Criminal Law
Criminal Code of Canada: Impaired Driving Sections
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 milliliters 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.
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 practice 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.
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.
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.
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.
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 milliliters 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 milliliters 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 milliliters 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 there from 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.
If you have any questions please contact Mr. Taylor directly by phone toll-free at 1-877-753-9180 at any time.
