Drunk driving (Canada)
Encyclopedia
Drunk driving is the act of operating or having care or control of a motor vehicle
while under the influence of alcohol
and/or drugs
to the degree that mental
and motor skills are impaired. It is illegal in Canada
, and is punishable under multiple offences in the Criminal Code of Canada
, and can also result in various types of driver's license
suspensions. There are a number of powers given to police officer to assist in the enforcement of the offences, and there are a number of presumptions that assist in the prosecution of the offences.
decision in 1920 called R. v. Nickle. In that case, the appeal court found that the act of driving while intoxicated was an unlawful act that could support a manslaughter
conviction.
In 1921, the Parliament of Canada
first created a summary conviction offence for drinking and driving, called "driving while intoxicated". At the time, the courts interpreted intoxication to mean substantial inebriation, and more than just being under the influence of alcohol. The minimum penalty for the first offence was seven days in jail. The minimum penalty for the second offence was one month in jail. The minimum penalty for a third offence was three months in jail.
In 1925, Parliament amended the Criminal Code of Canada
to include a new offence of driving while intoxicated by a narcotic
. The offences were also amended to include "care or control" of a motor vehicle, not just driving. (See below.)
In 1930, Parliament changed the offence to a hybrid offence
, giving the Crown the option to proceed with the more serious indictable offence
procedure.
Difficulties arose regarding how to prove someone was in care or control of a motor vehicle, and what the test should be. In 1947, Parliament amended the Criminal Code again, adding a presumption of care or control when a person was found sitting in the driver's seat of a motor vehicle. This did not answer all of the problems regarding the test (i.e. when a person is not found in the driver's seat of a motor vehicle). Many of the court's answers to those questions remain in conflict today.
In 1951, Parliament re-worded the law, making it an offence to operate or have care or control of a motor vehicle while the driver's ability to operate the motor vehicle was impaired by alcohol or drug.
The breathalyzer
was made into a practical police tool by Robert Borkenstein in 1952, which allowed for the police to measure a person's blood alcohol concentration. The first Canadian test of the breathalyzer was in Ontario
in 1954. By 1962, police were using the breathalyzer for "mass testing". However, the test was voluntary, and could only be used as confirmatory evidence.
In 1969 (fifteen years after the introduction of the breathalyzer into Canada), Parliament created an offence of driving while "over 80" (over 80 milligrams of alcohol per 100 millilitres of blood). In 1976, Parliament made the penalty the same as driving while impaired, created the offence of refusing to provide a breath sample (with the same penalties), and created laws allowing the police to use roadside screening devices.
After 1976, there were additional changes to the minimum penalties, and the introduction of new offences (impaired driving causing bodily harm and impaired driving causing death).
By 2008, drinking and driving cases made up 12 per cent of all criminal charges, making it the larges single offence group. In 2008 it was estimated that 53,000 drinking and driving cases are heard every year in Canada. The conviction rate was 73 per cent, which exceeded the rate for all criminal convictions by 13 per cent. Notwithstanding the higher rate of conviction, drinking and driving cases are more likely to go to trial than any other criminal offence, and are often fought on both technical issues and alleged police violations of section 8
, section 9
, and section 10(b)
of the Canadian Charter of Rights and Freedoms
.
2008 also saw the most recent amendments by Parliament to the law on drinking and driving. The Tackling Violent Crime Act
came into force on July 2, 2008. The changes included adding new evidentiary restrictions on defendants trying to raise "evidence to the contrary" regarding the presumption of a person's blood alcohol concentration, created mandatory standard field sobriety tests that can be requested by a police officer, created additional means to allow police officers to test for the possible presence of drugs in a driver's body, increased the minimum sentences to their current level ($1000 fine for the first offence, 30 days in jail for the second offence, and three months in jail for the third offence), and created new offences for "over 80" causing death or bodily harm and refusing to provide a sample where operation caused death or bodily harm.
Section 253(1)(a) makes it illegal to operate a motor vehicle
or vessel or operate or assist in the operation of an aircraft
or railway equipment, or to have care or control of a motor vehicle, vessel, aircraft, or railway equipment, while that person's ability to operate is impaired by the alcohol, drugs, or a combination of the two (vessel is defined to include "a machine designed to derive support in the atmosphere primarily from reactions against the earth’s surface of air expelled from the machine").
