impaired driving

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.

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.

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.

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.

Fatal Accidents Increase Significantly after 4/20 Celebrations

Written on Behalf of Affleck & Barrison LLP

April 20 has become an international holiday where people gather to celebrate and consume cannabis. These mass marijuana festivities usually begin at 4:20 p.m. and continue well into the night.

A recent study has revealed that there was a slight increase in fatal U.S. car accidents on April 20 following an analysis of 25 years worth of data. Studies such as this one provide important information to the Federal and Provincial governments in deterring marijuana impaired driving in anticipation of the legalization of marijuana this summer in Canada.

WHAT DID THE STUDY ESTABLISH REGARDING THE USE OF MARIJUANA AND DRIVING ON APRIL 20?

Researchers from the University of British Columbia and the University of Toronto compared driver deaths on April 20 with deaths occurring on a day of the week before and the week after during the 25 year study of U.S. data. The study confirmed that fatal car crashes were increased by 12% (142 driver deaths) on the evening of April 20. The study also found that the risk of fatal accidents among young drivers (under the age of 21) increased by 38% in the evening of April 20.

Dr. John Staples, lead author and an internist and researcher at the University of British Columbia in Vancouver, stated,

The simplest explanation is that some drivers are impaired by cannabis use, and these drivers are contributing to fatal crashes. There should be very clear messaging to the public: don’t drive high.

Although the study lacks evidence on whether marijuana was involved in any of the April 20th fatalities (as there was no police data on drug testing to confirm that marijuana was involved), researchers believe that the drug was responsible for some of the crashes.

DOES MARIJUANA USE AFFECT DRIVING?

Although marijuana has the reputation of being a relatively harmless drug, it can have short-term affects on reaction time, motor co-ordination, divided attention, short-term memory and decision-making skills.

Marijuana affects each individual differently based upon factors such as the person’s tolerance, and the strain and potency of the marijuana being used. Some who use marijuana experience a sense of relaxation, while others may experience panic, fear, anxiety or psychosis.

Following alcohol, cannabis is the substance most commonly associated with “driving under the influence”.

In Colorado (one of the first states to legalize marijuana in the U.S.), the number of deaths caused by auto-related accidents involving marijuana increased by 145% from 2013 to 2016. By 2016, 20% of all fatal motor vehicle accidents involved marijuana (in comparison to 10% in 2013).

ONTARIO’S PLAN TO KEEP OUR ROADS SAFE FOLLOWING LEGALIZATION

As we have previously blogged about, Ontario has implemented new measures to keep our roads safe by implementing tougher drug-impaired driving laws.

Ontario has enacted zero tolerance rules prohibiting young (age 21 and under) and novice (G1, G2, M1, M2) drivers from having the presence of a drug in their system. For a first offence, young and novice drivers will face a three-day suspension and a $250 fine. A second offence will result in a seven-day suspension and a $350 fine and all subsequent transgressions will result in a thirty-day suspension and a $450 fine.

Commercial drivers will also be subject to zero tolerance rules prohibiting them from having any alcohol and drugs in their system. For any offence, a commercial driver will face a three-day suspension and a $250 to $450 fine.

Ontario has also introduced escalating monetary penalties to all impaired driving offences starting at $250 for a first offence and increasing up to $450 for third and subsequent occurrences.

RECOMMENDATIONS

As we prepare for the legalization of recreational cannabis in Canada this summer, we should consider ways to avoid driving while impaired and being a passenger with an impaired driver.

We should all be reminded to:

  • Always have a designated driver; or
  • Call a friend or loved one to pick you up; or
  • Call a cab or a ridesharing service; or
  • Stay overnight and sleep it off.

It is also strongly recommended that we have an open dialogue with our children and reinforce the dangers of driving while impaired by alcohol or drugs. It is also recommended that parents model safe driving behaviour by never driving any vehicle while impaired.

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.