The impaired driving provisions of the Criminal Code of Canada apply to all “conveyances,” a term that is defined to include not only motor vehicles but also vessels, aircraft and railway equipment. The term “motor vehicle” is also broadly defined and, with the exception of railway equipment, includes any motorized vehicles, such as ATVs, golf carts, lawn tractors, ebikes, motor scooters, and snowmobiles.
The impaired driving offences apply to “operating” a motor vehicle, a term which includes both driving and having “care or control.” The Canadian courts have held that care or control includes virtually any act that could set a motor vehicle in motion. Moreover, individuals who are found in the driver’s seat are presumed to have been operating the vehicle, unless they can establish that they did not occupy that seat for the purpose of setting the vehicle in motion.
Summarized below are eight key impaired driving offences.
Operating a motor vehicle while one’s ability to do so is impaired to any extent by alcohol, a drug or a combination of alcohol and a drug.
It is an offence to drive or have care or control of a motor vehicle if one’s ability to do so is impaired to any extent by alcohol and/or drugs. The key issue is whether a person’s ability to operate a motor vehicle is impaired to any extent; the amount of alcohol and/or drugs an individual has consumed is irrelevant. As a result, a person can be convicted of impaired driving even if his or her blood-alcohol concentration (BAC) is below the federal legal limit of .08%. The phrase “to any extent” was added to this offence in 2018. Consequently, as currently written, the offence would include individuals who exhibited signs of only modest impairment of their ability to drive. However, it remains to be seen whether the courts will interpret the scope of this offence more broadly in light of the 2018 amendment.
Operating a motor vehicle while having a blood-alcohol concentration (BAC) of .08% or more.
This type of offence is called a “per se” offence, because it is based solely on the individual’s BAC level. Individuals who have a BAC of .08% or more are prohibited from driving or having care or control of a motor vehicle, regardless of whether they are driving safely or whether they are exhibiting any signs of impairment.
Operating a motor vehicle while having a prohibited level of a specified drug in one’s blood.
The 2018 impaired driving amendments authorized the federal government to enact per se drug-impaired driving offences by prohibiting individuals from driving with a stipulated amount of a specified drug in their blood. For some drugs, such as cocaine and LSD, drivers are prohibited from having any detectable level in their blood. For cannabis, there are three Criminal Code per se impaired driving offences, namely driving with:
(i) 2 but less than 5 nanograms (ngs) of tetrahydrocannabinol (THC) per millilitre (ml) of blood (THC is the primary psychoactive drug in cannabis);
(ii) 5 or more ngs of THC per ml of blood; and
(iii) 2.5 or more ngs of THC per ml of blood and a BAC of .05% or more.
Driving while committing an impaired driving offence and causing bodily harm or death to another person.
The Criminal Code has created more serious offences for individuals who, while committing any of the preceding impaired driving offences, cause bodily harm or death to another person. Thus, this provision applies to individuals who cause a crash resulting in bodily harm or death, while driving when their ability to do so is impaired to any extent by alcohol and/or drugs, or while driving with a prohibited BAC or blood-drug level.
Failing or refusing to provide a required sample or to participate in a required test without a reasonable excuse.
The Criminal Code authorizes the police in certain limited circumstances to demand that drivers provide specified bodily samples and participate in specified tests. It is a criminal offence for a driver to fail or refuse to comply with such a demand, unless the driver has a “reasonable excuse.” Depending on the specific circumstances, the police may be able to demand a breath, blood, urine, or oral fluid (saliva) sample, or demand that the driver participate in a standardized field sobriety test (SFST) or a drug recognition evaluation (DRE). Individuals would have a lawful excuse for refusing an officer’s demand if they were physically unable to comply or if the demand was unlawful.
Failing or refusing to provide a required sample or to participate in a required test without a reasonable excuse, when one knows or is reckless as to whether he or she was involved in a crash that resulted in bodily harm or death to another person.
In the past, most impaired drivers who killed or injured someone and then refused to provide a sample could only be charged with refusing to provide a sample. By refusing to provide a sample, the accused was able to avoid the more serious charge of impaired driving causing bodily harm or death. The 2008 amendments to the Criminal Code made it a more serious offence for drivers to fail or refuse to provide a required sample or to participate in a required test if they knew or were reckless as to whether they were involved in a crash that resulted in bodily harm or death. These offences carry the same maximum penalties as driving while committing an impaired driving offence and causing bodily harm or death.
Operating a motor vehicle while prohibited from doing so under federal law or while suspended under provincial law for a federal impaired driving offence.
In 1985, Parliament created a separate criminal offence of driving while prohibited under federal law or while suspended under provincial law for a federal driving offence. This amendment was introduced to help combat the problem of offenders who continued to drive despite having been suspended or prohibited from doing so.
Having a BAC of .08% or more within two hours of operating a motor vehicle.
