“incriminating conditions of the body:” the breathalyzer and the

Social History of Alcohol and Drugs, Volume 26, No. 1 (Winter 2012)46

“IncrIMInAtInG condItIons of the body:” the breAthAlyzer And the

refrAMInG of Alcohol And deVIAnce In lAte tWentIeth-century cAnAdA

GreG MArquIs

Greg Marquis is a Professor in the Department of History & Politics at the University of New Brunswick, Saint John

SHAD (Winter 2012): 46-68

Abstract. In the third quarter of the twentieth century, attitudes toward and policies governing the sale and use of alcohol in Canada were liberalized. Alcohol problems were increasingly medicalized with an emphasis on in-dividual alcoholics. In the criminal justice sphere, police, courts and jails were affected by a partial decriminalization of the traditional offence of public drunkenness. During the 1960s a lobby of safety experts advocated increased criminal sanctions against automobile drivers who consumed alcohol. Canada’s national breathalyzer law of 1969, although not imple-mented in a uniform fashion and subjected to police discretion and legal challenges, was a major escalation of state authority over citizens who consumed a legal commodity. Detection and prosecution of impaired driv-ing also constituted an expansion of the use of forensic technology against “guilty bodies.” Provincial governments were responsible for enforcement of the law, which was strengthened in 1975 and 1985, and also introduced greater administrative controls over drivers who drank. By the 1980s the authority of safety, legal and addictions experts on the issue was being challenged by a grass-roots victims-rights movement. Although enforce-ment had a noticeable impact on citizen behaviour by the 1990s, the grass-roots movement helped sustain a climate of political and legal escalation against the drinking driver.

In Canada during the 1960s and early 1970s, the control of beverage alcohol, for decades regulated as a dangerous commodity, was liberalized. Provincial governments eased restrictions on both on-premise and off-premise drinking, maintained low alcohol prices relative to real income, lowered the minimum legal drinking age (MLDA) and lifted advertising restrictions against beer, spirits and wine. Consumer buying power and more permissive attitudes produced a significant rise in per capita consumption between the 1950s and 1970s. The social costs of alcohol, previously problematized by a moralistic temperance movement, were narrowed and medicalized, with an initial em-phasis on identifying and treating alcoholics, then “problem drinkers.” By the

Marquis: The Breathalyzer and the Reframing of Alcohol and Deviance in Canada. 47

late 1960s, alcohol problems were considered part of a larger “drug dependen-cy” phenomenon. More sympathetic attitudes toward alcohol abuse also lead to a reevaluation of the practice of employing penal sanction against persons who were intoxicated in public.1

In Canada liberalization was countered with one major exception: na-tional legislation to further deter the drinking driver. According to Gusfield, impaired driving was “socially constructed” by various interests as a social problem attributable to irresponsible individuals. In an age of the removal of restrictions on lifestyle, the use of alcohol by drivers of automobiles be-came the newest contribution of alcohol to moral deviance. Coincident with provincial governments removing restrictions governing alcohol, the drinking driver emerged as a new “social enemy.” The 1969 Criminal Code amend-ments, strengthened in 1975 and 1985, were significant and unprecedented in that they potentially criminalized the daily or weekly routine of hundreds of thousands of Canadians who operated vehicles after consuming two or more alcoholic drinks.2 They constituted an escalation of state responses to a licit drug, in contrast to a de-escalation of sanctions against public drunkenness offenders who traditionally belonged to the ranks of the working class and poor.3 The medical, legal and political debate that surrounded both the public drunkenness and breathalyzer issues are an important part of the history of alcohol regulation. Using insights from criminal justice history and the history of alcohol and its control, the following examination of Canada’s adoption of national breathalyzer legislation argues that the re-problematization of the alcohol threat away from the street “drunk” to the drinking driver not only helped to legitimize more liberal approaches to the control and use of alcohol, it also continued to reflect a conservative, individualistic and moralistic view of crime and deviance. The machine introduced for detecting impaired driv-ing, the breathalyzer, represented an impersonal, technological approach to countering a criminal offence associated not with traditional “criminals,” but average citizens, many of them middle class. As such its use during the first decade was highly negotiated.4

de-escAlAtInG publIc IntoxIcAtIon

Following the end of American prohibition, alcohol as a social problem was increasingly individualized and medicalized. By the 1940s, researchers, pub-lic health officials, members of the medical establishment, the self-help or-ganization Alcoholics Anonymous and the media were highlighting the plight of a small percentage of drinkers were suffering from a disease. Alcoholism was not the fault of its victims and, according to supporters of the theory, necessitated a societal response that was sympathetic and non-judgemental.5 Understandings of alcoholism as a mental or physical illness had major im-plications for the criminal justice system, where for decades the bulk of petty offenders had been arrested, convicted and jailed for drunkenness and related crimes. In contrast to the classic mid-twentieth century theory that alcoholics


were powerless to modify their deviant behaviour, the dominant nineteenth-century view was that occasional and repeat drunkards were partly the victims of unscrupulous saloon keepers but largely the authors of their own misfor-tune. Given that most offenders were working-class males, elites tradition-ally had regarded intoxication as a public order offence associated with the lower classes. Public order arrests usually took place in working class, vice or skid-row districts and were not a major threat to the middle-class or elite. Vagrancy, another public order offence, often was associated with alcohol, and many individuals arrested for fighting or disturbing the peace, accord-ing to press coverage of the courts, had been drinking. Case studies of urban policing indicate considerable differences from community to community in terms of arrest, charge and sentencing practices.6 Yet public drunkenness ar-rests formed a large percentage of urban police business into the 1910s and were only surpassed by traffic-related charges beginning in the 1920s. Public order offences tended to be punished with a fine or jail. Traffic and other by-law offenders, who were not regarded as particularly deviant or criminal, were summoned to court, not arrested, and usually paid a fine. Despite the declining relative importance of drunkenness charges to overall police activity, inebri-ates continued to dominate admissions to lock-ups and jails. The national rate of convictions per 100,000 population in the 1940s and 1950s, with the excep-tion of a pre-World War I spike, were higher than those of any other decade following the 1870s.7

