and that his prior speeding convictions reflected an “irresponsible attitude toward the privilege of driving”.

WHAT IS PAROLE?

According to the Corrections and Conditional Release Act, all offenders must be considered for some form of conditional release during their sentence. However, although an offender may be eligible for release does not mean that the release will be granted. The Parole Board of Canada must assess an offender’s risk to determine if a conditional release is warranted.

Parole is a conditional release from jail for offenders to serve the remainder of their sentence outside of the confines of the institution. The goal of parole programs is to provide a gradual, controlled, and supervised path between jail and freedom.

Day parole permits offenders to participate in community-based activities in preparation for full parole or statutory release. Day parole requires the offender to return each night to a community-based residence, otherwise known as a halfway house.

The Parole Board does not automatically grant parole, each individual case must be reviewed to determine suitability for release. The Parole Board will consider the following factors in determining whether an offender should be granted parole:

  • The offender’s criminal record;
  • The seriousness and nature of the offence;
  • The offender’s behaviour while in prison;
  • The offender’s release plan; and
  • The remorse he/she has expressed for the crime, and in Muzzo’s case, his guilty plea.

Victims are also allowed to provide written victim information to the Parole Board detailing any continuing impact the crime has on their life and any concerns they have for their own safety or the safety of their family.

The Parole Board can impose conditions to the day parole release in order to lessen the risk of re-offending, such as ordering abstinence or counselling. Offenders must also obey the law and report regularly to a parole officer.

Jennifer Neville-Lake, the mother of the three children killed in this devastating accident, has posted a plea on Facebook asking supporters to write to the Parole Board of Canada to oppose Muzzo’s conditional release. She has also posted a petition on Facebook requesting that Muzzo remain in prison for the remainder of his ten year sentence. She is attempting to make an example of Muzzo in an effort to prevent future drinking and driving accidents.  Over 9,100 people have signed the petition to date, with a goal of 10,000 signatures.

We will continue to follow the Muzzo case and will report any developments on this blog.

In the meantime, if you or a loved one have been charged with an impaired driving offence or any other driving offence or have any questions regarding your legal rights, please contact the experienced and knowledgeable criminal 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.

Legal Challenges Expected for Drug-Impaired Driving Charges

Written on Behalf of Affleck & Barrison LLP

Now that cannabis has become legal in Canada, there are still many questions that remain unanswered. Impaired driving is one of those murky subjects.

Impaired driving is the leading criminal cause of death and injury in Canada. Drivers that are killed in car accidents that test positive for drugs (40%) now exceed the number of those who test positive for alcohol (33%).

Cannabis can impair everyone differently depending on the method of consumption (smoked, inhaled, ingested), quantity of cannabis consumed, and the variety of cannabis and its THC levels. Therefore, there is no direction as to how much cannabis can be consumed before you are considered an “impaired” driver or how long a driver should wait to drive after consuming cannabis. The Government of Canada is therefore recommending that you should not drive high.

Justice Minister Jody Wilson-Raybould recommends:

For the sake of safety on the roads, we recommend people not get behind the wheels of their car if they’ve consumed any alcohol or drugs.

TRAINED OFFICERS

The Government of Canada reports that they have trained police officers, also known as Drug Recognition Experts, to determine if you are under the influence of drugs while driving.

Durham Police Services has trained 130 officers in standardized field sobriety testing, and an additional 6 officers are trained in drug impairment recognition.

According to the Government of Canada’s website, there are over 13,000 trained Standardized Field Sobriety Test officers across Canada and 833 certified Drug Recognition Experts. As the federal, provincial, and territorial governments continue to invest money into training, these numbers will continue to increase.

THE OFFENCE OF IMPAIRED DRIVING

New impaired driving offences came into force at the end of June setting limits on how much THC (the primary psychoactive element in marijuana) a person can legally have in their system while driving before facing penalties.

According to the new rules, police can lay a summary conviction charge against a person driving with between two and five nanograms of THC per milliliter of blood (subject to a maximum fine of $1,000). Charges may be laid either as a summary or indictable offence for those who have more than five nanograms of THC per milliliter of blood. The latter is a more serious crime with fines and jail time as penalties.

