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Lakin Afolabi is a law office based in London, Ontario with over 55 years of combined experience. We represent individuals charged with any crime at all levels of court in Ontario. Our lawyers have obtained full acquittals for individuals charged very serious charges including murder, sexual assault, aggravated assault, and drug and gun possession and drug trafficking. Should you be facing any criminal charges or be subject to an investigation, contact us for a case evaluation. Sexual Assault ...Read More
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Lakin Afolabi
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Supreme Court Allows Warrantless Penile Swabs

The Supreme Court has ruled that police are permitted to swab DNA from the penises of sexual assault suspects without obtaining a warrant (R v Saeed, 2016 SCC 24). This decision is the latest in a series of developments over the last decade that have expanded police powers to search accused persons as an incident to arrest, meaning searches that occur once someone is arrested (i.e. cavity searches, frisks, bed pan vigils, searching of the accused’s immediate surroundings).

At around 4:00 am on May 22, 2011, the complainant was said to have been “viciously attacked and sexually assaulted”. At 6:05 am, the accused was arrested – however, the police had mistakenly released the accused, and he was re-arrested at 8:35 am. Based on the complainant’s allegations, the arrested police officer believed that there were reasonable grounds to believe that the complainant’s DNA would still be found on the accused’s penis, and that a penile swab ought to be taken.

After the accused had spent 30 to 40 minutes handcuffed in a dry cell, the accused was handcuffed to a wall in a cell with no toilet or running water, all in an effort to preserve the evidence believed to be on the accused’s penis. The officer did not seek a warrant to obtain the swab, as he believed that the swab was a valid search incident to arrest. The swab occurred at 10:45 am, and the officer allowed the accused to conduct the swab himself. The accused “pulled his pants down and wiped a cotton-tipped swab along the length of his penis and around the head”. The swab was then tested and revealed the complainant’s DNA.

The accused argued that his section 8 right under the Charter to be free from unreasonable search and seizure was violated by the warrantless penile swab, and that the resulting evidence from the penile swab should be excluded. The Supreme Court found that there was no violation of the accused’s right to unreasonable search and seizure, and it proceeded to outline a general three-part test for warrantless penile swabs to be upheld as evidence:

First, the arrest must be lawful, and the penile swab must be “truly incident to the arrest, in the sense that the swab must be related to the reasons for the arrest, and must have been performed for a valid purpose”. Second, the police must have reasonable grounds to believe that the swab will afford evidence of the offence of which the accused was arrested. Third, the swab must be conducted in a reasonable manner.

The court’s majority judgment analogized penile swabs to the power of customs officers to conduct “bedpan vigils” to seize drugs from an accused’s expelled feacal matter, which are permitted on the basis that an accused’s privacy interest in his/her own bodily fluids does not extend to the drugs contained in his/her bodily waste. Similarly in the case of penile swabs, the evidence sought is not the personal information relating to the accused. Accordingly, accused persons were held not to have a significant privacy interest in the complainant’s DNA, any more than they have a significant privacy interest in drugs that have passed through their digestive system.

The Supreme Court’s ruling contained a number of indications that its willingness to allow warrantless penile swabs was at least in part due to the significant amount of media attention devoted to recent highly-publicized sexual assault cases. The majority of the Supreme Court noted that “sexual assaults are notoriously difficult to prove”, and a dissenting opinion further provided that the warrantless penile swabs “can advance compelling state interests”. In this regard, the courts have began taking a more activist approach in addressing the public pressure to make sexual assault cases more easier to prosecute in the absence of legislative changes.

The Alberta Crown prosecutor who argued the case recently spoke to the legal press and noted that she did not see the judgment as “such a big departure” from pre-existing case law, and referred to the authority of police to conduct bedpan vigils and noted that “[t]he only difference, really, is that this is a sex assault investigation compared to the exact same thing that’s done in drug cases all the time, without this same level of opposition”. She also found it “strange” that the considerations should differ based on whether the investigation was for drugs or sexual assault, as “it’s still the same act of collecting evidence”.