In terms of criminal justice, decriminalizing (or partly decriminalizing) the traditional summary offence of public intoxication was a major reform of the post-World War II era. As late as the late 1960s, tens of thousands of Cana-dians were being jailed for inability to pay fines for public drunkenness. The repeal of the vagrancy provisions of the Criminal Code in 1972 also affected police practices against public “drunks” and reflected a more sympathetic re-sponse to poverty, homelessness and petty misdemeanors.8 In Canada, drunk-enness itself was not a crime, but public intoxication was an offence under federal and provincial statutes and municipal bylaws. Until the 1971 Supreme Court Drybones decision, “Status Indians” could be charged under the Indian Act for drunkenness off reserve.9 In addition, and most importantly in terms of enforcement, public intoxication was an offence under most provincial liquor control statutes. Quebec, where municipalities alone regulated the problem by the mid 1960s, was an exception.10

Growing familiarity with variations of the disease concept of alcohol-ism, as well as new trends in law reform, corrections and health care, prompt-ed a re-evaluation of the common drunk. In 1969 both the Canadian Com-mittee on Corrections and Quebec’s Prévost Commission had recommended a less punitive approach to “victimless” or “quasi-criminal” offences such as drunkenness, betting and prostitution.11 Rather than a petty criminal, under the new medicalized analysis the repeat drunkenness offender was viewed as at best a victim worthy of treatment, at worst, a low-risk offender who was


wasting valuable police and court resources. Chronic drunkenness offenders (CDOs), furthermore, seemed oblivious to the supposed deterrent effects of incarceration and fines. According to many treatment studies, they also ap-peared highly resistant to rehabilitation. Their chief service demand was for short-term detoxification, yet public hospitals were not always accommodat-ing. The move to divert petty public order offenders from local jails paralleled the trend towards deinstitutionalization in mental health.12

In the late 1950s, the landmark American study Revolving Door had popu-larized amongst public health officials, social workers and legal reformers the need to decriminalize state responses to CDOs. Pittman and Gordon avoided a “moralistic indictment” of repeat offenders and adopted a life-stage approach. Despite evidence of sympathy by police and judges, the authors found that the community regarded the public inebriate as “a nuisance who must be either jailed or fined.”13 They concluded that penal sanction was no deterrent in the majority of cases and that drunks were as misunderstood in the twentieth cen-tury as the mentally ill had been in the nineteenth. Participants in this largely middle-aged, male subculture were released without treatment or parole con-ditions and often re-offended within a few hours. Pittman and Gordon called for new approaches to handling the police case inebriate, including removal of recidivists from jails to treatment centers; medical, physical, psychological and social rehabilitation based on the individualized treatment model; the use of systematic parole procedures and the opening of half-way houses to cush-ion release back into the community.14

As Canadian provincial governments began to study the issue in the 1960s, it became linked to a broader criminal justice/corrections reform agenda of diversion. In Nova Scotia, a 1975 study revealed that “drunks” were pros-ecuted under provincial or municipal legislation and that fine revenues flowed to those levels of government. Of those incarcerated for common drunkenness between 1970 and 1975, 97% were male and most were between the ages of 31 and 50 and typically were jailed only once or twice a year. However, 20% of the inebriate population was admitted three or more times annually, indicat-ing a clear “revolving door” pattern that was rooted in practices dating back to the nineteenth century.15 Over the decades informal practices had included es-corting drunks home without pressing charges or placing them in lockups and jails for safekeeping. Unfortunately, there were no reliable estimates as to the scale of these informal diversion practices. In some cases police accumulated a number of charges against repeat offenders before prosecuting; in others, magistrates were lenient towards those who could not pay fines. Yet in Nova Scotia in the early 1970s, several thousand individuals, unable or unwilling to pay fines for public intoxication, were still being sent each year to county jail. The province’s director of Correctional Services opined that public inebriates did not belong in jails and other correctional institutions but deserved appro-priate facilities and resources. The provincial legislature’s health and welfare committee agreed.16


In 1971 the Canadian Criminology and Corrections Association (CCCA) issued a study, Drain the Drunk Tank, which reflected the new thinking on chronic inebriates. The report mentioned two United States Supreme Court decisions of 1966 which accepted the theory of the “involuntary” nature of alcoholism and ruled that alcoholics could not be held fully accountable for public intoxication. American federal and state laws were moving away from punishment to treatment, based on a model Alcoholism and Intoxica-tion Treatment Act adopted by the National Conference of Commissioners on Uniform State Laws in 1971. The CCCA, after reviewing legislation and practices across Canada, recommended in the spirit of law reform that persons intoxicated in public be taken to detoxification centers for up to twenty four hours, and that public and private post-detoxification centers and programs be promoted.17

The public health/mental health model of diverting intoxicated offenders from jail was implemented gradually in Canada and much depended on po-lice discretion. British Columbia’s Summary Convictions Act of 1960 directed police to take public inebriates to a doctor within twelve hours of arrest, if the officers believed the individuals required treatment. Physicians were au-thorized to issue certificates to allow inebriates to be observed and treated for up to twelve months.18 In 1967, following a survey which revealed that one half of the provincial jail population was serving sentences for drunkenness, the statute was amended to give magistrates discretion to sentence repeat of-fenders to treatment as part of probation. The attorney general also ordered police in a number of communities to cease charging individuals with public intoxication. A further amendment in 1968, proclaimed only for Vancouver, authorized police to take inebriates in custody to a physician, to determine whether individuals were capable of being released into their own custody or that of a friend or relation. Evidence concerning individuals’ addiction to alcohol was derived from probation officers and other officials. During the first four months of the act’s operation, Vancouver police detained 7,541 indi-viduals, of whom only one hundred and nine were sentenced to treatment in a make-shift facility that handled criminal justice clients. Those not designated for treatment returned to the street.19

