Blood Alcohol Contraction over 80

‍OPERATION WHILE IMPAIRED - OVER 80 - S. 320.14 of the Criminal Code of Canada

Summary of the Offence

What is a charge pursuant to the Criminal Code?

Offences related to Operation While Impaired by Alcohol or Drug, Over 80 are found in Part VIII.1 of the Criminal Code under s. 320.14.

Specifically, s. 320.14(1)(a) states:

"Operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug."

And s. 320.14(1)(b) states:

"Subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood."

Note:

If impaired by drugs, different levels of impairment apply under s. 320.14(1)(c).

How Serious is the Offence?

Offences under s. 320.14(1) are hybrid offences. This means that depending on the facts and circumstances, the Crown may choose to proceed either by indictment or summarily.

A summary offence is generally less serious in terms of both the nature of the crime and the severity of the sentence. In contrast, an indictable offence typically involves more serious crimes and more severe sentences.

Elements of the Offence

To secure a conviction for Operation While Impaired, the Crown must prove, beyond a reasonable doubt, both the actus reus and mens rea of the offence.

In R. v. Boudreault, 2012 SCC 56, the Supreme Court restated the essential elements of "care or control" as comprising “an intentional course of conduct associated with a motor vehicle” in circumstances where there is a realistic risk of danger to persons or property.

The Guilty Act (Actus Reus)

The actus reus under s. 320.14(1)(a) and (b) incorporates the standard of impairment "to any degree." Proof is required of a reduced or compromised ability concerning physical or mental requirements for driving, including comprehension, coordination, vision, reaction, judgment, and regard for road rules (R. v. Stennett, at para 109).

In R. v. Stellato, the Court of Appeal held that no special test is required to determine impairment; the offence is made out if evidence shows "any degree of impairment, from slight to great."

The Guilty Mind (Mens Rea)

The mens rea of this offence has two components:

1. Voluntary consumption of alcohol or drugs.
2. The basic intent related to the operation or care/control of a motor vehicle (R. v. King).

It is not the mere consumption of alcohol/drugs that is punishable but the excessive consumption leading to impairment while operating a vehicle (R. v. Mavin; R. v. Aranovsky). Additionally, the mens rea does not require that the accused know their blood alcohol level exceeded the permissible limit (R. v. MacCannell). Voluntarily consuming alcohol or drugs while aware of the potential impairment constitutes recklessness (R. v. Pomeroy).

Possible Defences

1. Necessity
   The defence of necessity can apply in emergency situations where normal instincts of self-preservation or altruism compel disobedience (R. v. Perka). To succeed, the accused must prove the act was unavoidable and that no reasonable legal alternatives existed (R. v. Latimer).
2. Involuntary Intoxication
   There is a rebuttable presumption that impairment was voluntarily induced. This presumption can be rebutted by showing that the accused was impaired through no fault of their own (R. v. King; R. v. Aranovsky).
3. Prescription Drugs
   Where prescription drugs cause impairment, the court examines factors such as the drug's nature, quantity, and effect, and the accused’s knowledge of these effects.

Possible Punishment If Convicted

• If proceeded summarily:
  Maximum penalty: 5 years imprisonment.
  Mandatory minimums:
  • First offence: $1,000 fine or 30 days imprisonment
  • With one or more prior offences: 120 days imprisonment
• If proceeded by indictment:
  Maximum penalty: 10 years imprisonment
  Mandatory minimums:
  • First offence: $1,000 fine or 30 days imprisonment
  • With one or more prior offences: 120 days imprisonment

Cases Involving Bodily Harm or Death

Impaired driving that causes bodily harm or death is covered under s. 320.2 and s. 320.21. These are indictable offences, with the following maximum penalties:

• Bodily Harm: Up to 14 years imprisonment.
• Death: Life imprisonment.

Mandatory minimums:

• First offence: $1,000 fine.
• Second offence: 30 days imprisonment.
• Each subsequent offence: 120 days imprisonment.