Operation While Impaired by Alcohol or Drug (Sentencing Cases)
(Redirected from Refusal (Sentencing Cases))
| This page was last substantively updated or reviewed January 2019. (Rev. # 93078) |
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Offence Wording
- Punishment
320.19 (1) Everyone who commits an offence under subsection 320.14(1) [impaired operation] or 320.15(1) [refusal to provide a sample] is liable on conviction on indictment or on summary conviction
- (a) to the following minimum punishment, namely,
- (i) for a first offence, a fine of $1,000,
- (ii) for a second offence, imprisonment for a term of 30 days, and
- (iii) for each subsequent offence, imprisonment for a term of 120 days;
- (b) if the offence is prosecuted by indictment, to imprisonment for a term of not more than 10 years; and
- (c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than two years less a day.
[omitted (2) and (3)]
- Minimum fine — subsection 320.15(1)
(4) Despite subparagraph (1)(a)(i) [punishment for impaired and refusal – indictable penalty], everyone who commits an offence under subsection 320.15(1) [refusal to provide a sample] is liable, for a first offence, to a fine of not less than $2,000.
[omitted (5)]
2018, c. 21, s. 15.
[annotation(s) added]
Generally
| Case Name | Prv. | Crt. | Sentence | Summary |
|---|---|---|---|---|
| R v Hiott, 2019 ABPC 262 (CanLII), per LeGrandeur J | AB  |
PC | [penalty unknown] (dangerous) [penalty unknown] (prohibited) [penalty unknown] (impaired) | Find summaries of case. |
| R v Greavette, 2018 ONCJ 10 (CanLII), per Rose J | ON  |
PC | 30 days imprisonment | The offender was 26 and had no prior criminal record. Find summaries of case. |
| R v Foster, 2015 ABPC 109 (CanLII), per Rosborough J | AB |
PC | Find summaries of case. | |
| R v Mainville, 2015 ONSC 1931 (CanLII), per Fregeau J | ON |
SC | "the accused appealed a sentence of 45 days intermittent imprisonment following a guilty plea to “over 80”; his breath samples registered 0.191 and 0.192. The accused’s criminal record included three prior convictions for drinking and driving offences. He was Aboriginal and a residential school survivor. He had suffered from alcoholism throughout his life. The Court held that given all mitigating and aggravating circumstances, in particular his prior record and gross impairment, an intermittent sentence of 45 days imprisonment was not clearly or manifestly excessive. The sentence imposed by the trial judge was both reasonable and appropriate." (Quoting from R v Wolfe, 2015 SKPC 161 (CanLII)), at para 34
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| R v Playter, 2014 SKQB 322 (CanLII), per J | SK  |
SC | ""involved an offender who sought a curative discharge for driving while over 0.08. His breath samples were .2 and .18. He had been sexually abused as a child, and was an alcoholic, though he had been sober from 2005 to 2011 (when the offence occurred). He had five prior convictions for impaired driving/.08, six for driving while disqualified, one for failing to provide a breath sample, and one for dangerous driving. The accused’s record was described by the Court as “a significant alcohol-related record” (para 108). He was sentenced to 12 months imprisonment." (Quoting from R v Wolfe, 2015 SKPC 161 (CanLII)), at para 33 Find summaries of case. | |
| R v Fineday, 2013 SKPC 68 (CanLII), per Gray J | SK |
PC | "the accused, a 43 year old First Nations male with a significant previous criminal record, including six previous convictions for drinking and driving offences, pleaded guilty to and was convicted on a charge of “over 80”. The accused drove a motor vehicle which was involved in a single-vehicle accident. The accused subsequently provided breath samples disclosing blood/alcohol concentrations of 33mg/100mL and 32mg/100mL, respectively. He was an alcoholic, with a stable employment record, and was a survivor of residential schools. Subsequent to the commission of the offence charged, he successfully completed an in-patient alcohol therapy program, but later relapsed. He also had a seven year gap in his record. The accused’s steps in furtherance of rehabilitation were considered as significant mitigating factors. He was sentenced to one year of imprisonment, together with a six month period of probation including abstinence and counselling terms. He was further made subject to a three year driving prohibition." (Quoting from R v Wolfe, 2015 SKPC 161 (CanLII)), at para 35
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| R v Gray, 2012 CanLII 298 (NLPC), per Gorman J | NL  |