Other provinces also reacted to the issue. Alberta’s liquor control statute in the late 1950s had given police discretion to take public inebriates into custo-dy without charge. In the late 1960s alcoholism counselors were introduced to criminal courts in Edmonton and Calgary. Their role was to interview public inebriates prior to court hearings and to make appropriate recommendations to magistrates. Manitoba began similar practices in the early 1970s. Saskatch-ewan retained public intoxication on its statute book, but in 1969 provincial authorities issued a “no-charge” directive to all police forces. Police in Sas-katchewan also had discretion to take inebriates into custody and release them without prosecution. Alberta magistrates had a number of options: sentence the individual to custody, refer them to treatment or dismiss the case. Un-


fortunately, circa 1970 treatment facilities were limited in both Alberta and Saskatchewan.20 Ontario, a large and wealthy province home to the Addiction Research Foundation (ARF) which pioneered research and social treatment of alcoholics, enjoyed greater resources and diversity in responding to alcohol problems. It also was responsible for half of Canada’s annual drunkenness convictions. Amendments to the Liquor Control Act in 1960 gave magistrates the option of sentencing inebriates to a fine, a term in jail or detention in a rehabilitation facility such as the Alex G. Brown Memorial Clinic. In Metro-politan Toronto in the late 1960s, the police made more than 23,000 arrests each year for drunkenness. In 1968 a detox center was set up as a pilot project in conjunction with the ARF in a downtown police division. The aim was to treat chronic drinkers as patients, not “bums.” Public intoxication arrests and convictions, as in the United States, did not disappear completely in the era of diversion and treatment. In Canada the statistical evidence remained “hidden” in the conviction rate under provincial liquor control statutes. Yet as a public problem, and a criminal justice issue, public intoxication all but vanished. Its place was taken by a deviant act fitting an individualistic, technology-ob-sessed and increasingly mobile society.21

MeAsurInG the IncrIMInAtInG body

The most visible exception to Canada’s liberalization of alcohol controls in the post-war era was the 1969 amendment of the Criminal Code police to test the blood alcohol content (BAC) of suspected impaired drivers. Alcoholism discourse had attempted to create a sympathetic view of problem drinkers who were perceived as victims of innate desires or appetites or as sick individuals with diminished capacity. Although it had no scientific backing, the defense of “intoxicated automism” had long been accepted by judges in common law jurisdictions.22 The breathalyzer was the ultimate forensic test and diminished capacity was beside the point. Only two facts mattered: whether a driver had operated a vehicle while impaired and whether their BAC level been above the legal maximum. In contrast to the legal principle of diminished capacity, the breathalyzer tested not mens rea (guilty mind) but the guilty body.23 The breathalyzer machine, and its portable cousin introduced a few years later for roadside screening, joined fingerprinting systems and lie detection equipment as part of police departments’ technology of detection and surveillance. As with forensic sexology, which focused on sexual deviants, these technologies incriminated suspects by measuring and analyzing the body.24

Historically, general law enforcement had concentrated on the poor and working class; the detection of impaired drivers, similar to drug enforcement in the late 1960s, was potentially different. Like general traffic enforcement, it placed police in potential conflict with large numbers of middle-class citizens. Most impaired drivers (despite the content of mandatory education classes imposed by the courts or legislators in the 1970s and 1980s) were not alcohol-ics, but social drinkers. In theory, hundreds of thousands of Canadians who


consumed three or four drinks in a short space of time and operated a vehicle were now “criminals.” This had profound implications in a society where most adults were social drinkers, where public drinking was becoming more popular, where automobile ownership was socially desirable and widespread, and where public transit was inconvenient or lacking. In keeping with the general direction of post-war automobile safety, the emphasis in anti-impaired driving enforcement was “based on the assumption that humans, not technol-ogy, had to change.”25

Prior to the late 1960s, impaired driving had been regarded as a social of-fence, similar to violations of prohibition laws in the 1920s. The Criminal Code had been amended as early as 1921 to recognize the offence of driving while intoxicated. Early prosecutions depended on the testimony of police officers who observed the movements, actions and speech of accused that suggested impairment. In 1925, intoxication by narcotics was added. Mag-istrates were loath to convict individuals regarded as “non-criminal” under these circumstances. By the 1950s, the more serious charge of driving while intoxicated (Section 222) carried a minimum penalty of seven days in jail. Although penalties for second offences were stricter, second offenders, ac-cording to the Canadian Association of Chiefs of Police, were rarely treated as such by the courts.26

By the 1950s, a North American coalition of support was growing in favour of mandatory testing of suspected impaired drivers. It included temperance and church organizations, police, the medical profession, the insurance indus-try and highway and traffic planners and managers.27

The idea of establishing a legal test for impairment was the product of post-World War I American “safety” research. The National Safety Council (NSC) had been formed in 1914, funded by industrial and insurance firms, to study and promote industrial safety. Together with local, state and federal officials, the NSC throughout the 1920s and 1930s lobbied for improved roads, uniform traffic laws and driver education. The council, whose leadership included Canadians, funded epidemiological research on urine samples of accident-involved drivers and worked with the American Medical Association (AMA) and Northwestern University’s Traffic Institute. Legislation modeled on a Norwegian law, and drafted by the NSC, the AMA and the American Bar As-sociation, was enacted by Indiana in 1939. The law defined driver impairment in terms of blood alcohol content (BAC). A level of 0.05-0.15% was “sup-porting evidence” for intoxication and a level of more than 0.15% was proof of guilt. In the 1950s, as highway construction and automobile ownership exploded, various states introduced “implied consent” into their motor vehicle licensing laws, which allowed police to take blood or breath samples of driv-ers in specific situations. A NSC program to train breath and blood testing technicians was funded by the Licensed Beverages Industries, a major alcohol lobby.28 The full fruition of drinking-driving research came in 1968 with the establishment of the Office of Alcohol Countermeasures within the National


