Coping With a DUI Allegation in Canada

Gregory Lafontaine for The Lawyers Weekly

In Canada, "drinking and driving (DUI)" or impaired driving is a criminal offence.

While it arises out of the operation of a motor vehicle, an allegation of a criminal driving offence in Canada is qualitatively different from more routine driving infractions, such as "speeding" and "failing to signal a turn". These less serious, garden variety driving infractions are not "crimes". Each province in Canada is responsible for legislation governing the conduct of motorists on public roadways. The drinking and driving-related offences are found in the Canadian Criminal Code along with the entire spectrum of crimes ranging from simple assault and allegations of shoplifting, which are captured by the offence of theft, to such heinous crimes as murder. The Criminal Code is federal legislation. It applies across Canada.

In Canada, a conviction for drinking and driving will result in a criminal record. A criminal record can have serious consequences for employment prospects. A criminal record can also have severe repercussions on the ability to travel internationally, increasingly so in a much more security conscious world, which is also a world of increasingly effective information sharing through advancing computer technology.

The Criminal Code in Canada makes it possible that in a drinking and driving case that did not involve any injuries or even a minor traffic accident, a first offender could still be sentenced to jail. While the risk of a jail sentence in Canada must be taken seriously, it is only one of the possible very serious negative consequences that could result from a conviction.

If the Canadian Judge does not send the convicted DUI driver to jail, the sentence will most certainly include a substantial fine. Compared to the other consequences, most Canadians would view the fine as the least of their concerns.

With some minor deviations that are the product of the licencing laws of the individual provinces in Canada, a conviction for drinking and driving will result in a loss of driving privileges for at least a year. In Ontario, the licence will not be automatically returned on the expiration of the one-year (or longer) period. Rather, the convicted driver in Ontario will have to first successfully complete a provincially-approved remedial driving program, at their own personal and not insignificant expense, before their driving privileges will be reinstated.

Once the period without driving privileges comes to an end, the convicted DUI driver will receive a reinstated licence that comes with "strings attached". In fact, the reinstated licence will have an expensive, cumbersome and, to most Canadians, very embarrassing device attached. It is known as the "Interlock Ignition Device". This device, which has installed in the driver's vehicle, ensures that the vehicle cannot be started until after the driver provides a breath sample into the device. If the device registers the presence of any alcohol on the prospective driver's breath, the device will not permit the car to be started. If the driver's breath is "alcohol free", the device will allow the vehicle to be started.

In Canada, if you have been charged with a drinking and driving crime, except in cases of DUI accidents that cause serious bodily harm or death, it is likely you are facing either one or two criminal offences: "impaired driving" and/or "driving over 80".

The offence of "impaired driving" is directed at the effect of intoxicants on the ability to drive. A prosecution is generally based on evidence from Canadian police officers in that is independent of the results of breath tests administered at the police station. For example, the evidence might be that the driver smelled of alcohol, was unsteady on her feet and had slurred speech coupled with observations of bad driving that included weaving from side to side and maneuvers that displayed slow reaction time.

Gregory Lafontaine practises at Lafontaine & Associates in Toronto 

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