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Criminal Code of Canada

Impaired Driving Sections

PART VIII.1 Offences Relating to Conveyances

Interpretation

Marginal note:Definitions

320.11 The following definitions apply in this Part.

analyst means a person who is, or a person who is a member of a class of persons that is, designated by the Attorney General under subparagraph 320.4(b)(ii) or paragraph 320.4(c).(analyste)

approved containermeans a container that is designed to receive a sample of a person’s blood for analysis and that is approved by the Attorney General of Canada under paragraph 320.39(d).(contenant approuvé)

approved drug screening equipmentmeans equipment that is designed to ascertain the presence of a drug in a person’s body and that is approved by the Attorney General of Canada under paragraph 320.39(b).(matériel de détection des drogues approuvé)

approved instrumentmeans an instrument that is designed to receive and make an analysis of a sample of a person’s breath to determine their blood alcohol concentration and that is approved by the Attorney General of Canada under paragraph 320.39(c).(éthylomètre approuvé)

approved screening devicemeans a device that is designed to ascertain the presence of alcohol in a person’s blood and that is approved by the Attorney General of Canada under paragraph 320.39(a).(appareil de détection approuvé)

conveyancemeans a motor vehicle, a vessel, an aircraft or railway equipment.(moyen de transport)

evaluating officermeans a peace officer who has the qualifications prescribed by regulation that are required in order to act as an evaluating officer.(agent évaluateur)

operatemeans

·         (a) in respect of a motor vehicle, to drive it or to have care or control of it;

·         (b) in respect of a vessel or aircraft, to navigate it, to assist in its navigation or to have care or control of it; and

·         (c) in respect of railway equipment, to participate in the direct control of its motion, or to have care or control of it as a member of the equipment’s crew, as a person who acts in lieu of a member of the equipment’s crew by remote control, or otherwise.(conduire)

qualified medical practitionermeans a person who is qualified under provincial law to practise medicine.(médecin qualifié)

qualified technicianmeans

·         (a) in respect of breath samples, a person who is designated by the Attorney General under paragraph 320.4(a); and

·         (b) in respect of blood samples, a person who is, or a person who is a member of a class of persons that is, designated by the Attorney General under subparagraph 320.4(b)(i).(technicien qualifié)

vesselincludes a hovercraft.(bateau)

Recognition and Declaration

Marginal note:Recognition and declaration

320.12 It is recognized and declared that

·         (a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, the observance of rules and sobriety;

·         (b) the protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operate them is impaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians;

·         (c) the analysis of a sample of a person’s breath by means of an approved instrument produces reliable and accurate readings of blood alcohol concentration; and

·         (d) an evaluation conducted by an evaluating officer is a reliable method of determining whether a person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug.

Offences and Punishment

Marginal note:Dangerous operation

·         320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.

·         Marginal note:Operation causing bodily harm

(2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.

·         Marginal note:Operation causing death

(3) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes the death of another person.

Marginal note:Operation while impaired

·         320.14 (1) Everyone commits an offence who

o    (a) 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;

o    (b) 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;

o    (c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or

o    (d) subject to subsection (7), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.

·         Marginal note:Operation causing bodily harm

(2) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes bodily harm to another person.

·         Marginal note:Operation causing death

(3) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes the death of another person.

·         Marginal note:Operation — low blood drug concentration

(4) Subject to subsection (6), everyone commits an offence who has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph (1)(c).

·         Marginal note:Exception — alcohol

(5) No person commits an offence under paragraph (1)(b) if

o    (a) they consumed alcohol after ceasing to operate the conveyance;

o    (b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and

o    (c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.

·         Marginal note:Exception — drugs

(6) No person commits an offence under paragraph (1)(c) or subsection (4) if

o    (a) they consumed the drug after ceasing to operate the conveyance; and

o    (b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance.

·         Marginal note:Exception — combination of alcohol and drug

(7) No person commits an offence under paragraph (1)(d) if

o    (a) they consumed the drug or the alcohol or both after ceasing to operate the conveyance;

o    (b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance; and

o    (c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration less than the blood alcohol concentration established under paragraph 320.38(c).

Marginal note:Failure or refusal to comply with demand

·         320.15 (1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.

·         Marginal note:Accident resulting in bodily harm

(2) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in bodily harm to another person.

·         Marginal note:Accident resulting in death

(3) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of the failure or refusal, knows that, or is reckless as to whether, they were involved in an accident that resulted in the death of another person or in bodily harm to another person whose death ensues.

·         Marginal note:Only one conviction

(4) A person who is convicted of an offence under this section is not to be convicted of another offence under this section with respect to the same transaction.

Marginal note:Failure to stop after accident

·         320.16 (1) Everyone commits an offence who operates a conveyance and who at the time of operating the conveyance knows that, or is reckless as to whether, the conveyance has been involved in an accident with a person or another conveyance and who fails, without reasonable excuse, to stop the conveyance, give their name and address and, if any person has been injured or appears to require assistance, offer assistance.

·         Marginal note:Accident resulting in bodily harm

(2) Everyone commits an offence who commits an offence under subsection (1) and who at the time of committing the offence knows that, or is reckless as to whether, the accident resulted in bodily harm to another person.

·         Marginal note:Accident resulting in death

(3) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of committing the offence, knows that, or is reckless as to whether, the accident resulted in the death of another person or in bodily harm to another person whose death ensues.

Marginal note:Flight from peace officer

320.17 Everyone commits an offence who operates a motor vehicle or vessel while being pursued by a peace officer and who fails, without reasonable excuse, to stop the motor vehicle or vessel as soon as is reasonable in the circumstances.

Marginal note:Operation while prohibited

·         320.18 (1) Everyone commits an offence who operates a conveyance while prohibited from doing so

o    (a) by an order made under this Act; or

o    (b) by any other form of legal restriction imposed under any other Act of Parliament or under provincial law in respect of a conviction under this Act or a discharge under section 730.

