JURI Committee Report
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CHAPTER 5: PENALTIES
During its review, the Committee found that a large proportion of recommendations called for increases in the various penalties currently available for virtually all impaired driving related offences. This chapter will review fines, prison terms and driving prohibition orders currently available for first, second and subsequent offences, as well as for the more aggravated offences involving bodily harm or death. The viability of tiered penalties will also be discussed, in addition to recommendations to add sanctions not now mentioned in the Criminal Code. Finally, the penalties available for some other Criminal Code offences will be discussed, insofar as they may affect the prosecution of impaired driving offences.
Manitoba and Nova Scotia expressed the view that the minimum $300 fine for a first offence is inadequate. The Canadian Police Association concurred in that position, as did the Addictions Foundation of Manitoba and Winnipeg Police Services. Given that the current minimum fine has been in place since 1985, it may no longer `denounce' the actions of impaired drivers in a meaningful way. The Committee is of that view, especially since the Nova Scotia Department of Justice pointed out that the fines for some provincial traffic offences now exceed the $300 minimum. Although members are sensitive to the financial burden that higher fines may place on offenders and their dependants, the Committee notes that there are Criminal Code provisions allowing for fines to be discharged through fine option programs established by the applicable lieutenant governor in council.
Because the mandate of this study includes ensuring that penalties adequately reflect the seriousness of the offence(s), a majority of Committee members agree that the mandatory minimum fine for a first offence should be increased in order to do just that.
RECOMMENDATION 2
The Committee recommends that subparagraph 255(1)(a)(i) of the Criminal Code be amended to increase the mandatory minimum fine for a first offence to $600.
MANDATORY CRIMINAL CODE DRIVING PROHIBITIONS
Following conviction for an offence under subsections 253(a) (impaired driving), 253(b) (over 80), or under subsection 254(5) (refusal to provide a sample), subsection 259(1) of the Criminal Code requires the sentencing judge to impose a mandatory minimum order of prohibition. For a first offence, the offender must be prohibited from operating a motor vehicle for at least three months. The minimum prohibition periods for a second and subsequent offence are six months and one year, respectively. The maximum available prohibition period for an impaired driving conviction, in the absence of injury or death, is three years. However, most jurisdictions have augmented that punishment with extended periods of license suspension that are triggered by a Criminal Code conviction. As of October 1997, every province except New Brunswick imposed a fixed suspension of at least a year for a first offence, with escalating periods of suspension for second and subsequent offences.1
Nevertheless, the Committee is concerned that these suspensions will not necessarily prevent an offender from driving in other Canadian jurisdictions after his or her Criminal Code prohibition expires. Although Manitoba and Ontario do not support lifetime driving prohibitions, the Committee notes that the Canadian Bar Association was in favour of giving judges the discretion to impose driving prohibitions in excess of three years for repeat offenders. The Canadian Police Association and the Canadian Resource Centre for Victims of Crime also asked for amendments to the Criminal Code to allow for unlimited prohibitions for multiple repeat offenders. The Committee shares the concerns expressed by Traffic Injury Research Foundation (TIRF) and others, respecting the need for more effective intervention and deterrence for hard-core drinking drivers.
For those reasons, a majority of Committee members are in favour of increasing the prohibition periods under subsection 259(1) and including the possibility of a lifetime prohibition following a third or subsequent offence. However, in those jurisdictions where alcohol ignition interlock programs are operating, the Committee believes that the courts should have the discretion to substitute compliance with such a program for part of a first offender's otherwise mandatory minimum period of prohibition.
RECOMMENDATION 3
The Committee recommends that paragraph 259(1)(a) be amended to provide for a driving prohibition order of not more than three years and not less than one year for a first offence, or a prohibition of not less than three months with the balance to be served by complying with an alcohol ignition interlock program where available.
The Committee further recommends that paragraphs 259(1)(b) and (c) be amended to provide for a driving prohibition order of not more than five years and not less than two years for a second offence, and not less that three years for a subsequent offence.
The Bloc Québécois Members are delighted that the Committee has retained the possibility of alternative penalties (alcohol ignition interlock device) for first offenders in provinces where the program is available. The Bloc considers, however, that this option should also be available to repeat offenders.
