Canada's Blood Alcohol Laws - an International Perspective
Prof. David Paciocco, Faculty of Law, University of Ottawa
Executive Summary
This study was commissioned by the Canada Safety Council in response to claims that Canada should follow the lead of other countries and reduce its BAC limit in the Criminal Code to .05 (50 milligrams of alcohol in 100 millilitres of blood) from the current 0.08 (80 milligrams of alcohol in 100 millilitres of blood). It compares Canada's blood alcohol legislation with similar laws in countries with similar legal and political traditions from the European Union, other western European countries, United States, Australia and New Zealand.
In the US and Australia, the states (not the federal government) have the jurisdiction to pass BAC laws. Thus, although Canada is compared with 20 other countries, there are 77 independent jurisdictions - 18 unitary states, the 51 American jurisdictions, and the 8 Australian jurisdictions. Most of the comparison countries start to impose sanctions at .05, but only 1/4 of the jurisdictions have .05 BAC limits; the rest use BACs of 0.08 or higher.
The approach to dealing with illegal BACs varies from jurisdiction to jurisdiction. Of the 20 jurisdictions with .05 BACs, only four have a provision to imprison persons with BACs under .08.
Comparing laws internationally is complex and difficult because the nature of each country's legal system is unique. All countries examined use established BAC levels either as being per se illegal, or as presumptive evidence of impairment. However, permissible alcohol levels vary widely internationally and among the studied jurisdictions - apparently from zero in the Czech Republic, for example, to 0.10 in almost half of the American states.
Criminal and Regulatory Responses
When making comparisons, one must consider whether the legislation being compared is criminal, or administrative or regulatory. Even in jurisdictions which take a criminal approach, some treat BAC offences more severely than others. The following are general distinctions between crimes and administrative or regulatory offenses.
1. Stigma
Conviction for a criminal offence carries a criminal record, which can jeopardize membership in professions, international mobility, immigration, the ability to be "bonded," and employment. By contrast, individuals convicted of regulatory offences do not have a criminal record, the conviction tends to carry a lesser stigma, and entails fewer collateral consequences.
2. Police and Pre-Conviction Powers
Even before conviction, the police possess greater powers of arrest and detention when dealing with criminal offences. Prosecutors are empowered for criminal cases to seek the imposition of bail conditions or even pretrial incarceration. These powers do not exist with regulatory or administrative offences.
3. Penalties
Although individuals convicted of regulatory offences can, in some cases, receive jail terms or significant fines, speaking generally those convicted of crimes face more serious penalties, with a greater risk of loss of liberty.
BAC Laws in Canada
Canada uses both criminal law and an administrative response to driving with impermissible BACs. The administrative response varies, but in most provinces and territories it kicks in at BACs exceeding .05. Drivers with provincially impermissible BACs are issued temporary suspensions. Among the 13 jurisdictions, 10 have adopted BAC licence suspension legislation at levels below .08. Only Alberta, Quebec and the Yukon Territories have no legislation prohibiting driving with BACs lower than .08.
Anyone convicted of a first offence under section 253(b) of the Criminal Code of Canada for driving or being in care or control of a motor vehicle with a BAC of more than .08 is subject to strict sanctions. These include: a minimum fine of $600; a minimum driving prohibition of one year (with a maximum suspension of three years possible); and a possible prison sentence. For subsequent offences, incarceration is required, and minimum driving prohibitions increase to two years and three years respectively, with the possibility for third offences of a lifetime prohibition.
None of the 20 comparison countries imposes mandatory minimum sentences on first offenders as Canada does.
Criminal and Administrative Responses Internationally
Due to the nature of the law in individual countries, determining whether the offence is considered criminal or administrative is difficult. To facilitate comparison, the following information is based on a hypothetical first offender. For the sake of simplicity, a regime is identified as criminal in this study if it involves the possibility of jail, and administrative if it does not.
Of the 12 European countries that use a .05 BAC, only one uses a criminal law approach at .05, while only two use a criminal law approach at BACs below .08. When Australia is added to the mix, of the 20 comparison jurisdictions that have .05 BACs, only four use a criminal law approach at .05, while only eight of 20 use a criminal law approach at BACs below .08.
Jail is only possible at readings of .06 in four of the 20 comparison jurisdictions. These four jurisdictions also use driving suspensions.
Neither jail, nor driving suspensions are used at BACs of .06 in six of the 20 jurisdictions. These six jurisdictions treat low BAC violations as the functional equivalent of ticketed offences.
Of the 10 jurisdictions that use fines and driving suspensions, plus Norway (which relies exclusively on suspensions) the suspensions tend to be short, ranging from 15 to 30 days up to 6 months. Only three jurisdictions have longer suspensions of up to 12 months.
| Comparison Point |
International Jurisdictions (77) |
Canada |
| A. Is driving with a BAC of .09 an offence? |
YES, except in 22 of the jurisdictions, all American. |
YES |
| B. Do fines, jail and licence suspensions apply at .09? |
NO in 45 jurisdictions.* |
YES |
| C. Is incarceration permitted for BAC offences at .09? |
YES in about half of the jurisdictions (39 of 77). |
YES |
| D. Are there minimum fines for blood alcohol offences? |
NO in 59 jurisdictions. |
YES. The fine in Canada is one of the highest minimum fines. |
| E. Do those convicted of driving over .09 lose their driver's licence or suffer driving prohibitions? |
YES in 43 jurisdictions
NO in 34 jurisdictions.* |
YES. Prohibition is required. Tied with four jurisdictions for longest mandatory driving disqualification. |
* Asterisk indicates the 22 American states in A are included.
Conclusion
While most of the comparison countries do use BACs of .05 in their legislation, most independent legal jurisdictions within those comparison countries do not. The approach to BAC law internationally is complex and varied. Countries and jurisdictions that have adopted .05 limits tend not to use criminal law approaches, which is what Canada would be doing by amending the Criminal Code.
Whether it is a good thing or not to adopt a .05 BAC in the Criminal Code of Canada is beyond the scope of this study. What is clear, however, is that it can be distorting rather than illuminating to attempt to make the case for moving to .05 in Canada by invoking foreign legislation.
Safety Canada, April 2002
Return to top of page
|
