Procedures for Dealing with DWI Offenders

This section provides a description of the procedures for dealing with DWI offenders in each province and territory in Canada, from identification by the police through to licence reinstatement. It is not the intention of this section to describe in detail the legal procedures involved in obtaining evidence and securing a conviction or the technicalities of filing an appeal of a suspension. Rather, the purpose is to outline what happens to DWI offenders -- i.e., the required and optional sanctions, programs and procedures that must be followed by an offender in order to re-enter the driving population legally.

This section begins with an overview of the legislation governing impaired driving offences in Canada (i.e., the Criminal Code as well as provincial statutes). This is followed by a detailed description of the procedures for dealing with impaired drivers in each province and territory.

3.1 Overview

Figure 3.1 presents an overview of the possible procedures for dealing with DWI offenders in Canada. The figure is not representative of any particular province or territory but illustrates the typical procedures as well as some that are only employed in certain jurisdictions. The procedures specific to each province and territory are contained in Section 3.2.

In all jurisdictions in Canada, random spotchecks supplement routine patrol efforts and motor vehicle crash investigations in the detection of DWI offenders and the enforcement of impaired driving laws. In any of these situations, if the police officer has a reasonable suspicion that the driver has consumed alcohol, the officer can demand that the driver provide a breath sample into an approved screening device (ASD). (Failure to provide a sample can lead to charges under the Criminal Code.) The ASD is typically calibrated such that a green "Pass" light illuminates when the blood alcohol concentration (BAC) is below 50 mg% (60 mg% in Saskatchewan); a yellow "Warn" light indicates a BAC of 50 to 100 mg%; and a red "Fail" light indicates a BAC in excess of 100 mg%.

In several provinces, if a driver illuminates the "Warn" light on an ASD, the police officer can immediately at roadside suspend the driver’s licence or prohibit the offender from driving for a period of up to 24 hours. In some jurisdictions, a roadside suspension can be issued in the absence of ASD evidence if the police officer believes the driver is affected by alcohol. In Prince Edward Island and Ontario, young or novice drivers are subject to a licence suspension if found to have a BAC in excess of 10 mg% or zero, respectively.

Upon forming reasonable grounds of impairment (which includes but is not limited to registering a "Fail" on an approved screening test), police officers can demand that a driver accompany them for the purpose of providing a breath sample to determine actual BAC. This is usually done at the police station by a breathalyzer technician using an approved evidential quality instrument. A BAC in excess of 80 mg%, or refusal to provide a breath sample, can result in charges under the Criminal Code. Evidence of impairment, regardless of BAC, can also result in Criminal Code charges. In some provinces, drivers charged under the Criminal Code are also issued an immediate 12- or 24-hour administrative licence suspension. In Manitoba, drivers who fail or refuse to provide a breath sample are issued an immediate three-month administrative suspension. This suspension is independent of the outcome of any Criminal Code charges.

Persons charged with an impaired driving offence under the Criminal Code may be photographed, fingerprinted, and held for an appearance in court. Depending on the circumstances and local practices, offenders are typically issued an appearance notice and released. Charges are then dealt with by the court.

Upon conviction, offenders are subject to sanctions specified in the Criminal Code -- i.e., fines, jail, prohibition from driving, and/or probation. Provincial/territorial licensing authorities typically supplement Criminal Code sanctions with a series of requirements that must be fulfilled prior to licence reinstatement. These can include periods licence suspension that exceed the court-ordered prohibition from driving, reinstatement fees, re-testing, and rehabilitation programs.

Rehabilitation programs for offenders are typically accessed in one of three ways. Incarcerated offenders may be directed to attend a substance abuse program within the correctional facility. Probation orders issued by a magistrate can also include a condition for treatment or attendance at a specific impaired driving or substance abuse program. And, some provinces require completion of a specific impaired driving program as a mandatory condition of licence reinstatement.

The remainder of this section provides an overview of Criminal Code sanctions and provincial/territorial procedures for dealing with impaired drivers

3.1.1 Criminal Code sanctions. In Canada, impaired driving is a criminal offence and, therefore, legislation governing impaired driving offences is contained in the Criminal Code of Canada. The terms "impaired driving" and "DWI" actually refer to any one of a number of offences -- impaired operation of a motor vehicle, driving with a BAC over 80 mg of alcohol in 100 ml of blood, failing or refusing to provide a blood or breath sample, impaired operation causing bodily harm, and impaired operation causing death. In this report, a distinction among offences will be made only when procedures for dealing with them differ.