With respect, a number of distinctions ought to be made between bedpan vigils and penile swabbing. For one, drugs are highly tangible pieces of evidence that are inherently demonstrative; when drugs are found, there is no issue that the drugs are what they appear to be. On the other hand, DNA is evidence that is found on a much more molecular level. The accuracy of DNA testing is indisputably statistically accurate, however the potential for DNA to mistakenly to come into contact with evidence obtained from a swab is much more probable in a way drugs are not.

The Supreme Court for instance permitted the accused to perform the penile swab himself; is it not possible for the complainant’s DNA to have come into contact with the accused’s hands, which would then lead to a positive DNA sample when the accused swabs his own penis? The potential for the DNA to be interpreted as having come from the accused’s penis thereby becomes much more prejudicial, as the implication becomes more nefarious, despite the possibility for alternative explanations.

From a practical level, the Supreme Court also reviewed a number of issues relating to the police’s ability to obtain penile swabs. The court noted that penile swabs should generally be conducted at the police station, they may also be performed at another location, such as a hospital. The court also noted that the police are permitted to use force in obtaining a penile swab, but only if the force used is “necessary and proportional in the specific circumstances”. In other words, if the accused resists the swab, the police may only use the minimum amount of force necessary to obtain it. The fact that an accused resists does not entitle the police “to engage in behaviour that disregards or compromises his or her physical and psychological integrity and safety”.

Despite these safeguards, the concerns in Justice Abella’s dissent about the courts’ role in allowing warrantless penile swabs are compelling; it should not be for the courts to design a regime for genital swabs that balances the need to obtain and preserve evidence with the need to safeguard privacy interests. Rather, it ought to be incumbent upon the legislature to enact such amendments, much as it did previously for DNA samples. As the Supreme Court’s decision will likely serve as the authority on warrantless penile swabs for the foreseeable future, it will be interesting to see how the issue arises in future cases.

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Court of Appeal Clarifies Offence of Conspiracy to Aid and Abet Production of Marijuana

As the federal government prepares to roll out its campaign platform issue of marijuana legalization, law enforcement appears to remain vigilant in targeting and prosecuting marijuana-related crimes. The recent raid of marijuana dispensaries in Toronto serves as a case in point, as well as a number of media reports that indicate the police are still continuing to bring possession charges for even small quantities of marijuana.

The courts have also remained active in developing marijuana-related case law despite the impending changes. In the recent Ontario Court of Appeal case of R v Nguyen, 2016 ONCA 182 [Nguyen], the court advanced the state of the law in relation to the offence of “conspiracy to aid and abet the production of marijuana”.

The accused in Nguyen was the owner of a garden supply business that sold fertilizer, pesticides, pots, lights and devices to remove ambient odours, as well as some non-typical garden supplies, such as timers, ballasts, electromagnetic switches and electrical circuit panels. None of the products were illegal to possess. Beginning in June 2009, police commenced surveillance on the appellant and his business.

During this surveillance, the police followed the business’ customers as well as deliveries made by the appellant, and it was revealed that on four instances the customers led police to harbor grow operations. The accused was eventually arrested and charged with: (i) conspiracy to aid and abet the production of marijuana; (ii) conspiracy to aid and abet the possession of marijuana for the purpose of trafficking; (iii) aiding and abetting possession of marijuana for the purpose of trafficking; (iv) aiding and abetting the production of marijuana; and (v) money laundering.

At trial, the judge found the accused guilty of the charges and sentenced him to 20 months’ imprisonment, concurrently, on each of the conspiracy counts. The convictions on the substantive charges were stayed on the basis of the Kienapple priniciple. The appellant was also ordered to pay a fine of $2,809,211.40 in lieu of forfeiture of certain property, and ordered to forfeit a number of items, including his family and business properties. The accused was acquitted on the charge on money laundering.

The Court of Appeal overturned the conspiracy convictions, finding that the Supreme Court decision of R v JF, 2013 SCC 12 (which was released after the trial judge’s decision), had altered the applicable standard to be applied on conspiracy to aid and abet charges. The trial judge in Nguyen had characterized the issue as “whether the Crown had proven the [accused] intended to and did enter into an agreement with others to aid and abet “marihuana grow operators’ production and possession of marihuana for the purpose of trafficking by supplying them with a one stop shop for purchasing marihuana grow operation products””. On the other hand, the Supreme Court in R v JF held that “aiding a conspiracy to achieve its unlawful object(s) does not, on its own, make someone a party to the conspiracy”.

