Background
On February 3, 2021, Devesh Amar Serkissoon accelerated through an intersection in Kitchener, Ontario, struck a vehicle turning left, killing the passenger and seriously injuring the driver. Blood samples taken approximately four hours after the collision revealed THC levels averaging 5.2 ng/mL, with measurement uncertainty of ±0.4 ng/mL—just above the 5 ng/mL criminal threshold for blood drug concentration under the Blood Drug Concentration Regulations.
Serkissoon was charged with dangerous driving causing death, dangerous driving causing bodily harm, driving with excess blood drug concentration causing death, and driving with excess blood drug concentration causing bodily harm. At trial, the judge directed a verdict acquitting Serkissoon on the impaired driving counts, holding that the statutory presumption in s. 320.31(2) of the Criminal Code did not apply because the blood samples were obtained via a warrant under s. 487 rather than under Part VIII.1. The judge then acquitted Serkissoon on the dangerous driving counts after concluding there was no marked departure from the standard of care, citing light traffic and the possibility that the other driver was distracted.
The Crown appealed both acquittals.
The Court’s Holding
The Court of Appeal held that the trial judge erred in concluding the statutory presumption in s. 320.31(2) does not apply to blood samples obtained via a s. 487 warrant. Analyzing the text, context, and purpose of the provision, the court found that Parliament deliberately removed restrictive language from the previous version of the presumption. The new wording contains no qualifying language limiting applicability based on how the sample was obtained. The court noted that s. 320.3, which permits samples taken “for the purposes of this Part” to be analyzed, was satisfied here because the blood was seized specifically to prove a Part VIII.1 offence, even though the seizure mechanism differed.
On the dangerous driving counts, the court held that the trial judge committed significant legal error by focusing on whether the collision was foreseeable and avoidable, rather than analyzing whether Serkissoon’s manner of driving created foreseeable and avoidable risks to the public generally. The trial judge improperly relied on the other driver’s conduct as a basis for determining what a reasonable person would do. The proper analysis requires an objective assessment of the totality of the accused’s conduct—including the admitted acceleration to approximately 80 km/h upon seeing a pedestrian crossing signal to avoid a yellow light—compared to the standard of care expected of a reasonable and prudent driver.
Key Takeaways
- Statutory presumptions in Part VIII.1 impaired driving cases apply regardless of whether blood samples were obtained via s. 487 warrant or through other mechanisms, provided the samples were taken for purposes of proving a Part VIII.1 offence
- Parliament’s 2018 amendments deliberately expanded the availability of evidentiary shortcuts by removing source-specific limitations from statutory presumptions
- In dangerous driving prosecutions, courts must assess the totality of the accused’s manner of driving and risks it posed to the public; the other driver’s conduct is not a proper basis for analyzing the accused’s mens rea
- A collision’s actual occurrence does not determine whether driving was dangerous; the focus must remain on objective assessment of departure from the standard of care
Why It Matters
This decision clarifies that prosecutors need not limit themselves to searching and seizures conducted under Part VIII.1 to obtain blood samples suitable for the statutory presumption in impaired driving cases. This significantly expands the evidentiary tools available in drug-impaired driving prosecutions, particularly where samples may have been obtained through general search warrant provisions before the full implications of the impaired driving offence became apparent.
The decision also reinforces critical limits on factual defenses in dangerous driving liability. By holding that a trial judge cannot pivot from analyzing the driver’s conduct to analyzing the accident victim’s conduct, the court prevents narrow examinations of specific collisions from excusing gross negligence in vehicle operation. The ruling ensures that dangerous driving liability turns on objective recklessness in the manner of driving itself, not on whether a specific foreseeable person made a mistake.