Driving this Holiday Season: Understanding Offences of Impaired Driving and Dangerous Driving

The holiday season is upon us. Every year, it feels as though everyone is trying to accomplish in one month what they set out to do in a year. The days of our lives and the roads grow busier. Then, factor in the holiday office parties, inclement weather and poor road conditions. Together, it is a recipe for disaster.

Many people are so used to driving that they don’t realize it is a privilege rather than a right, and one that is quite easy to lose. It often helps to go back to the basics and review the Criminal Code of Canada, R.S.C., 1985, c. C-46 (the “Code”). Subsection 320.12(a) of the Code, which establishes fundamental principles for impaired and dangerous driving laws, states that “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.” It is easy to lose this privilege by exceeding one or more of those boundaries. In some instances, the loss of this privilege may lead to both life-altering and criminal consequences.

This November, drivers might have heard on the news that Ontario is developing new accountability measures in addition to the Safer Roads and Communities Act, 2024 to address impaired and dangerous driving. The newly proposed measures include the initiative that would require offenders convicted of impaired driving to pay ongoing child support if they kill a child’s parent or guardian. The Ontario government news release stated that there were 182 deaths caused by impaired driving in 2021, including 96 deaths due to drinking and driving occurrences and 86 fatalities due to drugs.

According to the Nov. 25 news release, the Ontario government is seeking to strengthen penalties, suggesting to “impose a lifetime driving ban for anyone convicted of dangerous driving causing death and introduce new roadside licence suspensions for dangerous driving behaviour.”

Impaired driving and dangerous driving are both illegal and equally serious criminal offences. They are technically rather different when it comes to the Crown proving their elements in court and for counsel defending the accused. Notably, consumption of alcohol, short of the point of impairment, is not the element of the offence of dangerous operation.

However, it is “a relevant factor for the trier of fact in considering the mens rea element of the offence of dangerous driving”: R. v. McLennan, 2016 ONCA 732, at para. 27. For a trial judge to convict someone of dangerous driving, the driver does not have to be an impaired driver. Moreover, the accused could even be acquitted of impaired driving but convicted of dangerous operation on the same facts, including the consumption of alcohol on the day of the offence: R. v. Settle, 2010 BCCA 426, at para. 60. See also R. v. McLennan, 2016 ONCA 732, at paras. 23 and 27; and R. v. King, 2019 ONCJ 302, at paras. 90-91.

Section 320.14, Operation while impaired, focuses on the person’s ability to operate the conveyance and whether it was “impaired to any degree” by alcohol or drug or their combination.

In dealing with the offence under s. 320.13, Dangerous operation, the court is concerned with the “manner of driving,” which is “dangerous to the public,” as well as “the nature, condition and use of the place.”

The public does not need to be actually present but expected to be present in the area of the alleged offence: R. v. Mueller, [1975] O.J. No. 1190, 29 C.C.C. (2d) 243, at para. 7. The Court of Appeal has recently summarized the actus reus of dangerous driving in R. v. Akhtar, 2022 ONCA 279, at para. 29, citing the Mueller decision. The Supreme Court of Canada focused on the element of offence of dangerous operation, the manner of driving, in R. v. Roy, 2012 SCC 26. See also R. v. Greenberg, 2024 ONCJ 542.

The court is not strictly concerned with the consequences of the alleged dangerous driving either. Although the consequences of driving, ranging from moderate to severe, might help shed light on the manner of driving and the risks involved: 2025 Martin’s Annual Criminal Code (Annotated), p. 642.

The Supreme Court of Canada explained the mens rea for dangerous driving in R. v. Beatty, 2008 SCC 5, at para. 7 (“Beatty”). First, the modified objective test requires a “marked departure” from the civil negligence-based offence standard. Second, “evidence about the accused’s actual state of mind, if any, may also be relevant in determining the presence of sufficient mens rea”: Beatty, at para. 43; and Greenberg, at para. 11.