In light of this distinction, the Court of Appeal reviewed the evidence and determined that “[i]n my view, the general fact that the appellant operated a garden supply store, even knowing that nearly all of his customers wanted the products for marijuana grow operations, is not sufficient in itself to make him a party to a conspiracy to produce marihuana or possess marihuana for the purpose of trafficking”. The Court of Appeal provided a number of reasons in support of this inference, which were enumerated as follows at para 43:

  • There is no evidence of an overarching agreement to produce marihuana or possess marihuana for the purpose of trafficking to which [the accused business’] customers were parties. There is no evidence of a mutuality of purpose amongst the appellant […] and the unknown purchasers, and no common enterprise of production of marihuana or possession of marihuana for the purpose of trafficking, the conspiracy charged.
  • There is, in general, no evidence of what ASGS’s purchasers ultimately did with whatever they purchased.
  • In the event that any of the purchasers did use the products in a marihuana grow operation, there is no evidence that the appellant had any stake in those grow operations.
  • The transactions to which the appellant might have been a party through his business were separate agreements of purchase and sale of legal products.
  • Whatever use the purchasers made of the unknown garden supply products, it was too remote from the appellant’s business’s sales to them.
  • The conspiracy charged was an agreement to produce marihuana or possess it for the purpose of trafficking. This is different from the conspiracy found, an agreement to aid and abet marihuana grow operators.

Despite overturning the two counts of “conspiracy to aid and abet” offences, the Court of Appeal nonetheless upheld the appellant’s convictions for “aiding and abetting the production of marijuana”, as the court held that the accused knew that his products were destined for marijuana grow operations. In the result, the Court of Appeal imposed the original sentence made by the trial judge of 20 months concurrent incarceration, and also maintained the forfeiture orders and fine in lieu of forfeiture.

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Under What Circumstances May a Complainant’s Consent to Sexual Intercourse be Vitiated by Fraud?

Consent to sexual activity is a central element to virtually all sexual assault cases, however a complainant’s consent to sexual activity is not necessarily determinative of whether the offence of sexual assault has been breached. In some cases, the Criminal Code provides that a complainant’s consent may be negated if the accused engaged in “fraud”; in these circumstances, consent is said to be vitiated by fraud. This week’s blog post will consider this component of sexual assault cases known as “consent vitiated by fraud”.

To review, there are three ways the Crown may prove the absence of consent in sexual assault (see Morris Manning QC et al, “Manning, Mewett and Sankoff: Criminal Law, 4th edition” (Markham, ON: LexisNexis Canada, 2009) p 804): “(1) that no consent was provided by the recipient; (2) that consent in the circumstances was not possible as a matter of law; or (3) that the consent was not validly provided, in that it was vitiated by some action of the accused”. This determination can sometimes be challenging, as Criminal Code provisions governing consent overlap in ss 265(3), 273.1 and 273.2.

Consent vitiating fraud arises within two of these sections, specifically ss 265(3)(c) and 273.1(1). The resulting interplay of these sections has been interpreted by the courts to create a two-step process for analyzing consent to sexual activity. The majority in the leading Supreme Court case of R v Hutchinson, 2014 SCC 19 [Hutchinson] summarized this two-step process and the application of consent vitiated by fraud as follows:

The first step is to determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1). If the complainant consented, or her conduct raises a reasonable doubt about the lack of consent, the second step is to consider whether there are any circumstances that may vitiate her apparent consent. Section 265(3) defines a series of conditions under which the law deems an absence of consent, notwithstanding the complainant’s ostensible consent or participation: Ewanchuk, at para. 36. Section 273.1(2) also lists conditions under which no consent is obtained. For example, no consent is obtained in circumstances of coercion (s. 265(3)(a) and (b)), fraud (s. 265(3)(c)), or abuse of trust or authority (ss. 265(3)(d) and 273.1(2)(c)).


