Impaired Driving and Related Criminal Code Offences

The holiday season is fast approaching which, for three reasons—eggnog, mulled wine and “a wee drop”—brings to mind the law of impaired driving. In a previous article we discussed why drinking and driving don’t mix. In this article, we will summarize briefly the related criminal offences enacted by Parliament to deter and penalize impaired driving. “Summarize briefly” is an important qualification. Whole sections of law libraries are dedicated to housing resources on this vast area of law.

Essentially there are five main related offences:

(1) S. 253 - operating a motor vehicle while impaired or having consumed alcohol in

such a quantity that the concentration of alcohol in the blood exceeds 80

milligrams per 100 millilitres of blood;

(2) S. 254(5) - without reasonable excuse, refusing to comply with a peace officer’s

demand for breath or blood samples;

(3) S. 255(2) - (1) above—operating a motor vehicle while impaired—and causing

bodily harm to any other person;

(4) S. 255(3) - (1) above—operating a motor vehicle while impaired—and causing

the death of any other person; and

(5) s. 259(4) - operating a motor vehicle while disqualified from doing so under the

Criminal Code or under the law of a province.

Section 253, the first listed offence is the main offence. Whether or not a driver causes an accident or injures him or herself only, driving while impaired or with a blood alcohol concentration of over .08 is, in and of itself, an offence. This provision also applies to simply having “the care or control of a motor vehicle.” In other words, being impaired and sitting in the driver’s seat of a parked motor vehicle may also constitute an offence under this section.

The Criminal Code empowers a peace officer, who reasonably suspects that a person is operating a motor vehicle with alcohol in his or her system, to demand a breath sample that is sufficient to enable a proper analysis of the breath by an “approved screening device.” Where necessary the peace officer is also empowered to demand that the person accompany him for the purpose of enabling such a sample to be taken. The Code also extends this power to a peace officer who believes on reasonable and probable grounds that a person is committing or at any time within the preceding two hours has committed an offence under s. 253 to demand a breath sample or if this is impracticable, to obtain blood samples.

Impaired driving and refusing to comply with a demand for a breath sample can be treated as either indictable or summary conviction offences. The former is for more serious breaches of the law, involves more procedural steps and, on conviction, stiffer fines and penalties. However the prosecution proceeds, the minimum punishment for a first offence is a fine of not less than $600; for a second offence, imprisonment for not less than 14 days; and for each subsequent offence, imprisonment for not less than 90 days. The maximum punishment where the offence is prosecuted by indictment is imprisonment for up to 5 years; for summary conviction, imprisonment for up to six months.

The offences of impaired driving causing bodily harm or death are indictable. Conviction is punishable by maximum imprisonment terms of up to 10 and 14 years respectively. A court is not bound to sentence up to the maximum term.

In addition to fines and imprisonment, the court that sentences the offender shall additionally prohibit him or her from driving:

for a first offence during a period of not more than three years plus any period to which the offender is sentenced to imprisonment and not less than one year;
for a second offence, during a period of not more than five years plus any period to which the offender is sentenced to imprisonment, and not less than two years;
and for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced to imprisonment.

This mandatory prohibition against driving for a prescribed period after being convicted forms the basis for the final offence: operating a motor vehicle while disqualified from doing so under the Criminal Code or under the law of a province. Driving while disqualified is an offence that can also be proceeded with by indictment or on summary conviction. The punishment for conviction on the indictable offence is up to five years imprisonment; for summary conviction the standard summary conviction penalties.

This is only a brief overview of the law. The average person needs to know at least these basic facts and to appreciate the extent to which the law aims stop impaired driving.

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