Whether someone misses their exit on a highway, drives in heavy snow or consumes alcohol — albeit short of the point of impairment — at a holiday party before heading home, the choice is always there: avoid making hasty and reckless decisions when it comes to one’s driving privilege. Drive safely this holiday season.

Disclaimer: This was originally published by Law360 Canada (www.law360.ca), a division of LexisNexis Canada.

Young Persons and the Self-contained Bail Regime under the Youth Criminal Justice Act

The goal of this article is three-fold: to reflect on my non-profit work experience working with children and youth, share limited relevant information about the self-contained bail regime of the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA), and briefly discuss how the proposed bail reform may affect youth bail hearings. As this goal is rather ambitious, I would only be able to scratch the surface of the last item. I leave the invitation to other counsel to contribute to this important discussion.

Working with children and youth in the community

Before applying to law school, I managed an after-school program for high school youth in several neighbourhoods in Toronto, which are designated by the city as Neighbourhood Improvement Areas. In addition to my “office” days doing desk work, I had multiple opportunities throughout the academic year to fill in for my team, consisting of youth facilitators, if they called in sick or got delayed on transit getting into work for their evening shift.

If you are a parent of a teenager, you should also know what this job might entail. Undoubtedly, it is not always easy to relate to teenagers and their issues and to find the right approach to them to get your message across. Now, factor in some additional challenges, whether it be economic barriers, personal circumstances, homelessness, disability or health-related issues. What I gleaned from this experience is the importance of having role models for youth and empowering them to co-design their program to meet their interests and needs. And key to success is creating opportunities for youth and helping them to stay out of the criminal justice system.

For lawyers working with youth 

Many children and young people may distrust adults and authority-like figures, be it parents, school principals, social workers or police officers if they had negative experiences interacting with the system in the past. They may be apprehensive about reaching out for help to familiar adults, let alone lawyers in hopes of navigating the legal system and obtaining legal advice. For a lawyer working with young clients it might be difficult to get legalese across and obtain client instructions because it takes a special skill set combined with passion and patience for a successful outcome.

Time allotted for a consultation may not be sufficient to scratch the surface let alone solve a criminal problem. Oftentimes, youth cannot afford to hire a lawyer. Some members of the criminal defence bar, knowledgeable in the YCJA regime, may choose to offer a free consultation and even take on youth matters on a pro bono basis.

Under s. 25(1) of the YCJA, “[a] young person has the right to retain and instruct counsel without delay, and to exercise that right personally, at any stage of proceedings against the young person.” If legal aid is not available or they cannot retain a lawyer, a young person may seek a court order under this section for legal representation.

In Toronto, youth under the age of 18 or anyone under the age of 25, who is experiencing homelessness, and has a legal problem and needs help navigating the criminal justice system, can also contact Justice for Children and Youth. Unfortunately, these resources are not limitless.

What is a bail hearing really?

The presumption of innocence is a cornerstone of our criminal justice system. A bail hearing is an opportunity to exercise one’s right to liberty and advocate against pre-trial detention in both Crown and reverse onus situations. Not only does detention prior to trial lead to loss of liberty, it may also lead to job loss, gaps in education, and breakdowns in relationships with family members and friends, social stigma, and psychological trauma. Any time spent in detention or pretrial custody is especially harmful and traumatic for young persons.

While release at the earliest reasonable opportunity is currently the law, detention remains a possibility, as each bail hearing entails a fact-specific risk assessment. Therefore, it is critical for the accused to be represented at this stage in a criminal proceeding.

What is a youth bail hearing?

The Youth Criminal Justice Act has a self-contained bail regime. Unlike in an adult bail hearing situation, currently, all youth offences are Crown onus. In R. v. B. (S.), 2013 ONCJ 505, at para. 2, Justice of the Peace Paul Kowarsky explained that “[u]nder section 29(3) of the Y.C.J.A. the onus is on the Crown to persuade the court, on a balance of probabilities, that it is necessary that S.B. be detained in custody pending the outcome of the proceedings against him.”

