JURI Committee Report
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CHAPTER 2: LEGISLATIVE BACKGROUND
Operating a motor vehicle while under the influence of alcohol has been an offence under the Criminal Code of Canada since the early part of this century, although impaired driving was not apparently identified as a major preventable cause of death and injury on Canadian roads until much later. Since the late 1960s, however, much effort has been expended toward the prevention, detection and prosecution of impaired driving, so as to reduce the high number of motor vehicle crashes in Canada resulting in serious injury or death. This Chapter of the report will review Parliament's response to the problem over the past 30 years, as well as some of the legislative and administrative steps taken by the provinces and territories.
IMPAIRED DRIVING AND THE CRIMINAL CODE1
The Criminal Code prohibits driving while one's ability to operate a vehicle is impaired by alcohol or drugs. It is also an offence to drive with a blood alcohol concentration (BAC) in excess of 80 mg/100 ml of blood. Upon conviction, the penalties include a mandatory minimum driving prohibition in addition to the applicable fine or jail term, with escalating penalties for repeat offenders. Conviction for impaired driving causing bodily harm or death carries the potential for significantly greater penalties. In order to enable law enforcement agencies to gather evidence, the Criminal Code gives police the power to demand a breath or blood sample where there are reasonable and probable grounds to believe that a driver is impaired. To encourage compliance, failure or refusal to provide a sample is an offence carrying the same penalty as driving while impaired or with a BAC in excess of the legal limit. Since breath analysis became part of Canada's criminal law 30 years ago, there have been a number of refinements to the legislation. For example, police can now demand a breath sample with a roadside screening device, on suspicion that a driver has alcohol in his or her body. Police can also seek a telewarrant authorizing them to have blood samples taken from a driver involved in a serious accident if the driver is unable to consent because of his or her condition.
Driving a motor vehicle while intoxicated was added to the Criminal Code as a summary conviction offence in 1921.2 In 1925, that provision was amended to make it a summary conviction offence to drive while intoxicated or under the influence of a narcotic.3 In 1930, driving while intoxicated or under the influence of a narcotic was made a hybrid offence, so that the Crown could proceed by indictment in more serious cases.4 The precursor to section 253, as it now exists in the Criminal Code, was passed in 1951 in the form of a hybrid offence of driving while impaired by alcohol or a drug.5 The penalty for a first offence was a fine of not less than $50 and not more than $500, or up to three months imprisonment, or both. For a second offence, the penalty was from 14 days to 3 months imprisonment and a subsequent offence was punishable by from 3 months to a year's imprisonment.
Extensive Criminal Code amendments came about in 1969, when Parliament passed the so-called "per se" offence of driving with a BAC in excess of 80 mg/100 ml of blood.6 Refusal of a police officer's demand to provide a breath sample was made an offence at the same time and both began as summary conviction offences, with a mandatory minimum $50 fine. They became hybrid offences in 1976, when the punishment for both became the same as that for impaired driving, with repeat offences being subject to greater punishment.7 Roadside screening devices were also authorized at that time, thereby allowing a police officer to demand a breath sample based on a reasonable suspicion that a driver has alcohol in his or her body. Refusal of such a demand was made a hybrid offence, also carrying the same penalties as impaired driving. That same bill saw the introduction of the curative discharge provisions of the Criminal Code now found at subsection 255(5).
The impaired driving provisions were again amended in 1985, to allow a warrant for a blood sample to be obtained by telephone, where a suspect involved in an accident resulting in death or bodily harm is unable to consent to the taking of a sample. At the same time, the maximum available penalties for impaired driving causing bodily harm and impaired driving causing death were increased to 10 and 14 years imprisonment, respectively.8 Those 1985 amendments also imposed the penalties still in force today for impaired driving, the per se offence of driving with a BAC in excess of 80 mg/100 ml of blood, and refusal to provide a breath sample. The mandatory minimum punishment for any of those 3 offences is a $300 fine for a first offence, 14 days imprisonment for a second offence, and 90 days imprisonment for a subsequent offence. The maximum available penalties on summary conviction or indictment are six months and five years imprisonment, respectively. The 1985 amendments also introduced the existing mandatory minimum driving prohibitions of three months, six months and one year, respectively, for first, second and subsequent offences. Although a maximum three-year driving prohibition had been available since 1938,9 the same 1985 amendments increased the maximum prohibition period to 10 years following conviction for impaired driving causing bodily harm or death.
