Case: R. v. Pawluk, 2017 ONCA 863 (CanLII)

Keywords: Criminal Law; Included Offence; Impaired Driving; “Over 80”; s. 258(1)(c) of the Criminal Code, RSC 1985, c C-46; Detroit Lions


The Respondent is involved in an MVA on his way home from a Detroit Lions football game. He admits to having consumed a “modest amount” of beer. At the roadside, the Respondent “smelled of alcohol” and discourages the driver of the vehicle he rear-ended from calling the police. Following an investigation, the Respondent is charged with impaired driving and driving “over 80” (contrary to ss. 253(1)(a) and (b) of the Criminal Code respectively).

Intoxilyzer readings show the Respondent has more than the legal amount of alcohol in his system (120 milligrams of alcohol in 100 millilitres of blood), but since the first breath sample is not taken within two hours of the time “the offence was alleged to have been committed”, the Crown is not entitled to rely on the presumption of identity (see s. 258(1)(c) of the Criminal Code).

Accordingly, the Trial Judge finds the Crown fails to establish the Respondent’s blood alcohol levels are “over 80” at the time of driving. The Trial Judge also has a reasonable doubt with respect to the impaired driving charge – finding testimony about erratic driving could not confidently be linked to the Respondent’s vehicle, that weather conditions were an alternative explanation for the accident, and that the Respondent may have simply sought to avoid reporting the accident for insurance purposes.

In the alternative, the Crown attempts to secure a conviction against the Respondent on the included offence of care or control over 80. There is un-contradicted evidence the Respondent was sitting in the driver’s seat within two hours of the first breath sample. But could the Crown rely upon the presumption of identity contained at s. 258(1)(c) to prove the included offence of care or control over 80? The Trial Judge says “no”; s. 258(1)(c) of the Criminal Code must be construed strictly and the “offence alleged to have been committed” is driving, not care or control (the included offence).

The Crown appeals and a Summary Conviction Appeal Court upholds the Trial Judge’s decision. The Crown next seeks leave to appeal to the Court of Appeal. Paciocco J.A. for the Court of Appeal finds the Crown meets the test in R. v. R.R., 2008 ONCA 497 (CanLII), grants leave relating to the care and control over 80 acquittal. This Appeal is allowed in part: the Court sets aside the verdict of acquittal, substitutes a verdict of guilty for the included offence, and remits the matter to the Trial Judge for sentencing.


An included offence is a distinct offence arising from the same facts as the expressly charged offence and which is necessarily committed when that offence is committed. Despite the decisions below (which found it would be unfair to convict the Respondent on the included offence and that s. 258(1)(c) should not apply), the Court of Appeal reasoned that, since the included offence is “embraced” by the charged offence, it is not “totally different” and, therefore, should not come “as a surprise” to the accused person. (See paras. 27-30).

The Court of Appeal cautioned, however, that there may well be circumstances where it would be unfair for the Crown to rely on an included offence to secure a conviction:

None of this is to say that it can never be unfair for the Crown to rely on an included offence. For example, where particulars have been given that limit the allegation to the charged offence, or where the Crown has actively induced the accused, to their detriment, into believing that the Crown is proceeding only on the theory of the charged offence, it may well be unfair for the Crown to rely on an included offence, and for a trial judge to convict on one. There may be other examples. (See para. 30).

This case will be of significant interest to counsel defending and prosecuting impaired driving and over 80 offences. It will likely stand for the following propositions: that care and control over 80 is an included offence to a charge of driving over 80 (as agreed by the parties – see para. 19) and that the presumption contained at s. 258(1)(c) can apply to included offences in the Code. Why does that matter? Because, for the Court of Appeal, a person charged with driving over 80 will be deemed to have been sufficiently informed they also face the included offence of care or control over 80 – even if the Crown’s theory changed during the course of the prosecution. (See paras. 26-30). So take notice. Forewarned is forearmed.

What was the Court of Appeal’s basis for developing the law in this way? Consistency with prior appellate jurisprudence providing it would be “…unobjectionable for the Crown to adjust the theory of its case in response to the evidence at trial as it evolved” (see, for example, R. v. Khawaja, 2010 ONCA 862 (CanLII), 103 O.R. (3d) 321, aff’d 2012 SCC 69 (CanLII)), and symmetry with impaired driving law.

Citing R. v. Plank (1986), 28 C.C.C. (3d) 386 (Ont. C.A.) and R. v. Drolet, 1990 CanLII 40 (SCC), the Court of Appeal determined that, since impaired care or control is an included offence in an impaired driving allegation, care or control over 80 would be an included offence in a charge of driving over 80. (See para. 19). With respect to the impact (if any) of the relating back presumption to the included offence, the Court of Appeal found nothing in the language of s. 258(1)(c), or the purpose underlying that provision, supported limiting the application of the presumption of identity to the offence expressly spelled out in the charge. (See para. 36).

Since the Court of Appeal found the presumption of identity under s. 258(1)(c) applies, the offence of having care or control of a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) was made out. (See para. 40).

Counsel for the Appellant: Andrew Hotke

Counsel for the Respondent: Patrick Ducharme (Ducharme Fox LLP, Windsor)

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