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Criminal - Impaired Driving (2). R. v. Kelly
In R. v. Kelly (Ont CA, 2025) the Ontario Court of Appeal allowed a Crown criminal appeal, here from "a decision acquitting the respondent of charges of causing death while driving with excess blood-drug concentration (“BDC”) and dangerous driving causing death".
Here the court considers the elements of 'dangerous driving causing death' [under CCC 320.13(3)]:(a) The modified objective standard test
[52] The actus reus of dangerous operation requires the Crown to prove that the accused was driving in a manner that is dangerous to the public, viewed on an objective standard, having regard to all the circumstances, including the nature, condition, and use of the place, and the amount of traffic that was or might reasonably have been expected to be there. It is the manner of driving, not its consequences, that matter. The mens rea requires the trier of fact to be satisfied beyond a reasonable doubt “on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances”: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43.
[53] The core question to be addressed in a determination of dangerous driving has been described by the Supreme Court as follows: “[W]hether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited”: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 41.
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(c) The correct test for establishing dangerous driving
[55] The Crown argues that this description of the test is in error. According to the Crown, the trial judge erroneously quoted Burger as holding that, on the actus reus, he must be satisfied “that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct”. That assessment is, in fact, part of the modified objective standard applied to the assessment of the mens rea element.
[56] The respondent submits that, while the trial judge could have been clearer in separating the actus reus from the mens rea, he properly considered, through an objective lens, whether the respondent was driving in manner that was dangerous to the public, having regard to all the circumstances.
[57] The Crown contends that the trial judge’s error was not simply a lack of clarity in the above description of the test for the actus reus and mens rea for the offence but a misapprehension of the correct standard which persisted through his analysis. The Crown further submits that, while the trial judge identified some factors relevant to the assessment of the respondent’s manner of driving, he failed to conduct any meaningful analysis of the broader risks that driving created. In other words, rather than assessing the risk to the public created by the respondent’s manner of driving, the trial judge focused on the risk to the Martins.
[58] The Crown highlights that this error is apparent in the trial judge’s explanation of his finding of a reasonable doubt. The trial judge accepted that the respondent was speeding at the time of the collision. In addition to the respondent’s speed, the trial judge described four factors “pertinent to the fundamental issue” of “whether or not the Crown has met the onus of proof in terms of the modified objective standard”: (1) the bend in the road would restrict the respondent’s opportunity to see the intersection and the buggy; (2) the respondent’s vehicle was in the middle of his lane at impact; (3) the respondent had the right of way; and (4) the buggy “inexplicably” crossed in front of the respondent’s vehicle. The Crown reiterates that while these factors may have been relevant to the cause of the collision, they were not addressed to whether the respondent’s driving created a risk to the public.
[59] I agree. The trial judge may have understood the relationship between the actus reus and mens rea of the offence. The factors considered by the trial judge do not relate to a proper analysis of the marked departure standard. For example, the fact that the victims may have made a mistake with respect to the right of way may have played a role in the collision, but could not have rendered the respondent’s driving less dangerous.
[60] Additionally, the factor of the bend in the road appears to have been referred to by the trial judge as explaining, in part, why the Crown had failed to establish that the respondent’s driving at the time of the collision was dangerous. However, under the proper test for dangerous driving, the fact that the respondent did not slow down at the bend in the road, notwithstanding the respondent’s restricted vision of the approaching intersection, would appear to be evidence supporting a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited of his driving.
[61] As Paciocco J.A. stated in R. v. Romano, 2017 ONCA 837, 142 W.C.B. (2d) 539, at para. 71, “Judging whether driving was dangerous by exploring whether the accused is at fault for an accident that occurred obscures the proper focus on the manner of driving, and duplicates causation considerations that arise when, as in this case, an aggravated form of dangerous driving is charged.” . R. v. Kelly [causation]
In R. v. Kelly (Ont CA, 2025) the Ontario Court of Appeal allowed a Crown criminal appeal, here from "a decision acquitting the respondent of charges of causing death while driving with excess blood-drug concentration (“BDC”) and dangerous driving causing death".