Highway Traffic Safety Administration and in 1970, with the creation of the National Institute on Alcohol Abuse and Alcoholism.29

In Canada, the American example and an indigenous network of safety activists was instrumental in pushing for legislative action against impaired driving. As Robert Campbell notes, the drinking driver was an easy target for the media, police, politicians, the insurance industry and safety activists. Deviant individuals, not poorly designed or constructed roads or automobiles, would be the focus of highway safety efforts.30 The Canadian Good Roads Association convened the first national conference on highway safety in 1955. The Canadian Medical Association (CMA) recommended a statutory blood alcohol content test with a minimum limit of 0.05%. The Canadian Bar As-sociation (CBA) added its support for legislative action, and public opinion gradually linked highway carnage to alcohol. In the mid 1960s, by way of ex-ample, a Gallup poll indicated that a majority of Canadians blamed accidents on the “careless” driver. A decade later, the public was identifying the drinking driver as the culprit. The LeDain commission on the non-medical use of drugs reported that up to 70% of driver fatalities involved alcohol. Although traffic enforcement was a major drain on police and court resources by the 1960s, the Uniform Crime Reporting system did not list impaired driving in the same category of “serious” crimes against the person and property. For statistical purposes, impaired driving was a subcategory of traffic enforcement.31

Breath testing equipment had been discussed in Canadian police circles since the 1940s and was permitted under Section 224 of the Criminal Code. Ontario began a program of voluntary breathalyzer tests as early as 1956. In 1955, the Royal Canadian Mounted Police (RCMP) Crime Detection Labo-ratories conducted a series of experiments on the relationship of blood levels to impairment in the operation of motor vehicles. A committee of experts in chemistry, pathology, pharmacology, mathematics and psychology oversaw the project, which was based on testing drivers who had consumed distilled spirits. The committee failed to agree on a standard BAC level that constituted a universal level of impairment, and recommended further study on the im-pact of beer drinking on impairment, the impact of beer and spirits on drivers between eighteen and twenty-five and the influence of alcohol on the driv-ing performance of women.32 In 1958, summarizing that state of research on drinking and driving, the ARF reported that “specific amounts of alcohol do not have the same effects on all persons in their sensori-motor performance.”33

Despite the ambivalent findings of the research literature, within a few years the safety and medical communities were making a strong case for legis-lating a legal minimum blood-alcohol level. In 1966, New Democratic Party Member of Parliament (MP) Barry Mather introduced Bill C-87, a private member’s bill to give breathalyzer tests legislative recognition. Accordingly, Parliament’s Standing Committee on Justice and Legal Affairs conducted hearings on the issue. The committee heard that under Saskatchewan’s “in-formed consent” law, the authorities could suspend drivers’ licenses of sus-


pected drivers who refused breath tests. The debate was influenced by Brit-ain’s Road Safety Act of 1967, implemented on the advice of the national medical association, and by an influential study of more than twelve thousand drivers in Michigan. Both examples suggested the need to lower the threshold BAC level to 0.08%. A number of MPs suggested that this level was arbitrary and did not take into account varying levels of tolerance for alcohol.34

The most controversial aspect of Mather’s bill was not the suggested BAC level, but the element of compulsion. Police in a number of jurisdictions, such as British Columbia and Ontario, had been requesting voluntary breath tests for a number of years, but refusal rates were as high as 40%. In 1965, for example, three thousand suspected drivers in Ontario had refused the volun-tary test. The CBA had endorsed breathalyzer legislation up to 1965, when it temporarily withdrew its support pending further study, on the issue of com-pulsory tests. The CBA noted that in Ontario, one-quarter of impaired driv-ing cases were dismissed through lack of proof, yet under Mather’s bill, the Criminal Code would punish drivers who refused to be tested. By 1966 the CBA had returned to the pro-testing camp in the interest of legal deterrence. The CMA repeated its earlier call for legislation to make the breathalyzer mandatory. The issue of whether the impaired driver was an alcoholic who had no control over his or her drinking was not mentioned. Journalists and MPs (many of whom were lawyers) also were worried by what they called “self-incrimination.” Safety advocates countered that “soft” approaches such as education did not change the habits of the “hard core” and that mandatory tests were necessary to weed out repeat offenders.35

Anthony Bazos, an Ontario defense lawyer who appeared before the stand-ing committee to critique Bill C-87, expressed alarm at the prospect of man-datory breath testing. He argued that instead of the commonly cited figure of 50%, alcohol was responsible for a small fraction of accidents and deaths on the roads; “improper attention” and excessive speed were the leading cause of accidents. Bazos also cited design problems in automobiles. The rate of accidents per 100 million miles traveled in Ontario, furthermore, had been falling since 1945. He opposed “any change in the law making a crime what is in essence a social problem, or a medical problem, not a criminal problem…” Another concern was that as a Criminal Code offence, a breathalyzer convic-tion would carry a serious criminal record. Finally, he regretted that instead of a judge or a jury deciding on the issue, innocence or guilt would determined by a machine.36

Provincial governments, responding to police, medical, insurance indus-try and media concerns, adopted measures to tighten up road safety. Mani-toba had attempted to criminalize intoxicated driving as early as 1930, but the law had been ruled ultra vires in 1932. Under legislation passed in 1959, Saskatchewan was suspending for three or four months the licenses of sus-pected drivers who refused to give the police a breath sample.37 Pushed by a provincial safety council, in 1968 Saskatchewan joined British Columbia by


introducing automatic suspensions of driving licenses for convicted impaired drivers and permitting jail terms for second offences. A year later Saskatch-ewan broadened sanctions against suspected impaired drivers by authorizing police, with reasonable and probable cause, to suspend a driver’s license for twenty-four hours. Ontario enacted a controversial amendment to its highway legislation that allowed police to summarily arrest drivers who refused to give their names and address when requested. 38 The Canadian Safety Council even supported giving police the right to fingerprint and photograph individuals charged with motor vehicle offences, a dramatic expansion of police powers under the existing law.39

