Defense of Impair Driving

Driving While Impaired in Canada

Tough new laws have been enacted in Canada in response to the problem of driving while impaired. In this case "impaired" means driving while intoxicated on alcohol -- being over the limit on blood alcohol (driving under the influence, DUI / driving while intoxicated, DWI) -- or on drugs. This paper describes the issue, reviews the relevant legislation and laws, reviews the history of laws pertaining to impaired driving sanctions, and offers analysis of the contemporary legal situations regarding impaired driving laws in Canada.

What is Impaired Driving?

The Ministry of Transportation in Ontario defines impaired driving as driving "while you ability is affected by alcohol or drugs… a deadly combination" (www.mto.gov.on.ca). The fact is that one drink can reduce a driver's ability to concentrate on the road and the traffic. Even one drink can affect a driver's reaction time, the MTO explains. The MTO also explains that any drug "…that changes your mood, or the way you see and feel, will affect the way you drive." Of course the immediate reference is to the use of cocaine, marijuana, and other illegal drugs. But MTO adds that legal drugs, prescription drugs, can also affect the way you drive; in addition, some "over-the-counter" drugs can impair a driver's ability.

What is the Problem in Canada -- Why Tougher Laws?

Tougher laws related to impaired driving have recently been enacted in Canada, and will be reviewed later in this paper. The need for laws that are tougher can be seen in the data that is available. According to Mothers Against Drunk Driving (MADD) in Canada, between 1999 and 2008, alcohol and drug-related accidents on Canada's highways resulted in "…an estimated 12,100 death, 713,845 injuries and damage to 2,359,190 vehicles" (Pitel, et al., 2011, p. 3). The average number of highway deaths linked to the abuse of alcohol and drugs per year, according to Pitel -- a professor in the Faculty of Law at the University of Western Ontario -- 1,210 deaths, 71,385 injuries, and damage to 235,919 vehicles. The cost to Canadians over the ten-year period between 1999 and 2008 was an estimated $20.53 billion, "or about $6,221 per Canadian" (Pitel, 3).

In 2008, which according to the MADD document edited by Pitel is the most recent year for specific data on impairment-related crashes, there were an estimated 1,162 fatalities, 68,538 injuries and there was damage to 226,522 vehicles. Pitel notes that Canadian data on "blood-alcohol concentration (BAC) is relatively reliable"; however, the data on whether a person might have been impaired by drugs is not complete, and that is due to the "lack of testing and testing sensitivity" (Pitel, 4). Roughly, the estimate is that about 25% of impairment-related crashes are due to a combination of drugs and alcohol; 75% of impairment-related crashes are due to the abuse of alcohol alone; and 10% of impairment-related crashes are said to be due to drugs alone with no alcohol involvement (Pitel, 5).

Moreover, it is known that some accidents -- likely caused by driver impairment -- that are not as serious, and don't involved fatalities, go unreported to police. This can skew the data that officials are attempting to keep as accurately as possible. For example, it is known that the number of "less serious crashes based on police reports are far lower than estimates based on insurance data" (Pitel, 5). A driver hoping to be paid by an insurance company for damage to his or her car certainly will report it to the insurance agent, but may not have reported it to police due to the impairment issue at the time of the accident.

A 2005 national survey in Canada reflected the fact that "15% of Canadian drivers reported driving a vehicle within two hours of consuming alcohol in the past 30 days" (Hales, et al., 2009, p. 364). In that same survey, over 1.5 million respondents did they know they were driving when impaired, and 16% of those admitted they drove while impaired "four or more times" within a one-year period, Hales explains on page 364. A more recent study of college students (full-time students) revealed that "20% of students drove after drinking some amount of alcohol, 10% drove after drinking five or more drinks, and 23% rode with a driver who was high or drunk" (Hales, 364).

