Category Archives: Driving

Roadside Screening Device for Testing Drivers’ Saliva for Cannabis

In July, 2018, the Federal Government approved the first device for testing drivers’ saliva for the presence of drugs.

Until now, the police would test for drug-impaired driving by conducted a roadside standardized field sobriety test, which involves tests such as standing on one foot or walking in a straight line.

The saliva-testing device is a mobile device which will allow police officers to swab the inside of a driver’s mouth to receive a sample of oral fluid. The oral fluid would then be run in a mobile machine to test for the presence of THC to determine if there has been recent consumption of cannabis. The saliva-testing device has also been approved to test for the recent consumption of cocaine.

If a driver fails a mobile screening device, the result will be used along with other observations to form a police officer’s reasonable grounds that the driver is impaired by drugs. The driver will be arrested and transported to a police station for further testing.

Unlike an alcohol-screen device, the science behind a drug-screening device is much less established. There will be many challenges to the reliability of the mobile device and oral fluid testing.

If you have been charged with drug-impaired driving, contact Lockyer Posner Craig for assistance.

Is Driving Under the Influence Really a Criminal Offence?

Driving under the influence of alcohol or drugs can result in serious consequences, regardless of whether someone receives the penalty of a fine or imprisonment in jail.

Section 253 of the Criminal Code makes it an offence to drive while impaired by alcohol or a drug, and also makes it an offence to drive with a Blood Alcohol Concentration greater than 80 milligrams of alcohol in 100 millilitres of blood. Section 254 of the Criminal Code sets out when police can obtain breath samples and blood samples to determine whether a person has drugs or alcohol in their body. Under section 255 of the Criminal Code, impaired driving and driving “over 80” can both be prosecuted as either a summary offence or as an indictable offence. A summary offence is similar to an American misdemeanor. An indictable offence is similar to an American felony.The minimum punishment for these crimes is the same whether prosecuted as a summary or an indictable offence: for a first offence, a minimum fine of $1,000.00; for a second offence, imprisonment for a minimum of 30 days; and for each subsequent offence, imprisonment for a minimum of 120 days.

One serious difference between whether the crime is prosecuted as a summary offence or an indictable offence is the maximum penalty. If the crime is prosecuted as a summary offence, the maximum punishment is imprisonment for 18 months in jail. If the crime is prosecuted as an indictable offence, the maximum punishment is imprisonment for 5 years.

Causing bodily harm to another person as a result of impaired driving or while driving equal to or over the legal limit can only be prosecuted as an indictable offence. If convicted of impaired driving causing bodily harm or driving with a blood concentration equal to or over the legal limit causing bodily harm, the maximum penalty is imprisonment for 10 years.

Causing death of another person as a result of impaired driving or while driving with a blood concentration equal to or over the legal limit is also prosecuted as an indictable offence. The maximum punishment for such a conviction is life imprisonment.

These are serious matters that can affect your life and reputation for many years, whether the punishment is jail time or simply a fine. If you have been charged with impaired driving, contact Lockyer Posner Craig for assistance.

DUI & Your Reputation

Is My Life Over After a DUI?

We all know someone who has gotten caught driving under the influence after a drink or a few too many. Though we might not think of these people as “criminals”, impaired driving in Ontario can result in a criminal conviction regardless of how someone is punished. Even if the end result is a mandatory fine, a criminal conviction can have consequences on a person’s life long after that fine is paid.

For example, a DUI conviction under section 253 of the Criminal Code can impede job prospects, or affect entry to the USA, by appearing in criminal record and vulnerable sector checks.

There is only one way to remove the conviction from a criminal record: a “record suspension” (formerly known as a “pardon”). Obtaining a record suspension is a lengthy process. If you have a DUI conviction, you must wait 5-10 years before you can even apply for one to the Parole Board of Canada. As part of the application, you must demonstrate that you have been “of good conduct” and that you have not been convicted of any further offences. The good news is that once it is granted, the conviction will no longer appear on your criminal record or in a vulnerable sector check, and you will no longer be required to disclose the conviction on Canadian employment forms.

An impaired driving conviction is a serious matter that can affect your life and reputation for many years. If you have been charged with impaired driving, obtain legal advice and ask your lawyer to explain all of your options.

