Court File and Parties

Court File No.: CR-20-1070 Date: 2023-03-28 Ontario Superior Court of Justice

Between: His Majesty the King – and – Leyla Safarian Kalkhoran, Defendant

Counsel: Bradley Juriansz and Philip Hsiung, for the Crown Darren Sederoff, for the Defendant

Heard: April 25-29 and May 2-4, 2022

Reasons for Decision

DE SA J.:

[1] In the course of the trial of this matter before a jury, a question arose involving the interpretation of s. 320.14(3) of the Criminal Code. I rendered a decision with reasons to follow. These are my Reasons.

Ruling on Causation Issue

[2] The offences of impaired driving and “over 80” causing death in 2017 were referenced in ss. 255(3) and (3.1) of the Criminal Code which provided:

Impaired driving causing death

(3) 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.

Blood alcohol level over legal limit — death

(3.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in the death of another person is guilty of an indictable offence and liable to imprisonment for life.

[Emphasis added.]

[3] Subsection 320.14(3) replaced both ss. 255(3) and (3.1). Subsection 320.14(3) refers back to the various simpliciter offences as set out in its subsection (1) and prescribes penalties in cases where death is caused. As of December 20, 2019, s. 320.14 reads:

Operation while impaired

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.

Operation causing bodily harm

(2) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes bodily harm to another person.

Operation causing death

(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.]

[4] The Crown takes the position that the plain language of s. 320.14(3) simply requires that the accused caused an accident while impaired or while having an illegal BAC, and that the accident resulted in death.

[5] In other words, it is not necessary that the impairment and/or illegal BAC be an operating cause of the accident. According to the Crown, a temporal link between the impairment/illegal BAC and the accident is the focus of the current legislation, and all that is required for liability under s. 320.14(3).

[6] In support of its position, the Crown contrasts the wording in s. 320.14(3) with the wording of the dangerous operation causing death offence set out in s. 320.13(3) which does contain a requirement that the death be “as a result” of the dangerous operation: Section 320.13(3) provides:

Operation causing death

(3) 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.]

[7] According to the Crown, the suggested approach is more consistent with the evolution of drinking and driving legislation toward simplification of a complicated area of law and the facilitation of detection, punishment and deterrence of drinking and driving, a problem that has wreaked havoc and devastation on Canadian roadways for decades.

[8] In support of his position, the Crown relies primarily on the statements in R. v. Koma, 2015 SKCA 92, at paras. 27-32, where the court addressed s. 255(2.1) which dealt with over .80 causing bodily harm (the preceding provision to s. 320.14(2)):

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.

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.

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.

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. [Emphasis added.]

See also R. v. Gaulin, 2017 QCCA 705, at paras. 36-38; R. v. Andrews-Somers, 2020 ONCJ 286; R. v. Ranger, 2015 ONSC 1158, at paras. 43-44; R. v. Laliberte, 2018 BCSC 2430; R. v. Thijs, 2022 ABKB 608; R. v. Bakko, 2022 ABPC 217.

[9] While there is clearly support for the suggested approach in the jurisprudence, I disagree with the interpretation suggested by the Crown.

[10] In my view, the offence set out in s. 320.14(3) requires that there be a causal link between the impairment and the accident which caused the death. The Crown retains the burden of establishing that the impaired operation was a significant contributing cause of the accident which resulted in the harm/death which is the subject of the charge.

[11] I find support for this interpretation in the decision of R. v. Phan, 2015 ONSC 2088, which also dealt with the preceding sections.

[12] Mr. Phan was charged with “over 80” causing death (s. 255(3.1)) (Count 1) and impaired driving causing death (Criminal Code, s. 255(3)) (Count 2).