An article in the journal Drug and Alcohol Review (Brown, et al., 2009, p. 408) reflects that some DWI offenders go on to get arrested again, and again. The research in this article points out that when tested sober, repeat DWI offenders "…exhibit significant cognitive impairment" to a significant degree (Brown, 408). Fifty-seven percent of repeat offenders produced test scores "indicative of memory problems" while 21% of repeat DWI offenders showed test scores that were normal in terms of the quality of their cognitive abilities, including memory competence (Brown, 408). This may explain why, when drinking, the recidivists that have cognitive problems operate vehicles recklessly. In short, they aren't truly safe on the road even when they are not drinking.

Additionally, a recent sample of sober DWI offenders (that had two to eight convictions for DWI) indicates that 70% were be impaired on at least "one index of neurocognitive capacity; that could include "problem solving, cognitive flexibility, working memory and visuospatial tasks" (Brown, 408). Again, this is an indication that these individuals shouldn't be on the road at all, let along after they have been imbibing alcohol. Brown goes on to relate that individuals with a history of alcoholism "show impairment in neurocognitive performance long after alcohol use cessation"; the impairments these individuals experience include: visuospatial abilities; declarative memory; language skills; motor and perceptual abilities; and executive functions (executive functions include "higher level cognitive processes" linked to "goal-directed behavior…planning and initiation, anticipation of consequences of actions" and the ability to change behavior based on environmental "feedback") (Brown, 408-9).

The same round of testing with females convicted of DWI shows that "82% exhibited impaired performance on at least one test…" (including memory and visuospatial abilities). However, Brown adds, the executive functions that male repeat offenders did poorly on were "relatively preserved" in females (meaning, they didn't suffer the same executive function losses as the male repeat offenders did) (Brown, 411).

As to the use of marijuana in Canada, an article in the Canadian Journal of Criminology and Criminal Justice references recent surveys that show young people 18-28 admit to using cannabis and alcohol while operating motor vehicles. In fact, the authors present results from a study of 102 university students who were "high-frequency cannabis users" in Canada (70 males, 32 females). The study revealed that "…a higher proportion of the sample [35%] had driven a car while under the influence of cannabis than had driven while under the influence of alcohol [4.9%] (McGuire, et al., 2011, p. 248). Some 3.9% of those 102 students admitted to having driven an automobile while high on cannabis and alcohol. Clearly, there is not as much research into the use of marijuana while driving as there is relative to alcohol and driving, but the scholarship points clearly to a need for more research in that genre. Also, law enforcement authorities need to have better science and technology in order to test for cannabis usage when drivers are arrested for impairment.

Canadian Laws Regarding Impaired Driving

Given the grim statistics regarding deaths and injuries on Canadian highways -- presented in the earlier pages of this paper -- it is not a surprise that the Canadian government has taken legislative action. In fact, in July, 2008, Canada instituted "Tougher Impaired Driving Laws," according to the Department of Justice. The provisions of the Bill C-2, "Tackling Violent Crime Act," that were signed into law in 2008 have been amended as late as April 15, 2011. If an impaired driver (on drugs or alcohol or both) is arrested with a blood alcohol level (BAL) of 0.80 or over, he or she will now face a "maximum life sentence if they cause death, and a maximum 10-year sentence if they cause bodily harm."

Also, if the impaired driver refuses to comply with a law enforcement's demand for a sobriety test -- or bodily fluid samples -- that driver is charged with a "criminal offence" under Bill C-2. Impaired drivers can no longer tell a police officer, "I only had two beers," the Department of Justice Web site explains. In fact a field sobriety test is mandatory in Canada, and trying to get away with a story that minimizes the amount of drugs or alcohol consumed will no longer be effective, Darren Eke, Press Secretary with the Department of Justice explains.

For the first offense, a mandatory $1,000 fine is levied; the second offense puts the offender in jail for 30 days (mandatory); a third offense results in a maximum sentence of 120 days in jail (Eke, 2011). The harsher sentencing should make it "easier for the Crown prosecutors to obtain Dangerous Offender designations," Eke explains. When a citizen is designated as a "Dangerous Offender" it is one of the most "severe sentences available in Canadian law" (Eke, 2011).