DETECTING DRUG-IMPAIRED DRIVING

Drivers who are suspected of driving high will be asked to take a field sobriety test, this includes an assessment of how the individual’s eyes react to light and movement, and their ability to perform a series of activities designed to gauge their physical co-ordination.

If an officer forms grounds to believe a driver is impaired, they may place the driver under arrest and demand a more extensive examination by a drug recognition officer. This test is conducted at a police station and relies upon physiological evidence, such as blood pressure, pulse rate, and the examination of muscle tone and eye reactions. This examination will also involve the extraction of bodily fluids, in most cases urine, which will be sent to the Centre of Forensic Sciences for analysis.

It is a criminal offence to refuse to submit to the drug recognition officer examination, similar to the refusal to submit to a breathalyzer test during a drunk driving investigation.

ROADSIDE DRUG-SCREENING EQUIPMENT

Durham Police are anticipating that they will be equipped with devices to test saliva samples for the presence of drugs, but they are not currently available.

The Ontario Provincial Police force has confirmed that it will be purchasing federally approved roadside drug-screening equipment to identify impaired drivers. However, it is uncertain at this time how many of these devices will be purchased or when they will become available.

The device is known as the Drager DrugTest 5000, which has the ability to test saliva for cocaine and THC (the main psychoactive agent in cannabis). Canada’s Department of Justice approved this device this past August.

If a driver is suspected of being high, an officer would ask the driver to provide a saliva sample, using a cassette. The cassette is then inserted into the analyzer to be tested. Within approximately four minutes, the results of the test will determine whether the driver is over the nanogram limit (positive or negative). If so, the driver will then proceed to the police station for a blood test.

LEGAL CHALLENGES AHEAD

Government officials have acknowledged that although they are prepared for cannabis legalization, it is expected that the courts will set clearer interpretations of the new impaired driving laws as charges are laid and cases move through the criminal legal system.

It is particularly complicated to measure the concentration of THC in someone’s blood and determine when it came from. Thus, the problem arises when determining how the police can prove that the amount of THC in the blood was impairing the driver or whether the THC was lingering in the driver’s blood from consumption days earlier as THC can be detected several days after someone has smoked.

Justice Minister Jody Wilson-Raybould has said that officers will have to make a decision on a “case-by-case” basis when determining whether a driver will face a charge for drug impaired driving.

Many are concerned that there is no conclusive way to determine that someone is driving high. The roadside saliva drug tests approved by the government have also been criticized for being an unreliable testing method. Furthermore, some criminal defence lawyers have suggested that these tests could face challenges under Canada’s Charter of Rights and Freedoms.

We will continue to provide updates and developments following the legalization of marijuana in Canada in this blog as they become available.

If you have been charged with an impaired driving or any other driving offence, or have any questions regarding your legal rights, please contact the experienced criminal 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.

Plans to Appeal to the Supreme Court as Seizure of Blood by Police in Dispute

Written on Behalf of Affleck & Barrison LLP

On July 25, 2018, the Ontario Court of Appeal upheld Christie Ann Culotta’s (“Culotta”) convictions on two counts of operating a vessel causing bodily harm while having a blood-alcohol content over the legal limit. This was a split decision, with a two-judge majority and Justice Gladys Pardu dissenting.

It has been reported that Culotta intends to take her case to the Supreme Court of Canada to determine the legality of taking extra blood samples from a suspected impaired boater in a hospital for use by the police.

WHAT HAPPENED?

On August 1, 2013 at approximately 2am, Culotta was driving a boat back to her family cottage from a party at a yacht club on Muskoka Lake. It was raining heavily and visibility was poor. There were four other young women on board.

Culotta was driving the boat at a “relatively high speed, fast enough that the hull planed above the water”. She then crashed into a rocky island, leaving a white V-shaped mark on the rocks above the waterline.

Three of the passengers were ejected from the boat, one landing on the island and two in the water. All three passenger were injured, fortunately there were no fatalities.