·         Marginal note:Exception

(2) No person commits an offence under subsection (1) arising out of the operation of a motor vehicle if they are registered in an alcohol ignition interlock device program established under the law of the province in which they reside and they comply with the conditions of the program

·         Punishment (note:  warning for landed immigrants  permanent residents)

·         320.19 (1) Everyone who commits an offence under subsection 320.14(1) or 320.15(1) is liable on conviction on indictment or on summary conviction

o    (a) to the following minimum punishment, namely,

§  (i) for a first offence, a fine of $1,000,

§  (ii) for a second offence, imprisonment for a term of 30 days, and

§  (iii) for each subsequent offence, imprisonment for a term of 120 days;

o    (b) if the offence is prosecuted by indictment, to imprisonment for a term of not more than 10 years; and

o    (c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.

·         Marginal note:Summary conviction

(2) Everyone who commits an offence under subsection 320.14(4) is liable on summary conviction to a fine of not more than $1,000.

·         Marginal note:Minimum fines for high blood alcohol concentrations

(3) Despite subparagraph (1)(a)(i), everyone who commits an offence under paragraph 320.14(1)(b) is liable, for a first offence, to

o    (a) a fine of not less than $1,500, if the person’s blood alcohol concentration is equal to or exceeds 120 mg of alcohol in 100 mL of blood but is less than 160 mg of alcohol in 100 mL of blood; and

o    (b) a fine of not less than $2,000, if the person’s blood alcohol concentration is equal to or exceeds 160 mg of alcohol in 100 mL of blood.

·         Marginal note:Minimum fine — subsection 320.15(1)

(4) Despite subparagraph (1)(a)(i), everyone who commits an offence under subsection 320.15(1) is liable, for a first offence, to a fine of not less than $2,000.

·         Marginal note:Punishment — dangerous operation and other offences

(5) Everyone who commits an offence under subsection 320.13(1) or 320.16(1), section 320.17 or subsection 320.18(1) is liable

o    (a) on conviction on indictment, to imprisonment for a term of not more than 10 years; or

o    (b) on summary conviction, to imprisonment for a term of not more than two years less a day.

Marginal note:Punishment in case of bodily harm

320.2 Everyone who commits an offence under subsection 320.13(2), 320.14(2), 320.15(2) or 320.16(2) is liable on conviction on indictment or on summary conviction

·         (a) to the following minimum punishment, namely,

o    (i) for a first offence, a fine of $1,000,

o    (ii) for a second offence, imprisonment for a term of 30 days, and

o    (iii) for each subsequent offence, imprisonment for a term of 120 days;

·         (b) if the offence is prosecuted by indictment, to imprisonment for a term of not more than 14 years; and

·         (c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.

Marginal note:Punishment in case of death

320.21 Everyone who commits an offence under subsection 320.13(3), 320.14(3), 320.15(3) or 320.16(3) is liable on conviction on indictment to imprisonment for life and to a minimum punishment of,

·         (a) for a first offence, a fine of $1,000;

·         (b) for a second offence, imprisonment for a term of 30 days; and

·         (c) for each subsequent offence, imprisonment for a term of 120 days.

Marginal note:Aggravating circumstances for sentencing purposes

320.22 A court imposing a sentence for an offence under any of sections 320.13 to 320.18 shall consider, in addition to any other aggravating circumstances, the following:

·         (a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;

·         (b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;

·         (c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;

·         (d) the offender was being remunerated for operating the conveyance;

·         (e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;

·         (f) the offender was operating a large motor vehicle; and

·         (g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.

Marginal note:Delay of sentencing

·         320.23 (1) The court may, with the consent of the prosecutor and the offender, and after considering the interests of justice, delay sentencing of an offender who has been found guilty of an offence under subsection 320.14(1) or 320.15(1) to allow the offender to attend a treatment program approved by the province in which the offender resides. If the court delays sentencing, it shall make an order prohibiting the offender from operating, before sentencing, the type of conveyance in question, in which case subsections 320.24(6) to (9) apply.

·         Marginal note:Exception to minimum punishment

(2) If the offender successfully completes the treatment program, the court is not required to impose the minimum punishment under section 320.19 or to make a prohibition order under section 320.24, but it shall not direct a discharge under section 730.

Marginal note:Mandatory prohibition order

·         320.24 (1) If an offender is found guilty of an offence under subsection 320.14(1) or 320.15(1), the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period to be determined in accordance with subsection (2).

·         Marginal note:Prohibition period

(2) The prohibition period is

o    (a) for a first offence, not less than one year and not more than three years, plus the entire period to which the offender is sentenced to imprisonment;

o    (b) for a second offence, not less than two years and not more than 10 years, plus the entire period to which the offender is sentenced to imprisonment; and

o    (c) for each subsequent offence, not less than three years, plus the entire period to which the offender is sentenced to imprisonment.

·         Marginal note:Discretionary order of prohibition — low blood drug concentration

(3) If an offender is found guilty of an offence under subsection 320.14(4), the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period of not more than one year.

·         Marginal note:Discretionary order of prohibition — other offences

(4) If an offender is found guilty of an offence under section 320.13, subsection 320.14(2) or (3), 320.15(2) or (3) or under any of sections 320.16 to 320.18, the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period to be determined in accordance with subsection (5).

·         Marginal note:Prohibition period

(5) The prohibition period is

o    (a) if the offender is liable to imprisonment for life in respect of that offence, of any duration that the court considers appropriate, plus the entire period to which the offender is sentenced to imprisonment;

o    (b) if the offender is liable to imprisonment for more than five years but less than life in respect of that offence, not more than 10 years, plus the entire period to which the offender is sentenced to imprisonment; and

o    (c) in any other case, not more than three years, plus the entire period to which the offender is sentenced to imprisonment.

·         Marginal note:Effect of order

(5.1) Subject to subsection (9), a prohibition order takes effect on the day that it is made.

·         Marginal note:Obligation of court

(6) A court that makes a prohibition order under this section shall cause the order to be read by or to the offender or a copy of the order to be given to the offender.