Meanwhile, under the "National Defence Act (R.S.C., 1985, c. N-5)," every person that is driving a vehicle owned by the Canadian Forces, and is driving recklessly or "in a manner that is dangerous to any person or property having regard to all the circumstances of the case, or, having charge of an being in or on such a vehicle… [and] is impaired by alcohol or a drug, drives or attempts to drive such a vehicle, whether it is in motion or not… or… knowingly permits it to be driven by a person…impaired by alcohol or a drug, is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding five years or to less punishment…" (Department of Justice).

Legislative History of Bill C-2

The legislation that deals with drug-impaired driving (Bill C-2) was tucked into legislation that does several other things. It was called "Tackling Violent Crime Act," and had 5 parts. Part 1 dealt with firearms violations; Part 2 deals with increasing the age of consent for sexual interaction with an adult; Part 3 is the Drug-Impairment Driving portion; Part 4 has to do with "Bail Hearings" related again to firearms and other weapons; and Part 5 delved into dangerous offenders, and long-term offenders. So it is clear that driving while impaired with drugs is right up there with other violent criminal statutes.

Meanwhile, this bill was originally introduced into the House of Commons on the 21st of November, 2006, and moved along with amendments to the Standing Committee on Justice and Human Rights on June 20, 2007.

An officer is authorized to administer a Standardized Field Sobriety Test (SFST) on the highway if the officer "…has a reasonable suspicion that the driver has a drug in his or her body," and if the driver fails that roadside test, the officer can escort the driver to a police station at which time a Drug Recognition Expert (DRE) evaluation "involving a combination of interviews and physical observations" will be administered (Bill C-2). If that DRE officer believes that a "specific family of drugs" could be the reason for the impairment, Bill C-2 authorizes that officer to "take a saliva, urine, or blood sample." If there is confirmation that the impairment was drug-related -- through a toxicology report -- charges can be leveled against the driver and those tests can be used as evidence in a trial.

An important part of this legislation relates to what is admissible in court. In the past, according to the Bill C-2 details, no evidence can be brought into a trial that relates to witness testimony. For example, a witness in the past could testify that "he or she had drunk only small amounts of alcohol," or, a witness could say that "he or she was drinking at a rate at which the alcohol consumed would have been absorbed and eliminated by the accused's body." The issue in any court situation, due to Bill C-2, must relate to the tests, and the concentration of blood alcohol, not to testimony from witnesses as to the behavior or consumption of the accused.

Relating to the history of this legislation, in May 1999, the House of Commons Standing Committee on Justice and Human Rights released a report called "Toward eliminating Impaired Driving." In the report the Committee acknowledges that besides alcohol, drugs do play a part on highway accidents, and the "the extend of drug-impair5ed driving has been underestimated" since police did not have any way to test drivers for the presence of drugs in their system (Bill C-2). Hence, the report called for more effective ways to give police the tools that would be necessary for effective prosecution of those causing highway accidents because they were under the influence of drugs.

Another problem at the time with reference to giving police the tools needed to prove drugs were involved in the accident is that the Criminal Code in Canada required that police have "reasonable and probably grounds" to suspect that the driver was impaired. If the officer could smell the smoke from a marijuana cigarette, for example, that is probably cause. But otherwise, it was a guess on the part of the officer. Moreover, there was at that time "an apparent lack of a single non-evasive test" that would detect the use of drugs.

The House of Commons Committee then recommended that the Criminal Code be amended to allow a "justice to authorize the taking of a blood sample to test for the presence of alcohol or drugs," and the Committee also recommended that legislative action should be taken through the Minister of Justice, to allow the collecting of "better evidence against suspected drug-impaired drivers" (Bill C-2).

Meantime, in 2002, the Senate Special Committee on Illegal Drugs put together a report that was called "Cannabis: Our Position for a Canadian Public Policy." In that report, it stated that between 5% and 12% of drivers in Canada operate vehicles while under the influence of marijuana. As for males under the age of 25, the report claimed that more than 20% of those individuals use marijuana while driving or before getting behind the wheel. Interestingly, the report asserted that "…cannabis alone, particularly in low doses, has little effect on the skills involved in driving and thus is not, in itself, a traffic risk" (Bill C-2).

