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Is Driving Under the Influence of Alcohol and/or a Drug an Indictable Offence in Canada?

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Most people are surprised by the fact that the offences of impaired driving and exceeding the legal limit of blood alcohol concentration (“BAC”) are by far the most common types of criminal charges laid by the police in Canada. (both types of charges are also commonly referred to in Canada as a “DUI” even though this is an American legal term). DUI law is also considered to be the most complex area of criminal law.

The majority of Criminal Code offences in Canada are ‘hybrid’ or ‘dual procedure’ criminal offences. This means that on or after the accused’s first court appearance, the crown can elect to prosecute the offence summarily or by indictment.

Summary convictions offences & driving under the influence

A summary conviction Criminal Code offence carries a much lower maximum sentence than an indictable offence. Also, upon conviction, a summary conviction DUI will generally attract a much lower sentence than an indictable DUI.

The term ‘summary conviction’ criminal offence under the Canadian Criminal Code is somewhat analogous to a ‘misdemeanour’ which is another American criminal law term. You should think of a summary conviction offence as having less serious consequences than an indictable offence. Similarly, an indictable criminal offence is roughly equivalent to a ‘felony’ under United States’ criminal law (i.e. an indictable offence is a more serious offence attracting longer jail terms and other more serious consequences than a summary conviction offence).

Generally, the crown will elect to proceed summarily for most first time DUI charges where no one has been injured. The charges of operation while impaired by alcohol and/or a drug and being equal to or over the legal BAC limit of 80 mg of alcohol in 100 ML of blood, are found in sections 320.14 of the Criminal Code.

Punishment for driving under the influence in Ontario

The punishment upon conviction for a DUI is found in s. 320.19 of the Criminal Code.

  • The mandatory minimum punishment for a first DUI offence is a $1,000.00 fine (plus a 30% victim fine surcharge of $300.00).
  • For a second offence there is a mandatory minimum jail term of 30 days in jail.
  • For each subsequent offence there is a mandatory minimum jail term of 120 days. 

However, a judge has discretion to impose lengthier jail terms depending upon the aggravating and mitigating factor regarding both the offence and the offender’s background. For example, some judges will impose a short and sharp jail term for even a first impaired driving offence if the incident involved an accident on a highway and especially a 400 series Highway. 

Under s. 320.19(3) of the Criminal Code, for elevated blood alcohol contents the mandatory minimum fines are increased. If an accused’s BAC is greater than or equal to 120 mg of alcohol in 100 mL of blood, but is less than 160, the minimum fine is $1,500.00 (plus a 30% victim fine surcharge of $450.000). For BAC readings of equal to or greater than 160, the mandatory minimum fine is $2,000.00 (plus a 30% victim fine surcharge of $600.00)

There are circumstances where the crown will choose to elect by indictment on a DUI charge involving no bodily harm depending upon the facts of the case and the number of prior DUI convictions a person has.

For example, if a person has been charged with a DUI and they have multiple prior DUI convictions, the crown might seek to elect by indictment. This would allow the crown to seek a much longer jail term upon conviction.

Generally, even if a person has 2-4 prior DUI convictions, the crown will still elect to proceed summarily. However, at some point along the continuum of having multiple prior DUI convictions, prosecutors will consider electing by indictment.

Further examples of the crown possibly electing to proceed by indictment where there are only a few prior DUI convictions are as follows:

  • The accused was driving with a child in the car at the time of the arrest. Transporting a child in a motor vehicle while impaired by alcohol or a drug is considered to a very aggravated offence; 
  • The accused had a particularly high BAC”; and
  • The accused was involved in an accident on 400 series highway even though there were no injuries.


It is within the discretion of the crown to file a Notice of application for increased penalty for prior DUI convictions. Crown attorney are required to file a Notice of Application for increased penalty for a prior DUI conviction that occurred within 5 years of the date of the current conviction. However, they have discretion to rely on much older DUI convictions. For example, crown attorneys will often rely on DUI convictions which are over 10 years in order to seek a mandatory minimum jail term or even longer terms of imprisonment.

If a person is operating a conveyance (i.e. this is the new term under the Criminal Code which includes a motor vehicle, E-bikes, boats, trains etc.) while their ability to operate the conveyance is impaired by alcohol and/or a drug or their BAC is equal to or exceeds the legal limit and they cause bodily harm to another person, they will be charged with impaired driving causing bodily harm or 80 plus BAC causing bodily harm.

The charging section for impaired driving causing bodily harm and 80 plus BAC causing bodily harm is found under s. 320.14(2) of the Criminal Code. In 2018 parliament changed the former legal limit from “over 80” to 80 or over. Prior to this subtle but significant change in the legal limit, if a person had a reading between 80 and 89, they would win their case because the court always rounds the BAC readings down to the nearest ten and a BAC of 80 was not a criminal offence. However, many people still colloquially refer to an ‘exceeding the legal limit’ DUI charge as an “over 80” charge even though the new charging section is 80 or over.

Causing bodily harm while driving under the influence

The punishment in case of a DUI causing bodily harm is set out in s. 320.2 of the Criminal Code. If the crown elects to proceed by indictment, the maximum jail term for an impaired driving and /or exceeding the legal causing bodily harm charge is 14 years. If the crown elects to proceed summarily, the maximum jail term is not more than two years less a day. The same mandatory minimums apply as set out above for a simple DUI where no bodily harm has been occasioned. 

However, the bodily harm would have to be extremely minor for a judge to even think about imposing only the mandatory minimums. Generally, if you are convicted of impaired driving causing bodily harm you are going to be facing many months and up two or more years in jail unless the bodily harm is on the lesser end of the scale.

Sometimes, a good DUI lawyer can negotiate with the crown to delete the bodily harm averment and the client can plead guilty to a DUI for merely a fine and no jail. For example, this might be possible if the bodily harm is at the lesser end of the scale such as where there were only minor cuts and bruises or when the crown is convinced that defence counsel has a good chance of winning at trial. 

Death and driving under the influence

If you are charged with drunk driving (i.e. impaired driving or exceeding 80 plus BAC) and you cause the death of another person, the charging section can be found under s. 320.14 (3) of the Criminal Code. The punishment in case of death is under s. 320.21. A DUI causing death is an indictable offence (i.e. the crown does not have to make an election in this regard) and the maximum jail term is life in prison. 

The range of sentences for DUIs causing bodily harm or death have been increasing significantly in recent years. A first time offender convicted of impaired causing death could easily face a prison term in the range of 5-7 years depending on the facts of the case and his or her background. 

Hire an experienced DUI lawyer to protect yourself

Prosecutors in Canada have a very wide discretion to elect by indictment when they believe it is warranted and can also rely on very old and dated DUI records to seek the maximum jail terms possible. The prosecution of impaired driving is treated very seriously in Ontario and every other province.

Unlike many years ago, there are no easy deals offered by the crown anymore unless you can show the prosecutor you have a potentially winning case. There has quite properly been a great deal of political pressure placed on crown attorneys across the. province to treat impaired driving prosecutions as seriously, and in some cases more seriously, than property crimes, crimes of violence or serious drug crimes.

It pays to hire the right lawyer who focuses on defending DUI charges and who can either find a way to win your case or who is able to obtain the best possible result for you. Impaired driving law is far too complex to attempt to navigate in court yourself. 

You can call Kruse Law any time for a free, no obligation consultation. We will provide you with the immediate legal advice you currently need and we will successfully guide you through the court system should you decide to retain us.

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