Alcohol-related driving offences are vigorously prosecuted in Ontario, Quebec and many other provinces. To be sure, drinking and driving is a serious problem and can result in tragic consequences. This recent case is a reminder of just how problematic impaired driving can be. That said, in the vast majority of impaired driving prosecutions there are no injuries or even property damage. This article is not questioning the wisdom of the approach that police and Crown Attorneys have taken in recent years; suffice to say the police and Crown are aggressive in how they approach these cases.
One valuable tool in enforcing these kinds of cases is the ability to take away a person’s driver’s licence at various points in the proceedings.
In particular there are two points where your licence can or will be suspended.
Defining the Terms:
Before delving into this topic, it is important to know what we are talking about.
Suspension: a period of time when your licence is suspended by a provincial ministry of transportation, for example the MTO (Ministry of Transportation) in Ontario, or the SAAQ (Société de l’assurance automobile du Québec). A suspension only applies in a specific province, although if you have a licence from only that province, it means you don’t have a valid licence.
ADLS or Administrative Driver’s License Suspension: A type of suspension that is imposed administratively (i.e. not by a judge, or as a result of a finding of guilt).
Prohibition: a period of time when you are prohibited from driving by an order of the Court. This applies Canada-wide.
Note that it is technically possible to not be suspended, but to be prohibited; and possible to be suspended but not be prohibited. This article speaks about both kinds of driving restrictions.
ADLS / Administrative Driver’s Licence Suspension
A charge is an accusation. It does not mean you are guilty, but it means that the police have reasonable grounds to believe that you have committed an offence.
Although you are presumed innocent and cannot be declared guilty until a court has found you guilty beyond a reasonable doubt, that does not mean you are in the clear.
Driving is considered a privilege and not a right. On one hand, the time may soon come to revisit this concept since it is becoming more and more essential to have access to a car. But on the other hand, driving will always remain heavily regulated and with more options arising (UBER, or expanded public transportation) it remains to be seen whether this idea of driving being a privilege will change in the near future.
When you are charged with an alcohol-related driving offence, it is usually one of three offences:
- Impaired driving (by alcohol)***
- Over 80 mg
- Refuse breath sample (either on a roadside device, or at the station on a breathalyser)
*** Note that this article is not delving into issues of “impairment by drug” since the law is very much in flux in Canada and will be changing a lot over the next several months as the Courts interpret various provisions.
If you are charged with over 80 mg it means that a breathalyzer has determined your blood-alcohol content (also known as blood alcohol concentration) to be over the legal limit.
If you are charged with “refusal” or “failing to provide” a breath sample, it effectively means that you (allegedly) frustrated the police’s attempt to determine whether or not you were over the legal limit.
In both Quebec and Ontario, there is a suspension imposed for 90 days if you are charged with either of these two offences.
Since I am a “Canadian Legal Adviser” member of the Quebec Bar (and member of the Law Society of Ontario) I am not authorized to give legal advice on Quebec provincial (non-criminal) laws. However I can share the information that in Quebec, if you are over 80 but less than 160 mg of alcohol per 100 mL of blood, you will receive a 90 day suspension. If, however, you blow 160 or more, or refuse (thus depriving them of ever knowing if you were 160 or more) then you may not get your licence back even after the 90 days. This information can be found on the SAAQ’s Website about Quebec Administrative Suspensions.
In Ontario, it’s a bit more clear cut. If you blow over 80 (any amount) you are suspended for 90 days. This is the same if you are charged with refusal. Note that you are not suspended if charged only with impaired driving.
There are appeal rules, but let’s just say there are rarely viable reasons to appeal. You typically need to establish that you refused due to some medical condition (and the Canadian Medical Association isn’t keen on stepping up to the plate to establish this).
So even though you haven’t been found guilty of anything, your licence is suspended—not as a punishment, but as an administrative measure. Similar to how you need to pass an eye exam or get a minimal passing grade on the exam or pay your fees; you also need to not be accused of one of these crimes, or else forfeit your right to drive for 90 days. Your factual guilt (or innocence) doesn’t matter. Imagine this:
- January 1 you are charged
- January 2 a scandal is reported that the officer involved in your case has been discovered to have fabricated impaired driving charges
- January 10 you obtain video evidence proving your breathalyzer reading was below 80
Despite this, you would still serve out another 80 days of the administrative suspension.
If you are found guilty following a conviction you will receive a minimum 1-year driving prohibition. But you will also receive a 1-year driver’s suspension (minimum)
Stay tuned for a future article on a post-conviction suspension.