Blood Alcohol Limits: Canada and the World
The federal government appears set to re-enter the longstanding debate about whether to reduce the blood alcohol concentration (BAC) for impaired driving in the Criminal Code of Canada. The permissible BAC limit in the Criminal Code is .08 (80 milligrams of alcohol in 100 millilitres of blood).Some advocate a lower criminal limit of .05 (50 milligrams of alcohol in 100 millilitres of blood). They argue that Canada lags behind other countries in its fight against impaired driving, and should follow an international trend to legislate a .05 limit.
Traffic Code or Criminal Code
In Canada, two levels of government deal with impaired driving. The federal Criminal Code is applied at BACs of .08 and over. In addition, nine of Canada’s 13 provincial and territorial jurisdictions impose administrative licence suspensions on drivers whose BAC is under .08. Those drivers immediately lose their licence for four to 24 hours, longer with subsequent violations.
Driving with a BAC of .05 is not permissible under the traffic acts in most provinces and territories. The real issue is whether drivers should be criminalized if their BAC is under .08.
“The priority must be to prevent alcohol-related crashes, not just to punish drinking drivers,” says Emile Therien, president of the Canada Safety Council. “Most drivers involved in alcohol-related fatal crashes have BACs over .15. That’s the group the government should focus on.”
Therien notes the absence of evidence that charging low-BAC drivers criminally would prevent more deaths and injuries than continuing to deal with them under provincial and territorial traffic regulations.
What is the international trend?
Is there an international trend to criminalize drivers at the .05 level? In 2002 the Canada Safety Council commissioned a study to provide a credible, detailed analysis of how Canada's blood alcohol laws compare with other developed countries. The Council wanted a legal expert to examine Canada's blood alcohol limits objectively in the international context.
Law professor David Paciocco, from the University of Ottawa, compared Canada's blood alcohol legislation with similar laws in countries which have similar legal and political traditions. In Canada’s Blood Alcohol Laws - an International Perspective he found that approaches to BAC law internationally are complex and varied. The report was updated in March 2006 to determine whether recent developments affect its conclusions.
“There have been changes,” says Professor Paciocco, “but they do not alter the conclusions in my original report. Countries and jurisdictions with .05 limits still tend not to use criminal law approaches, which is what Canada would be doing by amending the Criminal Code.”
Based on his analysis, Paciocco seriously questions arguments based on trends in foreign legislation to justify changes in Canada's blood alcohol law. “If international trends are going to be used at all,” he suggests, “it would be more relevant to ask if Canada’s practice of not using criminal law for drivers under .08 is in line with the trend. Definitely it is.”
Of the 77 jurisdictions examined in the report, only eight, or slightly over 10 percent, see fit to treat .05 as a crime.
Canada Already Very Strict
A comparison of potential penalties at .09 for first offenders shows Canada treats BAC offenders very harshly compared with other countries. Canadian law allows for the highest possible maximum prison sentence - five years. The next longest possible prison sentence, even in the United States where jail is more widely used, is two years.
A first offender in Canada at .09 would likely receive the minimum sentence of a $600 fine, which is significant by international standards. The Canadian suspension for a first BAC offender ranks among the strictest in the world. Our Criminal Code sanctions for .09 BAC offenders are already stricter than most jurisdictions internationally.
If the Criminal Code were to simply to substitute .05 for .08, it would treat drivers and those in care and control of motor vehicles at that level the same as it currently treats .09 BAC offenders. That would make Canada the harshest regime among comparative nations for .05 offenders.
"Quite simply,” concludes Professor Paciocco, “if we change the .08 BAC in the Criminal Code to .05, we will not be doing so to keep up with the international Joneses, because .05 is not the standard of criminality internationally. We will instead be joining the minority of nations who criminalize this BAC, and imposing what would be the most onerous sentencing regime among comparative countries.”
Dealing with Lower-BAC Drivers
“It is important to send a strong message to drinking drivers with BACs below the .08 level,” says Therien. “We want to prevent them from causing harm and prevent them from joining the high-BAC group, but this can be done very effectively outside the Criminal Code.”
The Canada Safety Council advocates harmonization of provincial and territorial regulations, as well as enhanced intervention programs, enforcement and public education. The Council also recommends treating administrative licence suspensions in a similar way to traffic violations.
Therien points out that Canada is making progress in its fight against impaired driving. In 2003, road crashes involving a driver who had been drinking took 902 lives, down 30 percent from 1995, when 1,296 motor vehicle deaths involved a drinking driver. He says over-use of the Criminal Code could compromise the effectiveness of regulations which have contributed to this progress.
Download the 2006 Update Report (PDF).
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