The Bloc Québécois took into consideration the fact that long license suspensions often lead offenders to drive despite being under suspension. That is why the Bloc Québécois Members believe that alternative penalties, such as the alcohol ignition interlock device, are effective in altering offenders' behaviour, encouraging their rehabilitation and at the same time ensuring public safety. The Bloc Québécois is afraid that longer minimum penalties would in practice prove ineffectual and would not reduce the number of accidents and offences.
The Canadian Police Association argued that the mandatory minimum penalty for second and subsequent impaired driving convictions should be increased from the existing 14 and 90 days imprisonment to 30 days and 4 months, respectively.
Assuming implementation of the foregoing Recommendations 2 and 3, the Committee sees no need at this time to increase the minimum periods of imprisonment for sections 253 and 254 offences.
B. Maximum Summary Conviction Penalty
The Manitoba Government and the Addictions Foundation of Manitoba and Winnipeg Police Services also recommended increasing the maximum available penalty for impaired driving on summary conviction to 18 months imprisonment, from the current six-month limit.
The Committee is not prepared to recommend increasing the maximum penalty for a summary conviction offence at this time, given that up to five years imprisonment is available to the court for more serious offences, if the Crown elects to proceed by indictment.
C. Impaired Driving Causing Bodily Harm or Death
There was also considerable support among participants in the Committee's review process for increased penalties for the offences of impaired driving causing bodily harm or death. For example, the Canadian Police Association and the Canadian Resource Centre for Victims of Crime argued that there should be a mandatory minimum period of imprisonment for either offence, if the offender has previously been convicted of impaired driving or refusal to provide a breath sample. In addition, the Manitoba Government and the Addictions Foundation of Manitoba and Winnipeg Police Services urged that the maximum penalty for impaired driving causing bodily harm be increased from 10 years imprisonment to 14, to match the maximum available penalty for aggravated assault. Likewise, they argued that the maximum available penalty for impaired driving causing death should be raised from 14 years to life, to parallel the maximum available penalty for manslaughter.
Respecting the penalties for impaired driving causing bodily harm or death, the Committee recognizes that these provisions are intended to deal effectively with the worst possible consequences of the behaviour that we are mandated to review. Furthermore, the Committee believes that the basic premise underlying the foregoing suggestions is that the penalties for impaired driving cannot be considered in a vacuum and must comport with the penalties for different but equally harmful conduct. The reasons for that are twofold. First, the sentencing principles in section 718.2 of the Criminal Code call for equally severe punishment for similarly culpable acts. Second, the Committee cannot ignore the fact that harsher sentences for certain offences can lead to unintended consequences through charging decisions and plea agreements.
For that reason, the Committee considered the suggestions carefully and came to the following conclusions. Because neither criminal negligence causing bodily harm or death, nor manslaughter offences provide for a mandatory minimum prison term, it would be inappropriate to do so for impaired driving convictions, at this time. Otherwise, there could be a very great incentive to an accused person to offer a plea to criminal negligence or manslaughter. The same concern militates against increasing the 10-year maximum penalty for impaired driving causing bodily harm, since the maximum penalty for criminal negligence causing bodily harm is also currently 10 years. However, because the maximum penalty for both manslaughter and criminal negligence causing death is life imprisonment, a majority of Committee members are persuaded that the maximum penalty for impaired driving causing death should be the same.
RECOMMENDATION 4
The Committee recommends that subsection 255(3) be amended to allow imprisonment for life following conviction for impaired driving causing death.
RECOMMENDATION 5
The Committee recommends that the Minister of Justice review the Criminal Code penalties for impaired driving causing bodily harm or death and criminal negligence causing bodily harm or death, in order to determine whether they should provide for mandatory minimum sentences.