After saying that, the report seems to contradict itself. Cannabis does lead to a "more cautious style of driving," the report continued, but it "…still has a negative impact on decision time and trajectory, making it difficult for drivers to stay in their lanes." So, on the one hand, no worries, a little marijuana won't have an affect on a driver. But on the other hand, drivers high on marijuana can't stay in their own lanes? One wonders how such seemingly contradictory statements could both be part of a legislative report.

But in any event, this Senate Committee recommended a "rapid testing tool" should be developed in order to detect cannabis in a driver's blood stream. The Committee in 2002 also recommended "lowering the permitted alcohol level to 40 milligrams of alcohol per 100 milliliters of blood when combined with drugs." In 2003, the Department of Justice's Working Group on Impaired Driving studied the issue, in cooperation with provinces and territories' leadership groups, and published a report called "Drug-Impaired Driving: Consultation Document."

The bottom line of this report was that legislation was needed to put some teeth into current practices and laws. Two options were offered in this report: a) a legal limit needs to be set on drugs in a driver's body, and yet a "zero limit" would not be appropriate because the legislators knew that marijuana stays in the body for several weeks after smoking; if a person was tested for drugs and came up positive, it could be from some cannabis used weeks ago and hence the test would be unfair and inappropriate; and b) the Working Group suggested a "certified SFST officer" could be in place to demand a physical sobriety test, take a saliva test or other kinds of tests on the roadside "based on a reasonable suspicion of drug-impairment"; and the sample test would have to be so reliable it could be used as evidence (Bill C-2).

In the fall of 2003, meantime, the House of Commons Special Committee on the non-medical Use of Drugs put out a parliamentary report, asking that a strategy be created to address the topic of driving while impaired by drugs -- in the context of a bill that had been proposed that would decriminalize the possession of small quantities of cannabis. In 2004, on April 26, Bill C-32 was introduced into the House of Commons that intended to amend the Criminal Code that deals with drug-impaired driving. After been referred to a committee, Bill C-32 died prior to any action being taken.

Another similar bill (Bill C-16) was introduced to the House of Commons in 2005, but that one was left to die as well. Still another bill was introduced in November, 2006, but it too did not make it through the system. Finally, Bill C-2 was introduced and it reflects the work that had been done over the years and puts into place a system of testing for impaired drivers that legislators and others believe is worthy and has a chance to reduce serious accidents caused by impaired drivers.

Canadian Provinces pass their own Beefed-up Laws

In New Brunswick, thanks to a law that went into effect in June, 2011, drivers will lose their licenses for a week, "even if their blood alcohol level doesn't top the legal limit" (CBC News). The Public Safety Minister for New Brunswick is Robert Trevors, and he explains to the CBC that any driver stopped and caught with a blood alcohol concentration of 0.05 to 0.08 -- determined though roadside testing -- will automatically lose their license for a week. These new sanctions went into affect thanks to an amendment to the Motor Vehicle Act approved in the fall of 2010.

The CBC quoted Trevors saying: "Our goal was to change the culture around drinking and driving in the province of New Brunswick… [because] too many people think it is perfectly safe to have a few drinks before getting behind the wheel. This is not the case" (CBC). A liberal legislator (Donald Arseneault) agreed with Trevors, saying, "Anything we can do to discourage and bring forward policy initiatives or initiatives that discourage drinking and driving… we will always stand up and support the government" (CBC).

Meanwhile in Ontario, recent laws put in place show that this province is serious about reducing the deaths and injuries cause by drunk drivers on the highway. Licensed drivers stopped by law enforcement officers and found to have a blood alcohol concentration of 0.05 or more (meaning there is 50 milligrams of alcohol in every 100 milliliters of blood) will face "immediate roadside license suspension" (www.mto.gov.on.ca). Beyond that, you will also be fined up to $500 and face a 30-day suspension of your license (if convicted).

For drivers under the age of 21 in Ontario, the government has passed a law that tolerates "Zero BAC (Blood Alcohol Concentration)"; that is, as of August 2010, drivers under the age of 21 immediately lose their licenses if they have any alcohol in their system.

