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Impaired driving policy

Circular note no. XDC-0427 of March 14, 2001

Most recent date of change: December 22, 2015

The Department of Foreign Affairs, Trade and Development presents its compliments to Their Excellencies the Heads of Missions accredited to Canada and to the international organizations established in Canada, and has the honour to inform them of the Department’s revised policy with respect to instances where persons with diplomatic, consular or equivalent status in Canada are alleged to be driving while impaired, or to have committed other serious traffic offences.

1. Background

The Department reminds Heads of Missions that, pursuant to Article 41 (1) of the and Article 55 (1) of the , it is the duty^{Footnote 1} of all persons enjoying privileges and immunities to respect the laws and regulations of the receiving State, without prejudice to their privileges and immunities. The Department’s revised policy is based upon that principle, as well as the position that the operation of a motor vehicle by persons enjoying privileges and immunities in Canada is not a right but a privilege. In implementing the policy, the Department will be guided by the paramount importance of ensuring the protection and safety of Canadians and others in Canada including members of the diplomatic community. At the same time, the Department reiterates the importance it attaches to the Vienna Conventions and its commitment to respect the obligations contained therein.

2. Blood alcohol concentration

In Canada, the maximum legal blood alcohol concentration for fully licensed drivers is 80 milligrams of alcohol in 100 millilitres of blood (0.08). Driving with a blood alcohol concentration in excess of 0.08 is a criminal offence.

A more detailed look at the Province of Ontario

Notwithstanding the above, every novice driver and young driver must, as a condition of his or her driver's licence, maintain a blood alcohol concentration level of zero while driving in Ontario. The expression "young driver" means a driver who is under 22 years old, whether or not he or she resides in Ontario. Every novice driver or young driver who gets behind the wheel with a blood alcohol concentration in excess of zero contravenes Ontario law and is liable to a fine of not less than $60 and not more than $500. In addition, the novice driver faces the suspension, cancellation or change of his or her driver's licence, while the young driver faces a 30-day licence suspension.

Also, in Ontario, fully licensed drivers who are caught driving with a blood alcohol concentration from 0.05 to 0.08 ("warn range"), face a 3-day licence suspension for a first occurrence, a 7-day suspension for a second occurrence and a 30-day suspension for subsequent occurrences.

To know more about blood alcohol concentration levels under the laws of Ontario or of other provinces, consult the relevant provincial ministry of transportation.

3. Policy relating to impaired driving or other serious traffic offences

Stopping of Vehicles with Diplomatic Licence Plates

On reasonable suspicion that the driver of a vehicle bearing diplomatic or consular licence plates has consumed alcohol or is otherwise impaired, police forces may stop the vehicle and request the driver to present identification.^{Footnote 2} Persons enjoying consular immunity ^{Footnote 3} are covered by the policy set out in the Department’s Note No. XDC-4146 of December 5, 1996 and may be required to submit to roadside screening and breath tests. Notwithstanding the privileges and immunities the driver may enjoy, police forces may initiate an investigation where the attending officer suspects that the driver may be impaired. The resulting investigation may include demands for a breath sample for a roadside screening instrument, or that the driver participate in other field sobriety tests to establish whether the person’s co-ordination or faculties are observably affected by alcohol or other substances. In the event that a police officer has reasonable and probable grounds to believe that the driver is impaired, the officer will so inform the driver and will demand that he or she take a breath or blood test at the police station or other approved location. Persons enjoying diplomatic immunity should be aware that, though they cannot be prosecuted for offences in Canada without an express waiver of immunity from the sending State, a police officer may lay a charge against anyone who refuses to provide a breath sample for roadside screening or at the station upon a formal demand by the officer, as this is a criminal offence in Canada. Persons enjoying diplomatic immunity may wish to agree to provide breath or blood sample in order to establish that they are not driving while impaired. It should be noted that, once the police officer has established reasonable and probable grounds that the driver is impaired, the officer will take all reasonable measures to prevent the driver from operating the vehicle. Such measures may include removal of the keys and preventing the driver from re-entering the vehicle. The police will offer assistance to the driver to find an alternative means to continue his or her journey by, inter alia, contacting the Mission or a member of the driver’s family, or arranging for public transportation. The police will not permit a driver, for his or her own safety, to leave the area where the vehicle has been stopped unless that person is in the care of another person willing and able to assume that responsibility. For public safety reasons and the protection of the vehicle, police may arrange for the vehicle to be moved to a safe location. The Department will not intervene in cases where police have prevented a person with diplomatic status from driving where the police have acted in accordance with this policy and in the interest of public safety.