Section 253(1)(b) makes it illegal to operate a motor vehicle or vessel or operate or assist in the operation of an aircraft or railway equipment, or to have care or control of a motor vehicle, vessel, aircraft, or railway equipment, while that person's blood alcohol concentration (BAC) is in excess of 0.08 percent (representing 80 milligrams of alcohol in 100 millilitres of blood.
A person may be charged with one or both of the offences under section 253. Related are "refuse (or fail) to comply" offences, which are discussed in more detail below.
Care or control has been defined as whether a person has taken any acts that could cause the vehicle to become a danger whether by putting it in motion or by some other way.
If a person is found to be in the driver's seat of a motor vehicle (or the seat normally occupied by the operator of one of the other types of vehicles listed), they are presumed to be in care or control of the vehicle. The presumption can only be rebutted if the person is able to show on a balance of probabilities that at the time the person occupied the seat he or she did not occupy the seat for the purpose of putting the vehicle in motion. However, even if the person is able to rebut the presumption, the prosecutor may still be able to prove beyond a reasonable doubt that they met the traditional definition of care or control.
. The results of those samples may be introduced as evidence at a later trial. If it is later determined that the officer did not have reasonable grounds, then the taking of the breath samples violated the protection against unreasonable searches and seizures under section 8 of the Canadian Charter of Rights and Freedoms
and the person can apply to have them excluded as evidence under section 24(2) of the Charter
.
Police officers can obtain reasonable gronds from observations they make and information they receive, including the results of the other demands listed below.
These breath samples are typically taken at a police station by a qualified technician, after a person has been arrested.
. These devices are usually calibrated to display fail if a person has a BAC above 0.1 percent, warn or caution if a person has a BAC between 0.05 and 0.1 percent, and a numerical value if the person has a BAC below 0.05 percent.
These breath samples are typically taken at the roadside by an investigating police officer. Typical observations supporting a reasonable suspicion is if a driver has an odour of an alcoholic beverage on their breath, or if they admit they had a drink.
If there is no Certificate, or the Certificate is flawed, the prosecutor can always call the qualified technician to give evidence about the accuracy of the results. The prosecutor may still call the qualified technician if there is a Certificate in order to counter the defence's evidence.
Typically, the Certificate will round the BAC results down to a hundredth of a percentage (e.g. 0.116 percent is truncated to 0.11 percent).
If the three criteria are met, then the lower of the two results is presumed to be the person's BAC at the time of the offence. This is commonly referred to as the presumption of identity.
The presumption can be rebutted two ways, depending on whether the defence is challenging the accuracy of the results. If defence is challenging the accuracy of the results, they need call evidence that shows:
The last criteria is typically met by calling reliable evidence of how much the person had to drink prior to the offence, and expert evidence of what their BAC would have been at the time of the offence as a result of the drinking evidence.
If defence is not challenging the accuracy of the results, they only need to call evidence on the last criteria, and have the expert give evidence why it would not be inconsistent with the breath sample readings. (This is typically called the bolus drinking scenario.)
If the prosecutor is unable to rely on the presumption of identity (usually because the first reading was taken outside of the two hours), they can still "read-back" the readings by calling their own expert evidence.
The minimum sentences are:
Drinking and driving offences are prior offences for refuse to comply offences, and vice versa.
If no one is killed or hurt, and the prosecutor is proceeding by summary conviction, the maximum sentence is 18 months of jail. If no one is killed or hurt, and the prosecutor is proceeding by indictment
, the maximum sentence is 5 years of jail.
If another person suffers bodily harm because of the offence, the maximum sentence is 10 years in jail.
If another person is killed because of the offence, the maximum sentence is a life sentence.
If a person is convicted of both impaired operation/care or control and operation/care or control with a BAC in excess of 0.08 percent, the defendant can only be sentenced for one of the offences (the prosecutor chooses which one). The same does not apply if a person is also convicted of a refuse to comply offence.
A province is allowed to set up special ignition interlock device programs specifically to limit criminal driving prohibitions. Not all provinces have such specific programs, but if they do, and a person is enrolled in one, then they can drive during their prohibition period with an interlock device, beginning as follows:
Driving otherwise while on a driving prohibition is a criminal offence.
system in place, the responsibility for road safety with respect to drunk driving falls on both Parliament and the provincial legislatures. Typically after an impaired driving offence is committed, the accused will be subject to both a prohibition imposed under federal law (criminal law) and a driver's licence suspension under provincial law. It is important to note that while Parliament may prohibit an accused from driving, in the absence of provincial legislation, this does not affect the validity of the driver's licence of the accused. Nonetheless the accused may be charged with drive while prohibited under criminal law despite possessing a valid driver's licence.
