Impaired Driving Causing Death. How is caustion determined according to the Québec Court of Appeal

Published On: Aug 09,2017

July 27, 2017

Impaired Driving Causing Death. How is caustion determined according to the Québec Court of Appeal Impaired driving causing death is considered to a predicate offence stemming from the original charge of impaired driving simpliciter under Section 253 of the Criminal Code of Canada. The Crown Prosecutor must prove beyond a reasonable doubt that the accused drove a vehicle while impaired and that the impairment caused by alcohol or a drug was a significant contributing cause of the death of another person.  According to the Quebec Court of Appeal, a link between impairment and the death must therefore be established. It justified its approach by canvassing the jurisprudence from the various courts in Canada including Saskatchewan and the Provincial Court in Alberta, citing with approval, Judge Rosborough decision in Craver. In 2015, in Regina v. Koma, 2015 SKCA 92 (CanLII). the Court of Appeal for Saskatchewan specifically addressed this issue (although in the context of s. 255(2.1); and decided that the prosecution did not have to establish a causal link between the accused’s blood alcohol level and the victim’s injury or the accident. It merely had to establish a temporal link between the two elements: [27]      On a plain and ordinary reading, and in its grammatical and ordinary sense, the wording of the offence under s. 255(2.1) requires the Crown to prove three things beyond a reasonable doubt so as to justify a conviction: (a)   the accused had a blood alcohol concentration of over .08 while operating a motor vehicle or having care or control of a motor vehicle, which is the offence under s. 253(1)(b) of the Criminal Code; (b)   the accused caused an accident while so operating a motor vehicle or having care or control of a motor vehicle; and (c)   the accident resulted in bodily harm to another individual. On this straightforward reading, the Crown must establish a temporal link between an accused’s prohibited blood alcohol concentration and the occurrence of an accident that has resulted in bodily harm to another, but it need not establish a causal link between those two elements. This is the interpretation given to s. 255(2.1) by the trial judge in this case and by the Court in Regina v. Carver, 2013 ABPC 140 (CanLII), 558 AR 50 [Carver], where Rosborough P.C.J. observed: [60]      Subsection 255(2.1) C.C. does not causally link the “underlying offence” of operating a motor vehicle with a proscribed blood/alcohol concentration with the additional element of causing an accident that brings about bodily harm. Rather, it conjoins two separate proof elements: (1) proof of operating a vehicle with a proscribed blood/alcohol concentration; and (2) proof that the accused caused an accident resulting in bodily harm to a person. The prosecution must prove beyond a reasonable doubt that the accused caused an accident resulting in bodily harm but there is no requirement of proof that the accused’s proscribed blood/alcohol concentration in any way brought about or contributed to that accident. [29]      This observation is well-founded because the plain and ordinary meaning of s. 255(2.1) is not altered by context. Parliament has used different language to describe the causation requirements for other consequence-related offences involving the use of a motor vehicle. As Rosborough P.C.J. noted in Carver, the word thereby or its equivalent is conspicuously absent from s. 255(2.1); whereas, as the judge in this case observed, the offence of dangerous driving causing bodily harm, for example, is committed when an individual drives dangerously and thereby causes bodily harm. The absence of thereby or its equivalent from s. 255(2.1) cannot be an oversight by Parliament. … [31]      The absence from s. 255(2.1) of a causal connection similar to that found in s. 255(2) reflects the difficulty of requiring the Crown to prove an individual has caused an accident because he or she was over .08, without the Crown leading some form of expert evidence as to the effect of blood alcohol concentrations in excess of .08 on that individual’s ability to operate a motor vehicle that is causally tied to the accident in question. However, this kind of evidentiary difficulty does not arise in cases of impaired driving or dangerous driving where objective indicia of an individual’s impairment or recklessness provide an evidentiary basis for a court to conclude the causes of an accident might include an inability to operate a motor vehicle brought on by impairment, negligence or recklessness. For this reason, the causation element of the offence of impaired driving causing bodily harm (s. 255(2)) is different. There, the Crown has to prove a causal link between an individual’s impaired operation of a motor vehicle and bodily harm to another person. [32]      Thus, for a conviction to lie under s. 255(2.1) of the Criminal Code, I conclude the Crown must prove beyond a reasonable doubt that an individual, while operating a motor vehicle or in care or control of a motor vehicle, had a blood alcohol concentration exceeding 80 mg of alcohol in 100 mL of blood and the individual caused an accident that resulted in bodily harm to another; but, s. 255(2.1) does not require the Crown to prove the individual’s over .08 blood alcohol concentration caused the accident. The judge made no error when she concluded similarly. As stated above, the Court of Appeal for Saskatchewan R. v. Carver, 2013 ABPC 140 (CanLII). a judgment rendered by the Provincial Court of Alberta in 2013. In that judgment, Rosborough, J. found that s. 255(2.1) Cr. C. requires proof that the accused caused the accident and stated that a causal link between the accused’s blood alcohol level and the accident need not be proved. This line of authority was followed in Quebec by Anouk Desaulnier, J.C.Q., in two cases. The Court of Appeal found that was the most fitting approach. In its final analysis, the court held that the Crown must prove more than a temporal link between driving with a prohibited level of blood alcohol and the accident. It stated at paragraph 42 that “an accused should not be convicted merely because, while driving with a blood alcohol level over the legal limit, he or she was involved in an accident that cannot be attributed to him or her in any way” (at para. 42). However, it is not necessary that the accused’s blood alcohol cause the accident. To permit the entry of a conviction, the accused must be a significant contributing cause of the accident because of his or her driving, actions, or omissions, and the accident caused by the accused must result in death.