Impaired Driving Laws in Canada: Bill C-2 and DUI Reform

Introduction: Defining Impaired Driving

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

The Ministry of Transportation in Ontario defines impaired driving as driving "while your ability is affected by alcohol or drugs… a deadly combination." The fact is that even one drink can reduce a driver's ability to concentrate on the road and the traffic, and can affect reaction time. The MTO also explains that any drug "that changes your mood, or the way you see and feel, will affect the way you drive." The immediate reference is to illegal drugs such as cocaine and marijuana, but the MTO adds that legal prescription drugs — and even some over-the-counter medications — can also impair a driver's ability.

The Scale of the Problem in Canada

Tougher laws related to impaired driving have recently been enacted in Canada. The need for stronger legislation can be seen in the available data. According to Mothers Against Drunk Driving (MADD) Canada, between 1999 and 2008, alcohol- and drug-related accidents on Canada's highways resulted in "an estimated 12,100 deaths, 713,845 injuries and damage to 2,359,190 vehicles" (Pitel et al., 2011, p. 3). On average, that amounts to 1,210 deaths, 71,385 injuries, and damage to 235,919 vehicles per year. The cost to Canadians over that ten-year period was an estimated $20.53 billion, "or about $6,221 per Canadian" (Pitel, p. 3).

In 2008 — the most recent year for which specific crash data were available in Pitel's MADD report — there were an estimated 1,162 fatalities, 68,538 injuries, and damage to 226,522 vehicles. Pitel notes that Canadian data on blood alcohol concentration (BAC) is relatively reliable; however, data on drug impairment are incomplete due to the "lack of testing and testing sensitivity" (Pitel, p. 4). Roughly, the estimate is that about 25% of impairment-related crashes involve a combination of drugs and alcohol, 75% involve alcohol alone, and 10% involve drugs alone with no alcohol (Pitel, p. 5).

Moreover, it is known that some accidents — likely caused by driver impairment — that are not serious and do not involve fatalities go unreported to police. This skews the data that officials are attempting to keep as accurate as possible. For example, the number of "less serious crashes based on police reports are far lower than estimates based on insurance data" (Pitel, p. 5). A driver hoping to collect insurance for vehicle damage will certainly report the accident to an insurance agent, but may not report it to police if impairment was involved.

A 2005 national survey in Canada found 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 acknowledged driving while impaired, and 16% of those admitted doing so "four or more times" within a one-year period (Hales, p. 364). A more recent study of full-time college 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, p. 364).

Research published in the journal Drug and Alcohol Review (Brown et al., 2009, p. 408) highlights that some DWI offenders are arrested repeatedly. When tested while sober, repeat DWI offenders "exhibit significant cognitive impairment" (Brown, p. 408). Fifty-seven percent of repeat offenders produced test scores "indicative of memory problems," while only 21% showed scores in the normal range for cognitive abilities including memory (Brown, p. 408). This may help explain why, when drinking, recidivists with pre-existing cognitive problems operate vehicles recklessly — in short, they are not truly safe on the road even when sober.

A sample of sober DWI offenders with two to eight prior convictions indicated that 70% were impaired on at least "one index of neurocognitive capacity," including problem solving, cognitive flexibility, working memory, and visuospatial tasks (Brown, p. 408). Brown further reports that individuals with a history of alcoholism "show impairment in neurocognitive performance long after alcohol use cessation." These impairments include visuospatial abilities, declarative memory, language skills, motor and perceptual abilities, and executive functions — the higher-level cognitive processes linked to "goal-directed behavior, planning and initiation, anticipation of consequences of actions," and the ability to modify behavior based on environmental feedback (Brown, pp. 408–409).

Among females convicted of DWI, testing showed that "82% exhibited impaired performance on at least one test," including memory and visuospatial abilities. However, the executive functions on which male repeat offenders performed poorly were "relatively preserved" in females — meaning women did not suffer the same executive function losses as their male counterparts (Brown, p. 411).

