Impaired Driving (DUI)
DUI
Summary of the Offence
What is a charge pursuant to the Criminal Code?
Offences relating to Operation While Impaired by Alcohol or Drug, including Over 80, are found in Part VIII.1 of the Criminal Code, under s. 320.14.
- s. 320.14(1)(a) reads:
"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." - s. 320.14(1)(b) reads:
"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."
Please Note:
If impaired by drugs, different levels of impairment apply pursuant to s. 320.14(1)(c).
How Serious is the Offence?
Offences under s. 320.14(1) are considered hybrid offences. This means that depending on the 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 (guilty act) and mens rea (guilty mind).
In R. v. Boudreault, 2012 SCC 56, the Supreme Court of Canada restated the essential elements of “care or control” as comprising “an intentional course of conduct associated with a motor vehicle” where there is a realistic risk, as opposed to a remote or theoretical possibility, 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”.
Evidence must show reduced or compromised ability concerning the physical or mental requirements for driving, such as comprehension, coordination, reaction, and judgment (R. v. Stennett, para 109). In R. v. Stellato, the Court of Appeal held that there is no special test for determining impairment. The offence is made out if any evidence establishes “any degree of impairment, from slight to great.”
The Crown must also prove the accused was operating or had “care or control” of the vehicle. This means that either the accused was driving the vehicle or, if not driving, that they created a realistic risk of danger by assuming care or control of the vehicle. No intent to drive is required for the care or control offence (R. v. Boudreault; R. v. Penno). Intent to use the vehicle as a place of warmth or shelter does not negate care or control (R. v. Moffat).
The Guilty Mind (Mens Rea)
The mens rea of the offence has two components:
- Voluntary consumption of alcohol or drugs.
- The basic intent in relation to the operation or care/control of a vehicle (R. v. King).
The mens rea is often described as voluntary intoxication—it is not the consumption of alcohol/drugs alone that is punishable, but consumption to the point of impairment coupled with the operation of a vehicle (R. v. Mavin; R. v. Aranovsky; R. v. McGrath).
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, knowing that it may impair one’s ability to drive, satisfies the mens rea component, equating to recklessness (R. v. Pomeroy).
Possible Defences
- Necessity
The defence of necessity applies in emergency situations where normal human instincts compel disobedience of the law. This defence is a legal excuse, not a justification, for the act (R. v. Perka).
The act must be inevitable and unavoidable, and the accused must have had no reasonable legal alternative (R. v. McKay). The peril must be imminent, and the standard for assessing this is modified by considering the situation and characteristics of the accused (R. v. Latimer, 2001 SCC 1; R. v. Nelson).
To be proportional, the harm avoided does not need to “clearly outweigh” the harm caused (R. v. Latimer, 2001 SCC 1). The defence is available when the accused or someone in their protection faces immediate risk of physical harm, no reasonable alternatives exist, and driving is for no longer than necessary to escape the danger.
- Involuntary Intoxication
There is a rebuttable presumption that impairment was voluntarily induced if evidence shows the accused drove while impaired. However, the presumption may be rebutted by showing that the accused, through no fault of their own, was impaired when they undertook to drive, without appreciating the potential impairment. Such lack of appreciation may not arise from the voluntary consumption of alcohol or a drug that the accused knew or had reasonable grounds to believe might cause them to be impaired, and it can be taken as a matter of “common experience” that the consumption of alcohol or narcotics may produce intoxication (R. v. King; R. v. Aranovsky).
The rebuttable presumption relies on an objective standard: Was the accused able to appreciate they might become impaired? (R. v. Hoskins).
Even if a person’s consumption of a substance was involuntary, once they realize they are intoxicated and still choose to drive, the mens rea element is established, and a conviction entered (R. v. McGrath, 2013 ONCJ 528).
- Prescription Drugs
When prescription drugs or lawful medications cause impairment, courts consider several factors in determining whether the accused, through no fault of their own, failed to appreciate the impairment. These include:- The nature of the drugs,
- The quantity consumed,
- Time between ingestion and driving,
- The accused’s awareness of the effects,
- Prior experience with the drugs, and
- Whether the accused was cautioned not to drive while on the drugs.
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 less a day imprisonment.
The following mandatory minimums also apply:
- First Offence: $1,000 fine or 30 days imprisonment.
- One or more prior offences: 120 days imprisonment.
Cases Involving Bodily Harm or Death
Impaired driving that causes bodily harm or death is governed under s. 320.2 and s. 320.21. These are straight indictable offences and have more serious consequences outlined in section 320.2 (Bodily Harm) and section 320.21 (Death). Please see the following penalties:
- Bodily Harm: Maximum of 14 years imprisonment.
- Death: Life imprisonment.
Both have the following mandatory minimums:
- First Offence: $1,000 fine
- Second Offence: 30 days imprisonment
- Subsequent Offences: 120 days imprisonment
DUI
Summary of the Offence
What is a charge pursuant to the Criminal Code?