While 1985 saw the last major overhaul of the impaired driving provisions of the Criminal Code, there were some further amendments in the 1990s. For example, the original two-hour time limit for obtaining telewarrants for blood samples was expanded to allow police four hours to do so.10 Subsequent amendments specified that driving prohibitions do not begin until after the completion of any jail term imposed for the same offence.11 Notwithstanding the evolution of federal legislation in this area, many participants in the Committee's review process argued that the present state of the law is ineffective and flawed. As will be seen later in this report, those participants have recommended numerous amendments to the Criminal Code to address their specific concerns.
PROVINCIAL/TERRITORIAL MEASURES
Although Criminal Code impaired driving convictions can give rise to significant consequences, an accused person routinely faces the possibility of additional sanctions. Most of the provinces and territories have instituted administrative penalties or controls to mandate action against suspected and convicted impaired drivers, some of which may be effective immediately and independently of any Criminal Code conviction.
A. Driver's License Suspensions
For example, most jurisdictions impose a license suspension of at least a year following a Criminal Code conviction.12 In addition, some have implemented shorter-term, license suspensions that take effect following failure or refusal of a breath test, independent of any Criminal Code conviction. In Manitoba, The Highway Traffic Act imposes an automatic three-month administrative license suspension for drivers who refuse a demand for a breath test, or whose BAC registers over 80 mg/100 ml of blood.13 Likewise, British Columbia's Motor Vehicle Act allows a police officer to impose a 90-day prohibition for refusing a demand or testing over 80 mg/100 ml of blood. The prohibition becomes effective 21 days after the event, during which time the driver can seek a review.14 Ontario's Highway Traffic Act contains similar provisions that were very recently upheld by the Ontario Court of Appeal.
Most provinces have also legislated brief periods of license suspension for persons whose BAC is over 50 mg/100 ml of blood but less than the Criminal Code legal limit of 80 mg/100 ml of blood.15 The purpose of such action is to allow the police to suspend drivers at the roadside for up to 24 hours, in the hope of preventing an impaired driving offence. In addition, several provinces impose a zero tolerance rule as part of their graduated driver's license program, although Ontario is apparently the only jurisdiction with a lower BAC limit for supervisory drivers as well.16 Ontario novice drivers who breach this condition face a 30-day license suspension and fine.17 Likewise, Québec drivers can have their license suspended for 15 days.18
C. Seizure and Impoundment of Vehicles
A majority of provinces have also instituted seizure and impoundment measures for vehicles operated by prohibited or suspended drivers.19 Although usually not aimed specifically at impaired drivers, this measure is seen as an important tool to compel compliance with federal and provincial driving restrictions that commonly arise out of impaired driving convictions. Since 1989, The Highway Traffic Act of Manitoba has allowed for seizure and 30-day impoundment of a motor vehicle driven by a suspended driver.20 Ontario implemented similar countermeasures against suspended drivers on 16 February 1999.21 Since December 1997, Québec's Highway Safety Code has allowed for immediate seizure and 30-day impoundment of any road vehicle operated by a driver who has been suspended for impaired driving.22
A number of jurisdictions now require assessment and/or treatment for alcohol abuse or dependency as a prerequisite for reinstatement of a driver's license at the end of a suspension period resulting from an impaired driving conviction. In Manitoba, for example, drivers must undergo assessment by the Addictions Foundation of Manitoba and complete any prescribed treatment before they can regain their license, after The Highway Traffic Act suspension has expired.23 Québec's Highway Safety Code requires all convicted impaired drivers to complete an alcohol and drug awareness program, and repeat offenders must undergo a satisfactory assessment before a new license will be issued.24 In Ontario, first-time offenders convicted after 30 September 1998 are required to complete an education program prior to having their driver's license reinstated. Repeat offenders must be assessed and attend either an education or treatment program.25
E. Alcohol Ignition Interlock Devices
Where an alcohol ignition interlock device is installed in a motor vehicle, a driver must provide a breath sample before it will start. If the breath sample shows that the driver has a BAC in excess of a pre-set limit, the ignition will lock and the vehicle cannot be started. While early models of these devices may have been easier to circumvent, recent technological developments have apparently overcome those limitations.26 According to a supplier's representative, the use of ignition interlock "typically involves participation in a program of close monitoring and supervision that's administered either by court officials pursuant to a probation order, or by driver licensing authorities as a condition of license re-instatement."27 The province of Alberta introduced the first Canadian pilot alcohol ignition interlock program in 1990, for persons convicted of a second or subsequent impaired driving offence. Preliminary results of an evaluation of that program by the Traffic Injury Research Foundation (TIRF) showed "a significant and positive effect of the ignition interlock program," with participants having a lower rate of recidivism and higher survival probabilities than offenders who did not participate in the program.28 That program is now available to anyone convicted of an impaired driving offence in Alberta, after the court-ordered (Criminal Code) prohibition has been served, while the driver is still subject to the applicable provincial license suspension period.29 Since December 1997, Québec's Highway Safety Code has allowed for early issuance of a restricted driver's license on condition that an alcohol ignition interlock device is installed in the offender's vehicle.30
Many jurisdictions, through the exercise of their constitutional powers over drivers' licensing and highways, have implemented comprehensive countermeasures. Although by no means uniform across Canada, these statutory and administrative schemes complement the available Criminal Code sanctions by providing additional controls where needed, as well as strong incentives for behavioural change by impaired drivers.