By the 1950s criminal law included two offences: driving or having care of an automobile while impaired and driving while intoxicated. The Criminal Code did not define the offences or provide any guidelines or reference to BAC levels. It was up to individual prosecutors and judges to determine the difference between the two offences based on police testimony. Blood tests were not unknown in serious cases but for the most part police had to use their professional judgement based on “field tests” and the suspect’s appearance, speech and motor skills. Courts had to decide what constituted impairment on a case-by-case basis. The result was a lack of uniformity in sentencing. In 1966, thirty thousand were convicted under Section 223, Impaired Driving, the most common and less serious of the two charges.40

In 1969 Canadians became subject to a new legal deterrent. Under an amendment to the Criminal Code, police were empowered to stop drivers suspected of operating motor vehicles while under the influence of alcohol. Suspects would be taken to a police station and forced to exhale into a breath-alyser machine. Unlike the pre-1969 charge of impaired driving, under the amended law a conviction did not require that a driver had “looked” drunk or had driven erratically. Innocence or guilt turned on a simple chemical test, although traffic stops, as explained below, could not be random. A minimum BAC reading of more than 0.08% resulted in a criminal conviction and a fine of between $50 and $500. Echoing the 1966 bill, suspected impaired drivers who refused to submit to the test could also be charged. When introduced in 1968 by Justice Minister Pierre Trudeau, the bill had set the BAC level at the current American standard, 0.10%. Trudeau, upon examining more recent re-search, had lowered the maximum to 0.08%, a level endorsed by the CBA in the 1966 committee hearings.41

In terms of criminal sanction, the breathalyzer was a classic example of deterrence and incapacitation. The Criminal Code had long provided stiff jail terms for those convicted of operating a motor vehicle while intoxicated, but the political climate and the lack of reliable testing equipment made magis-trates reluctant to convict or to hand out tough sentences. Breath testing tech-nology had been on the market since the 1940s, when North American police departments experimented with the Harger Drunkometer, invented in 1938. Its advantages were convenience and cost: it was less invasive medically than


blood or urine tests, and could be operated by trained police technicians. The familiar Borkenstein Breathalyzer consisting of a sample collection chamber and a photometer system was developed in 1954 and introduced commercially two years later. Subjects were required to blow into the machine’s mouth-piece; a technician would then determine the percentage of alcohol exiting the respiratory tract and convert the percentage to the subject’s BAC. Although testing was subject to false highs and lows, the scientific literature suggested that a trained technician could produce highly accurate readings.42 Skeptics remained: Nova Scotia’s liquor inquiry commission of 1961, for example, refused to recommend breath tests because the commissioners believed the equipment to be unreliable and that alcohol affected people in different ways. Although Ontario, by the mid 1960s, had dozens of machines and three hun-dred and fifty trained breathalyzer technicians, the technology was not being used to any great degree in the neighbouring province of Quebec.43

A new federal Justice Minister, John Turner, explained that the object of the Liberal government’s breath testing amendment was to save lives. In 1967, more than five thousand Canadians had died as a result of highway accidents, and a “disproportionate” number of mishaps had involved alcohol. Accord-ing to an influential Michigan study, the likelihood of accidents rose with a BAC of 0.04% and a “real danger level” was reached at 0.08%. The CMA recommended a level of 0.05%. Judging by American and British statistics, enforcement of a breathalyzer law would save the lives of several hundred citizens each year and spare many more from injury and disfigurement.44 The amendment was discussed against a backdrop of rising levels of automobile ownership and use. In 1941 less than 40% of Canadian households reported owning a car or truck; two decades later the figure was 68.4% nationally and 76% in Ontario.45

Turner’s 1969 breathalyzer amendment cleared the House of Commons a few weeks prior to another important federal government initiative on harmful substances: the appointment of the LeDain commission into the non-medical use of drugs. The BAC testing proposal was controversial in some circles because it was interpreted as violating the legal defense against self-incrimin-ation. New Democratic Party MP Stanley Knowles spoke of the significance of the measure, which amounted to establishing guilt through “automatic pro-cedure” rather than through the traditional court process. Those found guilty, furthermore, would be marked with criminal records, and be unable to be bonded or to travel to the United States or other foreign countries.46 The Lib-eral government explained that initial police action would be governed by the usual “reasonable and probable grounds” rule but that in this case the needs of the community necessitated compulsion of the suspected individual. As for the criticism that mandatory testing violated the self-incrimination rule, Turner stated that the Supreme Court of Canada had limited this protection to statements and declarations, not physical evidence such as fingerprints, foot-prints and clothing, and that establishing a maximum BAC was akin to setting


speed limits.47 Another point of contention was that the impaired driving measures were

part of the Trudeau government’s omnibus Criminal Code amendment, Bill C-195, which included a controversial gun control section. Crime-control advocates amongst the ruling Liberals, the Progressive Conservative (PC) opposition and Quebec’s Raillement Créditiste party faced a dilemma, as Turner’s reform package also included “permissive” amendments authorizing therapeutic abortions, decriminalizing consensual homosexual acts conducted in private by adults and liberalizing the law against lotteries. Progressive Conservatives attempted without success to have the bill broken into separate parts. In the end PC leader Robert Stanfield and fourteen colleagues voted with the Liberal majority in the House of Commons. Although the New Democrat MPs, most Liberals and a few PCs believed that the lifestyle reforms did not go far enough, a number of Créditiste and PC MPs and Senators raised moral and religious objections. Anti-abortion arguments were the most numerous. The Senate passed the bill in mid June.48