“[F]raud” for the purposes of consent has two elements: (1) dishonesty, which can include the non-disclosure of important facts; and (2) deprivation or risk of deprivation in the form of serious bodily harm which results from dishonesty.

Among the leading cases on consent vitiated by fraud were the two recent Supreme Court decisions of Hutchinson and R v Mabior, 2012 SCC 47 [Mabior]. To summarize, Mabior stands for the proposition that the accused’s failure to disclose his or her HIV status may constitute fraud that vitiates consent to sexual intercourse under s 265(3)(c). The Crown must prove beyond a reasonable doubt that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud about his/her HIV status. As such, failure to disclose HIV status may amount to fraud where the complainant would not have consented had he/she known that the accused was HIV-positive, and where the sexual contact poses a significant risk of or causes actual serious bodily. The accused’s failure to disclose HIV status amounts to fraud vitiating consent if there is a “realistic possibility” of transmission of HIV. The court accepted that consent may, in some instances, remain valid if an accused with HIV does not disclose this condition, so long as they use a condom and have a low viral load.

In Hutchinson, while the Supreme Court was in agreement that the accused should be guilty of sexual assault, the court was narrowly divided 4-3 on the method of how the conviction ought to be reached. The accused in Hutchinson had deliberately and secretly poked holes in the condoms he used when having sex with the complainant, who testified that she only consented to sex with a condom.

The thrust of the difference between the majority and concurring judgments was whether the complainant’s consent was fraudulently obtained (the majority’s opinion) or whether the complainant had never consented in the first place (the concurring judgment’s opinion). Under the majority’s reasoning, where the complainant has chosen not to become pregnant, deceptions that deprive her of the benefit of that choice by making her pregnant or exposing her to increased risk of becoming pregnant by sabotaging the condom constituted a sufficiently serious deprivation to vitiate consent under s 265(3)(c).

The Supreme Court’s decisions on fraud vitiating consent, particularly in Hutchinson, led to significant discourse within the legal community on how the doctrine of consent vitiated by fraud would apply in different hypothetical situations. As noted by one astute commentator, “[t]his seems to be one of the areas of law in which gender inequality is almost certainly guaranteed, and perhaps justified”. For instance, the test of consent vitiated by fraud protects women who lie about taking birth control pills from criminality, as this does not place the male at risk of bodily harm.

Some litigants have attempted to take matters into their own hands through civil means rather than criminally. In P(P) v D(D), 2016 ONSC 258, for instance, the male plaintiff brought an action in damages against the female defendant after she lied to him about her use of birth control and subsequently became pregnant. The plaintiff pleaded sexual battery, fraudulent misrepresentation, deceit and fraud, and alleged that he had suffered emotional harm as a result of the unplanned parenthood. The court dismissed the plaintiff’s action and held that he did not suffer financial loss as a result of fatherhood, and he did not suffer from a venereal disease or other physical harm as a result of the misrepresentation.

DISCLAIMER: The following is not legal advice, but provides general information only. You should not rely on this information to determine your legal rights and obligations. If you have specific concerns, we strongly recommend that you obtain legal advice from a lawyer.

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What Factors do Bail Courts Consider Under the Tertiary Ground of Concern?

During bail hearings, Canadian courts apply the three grounds of concern provided in s 515(10) of the Criminal Code for determining whether the accused can be released on bail: (a) flight risk and attendance at court; (b) substantial likelihood to reoffend and danger to public; and (c) detention necessary to maintain public confidence in the administration of justice. Of these three grounds of concern, the third ground with respect to the “public confidence administration of justice” provides the courts with the widest discretion to order pre-trial detention. This week’s blog post will consider this tertiary ground of concern, particularly in view of the 2015 Supreme Court decision in R v St-Cloud, 2015 SCC 27 [St-Cloud], which provided an exhaustive review of the principles to be applied by the courts under this ground of concern.