·         Marginal note:Validity of prohibition order not affected

(7) A failure to comply with subsection (6) does not affect the validity of the prohibition order.

·         Marginal note:Application — public place

(8) A prohibition order in respect of a motor vehicle applies only to its operation on a street, road or highway or in any other public place.

·         Marginal note:Consecutive prohibition periods

(9) If the offender is, at the time of the commission of the offence, subject to an order made under this Act prohibiting the offender from operating a conveyance, a court that makes a prohibition order under this section that prohibits the offender from operating the same type of conveyance may order that the prohibition order be served consecutively to that order.

·         Marginal note:Minimum absolute prohibition period

(10) A person may not be registered in an alcohol ignition interlock device program referred to in subsection 320.18(2) until the expiry of

o    (a) in the case of a first offence, a period, if any, that may be fixed by order of the court;

o    (b) in the case of a second offence, a period of three months after the day on which the sentence is imposed or any longer period that may be fixed by order of the court; and

o    (c) in the case of a subsequent offence, a period of six months after the day on which the sentence is imposed or any longer period that may be fixed by order of the court.

Marginal note:Stay of order pending appeal

·         320.25 (1) Subject to subsection (2), if an appeal is taken against a conviction or sentence for an offence under any of sections 320.13 to 320.18, a judge of the court to which the appeal is taken may direct that the prohibition order under section 320.24 arising out of the conviction shall, on any conditions that the judge imposes, be stayed pending the final disposition of the appeal or until otherwise ordered by that court.

·         Marginal note:Appeals to Supreme Court of Canada

(2) In the case of an appeal to the Supreme Court of Canada, a direction may be made only by a judge of the court from which the appeal was taken.

·         Marginal note:Effect of conditions

(3) The imposition of conditions on a stay of a prohibition order does not operate to decrease the prohibition period provided in the prohibition order.

Marginal note:Earlier and subsequent offences

320.26 In determining, for the purpose of imposing a sentence for an offence under subsection 320.14(1) or 320.15(1), whether the offence is a second, third or subsequent offence, any of the following offences for which the offender was previously convicted is considered to be an earlier offence:

·         (a) an offence under any of subsections 320.14(1) to (3) or section 320.15; or

·         (b) an offence under any of sections 253, 254 and 255, as those sections read from time to time before the day on which this section comes into force.

Investigative Matters

Marginal note:Testing for presence of alcohol or drug

·         320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

o    (a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

o    (b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

o    (c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

·         Marginal note:Mandatory alcohol screening

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

Marginal note:Samples of breath or blood — alcohol

·         320.28 (1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable,

o    (a) require the person to provide, as soon as practicable,

§  (i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or

§  (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to take one, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood alcohol concentration; and

o    (b) require the person to accompany the peace officer for the purpose of taking samples of that person’s breath or blood.

·         Marginal note:Evaluation and samples of blood — drugs

(2) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by a drug or by a combination of alcohol and a drug, or has committed an offence under paragraph 320.14(1)(c) or (d) or subsection 320.14(4), the peace officer may, by demand, made as soon as practicable, require the person to comply with the requirements of either or both of paragraphs (a) and (b):

o    (a) to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose; or

o    (b) to provide, as soon as practicable, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood drug concentration, or the person’s blood drug concentration and blood alcohol concentration, as the case may be, and to accompany the peace officer for that purpose.

·         Marginal note:Samples of breath — alcohol

(3) An evaluating officer who has reasonable grounds to suspect that a person has alcohol in their body may, if a demand was not made under subsection (1), by demand made as soon as practicable, require the person to provide, as soon as practicable, the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument.

·         Marginal note:Samples of bodily substances

(4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe that one or more of the types of drugs set out in subsection (5) — or that a combination of alcohol and one or more of those types of drugs — is impairing the person’s ability to operate a conveyance, the evaluating officer shall identify the type or types of drugs in question and may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

o    (a) a sample of oral fluid or urine that, in the evaluating officer’s opinion, is necessary to enable a proper analysis to be made to ascertain the presence in the person’s body of one or more of the types of drugs set out in subsection (5); or

o    (b) the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to ascertain the presence in the person’s body of one or more of the types of drugs set out in subsection (5) or to determine the person’s blood drug concentration for one or more of those types of drugs.

·         Marginal note:Types of drugs

(5) For the purpose of subsection (4), the types of drugs are the following:

o    (a) a depressant;

o    (b) an inhalant;

o    (c) a dissociative anaesthetic;

o    (d) cannabis;

o    (e) a stimulant;

o    (f) a hallucinogen; or

o    (g) a narcotic analgesic.

·         Marginal note:Condition

(6) A sample of blood may be taken from a person under this section only by a qualified medical practitioner or a qualified technician, and only if they are satisfied that taking the sample would not endanger the person’s health.

·         Marginal note:Approved containers

(7) A sample of blood shall be received into an approved container that shall be subsequently sealed.

·         Marginal note:Retained sample

(8) A person who takes samples of blood under this section shall cause one of the samples to be retained for the purpose of analysis by or on behalf of the person from whom the blood samples were taken.

·         Marginal note:Validity of analysis not affected

(9) A failure to comply with subsection (7) or (8) does not by itself affect the validity of the taking of the sample or of an analysis made of the sample.

·         Marginal note:Release of retained sample

(10) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction shall, on the summary application of the person from whom samples of blood were taken under this section, made within six months after the day on which the samples were taken, order the release of any sample that was retained to the person for the purpose of examination or analysis, subject to any terms that the judge considers appropriate to ensure that the sample is safeguarded and preserved for use in any proceedings in respect of which it was taken.