PC | 9 months imprisonment | 5 yr driving proh; 4 prior impaireds, and related record; Find summaries of case. |
| R v Gartner, 2012 ABPC 165 (CanLII), per Rosborough J | AB |
PC | Find summaries of case. | |
| R v Riggs, 2011 NLTD 26 (CanLII), per Handrigan J | NL |
SC | 4 months imprisonment | 5 yr driving prohibition; Find summaries of case. |
| R v Musseau, 2010 CanLII 2539 (NL P.C.), per Gorman J | NL |
PC | 10 months imprisonment | 3rd time impaired, car accident; readings 230; 5 yr driving proh. Find summaries of case. |
| R v Oxford, 2010 NLTD 102 (CanLII), 45 M.V.R. (5th) 79, per Seaborn J |
NL |
SC | 95 days imprisonment | Find summaries of case. |
| R v Cullen, 2009 NLCA 16 (CanLII), [2009] NJ No 57 (CA), per Wells JA |
NL |
CA | 8 months imprisonment | "the accused pled guilty to two offences, contrary to section 253 of the Criminal Code. A period of eight months imprisonment and a fifteen year driving prohibition was imposed by the trial judge. The accused appealed seeking to have the prohibition reduced. The appeal was allowed, in part. The fifteen year driving prohibition was upheld, but the Court of Appeal varied the order to allow the accused to apply to operate a motor vehicle equipped with an alcohol ignition interlock device, after a period of five years. As regards the length of the prohibition order, the Court of Appeal indicated that if it had been “dealing with a single charge for an alcohol related driving offence, the 15 year prohibition would clearly be demonstrably unfit by that standard, particularly after a gap of some 20 years between convictions. However, as the trial judge observed, while awaiting trial in respect of the March 2006 charge, the appellant again became so intoxicated he could barely communicate and function properly but, nevertheless, drove an automobile. It is difficult to conclude that a 15 year prohibition is demonstrably unfit, taking into account that fact, all of the other factors mentioned by the trial judge, and the absence of any indication of effort directed toward correcting his drinking and driving habits.”" (Quoting from R v Musseau, 2010 CanLII 2539 (NL PC)), at para 51 Find summaries of case. |
| R v White, 2009 NLTD 196 (CanLII), per Faour J | NL |
SC | 16 months imprisonment | 14 prior offences; 8yr driving prohib Find summaries of case. |
| R v Slaney, 2009 CanLII 66023 (NLPC), [2009] NJ No 327 (P.C.), per Porter J |
NL |
PC | 5 months imprisonment | "the accused pleaded guilty to an offence, contrary to section 253(1)(b) of the Criminal Code. He had an accident while driving with his 13 year old son as a passenger in his car. Both were hurt and taken to hospital, where blood samples were taken from the accused. It was determined that he had a blood-alcohol concentration of 250 milligrams. Judge Porter imposed a period of five months imprisonment and a three year driving prohibition." (Quoting from R v Musseau, 2010 CanLII 2539 (NL PC)), at para 52 Find summaries of case. |
| R v Hirtle, 2009 ABCA 22 (CanLII), [2008] AJ No 1515, per Nation J |
AB |
CA | 21 months imprisonment | offender was driving while driving while disqualified, pled to s. 253(b)--prior record with 9 alcohol-related driving offences and 3 for driving while disqualified. Find summaries of case. |
| R v Kelly, , [2008] O.J. No. 1810(*no CanLII links) | ON |
PC | 12 months imprisonment | Find summaries of cases. |
| R v Giovannini, 2007 NLPC 39742 (CanLII), per J | NL |
PC | "[T]he accused pled guilty to an offence contrary to section 253(1)(b) of the Criminal Code. His blood-alcohol readings were 160 and 140 milligrams. His four year old child was in the vehicle at the time. He had a related criminal record. Judge Porter imposed a period of ninety days incarceration and a three year driving prohibition." (Quoting from R v Musseau, 2010 NLPC 2539 (CanLII)), at para 46 Find summaries of case. | |
| R v Bear, 2007 SKCA 127 (CanLII), per Jackson J | SK |
CA | "the accused pleaded guilty to one count of operating a motor vehicle while disqualified and one count of having care or control of a motor vehicle while impaired. He had a lengthy criminal record with 20 prior convictions for driving while disqualified and 15 prior impaired driving related offences. With respect to the accused’s circumstances, the Court noted that he was Aboriginal, he was the son of alcoholic parents, and appeared to have led an impoverished childhood. The Court held that in view of his record and number of drinking and driving offences, coupled with the fact that he had been serving a sentence for a drinking and driving offence when arrested, merited significant response by the Court. The protection of the public from his drinking and driving behaviour was paramount. The sentence for the .08 offence was fixed at four years of imprisonment." (Quoting from R v Wolfe, 2015 SKPC 161 (CanLII)), at para 30 Find summaries of case. | |
