Impaired Driving and Minimum Sentencing

Drunk driving is a serious business. In 2011, Police reported over 90,000 incidents of impaired driving, which corresponds to 2% up from the year before, and the fourth year in a row that the number increased. It constitutes 12% of all criminal charges laid in Canada [1], and as a result, is an industry unto itself creating work for defense lawyers, police officers, crown attorneys, technicians, etc. Not that job creation is any sort of a positive spin on the situation. In 2010, MADD Canada estimated that over 1,000 Canadians were killed as a direct result of impaired driving. The number of lives that have been ruined due to injuries is much higher.

As with all epidemics perceived or real, there has been a public demand to do something about it, and a corresponding response by politicians. There are many opinions as to whether the federal government is combating the problem or simply appeasing the public with ineffectual laws about regulating and punishing perpetrators. While I do have some thoughts, the point of this blog is to provide information rather than opinion, so I will not express them here. Suffice it to say, strong public pressure has influenced the creation of statutes, which take power away from the judiciary in crafting punishments for drunk drivers.

What is a minimum sentence?

In short, a minimum sentence is a provision in the Criminal Code of Canada that forces a judge to impose at least the minimal outlined sentence, if the accused has been found guilty of a specified offence. For many offences in the Criminal Code, minimum sentencing provisions do not exist. This means that a court will weigh mitigating versus aggravating aspects of the offence to craft a suitable punishment for the accused on a subjective basis. Where minimum sentencing provisions apply, the court has no choice but to impose the corresponding punishment, regardless of whether it feels that it is too onerous for the given crime.

How does this apply to operating while impaired?

The charge of operating while impaired is found in section 253 of the Criminal Code, and applies to impairment by drugs, alcohol or both. This offence is termed a “hybrid” offence, meaning that the Crown can treat it as a summary offence (less serious) or indictable offence (more serious). The elements of this offence that have to be proven by the Crown are:

  • That a person was either operating or had care and control over a motor vehicle, vessel, aircraft or railway equipment; while impaired or with a blood alcohol content over 80.

These can be admitted as fact by the accused person or deemed proven at trial by a Crown Attorney. A good criminal defense lawyer who represents the accused will use any of a vast number of defenses to ensure that the accused will not be falsely convicted.

If the accused is found guilty of operating a motor vehicle while impaired, the court will have no choice but to comply with the sentencing provisions found in sections 255 and 259 of the Criminal Code.

  • On a first offence, a fine of $1,000 has to be imposed along with a 1-year driving prohibition.
  • On a second offence, a 30-day term in jail, along with a 2-year driving prohibition.
  • One a third and any subsequent offence, a 120-day jail term along with a 3-year driving prohibition.

It should also be noted that there is a number of additional punishments, which are not regulated by statute but usually take effect upon sentencing anyway. A conviction of drunk driving will automatically result in a criminal record for the accused and the stigma associated with it. Most insurance companies will either suspend coverage or impose a much higher premium. Finally, due to the automobile-driven society we live in, many people will find themselves losing out financially and socially while being unable to drive.

The penalties set out in sections 255 and 259 have to be imposed by a sentencing judge. The judiciary has the power to interpret the law, but not to ignore it. Even if the judge is convinced that particular circumstances of an impaired driving incident warrant a lesser punishment, he or she will be legally obliged to impose the minimum sentence. As I mentioned in the beginning, it is a serious business.

[1] Kenkel, Joseph F. (2008). Impaired Driving in Canada, 2009 Edition. Markham, Ontario: LexisNexis Canada. p. 1.