4. Subsequent actions

In every case where the Department receives a police report on an incident where police forces have intervened to prevent a person enjoying diplomatic immunity^{Footnote 4} from driving in the interests of public safety, the Department will contact the relevant Head of Mission in writing and inform him or her of the incident and the allegations of the police. The Department will inform the Head of Mission that police forces or other authorities may lay criminal charges. The Department will request in writing that the sending State waive administrative immunity so that the Department may hold the licence of the individual concerned and contact the relevant authorities to seek the suspension of that licence for a period of up to one year. If the sending State agrees to waive immunity for this purpose, a note will be required from the Mission to the Department confirming the waiver of immunity. Alternatively, the Department may accept a written undertaking by the Head of Mission that he or she will ensure that the person concerned will not drive in Canada for a period of up to one year. In the event that a person, whose privilege to drive in Canada has been suspended, fails to respect this condition of his or her continued assignment in Canada, the Department will immediately request that person’s recall.

5. Criminal charges and court process

The Department recognizes that police forces will lay charges where appropriate, regardless of the immunity of the person concerned. In accordance with the Vienna Convention on Diplomatic Relations ^{Footnote 5}, police forces shall not detain or arrest a person who has been identified as an accredited foreign representative enjoying diplomatic status^{Footnote 6}.

Should a person enjoying diplomatic immunity^{Footnote 7} be charged with an indictable offence, or other infraction that results in the matter being brought before a court, the Department will contact the Head of Mission to formally request that the sending State waive the appropriate immunity^{Footnote 8}.

In circumstances where an individual is suspected of driving while impaired, evidence may lead police to lay criminal charges of one or more of the following: impaired operation of a motor vehicle; operation of a motor vehicle while having a blood alcohol concentration (BAC) of more than the legal limit of 0.08; having care and control of a motor vehicle while impaired or having a BAC more than 0.08; or failing or refusing to comply with a demand by a police officer for a breath sample.

In the event that the sending State waives immunity, the Department will notify the appropriate local authorities. The Department expects that the charged person will comply with the decision of the court where the matter is adjudicated.

Should the sending State decide not to waive immunity, the Department may, in certain specific circumstances, accept a written undertaking by the Head of Mission that he or she will ensure that the person charged will not drive in Canada for a period of at least one year. The Department will also request the voluntary surrender of that person’s Canadian driver’s license to the Department for the duration.

The Department considers the fulfillment of such an undertaking to be a condition of the charged person’s continued assignment in Canada. In the event that a person, whose privilege to drive in Canada has been suspended pursuant to an undertaking by the respective head of mission, breaches any term of that written undertaking, the Department will immediately request his or her recall.

In the absence of an acceptance of one of the aforementioned options, the Department will request the recall of the individual.

6. Repeated incidents or other serious traffic offences

If a person enjoying diplomatic privileges and immunities^{Footnote 9} is involved in a second instance of impaired driving, or is charged with a traffic offence involving death or injury, the Department will request the relevant Mission to waive immunity. If the sending State decides not to waive immunity, the Department will require the person concerned to leave Canada. In some exceptional circumstances, the Department may require the individual to leave Canada even in cases where the sending State agrees to waive immunity.

7. Other considerations

The Department recognizes that the vast majority of persons enjoying privileges and immunities in Canada comply with their duty to respect local laws. However, the failure of even a small minority of persons to respect Canadian laws can lead to tragic consequences for Canadians and the persons involved. For this reason, the Department is determined to work closely with police forces to implement rigorously the policy on impaired driving. In this regard, the police will be informed in writing of any action taken by the Department pursuant to a report received by the Office of Protocol related to impaired driving or other serious traffic offences. The Department requests that Missions review the revised policy with their personnel across Canada to ensure that the policy is clearly understood. The Department wishes to inform Heads of Missions that their co-operation in ensuring that this policy is fully respected is both appreciated and expected. The Department will consider transgressions of this policy by persons accredited to Canada, including failures to respect undertakings made pursuant to this policy, as the responsibility of the Head of Mission. The Office of Protocol would be pleased to provide any further clarification of this policy.

Please also read:

The Department of Foreign Affairs, Trade and Development avails itself of this opportunity to renew to Their Excellencies the Heads of Missions accredited to Canada and to the international organizations established in Canada the assurances of its highest consideration.

Ottawa, March 14, 2001