Section 515(10)(c) of the Criminal Code provides that, under the tertiary ground of concern, the following factors must be considered:

  1. the apparent strength of the prosecution’s case,
  2. the gravity of the offence,
  3. the circumstances surrounding the commission of the offence, including whether a firearm was used, and
  4. the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more

In St-Cloud, the Supreme Court provided an extensive review of how the courts should apply the tertiary ground. Prior to St-Cloud, the tertiary ground had been applied within a wide range of interpretations by bail courts. The Supreme Court observed that this prior case law had been “unduly restricted by the courts in some cases”, and that “this provision must not be interpreted narrowly or applied sparingly”. In addition, a number of essential principles were proclaimed in St-Cloud that “must guide justices in applying s 515(10)(c)”, which included the following:

  • Section 515(10)(c) does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused.
  • The four circumstances listed in s. 515(10)(c) are not exhaustive.
  • A court must not order detention automatically even where the four listed circumstances support such a result.
  • The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.
  • The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.
  • No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.
  • Section 515(10)(c) involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).
  • To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Chartervalues and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.
  • This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

The decision in St-Cloud also reviewed each of the four factors provided for under s 515(10)(c) and how these factors ought to be applied.

In relation to s 515(10)(c)(i) regarding the “apparent strength of the Crown’s case”, the Supreme Court recognized the limitations in assessing the Crown’s case given the expeditious nature of the bail system, but also noted that the court must consider any defence raised by the accused:

[58]     Despite these difficulties inherent in the release process, the justice must determine the apparent strength of the prosecution’s case. On the one hand, the prosecutor is not required to prove beyond a reasonable doubt that the accused committed the offence, and the justice must be careful not to play the role of trial judge or jury: matters such as the credibility of witnesses and the reliability of scientific evidence must be analyzed at trial, not at the release hearing. However, the justice who presides at that hearing must consider the quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his or her balancing exercise. For example, physical evidence may be more reliable than a mere statement made by a witness, and circumstantial evidence may be less reliable than direct evidence. The existence of ample evidence may also reinforce the apparent strength of the case.

[59]     On the other hand, the justice must also consider any defence raised by the accused. Rather than raising a defence at the initial hearing, the latter will most likely not do so before the release hearing held upon completion of the preliminary inquiry, and may not even raise one before trial. If the accused does raise a defence, however, this becomes one of the factors the justice must assess, and if there appears to be some basis for the defence, the justice must take this into account in analyzing the apparent strength of the prosecution’s case. As the Quebec Court of Appeal noted in a relatively recent decision, [translation] “it would be unfair to allow the prosecution to state its case if the justice is not in a position to consider not only the weaknesses of that case, but also the defences it suggests”.

With respect to the s 515(10)(c)(ii) regarding the “gravity of the offence”, the Supreme Court held that “what the justice must determine is the “objective” gravity of the offence in comparison with other offences in the Criminal Code”, which is “assessed on the basis of the maximum sentence – and the minimum sentence, if any – provided for in the Criminal Code for the offence.

Under the third factor of “circumstances surrounding the commission of the offence, including whether a firearm was used”, the St-Cloud decision mentioned the following list of possible circumstances surrounding the commission of the offence that “might be relevant” under this factor. These included: the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). Where the offence was committed by co-accused, the extent to which the accused participated in the crime may also be relevant. The Supreme Court also noted that “[t]he aggravating or mitigating factors that are considered by courts for sentencing principles can also be taken into account”.

Finally, under the fourth factor of the “fact that the accused is liable for a potentially lengthy term of imprisonment”, the Supreme Court in St-Cloud held that while it was “not desirable […] to establish a strict rule regarding the number of years that constitutes a ‘lengthy term of imprisonment’, some guidance is nonetheless required”. The Supreme Court noted that “lengthy term of imprisonment [did not] refer only to a life sentence”. The court held that in determining whether the accused is potentially liable for a “length term of imprisonment”, the justice of the peace “must consider all the circumstances of the case known at the time of the hearing, as well as the principles for tailoring the applicable sentence”. The court further noted as follows:

But this does not mean that the justice would be justified in embarking on a complex exercise to calculate the sentence the accused might receive: it must be borne in mind that interim release occurs at the beginning of the criminal process and that the justice must avoid acting as a substitute for the trial judge. That being said, there will be cases in which a claim of mitigating or aggravating circumstances appears to have sufficient merit for it to be open to the justice to consider it in determining whether the accused is liable for a potentially “lengthy term of imprisonment”. As far as possible, therefore, this fourth circumstance is assessed subjectively, unlike the second circumstance — the gravity of the offence — which is assessed objectively.