Because the “ladder principle” – R. v. Antic, 2017 SCC 27, [2017] 1 SCR 509, per Justice Richard Wagner, at para. 47 – codified in ss. 515(1) to (2.03) of the Criminal Code of Canada, applies to young persons, it may seem that youth may get bail without conditions or with a minimal number of conditions in almost all cases. However, the court may impose a condition outlined in ss. 515(4) to (4.2) of the Code if they are satisfied that the conditions of release outlined in s. 29(1)(a) to (c) of the YCJA are met. Namely, “(a) the condition is necessary to ensure the young person’s attendance in court or for the protection or safety of the public, including any victim of or witness to the offence; (b) the condition is reasonable having regard to the circumstances of the offending behaviour; and (c) the young person will reasonably be able to comply with the condition.”

Subsection 29(2)(a) to (c) of the YCJA outlines the test for detention. To paraphrase, the court cannot justify detention of a young person unless (1) they have been charged with a “serious offence” or “they have a history that indicates a pattern of either outstanding charges or findings of guilt,” (2) the primary (will not appear in court if released), secondary (will commit a serious offence if released), and tertiary (“exceptional circumstances that warrant detention”) grounds are of concern on the balance of probabilities, and (3) the proposed condition or a set of conditions do not address the risk that the youth’s conduct may present to the public. In other words, the court shall consider whether there is evidence of a substantial likelihood that the young person will, if released from custody, commit a serious offence, and the adequacy of the proposed plan of release.

The proposed bail and sentencing reform

The proposed bail and sentencing reform promises to make both bail and sentencing provisions of the Criminal Code stricter, including the ones contained in the YCJA, and aligning them with the Criminal Code. Hypothetically, an increase in the sentencing range for a “violent offence” for youth may help straddle the “serious offence” definition for the purposes of bail, thereby making it easier for the prosecution to argue in favour of detention and harder for the young person to obtain judicial interim release. As a result, a complete overhaul will require the ongoing development of jurisprudence, reaching all the way up the Supreme Court of Canada, to calibrate the youth bail hearings in practice. In the meantime, many of the young persons affected will become adults.

Disclaimer: This was originally published by Law360 Canada (www.law360.ca), a division of LexisNexis Canada.

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Impaired Driving: Evidentiary Issues for “80 and Over” Clarified

R. v. Rousselle, 2025 SCC 35 (CanLII), is one of the two most recent decision from the Supreme Court of Canada on s. 320.14(1)(b), “80 and over”. There are several reasons why this case is important for defence counsel practising in the impaired driving offences area.

1.     The Crown can rely on certificate evidence from qualified technician (which must be signed) or viva voce evidence to prove that alcohol standard used in instrument system calibration test was certified by analyst in order to benefit from statutory presumption of accuracy for breath sample analyses results in s. 320.31(1) of the Criminal Code [para. 51].

2.     The accused’s breath alcohol test results are a “conclusive proof’” of her Blood Alcohol Concentration ("BAC") at the time of the tests [para. 41].

3.     Because the statutory presumption of accuracy must be proved beyond a reasonable doubt, the Crown must “disclose to the accused” information “sufficient to determine” whether the preconditions in s. 320.31(1)(a) to (c) have been met [paras. 43 and 49, respectively]:

(a) the results of the system blank tests;
(b) the results of the system calibration checks;
(c) any error or exception messages produced by the approved instrument at the time the samples were taken;
(d) the results of the analysis of the accused’s breath samples; and
(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.

4.     Ss. 320.32 and 320.33 functions as statutory exceptions to the common law rule against the admissibility of hearsay evidence and “may be used for other purposes” [para. 56].

Takeaway:

The 2018 amendments to the Criminal Code simplified and streamlined the trial process and made the impaired driving offences easier to prosecute. Defence counsel should meticulously scrutinize disclosure, focus on evidentiary issues, and pursue all available defenses, including Charter violations, to challenge the admissibility of the accused’s breath alcohol test results at trial.