Culotta was not seriously injured and spoke with the investigating officer after the boaters were rescued. Ambulances rushed the two seriously injured victims to the hospital, while Culotta and two others with minor injuries were treated by ambulance.

An Ontario Provincial Police officer smelled alcohol in the ambulance and asked Culotta if she had been drinking. She admitted that she had a vodka and tonic and one or two additional drinks at dinner. The officer observed Culotta’s watery eyes and a slight slurring in her speech, but he was unsure whether this was from intoxication, crying, rain, or facial injuries.

Culotta was arrested a little more than an hour after the accident, but the officer did not immediately caution her about her right to silence in order to avoid interference with her medical care. She was cautioned half an hour later at the hospital. The officer tried to contact Culotta’s father in order for her to retain a lawyer, but to no avail.

In hospital, doctors took blood tests for medical purposes, including to test her blood alcohol. At trial, it became apparent that the officer told the lab technician that he wanted to seal some of the blood for investigative purposes. The technician drew more blood than was medically required, without Culotta’s consent. Two of the six vials of blood were sealed by the OPP officer and placed on a shelf in the laboratory refrigerator that was marked “for police use”. The blood was tested for alcohol content after a warrant was granted.

Blood tests revealed 107 mg of alcohol in 100 mL of blood, which is over the legal limit of 80.

The trial judge excluded the blood sample evidence, but admitted Culotta’s hospital records, which showed a blood alcohol level over the legal limit. The trial judge also found that Culotta’s statements to the police were found to be voluntary.

Culotta was convicted in a judge alone trial.

ONTARIO COURT OF APPEAL

At the Court of Appeal, Culotta contested the trial judge’s rulings with respect to the admissibility of evidence that she maintains were obtained in violation of her rights under the Canadian Charter of Rights and Freedoms (“Charter”).

The two judge majority agreed with the trial judge in finding that Culotta’s statements to the police were voluntary and that her hospital records were properly obtained with a search warrant.  Justice V.B. Nordheimer, writing on behalf of the majority, wrote:

Whether the lab technician did or did not take other blood samples for the police, some blood would have been taken from the appellant, and it would have been tested for blood-alcohol concentration regardless. Consequently, the Charter infringement regarding the two vials of blood is independent of the other blood samples taken. The exclusion of one does not undermine the admissibility and evidentiary value of the other.

JUSTICE PARDU’S DISSENTING OPINION

Justice Pardu, in her dissenting opinion at the Court of Appeal, was of the opinion that the Charter breaches were serious grounds to quash the convictions and order a new trial.

Justice Pardu found that Culotta’s hospital records, which included an analysis of her blood, should be excluded. She was especially concerned that the hospital had a tray in its refrigerator specifically reserved for police blood samples and a special form for when blood is taken at the request of police.

Justice Pardu, in her dissenting opinion, wrote:

Co-opting extra blood samples was a serious breach by police. There are statutory regimes prescribed for the taking of breath or blood samples where impaired driving offences are suspected. These regimes must be well known to police. For police to sidestep these procedures by inserting themselves into an accused person’s medical care is a grave misstep.

Calutta’s lawyers have disclosed their intention to appeal this decision to the Supreme Court of Canada. Given that the Court of Appeal was a split decision, Calutta can automatically appeal the decision without seeking leave from the Court.

We will continue to follow any developments in this case as it proceeds to the Supreme Court of Canada in this blog. In the meantime, if you have been charged with an impaired 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 take all steps necessary to protect your best interests. We maintain a 24-hour emergency service line and offer free confidential consultation to all prospective clients.

 

 

Canada Has Approved Roadside Saliva Tests

Written on Behalf of Affleck & Barrison LLP

Canada’s Attorney General Jody Wilson-Raybould has approved roadside swab tests as a new approach to attack drug use and driving. This will be the first test of its kind in Canada. Police officers will instantly be able to check saliva for traces of THS (the psychoactive component in marijuana).

