TORONTO CRIMINAL and DUI LAWYERS
FAQ - Impaired Causing Death
1. What is operation while impaired causing death?
Operation while impaired causing death can be done in four different ways.
By operating a conveyance while the person's ability to operate the conveyance is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug and while operating the conveyance, causing the death of another person.¹
By having, 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 and while operating the conveyance, causing the death of another person.²
By having, 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 and while operating the conveyance, causing the death of another person.³
By having, 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 and while operating the conveyance, causing the death of another person.⁴
¹ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(a), 320.14(3).
² "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(b), 320.14(3).
³ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(c), 320.14(3).
⁴ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(d), 320.4(3).
2. What is a "Conveyance" in this Context?
A conveyance is defined as a motor vehicle, a vessel, an aircraft, or railway equipment.⁵
⁵ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.11.
3. What is a "Motor Vehicle" in this Context?
A motor vehicle is defined as a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.⁶
⁶ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 2.
4. What is "Operation" in this Context?
To operate is defined as in respect of a motor vehicle, to drive the motor vehicle or to have care or control of the motor vehicle;⁷ in respect of a vessel or aircraft, to navigate the vessel or aircraft, to assist in the vessel's or aircraft's navigation or to have care or control of the vessel or aircraft;⁸ and in respect of railway equipment, to participate in the direct control of the railway equipment's motion, or to have care or control of the railway equipment as a member of the equipment's crew, as a person who acts in lieu of a member of the equipment's crew by remote control, or otherwise.⁹
⁷ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.11.
⁸ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.11.
⁹ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.11.
5. What are the prohibited blood drug concentrations?
The prescribed blood drug concentrations for the offence of operation while impaired causing death by having, 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 and while operating the conveyance, causing the death of another person is as follows.
Tetrahydrocannabinol (THC) is 5 ng/mL of blood.¹⁰
Lysergic acid diethylamide (LSD) is any detectable level.¹¹
Psilocybin is any detectable level.¹²
Psilocin is any detectable level.¹³
Phencyclidine (PCP) is any detectable level.¹⁴
6-Monoacetylmorphine is any detectable level.¹⁵
Ketamine is any detectable level.¹⁶
Cocaine is any detectable level.¹⁷
Gamma hydroxybutyrate (GHB) is 5 mg/L of blood.¹⁸
Methamphetamine is any detectable level.¹⁹
The prescribed blood alcohol concentration is 50 mg of alcohol per 100 mL of blood and the prescribed blood drug concentration for tetrahydrocannabinol (THC) is 2.5 ng of THC per mL of blood for the offence of operation while impaired causing death by having, 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 and while operating the conveyance, causing the death of another person.²⁰
¹⁰ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(c), 320.14(3), read in context with "Blood Drug Concentration Regulations (SOR/2018-148)" (14 June 2026) https://laws-lois.justice.gc.ca/eng/regulations/SOR-2008-196/FullText.html at s 2.1.
¹¹ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(c), 320.14(3), read in context with "Blood Drug Concentration Regulations (SOR/2018-148)" (14 June 2026) https://laws-lois.justice.gc.ca/eng/regulations/SOR-2008-196/FullText.html at s 2.2.
¹² "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(c), 320.14(3), read in context with "Blood Drug Concentration Regulations (SOR/2018-148)" (14 June 2026) https://laws-lois.justice.gc.ca/eng/regulations/SOR-2008-196/FullText.html at s 2.3.
¹³ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(c), 320.14(3), read in context with "Blood Drug Concentration Regulations (SOR/2018-148)" (14 June 2026) https://laws-lois.justice.gc.ca/eng/regulations/SOR-2008-196/FullText.html at s 2.4.
¹⁴ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(c), 320.14(3), read in context with "Blood Drug Concentration Regulations (SOR/2018-148)" (14 June 2026) https://laws-lois.justice.gc.ca/eng/regulations/SOR-2008-196/FullText.html at s 2.5.
¹⁵ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(c), 320.14(3), read in context with "Blood Drug Concentration Regulations (SOR/2018-148)" (14 June 2026) https://laws-lois.justice.gc.ca/eng/regulations/SOR-2008-196/FullText.html at s 2.6.
¹⁶ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(c), 320.14(3), read in context with "Blood Drug Concentration Regulations (SOR/2018-148)" (14 June 2026) https://laws-lois.justice.gc.ca/eng/regulations/SOR-2008-196/FullText.html at s 2.7.
¹⁷ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(c), 320.14(3), read in context with "Blood Drug Concentration Regulations (SOR/2018-148)" (14 June 2026) https://laws-lois.justice.gc.ca/eng/regulations/SOR-2008-196/FullText.html at s 2.8.
¹⁸ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(c), 320.14(3), read in context with "Blood Drug Concentration Regulations (SOR/2018-148)" (14 June 2026) https://laws-lois.justice.gc.ca/eng/regulations/SOR-2008-196/FullText.html at s 2.9.
¹⁹ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(c), 320.14(3), read in context with "Blood Drug Concentration Regulations (SOR/2018-148)" (14 June 2026) https://laws-lois.justice.gc.ca/eng/regulations/SOR-2008-196/FullText.html at s 2.10.
²⁰ "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(d), 320.14(3), read in context with "Blood Drug Concentration Regulations (SOR/2018-148)" (14 June 2026) https://laws-lois.justice.gc.ca/eng/regulations/SOR-2008-196/FullText.html at s 3.