The Criminal Code makes it an offence to have a BAC of .08% or more within two hours of having operated a motor vehicle, subject to a major exception. The Code specifically states that no offence is committed if: the alcohol was consumed after driving; the individual had no reason to expect that he or she would be required to submit to a breath or blood test; and the individual’s evidentiary BAC is consistent with having been below .08% when driving. Consequently, individuals who drive home sober and then drink are not committing an offence. This admittedly complex provision was enacted to address two questionable defences (the bolus drinking and intervening drink defences) that impaired drivers commonly used to evade criminal responsibility. Parallel offences have been created for having a prohibited blood-drug level within two hours of having operated a motor vehicle. However, as above, no offence is committed if: the drug was consumed after driving; and the individual had no reason to expect that he or she would be required to provide a sample of a bodily substance.
Penalties for Impaired Driving
Impaired driving offences carry potentially severe sentences, especially for repeat offenders. In addition to these penalties, a judge may issue a probation or restitution order. The terms of probation may include abstaining from alcohol, undertaking community service, submitting to an alcohol or drug assessment or participating in treatment. A restitution order compels the offender to compensate the victim, but these are rare in impaired driving cases.
In addition to enforcing and prosecuting federal offences listed in the Criminal Code, provinces and territories also have constitutional authority over highways and the licensing of drivers within their jurisdictions. That means provinces and territories can also legislate certain impaired driving laws and sanctions.
MADD Canada recognizes the importance of provincial/territorial programs to deal with impaired driving and has established a series of best practices which forms the basis of our provincial legislative review.
The following is a general overview of the key provincial/territorial impaired driving laws
Please note that the laws and sanctions differ according to province and territory. For a list of Provincial/Territorial Governments websites, please click here.
Short-Term Administrative Licence Suspension Programs
Contrary to misperception that it is only drivers who are well above the legal limit who cause crashes, approximately 20% of crashes are caused by drivers with BACs below the Criminal Code limit of .08%.
Recognizing that the risk for impairment-related crashes begins below .08% BAC, all provinces except Quebec have established administrative licence suspension (ALS) programs to intervene with drivers who have BACs of .05% or higher. The key elements of these programs include immediate roadside licence suspensions and fines/reinstatement fees.
In most instances, these programs have been in place for years, if not decades. In recent years, however, some jurisdictions have strengthened their programs with longer suspension periods, corresponding vehicle impoundments, higher fines and other sanctions.
Working with the Canadian Council of Motor Transport Administrators, MADD Canada developed a model .05% Administrative Licence Suspension Program based on existing best practice in Canada. For additional information, please see our Provincial Policy Initiatives.
Graduated Licensing Programs
A Graduated Licensing Program is a cornerstone of any policy aimed at reducing crash risk among youth. These programs are designed to give young and novice drivers an opportunity to gain driving experience while limiting known risks. Such programs typically include: a .00% BAC requirement, night-time and highway driving restrictions and limits on the number of passengers. The duration of the programs depend on the province or territory, but generally range from 1.5 to 3 years.
.00 BAC Restrictions for Young and Novice Drivers
Impaired driving takes a disproportionate toll on young people. Alcohol is a factor in almost 45% of all crash deaths among 16 to 25 year olds. Although that age group accounted for just 13.2% of the Canadian population in 2006, they accounted for 33.4% of total alcohol-related deaths.
Zero and low blood alcohol concentration restrictions have been shown to have very positive results.
Nearly all provinces and territories have a .00% BAC restriction for young and novice drivers as part of their Graduated Licensing Programs. A major limitation on many of these programs however, is that the .00% BAC restriction is lifted when the driver completes the Graduated Licensing Program. This is usually around the age of 18 or 19, which corresponds to the legal drinking age in most jurisdictions – a period during which alcohol consumption and range of binge drinking increase.
Several provinces have extended the .00% BAC restriction beyond the framework of the Graduated Licensing Program and others are in the process of doing so, in their ongoing efforts to reduce the risks of impairment-related crashes among youth.
Ignition Interlock Programs
Alcohol ignition interlocks are an effective tool in the fight to stop impaired driving. Using the same technology as the roadside breathalyzers administered by police, an ignition interlock prevents a car from starting or remaining operational if the driver’s breath indicates he or she is over a pre-set limit.
The technology gives offenders who have lost their licences a chance to regain conditional driving privileges while at the same time ensuring they cannot operate a vehicle if they are impaired.
Despite the evidence of their effectiveness, interlock usage is limited across the country. All provinces and territories except the Yukon have some form of ignition interlock program for convicted impaired drivers. However these programs are often voluntary. The participation rate in voluntary programs is just 10% of those convicted.
Vehicle Impoundment and Forfeiture
Many suspended and prohibited drivers continue to drive, at least occasionally, during the period of their licence suspension or revocation. Studies show these drivers are more likely to be involved in a fatal crash than licenced drivers. Licence suspensions, alone, are insufficient to keep certain offenders off the roads, and insufficient to keep them from driving while impaired. Consequently, vehicle-based sanctions are essential to discourage and at least temporarily prevent some unlicensed, disqualified and prohibited offenders from driving and, particularly, from driving while impaired.
Vehicle impoundment and forfeiture programs provide a means of addressing the problem of offenders who show a repeated willingness to endanger the public and violate licensing laws.