Criminal Code, S.C. 2018, c. 21

Consumption After Operation Ceased

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    What this means

    Notwithstanding that it has been proven that an accused’s ability to drive was impaired by alcohol or a drug, the court has a reasonable doubt based on a possibility that the accused became impaired after ceasing to operate the conveyance (a conveyance is defined as a motor vehicle, an aircraft, a vessel or railway equipment) .

    For the charge of operating a conveyance with a blood alcohol concentration that is over the legal limit, the accused would have to establish the following three things:

    1. they consumed alcohol after ceasing to operate the convenance;
    2. 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
    3. their alcohol consumption is consistent with their blood alcohol concentration as determined by the breath or blood testing.

    * Note: These three requirements came into effect as a result of amendments to the Criminal Code in 2018. It is arguable that these amendments are unconstitutional.

    For any case in which you are charged with impaired operation of a conveyance, a reasonable doubt can be raised if there is an air of reality to the possibility that you became impaired due to the consumption of alcohol or a drug after you were no longer operating a conveyance.

    If you are charged with operating a conveyance with a blood alcohol concentration that is over the legal limit, you will have to successfully convince the court that you consumed alcohol after you were no longer driving, that you did not have any reason to believe that you would be required to provide a breath or blood sample and that the amount of alcohol you consumed is consistent with your breath or blood test results. In order to establish this third requirement, we would need to retain an expert toxicologist.


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    Recent Successes

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    R. v. J.E. — Impaired Driving Causing Bodily Harm Charges Dismissed by Judge

    Our client was charged with impaired driving cause bodily harm.  He was driving in downtown Toronto just before last call when a pedestrian suddenly ran out onto the street to try to catch a taxi.  Our client was unable to stop his car in time and struck the pedestrian causing serious (but fortunately non-life threatening) injuries.  At trial, our client testified that he was a recovering cocaine addict and that late at night, he got a craving for cocaine and contacted an old friend in the hopes of obtaining drugs.  The friend agreed to meet our client for a beer at bar so our client snuck out of his house (his wife was asleep) to meet his friend.  At the bar, he and his friend each had one beer and our client’s friend talked out client out of doing drugs.  Our client’s craving passed and he agreed to drive his friend home after which he planned to return home himself.  Unfortunately, the accident with the pedestrian occurred as he was driving his friend home.  The accident occurred right in front of a bar just after last call.  A number of drunk patrons exited the bar and proceeded to yell at our client because he had struck a pedestrian.  Our client was overwhelmed by the situation and recalled that he had an unopened bottle of rum in the trunk of his car.  He proceeded to consume the alcohol before the police arrived.  Our client’s friend and his wife testified to to verify our client’s account of what happened and we also produced phone records that corroborated their evidence.  The trial judge not only had a reasonable doubt on the issue of whether or client was impaired at the time of the accident, but accepted that he was not impaired at the time, nor could any driver have avoided this accident considering how the pedestrian had suddenly run out onto the street.  The charge against our client was dismissed.