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“Impaired Causing” and Blood Samples Key Takeaways
- If you are in a car accident and hurt or kill some, there is a good chance that the crown will try to put you in jail.
- If there is a car accident, the crown may try to get a blood sample. Like breathalyzer certificates, this is a very complex area of law.
“Impaired Causing” and Blood Samples in Canada
If the accused has injured or killed another party because of his impaired driving, he may be charged with impaired causing bodily harm or impaired causing death, or a related offence. If this occurs, the accused’s jeopardy goes up significantly, and incarceration becomes much more likely. Generally, it is safe to say that with an “impaired causing” charge all of the sanctions become much more serious.
Although the most common scenario in a “driving over 08” charge is that the crown will be relying on the certificate of analysis from a breathalyzer sample, if there is a car accident this will often not be possible. For example, the accused may have been injured in a car accident, and taken to the local hospital. In this case, it is normal for the police to attempt to get a search warrant, a blood warrant, or a blood demand in the hopes of obtaining a sample of the accused’s actual blood. Like the certificate of analysis, the law in this area is very, very complex.
For example, if the police attempt to get a general search warrant on the hospital pursuant to section 487 of the criminal code, the accused may be able to make a Garofoli application. To get the warrant, the police must swear a document called an “Information to Obtain” (ITO) which is basically a specialized form of affidavit.
A Garofoli application is a general attack on the grounds contained in the ITO. Likewise, the accused could also make an application under the Charter of Rights and Freedoms.
Indeed, in many cases the accused will be able to make the Charter application both within the general Garofoli review, and also during a Charter voire dire, although many judges prefer to hold both applications simultaneously.
Essentially, the accused is able to attack the basic grounds of the Information to Obtain and to use the Charter (typically section 8) to excise parts that breach the Constitution. However, if after this excision, the warrant is still found to have sufficient grounds, the accused can apply to have the blood sample excluded based solely on the Charter breach itself (i.e. notwithstanding the fact that the police had additional grounds outside of the Charter application).