Impaired/over 80 elements Flashcards
Elements of Impaired operation by alcohol or drugs? Also what section?
s. 320.14(1)(a)
The actus reus of the offence is (1) operating (2) a conveyance (whether it is in motion or not) (3) while the person’s ability to operate the vehicle is impaired (4) by alcohol or drug.
The mens rea required to establish the offence is an intention to operate a motor vehicle after the voluntary consumption (1) of alcohol or (2) of a drug which one knows or has grounds for believing might impair one’s ability to drive a motor vehicle
The Prosecutor is not required to prove that the accused knew that the consumption of alcohol would cause him or her to become impaired: It is a matter of common knowledge and experience that alcohol can cause intoxication:
What is required to prove impairment?
R v Stellato, [1993] OJ NO 18 - “If the evidence of impairment establishes any degree of impairment from slight to great the offence has been made out”
No specific test. As a general rule, a person’s ability to drive is impaired if his or her judgment is altered or physical abilities diminished.
A person’s ability to drive is impaired if he or she has a reduced capacity, in some measure, to perform those complex motor functions required to safely operate a motor vehicle, whether impacting on his or her perception or field of vision, reaction or response time, judgment, or regard for the rules of the road - r v bush 2010 ONCA
The degree of impairment does not have to reach a particular level. The test is not whether the accused’s impairment yielded a significant or marked departure from his or her normal ability to operate a motor vehicle. The section does not speak of “substantial” or “gross” impairment, but merely “impairment.” Therefore, proof of any degree of impairment — ranging from slight to great — will suffice
Evidence of impairment after driving is highly relevant and the inference that the same condition existed at the time of driving is routinely drawn
Need not be the sole cause of the accused person’s impairment, so long as it is a contributing factor.
Lay opinions about impairment are admissible and may be lead - need not call a DRE or Toxicologist. May be civilians or officers. - Bingley, 2014 ONSC 2432
Adverse inferences can be from refusal or failure to comply
inference of a consciousness of guilt only allowed to prove impairment
.
What is a conveyance?
conveyance means a motor vehicle, a vessel, an aircraft or railway equipment. (moyen de transport) - per the definition section
Mens rea for impaired operation
The mens rea required to establish the offence is an intention to operate a motor vehicle after the voluntary consumption (1) of alcohol or (2) of a drug which one knows or has grounds for believing might impair one’s ability to drive a motor vehicle
The Prosecutor is not required to prove that the accused knew that the consumption of alcohol would cause him or her to become impaired. It is a matter of common knowledge and experience .
In the absence of evidence to the contrary, the law presumes that the consumption of alcohol or a drug was voluntary:
The burden rests on the accused to rebut the presumption of voluntary consumption by raising a reasonable doubt as to whether he or she knowingly consumed the alcohol or the drug.
Elements of over 80 + section
320.14 (1)(b)
Under s. 320.14 (1)(b), a person commits the actus reus of “over 80” if he or she (1) operates or operated (2) a conveyance (whether it is in motion or not) (3) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds 80 mg of alcohol in 100 ml of blood (4) within 2 hours of ceasing to operate said conveyance
Exception — alcohol
(5) No person commits an offence under paragraph (1)(b) if
• (a) they consumed alcohol after ceasing to operate the conveyance;
• (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
• (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.
Presumption of Care and Control - section and what is the presumption?
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.
If the accused was found in the driver’s seat then the defence has to rebut that presumption on a balance of probabilities
Is rebutted if not in the actual driver’s seat or no intention to drive.
Crown may then prove de facto or actual care and control
de facto care and control - what case and how to prove?
essential elements of “care or control” -R. v. Boudreault, 2012 SCC 56 - para 33
(1) any intentional course of conduct associated with a motor vehicle;
(2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;
(3) in circumstances that create a realistic risk of danger to persons or property.
Realistic risk is a low threshold. It is only “theoretically possible” but need not be “probable, serious or, substantial” The risk need not be substantial. See 2012 ONCA 524.
A realistic risk of danger may arise in at least three ways. `
(1) an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and
proceed to do so;
(2) second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and
(3) through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.
“The prosecutor is not required to prove that the motorist would form an intent to set the vehicle in motion so as to
create a risk, only that the motorist’s involvement with the MV could create such a risk”
Men’s rea of CC: 1. voluntarily assumed CC of vehicle; 2 after voluntary consumption of alcohol or drug
Also required MV whether in motion or not, while ability to operate is impaired by any degree per s 320.14(a)
Does an evaluating officer’s opinon need to be qualified? What section?
Admissibility of evaluating officer’s opinion
320.31 (1) (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.
When are samples recieved into an ASD conclusive? Section?
- 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
(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;
(b) there was an interval of at least 15 minutes between the times when the samples were taken; and
(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.
Presumption of Reading? What section? How many hours and what mgs does the presumption kick in?
Presumption — blood alcohol concentration
320.31 (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.
Is a certificate of an analyst, qualified med practitioner or qualified technician evidence of the facts alleged? What section?
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.
: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.
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.
What is the effect of an officer having an ASD on a traffic stop? What section?
NO REASONABLE SUSPISION REQUIRED IF HAVE ASD
Mandatory alcohol screening
320.27 (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.