| R v Pittman, 2006 NLTD 106 (CanLII), [2006] NJ No 193 (S.C.), per O'Regan J |
NL |
SC | 90 days imprisonment | Find summaries of case. |
| R v Hewlin, 2006 NLTD 56 (CanLII), [2006] NJ No 85 (SC), per LeBlanc J |
NL |
SC | 6 months imprisonment | Find summaries of case. |
| R v Kakakaway, 2006 SKCA 18 (CanLII), per Lane JA | SK |
CA | "the accused was charged with driving while impaired and operating a motor vehicle while disqualified. His blood alcohol readings were 200 and 190. He had a lengthy record of similar offences including six prior convictions for driving while disqualified and nine prior convictions for driving while exceeding .08. After his last conviction, he had been sentenced to a total of eight months incarceration. The trial judge imposed a sentence of 10 months imprisonment. This decision was overturned by the Court of Appeal which sentenced the accused to two years less a day. The Court held that the trial judge had erred in imposing a sentence that was only marginally greater than the sentence imposed for the previous conviction. A fit sentence must be one which recognizes that the public has to be protected not only from people who drive after consuming alcohol exceeding the legal limits, but also from people who drive while prohibited from doing so. As the previous conviction was in 2002, the accused did not have a long gap in his criminal record." (Quoting from R v Wolfe, 2015 SKPC 161 (CanLII)), at para 29 Find summaries of case. | |
| R v Beecher, 2005 ABCA 416 (CanLII), per Costigan JA | AB |
CA | "the accused person was first convicted of driving with excessive alcohol and driving while disqualified. He was then convicted of dangerous driving and driving while disqualified, which he committed while on judicial interim release from his first conviction. The Alberta Court of Appeal upheld the sentencing judge's sentence of 18 months imprisonment and a 5-year driving prohibition on the second offences. The accused person had a significant criminal record, which included 39 convictions for driving offences, and numerous breaches. Costigan JA for the court noted that the appellant's driving conduct had "placed the safety of others at risk, and noted that it was not an error on the part of the sentencing judge to consider the appellant's significant record and repetition of similar offences, in breach of court imposed conditions, as aggravating factors." (Quoting from R v Smith-Lowe, 2018 ABQB 896 (CanLII)), at para 38 Find summaries of case. | |
| R v Brake, 2005 CanLII 6038 (NL PC), per Gorman J | NL |
PC | "The accused, who had three prior driving and alcohol related convictions, was sentenced to 15 months' imprisonment on three further driving and alcohol related offences, a 10-year driving prohibition plus 3 years probation. There the accused had been warned by the police officer when seen in a vehicle not to operate his vehicle. Subsequently he did so and ended up blowing 280 mg of alcohol in 100 ml of blood. There was a later offence committed while awaiting trial on the first charge wherein there was a reading of 240 mg of alcohol in 100 ml of blood and then a refusal charge." (Quoting from R v Hewlin, 2006 NLTD 56 (CanLII)), at para 29
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| R v Mantee, 2005 SKCA 147 (CanLII), per Vancise JA | SK |
CA | "the accused had pled guilty to operating a motor vehicle with a blood alcohol level above .08, failing to stop without lawful excuse, and operating a motor vehicle while disqualified. The incident in question occurred while the respondent was on probation. After consuming an excessive amount of alcohol, the accused drove his vehicle in a dangerous manner in business and residential areas trying to avoid an RCMP vehicle in pursuit. He did not stop voluntarily, but only after the police vehicle disabled his car. He had 44 prior convictions which included numerous driving offences, among others five of driving over .08 and one of dangerous driving, for which latter offence he received a sentence of two years. After a sentencing circle, the trial judge had imposed a sentence of eight months conditional. The Court