Often the provincial suspensions are more severe than the criminal prohibition. For instance many jurisdictions require the accused to complete a remedial program and participate in the ignition interlock program, failing which will result in an indefinite suspension until the conditions are met. Also an accused may be suspended from driving for medical reasons if a physician reports that the accused has a serious alcohol problem likely to result in an unacceptable risk to the public should the accused operate a motor vehicle.
The Criminal Code of Canada provides that an accused may be prosecuted for either driving while prohibited or driving while disqualified. The former refers to driving in contravention of a criminal court order of prohibition while the latter refers to driving while suspended under provincial legislation relating to a suspension for an imapired driving offence.
have jurisdiction to regulate their roads and highways (see Canadian federalism
). Therefore, the provinces have the ability to administratively suspend a person's driver's license separately from any criminal proceedings.
License suspensions can occur in three ways: 1) having a high BAC, but not enough to commit a criminal offence, 2) a police officer having reasonable grounds that a drinking and driving offence has occurred, and 3) being found guilty of a drinking and driving offence. Driving with a suspended license can result in being charged with either criminal or provincial offences.
Motor vehicle
A motor vehicle or road vehicle is a self-propelled wheeled vehicle that does not operate on rails, such as trains or trolleys. The vehicle propulsion is provided by an engine or motor, usually by an internal combustion engine, or an electric motor, or some combination of the two, such as hybrid...
while under the influence of alcohol
Alcohol
In chemistry, an alcohol is an organic compound in which the hydroxy functional group is bound to a carbon atom. In particular, this carbon center should be saturated, having single bonds to three other atoms....
and/or drugs
DRUGS
Destroy Rebuild Until God Shows are an American post-hardcore band formed in 2010. They released their debut self-titled album on February 22, 2011.- Formation :...
to the degree that mental
Mind
The concept of mind is understood in many different ways by many different traditions, ranging from panpsychism and animism to traditional and organized religious views, as well as secular and materialist philosophies. Most agree that minds are constituted by conscious experience and intelligent...
and motor skills are impaired. It is illegal in Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, and is punishable under multiple offences in the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
, and can also result in various types of driver's license
Driver's license
A driver's license/licence , or driving licence is an official document which states that a person may operate a motorized vehicle, such as a motorcycle, car, truck or a bus, on a public roadway. Most U.S...
suspensions. There are a number of powers given to police officer to assist in the enforcement of the offences, and there are a number of presumptions that assist in the prosecution of the offences.
History
One of the first reported criminal cases regarding drinking and driving in Canada was an AlbertaAlberta
Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
decision in 1920 called R. v. Nickle. In that case, the appeal court found that the act of driving while intoxicated was an unlawful act that could support a manslaughter
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
conviction.
In 1921, the Parliament of Canada
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
first created a summary conviction offence for drinking and driving, called "driving while intoxicated". At the time, the courts interpreted intoxication to mean substantial inebriation, and more than just being under the influence of alcohol. The minimum penalty for the first offence was seven days in jail. The minimum penalty for the second offence was one month in jail. The minimum penalty for a third offence was three months in jail.
In 1925, Parliament amended the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
to include a new offence of driving while intoxicated by a narcotic
Narcotic
The term narcotic originally referred medically to any psychoactive compound with any sleep-inducing properties. In the United States of America it has since become associated with opioids, commonly morphine and heroin and their derivatives, such as hydrocodone. The term is, today, imprecisely...
. The offences were also amended to include "care or control" of a motor vehicle, not just driving. (See below.)
In 1930, Parliament changed the offence to a hybrid offence
Hybrid offence
A hybrid offence, dual offence, Crown option offence, dual procedure offence, or wobbler are the special class offences in the common law jurisdictions where the case may be prosecuted either summarily or as indictment...
, giving the Crown the option to proceed with the more serious indictable offence
Indictable offence
In many common law jurisdictions , an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury...
procedure.
Difficulties arose regarding how to prove someone was in care or control of a motor vehicle, and what the test should be. In 1947, Parliament amended the Criminal Code again, adding a presumption of care or control when a person was found sitting in the driver's seat of a motor vehicle. This did not answer all of the problems regarding the test (i.e. when a person is not found in the driver's seat of a motor vehicle). Many of the court's answers to those questions remain in conflict today.