[13] Trotter J. (as he then was) at paras. 73-86, addressed the differences between the wording in ss. 255(3) and 255(3.1). In discussing the causation requirement of the two sections, he explained:

… While factual causation seeks to determine what brought about an event or consequence in the physical world, legal causation focuses on whether the conduct that gave rise to that result is blameworthy. Again, the Crown is not required to prove that Mr. Phan was the only cause of Ms. Williams’ death. The question is whether Mr. Phan was blameworthy in Ms. Williams’ death, i.e. whether he was a significant contributing cause of her death: see Stuart, supra, at p. 157.

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: see R. v. Jagoe (2012), 2012 NBCA 72, 302 C.C.C. (3d) 454 (N.B.C.A.) and R. v. Karafa (2014), 2014 ONSC 2901, 311 C.R.R. (2d) 30 (Ont. S.C.J.)

Despite the language of s. 255(3.1), the basic principles of causation, as discussed in Nette and Maybin, are still applicable. The Crown cannot escape the burden of formally proving beyond a reasonable doubt that, being “over 80” (as I have already found), Mr. Phan was a significant contributing (i.e., blameworthy) cause of the accident from which death ensued. For the reasons already stated above in relation to s. 255(3), I reach the same conclusion under s. 255(3.1). In short, the collision occurred while Mr. Phan was “over 80”, not because he was “over 80.”

On Count 1, I find Mr. Phan not guilty of “over 80” causing death, but guilty of operating a vehicle while “over 80.” On Count 2, I find Mr. Phan not guilty of impaired driving causing death, but guilty of impaired driving. [Emphasis added.]

[14] In R. v. Nette (2001), 2001 SCC 78, 158 C.C.C. (3d) 486 (S.C.C.), Arbour J, explained the interrelated concepts of legal causation and factual causation in the following passage (at p. 505):

In determining whether a person can be held responsible for causing a particular result, in this case death, it must be determined whether the person caused that result both in fact and in law. Factual causation, as the term implies, is concerned with an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result. Where factual causation is established, the remaining issue is legal causation.

Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished: (citations omitted). In determining whether legal causation is established, the inquiry is directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred. […] [Emphasis added]

[15] For legal causation, as expressed in the cases above, the inquiry is directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred.

[16] There are numerous decisions in which courts have concluded that, but for a person’s impairment, a collision that results in death or bodily harm was avoidable: see, for example, R. v. Hall (2004), 11 M.V.R. (5th) 188 (Ont. S.C.J.). In such cases, the accused’s moral culpability for the injury/harm is clear.

[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.

[18] If criminal liability were derived simply from a temporal link, there would be no necessary connection between the wrongful conduct (impairment or over 80) and the significantly aggravating element of the offence outlined in s. 320.14(3), namely the death which ensued.

[19] The Crown’s suggested approach would import a legal presumption of liability for the death where there is an illegal BAC/impairment. This legal presumption would be automatic.

[20] As such, the serious consequences which flow from a conviction from s. 320.14(3) would have no necessary correlation to the accused’s moral blameworthiness. I have concerns with the interpretation advanced by the Crown for this very reason.

[21] In R. c. Gaulin, 2017 QCCA 705, the Court sought to address this concern by requiring a “causal” connection between the accused and the accident. The Court explained, at paras. 39-45:

I nevertheless believe that more than a temporal link between driving with a prohibited blood alcohol level and the accident is needed.

A double causal link must be established. First, it must be shown that the driver caused the accident. Then, it must be demonstrated that the accident resulted in injury to or the death of a person. The use of the word “cause” indicates that the legislator intended to exclude cases where the driver’s wrongful conduct cannot be linked to the accident. The driver must necessarily have been the effective cause of the accident.

This interpretation is consistent with the language of the statutory provision and the legislator’s choice when it chose different wording for the new offence in 2008.

This interpretation also ensures that the accused’s blameworthy conduct was in relation to the prohibited consequences. Indeed, 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.

Through his or her conduct or driving, the accused must have acted or failed to act in such a way as to have caused an accident. The accused’s driving must be evaluated against that of a reasonable driver.

