There is no need to establish a causal connection between a driver’s blood alcohol content (BAC) and the death of a third party resulting from an accident on charge under s. 255(3.1) of the Criminal Code.
By Mike Novakowski
In R. v. Gaulin, 2017 QCCA 705, the 20 year-old accused (Gaulin) attended a party where she consumed vodka shooters. She then left the party with a friend to get some cigarettes and gum from a convenience store. On the way back, Gaulin drove the car even though she had never driven before. She struck a curb, rolled the vehicle and her friend, who was now the passenger, died. A police investigation revealed that Gaulin was impaired by alcohol and had a BAC level greater than 80 milligrams of alcohol in 100 millilitres of blood (0.08). She was charged with impaired driving causing death, driving with a BAC over the legal limit causing an accident resulting in death and hit and run.
At her trial in the Court of Quebec, Gaulin admitted to having a BAC over the legal limit but denied she was impaired. She also submitted that the Crown had not proven the causal link between the impaired driving or driving over 80 mg per cent with the passenger’s death.
The judge accepted expert evidence that Gaulin’s BAC level was between 158 and 188 mg per cent and found these levels “reveal without a doubt a state of inebriation or drunkenness.” He concluded that Gaulin was impaired at the time of the accident, but ruled that the causal connection between the impairment or her BAC level and the passenger’s death was not proven beyond a reasonable doubt. Rather, the judge found through Gaulin’s testimony that her lack of driving experience, not her consumption of alcohol, caused the accident. Gaulin was acquitted of all charges but was convicted of the lesser and included offence of driving with a BAC over the legal limit.
The Crown appealed Gaulin’s acquittals to Quebec’s top court. In the Crown’s view, it was not necessary to establish a causal link between an accused’s BAC and the accident resulting in the death of the victim. Rather, it contended that mere proof of a “temporal” link between these two elements was sufficient. Gaulin, on the other hand, argued that a causal connection between driving with a BAC over the legal limit and the accident resulting in death must be proven.
Justice Belanger, speaking for the Court of Appeal, reviewed the wording of s. 255(3.1) of the Criminal Code and the case law that has developed. “The offence set out in s. 255(3.1) … covers cases where a driver who has the care or control of a vehicle, while having a blood alcohol level exceeding the legal limit, causes an accident resulting in the death of another person,” he said. This wording, he found, differed from that in s. 255(3) (impaired driving causing death) which requires the need to demonstrate a causal connection between the impaired driving and the death. Belanger went on to conclude the Crown need not prove a causal link between an accused’s BAC and the accident. However, a mere temporal link between driving with a prohibited blood alcohol level and the accident was insufficient.
In other words, the Crown must prove a connection between (1) the accused and the cause of the accident and (2) the accident and the death of a person. This interpretation would also prevent a conviction merely because a person had a BAC over the legal limit and was involved in an accident that could not be contributed to them in any way. In this case, the trial judge erred in requiring proof of a causal connection.
The Court of Appeal also determined that the trial judge erred in his analysis of the causal connection required for an impaired driving causing death charge. A new trial was ordered on both charges.
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at firstname.lastname@example.org.