QUICK TAKEAWAY
Impaired Driving: Impaired driving is the leading criminal cause of death and injury in Canada, according to (Impaired Driving Laws) from the Department of Justice. Section 320.14 (1) of the Criminal Code makes it a crime to have a blood alcohol concentration of .08 percent or more or to be impaired by narcotics, which can be measured through urine or blood samples. If you have a small amount of any drug in your system when stopped, the Code states that you could face a fine of up to $1,000, while those involved in accidents causing death while impaired could be imprisoned for life. While offences are established federally, enforcement, apprehension, prosecution and application of penalties fall within the provincial and territorial authority.
Table of Contents:
What is Impaired Driving in Canada?
Section 320.14 (1) of the Criminal Code states that it is against the law to operate a vehicle if impaired by alcohol, a drug, or a combination of both. You are considered impaired if you have a blood alcohol concentration (BAC) of .08 percent. After legalizing cannabis sales through regulated vendors in 2018, the government introduced new laws to deter and detect those driving while impaired by any drug. See the DoJ document (Frequently Asked Questions - Drug-Impaired Driving Laws.) It states that it is a criminal offence to be at or over a prohibited blood drug concentration for certain impairing drugs, including THCThe psychoactive component of cannabis and cocaine.
Regarding cannabis, the DoJ document states two prohibited levels of THC. It is an offence to have between two and five nanograms (ng) of THC per ml of blood when operating a vehicle, and it is an even more serious offence to have five ng or more of THC per ml of blood.
If you have been using other drugs, "having any detectable amount" of LSD, psilocybin, magic mushrooms, ketamine, PCP, cocaine, methamphetamine or 6MAM (an indication of heroin use) in your system within two hours of driving is prohibited. The DoJ adds that the prohibited level for GHB (better known by its street names of G, grievous bodily harm, liquid ecstasy or cherry meth) is 5 mg or more per litre of blood, as the body can naturally produce low levels of this drug.
How Canadian Police Measure Impaired Driving
Before 2018, your level of impairment at the time you were pulled over was all that mattered. Now it is illegal to have a blood alcohol content level over the legal limit two hours after driving, according to the DoJ document.
Police no longer require a reasonable suspicion to demand a breath sample from a driver, it states, adding that failure to comply with a demand for a sample will result in criminal charges that carry the same, or greater, penalties as driving while impaired.
According to the RCMP (Impaired driving investigations,) you can be charged with impaired driving if you are controlling an automobile, snowmobile, all-terrain vehicle, boat or even aircraft and railway equipment. If an officer has reason to suspect that you have alcohol and/or drugs in your system, they can demand that you:
- Blow into a roadside screening device;
- provide an oral fluid sampleA mixture of saliva and other materials found in the mouth, at roadside, to be measured a screening device; and/or
- participate in a series of standardized sobriety tests.
Once you are arrested as a suspected drug-impaired driver, police can do one or both of the following:
- Demand that you provide a blood sample to provide a more accurate measure of your level of impairment.
- Demand that you complete a 12-step DRE evaluation at a police detachment, which involves balance and attention tests along with the physical examination of your body, to check for such things as indications of needle use.
Penalties for Impaired Driving in Canada
Impaired driving is the leading criminal cause of death and injury in Canada, according to the DoJ (Impaired Driving Laws) document, with more than 69,000 impaired driving incidents reported by the police, including almost 3,500 drug-impaired driving incidents in 2017. To reduce those numbers, it states that the federal government in 2018 created three new offences for having specified levels of a drug in the blood within two hours of driving.
If you are caught with between two and five ng of THC in your blood, that would be dealt with as a summary convictionUsed for lesser offences criminal offence, punishable by a minimum fine of $1,000.
If 5 ng or more of THC is detected in your blood, the DoJ document states your charge would be a hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence, meaning that it can be prosecuted by indictment in serious cases or by summary conviction in lesser cases. If a blood test shows you have a combined THC and alcohol concentration of 50 mg of alcohol per 100 ml of blood, combined with a THC level greater than 2.5 ng per ml of blood, that would also be treated as a hybrid offence.
According to s.320.19 of the Code, both hybrid offences would be punishable by mandatory penalties of $1,000 for a first offence and escalating penalties for repeat offenders.
The minimum penalty for second offences is 30 days imprisonment, with sentences of a 120-days behind bars handed out for a third or subsequent offence. The maximum penalty for these two latter charges (second or third offence) are two years less a day on summary convictionUsed for lesser offences and 10 years for indictable offenceIndictable offences are more-serious criminal offencess. The Crown could also seek a dangerous offender application in appropriate circumstances.