of Appeal overturned the trial judge’s holding. The Court found that given the serious nature of the incident and the accused’s history, a conditional sentence was not fit since it gave undue emphasis to rehabilitative aspects and none to denunciation, deterrence and the need to protect the public. A sentence of 23.5 months imprisonment was imposed, before taking into account a credit of 10 months the accused had served on remand, as well as one for the 4.5 months he had already served on his conditional sentence. The Court mentioned the gap in driving convictions since 1998, and the very positive report from his conditional sentence served in the community, as mitigating factors." (Quoting from R v Wolfe, 2015 SKPC 161 (CanLII)), at para 26 Find summaries of case. | |
| R v Power, 2004 NLCA 40 (CanLII), [2004] NJ No 229 (CA), per Roberts JA |
NL |
CA | 6 months imprisonment | "The accused, who had nine prior alcohol-related driving offences, was convicted of a s. 253(b) offence. The accused was stopped while on his way to his common-law spouse's home in order to babysit children. He thought at the time that he was not impaired but he actually blew 120 and 110 mg of alcohol in 100 ml of blood. The sentence of 6 months' imprisonment and 8-year driving prohibition was upheld by the Court of Appeal in that case." (Quoting from R v Hewlin, 2006 NLTD 56 (CanLII)), at para 27 Find summaries of case. |
| R v Butt, , [2004] N.J. No. 305(*no CanLII links) | NL |
PC | "The accused had twelve prior drinking and driving convictions and was charged with a number of offences including refusing to provide a breath sample. He was on an undertaking at the time of these offences prohibiting him from driving and as well prohibiting him from consuming alcohol. The accused was sentenced to a period of 18 months' imprisonment on the refusal charge and a total sentence of 26 months (reduced to 22 months to account for pre-trial custody) on all counts. He was prohibited from driving for a period of 15 years." (Quoting from R v Hewlin, 2006 NLTD 56 (CanLII)), at para 25 Find summaries of cases. | |
| R v Horton, 2004 SKQB 13 (CanLII), per Zarzeczny J | SK |
SC | "the accused was found guilty of impaired driving. He had five prior drinking and driving convictions and was sentenced to six months imprisonment. Although the last offence dated back to 1991, the Court did not take into account the gap in the record, presumably because the accused showed no insight in his alcohol problem." (Quoting from R v Wolfe, 2015 SKPC 161 (CanLII)), at para 32 Find summaries of case. | |
| R v Cull, 2003 NLSCTD 127 (CanLII), [2003] NJ No 213 (SC), per Dymond J |
NL |
SC | 3 months imprisonment | "the accused pled guilty to a charge under section 253(1)(b) of the Criminal Code. His blood-alcohol reading was 160 milligrams and he had five prior drinking and driving convictions. The trial judge imposed a period of three months imprisonment and a three year driving prohibition, which was the minimum prescribed penalty at the time." (Quoting from R v Musseau, 2010 CanLII 2539 (NL PC)), at para 37 Find summaries of case. |
| R v Connolly, 2002 CanLII 41923 (NLPC), [2002] NJ No 40 (PC), per Gorman J |
NL |
PC | 6 months imprisonment | "The accused who had five prior drinking and driving convictions pleaded guilty to impaired driving and a breach of probation. He was sentenced to 6 months on the impaired driving charge and an additional 10 months consecutive for the breach of probation charge. He was also placed on probation for 3 years and a 15-year driving prohibition was imposed." (Quoting from R v Hewlin, 2006 NLTD 56 (CanLII)), at para 24 Find summaries of case. |
| R v Hartery, 2001 NBCA 79 (CanLII), per Deschenes J | NB  |
CA | "the accused pled guilty to the offences of impaired driving, refusing a breathalyzer demand, uttering threats, escaping lawful custody and breach of probation. Counsel presented a joint submission requesting that a period of twelve months imprisonment and a three year driving prohibition be imposed. Judge Porter imposed a period of twelve months imprisonment and a ten year driving prohibition." (Quoting from R v Musseau, 2010 CanLII 2539 (NL PC)), at para 45 Find summaries of case. | |
| R v Hunt, 2001 CanLII 33789 (NLSCTD), per Leblanc J | NL |
