Drunk Driving Decriminalization: A Step in the Right Direction (A Student’s Perspective)

Although there is a trend of declining rates of drunk driving in Canada,<1> hundreds of people die from alcohol-related impaired driving incidents each year. Drunk driving continues to be a leading criminal cause of death in Canada, and the nation’s drunk driving rate is the worst among wealthy countries.<2> Two Canadian provinces are addressing this problem through the decriminalization of drunk driving.

Alberta is set to have new legislation come into effect within the coming months that largely decriminalizes impaired driving. Bill 29, An Act to Reduce Cannabis and Alcohol Impaired Driving, received royal assent<3> and will likely be enacted in Alberta by May 2018. The legislation came about because a 2017 Alberta Court of Appeal case<4> struck down s. 88. 1 of the Traffic Safety Act.<5> This section allowed for the suspension of the license of a suspected drunk driver as soon as charges were laid and until the charges are addressed in court<6>. The new provisions under Bill 29 will allow for police officers to exercise their discretion as to whether or not they will criminally charge someone or apply administrative sanctions when someone is over the legal alcohol limit while driving<7>. Some of the administrative sanctions include immediate license suspension, vehicle seizure, remedial education, and participation in an ignition interlock program.<8>

Alberta’s legislative changes are similar to the model used in British Columbia, which has had provisions to decriminalize impaired driving in place since 2010.<9> British Columbia’s model includes impairment from alcohol and drugs. It allows for police officers to choose administrative penalties for first time impaired driving offenders who have not caused damage or injury.<10> The range and choice of penalties depends on whether an individual’s blood alcohol level is between 0 to 0.049 mg/100ml, is at or over 0.05 mg/100ml, or is at or over 0.08mg/100ml.

For the 0 to 0.049 range, which is below the legal limit, individuals in a Graduated Licensing Program can be subject to a 12 to 24 hour driving prohibition.<11> The penalties for the at or over 0.05 range increase depending on how many times a person is caught within a 5-year period.

For the first time someone is caught, they will have their driver’s licence seized, a 3 day driving prohibition, their vehicle may be impounded, they will have to pay for towing and vehicle storage costs, they will have to pay a $200 penalty, and will have to apply to have their driver’s licence reinstated, which comes with a fee.<12> Second and third time offenders have the same types of restrictions but have longer driving prohibition times, higher value penalties, may have to take a Responsible Driver Program, and may have to participate in an Ignition Interlock Program, which requires the driver to provide a breath sample before the car will allow them to drive.<13>

Drivers who have a breath sample at or over the 0.08 range may receive a 90 day driving prohibition, have their vehicle impounded for 30 days, have to pay a $500 fee, and may be referred to the Responsible Driver and Ignition Interlock Programs.<14> At this range a police officer may proceed with criminal charges, which can potentially result in having to pay a $1000 fine, a driving prohibition, a referral to the Responsible Driver and/or Ignition Interlock Programs, and, most severely, jail time. The main feature of British Columbia’s model is that it allows for various combinations of penalties for drivers at various blood alcohol range levels. In many provinces, Criminal Code charges lead to penalties that include fees and mandatory program attendance, but there is a lack of flexibility in deciding whether or not to charge someone criminally.

There are a number of perspectives and concerns surrounding the decriminalization of drunk driving. One of the main questions is whether criminal sanctions will reduce recidivism. If the primary objective of policing impaired driving is to prevent it from happening in the future, the prospect of serving jail time seems like an effective deterrent. That being said, the concept of deterring drunk driving by putting people in jail is problematic because it would not be feasible to put every drink driver with a blood alcohol level at or above 0.08mg/100ml in jail. Canada’s jails are currently severely overpopulated, and adding drunk drivers would continue to strain the jail system. This tension is exacerbated if we consider incarceration for less severe blood alcohol concentrations. British Columbia’s model suggests that not all drunk drivers need to go to jail to decrease drunk driving rates.

After the decriminalization of drunk driving came into effect in British Columbia, there was a noticeable decrease in deaths caused by drunk drivers within 2 years.<15> Under this model, more drunk drivers were discovered and penalized, but this did not necessarily mean that higher numbers of drunk drivers went to jail. More drunk drivers were identified and treated with programs that are focused on rehabilitation and recidivism prevention than retribution. Mothers Against Drunk Driving supports British Columbia’s impaired driving model because it is supportive of not just punishing offenders, but rehabilitating and educating them so that they will never drive drunk again.<16>

From an implementation perspective, having administrative penalties allows for drunk driving to be dealt with more swiftly than by going through the criminal court system. It can easily take years for a drunk driving case to be heard in court, and prosecuting criminal cases is costly. “An administrative regime induces quicker pleas, faster suspensions, and equivalent penalties.”<17> Criminal cases that go to court would be subject to lower conviction rates compared to going through an administrative regime due to possible evidential concerns, a beyond a reasonable doubt evidential standard of proof, and complications from court delay that can lead to the possibility of charges being stayed. An administrative system for processing drunk driving penalties would avoid these concerns and leave more time and resources for trying other criminal cases in courts.