The breathalyzer was not “passive acquiescence test” such as fingerprinting, body measurement or an identification line-up, but an investigation technique that required the active participation of the subject.49 MPs from all parties were troubled by the section that mandated charges against those who refused the test. A Commons committee watered down the penalties somewhat. In order to reassure civil libertarian opinion, the bill contained a section that re-quired an accused to be given a specimen of his or her breath in an “approved container,” supposedly for independent analysis. The containers, the same used by police, were tubes containing silica gel developed by Borkenstein in the mid 1960s. Once the bill was passed the government failed to proclaim this section, in effect, giving the Crown a monopoly on scientific testing of breath samples.50

IMpleMentAtIon And enforceMent

The “over 80” and “refusing to take the test” provisions went into effect on December 1, 1969. The Criminal Code also specified a third offence, driv-ing while ability was impaired, regardless of BAC, based on the premise that certain individuals were impaired below 0.08%. The Globe and Mail reported that Metropolitan Toronto police initially gave suspected motorists a 25% margin of error, by charging only those who registered at least 0.10%.51 En-forcement met obstacles in the courts. In 1971, 23.5% of Section 235 and 44% of Section 236 charges laid by the Ontario Provincial Police were dismissed or withdrawn. The practice developed in Ontario and elsewhere to test two separate samples and introduce the lower BAC results as evidence. 52 Convict-ed offenders rarely were sent to jail; magistrates were more likely to impose fines and to recommend a suspension of driving privileges, in effect a form of incapacitation. Until subsequent amendments, the impact of convictions on driving privileges was a matter for the provincial authorities. In New Bruns-


wick in the early 1970s, for example, drivers convicted under the breathalyzer section could appeal license suspensions.53 Sentencing data from the early 1990s suggests that police, Crown prosecutors and judges regarded the “over 80” charge as comparable to simple possession of cannabis, mischief or theft under $1,000. It became the mainstay of breathalyzer prosecutions. In 1993-94, the national incarceration rate for “over 80” was only 16% and the average stay in jail sixteen days.54

Court challenges, even before the advent of the Charter of Rights and Free-doms, were inevitable and during the 1970s police departments, lawyers and attorneys general closely watched the fortunes of the legislation. In a number of jurisdictions the provisions were temporarily suspended by judicial deci-sions. Despite the courts’ initial modification of testing procedures, polls indi-cated that most Canadians supported compulsory tests.55 One issue addressed in the courts was the definition of a qualified testing technician. Issues to reach the Supreme Court of Canada included the power of provinces to suspend drivers’ licenses and the legality of convicted drivers being permitted to drive to work during business hours.56

The new legal regime may have contributed to a modest reduction in traffic fatalities, but within several years the number of deaths had risen to pre-1969 levels. The lowering of the MLDA drinking age from twenty one to eighteen or nineteen, depending on the province, added hundreds of thousands of po-tential impaired drivers to the mix. Insurance statistics indicated that young drivers were more likely to drive at night and to be involved in accidents and their activities contributed to inflated police statistics. National convictions for “over 80” for 1971, 1972 and 1973 were 24,734, 27,502 and 26,893. In 1973 police laid more than 100,000 charges for impaired driving and several thou-sand for refusal to take a breathalyzer test.57 Despite well-publicized warnings and police “blitzes” on holidays and weekends, enforcement initially did not act as a general deterrent. In the late 1970s, for example, an estimated 5% of all night-time drivers in Canada were impaired.58 An Ontario inter-ministry task force in 1983 reported that international research indicated a decided lack of success in deterring “the hardcore or the young driver.” The Ontario experi-ence since 1969, moreover, suggested that because of continued public toler-ance towards drinking and driving, the breathalyzer had resulted in “no lasting effect” on alcohol-related injuries or fatalities.59

In 1973, the CSC called on the justice minister to strengthen the law by al-lowing roadside tests where there was a suspicion of impaired driving. From the police point of view, one weakness of the 1969 amendment was that they could demand a test only upon “visible evidence of impairment.” The council also advised that blood or urine tests for other drugs be administered, that problem drinkers and second offenders be sentenced to clinics and that the Criminal Code be amended to outlaw partial prohibitions of driving by of-fenders. The Canadian Automobile Association endorsed mandatory blood tests, which were more effective than the breathalyzer.60 Until amendments in


1975 clarified the issue of police spot checks, officers involved in a traffic stop could not demand a breathalyzer test unless there were reasonable and prob-able grounds, such as open liquor bottles, slurred speech, erratic driving or an accident, that a driver was under the influence of alcohol. The CSC demanded not only spot checks but also the mandatory testing of any motorist involved in an accident, a dilution of the “reasonable and probable” test. Parliament introduced further amendments and as of 1976 the Code authorized roadside tests with “approved screening devices.” The handheld roadside testing equip-ment did not prove impairment; rather it assisted police in making an initial decision to demand a breathalyzer test. The “screening demand” provisions were proclaimed in the various provinces between 1976 and 1978.61

