Modernizing the Transportation Provisions of the Criminal Code - Discussion Paper
The general approach of the criminal law has been to create a new offence to account for the greater harm caused by the same conduct (e.g. impaired driving, impaired driving causing bodily harm, impaired driving causing death) or to respond to particularly egregious conduct (e.g. dangerous driving (flight from police) and dangerous driving (street racing)). An alternate approach would be to have the only underlying offences with increased penalties for causing bodily harm or death.
Impaired and over 80
The reason that Parliament made driving with a BAC over 80 a criminal offence is that there is a scientific consensus that the ability to drive of every person at that BAC is impaired compared to when they are sober. Of course, 80 is not a red line with everyone at 79 being sober. In fact, some individuals are impaired at BACs well below 80 and they can be charged with impaired driving. However, a person cannot be convicted of both impaired driving and driving over 80 for the same occurrence.
Parliament might wish to consider reducing the number of offences to 7:
- Criminal negligence (including street racing)
- Flight from police
- Dangerous operation
- Impaired (including BAC equal to or over 80)
- Leave the scene
- Drive disqualified
Instead of creating separate offences where there is bodily harm or death, these could be addressed by increased penalties.
Currently, it is an offence to have a BAC that is over 80. It has been the practice to round down the BAC number produced by the approved instrument so that a reading of 89 would be rounded down to 80 in which case the person would not be prosecuted. Moreover, the result that is used in court is the lower of two results so that a person who, for example, blew 93 and 89 would not be prosecuted. Changing the offence to "equal to or exceeding 80" would result in these cases being prosecuted. There is no injustice to the driver since approved instruments report results conservatively.
What are your views on reducing the number of transportation offences to seven and setting the criminal BAC offence at 80?
The current penalties in the Criminal Code for offences involving vehicles have many anomalies. Only the impaired driving offences have mandatory minimum penalties of a fine for first time offenders and imprisonment for repeat offenders. Some driving offences causing bodily harm are punishable by up to 10 years imprisonment and others by up to 14 years. Dangerous driving causing death is punishable by up to 14 years while all other transportation offences causing death are punishable by up to life imprisonment.
The Standing Committee made two recommendations with respect to penalties:
Recommendation 3: The Committee recommends that tougher sanctions be introduced for repeat impaired drivers.
Recommendation 4: The Committee recommends that tougher sanctions be introduced for those drivers with a Blood Alcohol Concentration in excess of 160 milligrams of alcohol in 100 millilitres of blood.
In The Tackling Violent Crime Act, the mandatory prison terms for repeat impaired, over 80 and refuse offences were increased from 14 days to 30 for a second offence and from 90 days to 120 days for a third offence. These provisions came into force on July 2, 2008.
Parliament could be asked to increase the penalties for repeat offenders by:
- Making all transportation offences previous offences for one another rather than just the three impaired driving offences. For example, a person with a previous dangerous driving conviction would be treated as a second time offender if the person was previously convicted of an impaired driving offence and vice versa.
- Making the mandatory minimum term of imprisonment one year for a fourth offence and two years for a fifth offence
- Explicitly making repeat offenders eligible for Long Term Offender designation.
Death and bodily harm - maximum
Where there is a death all offences would have a maximum penalty of life and where there is bodily harm all offences would have a maximum penalty of 14 years.
Criminal negligence is the most egregious behaviour as it shows wanton and reckless disregard for the lives and safety of others. At present, there is no driving offence of criminal negligence unless it has caused bodily harm or death. A new simpliciter2 criminal negligence offence would reflect circumstances such as a driver going through stop signs and red lights at high speed. It would be "straight indictable" with a maximum of 10 years imprisonment, so that there would be no option for the charge to be prosecuted summarily. Unlike other offences, there would be no minimum but it is to be expected that the courts would impose higher penalties on those convicted of this offence than they would on persons convicted of the lesser and included of dangerous driving which can be prosecuted either on indictment or by summary conviction.
The Standing Committee was concerned by the problem of the high BAC driver. It wrote:
The Committee thinks that we can go further in targeting drivers with high BACs by introducing specific penalties for such drivers. The goal of such tiered penalties would be to prevent these drivers from re-offending, since high risk offenders cause a greater number of collisions with higher fatality rates and are more likely to be repeat offenders.
To respond to the Standing Committee's recommendation, Parliament could be asked to set the minimum penalties for impaired driving for a first time offender as follows:
- BAC 80 to 119 - $1,000 (the current minimum)
- BAC 120 to 159 - $1,500
- BAC 160 or more - $2,000.
There should be no advantage for a person who refuses to provide a breath sample so the minimum penalty for a refusal offence should be set at $2,000. Repeat offences would continue to be punished by mandatory terms of imprisonment; therefore, there is no need to have a higher minimum penalty linked to BAC in those cases.
With respect to aggravating factors in sentencing, the factors set out in s. 718.2 of the Criminal Code are not relevant to driving offences as they deal with hate motivation, abuse of a spouse etc. There is only one legislated aggravating factor with respect to sentencing for impaired driving: s. 255.1 makes it an aggravating factor to have a BAC in excess of 160. If the proposal to link tiered penalties to BAC were adopted, this aggravating factor would be relevant in determining the appropriate sentence for repeat offenders and offenders who have caused bodily harm or death.
In addition to BAC, there are many other aggravating factors which are already applied by courts when determining a just sentence for an offence involving the operation of a conveyance. The following aggravating factors could be set out in the Criminal Code to ensure that they are not overlooked in an appropriate case:
- BAC of 120
- Multiple victims
- Child passenger
- Conveying passengers for hire e.g. bus or taxi
- Operating a large conveyance e.g. a semi-trailer
- Operating an emergency conveyance e.g. an ambulance
- Property damage
- Operating without a license.
Your views are sought on the proposals to:
- Increase penalties for repeat offenders
- Make the maximum penalty for all death cases life imprisonment and 14 years for all bodily arm cases
- Create a new offence of criminal negligence simpliciter
- Linking minimum fines for first impaired driving offenders to BAC
- Lowering from 160 to 120 the BAC as an aggravating factor
- Listing other behaviours as aggravating.
 Simpliciter means there is no bodily harm or death
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