I. Why a Review is Needed
II. Ensure the law can and will be enforced.
III. Sanctions must protect society and reduce recidivism.
IV. Education and public awareness are critical.
V. References
I. Why a Review is Needed
A. Impaired driving is one of Canada's greatest social problems.
Impaired driving causes over twice as many deaths in Canada as homicide and far exceeds violent assault as a cause of serious injuries. An impaired driving incident does not represent an isolated error in judgement. It takes between 200 and 2,000 repetitions of drunk driving to produce one arrest. The Canada Safety Council estimates there are at least 16 million incidents of drunk driving every year in this country.
Of the 3,064 fatalities on Canadian roads in 19971, an estimated 40 per cent were alcohol-related. This represents over 1,200 deaths. In 1997, police laid over 84,000 charges2 for impaired operation of a vehicle. In 1994, convictions for impaired driving with a blood alcohol concentration (BAC) over 80 mg% resulted in 14,118 prison sentences (median 21 days, longest sentence 1,825 days).3 This represents a huge human and financial cost to Canadians.
B. The 1985 amendments were ineffective.
The impaired driving sections of the Criminal Code were last amended in December 1985. Although impaired driving charges have dropped significantly since that time, a study by the Traffic Injury Research Foundation (TIRF) found no evidence that this reduction is related to the 1985 amendments.
The ineffectiveness of the amendments was attributed to: lack of public awareness; inadequate implementation; unexpected counterproductive effects; and an emphasis on harsh penalties without considering the certainty and swiftness of their application. Based on these findings, the Canada Safety Council has been in the forefront of organizations calling for a review of the law, including public statements, correspondence with federal government officials and elected representatives, and the organization of a stakeholder consultation on the issue.
The Canada Safety Council urges the Standing Committee on Justice and Human Rights to make the law more effective by ensuring that it can and will be enforced, and that sanctions will be applied.
Public health and safety not emotion or political expedience must be the purpose. Amendments must reflect the reality of this social problem. They must be based on objective research and proven countermeasures, with the objective of protecting the public and reducing recidivism.
Impaired driving is a complex problem. It will not be solved simply by amending the Criminal Code. The Canada Safety Council advocates a multi-faceted approach, including regulation (federal and provincial), enforcement, public awareness, sentencing and rehabilitation. This Council has long maintained that public resources dedicated to control and address this problem are inadequate when weighed against the threat posed by impaired drivers.
II. Ensure the law can and will be enforced.
Driving While Impaired (DWI) charges across Canada dropped by 22 per cent between 1990 and 1994. Yet research shows that the incidence of impaired driving was in fact increasing in this period. A recent survey released by Transport Canada and the Canadian Association of Chiefs of Police (CACP) suggests front-line officers are laying fewer charges because of difficulties in enforcing the law as it now stands.4
The law must facilitate the job of the police, respecting the rights of the accused while recognizing the right of the public to be protected against drunk drivers.
Research has repeatedly shown that perception of apprehension is a very effective deterrent. If people believe they will be caught, they are far less likely to offend. Visible, effective enforcement has proven without a doubt to be critical in the fight against impaired driving.
Recommendations
1. Enable the courts to convict the guilty and uphold the legality of DWI countermeasures.
A. Eliminate loopholes and legal technicalities.
It is reliably estimated that from 20 to 40 per cent of DWI charges are dismissed or reduced. The Crown may accept a plea of guilty to a lesser charge such as careless driving to keep the offender off the road. This situation puts the public at serious risk from unconvicted offenders who continue to drive impaired. The defenses being accepted must be examined, including drunkenness as a defense.
B. Consider potential Charter challenges.
Roadside spot checks reduce the number of drunk drivers on the road. According to a study in the Journal of Studies on Alcohol published by Rutgers University, for every $1 million spent on enforcement, the community saves about $7.9 million. The only Canadian data were from a BC pilot project of province-wide sobriety testing, which was found to have a strong deterrent effect. During the five-month experiment, DWI charges dropped sharply. However, they returned to their previous levels when the sweeping program was discontinued.5
On October 13, 1998, the Ontario Court of Appeal put on hold its decision on the legality of a provincial law passed in November 1996. That law removes drivers from the road immediately and suspends their licenses for 90 days if they blow over the legal limit or refuse to give a breath test. It is being challenged on the basis that it violates the Charter of Rights and Freedoms. In the past, courts have upheld the legality of measures to reduce impaired driving, such as RIDE and STEP programs, recognizing the right of the public to be protected against drunk drivers. The Canada Safety Council has expressed concern that a decision to overturn this law will create a serious setback to the national fight against impaired driving including the use of roadside sobriety testing and certain administrative sanctions.