Currently, there is no accurate way for police officers to assess if an individual is driving under the influence while using cannabis products. Police officers use sobriety tests to check impairments of drivers they suspect are high. In the very near future, Canadian police will have a new tool to use to accurately confirm intoxication – the cannabis roadside saliva drug test.

The roadside saliva test is part of Canada’s revamp to its impaired driving laws. This test is part of Bill C-46, legislation that we have previously blogged about, which will come into force on October 17, 2018.

Wilson-Raybould approved the saliva test device after an independent panel of traffic safety experts and toxicologists evaluated and critiqued the test’s effectiveness.

HOW DOES THE SALIVA TEST WORK?

The saliva testing device will be able to immediately detect traces of cocaine and THC use within the last six hours. Police officers will use a small and portable machine to swab a driver’s mouth and receive results in real time. This testing device will provide a more accurate and reliable upgrade to the current field sobriety tests used by police officers (i.e. walking a straight line or standing on one foot).  A failed test gives police reasonable grounds to bring a driver in for further testing, including a blood test or an examination by a drug recognition expert.

It has been reported that the government will be investing $81 million over a five-year period to buy screening devices and provide officers with comprehensive training on drug-impaired driving.

The federal government is considering using the Draeger DrugTest 5000. This is a German-made mobile drug screening system that uses oral fluid to detect seven types of commonly used drugs. This device has already been approved for use in the United Kingdom and Germany.

This particular device may require modifications in order to operate in Canada’s tough winter climate. Early tests of this device in Northwest Territories and Saskatchewan found that “there were some temperature-related issues that arose when the devices were used in extremely cold temperatures”.

LEGAL CHALLENGES TO ROADSIDE SALIVA DRUG TEST RESULTS

Although the Canadian government is confident in the validity of the roadside saliva tests, the results of these tests will likely face multiple legal challenges from defence lawyers.

Bill C-46 allows the police to charge a driver with drug-impaired driving based solely on the presence of THC. There is no requirement for officers to prove actual impairment. However, unlike alcohol, the presence of THC does not always indicate intoxication.

We can expect that in the future many court cases will shed light on how individual tolerance of THC affects a person’s motor skills and how long cannabis can stay in an individual’s body.

BILL C-46 DRUG-IMPAIRED DRIVING

At the present time, the federal government has released a draft of its planned drug concentration levels and associated offences.

Three new offences for drug-impaired driving have been created under the drafted legislation of Bill C-46:

  • Drivers who have a blood drug concentration of more than two nanograms of THC (per milliliter of blood) but less than five nanograms could be found guilty of impaired driving under the proposed summary offence, which has a maximum fine of $1,000;
  • Drivers who have a blood drug concentration of more than five nanograms of THC in their blood could be found guilty of impaired driving similar to an alcohol-impaired driving conviction, including mandatory minimum penalties of a $1,000 fine on a first offence, 30 days imprisonment on a second offence, and 120 days imprisonment on a third offence;
  • Drivers who have a mixture of a THC level above 2.5 nanograms of THC in their blood and a blood alcohol concentration above 50 mg per 100 mL would be subject to the same penalties as above.

In addition, each province has the right to implement their own drug-impaired driving rules.

TIPS TO AVOID IMPAIRED DRIVING

Here are a few simple tips to avoid driving while you are impaired by drugs and/or alcohol:

  • Always have a plan to get home safely (a designated driver, use public transportation, call a friend or family member, call a taxi or ride share, or stay overnight);
  • Ask your doctor about side effects that may occur when using prescription medication;
  • Read the information on the package of your prescription or over-the-counter medication;
  • Ask your doctor or pharmacist about how a prescription drug can affect you when using alcohol or drugs of any nature; and
  • Remember that fatigue and stress will also affect your ability to drive safely.

If you or a loved one have been charged with an impaired driving offence or any other driving offence or have any questions regarding your legal rights, please contact the experienced and knowledgeable criminal 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.

Big Changes Coming to Canada’s Impaired Driving Laws

Written on Behalf of Affleck & Barrison LLP

We are all aware that a significant piece of legislation, the Cannabis Act, has become law. This bill will come into force on October 17, 2018 and it will encompass all the rules regarding the control and regulation of how cannabis is grown, distributed and sold.

