Section 320.14(1)(a) of the Canadian Criminal Code is unique among common law jurisdictions in that a defendant may be charged with a DUI if his/her “ability to operate it [the vehicle] is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug.” There is no required minimum blood alcohol content (BAC) in Canada, although, crown prosecutors may use a defendant’s BAC level as proof of operation while impaired, even retroactively. Canada prosecutors have the burden of proving a defendant’s operating ability was impaired by drugs or alcohol beyond a reasonable doubt, not simply that drugs or alcohol was present in the defendant’s system. Here are three ways to beat a DUI charge in Canada.
1. Challenge the Sufficiency of Impairment Evidence
For Section 320.14(1)(a) impaired driving charges, witness testimony must corroborate operative impairment. This means police witnesses, first responders, or civilian witnesses must provide detailed, sworn testimony that the defendant’s driving was impaired. Sufficient evidence of impairment typically includes testimony that:
- The vehicle was behaving dangerously and/or abnormally by swerving, driving too slow or fast, or braking suddenly
- The defendant lacked coordination and focus after exiting the vehicle
- There was a strong odor of alcohol on the driver’s breath
- The driver was not able to clearly answer police questions
- The defendant was seen consuming alcohol and/or drugs immediately prior to operating a vehicle
A lack of admissible evidence that (1) the defendant was seen operating the vehicle; (2) the vehicle was being operated in a dangerous or illegal manner, and (3) the defendant had some level of drugs/alcohol in his system at the time of operation may result in dismissal of Canada DUI charges. The veracity and admissibility of witness testimony may also be challenged.
The defendant may challenge the scientific accuracy or method of collection if charged with driving over the legal limit pursuant to a breathalyzer or retroactively applicable BAC test. For example, a BAC test conducted more than 2 hours after the defendant ceased operating the vehicle is per se invalid under Canadian law. The evidence obtained thereby must be excluded from consideration during an impaired driving prosecution.
2. Challenge the Constitutionality of the Stop and/or Medical Testing
Whether the defendant has been charged with impaired driving under § 320.14(1)(a) or driving over the legal limit in violation of § 320.14(1)(b-d), any evidence obtained must have been gathered in accordance with Section 8 of the Canadian Charter of Rights and Freedoms. This right protects Canada residents from unreasonable searches and seizures. Both vehicular stops and BAC testing (breathalyzer or blood) are types of “seizures” in Canada and must be done in accordance with the law. This may mean obtaining a warrant and/or articulating a valid reason to conduct a warrantless seizure.
Any evidence of the defendant’s impairment or BAC obtained upon false evidence or in violation of § 8 must be excluded from consideration during court proceedings. For example, police officers may not arbitrarily wait near a local bar and pull drivers over to see if they are impaired. The police must actually witness illegal and/or dangerous driving behaviors to justify the stop, i.e., seizure of the defendant and his vehicle.
3. Raise a Reasonable Doubt as to an Essential Element of the DUI
Prosecutors have the initial burden of submitting evidence as to each element of a DUI charge during a DUI trial. If they fail to do so, an Edmonton DUI lawyer may move for a dismissal of all charges due to failure of proof. These motions are rarely granted, however, and the burden will then shift to the defendant to raise a reasonable doubt as to one or more of the essential elements of a DUI offence. This typically means focusing on the weakest element of the crown prosecutor’s case. For example, a defendant may submit evidence that:
- She was not the operator of the vehicle
- She was not under the influence of drugs and/or alcohol
- Her driving was not impaired and/or any impaired driving witnessed was not the result of the drugs/alcohol
- The witnesses had a reason to fabricate their testimony
Canada DUI defendants need only raise a reasonable doubt as to the prosecution’s case. They do not have to prove their defence beyond a reasonable doubt, but the evidence submitted must be such that a reasonable jury could question the sufficiency of the prosecution’s evidence.
In rare circumstances, a defendant may have a valid defence to otherwise valid DUI charges. These common-law defences include necessity, self-defence, and involuntary intoxication. A woman unknowingly slipped the date rape drug at a bar may assume she’s merely tired, not impaired by drugs, when she starts driving home. Further, driving under the influence may be excused if the danger was minimal and the action necessary to prevent greater harm. This may include fleeing immediate danger from a potential shooting or sexual assault or transporting an injured restaurant patron to a local hospital. Provided the defendant didn’t drive further than necessary to avoid the danger, this is a rarely used but valid defence to DUI charges in Canada.