1 R.S.C. 1985, Chap. C-46.
2 An Act to amend the Criminal Code, S.C. 1921, c. 25.
3 An Act to amend the Criminal Code, S.C. 1925, c. 38.
4 An Act to amend the Criminal Code, S.C. 1930, c. 11.
5 An Act to amend the Criminal Code, S.C. 1951, c. 47.
6 Criminal Law Amendment Act, S.C. 1968-69, c. 38.
7 Criminal Law Amendment Act, 1975, S.C. 1974-75-76, c. 93.
8 Criminal Law Amendment Act, 1985, S.C. 1985, c. 19.
9 An Act to Amend the Criminal Code, S.C. 1938, c. 44.
10 Criminal Law Amendment Act, S.C. 1994, c. 44.
11 Criminal Law Improvement Act, 1996, S.C. 1997, c. 18.
12 "Impaired Driving in Canada, 1996," Juristat, Statistics Canada, Catalogue No. 85-002-XPE, Vol. 7, No. 12, p. 10.
13 Minister of Justice and Attorney General of Manitoba, Brief to the Committee, p. 1.
14 Roger Cutler, Crown Counsel, Brief to the Committee.
15 "Impaired Driving in Canada, 1996," Juristat, Statistics Canada, Catalogue No. 85-002-XPE, Vol. 17, No. 12, p. 7. As of October 1997, temporary roadside suspensions could be imposed at 40 mg/100 ml of blood in Saskatchewan.
16 Stan Griffin, Insurance Bureau of Canada, Minutes of the Committee, 2 March 1999, 1000.
17 Ontario Minister of Transportation, Brief to the Committee, p. 15.
18 Québec Minister of Public Safety, Brief to the Committee, p. 1.
19 "Impaired Driving in Canada, 1996," Juristat, Statistics Canada, Catalogue No. 85-002-XPE, Vol. 17, No. 12, p. 10.
20 Minister of Justice and Attorney General of Manitoba, Brief to the Committee, p. 3.
21 Ontario Minister of Transportation, Brief to the Committee, p. 14.
22 Québec Minister of Public Safety, Brief to the Committee, p. 2.
23 Minister of Justice and Attorney General of Manitoba, Brief to the Committee, p. 2. The suspended driver must also bear the $270 cost of assessment.
24 Québec Minister of Public Safety, Brief to the Committee, p. 1.
25 Ontario Minister of Transportation, Brief to the Committee, p. 14. The suspended driver pays the cost of treatment.
26 Alcohol Ignition Interlocks, Traffic Injury Research Foundation, February 1996, p. 1.
27 Ian Marples, Guardian Interlock Systems, Minutes of the Committee, 9 March 1999, 0950.
28 D.J. Bierness, P.M. Marques, R.B. Voas, and S. Tippets, Evaluation of the Alberta Ignition Interlock Program: Preliminary Results, September 1997, p. 5.
29 Minister of Justice and Attorney General of Alberta, Brief to the Committee, p. 2.
30 Québec Minister of Public Safety, Brief to the Committee, p. 1