Impaired Driving in Canada

Impaired Driving Charges in Canada

What is Impaired Driving?

Driving under the influence (DUI) or impaired driving charge is quite serious in Canada.  Impaired driving involves operating a vehicle while impaired by alcohol, drugs or a combination of the two.  An individual may be impaired even if their consumption of alcohol or certain drugs is below the legal limit; it matters if the influence of alcohol, drugs or both has compromised their ability to drive.

The police may observe impaired driving through several means:

• The nature of an individual’s driving, such as when the driver is involved in an accident;
• Physical symptoms of impairments, such as bloodshot eyes;
• Physical tests, such as a Standardized Field Sobriety Test (SFST), the use of an approved screening device (ASD), a blood sample; or
• Video evidence of the individual’s behaviour and demeanour

Examples of Impaired Driving

Some examples of impaired driving following the accused consuming alcohol and/or drugs might include:

• Weaving through traffic;
• Failing to pull over when an emergency vehicle issues its siren;
• Parking poorly, typically in a location where parking is prohibited or where the manner of parking is very unusual;
• Failing to stop at a stop sign or red light;
• Driving in the wrong direction; or
• Speeding

Defences

While the legal strategy of choice will depend on the facts of your case, some available defences might include:

• Disputing reasonable suspicion the officers had to demand a breath or blood sample;
• Challenging the legality of the stop;
• Questioning the Field Sobriety Tests;
• Challenging the timing of the approved screening device (ASD) demand;
• Challenging the timing of collecting samples;
• Challenging the grounds for arrest;
• Challenging the operability of the ASD; or
• Submitting a Charter application for a violation of your rights against unreasonable search and seizure, arbitrary detention or your right to counsel.

Punishments

Impaired driving charges are quite serious in Canada and can result in jail time even for first-time offenders.

For impaired driving offences, the Crown may elect to proceed by indictment (more serious) or summarily (less serious), the punishments for which will vary:

• Indictment
  • Impaired driving: Up to 10-years imprisonment
  • Impaired driving causing bodily harm: Up to 14-years imprisonment
  • Impaired driving causing death: Up to life imprisonment
• Summary
  • Impaired driving: Up to 2-years less a day imprisonment
  • Impaired driving causing bodily harm: Up to 2-years less a day imprisonment

Overview of the Offence

According to section 320.14 of the Criminal Code:

Operation while impaired

320.14 (1) Everyone commits an offence who

(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;

(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;

(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or

(d) subject to subsection (7), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.

Operation causing bodily harm

(2) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes bodily harm to another person.

Operation causing death

(3) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes the death of another person.

Operation — low blood drug concentration

(4) Subject to subsection (6), everyone commits an offence who has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph (1)(c).

The Guilty Act (Actus Reus)

To establish the guilty act, or actus reus, of impaired driving, the Crown must demonstrate beyond a reasonable doubt the following:

• The driver operated a conveyance, such as a motor vehicle, vessel, aircraft or railway equipment.

While most impaired driving cases involve vehicles in motion, you may also commit impaired driving by being in the care and control of the vehicle.  An individual will be deemed in care and control of a vehicle if they can easily set the vehicle in motion or if their blood alcohol concentration and/or blood drug level is equal to or exceeding the legal limit within two hours of operating the vehicle.

The Guilty Mind (Mens Rea)

The mens rea, or guilty mind, for impaired driving is established by proof, beyond a reasonable doubt, of the following:

• A general intent to voluntarily consume alcohol, drugs, or a combination of the two

A driver need not have knowledge of the effects of drugs and alcohol to establish the necessary mens rea for impaired driving; if there is proof that the driver recklesslessly consumed alcohol, drugs, or a combination thereof, the mens rea may be established.  As the Crown need only establish a general intent of voluntary consumption, there is a rebuttable presumption that the mens rea of the offence is made out.

Defences

While it will ultimately depend on the facts of your case, there are several defences available for impaired driving charges.

Some of the most common defences include:

• Disputing reasonable suspicion
• Demonstrating you were not behind the wheel or in care and control of the vehicle
• Submitting a Charter application

Disputing Reasonable Suspicion

Under section 320.27 of the Criminal Code, a police officer must have reasonable grounds to suspect that the individual is impaired and has been operating a vehicle within the preceding 3 hours. The officer may try to form reasonable suspicion by asking the driver some questions or observing the driver’s behaviour. If the officer has reasonable suspicion, they may demand further tests, such as a breath sample. If the officer did not have reasonable suspicion, there may be grounds to challenge the demand.

