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Impaired Driving Punishments

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Frequently Asked Questions

Courts in Ontario and across the country consider impaired driving offences to be very serious due to the public safety risk impaired driving causes. Police have the authority to pull a motorist over at any time to make a demand for a breath sample and to check if the driver is properly licensed. Where the police make a demand for a roadside breath sample, the driver must comply unless they are physically incapable of doing so. If a driver refuses to comply with a demand for a breath sample, they will be placed under arrest for refusal.

Does it Matter How Much I Blow Over?

Yes, a person’s blood alcohol concentration (BAC) matters when they have been charged with an impaired driving offence. Section 320.19(3) of the Criminal Code contains minimum fines for offenders that have certain BACs when they are arrested.

For a BAC between 120mg and 159mg of alcohol in 100 mL of blood, a conviction will carry a minimum fine of $1,500. A BAC of more than 160mg will result in a fine of no less than $2,000. Furthermore, s. 320.22 states that an individual’s high BAC is an aggravating factor of the offence. This means that even beyond the minimum punishment, an individual with a high BAC may face a harsher punishment than an offender with a lower BAC.

Even if a person’s BAC is below the 80 mg threshold for a criminal conviction, which allows the police to punish impaired drivers who fall into the “warn range” under the authority of the Highway Traffic Act. For drivers who fall within the BAC warn range of 0.05-0.079 mg, they may still receive a 3-day immediate licence suspension and a $250 penalty for a first offence. Any additional offences will result in increased penalties.

Is There Any Way to Avoid Jail as a Second Time Offender?

There is one limited way that a second time offender convicted of an impaired driving offence can avoid the mandatory imprisonment term of thirty days set out in s. 320.19(1) of the Code. That is by establishing that there is some exceptional circumstance why an offender would be incapable of serving a term of imprisonment. The existence of an extraordinary circumstance is very difficult to prove and is determined by the Deputy Crown lawyer in all cases. They are essentially the supervising government lawyer in the criminal process.

What are Considered “Extraordinary Circumstances” for the Purposes of Avoiding Jail?

The criterion for establishing an extraordinary circumstance is incredibly narrow. In a case where a circumstance is found it will be for reasons where it would be inhumane to subject an accused to a prison sentence. This would amount to a violation of a person’s right to be protected from cruel and unusual punishment at the hands of the government which is guaranteed under Section 12 of the Canadian Charter of Rights and Freedoms.

This high standard is rarely met. In the most likely example, it would require a person who is a second-time impaired driving offender to suffer from a severe medical condition that requires treatment that cannot possibly be carried out while that person is imprisoned. Even then, the Deputy Crown will look at any available alternatives to continuous service, including intermittent sentencing, to ensure that the offender serves the mandatory prison term.

Stages of the Criminal Justice System

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Under Canadian law, those convicted of an impaired driving offence including over .80 and refusal to comply with a demand for a second or subsequent time will face a mandatory minimum period of custody. Those convicted for a second time will typically face at minimum 30 days in jail, while those convicted for a third or subsequent offence will face increased penalties for each additional conviction. Only in rare circumstances can a jail sentence be avoided for a second or subsequent offender.

Can I Serve My Sentence in Jail on the Weekends Through Intermittent Sentencing?

Intermittent sentencing is an alternative to the traditional idea of serving a prison sentence. Legal Aid Ontario describes it as a sentence where the offender serves their time in chunks instead of all at once. It requires a person to serve their weekends in jail (Friday night through Monday morning). It is available to an offender if the judge imposes a sentence of ninety days or less, such as the mandatory minimum sentence for an impaired driving offence.

It is usually only granted to those individuals who can demonstrate a pressing reason for it such as childcare or employment responsibilities that would make it very difficult to serve a normal sentence. Intermittent sentencing is also only typically given to offenders who have a record that shows they will comply with the conditions of their sentence. This is because their conduct while out of jail is restricted by a probation order. While serving their sentences, offenders will receive four days credit towards the completion of their sentence for each weekend they serve.

What’s a Crime in Canada?