Some wrongdoing must be attributable to the accused, who therefore must be a significant contributing cause of the accident. On this point, the tests adopted by Arbour, J. in R. v. Nette and by Karakatsanis, J. in R. v. Maybin are generally used.

In short, the accused must have significantly contributed to causing the accident, granting, however, that his or her driving need not be the sole cause of the accident. [Emphasis added.]

[22] As evident from above, the Court in Gaulin required that the accused significantly contribute to “causing” the accident. The Court held that the accused’s driving must be evaluated against that of a “reasonable driver”.

[23] The reasoning in Gaulin seems to import some form of negligence into the analysis as a means to establishing moral culpability. Again, this approach attempts to connect, albeit indirectly, the impairment/illegal BAC to the accident by requiring that the accused’s driving be evaluated as against that of the reasonable driver.

[24] In my view, the link should be established more directly which makes clear that the consequences at issue are attributable/connected to the wrong sought to be addressed by the provision itself, namely the illegal BAC. Not simply by the accused’s manner of driving as distinct from the issue of impairment which is already more clearly addressed in s. 320.13(3) (dangerous driving causing death where a marked departure is required).

[25] In cases where a connection cannot be established between the harm and the illegal BAC/impairment, the accused’s wrongful conduct would still be captured by the lesser included offences set out in s. 320.14(1).

[26] The only case provided by the Crown considering the section as currently worded is R. v. Andre, 2022 YKTC 9. In that case, the Court held that a causal connection was required. As the court explained, at paras. 41-42:

There is a substantial body of case law in this area decided under the former provisions of the Code, namely ss. 255(2.1) and 255(3.1). The language of those previous sections is very similar to ss. 320.14(2) and (3), in that a person who was driving a motor vehicle with a blood alcohol concentration exceeding the legal limit, and who “cause[d] an accident” that resulted in “bodily harm” or “death” was guilty of an indictable offence.

In considering the test for causation in the context of drinking and driving causing death or bodily harm, the Court in R. v. Gentles, 2016 BCCA 68, at para. 14, relied on the decision of the British Columbia Court of Appeal in R. v. Andrew (1994), 91 C.C.C. (3d) 97:

While it is true, having regard to the structure of s.253, that the focus is on the condition of the driver as distinguished from the manner of the driving, I am not persuaded that Parliament could have intended that a person guilty of an offence under that section should, in the absence of proof of any causal connection between that condition and the ensuing bodily harm or death, be convicted of the more serious offence. To do so would be to ignore the word “causes”. Were it otherwise, Parliament could simply have prescribed, as it has in s. 255(1) for successive convictions for driving while impaired simpliciter, heavier penalties in the event that bodily injury or death ensues. But it has not. Instead, Parliament has created a separate and more serious offence, of which a person may be convicted if his infraction of s. 253 causes either bodily harm or death. Accordingly, I am satisfied that, so long as one bears in mind the distinction between a motorist driving in an impaired condition who is involved in an accident, and the motorist driving in an impaired condition whose impaired driving ability (as evidence by driving conduct, or failure to react or to make a certain judgment) comprises a contributing cause outside of the de minimis range to the victim's bodily harm or death, the Smithers test is appropriate to apply to the offences under s. 255(2) and (3): See R. v. Power, 89 C.C.C. (3d) 1, [1994] 1 S.C.R. 601, 29 C.R. (4th) 1. [Emphasis in original.]

[27] Having regard to the above, I conclude that the offence set out in s. 320.14(3) requires that there be a causal link between the impairment/illegal BAC and the accident causing the death.

[28] The Crown retains the burden of establishing that the impaired operation/illegal BAC was a significant contributing cause to the accident resulting in the death. In other words, the section requires proof of the following elements:

i. Proof of impairment/illegal BAC ii. Proof that the impairment/illegal BAC was a significant contributing cause of an accident, and iii. Proof that the accident resulted in death.

[29] I apologize for the delay in the release of these Reasons, and I thank the Crown for the useful material provided on this issue.

Justice C.F. de Sa Released: March 28, 2023