There are a number of criticisms of the decriminalization of drunk driving. One major concern is about the effect of the loss of stigma attached to an offence if it is not fully criminalized. If offending is less likely to result in jail time, there is less risk with the prohibited behaviour, which may incentivize impaired driving. Because drunk driving would not be swiftly met with criminal penalties, it may not be taken as seriously as it would be if it were fully criminalized. An administrative system of processing fines and other aspects of penalties for drunk driving could create the impression that drunk driving is not a criminal or illegal matter that is taken seriously by the state. The public should be educated to understand that an offender will not “get away” with drunk driving by simply paying a fine, as is the case with a speeding ticket.

Another concern about decriminalization is the significant amount of discretion that the administrative penalty model gives police officers, who act like judges by imposing penalties without having to convince anyone else that the accused is guilty or meet any standards of proof before imposing a penalty. “The police officer at the roadside becomes judge, jury, and executioner, leaving anyone who wants to challenge the crippling fines and licence suspensions with fewer options.”<18> People may be more likely to admit that they are guilty of drunk driving to a police officer than risk facing a judge in court to prove their case. They would also have to meet a higher evidential standard with the risk of being criminally convicted and getting a criminal record. This disregards the notion that an individual is innocent until they are proven guilty. People who have been stopped by the police to be screened for drunk driving may receive less robust right to counsel protections because they are not being criminally charged.

With Alberta becoming the second province in the country to decriminalize drunk driving, it is likely that other provinces will soon follow suit. Having both a criminal and administrative regime for penalizing drunk drivers appears to be an effective way to detect, penalize, and potentially, treat drunk drivers. The focus on rehabilitating drunk drivers and preventing them from driving drunk in the future should continue to be the main focus of lawmakers. While British Columbia includes driving high in its impaired driving model, other provinces may not be so quick to implement both a drunk and high impaired driving model. There are still many concerns about detecting drugs in drivers, and many provinces are still developing the means of response to drug impaired drivers when marijuana becomes legalized later this year.

The decriminalization of drunk driving has many pros and cons that will contribute to a great amount of debate in this country as provinces continue to look for ways to deter impaired driving. The introduction of an administrative means of dealing with drunk drivers as a complement to the traditional criminal route creates an effective and streamlined hybrid model that appears to be necessary for timely administration of justice. The decriminalization of drunk driving is a step in the right direction

Endnotes

1 Douglas Quan, “Canada’s Drunk-Driving Death Rate Worst Among Wealthy Countries, U.S. Study Finds”, National Post (12 July 2016), online: <http://nationalpost.com/news/canada/canadas-drunk-driving-death-rate-worst-among-wealthy-countries-u-s-study-finds>.

2 Ibid.

3 Legislative Assembly of Alberta, “Bill Status Report for the 29th Legislature- 3rd Session (2017-2018), online: <http://www.assembly.ab.ca/net/index.aspx?p=bills_statusreport&legl=29&session=3>.

4 Sahaluk v Alberta (Transportation Safety Board), 2017 ABCA 153.

5 Emily Mertz, “Alberta’s Top Court Strikes Down Provincial Impaired Driving Law”, Global News (18 May 2017), online: <https://globalnews.ca/news/3461825/albertas-top-court-strikes-down-provincial-impaired-driving-law/>.

6 Ibid.

7 Ibid.

8 Government of Alberta, “Drug- and Alcohol- Impaired Driving Legislation Changes”, online: <https://www.alberta.ca/traffic-safety-act-amendments.aspx>.

9 “Should Ontario Overhaul how it Charges Drunk Drivers?”, Global News, (5 January 2018), online: <http://www.cbc.ca/news/canada/ottawa/decriminalize-drunk-driving-madd-ontario-1.4473689>.

10 Ibid.

11 Government of British Columbia, “Driving While Affected by Drugs or Alcohol”, online: <https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/road-safety-rules-and-consequences/drug-alcohol>.

12 Ibid.

13 Ibid.

14 Ibid.

15 “B.C. Drunk-Driving Deaths Decline With Tougher Laws”, CBC News (28 December 2012), online: <http://www.cbc.ca/news/canada/british-columbia/b-c-drunk-driving-deaths-decline-with-tougher-laws-1.1134325>.

16 “Alberta Should Adopt B.C.’s Impaired Driving Rules, says MADD Canada CEO”, CBC News (17 August 2017), online: <http://www.cbc.ca/news/canada/calgary/alberta-impaired-driving-law-british-columbia-1.4250922>.

17 “Prutschi: Fighting Drunk Driving… by Decriminalizing It?”, Toronto Sun (3 January 2018), online: <http://torontosun.com/opinion/columnists/prutschi-fighting-drunk-driving-by-decriminalizing-it>.

18 Ibid.