TIERED BLOOD ALCOHOL CONCENTRATION (BAC) PENALTIES
As a means of linking the level of sanction to the severity or gravity of the offence, TIRF recommended that the Criminal Code be amended to provide for a system of tiered BAC penalties. They argued that tiered BAC penalties are appropriate in light of empirical evidence establishing that drivers with a higher BAC pose a significantly greater collision risk and that offenders with high BACs are more likely than others to repeat the offence. TIRF's recommendation was concurred in by a number of organizations and individuals.2
Notwithstanding the appeal of those arguments, the Committee shares some of the concerns expressed by other participants in its review process. For example, the Manitoba and Ontario governments saw a risk that tiered BAC penalties could lead to disputes over levels of impairment, thereby complicating court proceedings. Saskatchewan Government Insurance argued that tiered BAC penalties could increase the administrative burden on police and make enforcement and prosecution of impaired driving offences more complicated. The Insurance Corporation of British Columbia was worried that tiered penalties could result in more charges for refusal to provide a breath sample, which could result in a higher conviction rate but not necessarily get hard-core drinking drivers off the road. Furthermore, a number of participants argued that tiered BAC penalties were unnecessary since the courts already treat high BAC levels as an aggravating factor in sentencing.3
Although we are persuaded that very high BAC levels should ordinarily lead to greater penalties, the Committee does not want to further complicate the investigation and prosecution of impaired driving offences. For that reason, the Committee would prefer to see the courts routinely impose harsher sentences in more egregious cases. That result could be achieved by explicit reference to the sentencing principles now provided for in section 718.2 of the Criminal Code, to the effect that evidence of BAC levels two or more times the legal limit should be considered to be an aggravating circumstance at the time of sentencing.
RECOMMENDATION 6
The Committee recommends that the Criminal Code be amended to ensure sentencing judges consider a BAC level two or more times the legal limit to be an aggravating factor for sentencing purposes.
This matter is addressed in Recommendation 3, which would give courts the discretion to order a lifetime driving prohibition after a third offence.
ALCOHOL IGNITION INTERLOCK DEVICES
Several participants in the Committee's review process suggested expanding the use of alcohol ignition interlock devices. As mentioned earlier in this report, the devices are currently in use in Alberta and Québec as a condition of a restricted license for drivers who are subject to a provincial suspension. TIRF told the Committee that alcohol ignition interlocks not only reinforce non-drinking behaviour but also provide "a fail-safe mechanism to prevent tragedy in the event of a relapse."4 TIRF suggested that judges be allowed to order the installation of an ignition interlock device as a condition of probation, or in exchange for a reduction in the length of an extended federal driving prohibition. The Council on Drug Abuse would prefer to see ignition interlock devices employed "over and above any other sanctions imposed by the court," for repeat offenders as well as those with high BACs.5
Although Recommendation 3 would allow the use of alcohol ignition interlocks to shorten the driving prohibition for a first-time offender, the Committee is persuaded that wider use of these devices could provide even more public protection while offering meaningful deterrence to individual offenders. We also believe that other jurisdictions could learn much from the programs operating in Québec and Alberta. While it is obvious that there are considerable costs associated with administering such a program, it is also clear that the majority of those costs could be borne by the users. For these reasons, the Committee urges all jurisdictions in Canada to establish alcohol ignition interlock programs, to be implemented either as a condition of probation or as an administrative tool available to the applicable registrar.
RECOMMENDATION 7
The Committee recommends that subsection 732.1(3) of the Criminal Code be amended to allow a sentencing judge to require the use of an alcohol ignition interlock, as a condition of probation, in those jurisdictions where such a program is available.
MANDATORY ASSESSMENT AND/OR TREATMENT
As indicated in Chapter 2, several jurisdictions now require assessment and/or treatment for alcohol abuse as a prerequisite to reinstatement of a driver's license, after completion of the applicable period of suspension. Many participants in the Committee's review process took the view that punishment alone may not be an effective deterrent, especially for those offenders with substance abuse problems. Mothers Against Drunk Driving and the Canadian Automobile Association argued that Parliament should mandate assessment for all impaired drivers and treatment of offenders, where warranted, as part of the sentence imposed. The Canadian Bar Association was in favour of court-ordered assessments for repeat offenders and those convicted of the more aggravated impaired driving offences. They believe that judges should also have the authority to compel treatment in appropriate cases.
The Committee is convinced that treatment offers the only effective means of combatting recidivism, particularly among hard-core drinking drivers whose behaviour seems most resistant to change. Consequently, we commend those jurisdictions that have implemented assessment and treatment programs for those with abuse or dependency problems. However, the Committee believes that more has to be done to ensure that even those offenders who have no immediate hope of license reinstatement can be assessed and ordered to undergo treatment, without their agreement as is now required under existing paragraph 732.1(3)(g). For that reason, the Committee is in favour of Criminal Code amendments to put those tools into the hands of the sentencing judge.
RECOMMENDATION 8
The Committee recommends that subsection 732.1(3) of the Criminal Code be amended to allow a sentencing judge to order persons convicted of impaired driving to undergo assessment and recommended treatment, as a condition of probation in those jurisdictions where treatment is provided.
