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Ontario Analysis of MADD Report

In their 2016 Report to the Nation, Mothers Against Drunk Driving (MADD) rated states using a five star rating system to assess their laws to prevent drinking and driving.  While the exact measurement and weighting criteria were not provided, the five factors to be considered were as follows: ignition interlock use, sobriety checkpoints, administrative licence revocation, child endangerment and refusals.  An example of the weighting was given suggesting greater weight to ignition interlock and checkpoints as they are the two most effective ways to reduce fatalities and injuries.

In Canada, there is an interplay of legislation from both the federal and provincial levels which impact on drinking and driving law.  Criminal law is governed by federal statute administered by provincially funded prosecutors.  Highway safety law is generally in the realm of the province while vehicle safety standards are provided by a federal agency, Transport Canada.

In the province of Ontario, criminal charges are prosecuted by the provincial Crown Attorney’s Office while the federal government actually writes the Criminal Code which provides the offences.  Other federal acts are prosecuted by federal prosecutors or agents of the Public Prosecution Service of Canada but criminal matters are prosecuted by provincially hired lawyers.

The criminal law in Canada recognizes the following drinking and driving offences:

  1. impaired driving where a person’s ability to operate a motor vehicle is impaired to even a slight degree by alcohol, a drug or a combination
  2. over 80 mgs where a person operates a motor vehicle with a blood alcohol concentration exceeding 80 mgs of alcohol in 100 ml of blood, or
  3. refusing a valid demand by a police officer to provide breath, blood or urine samples including at the roadside, at the police station or physical coordination tests including the standardized field sobriety tests (SFST) at the roadside or the drug recognition exercises (DRE) at the station, thus criminalizing refusal to provide screening or evidentiary testing

Provincial law in Ontario recognizes and provides suspensions of driving privileges for the above offences along with a number of other driving offences as a result of conviction under the Criminal Code but also provides separate punishments for actions including, but not limited to:

  1. over 50 mgs where a person operates a motor vehicle with a blood alcohol concentration exceeding 50 mgs of alcohol in 100 ml of blood
  2. blood alcohol concentration over zero for novice drivers or persons under 22 years of age
  3. refusing to provide a sample as similar to above

In assessing a jurisdiction’s rating, the first heading MADD considers is the use of ignition interlock devices for anyone convicted of drunk driving for a period of “clean” starts.  Any of the above noted criminal offences in Ontario require an individual to install an interlock device for between 9 months to life depending on how many offences they have committed.  It is important to understand that reciprocal legislation exists with New York and Michigan so offences there or anywhere else in Canada will be held against a person in assessing the ignition interlock period.

The second heading is Sobriety Checkpoints.  In Ontario, the Highway Traffic Act provides authorization for police to stop any driver to check sobriety amongst other things.  This means that police can stop anyone at random and while this has been held to violate a person’s rights under the Canadian Charter of Rights and Freedoms to be free from arbitrary detention, the violation has been held to be justified as a reasonable limit under the Charter.  Reduce Impaired Driving Everywhere (RIDE) stops are frequent and exist both as fixed stops and roving, meaning that visibility of such campaigns is significant.

The third heading MADD reviews is Administrative Licence Revocation.  In Ontario, this occurs in all of the criminal matters listed above as well as for the listed provincial offences.  Failing or refusing to participate in SFST tests is penalized both criminally and administratively in almost the same ways as blowing over.  Administrative suspensions range from 3 days for the first time a person is found with a BAC above 50 mgs to 90 days for anyone found over 80.  Interestingly, for an alcohol related impaired driving charge without reading or DRE testing and without a refusal, a person’s licence is not suspended as no objective test (i.e. breath testing or DRE testing) was failed or refused.  This may be changed in upcoming legislation as MADD is pushing for this.

Child endangerment is the fourth heading.  This is not statutorily enshrined in Canada.  Typically, judges do take this into account in sentencing as an aggravating feature but it is not an absolute rule.

Refusals are the final heading and are very much treated as bad, if not worse, than providing samples or participating in SFST or DRE tests.  Further, there is a presumption at law that a person refusing to cooperate is impaired.  While rebuttable, it is often difficult to overcome and can lead to a person being convicted of multiple offences and thus multiple penalties will attach.

Taking this into account, it would seem that Ontario would rate a 3.5-4 star rating from MADD given the one loophole involving administrative suspensions and the lack of a child endangerment law.  Ontario governments have long followed much of the advice of MADD Canada, the Canadian arm of the American led group but have not yet reached all of the milestones they seek.  Often, it seems that provincial administrative action attaching as a result of criminal conviction can be more stringent than the existing criminal law.  This is often a result of provincial legislatures, such as Ontario, being quicker and more nimble in responding to such a lobby than their federal counterpart who must represent a wider and more diverse constituency.

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