Drinking and Driving – Sentencing

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Drinking and Driving – 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, 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 federalism 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 impaired 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 is a criminal offence, which is the jurisdiction of the Canadian Parliament, the provinces have jurisdiction to regulate their roads and highways. 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.

  • Alberta – 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 Columbia – Length: 12 hours; Reason: BAC over zero when a license restriction is in place. Length: 3-30 days depending on prior offences; Reason: BAC over 0.05 percent.
  • Manitoba, New Brunswick, Nova Scotia – Length: 24 hours; Reason: BAC over 0.05 percent.
  • Newfoundland and Labrador – 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 subsequent suspension; Reason: BAC over 0.05 percent.
  • Ontario – 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 Island – 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.
  • Quebec does not suspend a person’s license if their BAC is below 0.08 percent (except for novice drivers).
  • Saskatchewan – 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 Territories and Nunavut – Length: 24 hours for the first suspension, 30 days for a subsequent suspension; Reason: BAC over 0.05 percent.
  • Yukon – 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.
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Author: AllOntario Team

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