In 1951, Parliament re-worded the law, making it an offence to operate or have care or control of a motor vehicle while the driver's ability to operate the motor vehicle was impaired by alcohol or drug.
The breathalyzer
Breathalyzer
A breathalyzer or breathalyser is a device for estimating blood alcohol content from a breath sample...
was made into a practical police tool by Robert Borkenstein in 1952, which allowed for the police to measure a person's blood alcohol concentration. The first Canadian test of the breathalyzer was in Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
in 1954. By 1962, police were using the breathalyzer for "mass testing". However, the test was voluntary, and could only be used as confirmatory evidence.
In 1969 (fifteen years after the introduction of the breathalyzer into Canada), Parliament created an offence of driving while "over 80" (over 80 milligrams of alcohol per 100 millilitres of blood). In 1976, Parliament made the penalty the same as driving while impaired, created the offence of refusing to provide a breath sample (with the same penalties), and created laws allowing the police to use roadside screening devices.
After 1976, there were additional changes to the minimum penalties, and the introduction of new offences (impaired driving causing bodily harm and impaired driving causing death).
By 2008, drinking and driving cases made up 12 per cent of all criminal charges, making it the larges single offence group. In 2008 it was estimated that 53,000 drinking and driving cases are heard every year in Canada. The conviction rate was 73 per cent, which exceeded the rate for all criminal convictions by 13 per cent. Notwithstanding the higher rate of conviction, drinking and driving cases are more likely to go to trial than any other criminal offence, and are often fought on both technical issues and alleged police violations of section 8
Section Eight of the Canadian Charter of Rights and Freedoms
Section Eight of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This Charter right provides Canadians with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state...
, section 9
Section Nine of the Canadian Charter of Rights and Freedoms
Section Nine of the Canadian Charter of Rights and Freedoms, found under the "Legal rights" heading in the Charter, guarantees the right against arbitrary detainment and imprisonment...
, and section 10(b)
Section Ten of the Canadian Charter of Rights and Freedoms
Section Ten of the Canadian Charter of Rights and Freedoms specifies rights upon arrest or detention, including the rights to consult a lawyer and the right to habeas corpus. As a part of a broader range of legal rights guaranteed by the Charter, section 10 rights may be limited by the Oakes test...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
.
2008 also saw the most recent amendments by Parliament to the law on drinking and driving. The Tackling Violent Crime Act
Tackling Violent Crime Act
The Tackling Violent Crime Act is an omnibus statute that was given royal assent on February 28, 2008. The statute primarily deals with strengthening gun control in Canada as well as fighting drunk driving, drug-impaired driving and to increase the age of consent to sexual intercourse from 14 to 16....
came into force on July 2, 2008. The changes included adding new evidentiary restrictions on defendants trying to raise "evidence to the contrary" regarding the presumption of a person's blood alcohol concentration, created mandatory standard field sobriety tests that can be requested by a police officer, created additional means to allow police officers to test for the possible presence of drugs in a driver's body, increased the minimum sentences to their current level ($1000 fine for the first offence, 30 days in jail for the second offence, and three months in jail for the third offence), and created new offences for "over 80" causing death or bodily harm and refusing to provide a sample where operation caused death or bodily harm.
Criminal offences
The Criminal Code of Canada has two distinct offences that directly addresses drinking and driving.Section 253(1)(a) makes it illegal to operate a motor vehicle
Motor vehicle
A motor vehicle or road vehicle is a self-propelled wheeled vehicle that does not operate on rails, such as trains or trolleys. The vehicle propulsion is provided by an engine or motor, usually by an internal combustion engine, or an electric motor, or some combination of the two, such as hybrid...
or vessel or operate or assist in the operation of an aircraft
Aircraft
An aircraft is a vehicle that is able to fly by gaining support from the air, or, in general, the atmosphere of a planet. An aircraft counters the force of gravity by using either static lift or by using the dynamic lift of an airfoil, or in a few cases the downward thrust from jet engines.Although...
or railway equipment, or to have care or control of a motor vehicle, vessel, aircraft, or railway equipment, while that person's ability to operate is impaired by the alcohol, drugs, or a combination of the two (vessel is defined to include "a machine designed to derive support in the atmosphere primarily from reactions against the earth’s surface of air expelled from the machine").