Under Canadian law, those convicted of an impaired driving offence including over .80 and refusal to comply with a demand for a second or subsequent time will face a mandatory minimum period of custody. Those convicted for a second time will typically face at minimum 30 days in jail, while those convicted for a third or subsequent offence will face increased penalties for each additional conviction. Only in rare circumstances can a jail sentence be avoided for a second or subsequent offender.

What is Care and Control?

Impaired driving offences are concerned with the act of operating a vehicle. Section 320.11 of the Code defines “operate” as, “in respect of a motor vehicle to drive it or to have care or control of it.” Care and control is a broader term than driving that allows the law to punish a wider range of criminal behaviour.

Under the law, care and control can be established in two ways. First, police are allowed to assume that anyone in the driver’s seat of a vehicle has care and control of it unless that person can prove that they could not possibly drive. Such proof may be that the keys to the vehicle were not accessible or in the possession of the accused. Secondly, care and control can be inferred if a person is impaired beyond the legal limit, they have engaged in a course of conduct that concerns a vehicle and they pose a realistic risk to other people and property.

The Provincial Court of Nova Scotia case of R. v. Lewis, 2021 NSPC 2 (CanLII) [at paras 17-18] provides an excellent example of when the law finds an accused person has care and control of a vehicle even if they never actually drove it.

Turning to Mr. Lewis. Was he a realistic danger while behind the wheel of the vehicle on the night in question? It is clear he was in the driver’s seat. It is also clear he was very impaired with a blood alcohol level above the legal limit.

The realistic risks of danger were clear and present that evening with Mr. Lewis behind the wheel. The keys to the vehicle were in an easy position to access between the seat and the door. The vehicle was a manual whose stick shift could realistically been moved to allow the vehicle to be put in motion.

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Our Experience

R. v. D.M. [2023]

In 2023, the Firm represented an individual charged with over .80, and impaired driving in R. v. D.M. [2023]. The accused was pulled over by police after other drivers on the road had reported his erratic driving. Initially police had difficulty getting the driver to pull over and when he finally did, the officers discovered empty alcohol containers in the front seat. The accused had a previous record for impaired driving from years earlier, further complicating the case. The Firm worked quickly to resolve the matter as soon as possible for the accused, securing the lowest fine and driving prohibition legally possible and avoiding a jail sentence for the accused.

R. v. A.A. [2022]

In 2022, the Firm represented an individual with a prior criminal record for impaired driving offences as well as other criminal offences in R. v. A.A. [2022]. The accused had been placed under arrest after getting into an accident with another driver on the road. The other driver became suspicious and reported the accused to police. After her arrest at the roadside, it was discovered that the accused was driving while disqualified as her license had been revoked due to another driving offence. The Crown sought an enhanced penalty in the form of two months in jail due to the accused being a second time offender and the fact that she hit another vehicle while intoxicated and was prohibited from driving. The Firm engaged in lengthy crown pre-trial and judicial pre-trial discussions, presenting evidence to show the exceptional circumstances that existed in the case. The Firm resolved the matter with the lowest possible amount of custody, to be served at home, avoiding the client having to physically go to jail.

R. v. B.M. [2022]

In 2022, the Firm represented an individual charged with impaired driving in the case of R. v. B.M. [2022]. The client was arrested after law enforcement witnessed him run a red light and initiated a traffic stop. The officers alleged that the client had difficulty pulling the car over and almost went up onto the curb. Upon making contact with the driver the officers developed suspicion that he was under the influence of drugs. Toxicology results revealed cannabis and cocaine in the accused’s system. The Firm engaged in lengthy Crown pre-trial negotiations for over two years before reaching a resolution. The Firm resolved the matter with the lowest possible penalty for the accused, despite the aggravating factors present in the case.

R. v. J.P. [2023]

In 2023, the Firm successfully represented an individual charged with impaired driving and over .80 offences in R. v. J.P. [2023]. After being the passenger in the car during a car accident, the client got into the driver’s seat and drove away from the scene of the accident. He was stopped a short time later by police as a result. During their investigation into the incident police developed a reasonable suspicion that the client was intoxicated and made a demand for a roadside breath sample which the client failed. The Firm exploited issues with the Crown’s case to secure a withdrawal of the impaired driving charges, resolving the matter by way of a careless driving plea.