Marginal note:Warrants to obtain blood samples

·         320.29 (1) A justice may issue a warrant authorizing a peace officer to require a qualified medical practitioner or a qualified technician to take the samples of a person’s blood that, in the opinion of the practitioner or technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood alcohol concentration or blood drug concentration, or both, if the justice is satisfied, on an information on oath in Form 1 or on an information on oath submitted to the justice by telephone or other means of telecommunication, that

o    (a) there are reasonable grounds to believe that the person has, within the preceding eight hours, operated a conveyance that was involved in an accident that resulted in bodily harm to themselves or another person or in the death of another person;

o    (b) there are reasonable grounds to suspect that the person has alcohol or a drug in their body; and

o    (c) a qualified medical practitioner is of the opinion that

§  (i) by reason of any physical or mental condition of the person, the person is unable to consent to the taking of samples of their blood, and

§  (ii) the taking of samples of the person’s blood will not endanger their health.

·         Marginal note:Form

(2) A warrant issued under subsection (1) may be in Form 5 or 5.1, varied to suit the case.

·         Marginal note:Procedure — telephone or other means of telecommunication

(3) Section 487.1 applies, with any modifications that the circumstances require, in respect of an application for a warrant that is submitted by telephone or other means of telecommunication.

·         Marginal note:Duration of warrant

(4) Samples of blood may be taken from a person under a warrant issued under subsection (1) only during the time that a qualified medical practitioner is satisfied that the conditions referred to in subparagraphs (1)(c)(i) and (ii) continue to exist.

·         Marginal note:Copy or facsimile to person

(5) If a warrant issued under subsection (1) is executed, the peace officer shall, as soon as practicable, give a copy of it — or, in the case of a warrant issued by telephone or other means of telecommunication, a facsimile — to the person from whom the samples of blood are taken.

·         Marginal note:Taking of samples

(6) Subsections 320.28(7) to (10) apply with respect to the taking of samples of blood under this section.

Marginal note:Testing blood — drug or alcohol

320.3 Samples of a person’s blood that are taken for the purposes of this Part may be analyzed to determine the person’s blood alcohol concentration or blood drug concentration, or both.

Evidentiary Matters

Marginal note:Breath samples

·         320.31 (1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if

o    (a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;

o    (b) there was an interval of at least 15 minutes between the times when the samples were taken; and

o    (c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

·         Marginal note:Blood samples — concentration when sample taken

(2) The result of an analysis made by an analyst of a sample of a person’s blood is proof of their blood alcohol concentration or their blood drug concentration, as the case may be, at the time when the sample was taken in the absence of evidence tending to show that the analysis was performed improperly.

·         Marginal note:Evidence not included

(3) Evidence of the following does not constitute evidence tending to show that an analysis of a sample of a person’s blood was performed improperly:

o    (a) the amount of alcohol or a drug that they consumed;

o    (b) the rate at which the alcohol or the drug would have been absorbed or eliminated by their body; or

o    (c) a calculation based on the evidence referred to in paragraphs (a) and (b) of what their blood alcohol concentration or blood drug concentration would have been at the time the sample was taken.

·         Marginal note:Presumption — blood alcohol concentration

(4) For the purpose of paragraphs 320.14(1)(b) and (d), if the first of the samples of breath was taken, or the sample of blood was taken, more than two hours after the person ceased to operate the conveyance and the person’s blood alcohol concentration was equal to or exceeded 20 mg of alcohol in 100 mL of blood, the person’s blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in accordance with subsection (1) or (2), as the case may be, plus an additional 5 mg of alcohol in 100 mL of blood for every interval of 30 minutes in excess of those two hours.

·         Marginal note:Admissibility of evaluating officer’s opinion

(5) An evaluating officer’s opinion relating to the impairment, by a type of drug that they identified, or by a combination of alcohol and that type of drug, of a person’s ability to operate a conveyance is admissible in evidence without qualifying the evaluating officer as an expert.

·         Marginal note:Presumption — drug

(6) If the analysis of a sample provided under subsection 320.28(4) demonstrates that the person has a drug in their body that is of a type that the evaluating officer has identified as impairing the person’s ability to operate a conveyance, that drug — or, if the person has also consumed alcohol, the combination of alcohol and that drug — is presumed, in the absence of evidence to the contrary, to be the drug, or the combination of alcohol and that drug, that was present in the person’s body at the time when the person operated the conveyance and, on proof of the person’s impairment, to have been the cause of that impairment.

·         Marginal note:Admissibility of result of analysis

(7) The result of an analysis of a sample of a person’s breath, blood, urine, sweat or other bodily substance that they were not required to provide under this Part may be admitted in evidence even if the person was not warned before they provided the sample that they were not required to do so or that the result of the analysis of the sample might be used in evidence.

·         Marginal note:Evidence of failure to provide sample

(8) Unless a person is required to provide a sample of a bodily substance under this Part, evidence that they failed or refused to provide a sample for analysis or that a sample was not taken is not admissible and the failure, refusal or fact that a sample was not taken shall not be the subject of comment by any person in any proceedings under this Part.

·         Marginal note:Admissibility of statement

(9) A statement made by a person to a peace officer, including a statement compelled under a provincial Act, is admissible in evidence for the purpose of justifying a demand made under section 320.27 or 320.28.

·         Marginal note:Evidence of failure to comply with demand

(10) In any proceedings in respect of an offence under section 320.14, evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 320.27 or 320.28 is admissible and the court may draw an inference adverse to the accused from that evidence.

Marginal note:Certificates

·         320.32 (1) A certificate of an analyst, qualified medical practitioner or qualified technician made under this Part is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person who signed the certificate.

·         Marginal note:Notice of intention to produce certificate

(2) No certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate.

·         Marginal note:Attendance and cross-examination

(3) A party against whom the certificate is produced may apply to the court for an order requiring the attendance of the person who signed the certificate for the purposes of cross-examination.

·         Marginal note:Form and content of application

(4) The application shall be made in writing and set out the likely relevance of the proposed cross-examination with respect to the facts alleged in the certificate. A copy of the application shall be given to the prosecutor at least 30 days before the day on which the application is to be heard.

·         Marginal note:Time of hearing

(5) The hearing of the application shall be held at least 30 days before the day on which the trial is to be held.