Section 253(1)(b) makes it illegal to operate a motor vehicle or vessel or operate or assist in the operation of an aircraft or railway equipment, or to have care or control of a motor vehicle, vessel, aircraft, or railway equipment, while that person's blood alcohol concentration (BAC) is in excess of 0.08 percent (representing 80 milligrams of alcohol in 100 millilitres of blood.
A person may be charged with one or both of the offences under section 253. Related are "refuse (or fail) to comply" offences, which are discussed in more detail below.
Care or control
A person does not need to be actually driving or operating their vehicle to be charged with a drinking and driving offence in Canada. It is also possible to be charged and convicted if a person is in care or control of their vehicle. This is due to the risk of an intoxicated person losing their judgment and operating a vehicle they have care or control of.Care or control has been defined as whether a person has taken any acts that could cause the vehicle to become a danger whether by putting it in motion or by some other way.
If a person is found to be in the driver's seat of a motor vehicle (or the seat normally occupied by the operator of one of the other types of vehicles listed), they are presumed to be in care or control of the vehicle. The presumption can only be rebutted if the person is able to show on a balance of probabilities that at the time the person occupied the seat he or she did not occupy the seat for the purpose of putting the vehicle in motion. However, even if the person is able to rebut the presumption, the prosecutor may still be able to prove beyond a reasonable doubt that they met the traditional definition of care or control.
Approved instrument demands
If a police officer has reasonable grounds that a person has committed an offence under section 253 within the past three hours due to alcohol, they can demand that a person provide suitable breath samples into an approved instrumentApproved instrument
The expression approved instrument is a Canadian term defined in the Criminal Code of Canada as: approved instrument means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of...
. The results of those samples may be introduced as evidence at a later trial. If it is later determined that the officer did not have reasonable grounds, then the taking of the breath samples violated the protection against unreasonable searches and seizures under section 8 of the Canadian Charter of Rights and Freedoms
Section Eight of the Canadian Charter of Rights and Freedoms
Section Eight of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This Charter right provides Canadians with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state...
and the person can apply to have them excluded as evidence under section 24(2) of the Charter
Section Twenty-four of the Canadian Charter of Rights and Freedoms
Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated...
.
Police officers can obtain reasonable gronds from observations they make and information they receive, including the results of the other demands listed below.
These breath samples are typically taken at a police station by a qualified technician, after a person has been arrested.
Blood samples
If a person is unable to give breath samples (usually due to injuries suffered from a traffic collision), a police officer can make a demand for blood samples, under the direction of a medical doctor, and performed by the same doctor or a nurse.Approved screening device demands
If a police officer has a reasonable suspicion that a person has alcohol in their body, and that they have been operating or have had care or control of a vehicle within the past three hours, they can can demand that person provide a suitable sample into an approved screening deviceApproved screening device
An approved screening device is a device used to measure the blood alcohol level of a suspected drunk driver. It is defined in the Criminal Code of Canada as: approved screening device means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that...
. These devices are usually calibrated to display fail if a person has a BAC above 0.1 percent, warn or caution if a person has a BAC between 0.05 and 0.1 percent, and a numerical value if the person has a BAC below 0.05 percent.
These breath samples are typically taken at the roadside by an investigating police officer. Typical observations supporting a reasonable suspicion is if a driver has an odour of an alcoholic beverage on their breath, or if they admit they had a drink.
Field sobriety tests
If a police officer has a reasonable suspicion that a person has alcohol or drugs in their body, and that they have been operating or have had care or control of a vehicle within the past three hours, they can demand that that person perform physical coordination tests, in order to allow the officer to determine whether to make an approved instrument demand, a blood demand, or a drug evaluation demand.Drug evaluations
If a police officer has reasonable grounds that a person has committed an offence under section 253 within the past three hours due to drugs or a combination of drugs and alcohol, they can demand that the person submit to an evaluation by an evaluating officer to determine if the person is impaired by drugs or a combination of drugs and alcohol. If the evaluating officer has reasonable grounds that the person is impaired by alcohol, they can make an approved instrument demand. If the evaluating officer has reasonable grounds that the person is impaired by drugs or a combination of drugs and alcohol, they can make a demand for blood or urine samples.Refusing to comply
If any of the above demands are lawfully made, it is a criminal offence to fail or refuse to comply with them, unless the person can show they had a reasonable excuse. The penalties are identical with the penalties for other drinking and driving offences (which may result in doubling the minimum sentence).Proving blood alcohol concentration
When a person gives a breath sample into an approved instrument by a qualified technician, a determination still needs to be made of what the person's BAC was at the time of the offence. That requires evidence of two things:- The person's BAC at the time of giving the breath samples, and
- Based on the person's BAC at the time of giving the breath samples, the person's BAC at the time of the offence.