In Saskatchewan, the government long ago lowered the blood alcohol content from 0.06 to 0.04 as justification for suspending a driver's license for 24 hours. The Criminal Code remained at 0.08, but by making it 0.04 as cause for taking away licenses, the government took a strong stand in 1996, stronger than any other Canadian province. For new drivers with a blood alcohol level of 0.04 for or over in Saskatchewan, they automatically lose their license for 30 days, which is increased to 90 days when there is a second offence (www.gov.sk.ca).

How are Attorneys in Canada Responding to Bill C-2?

The Criminal Lawyers' Association in Toronto claims that Bill C-2 is a "Nasty criminal law" that will achieve "nothing for public safety" (Addario, 2008, p. 29). The attorneys charge that the Bill C-2 "should never have passed" because it is "constitutionally suspect" (Addario, 29). The criminal justice system will be tied up for years in what the attorneys refer to as "procedural confusion"; moreover, the long sentences for those convicted of being impaired will fill Canadian jails which is a "dangerous and expensive addition" and on top of that cities and towns will not enjoy any additional safety resulting from Bill C-2 (Addario, 29).

The Criminal Lawyers go on to assert that mandatory sentences don't work with any degree of effectiveness, and they use the example of the United States' mandatory sentencing. At the time this press release was issued, the New York Times was reporting that "…1 in 100 American adults are incarcerated" -- and mandatory sentencing is the main reason why.

"Hastily passing legislation to combat drug and alcohol impaired driving without respecting the constitutional limits on such laws," the lawyers' press release declares, "shows politicians putting expedience ahead of effectiveness" (Addario, 30). The lawyers go on to insist that there already are tough criminal laws on the books in Canada, and there are judges that are not afraid to hand out "tough sentences for criminal offenders," so, the implication is, why add to the laws? The lawyers attacked the government and those politicians who are on the opposite political wing of the government, for supporting the passage of Bill C-2. They "…ought to have their bananas confiscated," Addario writes in a sarcastic note (30).

The Criminal Lawyers Association is a "voice for everyone concerned with the quality of criminal justice," Addario asserts.

Meanwhile attorney Steve Bliss toots his own horn as a lawyer that represents Canadians that have been arrested for impaired driving -- but his examples from court cases shed light on how well Bill C-2 is working. He says he does "a great deal of research on every case" and uses "Charter of Rights" arguments to challenge strategies by police. The issue of what is "reasonable and probably grounds" for arresting a driver that appears to be impaired has always been a source of contention in the United States as well as Canada. Did the officer have probably cause to stop and question the driver?

In one case that Bliss points to, a driver was stopped on a highway exit ramp in Canada. The driver had "red eyes" and his speech was "slurred," according to Bliss (Bliss, 2009, p. 2). The officer arrested the driver and made a demand for a breath test; the driver was "properly provided with an opportunity to speak to counsel" prior to the breath and other tests. But in court, Bliss argued under the "Charter application" that police did not have "reasonable and probably grounds" to arrest and demand a breath test. The court agreed, dismissing charges.

In another case, the accused was a university student in his early twenties. He drank beer with his girlfriend over a period of five and a half hours, and was stopped at a "ride-share" parking area. The Intoxilyzer he was asked to breathe into showed readings that indicated impairment. The toxicologist brought in by attorney Bliss calculated -- based on the time over which the drinking occurred -- that the blood alcohol level would be lower than what the Intoxilyzer had shown, given the verifiable time frame of the consumption. Even though earlier in this paper is was presented that the Bill C-2 would be cut and dried as far as the data from the breath and blood tests -- and no intercepting data from outside sources would be able to help the impaired driver off the hook -- in this case that outside testimony was relevant and successful for the lawyer and his client. The toxicologist was able to prove that the arrested individual "eliminated alcohol at the rate of 18.8 mg/100mi/hour, much faster than average," and hence the toxicologist used as an expert witness narrowed the range of how blood alcohol is calculated. "The court accepted defence 'evidence to the contrary' and acquitted" the driver of wrongdoing (Bliss, 7).