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90 Day Automatic Suspension of Licences and Vehicle Impoundment in Ontario on Arrest

DUI Lawyer Explanation

Explanatory Notes to the Legislation
The Road Safety Act, 1996


 Read Horsefield v. Registrar of Motor Vehicles in the Ontario Court of Appeal

Insurance Implications of 90 Day ADLS Suspension

If your licence has been suspended by operation of section 48.3 of the Highway Traffic Act do not drive.

If you are caught driving while suspended under section 48.3 you could be found guilty of driving while suspended, pay a very large minimum fine and lose your licence for a further 6 months consecutive to any suspension for impaired, over 80, or refusal to blow. There are also serious insurance implications.  You should consult a lawyer about this.

You should consult a lawyer for advice.


Background

Legislation came into force in Ontario, Canada on November 29, 1996 whereby a person's driver's licence is automatically suspended for 90 days immediately upon a police officer being satisfied that a person has met certain criteria i.e. has driven or operated or had care or control, of a motor vehicle, vessel, or aircraft having a blood alcohol content in excess of 80 milligrams or with refusal to provide a breath sample. This legislation is separate from and in addition to criminal legislation enacted by the Canadian Parliament.

It would appear to this commentator that the police officer acts as investigator, prosecutor, and judge in making this determination, thus violating the legal maxim nemo debet esse judex in propria causa (No one can be judge in his own cause).

In my experience the most serious penalties suffered by persons convicted of drinking and driving offences are not the conviction and fine or jail but rather the loss of one's livelihood through loss of one's driver's licence and the impact of higher auto insurance rates. As a result of this Ontario legislation individuals will suffer the penalty of loss of driver's licence (including for work purposes) as a result of the police officer being "satisfied" regarding a driver's blood alcohol content or refusal. Some insurance companies may also impose surcharges for suspensions of any duration, including suspensions under this legislation.

The Highway Traffic Act legislation and the 90 day suspension apply whether the driver is eventually convicted or acquitted of the criminal offence.

The legislation applies, it would appear, whether or not the police officer has obeyed other sections of the Canadian Charter of Rights and Freedoms in apprehending the driver including the rule against unreasonable search and seizure, the rule against arbitrary detention, and the requirements that a person detained for any reason be informed of the reasons therefore, be permitted to retain and instruct counsel without delay, and be informed of the right to counsel and duty counsel.

The only appeal permitted is on the grounds of mistake as to identity or medical reason for refusing a breath sample.

Persons whose licences are suspended for 90 days will face an additional suspension in Ontario of at least one year once convicted in criminal Court perhaps violating s. 11(h) of the Charter. Having regard to the length of time it takes for matters to be reached for trial in many parts of Ontario it is unlikely that many people will have their "day in Court" until beyond the end of the 90 day suspension. This may result in a prejudice accruing to persons waiting for trials beyond 90 days. Creative lawyers may argue that trial delays of more than 30 days in drunk driving cases violate section 11(b) of the Charter.

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The following are explanatory notes provided by the Provincial Government:

Licence Suspensions

The Bill provides for a 90 day suspension of a driver's licence where a breath or blood analysis shows that the driver has a concentration of alcohol in his or her blood of more than 80 milligrams in 100 millilitres of blood or where the driver fails or refuses to provide a breath or blood sample in response to a demand made under the Criminal Code. This suspension is imposed administratively, based on a police officer's notification to the Registrar; it is independent of any charge or conviction under any Act. A person may appeal the suspension to the Licence Suspension Appeal Board only on the ground that he or she was not the person driving the vehicle at the relevant time or that he or she was unable to provide a breath or blood sample for medical reasons. (Sections 5, 7, 8, 10 and 30 of the Bill)

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The following are excerpts from the Road Safety Act 1996 which amends the Highway Traffic Act.