Presumption of accuracy
To work out the person's BAC at the time of giving the breath samples, the prosecutor can rely on a Certificate of a Qualified Technician, which states what the results were of the analysis of the breath samples, and is evidence of its contents. This is commonly referred to as the presumption of accuracy. It is still open for the defence to call evidence showing why the results are not accurate, leaving it for the court to weigh the evidence.If there is no Certificate, or the Certificate is flawed, the prosecutor can always call the qualified technician to give evidence about the accuracy of the results. The prosecutor may still call the qualified technician if there is a Certificate in order to counter the defence's evidence.
Typically, the Certificate will round the BAC results down to a hundredth of a percentage (e.g. 0.116 percent is truncated to 0.11 percent).
Presumption of identity
To work out the person's BAC at the time of the offence, the prosecutor generally needs to show the following:- The breath samples were taken as soon as practicable,
- The first breath sample was taken within two hours of the offence, and
- A second breath sample was taken 15 minutes or more after the first sample.
If the three criteria are met, then the lower of the two results is presumed to be the person's BAC at the time of the offence. This is commonly referred to as the presumption of identity.
The presumption can be rebutted two ways, depending on whether the defence is challenging the accuracy of the results. If defence is challenging the accuracy of the results, they need call evidence that shows:
- the approved instrument was malfunctioning or not being operated properly,
- the malfunction or improper operation resulted in a reading of a BAC in excess of 0.08 percent, and
- the person's BAC would not have been in excess of 0.08 at the time of the offence.
The last criteria is typically met by calling reliable evidence of how much the person had to drink prior to the offence, and expert evidence of what their BAC would have been at the time of the offence as a result of the drinking evidence.
If defence is not challenging the accuracy of the results, they only need to call evidence on the last criteria, and have the expert give evidence why it would not be inconsistent with the breath sample readings. (This is typically called the bolus drinking scenario.)
If the prosecutor is unable to rely on the presumption of identity (usually because the first reading was taken outside of the two hours), they can still "read-back" the readings by calling their own expert evidence.
Sentencing
A person convicted for any drinking and driving offence (which includes a refuse to comply offence) faces an automatic Canada-wide driving prohibition, and either a fine or jail sentence and the possibility of probation.The minimum sentences are:
- For a first offence, a $1000 fine and a 12-month driving prohibition,
- For a second offence, 30 days of jail and a 24-month driving prohibition, and
- For a third or subsequent offence, 120 days of jail and a 36-month driving prohibition.
Drinking and driving offences are prior offences for refuse to comply offences, and vice versa.
If no one is killed or hurt, and the prosecutor is proceeding by summary conviction, the maximum sentence is 18 months of jail. If no one is killed or hurt, and the prosecutor is proceeding by indictment
Indictable offence
In many common law jurisdictions , an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury...
, the maximum sentence is 5 years of jail.
If another person suffers bodily harm because of the offence, the maximum sentence is 10 years in jail.
If another person is killed because of the offence, the maximum sentence is a life sentence.
If a person is convicted of both impaired operation/care or control and operation/care or control with a BAC in excess of 0.08 percent, the defendant can only be sentenced for one of the offences (the prosecutor chooses which one). The same does not apply if a person is also convicted of a refuse to comply offence.
A province is allowed to set up special ignition interlock device programs specifically to limit criminal driving prohibitions. Not all provinces have such specific programs, but if they do, and a person is enrolled in one, then they can drive during their prohibition period with an interlock device, beginning as follows:
- For a first offence, 3 months after the day of sentence,
- For a second offence, 6 months after the day of sentence, and
- For a third offence or subsequent offence, 12 months after the day of sentence.
Driving otherwise while on a driving prohibition is a criminal offence.