Lastly, the court noted that the four factors mentioned in s 515(10)(c) were not exhaustive, and provided some examples where other factors may be relevant. The Supreme Court included such factors as the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.), the status of the victim and the impact on society of a crime committed against that person, as well as the fact that the trial of the accused would be held at a much later date.

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The Use of Field Sobriety Tests in Impaired Driving by Drug

As the federal government prepares to introduce legislation for marijuana legalization, a significant amount of media attention has been devoted to the topic of drug-impaired driving, and the methods the government may introduce to target drivers under the influence of marijuana or other drugs. Part of the challenge in legislating drug-impaired driving offences is the difficulty in detecting the level of impairment, which is more readily quantifiable in the case of alcohol. At this time, there has yet to emerge a universally accepted roadside equivalent of a breathalyzer for drugs, despite efforts in the scientific community to develop one. Ahead of these rapid changes, this week’s blog post will review the current state of the law in relation to impaired operation of a motor vehicle by drug, specifically in relation to the types of sobriety tests that police are permitted to require if drug use is suspected.

In July 2008, several Criminal Code provisions were ratified that gave police new tools to charge drivers suspected of being impaired by drugs. Prior to 2008, sobriety tests to detect drug impairment were voluntary, and the police could not compel accused to complete sobriety tests.

Following the amendments, under s 254(2) of the Criminal Code, where an officer has reasonable grounds to suspect a person has a drug or alcohol in their body, the police officer is able to demand a person to perform forthwith physical coordination tests prescribed by regulation to determine whether a demand should be made for blood samples (as provided under s 254(3)) or whether a demand should be made to have the person submit to an evaluation by an “evaluating officer” (as provided in s 254(1)).

The physical coordination tests are usually performed at the roadside, and the types of tests are referred to as “standardized field sobriety tests” (SFST), which found in the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations. These SFST include: (a) the horizontal gaze nystagmus test, (b) the walk-and-turn test, and (c) the one-leg stand test. These tests enable the officer to determine whether there are reasonable and probable grounds to demand the person the person to submit to a drug recognition evaluation under s 254(3.1), and can give the officer objective grounds to arrest for drug impaired driving.

Upon making a drug evaluation demand under s 254(3.1), the accused person is required to submit to an evaluation by the evaluating officer, which is also referred to as a “Drug Recognition Expert” (DRE). The drug evaluation is typically conducted at the police station, and consists of the following procedures provided for in the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations:

  • A preliminary examination involving pupil measurement and comparison, pulse, eye tracking of an object;
  • A horizontal and vertical “gaze nystagmus test”;
  • A “lack-of-convergence” test;
  • Divided-attention tests, which consist of balancing, walking and turning, one legged standing test, finger to nose test;
  • Blood pressure, temperature and pulse;
  • An examination of pupil sizes under light levels of ambient light, near total darkness and direct light and an examination of the nasal and oral cavities;
  • An examination, which consists of checking the muscle tone and pulse; and,
  • A visual examination of the arms, neck and, if exposed, the legs for evidence of injection sites.

Based upon this testing, the DRE officer will form an opinion on whether the accused person is impaired by drug. If it is believed that the accused is impaired by drug, then the DRE may demand under s 254(3.4) that a sample of oral fluid, urine, or blood may be supplied by the accused. That sample is then sent for analysis to determine whether a “drug” was in the system of the suspect.

Despite the intervening eight year period since the introduction of the impaired by drug legislation, the legitimacy of DRE evidence remains a live issue in criminal litigation, as there are a number of limitations in how the evidence can predict the accuracy of impairment of an individual. For instance, urine tests are the most commonly demanded form of bodily samples to prove drug impairment, despite their inability to reveal the quantity of drug in the body, when the drug was consumed, and the ultimate issue of whether the person was impaired by the drug.