8. The Act is amended by adding the following section:

Registrar notified by police

48.3 (1) Where a police officer is satisfied that a person driving or having the care, charge or control of a motor vehicle meets one of the criteria set out in subsection (3), the officer shall notify the Registrar of that fact, or cause the Registrar to be so notified, in the form and manner and within the time prescribed by the regulations.

Suspension of driver's licence for ninety days

(2) Upon being notified under subsection (1), the Registrar shall suspend a person's driver's licence for a period of ninety days.

(2.1) A person has no right to be heard before or after the notification by the officer, or before or after the Registrar suspends the licence, but this subsection does not affect the taking of any proceeding in court.

Criteria

(3) The criteria for the purpose of subsection (1) are:

1. The person is shown, by an analysis of breath or blood taken pursuant to a demand made under subsection 254(3) of the Criminal Code (Canada) or pursuant to section 256 of the Criminal Code (Canada), to have a concentration of alcohol in his or her blood in excess of 80 milligrams in 100 millilitres of blood.

2. The person failed or refused to provide a breath or blood sample in response to a demand made under section 254 of the Criminal Code (Canada).

Effective date

(4) The suspension takes effect from the time notice of the suspension is given, in accordance with section 52, to the person whose licence is suspended.

Surrender of licence

(5) If notice of the suspension is delivered personally to the person by a police officer, the officer may request the person to surrender his or her driver's licence and, upon the request, the person shall forthwith surrender his or her driver's licence to the police officer.

Same

(6) If notice of the suspension is given to the person by mail, the person shall forthwith surrender to the Registrar his or her driver's licence, except the Photo Card portion of the licence, if the licence consists of a Photo Card and Licence Card.

Licence invalid

(7) Whether or not the person is unable or fails to surrender his or her driver's licence under subsection (5) or (6), the licence is suspended and invalid for any purpose for a period of ninety days from the time notice is given to the person.

Photo Card portion returned

(8) Every police officer to whom a driver's licence is surrendered under this section shall return the Photo Card portion of the licence to the person, if the licence consists of a Photo Card and Licence Card.

Licence delivered to Registrar

(9) A police officer who has notified the Registrar under subsection (1) or a police officer who has personally delivered notice of the suspension to the person shall, as soon as practicable, forward to the Registrar,

(a) the person's driver's licence, except the Photo Card portion, if the licence was surrendered to the police officer; and

(b) such other material or information as may be prescribed by the regulations.

Intent of suspension

(10) The suspension of a driver's licence under this section is intended to safeguard the public and does not constitute an alternative to any proceeding or penalty arising from the same circumstances or around the same time.

Removal of vehicle

(11) If the motor vehicle of a person whose licence is suspended under this section is at a location from which, in the opinion of a police officer, it should be removed and there is no person available who may lawfully remove the vehicle, the officer may remove and store the vehicle or cause it to be removed and stored, in which case the officer shall notify the person of the location of the storage.

Cost of removal

(12) Where a police officer obtains assistance for the removal and storage of a motor vehicle under this section, the costs incurred in moving and storing the vehicle are a lien on the vehicle that may be enforced under the Repair and Storage Liens Act by the person who moved or stored the vehicle at the request of the officer.

Protection from personal liability

(13) No action or other proceeding for damages shall be instituted against the Registrar or any employee of the Ministry for the suspension of a licence in good faith in the execution or intended execution of a duty under this section.

Crown not relieved of liability

(14) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (13) does not relieve the Crown of liability in respect of a tort committed by a person mentioned in subsection (13) to which it would otherwise be subject.

Regulations

(15) The Lieutenant Governor in Council may make regulations,

(a) respecting the form, manner and time within which the Registrar must be notified under subsection (1);

(b) respecting the information to be provided to persons whose licences are suspended under this section;

(c) prescribing other material or information to be forwarded to the Registrar under subsection (9).