Here the court considered the 'causation' element of CCC 320.14(3) ['Operation causing death']:(a) Trends in s. 320.14(3) jurisprudence
[23] Courts in Alberta, British Columbia, New Brunswick, and Yukon have interpreted s. 320.14(3) as requiring proof that the accused, not necessarily their impairment or BAC/BDC directly, was a significant contributing cause of the fatality: R. v. Thijs, 2022 ABKB 608, at paras. 174-75; R. v. Bakko, 2022 ABPC 217, at paras. 38-39, aff’d 2024 ABCA 2, 433 C.C.C. (3d) 17, at paras. 22-30; R. v. Sakhon, 2024 BCPC 9, at paras. 133-35; R. v. Bulmer, 2023 NBKB 135, 538 C.R.R. (2d) 55, at para. 327-35; and R. v. Andre, 2022 YKTC 9, 178 W.C.B. (2d) 98, at paras. 40-46, aff’d 2024 YKCA 1, 2024 W.C.B. 87, at paras. 45-46.
[24] For the courts adopting this interpretation of s. 320.14(3), the distinction between factual causation and legal causation is key. In Bakko, at paras. 21-22, the Alberta Court of Appeal described this distinction in these terms:Factual causation is an inquiry into the mechanism of death, in a medical, mechanical or physical sense. It is determined by the “but for” test; but for the acts of the accused, would the victim have died: R v Maybin, 2012 SCC 24, para 15, [2012] 2 SCR 30; R v Nette, 2001 SCC 78, para 44, [2001] 3 SCR 488. Factual causation is not at issue on this appeal. But for Ms Bakko entering the left eastbound lane, and travelling slowly, perhaps as slow as 8 to 16 kilometres per hour in a 110 kilometre per hour zone at night, this accident would not have occurred.
Legal causation establishes moral culpability; were Ms Bakko’s actions a “significant contributing cause” to the outcome? The “accused’s unlawful actions need not be the only cause of death, or even the direct cause of death; the court must determine if the accused’s actions are a significant contributing cause of death”: Maybin, para 1; R v Smithers, 1977 CanLII 7 (SCC), [1978] 1 SCR 506, 519, 522, 34 CCC (2d) 427; R v Thijs, 2022 ABKB 608, paras 175-178. Legal causation queries whether an accused should be held responsible in law for the death that occurred, while guarding those not morally blameworthy from criminal punishment. “[T]he proper standard of causation expresses an element of fault that is in law sufficient, in addition to the requisite mental element, [the mens rea] to base criminal responsibility”: Nette, para 47. [25] In this context, causation is established where the Crown proves that an accused caused the death while driving, and at the same time committed the underlying offences of either ss. 320.14(1)(a) or (b).
[26] In Ontario, the trend has leaned the other way, with courts holding that s. 320.14(3) requires proof of a causal link between the impairment and the collision: Kalkhoran, at para. 10; and R. v. Di Luciano, 2023 ONSC 6621 [unreported: Boswell J., 22 November 2023]. The case law in Ontario has not been monolithic in this regard. These decisions appear to depart from the earlier decision in R. v. Hourihan, 2017 ONSC 727, 8 M.V.R. (7th) 76, in which Dunphy J., interpreting a preceding provision in the Criminal Code for impaired driving causing bodily harm, held that the Crown is not required to demonstrate that any particular level of impairment caused the bodily harm. Before the trial judge, the Crown relied on Hourihan at trial, along with the appellate decisions from other provinces.
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(c) The correct interpretation of s. 320.14(3)
[29] The Crown submits that the approach to the interpretation of s. 320.14(3) taken outside of Ontario is consistent with the direction from the Supreme Court in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, to interpret statutory provisions “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.”
[30] The respondent argues that it was appropriate for the trial judge, applying horizontal stare decisis, to adopt the interpretation applied in Kalkhoran. Further, the respondent submits that where a provision of the Criminal Code is ambiguous, there is a presumption that the statute be interpreted in a manner that benefits the persons whose liberty interests may be impacted by the provision. In other words, there is a presumption that Parliament only intends to expand the reach of criminal law provisions through express language and not through implication, relying on Marcotte v. Canada (Deputy Attorney General) (1974), 1974 CanLII 1 (SCC), [1976] 1 S.C.R. 108, at para. 7; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at paras. 54-55 and 59; and R. v. Fernandes, 2013 ONCA 436, 115 O.R. (3d) 746, at paras. 59-60.