There is another piece of legislation, Bill C-46, related to the legalization of marijuana that also received royal assent last week. Bill C-46, also known as the Impaired Driving Act, is an overhaul of Canada’s impaired driving laws.

WHAT IS BILL C-46?

Bill C-46 will reform alcohol-impaired driving and drug-impaired driving and police have been given new tools to detect and prosecute drivers.

The bill is comprised of two parts. Part 1 creates three new offences for driving under the influence of various amounts of drugs and stipulates legal limits of such drugs.  This part also requires drivers not to drive within two hours of being over the legal limits and allows police to conduct tests to screen for drugs using “approved drug screening equipment”.

Part 2 of the bill raises the maximum penalty for impaired driving, reclassifies impaired-driving as a “serious criminality” offence and gives police the power to perform mandatory alcohol screening without reasonable grounds to suspect impairment.

The following are the four major changes to Canada’s impaired driving laws as set out in Bill C-46.

Random Roadside Breath Testing

The new legislation will allow police to request a roadside breath test from any driver. They will not need reasonable suspicion that the person has been drinking (i.e. smell of alcohol on a driver’s breath or slurred speech). Those who refuse the roadside breath test will face a criminal conviction with similar penalties to an impaired driving conviction.

Lawyers and civil liberties groups argue that this change in the law violates the Charter protection against unreasonable search. Furthermore, there is concern that this type of practice will disproportionately affect minorities due to racial profiling.

However, Justice Minister Jody Wilson-Raybould is certain that this directive will survive a court challenge. She referred to mandatory alcohol screening as “minimally intrusive, but the benefits in lives saved will be immeasurable”.

The government equated a mandatory breath sample to the requirement to show a driver’s licence.

Roadside Saliva Testing

The new law would allow police to use roadside screening devices that test saliva for the presence of drugs, including THC (the main psychoactive ingredient in cannabis). However, unlike alcohol breath tests, police will need to have a reasonable suspicion before requiring this test.

It is unclear when this type of testing will be used by the police as there are a number of steps that still need to take place. The government has yet to approve the devices to be used by the police. Justice Minister Wilson-Raybould will then have to make a ministerial order to approve the devices after a 30-day public consultation. Finally, the devices will need to be purchased and officers will need to be trained on how to use them.

THC Blood Levels

The new legislation will allow police to lay an impaired driving charge based solely on blood test results for THC in blood without needing to further prove impairment.

The government has proposed “per se levels” based on nanograms per millimeter of blood as follows:

  • A THC level between 2 and 5 ng would be a lower-level offence with a fine of up to $1,000;
  • A THC level above 5 ng would result in the same penalties as an alcohol-impaired driving conviction, including mandatory minimum penalties of a $1,000 fine on a first offence, 30 days imprisonment on a second offence and 120 days imprisonment on a third offence;
  • A mixture of a THC level above 2.5 ng and a blood alcohol concentration above 50 mg per 100 mL would have the same penalties as above.

10 Years Maximum Sentence for Impaired Driving

Under Bill C-46, impaired driving convictions will be considered “serious criminality” offences and the maximum sentence will be raised from 5 years to 10 years. This change in the law will greater affect those that could potentially lose permanent residence status and face deportation (i.e. foreign students, workers, visitors and permanent residents).

WHAT IS THE CURRENT STATUS OF BILL-46?

Part 1 of the Impaired Driving Act will roll out this summer; however, Part 2 of the bill will not come into force for another 180 days. In the meantime, as the bill comes into force we will report on any developments through this blog.

If you have been charged with a driving offence of any kind or have any questions regarding your legal rights, please contact the experienced and 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.

Woman Asleep in Her Vehicle Convicted of Impaired Driving

Written on Behalf of Affleck & Barrison LLP

An Ontario Court judge has convicted Erin Medakovic (“Medakovic”) of impaired driving when she was found asleep in a parked vehicle with the engine running and the driver’s door open.