Definitions

(16) In this section and in section 50.1,

"driver's licence" includes a motorized snow vehicle operator's licence and a driver's licence issued by any other jurisdiction; ("permis de conduire")

"motor vehicle" includes a street car and a motorized snow vehicle. ("véhicule automobile")

Meaning of suspension for out-of-province licences

(17) With respect to a driver's licence issued by another jurisdiction, instead of suspending the person's driver's licence, the Registrar shall suspend the person's privilege to drive a motor vehicle in Ontario for a period of ninety days, and this section and section 50.1 apply to the suspension of that privilege with necessary modifications.

 

As of December 1, 2010 a seven day impoundment of the vehicle is effective:

48.4(1) Administrative vehicle impoundment for blood alcohol concentration above .08, failing or refusing to provide breath sample

Where a police officer is satisfied that a person driving or having the care, charge or control of a motor vehicle meets one of the criteria set out in subsection 48.3(3), the officer shall detain the motor vehicle that was being driven by the person and the vehicle shall, at the cost and risk of its owner,
(a) be removed to an impound facility as directed by a police officer; and
(b) be impounded for seven days from the time it was detained.

48.4(2) Release of vehicle
Subject to subsection (14), the motor vehicle shall be released to its owner from the impound facility upon the expiry of the period of impoundment.

48.4(3) Early release of vehicle
Despite the detention or impoundment of a motor vehicle under this section, a police officer may release the motor vehicle to its owner before it is impounded or, subject to subsection (14), may direct the operator of the impound facility where the motor vehicle is impounded to release the motor vehicle to its owner before the expiry of the seven days if the officer is satisfied that the motor vehicle was stolen at the time that it was driven as described in subsection (1).

48.4(4) Duty of officer re impoundment
Every officer who detains a motor vehicle under this section shall, as soon as practicable,
(a) prepare a notice identifying the motor vehicle that is to be impounded, the name and address of the driver, the date and time of the impoundment, the period of time for which the motor vehicle is impounded and the place where the vehicle may be recovered; and
(b) serve the driver with a copy of the notice.

48.4(5) Service on driver is deemed service on owner and operator
Service of a copy of a notice under subsection (4) on the driver of the motor vehicle is deemed to be service on and sufficient notice to the owner of the vehicle and the operator of the vehicle, if there is an operator.

48.4(6) Further notice to owner
In addition to serving the owner of the motor vehicle through service on the driver under subsection (4), a police officer shall provide a copy of the notice prepared under subsection (4) to the owner of the motor vehicle by delivering it personally or by mail to the address of the owner shown on the permit for the motor vehicle or to the latest address for the owner appearing on the records of the Ministry.

48.4(7) Surrender of documents, information re trip and goods carried
If the motor vehicle that is to be impounded contains goods, the police officer may require the driver and any other person present who is in charge of the motor vehicle to surrender all documents in his or her possession or in the vehicle that relate to the operation of the vehicle or to the carriage of the goods and to furnish all information within that person's knowledge relating to the details of the current trip and the ownership of the goods.

48.4(8) Operator, owner to remove load
Upon being served with notice of the impoundment through service on the driver under subsection (4), the operator of the motor vehicle or, if there is no operator, the owner shall forthwith remove any vehicle drawn by the motor vehicle and any load from the motor vehicle.

48.4(9) Application of Dangerous Goods Transportation Act
If the goods are dangerous goods, within the meaning of the Dangerous Goods Transportation Act, the operator or, if there is no operator, the owner shall remove them in accordance with that Act.

48.4(10) Officer may remove load, trailer at operator's cost, risk
If, in the opinion of a police officer, the operator or owner fails to remove a drawn vehicle or load as required by subsection (8) within a reasonable time after being served with notice of the impoundment, the officer may cause the drawn vehicle or load to be removed and stored or disposed of at the cost and risk of the operator or, if there is no operator, the owner.

48.4(11) Same
If a police officer is of the opinion that the operator or owner has not made appropriate arrangements for the removal of a drawn vehicle or load, having regard to the nature of the goods, including the fact that they are or appear to be dangerous goods within the meaning of the Dangerous Goods Transportation Act or are perishable, the officer may cause the drawn vehicle or load to be removed, stored or otherwise disposed of at the cost and risk of the operator or, if there is no operator, the owner.