[31] In my view, s. 320.14(3) of the Criminal Code is not ambiguous. A plain reading of s. 320.14(3) establishes that the elements are made out simply by operating a vehicle while impaired or with excess blood levels, and causing the death of a person. An additional causal nexus between the impairment or excess BAC/BDC and the cause of death is not required.
[32] Subsections 320.14(1) and (3) provide:320.14 (1) Everyone commits an offence who
(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;
(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or
(d) subject to subsection (7), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.
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320.14 (3) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes the death of another person. [Emphasis added.] [33] Based on the above, the elements of the offence require: (1) driving while committing the predicate offence, established through impairment and/or a BAC or BDC higher than permitted; and (2) a driver who causes the death of another person. The wording of the provision, and particularly, the addition of the relative pronoun, “who”, does not imply that the impairment must cause the death, rather that the person committing the offence must cause the death.
[34] I am persuaded by the Crown’s submissions that the text, object, and purpose of the provision militate in favour of an interpretation that would give effect to Parliament’s intention to increase road safety by “deterr[ing] persons from driving while impaired by alcohol or drugs”: 2019 Backgrounder, at p. 9. Additionally, I agree that this interpretation is consistent with this provision’s legislative and judicial history, as outlined above.
[35] Finally, as the Crown argues, where Parliament wishes to clarify a specific causation test as part of an offence, it does so expressly. For example, s. 320.13(3) (dangerous operation causing death) provides, “Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes the death of another person.” (Emphasis added.)
[36] The respondent argues that the interpretation of this provision urged by the Crown is tantamount to an absolute liability offence or a substituted mens rea. Absolute liability offences with a possibility of incarceration have been held to violate s. 7 of the Charter: Re: B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486. Similarly, the respondent highlights that offences where proof of an element of the offence may be substituted for proof of another fact will violate the presumption of innocence guaranteed by s. 11(d) of the Charter if proof of the substituted fact leads inexorably to the conclusion that proof of the essential element exists. Accordingly, the respondent submits that interpretations that are Charter-compliant should be preferred: R. v. Raham, 2010 ONCA 206, at paras. 16, 37-38.[3]
[37] The Crown disputes that interpreting the provision as it proposes constitutes an absolute liability offence. The fact that s. 320.14(3) does not require the proof of a specific causal link between the driver’s impairment, BAC, or BDC, and the fatality does not prevent the application of a causal analysis. A driver with excess BDC, who becomes involved in a fatal collision, may not be guilty of the offence under s. 320.14(3) if the trier has a reasonable doubt that the driver’s actions were a significant contributing cause of the collision, whether because of an unforeseeable intervening act, or an independent intervening act overwhelms the accused’s role: see R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at paras. 3-4, 49, and 71-72.
[38] Finally, the Crown also argues that the interpretation of causation adopted by the trial judge would lead to absurd results. For example, requiring proof that a motorist’s BAC or BDC was itself a cause of the death would incentivize the obstructive practice of post-driving consumption following serious collisions. If the Crown must relate the accused’s BAC or BDC to the time of the actual collision in bodily harm or death cases, then the accused may foil those efforts by consuming, or credibly claiming to have consumed, the impairing substance after the collision, known as the “bolus drinking defence”. According to the Crown, obstructionist post-collision consumption would remain criminalized under the simpliciter offences but would be a viable method of avoiding criminal liability for having injured or killed someone, which cannot have been Parliament’s intention when criminalizing post-collision consumption of impairing substances.
[39] I would accept the Crown’s position with respect to the concerns arising from the trial judge’s interpretation of s. 320.14(3). I also would reject the characterization of the approach adopted in other provinces, and advanced by the respondent in this case, as giving rise to an offence of absolute liability or substituted mens rea.
[40] In my view, there is good reason not to adopt the reasoning in Kalkhoran, which was subsequently adopted in Di Luciano [unreported], at para. 11.
[41] In Kalkhoran, De Sa J. primarily relied on the reasons of Trotter J. (as he then was) in R. v. Phan, 2015 ONSC 2088, 120 W.C.B. (2d) 370.
