Impaired Ability to Operate

• Author: Karen Jokinen/Peter Keen
• Pages: 61-76

61

Impaired Ability

to Operate

4

I. Introduction ............................................. 62

II. Actus Reus and Mens Rea .................................. 63

A. The Presumption of Voluntary Consumption of Alcohol ..... 63

B. Rebutting the Presumption ........................... 64

C. Impairment by Alcohol in Combination with Other Factors .... 64

III. Establishing Impairment: “Any Degree of Impairment Ranging

from Slight to Great” ...................................... 64

IV. Proving Impairment: Totality of the Evidence ................... 65

V. Proving Impairment: Factors to Consider ...................... 67

A. Lay Opinions ....................................... 67

B. Bad Driving Evidence ................................ 68

C. Accident ........................................... 68

D. Speech ............................................ 69

E. Eyes and Face ...................................... 69

F. Gross Motor Skills: Standing and Walking ................ 70

G. Fine Motor Skills .................................... 70

H. Mental Abilities or Emotional State . . . . . . . . . . . . . . . . . . . . . 71

I. Odour of Alcohol .................................... 71

J. Performing Divided Attention Tasks ..................... 71

K. Toxicological Evidence ................................ 72

L. Evidence Collected During Testing and While on Video ..... 73

M. Alternative Explanations .............................. 73

N. Adverse Inference from Fail or Refuse to Provide:

Criminal Code, Section 320.31(10) ..................... 73

O. Admissions ........................................ 74

VI. Conclusion: Factors to Consider ............................. 74

© 2023 Emond Montgomery Publications. All Rights Reserved.

62 Impaired Driving and Other Criminal Code Driving Oences

I. Introduction

The oence of impaired operation involves impairment either by alcohol or a drug,

or a combination of the two. It is a general intent oence, meaning the defence of

intoxication is not available.1 The only exception is a level of intoxication that amounts

to a state of automatism, which is a dicult defence to advance and which requires

psychiatric evidence.2 Since the law presumes that people act voluntarily, the onus is

on the accused, on a balance of probabilities, to prove the defence of automatism.3 Put

more bluntly, you can’t defend an allegation of drinking and driving by arguing the

accused had been drinking. The Crown does not have to prove that the accused was

aware that they were impaired or over the legal limit.4

Operation includes both driving and being in care or control. Regardless of whether

the accused is charged because of driving or merely sitting in the driver’s seat (where

the presumption of care or control applies), the Crown has to prove that the accused’s

ability to drive a motor vehicle was impaired by alcohol or a drug, or both. If the

accused person is not driving or sitting in the driver’s seat, or if the presumption of

care or control is rebutted, then the Crown has to prove de facto care or control which

is extensively discussed in Chapter 15, Operation Versus Care or Control.

The oence is as follows:

320.14(1) Everyone commits an oence who

(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.

The language of “to any degree” was first introduced in section 320.14(1)(a),

adopting the language used in R v Stellato.5 The legislative background to Bill C-466

indicates that the change was simply made to reinforce existing law, not to change it.7

Cases under the new legislation have applied this interpretation.8

1 R v Penno, [1990] 2 SCR 865, 1990 CanLII 88 at para 15.

2 R v Enns, 2016 ONSC 2229.

3 R v Stone, [1999] 2 SCR 290, 1999 CanLII 688 at paras 171, 179.

4 The Queen v King, [1962] SCR 746, 1962 CanLII 16.

5 R v Stellato, 1993 CanLII 3375, 12 OR (3d) 90 (CA), a’d [1994] 2 SCR 478, 1994 CanLII 94;

R v Ramroop, 2021 ONCA 642 at para 11.

6 An Act to amend the Criminal Code(oences relating to conveyances)and to make consequential

amendments to other Acts, 1st Sess, 42nd Parl, 2018 (assented to 21 June 2018), SC 2018, c 21.

7 Department of Justice, Legislative Background: Reforms to the Transportation Provisions of the

Criminal Code (Bill C-46) (Ottawa: Government of Canada, 2017), online (pdf): <https://

www.justice.gc.ca/eng/cj-jp/sidl-rlcfa/c46/c46.pdf>.

8 R v Raveenthran, 2021 ONCJ 106 at para 7; R v Tripp, 2021 ONCJ 153 at para 118.

© 2023 Emond Montgomery Publications. All Rights Reserved.