48.4(12) Personal property in vehicle available to owner
Any personal property that is left in the impounded motor vehicle and that is not attached to or used in connection with its operation shall, upon request and proof of ownership, be made available, at reasonable times, to the owner of the property.

48.4(13) No appeal or right to be heard
There is no appeal from, or right to be heard before, a vehicle detention or impoundment under subsection (1).

48.4(14) Impound costs to be paid before release of vehicle
The person who operates the impound facility where a motor vehicle is impounded under this section is not required to release the motor vehicle until the removal and impound costs for the vehicle have been paid.

48.4(15) Lien for impound costs
The costs incurred by the person who operates the impound facility where a motor vehicle is impounded under this section are a lien on the motor vehicle that may be enforced under the Repair and Storage Liens Act.

48.4(16) Impound costs a recoverable debt
The costs incurred by the person who operates the impound facility where a motor vehicle is impounded under this section are a debt due by the owner and the driver of the motor vehicle at the time the vehicle was detained, for which the owner and the driver are jointly and severally liable, and the debt may be recovered in any court of competent jurisdiction.

48.4(17) Owner may recover losses from driver
The owner of a motor vehicle that is impounded under this section may bring an action against the driver of the motor vehicle at the time the vehicle was detained under subsection (1) to recover any costs or other losses incurred by the owner in connection with the impoundment.

48.4(18) Debt due to police or Crown
The costs incurred by a police force or the Crown in removing, storing or disposing of a drawn vehicle or load from a motor vehicle under subsection (10) or (11) are a debt due to the police force or Crown, as the case may be, and may be recovered by the police force or Crown in any court of competent jurisdiction.

48.4(19) Offence
Every person who obstructs or interferes with a police officer in the performance of his or her duties under this section is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $5,000 or to imprisonment for a term of not more than six months, or to both.

48.4(20) Intent of impoundment
The impoundment of a motor vehicle under this section is intended to promote compliance with this Act and to thereby safeguard the public and does not constitute an alternative to any proceeding or penalty arising from the same circumstances or around the same time.

48.4(21) Impoundment concurrent with other administrative impoundments
The impoundment of a motor vehicle under this section runs concurrently with an impoundment, if any, of the same motor vehicle under section 41.4, 55.1, 55.2, 82.1 or 172.

48.4(22) Forms
The Minister may require that forms approved by the Minister be used for any purpose of this section.

48.4(23) Regulations
The Minister may make regulations,
(a) requiring police officers to keep records with respect to vehicle impoundments under this section for a specified period of time and to report specified information with respect to vehicle impoundments to the Registrar and governing such records and reports;
(b) exempting any class of persons or class or type of vehicles from any provision or requirement of this section or of any regulation made under this section and prescribing conditions and circumstances for any such exemption;
(c) exempting commercial motor vehicles, or any class or type of commercial motor vehicles, or drivers, owners or operators of commercial motor vehicles or any class of them, from any provision or requirement of this section or of any regulation made under this section, prescribing a different scheme of consequences and requirements from those set out in this section if a police officer is satisfied that a person driving or having the care, charge or control of a commercial motor vehicle, or a specified class or type of commercial motor vehicle, meets one of the criteria set out in subsection 48.3(3), including prescribing different penalties, and prescribing conditions and circumstances for any such exemption or for a different scheme to apply.

48.4(24) Contravention of different scheme
Every person who contravenes or fails to comply with a regulation made under clause (23)(c) that prescribes a different scheme of consequences and requirements from those set out in this section is guilty of an offence and on conviction is liable to a fine of not less than $400 and not more than $20,000.