[42] In finding that the Crown had not proved the causation element in Phan, at para. 84, Trotter J. did not hold that the Crown must prove that the accused’s BAC caused the collision. Interpreting the two predecessor “cause death” provisions, Trotter J. found that: “Section 255(3) requires that the death was caused by impaired driving, whereas s. 255(3.1) requires that an individual, being in a state of "over 80", causes an accident and that death ensues from the accident”. While the accused’s driving was clearly a factual cause of the death on the “but-for” standard, Trotter J. had “grave doubts” that any driver in the same position could have done anything to avoid the collision.
[43] According to the Crown, the accused in Phan was acquitted of the “cause death” offences, not because the Crown failed to prove that his BAC was a cause of the collision, but because the collision was “unavoidable”, and therefore Trotter J. determined that the accused did not significantly contribute to the death. In other words, in Phan, legal causation was not established.
[44] De Sa J. viewed this scenario as a reason to interpret the provision as having an added element of legal causation – proof of a causal link between the excess BAC and the accident causing the death: Kalkhoran, at para. 27. He stated, at para. 17, “In some cases, however, pedestrians can act unpredictably or place themselves in harm's way. Situations can arise where the accident was unavoidable, and the impairment may not be a contributing factor in bringing about the injury and/or death: see R. v. Phan, supra, at paras. 77-82.”
[45] In my view, Trotter J.’s analysis in Phan does not support the need for an additional element to legal causation under s. 320.14(3). Rather, it illustrates how legal causation (or its absence) for this offence should be determined.
[46] Further, I do not agree with the concern raised by De Sa J. in Kalkhoran, at paras. 19-20, that the Crown's suggested interpretation would import an “automatic” legal presumption of liability for the death where there is an illegal BAC/impairment, and that a conviction under this approach would have no necessary correlation to an accused's moral blameworthiness.
[47] Adopting a precautionary approach, intended to increase road safety by deterring drug users from getting behind the wheel of a car after having consumed a drug, Parliament has chosen to criminalize the conduct of causing a death while driving with a BDC above 5 nanograms. A conviction under this provision is directly related to the moral blameworthiness of the accused’s conduct.
[48] Accordingly, properly interpreted, the essential question under s. 320.14(3) is whether the respondent caused the deaths in this case. While there is no factual dispute that the respondent was driving the car that struck the buggy and killed Daniel and Esther Martin, the Crown must also establish legal causation as set out above – i.e., that the respondent’s actions were a significant cause of the deaths.
[49] Because of the trial judge’s error with respect to the interpretation of the causal element of s. 320.14(3), the trial judge did not make findings with respect to the legal causation of the death of the Martins. For this reason, in my view, a new trial on these counts is required. . R. v. Kelly
In R. v. Kelly (Ont CA, 2025) the Ontario Court of Appeal allowed a Crown criminal appeal, here from "a decision acquitting the respondent of charges of causing death while driving with excess blood-drug concentration (“BDC”) and dangerous driving causing death".
Here the court canvasses some of the criminal law of impaired driving, and it's history:(1) The paths to establish drug-impaired or excess BDC driving
[13] It bears noting that s. 320.14(1) [SS: 'Operation while impaired'] of the Criminal Code is comprised of four distinct offences. A conviction may flow either from evidence of impairment (s. 320.14(1)(a)) or by demonstrating that the accused was driving with an excess BAC (s. 320.14(1)(b)), BDC (s. 320.14(1)(c)), or both (s. 320.14(1)(d)). For the purposes of ss. 320.14(1)(b)-(d), “excess” includes a level that is “equal to or exceeds” the prescribed threshold limits within two hours of operating a vehicle.[2]
(2) The evolution of excess blood level driving provisions in the Criminal Code
[14] The simpliciter BAC driving offence that criminalized driving with a BAC in excess of 80 mg/100 ml of blood (“driving over 80”) was first enacted in 1969: see Criminal Law Amendment Act, 1968-69 (Can.), c. 38, s. 16. The BAC offence obviated the need, and the difficulty, of proving that a driver is impaired by resort to witness observations. The Supreme Court of Canada in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157, at para. 13, noted the inherent risk of danger presented by being behind the wheel of a motor vehicle with a BAC over the legal limit, independent of factual evidence of impairment.