The Criminal Code specifies penalties for persons convicted of an impaired driving offence. These penalties are listed in Table 3-1. For example, the penalty for a first summary conviction of impaired driving would be a minimum three-month prohibition from driving and a $300 fine. The maximum penalties, especially for a conviction by indictment ¹, can be considerably higher. As is evident in Table 3-1, the Criminal Code also provides for more severe penalties for those convicted of a second or subsequent impaired driving offence. For the purpose of sentencing for repeat offences, a previous conviction for either impaired operation, over 80 mg% or refuse to provide a blood or breath sample are considered as equivalent. In order for these more severe penalties to be applied, however, the prosecutor has to be aware of an offender’s previous conviction and must be able to prove it. Unfortunately, for a variety of reasons this may not be easy to do (Solomon et al., 1986). The result is that a number of repeat offenders are sentenced as first offenders by the courts.

In addition to the sanctions listed in the table, if deemed appropriate, judges have considerable discretion in setting terms of probation (e.g., an offender may be required to seek treatment for alcohol abuse, perform community service, provide restitution to victims, or attend a specific program). Because of the latitude in the conditions of probation and their variability across the country, the combinations of potential sanctions are virtually endless. Nevertheless, from the perspective of the present study, probation orders are an important aspect of sentencing in that in some jurisdictions, a judicial order is the most common means by which offenders access programs.

3.1.2 Provincial/Territorial Practices. In addition to the Criminal Code, the provinces and territories have authority over driver licensing and can pass laws to keep the roads safe. Many jurisdictions have used their authority to supplement the drinking and driving provisions of the Criminal Code. This section describes provincial/territorial regulations that deal with licensing. Specific programs for offenders in each province and territory are contained in Section 5.0.

Table 3-2 provides a summary of the various actions taken by each of the provinces and territories to help control drinking and driving. Most jurisdictions across Canada have given police the authority to suspend or prohibit immediately, for up to 24 hours, any driver who has a blood alcohol level above some minimal value. The BAC level at which such suspensions or prohibitions take effect is typically 50 mg% -- below the 80 mg% level specified in the Criminal Code. This administrative action provides an immediate sanction for driving after drinking while at the same time removing these drinking drivers from the road before they become involved in a crash.

Table 3- 2 Dealing with Impaired Drivers: Provincial Summary

Two provinces also have lower BAC limits for young and/or novice drivers. Ontario has a zero BAC limit for novice drivers under the recently implemented graduated driver licensing system. Prince Edward Island has adopted a 10 mg% limit for drivers under 19 years of age. In both provinces, violations are punishable by a three month licence suspension. Prince Edward Island also imposes a $500 fine.

Manitoba is the first, and only, province to introduce a three-month administrative licence suspension for drivers who fail or refuse a breath test. The suspension takes effect seven days after the offence was committed and is independent of a Criminal Code conviction. The purpose of the administrative suspension is to help ensure that drivers who have violated the conditions of holding a licence do not drive during the interval between the offence and disposition of the case by the court.

Other provinces also have provisions for administrative suspensions that take effect prior to a Criminal Code conviction. For example, in Nova Scotia the Registrar of Motor Vehicles can suspend the licence of a driver involved in a fatal crash. In Alberta, the Driver Control Board can suspend the licence of any driver charged with impaired driving causing death or bodily harm until the case is dealt with by the courts. Some jurisdictions also use the 12- or 24-hour roadside suspension for drivers charged under the Criminal Code.

Most provinces and territories also impose licence suspensions upon conviction for a Criminal Code impaired driving offence. These suspensions are typically longer than the prohibition from driving imposed by the court. Table 3-2 illustrates the considerable variability in the length of provincial licence suspensions, which range from three months for a first conviction to five years for a second conviction.

Provincial/territorial licence suspensions run concurrently with the court-ordered prohibition from driving. A court-ordered prohibition from driving, however, takes precedence over a provincial suspension. For example, if the court imposed a prohibition from driving that is longer than the provincial suspension, the offender may technically be eligible to get his driver’s licence reinstated but will still be prohibited from operating a vehicle.

Provincial/territorial licensing officials do not have the same degree of difficulty experienced by the courts in proving the prior record of repeat offenders. The length of the provincial/territorial suspension is determined by the number of prior impaired driving convictions found in a search of the driver’s record. The period covered by the search varies from two years to up to 10 years. Hence, although an individual may be sentenced as a first offender by the courts, provincial licensing officials will determine the appropriate length of suspension based on the individual’s driving record.

3.2 Detailed Description of Provincial/Territorial Procedures

This section describes the procedures for dealing with impaired drivers in each province and territory. Each jurisdiction is discussed from the point of view of the identification of offenders, Criminal Code offences, and licence reinstatement. In addition, future initiatives being considered are also outlined briefly. To illustrate the sequence of events, a diagram is provided for each jurisdiction. The diagram is a summary only; the details are provided in the text.

¹ Impaired driving, Over 80 mg% and Refuse to Provide a Sample are hybrid or dual procedure offences -- i.e., they can be prosecuted as either summary conviction or indictable offences. The differences between the two types of offences lie primarily in the court procedures and penalties. Indictable offences are generally considered more serious. Most impaired driving offences are treated as summary conviction offences.