Choosing the Right Traffic Ticket Fighter for Your Case

Fighting a traffic ticket in Toronto and throughout Ontario may be necessary to protect your driver’s licence. When facing a traffic ticket, there are several options. You might represent yourself, hire a paralegal or hire a lawyer. The choice you make will depend on the nature of your charge and your unique circumstances. If you are charged with speeding 15 kilometers over the limit on the highway, or dealing with an unpaid ticket, it may be worth representing yourself. In minor cases such as this, you may be able to obtain a traffic ticket reduction. Minor traffic tickets usually carry minimal consequences.

But if you are charged with a more serious offence, like stunt driving, driving more than 40 km/hr over the speed limit, careless driving, driving without a licence, driving while disqualified, or driving without insurance, it is in your best interests to hire a legal specialist. Some paralegals provide competent representation on traffic charges. However, lawyers have special training on the law of evidence and the Charter of Rights and Freedoms. Such training and experience may prove important, and possibly necessary, to ensuring your best defence.

If you are convicted of a serious traffic charge, you could be facing a possible licence suspension, a very large fine, a significant number of demerit points, and a substantial spike in the cost of your insurance. In such cases, it may be more cost effective to hire a lawyer to defend you. If you are facing a traffic charge and you are worried about the consequences of this, feel free to contact us at (416) 847-2560.

New Laws to Target High Drivers

It is common knowledge that driving drunk can lead to criminal charges. But what if you are driving high?

Currently, under section 253 of the Criminal Code, it is an offence to drive “impaired” and it is an offence to drive with a blood alcohol level of over 80 milligrams per 100 mL of blood (known in criminal law circles as “driving over 80”).

Drivers who have not been drinking but who are stoned or high generally don’t have to worry about the “over 80” offence, but they can be charged for driving “impaired”. Indicators of driving impaired may include:

Erratic driving
Dilated pupils/reddened eyes
Failing a “standard field sobriety test” (inability to walk-and-turn, standing on one leg)
Failing a “drug recognition evaluation” (examination of various factors including pupil size, blood pressure, injection sites, balance test)
Blood/urine drug tests

Because “impairment” can be subjective and difficult to prove (even blood and urine tests may be unable to establish “impairment” at the time of the offence), it has been rarer for people to be charged with drug-related impaired driving offences.

Bill C-46 sets out to change Canada’s approach to high drivers. The bill proposes amendments to the current impaired driving law that create “over 80” style rules for drivers on drugs. Accompanying regulations will define allowable “blood drug concentrations” and drivers who are caught driving with concentrations that exceed the new limits could be criminally charged. Until regulations are created and the new law comes into force, the current law stands.

THE IMPENDING CHANGES TO APPROVED SCREENING DEVICES

by Craig Zeeh

In 2017, the government introduced Bill C-46, which is the most consequential piece of impaired driving legislation that Canada has introduced in years. Bill C-46 will add new provisions and amend old provisions of the Criminal Code for alcohol- and drug-impaired offences.

One of the significant changes of the Bill is the change to the use of approved screening devices, known as an “ASD”.
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THE NEW ADMISSIBILITY CALCULUS FOR BREATH TEST RESULTS OBTAINED IN VIOLATION OF THE CHARTER: R. V. JENNINGS

by Richard Posner

A police officer who reasonably suspects that a person is operating a motor vehicle with alcohol in his or her body may, by demand made forthwith, require that person to provide a suitable sample of breath into an approved screening device, known as an “ASD”. These devices are approved by Parliament and are the subject of important guidelines established by Ontario’s Centre of Forensic Sciences and the Alcohol Test Committee (see: https://www.csfs.ca/what-we-do/csfs-committees/atc-alcohol-test-committee/). With proper training and experience, the ASD is a relatively simple device to use, and its results are generally reliable.
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APPEALING SENTENCE

by Eva Taché-Green

Anyone charged with a criminal offence knows there is a risk they will be convicted. In 2016, for example, 64% of criminal cases in Canada ended in a finding of guilt.¹ On the other hand, anyone who has been convicted of a criminal offence knows with absolute certainty that they will be sentenced in some way. Although less than half of the sentences imposed in Canada include a period of incarceration,² other sanctions, such as fines, driving prohibitions, and probation, can have serious consequences for an offender. Long after the drama of the trial fades away, the sting of the sentence lingers, particularly where the sentence imposed feels unfair. It is understandable that an offender in this situation may want to launch a sentence appeal.
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DRUG RECOGNITION EVALUATION AND IMPAIRED DRIVING

by Alexandra Mamo

In anticipation of the upcoming legalization of marihuana, the government is ensuring that police officers become more skilled in identifying drivers who are impaired by drugs on Ontario’s highways.

The law currently allows police officers to go through three steps to determine if someone is driving while impaired.
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