[15] In 2008, Parliament first enacted the excess BAC causing death offence in s. 255(3.1) to accompany the already-existing s. 255(3), which read at the time: “Every one who commits an offence under paragraph 253(a) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for life.” (Emphasis added.)
[16] At the same time, the English text of s. 255(3) was amended by replacing the word “thereby” with the expression “as a result” to instead read as “Everyone who commits an offence under paragraph 253(1)(a) and causes the death of another person as a result is guilty of an indictable offence and liable to imprisonment for life” (emphasis added): Tackling Violent Crime Act, S.C. 2008, c. 6, at s. 21(3). Examining the legislative record for these amendments, the Quebec Court of Appeal in R. c. Gaulin found that Parliament, in enacting s. 255(3.1), sought to lighten the burden of proof on the prosecution to causally link a driver’s excess BAC to impairment: R. c. Gaulin, 2017 QCCA 705, 353 C.C.C. (3d) 330, at para. 29.
[17] The global provision for impaired driving offences as it stands today, s. 320.14, was enacted in 2018: An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21, s. 15 (“Bill C-46”). The overall objective of Bill C-46 was to reduce injuries and deaths caused by dangerous or impaired operation. To achieve its objective, Parliament sought to strengthen and simplify the law as it relates to impaired driving.
(3) Distinguishing alcohol vs. drug impairment
[18] In the 2019 Backgrounder for former Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) (the “2019 Backgrounder”), the Department of Justice justified the BDC limits imposed by grounding them in the science available to approximate levels that correlate with impairment. However, it was noted at p. 13, that impairment by drugs is different and more complex than detecting impairment by alcohol:Alcohol is an exceedingly simple molecule with predictable impairing effects. Essentially, as alcohol is consumed, the BAC rises; the higher the BAC, the more profound the impairment and the greater the risk of a fatal accident. The same correlation does not exist for drugs, which have various impairing effects and impacts on driving behaviour.
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There is no dispute that THC can impair the ability to drive. However, the relationship between the concentration of THC in the blood and degree of impairment is more complex than with alcohol. If cannabis is smoked, the THC level in the blood rapidly rises and then declines quickly as the THC redistributes to the fatty tissues (sometimes before smoking is finished). As the THC level drops, impairment can persist such that a person can be significantly impaired even though they have a low level of THC in their blood. If cannabis is ingested (e.g., as an edible food product), the level of THC increases and declines more slowly than if it is smoked. Further, in chronic or regular users (including medical users), detectable levels of THC can persist in the blood (often called a “body burden”) long after the impairing effects have worn off. [19] This divergence in detecting impairment between alcohol and drugs was explored further in R. v. Robertson, 2022 ONCJ 160, 507 C.R.R. (2d) 137, in which the accused challenged the constitutionality of the simpliciter offence of excess BDC driving, among other provisions, arguing that the limit of 5 nanograms of THC per millilitre violated s. 7 of the Charter. Having the benefit of expert evidence that canvassed the current science as it related to THC levels and driver impairment, Caponecchia J. accepted the following, at paras. 27-30:
[27] An individual can have a THC reading in excess of 5ng/ml and have no measurable impairment. Conversely, an individual can have less than 5ng/ml of THC in their blood and be impaired. An expert would need to have more information to give an opinion as to impairment one way or another.
[28] For an expert to be able to give an opinion as to whether an individual is suffering from the impairing effects of THC in cannabis, it is necessary to know how recently they consumed the drug.
[29] Recent use of cannabis is highly associated with impairment. Evidence of recent use is the most important factor in determining whether an individual is impaired by THC.
[30] A single blood THC reading can provide evidence of recent use. The higher the THC concentration, the more likely that the use of cannabis was more recent. Ms. Chow agreed that a THC level of 20ng/ml or more is a reasonable indicator of recent use that takes into account the spectrum of users from naïve to habitual. A lesser level can also imply recent use. [Footnotes omitted.]
[20] In short, the correlation between BDC levels and impairment is imperfect but informed by credible science. For this reason, Bill C-46 authorizes the Governor in Council to set BDC limits by regulation to allow for “a more flexible and prompt response to the evolving science”: 2019 Backgrounder, at p. 25. As with the BAC limit, the BDC limit seeks to address inherent risks in drug-impaired driving and lighten the burden of proof placed on the prosecution.
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