Canadian Criminal Sentencing/Offences/Impaired Driving, Over 80 and Refusal

Impaired Driving, Over 80 and Refusal
Impaired Driving, Over 80 and Refusal
	s. 254 253, 254 of the Crim. Code
Election / Plea
Crown Election	Hybrid
Jurisdiction	Prov. Court ; SC Judge + PI (I) ; SC Jury + PI (I) (536(2))
Minimum	$1,000 + ; 12 months Driving Prohib.(first); 30 days jail + 2 to 5 years Driving Prohib. (second); 120 days +; 3 or more years Driving Prohib. (three or more)
Maximum	18 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	same as summary
Maximum	5 years jail
References
	Offence Elements ; Sentence Principles ; Sentence Digests;
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Legislation

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 $1,000,

(ii) for a second offence, to imprisonment for not less than 30 days, and

(iii) for each subsequent offence, to imprisonment for not less than 120 days;

(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and

(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.

...
Previous convictions
(4) A person who is convicted of an offence committed under section 253 or subsection 254(5) is, for the purposes of this Act, deemed to be convicted for a second or subsequent offence, as the case may be, if they have previously been convicted of

(a) an offence committed under either 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.

Conditional discharge
(5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under section 253, after hearing medical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcohol or drugs and that it would not be contrary to the public interest, by order direct that the person be discharged under section 730 on the conditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation to that consumption of alcohol or drugs.
*[Note: In force in the Provinces of Nova Scotia, New Brunswick, Manitoba, Prince Edward Island, Saskatchewan and Alberta and in the Yukon Territory and the Northwest Territories, see SI/85-211 and SI/88-24.]
Aggravating circumstances for sentencing purposes
255.1 Without limiting the generality of section 718.2, where a court imposes a sentence for an offence committed under this Act by means of a motor vehicle, vessel or aircraft or of railway equipment, evidence that the concentration of alcohol in the blood of the offender at the time when the offence was committed exceeded one hundred and sixty milligrams of alcohol in one hundred millilitres of blood shall be deemed to be aggravating circumstances relating to the offence that the court shall consider under paragraph 718.2(a).

– CCC

Application

Principles

Impaired driving causes "the most significant social loss to the country"^[1]

The primary principle to be considered is general deterrence.^[2]

The lack of bodily harm or death is not necessarily eliminate the need to protect the public.^[3] The Court can consider the risk of potential harm from the offender's conduct.^[4]

In Manitoba, impaired causing bodily harm will typically involve a range of sentence from 3 to 18 months.^[5]

In Nova Scotia, the range of sentence for impaired driving causing death with no prior record is 2 to 5 years.^[6]

↑ eg.R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190 at 42, and R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254
↑ Squires, [1995] N.J. No. 157 (C.A.) at page 5
R. v. McVeigh 1985 CanLII 115 (ON CA) at page 150
↑ R. v. Connolly,[2002] N.J. No. 40 (P.C.) at para 18
Riggs, 2011 NLTD(G) 26 at para 37
R. v. Jacobs, (1982), 70 C.C.C. (2d) 569 (Alta. C.A.)
R. v. Alexson (1987), 7 M.V.R. (2d) 95 (Sask. C.A.))
↑ R. v. Woodward, (1993), 108 Nfld. & P.E.I.R. 240 (N.L.C.A.))
↑ R. v. MacDonald 1999 CanLII 5083 (MB CA), (1999), 139 C.C.C. (3d) 524 (Man. C.A.)
↑ R v Morine, 2011 NSSC 46 at 79

Factors

Aggravating factors:

BAC reading, esp. if exceeding 160mg
other signs of a high degree of impairment
injuries to other persons
prior alcohol-related convictions, including dates

See also:Musseau, [2010] N.J. No. 25 (P.C.)

Ranges

See: Canadian Criminal Sentencing/Appendix/Motor Vehicle Case Law

[1] .R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190 at 42, and R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254

[2] Squires, [1995] N.J. No. 157 (C.A.) at page 5
R. v. McVeigh 1985 CanLII 115 (ON CA) at page 150

[3] R. v. Connolly,[2002] N.J. No. 40 (P.C.) at para 18
Riggs, 2011 NLTD(G) 26 at para 37
R. v. Jacobs, (1982), 70 C.C.C. (2d) 569 (Alta. C.A.)
R. v. Alexson (1987), 7 M.V.R. (2d) 95 (Sask. C.A.))

[4] R. v. Woodward, (1993), 108 Nfld. & P.E.I.R. 240 (N.L.C.A.))

[5] R. v. MacDonald 1999 CanLII 5083 (MB CA), (1999), 139 C.C.C. (3d) 524 (Man. C.A.)

[6] R v Morine, 2011 NSSC 46 at 79

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