Frequently Asked Questions
What is Impaired Driving?
In Toronto and across Canada, driving while under the influence of alcohol and/or drugs is dealt with under ss. 320.14-320.15 of the Criminal Code. In general, an impaired driving offence is committed where a person’s ability to operate their vehicle is negatively affected after consuming drugs or alcohol. An offence will also be found where police learn that a person stopped driving within the last two hours, and an Approved Screening Device shows they have a blood alcohol level at or above 80 mg of alcohol in 100mL of blood. For drug-based charges, the offence depends on if someone’s blood drug concentration meets a level that changes according to the type of drug in their body.
Additionally, impaired driving offences have specific procedures if a person’s driving results in injury to or death of another person. As a result, punishments for impaired driving can be very different depending on the circumstances and severity of each case. Someone can also be charged if they knowingly refuse to comply with a demand made by police that involves the offence without a reasonable excuse. For example, this means that a person is guilty of an offence if they refuse to undergo any testing or screening procedures that a police officer demands they do.
What if I got Drunk After I was Done Driving?
Section 320.14(5-7) of the Criminal Code are exceptions to impaired driving offences. They state that no person can commit an impaired driving offence if they consume alcohol and/or drugs after they have stopped driving and they had no reason to believe they would be required by police to provide a bodily sample. Although, in cases where either an accident has occurred, there is video evidence of impaired driving, or another reason for the police to demand a sample; they can do so up to two hours after a person has stopped driving. As such, the exceptions can be limited by the facts of each case.
The case of R. v. Zachar, 2023 ONCJ 135 (CanLII), is one example of the exception defence being used to raise reasonable doubt that an accused was impaired while driving, but the fact that he had been in a single car collision meant that he could not have a reasonable expectation that he would not be asked to provide a breath sample when the police arrived. Therefore, the accused was convicted for having a blood alcohol level over the legal limit within two hours after driving due to the drink he had consumed between the time of the accident and the arrival of the police.
Can I get my Impaired Driving Charges Dropped, or Plead to a Lesser Offence?
It is very difficult to get impaired driving charges dropped or have an accused plead a lesser offence. Impaired driving is a serious offence treated as a public safety risk in Toronto and across Canada. The public’s view on these offences means the Crown takes these charges very seriously. Impaired driving is one of few offences under Canadian law that imposes mandatory minimum terms of imprisonment when sentencing repeat offenders. A second offence will result in imprisonment for 30 days, and each additional offence will result in a term of 120 days.
The nature of these offences also present challenges to accused persons. Because of the established screening and testing procedures, the Crown has strong evidence at its disposal in the form of test results. This means charges are rarely dropped. However, there is the remote possibility that the charges may be dropped because of a delay in the disclosure process and a resulting violation of an accused’s right to a timely trial under s. 11(b) of the Canadian Charter of Rights and Freedoms. There are also some instances where the circumstances of a case and an accused’s low blood alcohol levels could lead to them having the opportunity to plead guilty to a careless driving offence.
What are the Recent Changes to Impaired Driving Laws?
Bill C-46 received Royal Assent and came into effect in December of 2018. The bill made several amendments to the Criminal Code concerning impaired driving offences. Among the most important was that police now have the authority to demand a person undergo mandatory roadside screening and provide a breath sample if the officer has an Approved Screening Device in their possession. The amendment represents a significant increase in police powers. Under the old legislation, an officer could only make such a demand if they had a reasonable suspicion that a person had consumed alcohol. Such a suspicion may have come from observing an individual’s driving or from a conversation once the driver had been pulled over but because of the new law it is no longer necessary.
The amendment also introduced the timing considerations and additional offences around impaired driving, including the refusal to comply. From this came the exception defences to the offences for consumption after driving, as well as the two-hour window for the police to make a demand after a person had ceased driving. Increased sentences and alternative penalties such as expanded prohibition powers were also introduced under Bill C-46.
What Kinds of Information Will be Disclosed to Me as Evidence?
There are several pieces of information that may be included in a disclosure package provided to a person that is accused of an impaired driving offence. A package will commonly include evidence such as the results of the mandatory screening conducted on an Approved Screening Device that the accused completed in compliance with a police demand (typically included in officer’s notes from the scene). The results of the screening are what lead the police to bring the accused to the police station for a breathalyzer test. As such, disclosure will also include the official breathalyzer results that were administered by a qualified person and obtained after the accused was brought to the station. The accused will also receive the results of any criminal background or driving record check that the police have conducted.
Depending on the circumstances of a case, disclosure may include witness statements that contain eye-witness descriptions of the events surrounding the offence. A statement will also be provided that was made by one individual who is deemed the complainant in a case. The accused may also receive the summaries of any 911 calls regarding the offence and any notes made by the arresting officer. Any available body or dashboard camera footage of the event will be provided to the accused as well.