Given these vast scientific uncertainties in the government’s system for detecting drug-impaired driving, it becomes all the more critical for those charged with drug-impaired driving to hold the Crown to proving its case beyond a reasonable doubt. Moreover, given the legislative changes forthcoming in the legalization of marijuana, it will be of great interest to see how the federal government may change the rules in relation to drug-impaired driving and whether new forms of testing will be introduced.


DISCLAIMER: The following is not legal advice, but provides general information only. You should not rely on this information to determine your legal rights and obligations. If you have specific concerns, we strongly recommend that you obtain legal advice from a lawyer.

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Recent Decision on Impaired Care and Control Demonstrates the Complexity of the Offence

Under our criminal justice system, all persons (with some technical exceptions) are presumed to know and understand the law. This presumption is codified in the Criminal Code, which provides that “[i]gnorance of the law by a person who commits an offence is not an excuse for committing that offence”. Despite this lofty expectation, there are a number of complexities within the legal system which would make it difficult for the average law abiding citizen to know what the law is. One area that is often plagued with such confusion is that of impaired care or control of a motor vehicle under s 258(1)(a) of the Criminal Code. This offence criminalizes motorists for being impaired even if they are not actually driving the vehicle. The recent Ontario Court of Justice decision of R v Toyota, 2016 ONCJ 112 [Toyota], is further indicative of the subtlety of the impaired care or control offence.

In Toyota, the accused had spent the cold February evening drinking with friends at a restaurant, and had taken a taxi back to an acquaintance’s house where he had parked his car. After his acquaintance had failed to answer the front door, the accused was unable to call for a taxi because his cell phone battery had died and he did not have a car charger. Seemingly without alternative, the accused slept in the driver’s seat of his car with his ignition running and the heat on, while his seat was reclined and his seatbelt unattached. After approximately three hours of rest, the accused was greeted by a police officer and proceeded to fail a breathalyzer test.

Justice Cooper reviewed the leading authorities on impaired care or control, which provide that there are three routes for the Crown to establish care or control: (i) evidence of driving; (ii) applying the rebuttable presumption in s 258(1)(a) where the accused was in the driver’s seat; and (iii) through evidence of de facto or actual control which involves the risk of danger as an essential element. The Crown in Toyota proceeded on the third ground of risk of danger element of care and control. This third ground has a number of different components, however the most important of which is where the accused creates “a realistic risk, as opposed to a remote possibility, of danger to persons or property”. Moreover, this third ground would effectively require the accused to adduce “evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case”.

In elaborating on the elements of this third ground of a realistic risk of danger, the Court inToyota further referred to the Supreme Court’s ruling in R v Boudreault, 2012 SCC 56, which provided that a realistic risk will be deemed to have occurred if there is an intention to set the vehicle in motion. Absent an intention to drive, this realistic risk of danger may also be said to arise in three alternate ways: (1) an inebriated person who does not intend to drive may later change his mind; (2) an inebriated person behind the wheel may unintentionally set the vehicle in motion; and (3) through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property. Justice Cooper acquitted the accused, reasoning as follows:

[32] Although the defendant’s blood-alcohol readings were 160 and 160 milligrams of alcohol in 100 millilitres of blood, it is my view that once awake, it is very unlikely that he would have changed his mind and driven home. I also find it unlikely that he would have unintentionally set his vehicle in motion in his intoxicated condition. To set the car in motion he would have had to put his foot on the brake, push a button, and pull the gear lever back.

[33] I find as a fact that the Crown has not proven beyond a reasonable doubt that the defendant presented a realistic risk of danger in the particular circumstances which are before me. Therefore, I find that he was not in care or control of his vehicle at the time in question.

The Toyota decision is a further demonstration of the nuanced complexity of the impaired care or control offence, which has consequently led to wide speculation by the public on how to definitively avoid being charged with the offence. If you have been charged with impaired care or control, it is critical that all of the details in relation to the arrest are closely examined and that the evidence of the Crown is carefully scrutinized. The team of lawyers at Lakin Afolabi Law Office have extensive experience dealing with impaired driving offences, and are trained to exhaustively examine the evidence and the strength of the Crown’s case. Call us today for a consultation.

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