Regarding marijuana use in Canada, an article in the Canadian Journal of Criminology and Criminal Justice references surveys showing that young people aged 18–28 admit to using cannabis and alcohol while operating motor vehicles. A study of 102 university students who were "high-frequency cannabis users" in Canada (70 males, 32 females) 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 while under the influence of both cannabis and alcohol. Clearly, research into cannabis-impaired driving remains less developed than research into alcohol-impaired driving, underscoring the need for more scholarship in that area and for better law enforcement technology to detect cannabis use at the roadside.

Canadian Federal Laws and Bill C-2

Given the grim statistics regarding deaths and injuries on Canadian highways, it is not surprising that the Canadian government has taken legislative action. In July 2008, Canada instituted "Tougher Impaired Driving Laws," according to the Department of Justice. The relevant provisions were contained in Bill C-2, the "Tackling Violent Crime Act," signed into law in 2008 and subsequently amended as late as April 15, 2011. An impaired driver — on drugs, alcohol, or both — arrested with a blood alcohol level (BAL) of 0.08 or over now faces "a maximum life sentence if they cause death, and a maximum 10-year sentence if they cause bodily harm."

Also under Bill C-2, an impaired driver who refuses to comply with a law enforcement officer's demand for a sobriety test or bodily fluid samples is charged with a criminal offence. Drivers can no longer simply claim they "only had two beers." A field sobriety test is mandatory in Canada, and a story that minimizes the amount of drugs or alcohol consumed will no longer serve as an effective defence. For a first offence, a mandatory $1,000 fine is levied; a second offence carries a mandatory 30-day jail term; and a third offence results in a maximum sentence of 120 days. The harsher sentencing is also intended to make it "easier for Crown prosecutors to obtain Dangerous Offender designations" — one of the most severe sentences available in Canadian law.

Meanwhile, under the National Defence Act (R.S.C., 1985, c. N-5), every person driving a vehicle owned by the Canadian Forces while impaired by alcohol or a drug — or who knowingly permits such a vehicle to be driven by an impaired person — "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).

Conclusion

Justice Lortie is correct in stating that breathalyzers are not infallible and that mistakes can be made. The problem is that such errors are not always detected immediately, and hence there are gaps in the legal framework created by Bill C-2. Whatever flaws may be found in the legislation, however, the Canadian government and community leaders should never rest until an honest, legal, and workable solution is found to keep drunk and drug-impaired drivers from killing people on the highways. The constitutional vulnerabilities of Bill C-2 — including questions about what truly constitutes "probable cause," the challenges of detecting drug impairment alongside alcohol, and the reliability of breathalyzer analysis — can be addressed over time through compromise among legislators, legal experts, and the judiciary. Canada is heading in the right direction in its campaign to stop impaired driving, but must take care not to trample on the rights of innocent persons in the process.

Works Cited

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Hales, Dianna R., and Lara Lauzon. An Invitation to Health. Cengage Learning, 2009.

McGuire, Fraser, Meghan Dawe, Kevin D. Shield, Jurgen Rehm, and Benedikt Fischer. "Driving under the Influence of Cannabis or Alcohol in a Cohort of High-Frequency Cannabis Users: Prevalence and Reflections on Current Interventions." Canadian Journal of Criminology and Criminal Justice, 53(2), 2011, pp. 247–259.

Millan, Luis. "Quebec Rulings Declare Rules on Impaired Driving Unconstitutional." Law in Quebec, 2011. Retrieved October 2, 2011, from http://lawinquebec.wordpress.com.

Ministry of Transportation — Ontario. "Consequences of Drinking and Driving." 2010. Retrieved October 1, 2011, from http://www.mto.gov.on.ca/english/safety/impaired/.

Pitel, S., and R. Solomon. "Estimating the Number and Cost of Impairment-Related Traffic Crashes in Canada: 1999 to 2008." MADD Canada, 2011. Retrieved October 1, 2011, from http://www.madd.ca.