What is the legal standard required for SFST or ASD (Alcohol Screening Device) demand on the roadside? CC section?
- 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 (Including CC), 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:
(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;
(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;
Meaning of “Reasonable Grounds to Suspect”
“Reasonable grounds to suspect” is the same as “reasonable suspicion.” “Reasonable suspicion” involves possibilities; “reasonable grounds to believe” involve probabilities: R. v. MacKenzie, 2013 SCC 50 at para. 38 & 74; R. v. Chehil, 2013 SCC 49 at para. 27.
The Threshold for Reasonable Suspicion
Reasonable suspicion is something more than a mere hunch or guess. It is a less demanding standard than reasonable grounds to believe, not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish reasonable grounds to believe, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show reasonable grounds to believe: R. v. Kang-Brown, [2008] S.C.J. No. 18 at paras. 75-79.
One’s reasonable suspicion will much more frequently be wrong than will one’s reasonable grounds to believe: R. v. Williams, [2010] O.J. No. 1324 (S.C.J.) at paras. 43-44.
Calibration of Approved Screening Device and if it is approved. What is the prosecutor required to prove?
Calibration
In order to provide the officer with grounds to arrest or make a demand, the officer administering the ASD need not know, nor testify to, the level at which the ASD is calibrated to register a fail, nor whether the device was calibrated properly, nor that it was working properly. It is sufficient that the officer reasonably believed the device would provide him or her with a reliable result: R. v. MacDonnell, [2004] O.J. No. 927 (S.C.J.); R. v. Davis, [1998] O.J. No. 1702 (Gen. Div.), aff’d [1998] O.J. No. 2463 (C.A.); R. v. Coutts, [1999] O.J. No. 2013 (C.A.) at paras. 19-21; R. v. Beharriell, [2014] O.J. No. 882 (S.C.J.) at paras. 38-42; R. v. Xuan, 2014 ONSC 4601 at para. 20.
Specifically, the officer administering an ASD test need not have personally calibrated the ASD before administering it: R. v. Beech, [1993] O.J. No. 3478 (C.A.) or confirm or have up-to-date information regarding the calibration of the ASD: R. v. Huang, 2014 ONSC 4785 at paras. 3-5.
Indeed, an officer may still rely on an ASD that is beyond its scheduled calibration check date: R. v. Topaltsis, [2006] O.J. No. 3181 (C.A.) at paras. 6-9; R. v. Mandarino, [2008] O.J. No. 771 (S.C.J.) at paras. 28-30, aff’d [2010] O.J. No. 865 (C.A.); R. v. Mason, [2009] O.J. No. 4468 (S.C.J. ) at paras. 13, 17-18; R. v. Morton, [2009] O.J. No. 4370 (S.C.J.) at para. 27; R. v. Merritt, [2010] O.J. No. 1568 (S.C.J.) at paras. 17-18; R. v. Biccum, 2012 ABCA 80 at para. 22; R. v. Aiken, 2011 ONSC 6519 at paras. 5, 11-21; R. v. Coyle, 2013 ONSC 6925 at para. 63.
Proof of device as “approved”
The Prosecutor need not prove that the ASD was in fact an “approved” device: R. v. Kosa, [1992] O.J. No. 2594 (C.A.); R. v. Weare, [2005] O.J. No. 2411 (C.A.); R. v. Young, [2007] O.J. No. 1776 (C.A.). Consequently, the officer need not refer to the particular brand or number of the device, let alone do so correctly: R. v. Gundy, 2008 ONCA 284 at paras. 44-50; R. v. Zhao, 2014 ONSC 1985 at paras. 13-16.
It is sufficient if the officer reasonably believed that the device he or she was using would provide him with reasonable grounds: R. v. Gundy, 2008 ONCA 284 at paras. 41-50; R. v. Zhao, 2014 ONSC 1985 at paras. 3-16.
The fact that the officer requested an ASD, was provided with a device used and maintained by his police service for the detection of impaired drivers, and that the device registered a “fail” is sufficient evidence from which to infer the officer subjectively and objectively had a reasonable belief in the accuracy of the result…
What is the legal standard to make a demand for an approved instrument or blood? What section?
- 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,
(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
(b) require the person to accompany the peace officer for the purpose of taking samples of that person’s breath or blood.
Reasonable and probable grounds:
“Reasonable grounds to suspect” involves possibilities; “reasonable grounds to believe” involve probabilities, and is therefore a higher threshold: R. v. MacKenzie, 2013 SCC 50 at paras. 38, 74; R. v. Chehil, 2013 SCC 49 at para. 27.
The threshold for reasonable grounds is “reasonably-based probability,” which is something less than a prima facie case: R. v. Storrey, [1990] S.C.J. No. 12; R. v.
The term “reasonable and probable grounds” does not import a requirement of “more likely than not,” or a “51% of probability”: Ontario (Alcohol and Gaming Commission, Registrar) v. 751809 Ontario Inc. (c.o.b. Famous Flesh Gordon’s)
“probable” in this context simply means “beyond mere suspicion:” Allen v. Alberta (Law Enforcement Review Board), 2013 ABCA 187 at para. 27