Driving Prohibitions vs. Suspensions
Since Canada has a federalismFederalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
system in place, the responsibility for road safety with respect to drunk driving falls on both Parliament and the provincial legislatures. Typically after an impaired driving offence is committed, the accused will be subject to both a prohibition imposed under federal law (criminal law) and a driver's licence suspension under provincial law. It is important to note that while Parliament may prohibit an accused from driving, in the absence of provincial legislation, this does not affect the validity of the driver's licence of the accused. Nonetheless the accused may be charged with drive while prohibited under criminal law despite possessing a valid driver's licence.
Often the provincial suspensions are more severe than the criminal prohibition. For instance many jurisdictions require the accused to complete a remedial program and participate in the ignition interlock program, failing which will result in an indefinite suspension until the conditions are met. Also an accused may be suspended from driving for medical reasons if a physician reports that the accused has a serious alcohol problem likely to result in an unacceptable risk to the public should the accused operate a motor vehicle.
The Criminal Code of Canada provides that an accused may be prosecuted for either driving while prohibited or driving while disqualified. The former refers to driving in contravention of a criminal court order of prohibition while the latter refers to driving while suspended under provincial legislation relating to a suspension for an imapired driving offence.
Administrative driver's license suspensions
Administrative license suspensions are separate from the driving prohibitions that are ordered as part of a criminal sentence. While drinking and driving are criminal offences, which is the jurisdiction of the Canadian Parliament, the provincesProvinces and territories of Canada
The provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...
have jurisdiction to regulate their roads and highways (see Canadian federalism
Canadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
). Therefore, the provinces have the ability to administratively suspend a person's driver's license separately from any criminal proceedings.
License suspensions can occur in three ways: 1) having a high BAC, but not enough to commit a criminal offence, 2) a police officer having reasonable grounds that a drinking and driving offence has occurred, and 3) being found guilty of a drinking and driving offence. Driving with a suspended license can result in being charged with either criminal or provincial offences.
High blood alcohol concentration
When a person blows into an approved screening device, they might not register a BAC high enough for a fail, but they will still register a significantly high BAC. The provinces deal with that situation in different ways. There may also be different type of suspensions for novice drivers who are not allowed any BAC above zero.- AlbertaAlbertaAlberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
- Length: 24 hours; Reason: a police officer reasonably suspects the person's ability to operate a vehicle is impaired by alcohol or drug, but does not charge them with a criminal offence.
- British ColumbiaBritish ColumbiaBritish Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
- Length: 12 hours; Reason: BAC over zero. Length: 24 hours; Reason: BAC over 0.05 percent.
- ManitobaManitobaManitoba is a Canadian prairie province with an area of . The province has over 110,000 lakes and has a largely continental climate because of its flat topography. Agriculture, mostly concentrated in the fertile southern and western parts of the province, is vital to the province's economy; other...
, New BrunswickNew BrunswickNew Brunswick is one of Canada's three Maritime provinces and is the only province in the federation that is constitutionally bilingual . The provincial capital is Fredericton and Saint John is the most populous city. Greater Moncton is the largest Census Metropolitan Area...
, Nova ScotiaNova ScotiaNova Scotia is one of Canada's three Maritime provinces and is the most populous province in Atlantic Canada. The name of the province is Latin for "New Scotland," but "Nova Scotia" is the recognized, English-language name of the province. The provincial capital is Halifax. Nova Scotia is the...
- Length: 24 hours; Reason: BAC over 0.05 percent.
- Newfoundland and LabradorNewfoundland and LabradorNewfoundland and Labrador is the easternmost province of Canada. Situated in the country's Atlantic region, it incorporates the island of Newfoundland and mainland Labrador with a combined area of . As of April 2011, the province's estimated population is 508,400...
- Length: 24 hours for the first and second suspension, 2 months for the third suspension, 4 months for the fourth suspension, 6 months for the fifth or susbsequent suspension; Reason: BAC over 0.05 percent.
- OntarioOntarioOntario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
- Length: 3 days for the first suspension, 7 days for the second suspension, 30 days for the third or subsequent suspension; Reason: BAC over 0.05 percent.
- Prince Edward IslandPrince Edward IslandPrince Edward Island is a Canadian province consisting of an island of the same name, as well as other islands. The maritime province is the smallest in the nation in both land area and population...
- Length: 24 hours for the first suspension, 30 days for a second suspension within 2 years, 90 days for the third suspension within 2 years; Reason: BAC over 0.05 percent.
- QuebecQuebecQuebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
does not suspend a person's license if their BAC is below 0.08 percent (except for novice drivers).