As mentioned in Chapter 2 of this report, curative treatment orders became part of the Criminal Code in 1976. Subsection 255(5) allows a court to discharge an impaired driver, conditional upon his or her attendance at a program for curative treatment related to alcohol or drugs. The order is in lieu of a conviction and can only be made where the court considers that the individual is in need of drug or alcohol treatment and that such an order would not be contrary to the public interest. The provision has effect only in those jurisdictions in which it has been proclaimed in force, namely, New Brunswick, Manitoba, Prince Edward Island, Alberta, Saskatchewan, Yukon, and the Northwest Territories.6
A number of participants in the Committee's review process, including the Addictions Foundation of Manitoba and Winnipeg Police Services, the Canadian Police Association and the Insurance Corporation of British Columbia, argued that a discharge for curative treatment is not an appropriate response to impaired driving. On the other hand, the Barreau du Québec and the Canadian Council of Criminal Defense Lawyers thought that curative treatment orders should continue to be an option available to the courts. The Canadian Bar Association argued that such orders should be uniformly available across all jurisdictions.
Because the provision for curative treatment is only operative in those jurisdictions that have requested it, the Committee would leave subsection 255(5) of the Criminal Code in its present form.
Over the course of this review, the Committee was told that the penalties for certain Criminal Code offences related to impaired driving were in need of amendment. In particular, the Canadian Police Association and the Canadian Resource Centre for Victims of Crime argued that subsection 259(4) should be amended to raise the maximum penalty for driving while disqualified.
Given the often close link between those who commit this offence and those who are prohibited or suspended from driving as a result of impaired driving convictions, the Committee agrees that the courts should have the discretion to impose a more onerous sentence, especially in the case of repeat offenders.
RECOMMENDATION 9
The Committee recommends that subsection 259(4) of the Criminal Code be amended to increase the maximum penalty available upon indictment to five years.
B. Failure to Stop at the Scene of an Accident
Section 252 makes it an offence for a driver involved in a collision with a person or vehicle to fail to stop and exchange particulars and, where necessary, offer assistance to anyone injured. The maximum available penalty for such an offence is five years imprisonment. The Canadian Resource Centre for Victims of Crime argued that penalties for failure to stop at the scene of an accident should be amended, since higher penalties for impaired driving may motivate some to flee the scene of an accident in order to avoid punishment. That may be particularly true of an impaired driver involved in a collision with a pedestrian or another vehicle, given the penalties associated with a conviction for impaired driving causing bodily harm or death.
The Committee believes that more should be done to encourage drivers involved in collisions to stop and assist anyone who may be injured, and that the punishment for failure to do so should be linked to the consequences. Given that greater harm gives rise to greater penalties for impaired driving, the Committee suggests that section 252 be amended to provide for similar penalties, in those circumstances where the collision leads to injury or death.
RECOMMENDATION 10
The Committee recommends that subsection 252(1) of the Criminal Code be amended to allow for a maximum 10 years imprisonment, where the accident causes bodily harm and life imprisonment, where the accident causes death.
The Bloc Québécois Members wish to make clear that they are entirely in agreement with harmonization of penalties for leaving the scene of an accident and for impaired driving causing accidents involving injury or death. In Québec, a number of hit-and-run accidents have occurred in the past few months, and therefore the issue has been at the heart of the Bloc Québécois' concerns during the Committee's work. However, the Bloc would have preferred that leaving the scene of an accident, and impaired driving causing death, be made liable for maximum sentences of 14 years in prison; this is much more appropriate than life imprisonment.
1 "Impaired Driving in Canada, 1996," Juristat, Statistics Canada, Catalogue No. 85-002-XPE, Vol. 17, No. 12, p. 10.
2 The Canadian Police Association, Mothers Against Drunk Driving, the Canadian Automobile Association, the Canada Safety Council, the Canadian Resource Centre for Victims of Crime, and Doug Abernethy, all recommended the use of tiered penalties contingent on BAC levels.
3 They included the Ontario Ministry of Transport, the Barreau du Québec and the Canadian Bar Association.
4 Brief to the Committee, p. 13.
5 Brief to the Committee, p. 3.
6 Martin's Annual Criminal Code, 1999, p. 465.