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

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.

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