Offences relating to Operation While Impaired by Alcohol or Drug, including Over 80, are found in Part VIII.1 of the Criminal Code, under s. 320.14.
- s. 320.14(1)(a) reads:
"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." - s. 320.14(1)(b) reads:
"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."
Please Note:
If impaired by drugs, different levels of impairment apply pursuant to s. 320.14(1)(c).
How Serious is the Offence?
Offences under s. 320.14(1) are considered hybrid offences. This means that depending on the 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 (guilty act) and mens rea (guilty mind).
In R. v. Boudreault, 2012 SCC 56, the Supreme Court of Canada restated the essential elements of “care or control” as comprising “an intentional course of conduct associated with a motor vehicle” where there is a realistic risk, as opposed to a remote or theoretical possibility, 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”.
Evidence must show reduced or compromised ability concerning the physical or mental requirements for driving, such as comprehension, coordination, reaction, and judgment (R. v. Stennett, para 109). In R. v. Stellato, the Court of Appeal held that there is no special test for determining impairment. The offence is made out if any evidence establishes “any degree of impairment, from slight to great.”
The Crown must also prove the accused was operating or had “care or control” of the vehicle. This means that either the accused was driving the vehicle or, if not driving, that they created a realistic risk of danger by assuming care or control of the vehicle. No intent to drive is required for the care or control offence (R. v. Boudreault; R. v. Penno). Intent to use the vehicle as a place of warmth or shelter does not negate care or control (R. v. Moffat).
The Guilty Mind (Mens Rea)
The mens rea of the offence has two components:
- Voluntary consumption of alcohol or drugs.
- The basic intent in relation to the operation or care/control of a vehicle (R. v. King).
The mens rea is often described as voluntary intoxication—it is not the consumption of alcohol/drugs alone that is punishable, but consumption to the point of impairment coupled with the operation of a vehicle (R. v. Mavin; R. v. Aranovsky; R. v. McGrath).
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, knowing that it may impair one’s ability to drive, satisfies the mens rea component, equating to recklessness (R. v. Pomeroy).
Possible Defences
- Necessity
The defence of necessity applies in emergency situations where normal human instincts compel disobedience of the law. This defence is a legal excuse, not a justification, for the act (R. v. Perka).
The act must be inevitable and unavoidable, and the accused must have had no reasonable legal alternative (R. v. McKay). The peril must be imminent, and the standard for assessing this is modified by considering the situation and characteristics of the accused (R. v. Latimer, 2001 SCC 1; R. v. Nelson).
To be proportional, the harm avoided does not need to “clearly outweigh” the harm caused (R. v. Latimer, 2001 SCC 1). The defence is available when the accused or someone in their protection faces immediate risk of physical harm, no reasonable alternatives exist, and driving is for no longer than necessary to escape the danger.
- Involuntary Intoxication
There is a rebuttable presumption that impairment was voluntarily induced if evidence shows the accused drove while impaired. However, the presumption may be rebutted by showing that the accused, through no fault of their own, was impaired when they undertook to drive, without appreciating the potential impairment. Such lack of appreciation may not arise from the voluntary consumption of alcohol or a drug that the accused knew or had reasonable grounds to believe might cause them to be impaired, and it can be taken as a matter of “common experience” that the consumption of alcohol or narcotics may produce intoxication (R. v. King; R. v. Aranovsky).
The rebuttable presumption relies on an objective standard: Was the accused able to appreciate they might become impaired? (R. v. Hoskins).
Even if a person’s consumption of a substance was involuntary, once they realize they are intoxicated and still choose to drive, the mens rea element is established, and a conviction entered (R. v. McGrath, 2013 ONCJ 528).
- Prescription Drugs
When prescription drugs or lawful medications cause impairment, courts consider several factors in determining whether the accused, through no fault of their own, failed to appreciate the impairment. These include:- The nature of the drugs,
- The quantity consumed,
- Time between ingestion and driving,
- The accused’s awareness of the effects,
- Prior experience with the drugs, and
- Whether the accused was cautioned not to drive while on the drugs.
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 less a day imprisonment.
The following mandatory minimums also apply:
- First Offence: $1,000 fine or 30 days imprisonment.
- One or more prior offences: 120 days imprisonment.
Cases Involving Bodily Harm or Death
Impaired driving that causes bodily harm or death is governed under s. 320.2 and s. 320.21. These are straight indictable offences and have more serious consequences outlined in section 320.2 (Bodily Harm) and section 320.21 (Death). Please see the following penalties:
- Bodily Harm: Maximum of 14 years imprisonment.
- Death: Life imprisonment.
Both have the following mandatory minimums:
- First Offence: $1,000 fine
- Second Offence: 30 days imprisonment
- Subsequent Offences: 120 days imprisonment