2. Enforce the current 80 mg% BAC limit in the Criminal Code; do not lower it.
Most impaired drivers killed in car crashes have BACs of at least 150 mg%, close to twice the current limit. Many of these are hard core repeat offenders. The risk of impairment leading to crash involvement begins to increase exponentially beyond the 80 mg% level.
While impairment begins with the first drink, no benefit has been shown in criminalizing persons with a BAC under 80 mg%. Reducing the BAC limit would also have serious economic consequences on the hospitality industry (although that is not a safety issue). Experience in European countries reveals that lowering the BAC from the established legal limit does not reduce alcohol-related collisions. Statistics show that for most people whose BAC is below 80 mg%, their collision involvement rate is not significantly higher than non-drinking drivers.
First and foremost, the government must ensure the current BAC can be and is enforced. Returning to an era of prohibition is no solution to the impaired driving problem.
3. Examine allowing the use of state-of-the-art technology.
As it now stands, the law does not allow police to take advantage of new technology. E.g.:
- Digital roadside breath screening devices can now provide very accurate, numeric readouts. However, the law does not recognize their results as admissible in court.
- Secure mobile communications are often available on-site; yet the law still requires police to bring the suspect to the station for private access to legal counsel.
4. Amend reasonable and probable grounds for alcohol testing.
There are occasions when an enforcement officer who wishes to administer a roadside breath test or take a subject to the station to test for alcohol may not have the grounds to do so.
Involvement in a crash which results in serious injury or death should be accepted as grounds to request a breath sample / blood sample for testing. This change would save time and administration for officers and the judicial system, and would avoid the need to apply for a bench warrant for a blood sample from injured drivers transported to the hospital.
5. Facilitate the requirement for a breath test within two hours of apprehension.
The first test of the accused on an approved alcohol breath testing device must be conducted within two hours of the time they were stopped in their vehicle. External factors can make adhering to the two hour limit difficult. The time required to reach the police station and to contact counsel are among the difficulties enforcement officers face regularly.
Although tests administered after the two-hour limit are admissible, they must be accompanied by the testimony of a forensic expert who can extrapolate the BAC reading back to the time the subject was originally stopped. This can be expensive and time consuming for both the enforcement agencies and the judicial system.
Possible solutions include: allowing the results from the roadside screening devices as admissible in court (Recommendation #3 above); and allowing the officer to administer the approved alcohol breath testing device immediately upon arrival at the police station, before the suspect contacts legal counsel, with the results admissible as evidence only after the accused has contacted counsel. (Counsel cannot advise a client to refuse the test.)
Simply having a law on the books is useless and counterproductive unless that law is strictly enforced and upheld by the courts.
The CACP-Transport Canada survey cited above found that DWI ranks fifth in priority among 15 offenses, up from eighth in 1981. We are encouraged by this. DWI is a priority for most police management, but human resources are inadequate. In addition to a law that is enforceable, policing agencies require adequate resources, including training, personnel and equipment.
III. Sanctions must protect society and reduce recidivism.
Currently, Canada has some of the most severe penalties in the world for persons convicted of impaired driving. In some countries, driving while impaired and impaired driving in excess of the legal limit are not considered criminal offenses if there is no injury or fatality.
The most serious danger to society is the chronic DWI offender. High-BAC drivers represent about one per cent of the cars on the road at night and on weekends. Yet they account for nearly half of all drivers killed at those times. Drivers with a BAC of 150 mg% and higher are over 200 times more likely to be involved in a fatal crash than non-drinking drivers.
These hard core drinking drivers share several characteristics:
- They drink frequently, and often to excess. Many are alcohol dependent.
- They repeatedly drive after drinking.
- When they drink and drive, their BAC is two to three times the legal limit.
- Many have previously been convicted for impaired driving and have driven while suspended.
- They resist changing their behaviour, and are insensitive to anti-drinking-driving campaigns.
The hard core drinking driver presents a complex and resistant safety challenge which calls for a combination of tactics. To protect Canadians from death and injury, sanctions must target these individuals with sentences that will prevent them from continuing to drive impaired.
