What are Impaired Driving Penalties?

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.

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.

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.