R. v. D.E. [2018]

In 2018, the Firm represented an individual charged with over .80 and impaired driving after hitting another motorist on the 401 in Toronto in R. v. D.E. [2018]. The accused pulled his car over on the side of the highway and attempted to walk away from the scene and from the other injured motorist. The Firm avoided a jail sentence for the accused by challenging important evidence in the Crown’s case.

R. v. M.V. [2014]

In 2014, the Firm successfully defended a client charged with over .80 after being stopped in a RIDE check in R. v. M.V. [2014]. The accused, a Bay Street investment banker, had been at a party with friends prior to being pulled over, but insisted he had not consumed enough alcohol to be over the legal limit at the time he was driving.  The Firm put forth the bolus drinking defence, getting affidavit evidence from other people at the party about how much alcohol the accused had consumed and when. The defence was successful. Unfortunately, with recent changes in impaired driving laws, this defence may no longer be successful in many cases.

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Recent Cases

R. v. Wight, 2022 (NL PC)

The Provincial Court of Newfoundland and Labrador case of R. v. Wight demonstrates the type of sentence a person who blows significantly over the legal limit can face. The case concerned an offender who refused to stop their vehicle after the police attempted to pull them over for driving at a dangerously high speed. When the offender was arrested at a residence, his BAC was 170, over twice the limit for a criminal offence. Under the Code, the mandatory sentence for that level of impairment was a $2,000 fine.

The offender was also charged with dangerous driving and fleeing from the police. On those two other charges, the judge had the freedom to determine an appropriate sentence that was not mandatory under the law. Ultimately, it was decided that on top of the mandatory fine, the offender would serve three months of conditional imprisonment and receive a one-year driving prohibition. In determining the appropriateness of the sentence, the judge looked to similar cases and applied the principles of sentencing. They include denouncing illegal conduct, deterring others from similar behaviour, and offering the offender a chance to assume responsibility for their actions and begin rehabilitation. Applying these principles to the case led the judge to impose the sentence as a fair balance between the dangerous nature of the conduct and the fact that it was the accused’s first offence. The accused also received a more lenient sentence because he pled guilty to the charges.

R. v. Singh, 2019 ABPC 130

The Provincial Court of Alberta case of R. v. Singh dealt with an accused person who had been arrested for impaired driving. The accused’s lawyer attempted to make the argument that the Code requires police officers to take multiple breath samples on an approved screening device during roadside screening before the accused is arrested. In this case, because the police only obtained one sample, the defence argued that the evidence was acquired illegally and therefore breached the accused’s right to be secure against unreasonable search or seizure of evidence.

The judge was left to determine what the proper interpretation of s. 320.27(2) of the Code was. This process involves understanding what the intent of the government was when they created this law. In making their decision, the judge determined the following, “The wording of s. 320.27(2) of the Code refers to “samples of breath” in the context of “samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made.” While the plural is used regarding “samples”, the singular is used with respect to “a proper analysis”. Also troubling is the concept that even if the peace officer’s opinion is that a proper analysis had been made on one sample a second is still required. This interpretation makes no sense, particularly where there is no suggestion that a second sample would somehow make for a more meaningful screening.” [at para 26]

The judge decided that reading the law in a way that requires the police to take multiple samples could easily lead to absurd results. It is understood that the government never intends legislation to be read this way, thus making it more difficult for accused persons to escape punishment on a technicality. As such, the accused was convicted in this case because the judge found their rights had not been infringed.

R. v. Lochead, 2021 ONCJ 432

The Ontario Court of Justice case of R. v. Lochead is another example of the concept of care and control being applied to a case. The specific facts here were that an accused had swerved off the road to avoid hitting an animal and getting her car stuck in a field as a result. While waiting for rescue she consumed alcohol that was in the car. The police discovered her and charged her with impaired driving.

In convicting her of an offence, the trial judge made two important observations. First, given the state of the vehicle it was reasonable to assume that the police would make a demand for a breath sample when the accused was discovered. Because of this, she should not have consumed alcohol after the accident due to the fact that  s. 320.14(1)(b) of the Code makes it an offence to have a BAC over the legal limit within two hours of driving. Secondly, if a tow truck had been able to rescue the accused, she would have the care and control of the vehicle necessary to then have committed an impaired driving offence.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.