Although the 1969 amendments were meant to streamline court proceed-ings, by the mid 1970s breathalyzer cases constituted up to 40% of the case-load of the criminal court system.62 Lack of good data on sentencing outcomes makes it difficult to generalize as to punishment. Ontario, for example, as late as the early 1980s did not keep detailed records of the types of sentences im-posed in driving while impaired (DWI) cases. By the late 1990s, DWI cases were 15% of the total in Canada’s adult criminal courts, and repeat impaired driving offenders constituted 10% of admissions to provincial correctional facilities.63 As with most illegal activity, it was not clear whether statistics of arrests and convictions indicated the actual levels of impaired driving, or simply the scale of police activity. A study of Nova Scotia’s Reduce Alco-hol Impaired Driving (RAID) program concluded that although the RCMP, which patrolled provincial highways and a number of smaller communities, enforced the breathalyzer law with some rigor, outside of metropolitan Hali-fax the situation was different. Local police lacked training and were more likely to exercise restraint and selective enforcement. Municipal police in Cape Breton, Nova Scotia did not even have breathalyzer equipment. Police were not called to the scenes of all accidents, and the law allowed drivers to report accidents up to twenty-four hours after they occurred. The RAID study noted that DWI offenders tended to be young and male and have records of previous traffic offenses. One out of every four drinking drivers was accident involved at the time of arrest and one in seven had previous DWI convic-tions. One in three were “problem drinkers,” and a disproportionate number were divorced, separated or single and represented unskilled and semiskilled low-income brackets.64 A Saskatchewan study indicated that most impaired drivers convicted in 1976 were male, skilled or unskilled labourers and rural or small town dwellers. Persons under thirty were over represented because they tended to socialize more in bars, were subject to greater police scrutiny and had higher accident rates.65 As of the mid 1980s, other Canadian research had failed to reveal “a strong relationship between occupational groups” and apprehended drivers, accident-involved drivers and other “at risk” drivers. Repeat offenders were an exception: they tended to be older, worked in blue-collar occupations and had a record of accidents.66


The effectiveness of DWI countermeasures was a complex question which continued to plague criminal justice and safety experts. According to the Traf-fic Injury Research Foundation of Canada, in 1982, more than a decade after the Criminal Code changes, “alcohol-crash problems” were responsible for 863 fatal accidents, between 12,500 and 25,100 traffic injuries and 27,700 property-damage accidents. Examining driver surveys of 1974, 1979 and 1981, the Foundation concluded that “little, if any, change in drinking and driving practices had occurred.”67 In one Ontario study of 1979, an estimated one in eight drivers in the early hours of weekend mornings were in excess of 0.08% BAC and one in six were eligible for twelve-hour license suspensions. Drivers in less than 14% of ten thousand traffic stops were coming from bars or restaurants, but almost one-fifth of them registered a BAC of 0.08%, and more than a third 0.05%. An American study put the risk of being caught into perspective: a city of one million inhabitants produced four million impaired driving incidents each year. Yet the arrest rate was less than one-tenth of one percent.68

The implementation of the Canadian Charter of Rights and Freedoms in 1984 posed potential problems for breathalyzer enforcement, particularly in the areas of protection against self incrimination and unreasonable search and seizure (Sections 8 and 11). Charter decisions such as Therens (1985) im-proved due process guarantees such as the duty of police to inform suspects of their right to legal counsel. And in 1990 the Supreme Court struck down Manitoba’s tough vehicle impoundment law as a violation of the presump-tion of innocence. But overall, the courts ruled in favour of the framers of the 1969 amendments. In the Dedman case (1985), the Supreme Court of Cana-da upheld an Ontario Court of Appeal conviction of an individual who had been stopped in a RIDE (Reduce Impaired Driving Everywhere) spot check in 1980. In the opinion of Justice Ritchie of the Supreme Court (Curr v The Queen), the Charter did not protect against “incriminating conditions of the body.”69

Beginning in the 1970s, and gathering force in the 1980s, citizen activists, often individuals who had lost family members to accidents caused by drink-ing drivers, lobbied for “get tough” measures that clashed with public health and “soft” countermeasures approaches. David Courtwright refers to these demands as “the politics of escalation.”70 Canada’s activist organizations in-cluded Counter Attack in British Columbia, Checkstop in Alberta and PRIDE (People to Reduce Impaired Driving Everywhere) in Ontario. Supported by the press and politicians, but not always by alcoholism experts, groups such as Mothers Against Drunk Drivers (MADD) called for a war on impaired drivers and for bans on “happy hours” in bars. MADD originated in the United States in the early 1980s and managed to exert a major influence on federal and state alcohol policy by problematizing teenage impaired driving. As Heron notes, during the 1980s MADD, a movement “launched and sustained by women,” extended its influence into Canada. Students Against Drunk Driving (SADD)


also organized in Canada. The discourse surrounding these efforts portrayed impaired drivers in terms of “moral responsibility, social pathology, alcohol dependency, and general irresponsibility.”71 Although experts lead the initial crusade against impaired driving, by the 1990s activists, notably MADD Can-ada, were the driving force in pushing for increased enforcement efforts and in lobbying (without success in this case) the federal government to lower the minimum BAC level in the Criminal Code to 0.05%.72

In contrast to the 1960s approach to public drunkenness, which had focused on counselling and harm reduction, MADD minimized, rejected or ignored issues of addiction or dependency in impaired drivers. Although somewhat restrained in Canada, it reflected the general “war on drugs” mentality of the 1980s. The message was straight forward: drinking and driving (which includ-ed all drinking, not simply drinking that led to impairment) was “irrespon-sible, dangerous and intolerable.” MADD’s suggestions of publishing the names of convicted impaired drivers or “branding” their vehicles with special license plates, a throwback to eighteenth-century practices of denunciation and humiliation, provoked criticism from the academic and treatment com-munity. Yet the approach was not simply punitive; MADD promoted educa-tion and awareness messages through the media and at places of business and pressured brewers and distillers to act more responsibly. By the early 1980s, the alcohol industry was spending very little on anti-drinking-and-driving advertising. As the Ontario inter-ministry task force of 1983 acknowledged, activist groups, like anti-smoking groups, were useful for providing “momen-tum.” Legislative results of the get tough approach included the 1999 Crimi-nal Code amendment which introduced an automatic one-year suspension of driving privileges and laws in Quebec and Alberta that mandated ignition-lock devices for the vehicles of suspended drivers (who had to test their BAC through the device before the car could start). Such a technological imposition of incapacitation indicates a lack of faith in the possibility of rehabilitation for many repeat offenders.73