·         Marginal note:Certificate admissible in evidence

(6) In proceedings in respect of an offence under subsection 320.18(1), the following certificates are evidence of the facts alleged in them without proof of the signature or official character of the person who signed them:

o    (a) a certificate setting out with reasonable particularity that the person named in it is prohibited from operating a motor vehicle in the province specified in the certificate, signed by the person who is responsible for the registration of motor vehicles in that province or any person authorized by the responsible person to sign it; and

o    (b) a certificate setting out with reasonable particularity that the person named in it is prohibited from operating a conveyance other than a motor vehicle, signed by the Minister of Transport or any person authorized by him or her to sign it.

·         Marginal note:Onus

(7) If it is proved that a prohibition under paragraph 320.18(1)(b) has been imposed on a person and that notice of the prohibition has been mailed to them at their last known address, that person is, beginning on the tenth day after the day on which the notice is mailed, in the absence of evidence to the contrary, presumed to have received the notice and to have knowledge of the prohibition, of the date of its commencement and of its duration.

Marginal note:Printout from approved instrument

320.33 A document that is printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made an analysis of a sample of a person’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person who signed it.

Marginal note:Disclosure of information

·         320.34 (1) In proceedings in respect of an offence under section 320.14, the prosecutor shall disclose to the accused, with respect to any samples of breath that the accused provided under section 320.28, information sufficient to determine whether the conditions set out in paragraphs 320.31(1)(a) to (c) have been met, namely:

o    (a) the results of the system blank tests;

o    (b) the results of the system calibration checks;

o    (c) any error or exception messages produced by the approved instrument at the time the samples were taken;

o    (d) the results of the analysis of the accused’s breath samples; and

o    (e) a certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use with an approved instrument.

·         Marginal note:Application for further disclosure

(2) The accused may apply to the court for a hearing to determine whether further information should be disclosed.

·         Marginal note:Form and content of application

(3) The application shall be in writing and set out detailed particulars of the information that the accused seeks to have disclosed and the likely relevance of that information to determining whether the approved instrument was in proper working order. A copy of the application shall be given to the prosecutor at least 30 days before the day on which the application is to be heard.

·         Marginal note:Time of hearing

(4) The hearing of the application shall be held at least 30 days before the day on which the trial is to be held.

·         Marginal note:For greater certainty

(5) For greater certainty, nothing in this section limits the disclosure to which the accused may otherwise be entitled.

Marginal note:Presumption of operation

320.35 In proceedings in respect of an offence under section 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.

General Provisions

Marginal note:Unauthorized use of bodily substance

·         320.36 (1) No person shall use a bodily substance obtained under this Part for any purpose other than for an analysis under this Part.

·         Marginal note:Unauthorized use or disclosure of results

(2) No person shall use, disclose or allow the disclosure of the results obtained under this Part of any evaluation, physical coordination test or analysis of a bodily substance, except for the purpose of the administration or enforcement of a federal or provincial Act related to drugs and/or alcohol and/or to the operation of a motor vehicle, vessel, aircraft or railway equipment.

·         Marginal note:Exception

(3) The results of an evaluation, test or analysis referred to in subsection (2) may be disclosed to the person to whom they relate, and may be disclosed to any other person if the results are made anonymous and the disclosure is made for statistical or research purposes.

·         Marginal note:Offence

(4) Everyone who contravenes subsection (1) or (2) commits an offence punishable on summary conviction.

Marginal note:Refusal to take sample

·         320.37 (1) No qualified medical practitioner or qualified technician shall be found guilty of an offence by reason only of their refusal to take a sample of blood from a person for the purposes of this Part if they have a reasonable excuse for refusing to do so.

·         Marginal note:No liability

(2) No qualified medical practitioner, and no qualified technician, who takes a sample of blood from a person under this Part incurs any liability for doing anything necessary to take the sample that was done with reasonable care and skill.

Marginal note:Regulations

320.38 The Governor in Council may make regulations

·         (a) prescribing the qualifications required for a peace officer to act as an evaluating officer and respecting the training of evaluating officers;

·         (b) prescribing the blood drug concentration for a drug for the purpose of paragraph 320.14(1)(c);

·         (c) prescribing a blood alcohol concentration and a blood drug concentration for a drug for the purposes of paragraph 320.14(1)(d);

·         (d) prescribing the blood drug concentration for a drug for the purpose of subsection 320.14(4);

·         (e) prescribing the physical coordination tests to be conducted under paragraph 320.27(1)(a); and

·         (f) prescribing the tests to be conducted and procedures to be followed during an evaluation under paragraph 320.28(2)(a) and the forms to be used in recording the results of the evaluation.

Marginal note:Approval — Attorney General of Canada

320.39 The Attorney General of Canada may, by order, approve

·         (a) a device that is designed to ascertain the presence of alcohol in a person’s blood;

·         (b) equipment that is designed to ascertain the presence of a drug in a person’s body;

·         (c) an instrument that is designed to receive and make an analysis of a sample of a person’s breath to determine their blood alcohol concentration; and

·         (d) a container that is designed to receive a sample of a person’s blood for analysis.

Marginal note:Designation — Attorney General

320.4 The Attorney General may designate

·         (a) a person as qualified, for the purposes of this Part, to operate an approved instrument;

·         (b) a person or class of persons as qualified, for the purposes of this Part,

o    (i) to take samples of blood, or

o    (ii) to analyze samples of bodily substances; and

·         (c) a person or class of persons as qualified, for the purposes of this Part, to certify that an alcohol standard is suitable for use with an approved instrument.

 

Old Legislation pre-December 2018 and possible defences 


Operation while impaired

253. 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 railway 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 a 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 millilitres of blood.

R.S., 1985, c. C-46, s. 253; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 59.

