Type of document: Prosecution Directive
Effective date: November 14, 2017

Individuals who drive under the influence of alcohol and/or drugs pose an unacceptable risk of harm to themselves and to the public. The Criminal Code and Highway Traffic Act (HTA) provide criminal sanctions and administrative measures, including the Ignition Interlock Program, to combat these offences. The protection of the public is the primary concern at every stage of the prosecution of impaired driving offences.

The following list sets outs some aggravating features of an impaired driving offence. A Prosecutor should consider those features prior to making any significant decisions at all stages of the prosecution:

  1. death, serious injuries and/or substantial property damage
  2. a motor vehicle collision
  3. driving conduct that poses a high risk to other motorists, pedestrians and/or police, such as excessive speed, racing or flight from police
  4. whether the offence involves breach of a court order and frustrates the administration of justice, such as driving while prohibited or refuse breath sample
  5. the presence of vulnerable people such as children
  6. any prior criminal or HTA record for similar offences and/or fail to comply offences
  7. high levels of blood alcohol concentration.

Charge screening

Ignition Interlock Program

The Criminal Code permits an offender to drive during a portion of the duration of the mandatory driving prohibition order, on certain conditions including installing the ignition interlock device in their vehicle. An ignition interlock device is an in-car alcohol breath screening device that prevents a vehicle from starting if it detects a certain blood alcohol concentration. The Ignition Interlock Program is administered by the Ministry of Transportation.

Where the Prosecutor intends to seek an increased absolute driving prohibition period, or an order that the offender not be permitted to drive with the interlock at all, the Prosecutor must convey that position to the offender prior to the plea being entered. In coming to this decision, the Prosecutor should consider the circumstances of the offence and the offender, any prior convictions under the Highway Traffic Act or Criminal Code, including those that are more than 10 years old.

Offenders convicted of drug impaired offences, or offences involving a combination of drugs and alcohol, are not eligible for the program.

Resolution discussions and sentence

Absent exceptional circumstances and then only with the prior approval of the Crown Attorney or designate, the Prosecutor must not:

  1. withdraw a Criminal Code driving offence that relates to the impairment of the driver in exchange for a guilty plea to an offence under the Highway Traffic Act or a Criminal Code offence that does not address the impairment of the driver
  2. withdraw charges of “Over 80” solely because the readings are low
  3. withdraw fail to remain or drive while disqualified charge in exchange for a guilty plea to impaired or “Over 80” or vise-versa.

Notice of Intention to Seek Increased Penalty

Notice of Intention to Seek Increased Penalty will be provided to an accused, where the Prosecutor seeks a higher range of sentence by reason of the accused’s previous criminal record.

Absent exceptional circumstances, the Prosecutor must file the Notice of Intention to Seek Increased Penalty in all cases where the accused has a previous conviction for a drinking and driving offence within a five-year period of the current offence date. If exceptional circumstances exist, where the previous conviction is within a five-year period and the Prosecutor is satisfied that the accused poses no future threat to the safety of the public, the Prosecutor may consider that the public interest is served without seeking an increased penalty. In these circumstances, the Prosecutor must obtain the prior approval of the Crown Attorney or designate not to seek an increased penalty. The Prosecutor must still advise the court of the existence and complete extent of any criminal record of the accused.

After the five-year period, the Prosecutor may exercise her discretion to file the notice. In any event, the Prosecutor must still advise the court of the existence and complete extent of any criminal record of the accused.


Where the impaired driving offence has resulted in serious injury or death Prosecutors should ensure that efforts are made to inform the victim of the Victim/Witness Assistance Program (V/WAP) or similar victim support services. For further direction reference should be made to Victims Directive.