Lack of Evidence of You Behind the Wheel or in Care and Control of the Vehicle

The police may come upon the scene of an accident but not witness you behind the wheel of the vehicle. In this situation, the police may not be able to demonstrate that you were driving while impaired unless the police can collect some other evidence, such as statements from witnesses, that you were the driver of the crashed vehicle.

Even if the police cannot demonstrate that you drove while impaired, they might attempt to show that you were under the care and control of the vehicle while impaired. If this is the case, you might demonstrate that there was no realistic risk of danger to the public because the vehicle was inoperable.

Charter Application

Typically, your Charter rights kick in from the moment of your detention.  However, some of your Charter rights are suspended during impaired driving road stops.

Nevertheless, one or more of the following Charter rights may have been violated:

• Section 8: Right to be secure against unreasonable resarch and seizure
• Section 9: Right not to be artibrarily detained
• Section 10(b): Right to counsel
• Section 11(b): Right to be tried within a reasonable time

Section 10(b): Right to Counsel

In impaired driving cases, immediately upon arrest, the police must inform the individual of their right to counsel and allow them to exercise that right. If the police did any of the following, then you may be able to exclude any evidence that they collected during the course of the transaction:

• Failure to Provide Rights: The police did not inform you of your right to counsel
• Delay in Providing Rights: The police waited too long to inform you of your right to counsel.
• Failure to Provide Opportunity to Exercise Rights: The police did not allow you to contact counsel.
• Delay in Providing Opportunity to Exercise Rights: The police waited too long to allow you to contact counsel.

The police cannot use any statements you make against you at trial before they inform you of your rights. However, they may use your statements to form the reasonable suspicion necessary to demand roadside tests.

Section 11(b): Right to be Tried Within a Reasonable Time

Under section 11(b) of the Charter, any person charged with an offence has a right to be tried within a reasonable time. As a result, a stopwatch starts the moment charges are laid to the actual or anticipated end of the trial. If the entire process exceeds 18 months in provincial courts or 30 months in superior courts, you may be able to assert that your right to trial within a reasonable time has been compromised. If the Crown cannot account for the delays, the Crown will need to stay the charges (not prosecute the matter any further).

Punishments

Maximum Punishment

Impaired driving charges carry a mandatory minimum penalty across the country.

While some of the penalties will vary depending if this is your first, second or third offence, the maximum punishment includes:

• Indictment
  • Impaired driving: Up to 10-years imprisonment;
  • Impaired driving causing bodily harm: Up to 14-years imprisonment;
  • Impaired driving causing death: Up to life imprisonment.
• Summary
  • Impaired driving: Up to 2-years less a day imprisonment;
  • Impaired driving causing bodily harm: Up to 2-years less a day imprisonment.

Minimum Punishment

The mandatory minimum punishment for impaired driving charges are as follows:

• First offence: $1,000-$2,000 fine;
• Second offence: 30-day imprisonment; and
• Third offence: 120-day imprisonment.

Roadside Penalties

In addition to the penalties listed above, drivers may receive roadside sanctions for impaired driving.

While the penalties will vary by province, they may include:

• Licence suspension;
• Vehicle seizure and associated costs;
• Participation in remedial or educational courses; and
• Participation in an Ignition Interlock Device program.

Frequently Asked Questions

What is impaired driving?

As noted above, impaired driving, or driving under the influence (DUI), involves operating a vehicle while impaired by alcohol, drugs or a combination of the two.  An individual may be impaired even if their consumption of alcohol or certain drugs is below the legal limit; it matters if the influence of alcohol, drugs or both has compromised their ability to drive.

What is a DUI?

Driving under the influence (DUI) is the American term for impaired driving.

A DUI refers to operating a vehicle while:

• your ability to do so is compromised by the influence of alcohol and/or drugs; or
• your blood alcohol concentration (BAC) and/or blood drug level is above the legal limit.

You may also be convicted of a DUI offence if you are in care and control of a motor vehicle while your ability to do so is compromised.

Do I need to hire a lawyer for a DUI?

Just like consulting an accountant during tax season, an impaired driving lawyer is the most knowledgable about DUI prosecutions.  An impaired driving lawyer can devise the best strategy for approaching your case and see it through from beginning to end.  Additionally, a impaired driving lawyer can assist in negotiating your case with the Crown prosecutor and possibility secure a plea bargain to a lesser charge or get the charges dropped altogether.  With the possibility of a criminal record on the table, it’s always best to consult with a professional.