The Criminal Code of Canada sets out the federal impaired driving offences and penalties, as well as enforcement authority and procedures.
Since 1998, MADD Canada has conducted regular reviews of federal impaired driving laws and made recommendations for legislative and policy measures to further reduce impaired driving and assist victims. When considering such measures, MADD Canada selects those that are compatible with the Canadian Charter of Rights and Freedoms, are likely to have wide public support, and have the greatest potential to reduce impaired driving.
The federal government made sweeping legislative changes in 2018 – including the establishment of per se drug-impaired driving offences, stronger drug-impaired driving enforcement, and a mandatory alcohol screening provision authorizing police to demand a roadside breath test from any driver who has been lawfully stopped. However, major challenges remain. Canada’s impaired driving record is still poor compared to other similar democracies.
MADD Canada’s latest recommendations are detailed in The Top Ten Report – Federal Measures to Minimize Impaired Driving and Support Victims. The measures, briefly summarized here, reflect MADD Canada’s comprehensive approach, and recognize that a combination of countermeasures is required to deter impaired driving, reduce repeat offences and support victims and survivors. (Read the full report.)
- Create a federal .05% blood-alcohol concentration (BAC) offence punishable by summary conviction.
This would be a summary conviction only offence, punishable by a fine and a federal driving prohibition that is shorter than the one for .08% BAC offences. The .05% BAC offence would be subject to streamlined ticketing procedures, an option to plead guilty without having to make a court appearance, and provisions to protect first-time .05% BAC offenders from having a federal criminal record. The creation of a federal .05% BAC offence would maximize deterrent impact, while helping to reduce the burden on law enforcement and court resources of the existing .08% BAC offence.
- Require any driver, or person suspected of being a driver, involved in a crash take a mandatory alcohol screening (MAS) test.
The police can currently demand a MAS test from a driver whom they have lawfully stopped, provided the demand for the breath sample is made immediately and the officer has an approved screening device (ASD) in his or her possession. But that current law does not apply to drivers who abandon their vehicle, flee the scene of a crash or are taken to the hospital before the police arrive. This measure would enable police to screen drivers involved in crashes and ensure those who are impaired face the criminal consequences.
- Authorize police to require the taking of blood sample from any driver, or person suspected of being a driver, who is hospitalized after a crash and who is unable to take an ASD test or respond to a demand for a breath or blood sample.
Few impaired drivers who are hospitalized following a crash are ever charged because it is very difficult to obtain BAC evidence. While Criminal Code blood-testing provisions were expanded in 2018, they are unlikely to significantly increase the detection or charge and conviction rates for hospitalized impaired drivers. Further measures are needed to ensure these impaired drivers do not escape charge or prosecution.
- Make an oral fluid drug screening test mandatory for any driver whom police have lawfully stopped, and from any driver, or any person suspected of being a driver, involved in a crash.
Unlike the current rules for roadside breath testing for alcohol – which authorize police to demand a breath sample from any driver they lawfully stop – police require reasonable grounds to suspect a driver has drugs in his or her body before they can demand an oral fluid screening test. This measure would greatly increase drug-impaired driving detection, charge and conviction rates, and allow police to quickly screen drivers involved in crashes to ensure those who are found to be drug-impaired are held criminally responsible. As with demand for a mandatory alcohol screening test, the requirement for a driver to take an oral fluid screening test will be contingent on the demand being made immediately and the officer having the test kit in his or her possession.
- Authorize police to require the taking of a blood sample from any driver, or person suspected of being a driver, in a crash, if that individual is unable to take an oral fluid test or is unable to respond to a demand for an oral fluid test, drug recognition evaluation or blood test.
Similar to the current situation with drivers suspected of being alcohol-impaired, it is very difficult for police to gather evidence of suspected drug-impairment from drivers who are hospitalized following a crash. The proposed measure would ensure police can gather the evidence needed to determine if the driver was impaired drugs and, if so, that the driver faces the criminal consequences.
- Develop mandatory remedial education, assessment, treatment, and relicensing programs for all federal drug-impaired driving offenders.
This measure would be developed in conjunction with the provinces and territories, most of which have various forms of remedial education, assessment, treatment and relicensing requirements for those convicted of federal impaired driving offences.
Victims Supports and Programs
- In impairment-related crash cases, where there is a joint plea or sentencing submission, require judges to ask Crown prosecutors whether they took reasonable steps to inform crash victims and survivors of the proposed agreement before it was presented to the court.
Victims and survivors of impaired driving crashes should be informed of any joint plea or sentencing agreements before they are presented in court, but that does not always happen. This recommendation encompasses amendments to the Criminal Code and the Canadian Victims Bill of Rights to require that victims and survivors are informed by Crown prosecutors of any joint plea or sentencing submissions.
- Require judges, in their sentencing remarks, to acknowledge victim impact statement that have been made.
Victims and survivors have the right to submit victim impact statements to the court. While these statements may not change the sentence ultimately handed down to the offender, they do need to be considered by the judge. However judges are not currently required to reference the victim impact statements in their sentencing remarks. Requiring judges to reference victim impact statements will make those statements part of the sentencing record and will be an important public acknowledgement of the loss and trauma suffered by the victims and survivors of impaired driving.
- Ensure the timely collection and publication of statistics on alcohol and drug-related crash deaths and injuries in Canada. Canada’s statistics on impairment-related crashes, deaths and injuries are outdated and incomplete. The latest national statistics on motor vehicle crashes and on crashes involving alcohol and/or drugs are from 2015. That data does not include deaths and injuries in British Columbia, off-road crashes or crashes on non-public roads, or crashes involving only bikes, ATVs, snowmobiles or non-principal vehicle types. The lack of current and complete data makes it very difficult to identify the overall incidence of impaired driving or to assess the impact of impaired driving laws.
- Ensure the timely, accurate and comprehensive collection and publication of disposition data (including sentencing) in all federal alcohol and drug-related impaired driving cases.
The current system for collecting and reporting data on impaired driving charges and convictions is inadequate. While alcohol and drug-related charges are separately reported, the disposition data are combined. As a result, there is currently no way of knowing the number of drug-related charges that result in a conviction. Additionally there is a lack of publicly-available disposition data in cases involving impaired driving causing death and impaired driving causing bodily harm. The data currently has to be purchased from Statistics Canada.