What Is the Law About a G2 Licensed Driver With a Blood Alcohol Level Above Zero?

A Novice Driver or Young Driver Under 22 Years-Old Are Forbidden From Driving With a Blood Alcohol Level Above Zero. Penalties For Driving With a Blood Alcohol Level Above Zero Include a Fine Up to $500 As Well As License Suspension. Additionally, Serious Insurance Consequences May Apply Including Loss of Coverage Where the Charge Coincides With An Accident.

Understanding the Zero Percent Blood Alcohol Level Mandate Applicable to Notice Drivers and Young Drivers

Novice drivers, being persons of any age with a G1 Class or G2 Class license, as well as young drivers, being persons under twenty-two (22) years of age, are forbidden to operate a vehicle, including snowmobiles, with any blood alcohol level.  Penalties upon conviction can be significant and may include a fine, license suspension, as well as insurance rate and insurance coverage consequences.

The Law

A notice driver of any age as well as a young driver under twenty-two (22) years of age is restricted to a blood alcohol level of zero (0%) percent as mandated by the Highway Traffic Act, R.S.O. 1990, c. H.8 wherein it is stated:

Condition on licence that blood alcohol concentration level be zero

Novice drivers

44.1 (1) It is a condition of the driver’s licence of every novice driver that his or her blood alcohol concentration level be zero while he or she is driving a motor vehicle on a highway.

Young drivers

(2) It is a condition of the driver’s licence of every young driver that his or her blood alcohol concentration level be zero while he or she is driving a motor vehicle on a highway.

Penalty, novice drivers

(3) Every novice driver who contravenes the condition of his or her driver’s licence imposed under subsection (1) is guilty of an offence and on conviction is liable to a fine of not less than $60 and not more than $500.

Same

(4) If a novice driver is convicted of an offence under subsection (3), the Registrar may suspend, cancel or change his or her driver’s licence in accordance with the regulations.

Same, young drivers

(5) Every young driver who contravenes the condition of his or her driver’s licence imposed under subsection (2) is guilty of an offence and on conviction is liable to a fine of not less than $60 and not more than $500 and his or her driver’s licence is thereupon suspended for 30 days.

Intent of suspension

(6) The suspension of a licence under this section is intended to ensure that novice drivers and young drivers acquire experience and develop or improve safe driving skills in controlled conditions and to safeguard the licensee and the public and does not constitute an alternative to any proceeding or penalty arising from the same circumstances or around the same time.

Regulations

(7) The Lieutenant Governor in Council may make regulations governing the suspension or cancellation of drivers’ licences of novice drivers or the change in respect of their class for the purpose of subsection (4).

Age of drivers

(7.1) Any distinction described in this section based upon the age of a person applies despite the Human Rights Code.

Definitions

(8) In this section,

driver” includes a person who has care or control of a motor vehicle; (“conducteur”)

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 motorized snow vehicle; (“véhicule automobile”)

novice driver” has the meaning prescribed by the regulations made under section 57.1; (“conducteur débutant”)

young driver” means a driver who is under 22 years old.

Available Defence Strategies

The most powerful defence strategy is to demonstrate that the allegation of the person charge being a novice driver, young driver, or was operating an automobile after alcohol consumption is untrue or to otherwise demonstrate that the evidence put forth by the prosecution fails to prove these concerns beyond a reasonable doubt.  Furthermore, even if alcohol was consumed, the charge relating to a novice driver or young driver with a blood alcohol level above zero is known as a strict liability offence rather than an absolute liability offence.  With an absolute liability offence, the prosecution merely needs to prove that the wrongful act was committed, such as consumption of alcohol; however, with a strict liability offence, the person charged is permitted to provide evidence and argue a theory that reasonable steps to avoid the wrongful act were taken, such as reasonable steps to avoid the consumption of alcohol so to avoid the risk of driving with a blood alcohol level above zero.  These defence concerns were specifically addressed in the case of R. v. Schwarz, 2017 ONCJ 786 where it was said:

57.  Upon hearing my decision with respect to the Charter issue, defence elected to call no evidence on the trial proper.  Rather, defence proceeded, first, by raising two motions for non-suit or a directed verdict.  These addressed issues of proof that the defendant was a young driver (there being no evidence of her age), as well as proof of her having a blood alcohol content above zero.

58.  In addition, she gave evidence that, although she consumed alcohol earlier in the day but that the lapse in time from that consumption and driving was sufficient that the any blood alcohol would have dissipated from her system and she would have been OK to drive.

59.  As noted above, the parties both approached this case on the premise that the offence charged is one of absolute liability[8].  In reviewing that case, I had occasion to review the reasons of the Ontario Court of Appeal in Tut v. RBC General Insurance Co.  The Court of Appeal considered a decision of a lower court in a civil matter involving insurance, but expressly considered the decisions and reasons in R. v. Nyaata (relied on by the prosecutor).  In discussing the nature of the offence created by O. Reg. 340/94, s. 6(1)[9], enacted pursuant to the HTA, the Court decided that “the application of the four Kanda factors leads me to conclude that the presumption against the offence being one of absolute liability has not been rebutted. The offence is one of strict liability”.  Further, in paragraph 27 of that decision, the Court affirmed the ruling below, saying “The application judge did not err in characterizing the offence as one of strict liability.”  The Court made express reference to the decision in R. v. Nyaata, effectively overturning that line of reasoning.

60.  Although the decision in Tut v. RBC General Insurance Co. was a civil matter and not arising directly out of a prosecution of a charge in Provincial Offences Court, I am satisfied that I am bound by the decision and reasons by the Ontario Court of Appeal.

61.  As noted above, the defendant gave evidence in the course of the voir dire in relation to the Charter issues, that while she had consumed alcohol some time before the events giving rise to this charge, she was operating on the belief (apparently mistaken) that she would have metabolized any alcohol in her system and would have been safe to drive.  However, she provided almost no evidence or facts as to the basis for that belief, nor did she offer any opinion evidence to support her view.  I accept that the absence of such evidence may have resulted from the mistaken belief that a defence of due diligence was not available in this case.  In any event, given that this evidence was not admitted to the trial proper, nothing turns on this.

Loss of Insurance Coverage at Risk

Where a novice driver or young driver is charged with blood alcohol level above zero charge and such was coincides with an automobile accident there is a substantial risk that if convicted of the charge, insurance coverage for the automobile accident incident will be lost.  This loss of insurance coverage may involve protection for damage to the automobile as well as third-party liability for injuries to other persons or damage to property owned by others.  Accordingly, where an accident occurred and a novice driver or young driver is charged with blood alcohol level above zero an especially aggressive defence effort is imperative.  The loss of insurance coverage was the civil litigation issue within the case of Tut v. RBC General Insurance Company, 2011 ONCA 644 where RBC, as an insurer, took the position that a young driver with a blood alcohol level above zero resulted in voided insurance coverage in accordance to provisions in section 4(1) of the Statutory Conditions - Automobile Insurance, O. Reg. 777/93 as a regulation to the Insurance Act, R.S.O. 1990, c. I.8 as relating to a person being unqualified to drive.  Specifically, section of the Statutory Conditions states:

Authority to drive

4. (1) The insured shall not drive or operate or permit any other person to drive or operate the automobile unless the insured or other person is authorized by law to drive or operate it.

Summary Comment

A novice driver or young driver charged with driving with a blood alcohol level other than zero may face a $500 fine, license suspension, increased insurance rates as well as denial of insurance coverage.

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