- SaskatchewanSaskatchewanSaskatchewan is a prairie province in Canada, which has an area of . Saskatchewan is bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, and on the south by the U.S. states of Montana and North Dakota....
- Length: 24 hours for the first suspension, 24 hours & 15 days for the second suspension, 24 hours & 90 days for the third or subsequent suspension; Reason: BAC over 0.04 percent.
- Northwest TerritoriesNorthwest TerritoriesThe Northwest Territories is a federal territory of Canada.Located in northern Canada, the territory borders Canada's two other territories, Yukon to the west and Nunavut to the east, and three provinces: British Columbia to the southwest, and Alberta and Saskatchewan to the south...
and NunavutNunavutNunavut is the largest and newest federal territory of Canada; it was separated officially from the Northwest Territories on April 1, 1999, via the Nunavut Act and the Nunavut Land Claims Agreement Act, though the actual boundaries had been established in 1993...
- Length: 24 hours for the first suspension, 30 days for a subsequent suspension; Reason: BAC over 0.05 percent.
- YukonYukonYukon is the westernmost and smallest of Canada's three federal territories. It was named after the Yukon River. The word Yukon means "Great River" in Gwich’in....
- Length: 24 hours; Reason: a police officer has reasonable grounds the driver is impaired.
Committing an offence
If an officer has reasonable grounds to believe a person has committed a drinking and driving offence, besides being allowed to arrest the person, the provinces will suspend the person's driver's license for a period of time. The same suspensions apply if the person refuses to comply with a breath demand.- Alberta - 90 days generally; 6 months if bodily harm or death is caused.
- British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Quebec, Saskatchewan, Northwest Territories, Nunavut, Yukon - 90 days.
Found guilty of an offence
Provinces will suspend a person's driver's license for a lengthy period of time if they have been found guilty of a drinking and driving offence, and will usually require various types of programs to be completed before or after a license is reinstated. When programs are required to be completed, the driver is also required to pay the cost.- Alberta - 1 year for the first offence, 3 years for a second offence, 5 years for the third or subsequent offence. A rehabilitative course may be required.
- British Columbia - 1 year for the first offence, 3 years for the second offence, indefinitely for the third or subsequent offence. A rehabilitative program, which may include an interlock device program, must be completed.
- Manitoba - 1 year for the first offence (2 years for refusing to comply and no other offences), 5 years for the second offence (7 years for refusing to comply and no other offences), 10 years for the third offence, life for the fourth or subsequent offence; If the offence was committed while there was a passenger in the car 16 years old or younger, or caused death or bodily harm, 5 years for the first offence, 10 years for the second offence, life for the third or subsequent offence. If it is a subsequent offence, or if it had a passenger in the car 16 years old or younger, or death or bodily harm was caused, an interlock device will be required.
- New Brunswick - 1 year. A drinking driving course is required.
- Newfoundland and Labrador - 1 year for the first offence, 3 years for the second offence, 5 years for the third offence, life for the fourth or subsequent offence; 10 years if bodily harm or death was caused. Rehabilitative programs, interlock programs, and alcohol/drug screenings may be required.
- Nova Scotia - 1 year for the first offence, 3 years for the second offence, indefinitely for the third or subsequent offence. For the second and subsequent offences, a driver must have an interview with Drug Dependency Services.
- Ontario - 1 year for the first offence, 3 years for the second offence, and indefinitely for the third or subsequent offence. They may have to complete a remedial program before have their license re-issued. The driver will need to have an interlock device for a prescribed period of time.
- Prince Edward Island - 1 year for the first offence, 3 years for the second offence, 5 years for the third or subsequent offence. A rehabilitation program may be required.
- Quebec - 1 year for the first offence, 3 years for the second offence, 5 years for the third or subsequent offence. If the license suspension is longer than the driving prohibition, a driver may be able to drive after the prohibition is completed with an interlock device. A rehabilitative course is required.
- Saskatchewan - 1 for the first offence, 3 years for the second offence, 5 years for the third or subsequent offence.
- Northwest Territories and Nunavut - 1 year for the first offence, 3 years for the second offence, 5 years for the third offence, indefinite for the fourth or subsequent offence. If death is caused, the period is indefinite. A number of rehabilitative programs may be required.
- Yukon - 1 year for the first offence, 3 years for the second offence, indefinitely for the third or subsequent offence.