Possible Issues: Reason for Stop, Operates, Care or Control, Impaired

Definitions

254. (1) In this section and sections 255 to 258,

"analyst" «analyste»

"analyst" means a person designated by the Attorney General as an analyst for the purposes of section 258;

"approved container" «contenant approuvé»

"approved container" means

(a) in respect of breath samples, a container of a kind that is designed to receive a sample of the breath of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada, and

(b) in respect of blood samples, a container of a kind that is designed to receive a sample of the blood of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada;

"approved instrument" «alcootest approuvé»

"approved instrument" means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada;

"approved screening device" «appareil de détection approuvé»

"approved screening device" means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada;

"qualified medical practitioner" «médecin qualifié»

"qualified medical practitioner" means a person duly qualified by provincial law to practise medicine;

"qualified technician" «technicien qualifié»

"qualified technician" means,

(a) in respect of breath samples, a person designated by the Attorney General as being qualified to operate an approved instrument, and

(b) in respect of blood samples, any person or person of a class of persons designated by the Attorney General as being qualified to take samples of blood for the purposes of this section and sections 256 and 258.

Testing for presence of alcohol in the blood

(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person's body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.

Possible Issues: Use of ASD Prior to RTC, Physical Tests

Samples of breath or blood where reasonable belief of commission of offence

(3) Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding two hours has committed, as a result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable

(a) such samples of the person's breath as in the opinion of a qualified technician, or

(b) where the peace officer has reasonable and probable grounds to believe that, by reason of any physical condition of the person,

(i) the person may be incapable of providing a sample of his breath, or

(ii) it would be impracticable to obtain a sample of the person's breath,

such samples of the person's blood, under the conditions referred to in subsection (4), as in the opinion of the qualified medical practitioner or qualified technician taking the samples

are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person's blood, and to accompany the peace officer for the purpose of enabling such samples to be taken.

Possible Issues: Reasonable & Probable Grounds, Forthwith, Demand

Exception

(4) Samples of blood may only be taken from a person pursuant to a demand made by a peace officer under subsection (3) if the samples are taken by or under the direction of a qualified medical practitioner and the qualified medical practitioner is satisfied that the taking of those samples would not endanger the life or health of the person.

Failure or refusal to provide sample

(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.

Possible Issues: Refusal to Comply with Demand, Reasonable Excuse

Only one conviction for failure to comply with demand

(6) A person who is convicted of an offence committed under subsection (5) for a failure or refusal to comply with a demand made under subsection (2) or paragraph (3)(a) or (b) in respect of any transaction may not be convicted of another offence committed under subsection (5) in respect of the same transaction.

R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60.

Punishment

255. (1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,

(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,

(i) for a first offence, to a fine of not less than six hundred dollars,

(ii) for a second offence, to imprisonment for not less than fourteen days, and

(iii) for each subsequent offence, to imprisonment for not less than ninety days;

 

(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and

(c) where the offence is punishable on summary conviction, to imprisonment for a term not exceeding six months.

Impaired driving causing bodily harm

(2) Every one who commits an offence under paragraph 253(a) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Impaired driving causing death

(3) Every one who commits an offence under paragraph 253(a) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Previous convictions

(4) Where a person is convicted of an offence committed under paragraph 253(a) or (b) or subsection 254(5), that person shall, for the purposes of this Act, be deemed to be convicted for a second or subsequent offence, as the case may be, if the person has previously been convicted of

(a) an offence committed under any of those provisions;

(b) an offence under subsection (2) or (3); or

(c) an offence under section 250, 251, 252, 253, 259 or 260 or subsection 258(4) of this Act as this Act read immediately before the coming into force of this subsection.

R.S., 1985, c. C-46, s. 255; R.S., 1985, c. 27 (1st Supp.), s. 36.

Note: New section 255.1 not reproduced.

Warrants to obtain blood samples

256. (1) Subject to subsection (2), where a justice is satisfied, on an information on oath in Form 1 or on an information on oath submitted to the justice pursuant to section 487.1 by telephone or other means of telecommunication, that there are reasonable grounds to believe that

(a) a person has, within the preceding four hours, committed, as a result of the consumption of alcohol, an offence under section 253 and the person was involved in an accident resulting in the death of another person or in bodily harm to himself or herself or to any other person, and

(b) a qualified medical practitioner is of the opinion that

(i) by reason of any physical or mental condition of the person that resulted from the consumption of alcohol, the accident or any other occurrence related to or resulting from the accident, the person is unable to consent to the taking of samples of his blood, and

(ii) the taking of samples of blood from the person would not endanger the life or health of the person,

the justice may issue a warrant authorizing a peace officer to require a qualified medical practitioner to take, or to cause to be taken by a qualified technician under the direction of the qualified medical practitioner, such samples of the blood of the person as in the opinion of the person taking the samples are necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood.

Form

(2) A warrant issued pursuant to subsection (1) may be in Form 5 or 5.1 varied to suit the case.

Information on oath

(3) Notwithstanding paragraphs 487.1(4)(b) and (c), an information on oath submitted by telephone or other means of telecommunication for the purposes of this section shall include, instead of the statements referred to in those paragraphs, a statement setting out the offence alleged to have been committed and identifying the person from whom blood samples are to be taken.

Duration of warrant

(4) Samples of blood may be taken from a person pursuant to a warrant issued pursuant to subsection (1) only during such time as a qualified medical practitioner is satisfied that the conditions referred to in subparagraphs (1)(b)(i) and (ii) continue to exist in respect of that person.

Facsimile to person

(5) Where a warrant issued pursuant to subsection (1) is executed, the peace officer shall, as soon as practicable thereafter, give a copy or, in the case of a warrant issued by telephone or other means of telecommunication, a facsimile of the warrant to the person from whom the blood samples were taken.

R.S., 1985, c. C-46, s. 256; R.S., 1985, c. 27 (1st Supp.), s. 36; 1992, c. 1, s. 58; 1994, c. 44, s. 13.

No offence committed

257. (1) No qualified medical practitioner or qualified technician is guilty of an offence only by reason of his refusal to take a sample of blood from a person for the purposes of section 254 or 256 and no qualified medical practitioner is guilty of an offence only by reason of his refusal to cause to be taken by a qualified technician under his direction a sample of blood from a person for those purposes.