6. What is "causing the death of another person" in this Context?
An accused can only be convicted of operation while impaired causing death when legal causation is established, by which is meant that the accused's action while operating a conveyance unlawfully due to being impaired or having an excessive concentration of an intoxicant in the body was a significant cause of another person's death.²¹ Establishing merely that the accused was operating a conveyance unlawfully due to being impaired or having an excessive concentration of an intoxicant in the body when the conveyance caused another person to die does not suffice to convict the accused of operation while impaired causing death,²² but there is no requirement for proof of a causal link between the accused's impairment and/or the accused's excessive bodily concentration of intoxicants and the accident causing the death before an accused can be convicted of operation while impaired causing death.²³
²¹ "R. v. Kelly, 2025 ONCA 92" https://coadecisions.ontariocourts.ca/coa/coa/en/item/23023/index.do at paras 1-2, 31-33, 48, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(a), 320.14(1)(b), 320.14(1)(c), 320.14(1)(d), 320.14(3).
²² "R. v. Kelly, 2025 ONCA 92" https://coadecisions.ontariocourts.ca/coa/coa/en/item/23023/index.do at paras 1-2, 23-25, 29, 31-33, 39, 46-48, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(a), 320.14(1)(b), 320.14(1)(c), 320.14(1)(d), 320.14(3).
²³ "R. v. Kelly, 2025 ONCA 92" https://coadecisions.ontariocourts.ca/coa/coa/en/item/23023/index.do at paras 1-2, 9, 27, 49, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(a), 320.14(1)(b), 320.14(1)(c), 320.14(1)(d), 320.14(3).
7. What is legal causation of a death in this Context?
The causation standard in offences involving causing death while operating a conveyance is that the accused's conduct be at least a contributing cause of the deceased's death, outside the de minimis range.²⁴ The accused's conduct does not need to be the sole contributing cause of death, so long as the accused's conduct contributed beyond de minimis to that death.²⁵ When deciding whether an accused should be held responsible for causing death while operating a conveyance, it must be determined whether the accused caused the death, both in fact and in law.²⁶ Legal causation is the inquiry into whether the accused should be held criminally responsible for the consequences that occurred.²⁷ Legal causation is based on concepts of moral responsibility and is informed by legal considerations, such as the wording of the offence-creating provision and the principles of criminal justice, such as that the morally innocent should not be punished.²⁸ An intervening act can prevent legal causation for death while operating a conveyance, such as by being not reasonably foreseeable or by being more immediate and independent and effectively overtaking the earlier act.²⁹
²⁴ "R. v. Malkowski, 2015 ONCA 887" https://coadecisions.ontariocourts.ca/coa/coa/en/item/14368/index.do at para 14, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.11, 320.14(1)(a), 320.14(1)(b), 320.14(1)(c), 320.14(1)(d), 320.14(3).
²⁵ "R. v. Malkowski, 2015 ONCA 887" https://coadecisions.ontariocourts.ca/coa/coa/en/item/14368/index.do at para 14, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.11, 320.14(1)(a), 320.14(1)(b), 320.14(1)(c), 320.14(1)(d), 320.14(3).
²⁶ "R. v. Malkowski, 2015 ONCA 887" https://coadecisions.ontariocourts.ca/coa/coa/en/item/14368/index.do at para 14, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.11, 320.14(1)(a), 320.14(1)(b), 320.14(1)(c), 320.14(1)(d), 320.14(3).
²⁷ "R. v. Malkowski, 2015 ONCA 887" https://coadecisions.ontariocourts.ca/coa/coa/en/item/14368/index.do at para 14, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.11, 320.14(1)(a), 320.14(1)(b), 320.14(1)(c), 320.14(1)(d), 320.14(3).
²⁸ "R. v. Malkowski, 2015 ONCA 887" https://coadecisions.ontariocourts.ca/coa/coa/en/item/14368/index.do at para 14, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.11, 320.14(1)(a), 320.14(1)(b), 320.14(1)(c), 320.14(1)(d), 320.14(3).
²⁹ "R. v. Malkowski, 2015 ONCA 887" https://coadecisions.ontariocourts.ca/coa/coa/en/item/14368/index.do at para 14, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.11, 320.14(1)(a), 320.14(1)(b), 320.14(1)(c), 320.14(1)(d), 320.14(3).
8. What is a situation in which an accused's action while operating a conveyance unlawfully due to being impaired or having an excessive concentration of an intoxicant in the body is not legal causation of another person's death?
When another person's death is caused by an unavoidable accident, the accused's action while operating a conveyance unlawfully due to being impaired or having an excessive concentration of an intoxicant in the body is not legal causation of another person's death.³⁰
³⁰ "R. v. Kelly, 2025 ONCA 92" https://coadecisions.ontariocourts.ca/coa/coa/en/item/23023/index.do at paras 1-2, 31-33, 42-44, 48, read in context with "Criminal Code (R.S.C., 1985, c. C-46)" (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1)(a), 320.14(1)(b), 320.14(1)(c), 320.14(1)(d), 320.14(3).
9. What makes an accident unavoidable?
When an accident is caused by another person's action rather than by an accused's faulty operation of a conveyance, the accident is unavoidable.³¹ In this context, the fact that an accused responds to this other person's action by making a choice, even a choice with fatal consequences, may not suffice to make the accident unavoidable when the accused's choice is reasonable in the circumstances.³²
³¹ Such is how I interpret "R. v Phan, 2015 ONSC 2088 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2015/2015onsc2088/2015onsc2088.html at paras 3, 76-82, endorsed by "R. v. Kelly, 2025 ONCA 92" https://coadecisions.ontariocourts.ca/coa/coa/en/item/23023/index.do at paras 41-45.
³² Such is how I interpret "R. v Phan, 2015 ONSC 2088 (CanLII)" https://www.canlii.org/en/on/onsc/doc/2015/2015onsc2088/2015onsc2088.html at paras 3, 78-79, indirectly endorsed by "R. v. Kelly, 2025 ONCA 92" https://coadecisions.ontariocourts.ca/coa/coa/en/item/23023/index.do at paras 41-45.