Justice Vanessa Christie ruled that the Crown prosecutor had demonstrated “there was a realistic risk that Ms. Medakovic, who admittedly was impaired behind the wheel, may unintentionally set the vehicle in motion”.

WHAT HAPPENED?

On April 24, 2017, in the Town of Northeastern Manitoulin, the police were contacted by a man returning from working the night shift who noticed a car driver’s door open, the engine running and a woman in the driver’s seat. Officers attended at 1:50 a.m. and found a woman in a deep sleep in the reclined driver’s seat, with the door open and the engine running. The woman woke up after the officers tapped on the car window for 30 seconds. She sat up, had slow, slurred and laboured speech.

Inside the car, the officers found an LCBO bag with six empty cans and inside a purse they found Medakovic’s identification.

The officers administered a breath sample test which showed readings of 195 and 193, which were double the legal allowable level.

Medakovic told the officers she had eight beers and had been drinking since 2 p.m. She informed the officers that her last drink was at 11 p.m. and she had been asleep in her car for an hour. Medakovic told officers she thought it was ridiculous that she could not remain in her car and “sleep it off”.

At trial, Medakovic gave evidence that she had driven to Little Current from Sudbury on April 22 and was visiting friends. She parked in her male friend’s driveway, but her friend needed access to his driveway so he moved her car to the grass shoulder in front of his home. She told her male friend that she was trying to stay the night with a couple of friends and if that did not work out, she would sleep in her car. Medakovic gave evidence that her plans did not work out, so she decided to sleep in her car and turned the vehicle on to keep her warm. She could not comment on how or why the driver’s door was ajar.

Medakovic was charged with impaired driving and having more than the legal allowable level of alcohol in her system while driving.

CARE OR CONTROL OF A MOTOR VEHICLE

Medakovic was charged and convicted under Section 253 of the Criminal Code (“CC”), which reads as follows:

253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railways equipment, whether it is in motion or not,

 (a)  while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or drug; or

(b)  having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred mililitres of blood.

In her judgment, Justice Christie relied upon the Supreme Court of Canada decision of R. v. Boudreault, which outlined the essential elements of “care or control” as it applies to section 253(1) of the CC. The elements are as follows:

  • an intentional course of conduct associated with a motor vehicle;
  • by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;
  • in circumstances that create a realistic risk of danger to persons or property.

Justice Christie applied the facts of the case and found that Medakovic did not have an intention to drive that evening after she had consumed alcohol. She also found that the evidence at trial established that the stationary vehicle was positioned in a way that would not cause any safety concern and therefore not a realistic risk of danger. However, Justice Christie did find that the Crown had proven, based upon the evidence, that there was a realistic risk that Medakovic may unintentionally set the vehicle in motion.

Justice Christie found that Medakovic had care or control of a vehicle while impaired based upon the following facts that came out of the trial:

  • Medakovic was seated in the driver’s seat;
  • Medakovic locked the doors of the vehicle after she got in;
  • Medakovic became cold after she entered the vehicle and put the key in the ignition, turned the car on and put the heat on high;
  • Medakovic admitted she was impaired while in the driver’s seat and she was confused when she was awakened by the officers;
  • The officers testified that it took longer than usual to wake Medakovic up and she was initially disoriented and confused;
  • Medakovic’s feet were approximately one foot away from the car pedals;
  • Medakovic admitted she thrashes in her sleep and does not know what she is doing;
  • Medakovic admitted she is a deep sleeper and has slept walked in the past;
  • Medakovic admitted she has done things in her sleep that she is not aware of;
  • Medakovic admitted she could easily sit up and grip the steering wheel;
  • Medakovic had no explanation as to how the driver’s door became open and did not recall opening it; and
  • The vehicle was parked on a residential street, which could cause an immediate safety hazard.

Based on this evidence, Justice Christie found that the Crown had established that there was a realistic risk that Medakovic may unintentionally set the vehicle in motion while she was impaired and therefore Medakovic had the care and control of the vehicle contrary to section 253(1)(a) of the CC.

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 have a 24-hour phone service for your convenience.