No criminal or civil liability

(2) No qualified medical practitioner by whom or under whose direction a sample of blood is taken from a person pursuant to a demand made under subsection 254(3) or a warrant issued under section 256 and no qualified technician acting under the direction of a qualified medical practitioner incurs any criminal or civil liability for anything necessarily done with reasonable care and skill in the taking of such a sample of blood.

R.S., 1985, c. C-46, s. 257; R.S., 1985, c. 27 (1st Supp.), s. 36.

 

Note: the evidentiary presumptions under section 258(1)(c) below have changed effective July 2008. The constitutionality of the new provisions dramatically changing "evidence to the contrary" is still before the Courts.

Proceedings under section 255

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3),

(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;

Possible Issues: Care or Control Presumption

(b) the result of an analysis of a sample of the breath or blood of the accused (other than a sample taken pursuant to a demand made under subsection 254(3)) or of the urine or other bodily substance of the accused may be admitted in evidence notwithstanding that, before the accused gave the sample, he was not warned that he need not give the sample or that the result of the analysis of the sample might be used in evidence;

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(i) [Not in force]

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses;

Possible Issues:
 As Soon as Practicable, 2 Hour Limit, 15 Minutes Apart, Evidence to the Contrary

(d) where a sample of the blood of the accused has been taken pursuant to a demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to a warrant issued under section 256, if

(i) at the time the sample was taken, the person taking the sample took an additional sample of the blood of the accused and one of the samples was retained, to permit an analysis thereof to be made by or on behalf of the accused and, in the case where the accused makes a request within six months from the taking of the samples, one of the samples was ordered to be released pursuant to subsection (4),

(ii) both samples referred to in subparagraph (i) were taken as soon as practicable after the time when the offence was alleged to have been committed and in any event not later than two hours after that time,

(iii) both samples referred to in subparagraph (i) were taken by a qualified medical practitioner or a qualified technician under the direction of a qualified medical practitioner,

(iv) both samples referred to in subparagraph (i) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed, and

(v) an analysis was made by an analyst of at least one of the samples that was contained in a sealed approved container,

evidence of the result of the analysis is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was the concentration determined by the analysis or, where more than one sample was analyzed and the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses;

(d.1) where samples of the breath of the accused or a sample of the blood of the accused have been taken as described in paragraph (c) or (d) under the conditions described therein and the results of the analyses show a concentration of alcohol in blood exceeding eighty milligrams of alcohol in one hundred millilitres of blood, evidence of the result of the analyses is, in the absence of evidence tending to show that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed did not exceed eighty milligrams of alcohol in one hundred millilitres of blood, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed exceeded eighty milligrams of alcohol in one hundred millilitres of blood;

(e) a certificate of an analyst stating that the analyst has made an analysis of a sample of the blood, urine, breath or other bodily substance of the accused and stating the result of that analysis is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

(f) a certificate of an analyst stating that the analyst has made an analysis of a sample of an alcohol standard that is identified in the certificate and intended for use with an approved instrument and that the sample of the standard analyzed by the analyst was found to be suitable for use with an approved instrument, is evidence that the alcohol standard so identified is suitable for use with an approved instrument without proof of the signature or the official character of the person appearing to have signed the certificate;

(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating

(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,

(ii) the results of the analyses so made, and

(iii) if the samples were taken by the technician,

(A) [Not in force]

(B) the time when and place where each sample and any specimen described in clause (A) was taken, and

(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

(h) where a sample of the blood of the accused has been taken pursuant to a demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to a warrant issued under section 256,

(i) a certificate of a qualified medical practitioner stating that

(A) the medical practitioner took the sample and that before the sample was taken he was of the opinion that the taking of blood samples from the accused would not endanger the life or health of the accused and, in the case of a demand made pursuant to a warrant issued pursuant to section 256, that by reason of any physical or mental condition of the accused that resulted from the consumption of alcohol, the accident or any other occurrence related to or resulting from the accident, the accused was unable to consent to the taking of his blood,

(B) at the time the sample was taken, an additional sample of the blood of the accused was taken to permit analysis of one of the samples to be made by or on behalf of the accused,

(C) the time when and place where both samples referred to in clause (B) were taken, and

(D) both samples referred to in clause (B) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed and that are identified in the certificate,

(ii) a certificate of a qualified medical practitioner stating that the medical practitioner caused the sample to be taken by a qualified technician under his direction and that before the sample was taken the qualified medical practitioner was of the opinion referred to in clause (i)(A), or

(iii) a certificate of a qualified technician stating that the technician took the sample and the facts referred to in clauses (i)(B) to (D)

is evidence of the facts alleged in the certificate without proof of the signature or official character of the person appearing to have signed the certificate; and

(i) a certificate of an analyst stating that the analyst has made an analysis of a sample of the blood of the accused that was contained in a sealed approved container identified in the certificate, the date on which and place where the sample was analyzed and the result of that analysis is evidence of the facts alleged in the certificate without proof of the signature or official character of the person appearing to have signed it.

No obligation to give sample except as required under section 254

(2) No person is required to give a sample of urine or other bodily substance for analysis for the purposes of this section except breath or blood as required under section 254, and evidence that a person failed or refused to give such a sample or that such a sample was not taken is not admissible nor shall such a failure or refusal or the fact that a sample was not taken be the subject of comment by any person in the proceedings.

Evidence of failure to comply with demand

(3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(a) or in any proceedings under subsection 255(2) or (3), evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made to him by a peace officer under section 254 is admissible and the court may draw an inference therefrom adverse to the accused.

Release of specimen for testing

(4) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction shall, on the summary application of the accused made within six months from the day on which samples of the blood of the accused were taken, order the release of one of the samples for the purpose of an examination or analysis thereof, subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the sample and its preservation for use in any proceedings in respect of which it was retained.

Testing blood for presence of drugs

(5) Where a sample of blood of an accused has been taken pursuant to a demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to a warrant issued under section 256, the sample may be tested for the presence of drugs in the blood of the accused.

