DUI downgrade: Why the Ford government allows judges to lower impaired driving charges

The offers always came by email.

Drivers accused of being drunk behind the wheel were suddenly presented with a deal that would see their charges downgraded to offences under the Highway Traffic Act, instead of the Criminal Code, giving them a rare opportunity to avoid the risk of a record.

The deal meant those who accepted wouldn’t have to face a criminal trial and Ontario’s court would have fewer cases making their way through an already backlogged system.

“You would receive an email… saying we have reviewed this,” said criminal defence lawyer Bruce Daly, who recalls receiving dozens of these “time-limited offers” from crown prosecutors.

“We are prepared to offer a plea as follows: dangerous operation of a motor vehicle, $3,000 fine, 12 month prohibition running concurrent with a 12 month loss of license under the Highway Traffic Act.”‘

The policy, introduced during the height of the COVID-19 pandemic, was meant to ensure the justice system was prioritizing the prosecution of serious offences while others – such as impaired driving with non-aggravating factors – could be diverted away from the criminal courtrooms.

More than three years later, however, the policy is still in place and the Ford government has no reliable internal systems to track how many alleged drunk drivers were let off the hook.

In late 2021, Ontario’s Attorney General added a new directive to the Crown Prosecutor’s Manual which provides “mandatory direction, advice and guidance” from Queen’s Park on how to handle cases.

The pandemic, the manual said, created “unprecedented challenges in the criminal justice system” and created a “substantial backlog of criminal cases in the courts.”

“Balancing this backlog against incoming prosecutions means that Prosecutors must take steps to reduce the number of cases in the criminal justice system to ensure that priority is given to the prosecution of serious offences,” the manual read.

With that in mind, prosecutors were instructed to consider the pandemic as an “exceptional circumstance” to justify withdrawing alcohol-related criminal charges “in exchange for a guilty plea” to a careless driving charge under the Highway Traffic Act.

Crown lawyers were told the downgrade would only apply to the least serious drunk driving cases.

A spokesperson for the government said it takes impaired driving “extremely seriously” and said lawyers would not offer the deal in serious situations.

“Crowns can refuse to offer this resolution if there are aspects of the case that make it serious or aggravating, meaning there is no ability to plead down in these cases,” they said.

For example, if the case involved death or bodily harm, the driver had a high blood-alcohol level, had a prior criminal record or had a child in the vehicle the resolution wouldn’t apply.

“They were worried the cases of impaired driving would be thrown out because of delays,” said MADD Canada CEO Steve Sullivan.

The fear, Sullivan said, was defence lawyers would opt for a criminal trial every time in hopes of having the charges thrown out due to an individual’s charter right to a timely trial bring infringed as a result of court backlogs.

“Our understanding was they felt the very least that offenders would be held accountable for something, even if it wasn’t the full offense of impaired driving, they wouldn’t get the Criminal Code,” Sullivan said. “But it was better to do that, to see all these cases being thrown out of court.”

When the policy was first introduced in 2020, MADD Canada estimated there were 6,000 cases that were under review before the additional pandemic-related court backlogs.

Global News has learned that the new policy was used so often that Crown prosecutors were even given a script highlighting the reasons behind the deal.

The pre-prepared script — obtained by Global News — was read aloud in front of judges promising that the resolution was time-limited and not a signal of how the Crown would treat impaired driving.

“The Crown submits that the proposed resolution is not contrary to the public interest and should be accepted by this court,” part of the script said. “Impaired driving is a serious offence that calls for a significant deterrent sentence.”

Prosecutors then added the courts were dealing with “an unprecedented backlog” of cases since the pandemic.

“Given the current circumstances of the backlog, the proposed resolution in this case balances the need to hold the accused person accountable for this offense, while also ensuring that the other serious cases remaining before the court will be prosecuted in a timely way,” it continued.

The script always laid out that the instance “should not be taken as setting any precedent” for other similar cases in the future.

“I’ve heard that a few times,” said defence lawyer Bruce Daley. “Pretty much every time a plea bargain was done.”

“It certainly sounded scripted — genuine, but scripted,” he said.

What remains unclear is how many of these cases Crown prosecutors, at the Attorey General’s direction, would have diverted away from the criminal justice system.

Daly said roughly “12 to 15 per cent” of his drinking and driving case load resulted in downgraded charges.

“Several of my colleagues have equally busy practices. Just extrapolating from my experience to theirs, from being in court, and looking at the list and seeing how much got cleared up… there’s no doubt it would have been hundreds of times,” Daly said.

MADD Canada estimates the policy applied to “thousands and thousands” of cases.

Since it introduced the downgrade policy, however, the Ford government hasn’t been tracking how many times the script has been read out or how many accused drunk drivers have escaped a potential criminal record.

Repeated requests made to both the media teams and access to information staff with the Ministry of the Attorney General over months showed the data isn’t being recorded.

Privacy officials with the Attorney General’s office said the government did not specifically track the number of downgraded charges but instead relied on broad crime data provided by the Ontario Court of Justice.

The same officials said that a news release announcing the measure in 2021 was the “latest information” available in terms of tracking how often it had been used.

Over months, from July 2023 until the beginning of 2024, Global News tried to get access to specific statistics through the Ministry of the Attorney General. They were never sent.

In recent weeks, Ontario Provincial Police and the Ford government have introduced new policies to crack down on impaired driving.

The OPP announced the force will demand a breath sample any time its officers conduct a traffic stop on an OPP-patrolled highway in the Greater Toronto Area.

Meanwhile, Ontario is planning to bring in a series of new measures for those found guilty of impaired driving in the province, including ignition interlock devices and lifetime driving bans.

Among the changes included in the new legislation drivers charged with a first impaired driving offence will have to install an ignition interlock device in their vehicle and go through mandatory training, the province said.

“Everyone deserves to return home to their loved ones safely at the end of the day,” Transportation Minister Prabmeet Sarkaria said.

“Too many families in Ontario have had their lives torn apart by the careless and shameful actions of impaired drivers.”

While the government cracks down on impaired driving, the Crown prosecutor’s manual still allows for cases with non-aggravating cases to be withdrawn under pandemic-related exceptional circumstances.

“The policy, supported by MADD Canada, remains in effect,” a spokesperson for the government told Global News.

“The policy is in place to prioritize the prosecution of serious offences like gun crimes and sexual assault and therefore reducing the likelihood that such egregious case prosecutions would be dismissed for delay.”

Those who accept the plea deal and non-criminal terms still face other consequences, the spokesperson said.

Anyone who takes the deal accepts a conviction of careless driving and is subject to pre- and post-conviction sanctions, including a 90-day licence suspension, seven-day vehicle impoundment, six demerit points and several hundred dollars in administrative penalties and fees.

“It’s not ideal,” said MADD Canada’s Steve Sullivan who questioned the effectiveness of the program.

“You’re still engaging a lot of court time. You’re still requiring police to lay criminal charges. You got crowns involved, judges because it has to be pled down,” Sullivan said.

The result, MADD believes, is “confusion” over the zero-tolerance approach police and politicians take with drunk driving and the actual consequences they may face.