Failing to Heed Blackstone: A 50 Year Review of Tougher Sentences for Impaired Driving in Canada and How the Judiciary Strives to Avoid Their Imposition

I. Introduction More than 200 years ago, Sir William Blackstone recognized that: We may observe that punishments of unreasonable severity, especially when indiscriminately inflicted, have less effect in preventing crimes, and amending the manners of a people, than such as are more merciful in general, yet properly intermixed with due distinctions of severity. (3) Despite this, over the last 50 years, the sentences and consequences of a conviction for impaired imposed under the Canadian Criminal Code or under provincial Highway Traffic Acts have become more severe and more punitive. Politicians have been unable to resist the political attractiveness of being perceived as getting tough on through the simplistic and unquestioned assumption that the increased use of mandatory minimum sentences will serve as a deterrent to impaired driving. (4) Harsh mandatory minimum penalties, combined with police and Crown policies of mandatory charging and mandatory prosecution leave a person charged with impaired no alternative means available to resolve the charge apart from contesting the charges. The combined effects of a policy of mandatory prosecution, coupled with harsh mandatory minimum sentences for impaired offences has led to a significantly increased likelihood that a person charged with impaired will plead not guilty and take their case to trial. The judiciary, faced with mandatory minimum penalties which are unduly harsh, have accepted numerous technical defences we argue, to avoid their imposition. As a result, the harsh mandatory minimum sentences have led to a decrease in the certainty of punishment for someone charged with impaired driving, and undermined the desired deterrent effect that the mandatory minimum sentences were intended to accomplish. II. Increasing Impaired Driving Sentences in Canada A. Canadian Criminal Code (5) In Canada, the federal Government has jurisdiction over the criminal law, enacted primarily through the Criminal Code. (6) Impaired has been recognized as a socially unacceptable behaviour that has been a criminal offence in Canada for over 80 years. (7) The crime of while intoxicated was first introduced in Canada as a summary conviction offence in 1921, and was punishable by mandatory minimum penalties of seven, 30 and 90 days jail, respectively, for first, second and subsequent offences. (8) In 1930, an amendment allowed the Crown the option of prosecuting the offence as an indictable offence, in which case the offence was punishable by mandatory minimum sentences of 30 days for a first offence and 90 days for each subsequent offence. (9) The precursor to the modern offence of impaired was passed in 1951 as a hybrid offence. The offence carried mandatory minimum penalties of a $ 50 fine, 14 days, and 90 days for first, second, and subsequent offences, respectively. (10) Extensive revisions were made to the Criminal Code in 1969. In the context of impaired driving, the law was amended to permit the use of roadside screening devices. The new offences driving with more than 80 mg of alcohol per 100 ml. of blood and refusal to provide a breath sample were also introduced and were also punishable on summary conviction by a mandatory minimum fine or $ 50.00.11 In 1976, these offences became hybrid offences, and became punishable by the same penalties for impaired of 14 days, and 90 days for first, second, and subsequent offences, respectively. (12) In 1985, the mandatory minimum sentence for a first offence for any of the impaired driving-related offences was increased to $ 300.00, and mandatory federal prohibitions of three months, six month and one years were introduced, respectively, for first, second and subsequent offences. The new offences of impaired causing bodily harm and impaired causing death were also introduced, and were punishable by up to ten and fourteen years' imprisonment respectively. …

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