Recommendations6
6. Assess and treat DWI offenders for alcohol problems.
A person charged with impaired driving for the first time will have driven impaired hundreds of times. If the offender is found to have a problem with alcohol, treatment should be made a condition of license reinstatement. Until the alcohol dependency is resolved, the impaired driving behaviour will likely continue, further endangering the public.
7. Consider BAC level in sentencing.
Currently, offenders with a BAC just over the legal limit are subject to the same sanctions as those with BACs in access of 200 mg%. Yet the high BAC driver poses a risk to the public several hundredfold higher.
Australia and some European countries have introduced sentencing systems which relate the type and severity of sanctions to the BAC level of the offender. Offenders with high BACs may be subject to higher fines, longer prison terms, mandatory treatment, longer licence suspensions, and/or technological countermeasures such as ignition interlock. The application of a tiered-BAC sentencing system must be seriously considered.
8. Examine sentencing options.
The purpose of sentencing must be to prevent the offender from continuing to drive impaired.
A common characteristic of many hard core drinking drivers is that they are not deterred by the threat of punishment. Increasing the severity of penalties (e.g. lengthening incarceration terms) will therefore not serve as a deterrent to these individuals. The best deterrent, as previously noted, is effective enforcement.
Research shows that long imprisonment without other remediation produces either no significant impact, or a higher number of future accidents and convictions. Very brief incarceration, however, appears to reduce recidivism with first-time offenders.
The following sanctions have shown promise in reducing the chances an offender will continue to drive impaired. Their use within the Criminal Code should be examined. If not incorporated into the Criminal Code, their use, for example, in provincial jurisdictions, must be supported by federal law. (See Recommendation 2.)
A. Alcohol ignition interlocks
These devices prevent a vehicle from starting unless the driver provides an acceptable breath sample. When used after a period of license suspension they have been shown to prevent a return to drinking and driving among high-risk DWI offenders.
B. Alternatives to incarceration
Electronically monitored home confinement and intensive supervision probation have been shown to reduce recidivism. These penalties are less costly than incarceration (which averages $40,000 per year for an adult inmate), and also provide more opportunities for rehabilitation.
C. Restorative justice approaches
Victim-offender mediation, community service (such as involvement in anti-drinking-driving programs), and other sanctions which focus on reconciliation and healing must be considered. In a well-publicized 1996 case, a Windsor, Ontario youth who killed two friends in a DWI incident was sentenced to 750 hours of community service, speaking over several months to 8,300 students in a program that included the father of one of his victims, police and the car itself, with the objective of preventing another similar tragedy.
IV. Education and public awareness are critical.
To be effective, any amendments require strong support from policing agencies, the criminal justice system and the public. Without an investment in education and awareness, simply making changes to the text of the law is unlikely to bring significant benefit.
Recommendation
9. Provide resources, financial and otherwise to ensure the law is properly understood and implemented.
A. Enforcement
Police officers are the first line of defense against impaired driving. Training is needed to ensure they fully understand the law and place a high priority on its enforcement.
B. Public awareness
The 1985 amendments had little impact because the public was not aware of the changes. If amendments are made after this review, resources must be provided to ensure the public is aware of the changes and their significance.
C. Courts
Over half of officers responding to the CACP-Transport Canada survey felt that Crown Attorneys were not adequately prepared for DWI cases. This points to a need to educate Crown Attorneys about the existing law and any forthcoming amendments.
V. References
1. 1997 Canadian Motor Vehicle Traffic Collision Statistics (TP 3322), Transport Canada
2. Traffic offenses, Statistics Canada
3. Roberts, J.V. and Birkenmayer, A. (1997). Sentencing in Canada: Recent trends. Canadian Journal of Criminology, Vol. 39, No. 4, October 1997
4. Jonah, B. et al. (1997) Front-line police officers perceptions and attitudes about the enforcement of impaired driving laws in Canada. Publication # TP13161 E, Transport Canada, Safety and Security, Road Safety
5. Miller, Ted R., Galbraith, Maury S. and Laurence, Bruce A. (1997) Costs and Benefits of a Community sobriety Checkpoint Program. Journal of Studies on Alcohol, July 1998
6. Traffic Injury Research Foundation (1997) The Hard Core Drinking Driver: Prevention Programs. Backgrounder commissioned by the Canada Safety Council