48.4(25) Definitions
In this section,
"driver's licence" includes a driver's licence issued by another jurisdiction;
"operator" means,
(a) the person directly or indirectly responsible for the operation of a commercial motor vehicle, including the conduct of the driver of, and the carriage of goods or passengers, if any, in, the commercial motor vehicle or combination of vehicles, and
(b) in the absence of evidence to the contrary, where no CVOR certificate, as defined in subsection 16(1), or lease applicable to a commercial motor vehicle, is produced, the holder of the plate portion of the permit for the commercial motor vehicle.

 

Appeal of ninety day suspension

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50.1 (1) A person whose driver's licence is suspended under section 48.3 may appeal the suspension to the Tribunal.

Grounds for appeal

(2) The only grounds on which a person may appeal under subsection (1) and the only grounds on which the Tribunal may order that the suspension be set aside are,

(a) that the person whose licence was suspended is not the same individual to whom a demand for a sample of breath or blood was made, or from whom a sample of breath or blood was taken, as the case may be, under or pursuant to the provisions of the Criminal Code (Canada) referred to in subsection 48.3(3); or

(b) that the person failed or refused to comply with a demand made under section 254 of the Criminal Code (Canada) to provide a sample of breath or blood because he or she was unable to do so for a medical reason.

Supporting material

(3) A person who appeals to the Tribunal under subsection (1) shall file such written material in support of the appeal as may be required by the regulations made under clause 49(4)(c), together with such other material as the person may wish to submit, and the Tribunal shall not hold a hearing until all the supporting material is filed.

Powers of Tribunal

(4) The Tribunal may confirm the suspension or may order that the suspension be set aside.

Licence reinstated

(5) If the Tribunal orders that the suspension be set aside, it shall give written notice of the order to the appellant and the Registrar and, upon receipt of such notice, the Registrar shall reinstate the appellant's driver's licence, subject to any other suspension under this Act.

Decision final

(6) The decision of the Tribunal under this section is final and binding.

Suspension not stayed

(7) The suspension under section 48.3 continues to apply despite the filing of an appeal under this section unless the Registrar reinstates the licence pursuant to the Tribunal's order that the suspension be set aside, and this subsection prevails over the Statutory Powers Procedure Act.

When oral hearing required

(8) The Tribunal is not required to hold an oral hearing under this section unless the appellant requests an oral hearing at the time of filing the appeal and bases the appeal on one of the grounds set out in subsection (2).

Exception

(9) Despite a request by the appellant for an oral hearing, the Tribunal may order that the suspension be set aside on the basis of the material filed with the Tribunal without holding an oral hearing.

11. Section 54 of the Act is repealed and the following substituted:

Effect of suspension provisions if person holds no permit or licence

54. (1) If a permit or licence is required to be suspended under this Act, but the person whose permit or licence is to be suspended does not hold a permit or licence, the person shall be deemed for the purposes of this Act to be a person whose permit or licence has been suspended.

No permit or licence issued during suspension period

(2) No permit or licence shall be issued to a person who is disqualified from holding a permit or licence or who is deemed to be a person whose permit or licence has been suspended under subsection (1) until the period of the disqualification or suspension has expired and, in the case of a person who is deemed to be a person whose licence has been suspended, the person pays the prescribed administrative fee for the reinstatement of the licence.

Exception

(3) Despite subsection (2), a person who met the description in subsection 34 (1) at the time of the events that led to the disqualification or deeming is not required to pay the prescribed administrative fee for the reinstatement of the licence.

Short title

33. The short title of this Act is the Road Safety Act, 1996.

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Stephen R. Biss, Barrister & Solicitor

470 Hensall Circle, Suite 303
Mississauga, Ontario
L5A 3V4

905-273-3322  or 1-877-273-3322

 


Advertisement. Any legal opinions expressed at this site relate to the Province of Ontario, Canada only. If you reside or carry on business in any other jurisdiction please consult a lawyer, solicitor, or attorney in your own jurisdiction. WARNING: All information contained herein is provided for the purpose of providing basic information only and should not be construed as formal legal advice. The author disclaims any and all liability resulting from reliance upon such information. You are strongly encouraged to seek and retain professional legal advice before relying upon any of the information contained herein.