In Canada, impaired driving is the criminal offence of operating a motor vehicle while the person's ability to operate the vehicle is impaired by alcohol or a drug. The offence includes having care or control of a motor vehicle while the person's ability to operate the motor vehicle is impaired by alcohol or a drug. Impaired driving is punishable under multiple offences in the Criminal Code, with greater penalties depending on the harm caused by the impaired driving. It can also result in various types of driver's licence suspensions.
There is a related, parallel offence of driving with a blood alcohol level (BAC) which exceeds eighty milligrams of alcohol in one hundred millilitres of blood (.08). The penalties are identical for impaired driving and driving with a BAC greater than .08.
The Criminal Code gives peace officers a number of powers to assist in the enforcement of the applicable laws, and there are a number of presumptions that assist in the prosecution of offences.
History One of the first reported criminal cases regarding drinking and driving in Canada was an Alberta 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.Rex v. Nickle (1920), 34 C.C.C 15 (S.C. Alta. App. Div.)
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 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.Impaired Driving in Canada, p 1.
In 1930, Parliament changed the offence to a hybrid offence, giving the Crown prosecutor the option to proceed with the more serious indictable offence procedure.Impaired Driving in Canada, p 2.
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, 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 other drugs.
The breathalyzer was made into a practical police tool by Robert Frank 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. Both offences are now set out in the same section of the Criminal Code, section 320.14.
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 largest 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.Impaired Driving in Canada, pp. 2–3
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 120 days 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.Impaired Driving in Canada, pp. 35–36
On June 21, 2018, Bill C-46 received royal assent, and Part One of the bill immediately came into effect by amending the Criminal Code to include cannabis-related driving offences to account for the legalization of cannabis with the passing of the Cannabis Act on the same day. On December 18, 2018, Part Two of the bill came into effect, and replaced all the existing driving provisions with a new comprehensive regime in the largest update since 1985. Altogether, the 2018 changes included mandatory alcohol screening requirements, limits on the amount of legal drugs drivers could have in their system, as well as an expanded "80 or over" offence. Part Two carried more severe immigration-related consequences for both permanent residents and foreign nationals convicted of an impaired driving offence. It also increased the maximum sentence from five to ten years.
Testing for alcohol and drugs
Approved instrument demands If a police officer has reasonable grounds that a person has committed an offence under section 253 within the past two hours due to alcohol, they can demand that a person provide suitable breath samples into an approved instrument.Criminal Code, RSC 1985, c C-46, s 254.Impaired Driving Laws, Department of Justice. Note: DOJ lists the "post driving" restriction as two hours. 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 grounds 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 his or her body, and that he or she has been operating or has had care or control of a vehicle within the past three hours, the police officer can demand that person provide a suitable sample into an approved screening device. 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, referred to as Standardized Field Sobriety Tests (SFSTs). SFSTs are requested in order to allow the officer to establish "reasonable grounds" for making an approved instrument demand, by establishing that there is reasonable and probable cause which lies at the point where "point where credibly-based probability replaces suspicion".Hunter et al. v. Southam Inc at p. 114, 115 "Reasonable grounds" is necessary to sustain the use of evidence obtained from the approved instrument demand, blood demand, or drug evaluation demand, and thereby support a conviction based on that demand.
Commentary varies on whether a suspect can refuse taking SFSTs in Canada. Some sources, especially official ones, indicate that the SFSTs are mandatory,What are my rights if the police think I’ve been taking drugs and driving?, Steps to Justice (advises that FST is mandatory)Breathalyzer and roadside tests (Ont.), legalline.caAlcohol and Drug Impaired Driving - Tests, Criminal Charges, Penalties, Suspensions and Prohibitions - RCMP whereas other sources are silent on FST testing.https://www.theglobeandmail.com/globe-drive/culture/commuting/what-must-i-legally-do-when-police-pull-me-over/article25829415/ What must I legally do when police pull me over?], Globe and Mail, 4-Aug-2015 Section 254(2)(a) of the Criminal Code provides that, "If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle ... the peace officer may, by demand, require the person ... to perform forthwith physical coordination tests."Criminal Code, s. 254, http://laws-lois.justice.gc.ca The assertion regarding mandatory compliance with an SFST demand is based on "failure to comply with a demand", as an offence under section 254(5) of the Criminal Code, but it is unclear whether section 254(5) applies to refusal of SFSTs (provided the suspect agrees to take an approved instrument chemical test).
There are some reports that refusal to submit to an SFST can result in the same penalties as impaired driving. Nevertheless, it is unclear whether there has ever been a prosecution under this interpretation of "failure to comply with a demand" as applied to SFSTs. Sections 254(1) and (5) of the Criminal Code address this point, but only with respect to chemical testing (breath, blood, etc.)Canada Code s. 254 (full text of criminal code) (full text, .pdf)
Of note, it is generally advised to comply with a demand to submit to the approved instrument chemical test. A legal challenge to sufficiency of "reasonable grounds" to submit to the approved instrument demand, blood demand, or drug evaluation demand, is typically addressed in court, under the Exclusionary Rule.Improperly or Illegally Obtained Evidence: The Exclusionary Evidence Rule in Canada , International Centre for Criminal Law Reform and Criminal Justice Policy (12-2005) (.pdf)cf., Exclusionary Rule (US)
Drug evaluations