If you refuse to comply with a demand for bodily samples, you could be fined $2,000.
It is important to note that provinces have their own guidelines, and penalties can be more severe than federal guidelines, resulting in licence suspensions. Under s.320.2 of the Code, those charged with impaired driving causing bodily harm face a maximum penalty of two years less a day in jail for a summary conviction or a maximum of 14 years for an indictable offence.
The charge of impaired driving causing death, s.320.21, is always an indictable offence, with a maximum life in prison.
In addition, provinces and territories have their own punishments for impaired driving, including licence suspensions. Please review our list of partners in your area for more detailed explanations.
When arriving at a sentence, s.320.22 of the Code says the court will consider aggravating factors that may increase the severity of your sentence.
Those include if you:
- were in a race with another driver on a street or a public area;
- had under the age of 16 was with you at the time
- were being compensated for operating the vehicle you were arrested in
- were not permitted, by federal or provincial authorities, to operate the vehicle you were arrested in.
Your rights:
After arresting you for impaired driving, police must advise you of your rights, including the right to a lawyer. According to the RCMP, that right can be exercised before an evidentiary breath test, the blood sample or the 12-step DRE evaluation, which are all done in a police station. However, roadside tests and evaluations are done before speaking with a lawyer.
Impaired Driving Laws Across the Country
The laws to combat impaired driving across Canada are revised and updated by the federal government and each province to reflect societal change. Here is a list of the provinces and their specific penalties for impaired driving:
- British Columbia Impaired Driving Laws: Immediate license suspension from 24 hours to 90 days and vehicle impoundment. A criminal conviction can result in fines up to $4,060 and a jail sentence for repeat offenders.
- Alberta Impaired Driving Laws: License suspension and vehicle impoundment for a minimum of three days for a first offence, and increasing fines and jail time for repeat offenders.
- Saskatchewan Impaired Driving Laws: Immediate 24-hour suspension and vehicle impoundment for BAC as low as .04. If your BAC is above .08 you face a criminal charge and your license will be suspended immediately and stay suspended until the charges are resolved in court
- Manitoba Impaired Driving Laws: Three-day vehicle impoundment and $400 administrative penalty for BAC of .05 to .079, increasing license suspension and fines for higher BAC levels, and immediate license suspension for subsequent breathalyzer warnings.
- Ontario Impaired Driving Laws: If your BAC is between .05-0.079, you will face an immediate three-day licence suspension and a $250 penalty. A BAC of 0.08 or more,will result in 90-day roadside suspension and criminal charges.
- Quebec Impaired Driving Laws: Immediate license suspension of 24 hours to 90 days and vehicle impoundment for a minimum of 30 days. A third conviction will result in an alcohol ignition interlock device being installed on your vehicle for life.
- New Brunswick Impaired Driving Laws: Immediate seven-day license suspension for a first offence.and increasing fines, jail time, and license suspensions for repeat offenders.
- Nova Scotia Impaired Driving Laws: Immediate license suspension and vehicle impoundment for a minimum of seven days. There is also a reinstatement fee of $91.42 each time a suspension occurs. You can be fined $600 to $2,000 following your first criminal conviction and lose your license for one year.
- Newfoundland and Labrador Impaired Driving Laws: Immediate license suspension and vehicle impoundment for a minimum of three days. There is a minimum one-year license suspension for a first-time offender and a lifetime ban on driving for a fourth and subsequent conviction.
- Yukon Territory Impaired Driving Laws: Immediate suspensions and vehicle impoundment apply. Yukon has a zero-tolerance policy for new drivers, mandatory alcohol screening, and an ignition interlock program.
- Nunavut Impaired Driving Laws: Immediate license suspensions and impounding can occur if caught with a BAC over .05. Criminal charges can result in life imprisonment. Zero-tolerance policies exist for under 22 drivers.
Note: This is not a comprehensive list and laws are subject to change.
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Bartlett & Co Law Corporation
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Glossary of Legal Terms
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Oral fluid sample
Oral fluid is a mixture of saliva and other materials found in the mouth that law enforcement officers check for indications of drug imprairment.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
THC
Tetrahydrocannabinol (THC) is the chemical responsible for most of marijuana's psychological effects. THC can induce hallucinations, change thinking and cause delusions.