SC | 23 months imprisonment | "In that case the accused had produced readings of 220 and 210 mg of alcohol in 100 ml of blood after he was noted to be operating a motor vehicle. He entered a plea of guilty to a charge under s. 253(b). He had five previous alcohol and driving-related offences on his record and had been sentenced one week earlier for a sixth conviction to 18 months' imprisonment. He was serving that sentence when he was being sentenced. The Court imposed an additional 8 months' incarceration and 15-year driving prohibition with respect to this particular offence. He had also been previously placed on probation for a period of 3 years. However, that probation order was subsequently struck by the Court of Appeal as being inappropriate in view of the fact that the resultant total sentence amounted to a penitentiary term ([2002] N.J. No. 378 (NLCA))." (Quoting from R v Hewlin, 2006 NLTD 56 (CanLII)), at para 22 Find summaries of case. |
| R v Payne, 2001 CanLII 18925 (NL PC), per Gorman J | NL |
PC | "There the accused had been convicted of impaired driving by way of summary conviction and had produced readings of 230 and 210 mg of alcohol in 100 ml of blood. He had a prior criminal record including two prior driving and alcohol-related offences. He was sentenced to 5½ months incarceration, probation for 3 years and a 3-year driving prohibition. The court there ruled that the maximum custodial sentence possible was appropriate but reduced the sentence to reflect pre-trial custody."(Quoting from R v Hewlin, 2006 NLTD 56 (CanLII)), at para 23 Find summaries of case. | |
| R v Wells, , [1997] NJ No 153 (CA) (*no CanLII links) | NL |
CA | 2 years imprisonment | Find summaries of cases. |
| R v Squires, 1995 CanLII 9848 (NL CA), [1995] NJ No 157 (CA), per Gushue JA |
NL |
CA | 12 months imprisonment | "the offender was convicted of public mischief, driving while prohibited from doing so and operation of a motor vehicle with more than eighty milligrams of alcohol per one hundred millilitres of blood, contrary to sections 140(1)(b), 251(4)(b) and 253(b) of the Criminal Code of Canada. Mr. Squires had nine previous convictions for drinking and driving related offences. The trial judge sentenced him to a period of twelve months imprisonment. On appeal, the Court of Appeal increased the sentence to a period of twenty-four months imprisonment. The sentence for the section 253(b) offence was increased from six to eighteen months imprisonment." (Quoting from R v Payne, 2001 CanLII 18925 (NL PC)), at para 20 Find summaries of case. |
| R v Lacourse, 2001 CanLII 7825 (ON SC), [2001] O.J. No. 5940 (S.C.J.), per Donohue J |
ON |
SC | "the accused was convicted of the offences of impaired driving and driving while disqualified. He had ten previous convictions for drinking and driving offences, dating back to 1970. He also had four previous convictions for driving while disqualified, dating back to 1976. However, there was a gap from 1985 to 1997 in which he had no convictions. The trial judge imposed a sentence of two and a half years imprisonment for the impaired driving offence and six months consecutive for the offence of driving while disqualified." (Quoting from R v Butt, 2004 CanLII 21863 (NL PC)), at para 34
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| R v Jones, 2001 BCCA 680 (CanLII), per Low JA | BC  |
CA | Find summaries of case. | |
| R v Desjarlais, 1998 CanLII 4853 (MB CA), per Scott CJ | MB  |
CA | [penalty unknown] (impaired) [penalty unknown] (fail to attend) | Find summaries of case. |
Refusal
| Case Name | Prv. | Crt. | Sentence | Summary |
|---|---|---|---|---|
| R v Edwards, 2013 CanLII 54004 (NL PC), per Porter J | NL |
PC | Find summaries of case. | |
| R v Gregory Louis Young , 2012 CanLII 26155 (NLPC), per Mennie J | NL |
PC | 12 months imprisonment | Find summaries of case. |
| R v Bordula, 2004 ABCA 8 (CanLII), per Wittmann JA | AB |
CA | Find summaries of case. | |
| R v Williams, 2004 NLCA 15 (CanLII), (2004), 9 MVR (5th) 183 (NLCA), per Wells CJ |
NL |
CA | 12 months imprisonment (refusal) 4 months imprisonment (disqual) |
"The accused had appealed his sentence of 12 months on a refusal charge plus an additional 4 months for driving while disqualified. He had a significant driving related record involving alcohol including six prior alcohol related driving offences and two prior convictions for driving while disqualified. The appeal was dismissed and the sentence upheld, including the 10-year driving prohibition which Wells C.J. referred to as being on the high side but not outside of the limits permitted or appropriate in that type of case." (Quoting from R v Hewlin, 2006 NLTD 56 (CanLII)), at para 26 Find summaries of case. |
Statistics
See Also
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