Attendance and right to cross-examine

(6) A party against whom a certificate described in paragraph (1)(e), (f), (g), (h) or (i) is produced may, with leave of the court, require the attendance of the qualified medical practitioner, analyst or qualified technician, as the case may be, for the purposes of cross-examination.

Notice of intention to produce certificate

(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h) or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.

R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10.

Mandatory order of prohibition

259. (1) Where an offender is convicted of an offence committed under section 253 or 254 or discharged under section 730 of an offence committed under section 253 and, at the time the offence was committed or, in the case of an offence committed under section 254, within the two hours preceding that time, was operating or had the care or control of a motor vehicle, vessel or aircraft or of railway equipment or was assisting in the operation of an aircraft or of railway equipment, the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel or an aircraft or railway equipment, as the case may be,

(a) for a first offence, during a period of not more than three years plus any period to which the offender is sentenced to imprisonment, and not less than one year;

(b) for a second offence, during a period of not more than five years plus any period to which the offender is sentenced to imprisonment, and not less than two years; and

(c) for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced to imprisonment.

Note: New section 1.1 not reproduced.

Discretionary order of prohibition

(2) Where an offender is convicted or discharged under section 730 of an offence under section 220, 221, 236, 249, 250, 251 or 252, subsection 255(2) or (3) or this section committed by means of a motor vehicle, vessel or aircraft or of railway equipment, the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel, an aircraft or railway equipment, as the case may be,

(a) during any period that the court considers proper, if the offender is liable to imprisonment for life in respect of that offence;

(b) during any period not exceeding ten years plus any period to which the offender is sentenced to imprisonment, if the offender is liable to imprisonment for more than five years but less than life in respect of that offence; and

(c) during any period not exceeding three years plus any period to which the offender is sentenced to imprisonment, in any other case.

Saving

(3) No order made under subsection (1) or (2) shall operate to prevent any person from acting as master, mate or engineer of a vessel that is required to carry officers holding certificates as master, mate or engineer.

Operation while disqualified

(4) Every one who operates a motor vehicle, vessel or aircraft or any railway equipment in Canada while disqualified from doing so

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

Definition of "disqualification"

(5) For the purposes of this section, "disqualification" means

(a) a prohibition from operating a motor vehicle, vessel or aircraft or any railway equipment ordered pursuant to subsection (1) or (2); or

(b) a disqualification or any other form of legal restriction of the right or privilege to operate a motor vehicle, vessel or aircraft imposed

(i) in the case of a motor vehicle, under the law of a province, or

(ii) in the case of a vessel or an aircraft, under an Act of Parliament,

in respect of a conviction or discharge under section 730 of any offence referred to in subsection (1) or (2).

R.S., 1985, c. C-46, s. 259; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F), c. 32 (4th Supp.), s. 62; 1995, c. 22, ss. 10, 18; 1997, c. 18, s. 11.

Proceedings on making of prohibition order

260. (1) Where a court makes a prohibition order under subsection 259(1) or (2) in relation to an offender, it shall cause

(a) the order to be read by or to the offender;

(b) a copy of the order to be given to the offender; and

(c) the offender to be informed of subsection 259(4).

Endorsement by offender

(2) After subsection (1) has been complied with in relation to an offender who is bound by an order referred to in that subsection, the offender shall endorse the order, acknowledging receipt of a copy thereof and that the order has been explained to him.

Validity of order not affected

(3) The failure of an offender to endorse an order pursuant to subsection (2) does not affect the validity of the order.

Onus

(4) In the absence of evidence to the contrary, where it is proved that a disqualification referred to in paragraph 259(5)(b) has been imposed on a person and that notice of the disqualification has been mailed by registered or certified mail to that person, that person shall, after five days following the mailing of the notice, be deemed to have received the notice and to have knowledge of the disqualification, of the date of its commencement and of its duration.

Certificate admissible in evidence

(5) In proceedings under section 259, a certificate setting out with reasonable particularity that a person is disqualified from

(a) driving a motor vehicle in a province, purporting to be signed by the registrar of motor vehicles for that province, or

(b) operating a vessel or aircraft, purporting to be signed by the Minister of Transport or any person authorized by the Minister of Transport for that purpose

is evidence of the facts alleged therein without proof of the signature or official character of the person by whom it purports to be signed.

Notice to accused

(6) Subsection (5) does not apply in any proceedings unless at least seven days notice in writing is given to the accused that it is intended to tender the certificate in evidence.

Definition of "registrar of motor vehicles"

(7) In subsection (5), "registrar of motor vehicles" includes the deputy of that registrar and any other person or body, by whatever name or title designated, that from time to time performs the duties of superintending the registration of motor vehicles in the province.

R.S., 1985, c. C-46, s. 260; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F).

Stay of order pending appeal

261. (1) Where an appeal is taken against a conviction or discharge under section 730 for an offence committed under any of sections 220, 221, 236, 249 to 255 and 259, a judge of the court being appealed to may direct that any order under subsection 259(1) or (2) arising out of the conviction or discharge shall, on such conditions as the judge or court may impose, be stayed pending the final disposition of the appeal or until otherwise ordered by that court.

Effect of conditions

(2) Where conditions are imposed pursuant to a direction made under subsection (1) that a prohibition order under subsection 259(1) or (2) be stayed, the direction shall not operate to decrease the period of prohibition provided in the order made under subsection 259(1) or (2).

R.S., 1985, c. C-46, s. 261; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F); 1994, c. 44, ss. 15, 103; 1995, c. 22, s. 10; 1997, c. 18, ss. 12, 141.

 

 

 

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Stephen R. Biss, Barrister & Solicitor

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Advertisement. Any legal opinions expressed at this site relate to the Province of Ontario, Canada only. If you reside or carry on business in any other jurisdiction please consult a lawyer, solicitor, or attorney in your own jurisdiction. WARNING: All information contained herein is provided for the purpose of providing basic information only and should not be construed as formal legal advice. The author disclaims any and all liability resulting from reliance upon such information. You are strongly encouraged to seek and retain professional legal advice before relying upon any of the information contained herein.