Criminal Law: Excess Blood Drug Concentration
Kelly v. R., 2025 ONCA 92 (42050)
One evening in October 2021, the Applicant was driving in rural southwestern Ontario. The sun had set and it was dark. The posted speed limit on the highway the Applicant was using was 80km/h; he was travelling at least 116km/h. A horse-drawn buggy entered the roadway at an intersection. The Applicant did not see the buggy in time to stop; his vehicle collided with it. Both occupants of the buggy died from injuries sustained in the collision. During the police investigation that night, the Applicant admitted to being a chronic marijuana smoker and consented to providing two samples of his blood. Evidence established the Applicant’s blood drug concentration (“BDC”) exceeded the prescribed limit at the time of the collision. The parties agreed at trial there was no evidence of a causal nexus between the Applicant’s BDC and the collision. The Applicant was charged with operating a conveyance with an excess BDC under s. 320.14(1)(c), two counts of committing an offence under s. 320.14(1)(c) causing death under s. 320.14(3), and two counts of dangerous operation of a conveyance causing death under s. 320.13(3). The trial judge held it is insufficient the Applicant had a prohibited BDC and was operating a conveyance at the time he caused a death; a conviction for offences under s. 320.14(3) required a causal nexus between an accused’s BDC and the death of a victim. As the parties agreed there was no causal nexus between the Applicant’s BDC and the death of the victims, the Applicant was acquitted on those counts. The Ont. C.A.: the trial judge erred in his interpretation of s. 320.14(3); a plain reading establishes the elements are made out simply by operating a vehicle with excess BDC, and causing the death of a person; no causal nexus between the excess BDC and the cause of death is required; accused persons retain the benefit of the basic legal causation standard; the Crown must prove the Applicant’s actions were a significant contributing cause of death; because of the trial judge’s erroneous interpretation of s. 320.14(3), he did not make any finding as to whether the Crown had proven legal causation on this standard. The Ont. C.A. ordered a new trial on these counts.
Judgment rendered Jan. 15, 2026: “The motion for an extension of time to serve and file the application for leave to appeal is granted. The motion for a stay of proceedings with respect to the judgment of the Court of Appeal is dismissed. It is not necessary to address the respondent’s motion for an extension of time. The request for an oral hearing of the application for leave to appeal…is granted pursuant to s. 43(1.2) of the Supreme Court Act. The hearing date will be fixed by the Registrar.”
Final judgment rendered Mar. 17, 2026: “The application for leave to appeal…is dismissed.”