Opinion polls in the 1980s suggested a more complex set of views than those held by the “outraged minority.” In 1983, half of those polled described convicted drunk drivers as “irresponsible” or “careless,” but only 14% used the term “criminal.”74 In 1989, a Health and Welfare Canada study revealed that approximately three million Canadians had operated a vehicle within the past year after consuming two or more drinks. A survey of 2000 suggested that 55% of Canadian males admitted to driving while “over the limit” more than thirty years after the initial legal changes. According to the report authors, impaired driving remained “a major social problem.” In 1987 a parliamentary committee on Health and Welfare, upon hearing evidence from the RCMP, the ARF and PRIDE, referred to drinking drivers as a “dangerous and antisocial minority.”75

Although political authorities were reluctant to subject most impaired drivers to the full rigors of the law, DWI in some quarters was viewed as a


“treatable” form of deviancy. Hard countermeasures included mandatory jail terms and stiff fines; soft measures included license suspensions and manda-tory courses or counseling on alcohol and its effects. These approaches were cheaper than jail and fit the spirit of community corrections. In the 1970s and 1980s, courts, as part of probation or sentencing, began to order alco-hol education courses for second offenders, then first offenders (who have always formed the bulk of DWI offenders). The classes were unpopular with offenders who saw themselves as social drinkers because treatment often pre-supposed alcoholism or problem drinking. Other studies suggested that large segments of the public often regarded impaired drivers stopped by the police simply as “unlucky,” not deviant. The typical “DWI school” included lectures, films and discussion, a type of compulsory civics lesson. American and Ca-nadian research (such as a study of the Oshawa Impaired Drivers Program) failed to establish that these “secondary prevention” approaches lessened the rate of recidivism to any degree.76 And the results of imprisonment were “equivocal at best.”77

By the 1980s, research had also failed to prove that breathalyzer legislation had led to any decrease in drinking and driving. In a major study of the prob-lem in 1985, the Traffic Injury Research Foundation concluded that the crimi-nal justice system was not effective at deterring alcohol-impaired driving.78 Yet following a peak, absolute numbers of charges declined throughout the 1980s and 1990s. The rate of convictions per 100,000 adult population also fell, particularly following the implementation in 1986 of Bill C-18, which “broadened the scope of criminal liability and imposed more stringent senten-ces.”79 Reflecting lobbying by victims’ groups, the CBA and medical associa-tions, the amendments, originally introduced to Parliament by the Liberals, then by Progressive Conservative Justice Minister John Crosbie in 1984, au-thorized police to take blood samples from suspects who would not or could not give breath samples and mandated the automatic loss of driving privileges for three months for anyone convicted under the breathalyzer provisions. De-spite the claims of the law’s supporters, an initial case study of enforcement in a Quebec community concluded that Bill C-18 had a negligible impact on driving practices.80

Nationally, impaired driving charges peaked in 1981 and began a two-de-cade decline. Between 1981 and 1998 the rate of persons charged for DWI offences fell by 65%. As police reports on drug enforcement have long indi-cated, arrest and conviction rates are not necessarily a reflection of the true level of illegal activity in society. Despite the apparent decline in activity, activist organizations remained concerned about how lightly impaired driv-ers, especially recidivists, were treated by the courts and society in general.81 Coincidentally, per capita alcohol consumption levels, having peaked in 1978, also were falling, which raises the question: to what degree did breathalyzer enforcement, demographic change and evolving middle-class social norms surrounding impaired driving affect drinking practices? In 1996 Smart and


Ogborne, two of Canada’s leading experts in alcohol policy, stated that the reasons for the drop in consumption were complex and that explanations must be speculative. They suggested the influence of stagnating real incomes and an aging, health-conscious population that also was smoking less, exercising more and attempting to become healthier. Interestingly, they did not mention breathalyzer enforcement as a deterrent to social drinking.82 A Statistics Can-ada publication speculated that one reason that the charge rate had fallen was greater police use of automatic roadside suspensions to deal with “borderline” drivers, rather than adding to court backlogs by prosecuting under the Crimi-nal Code. This observation reflected an established prediction of the research community that tougher laws would result in more police discretion, greater use of defense counsel and more not-guilty pleas. Under provincial legisla-tion, police by 1998 could suspend licences for up to twenty-four hours when drivers testing for as little as 0.04% BAC. Similarly, three-quarters of officers interviewed reported that they laid charges only in cases where the BAC was 0.10% or higher, in order to ensure conviction. Statistics Canada noted that the practice of social drinkers relying on a “designated driver” had become more of a custom during the 1980s and 1990s. The fact that individuals under twenty-five years of age were more at risk to be charged may had reflected police practices, as this cadre was most vulnerable to stop checks and overall police surveillance. New driver or graduated license programs instituted in the 1990s, which limited hours of driving by probationary and young drivers, may also have contributed to a decline in risky activity. 83

conclusIon

The history of impaired driving legislation suggests that generalizations about the liberalization of alcohol policy in Canada in the last quarter of the twenti-eth century have to be qualified. Valverde describes alcohol policy as a com-plex, non-linear exercise in state regulation.84 The two issues reviewed in this paper, attempts to decriminalize public intoxication, and the increased crim-inalization of impaired driving, support Valverde’s observation. They also reveal the continued importance of non-state actors in formulating alcohol policy. On one level, the demise of the CDO and the advent of the “drunk driver” is testimony to the increased importance of the automobile to Can-adian society. Canada had become what the sociologist John Urry refers to as “an automobilized civil society.”85 The response to the impaired driver was an attack not on cars or driving, but a minority of irresponsible individuals. The 1969 breathalyzer provisions were somewhat unique from a legal point of view in that they stressed not an overt act that threatened public safety (dan-gerous driving, causing an accident), but the offender’s biochemical status. As in the case of speeding and other traffic violations, the issue of criminal intent was beside the point. In the discourse of advocacy groups, police, the safety community, politicians and the media, the impaired driver was a potential or actual “killer drunk,” whose vehicle was a loaded weapon. The victim’s


rights movement, ironically, became more vocal and influential after the rate of breathalyzer charges peaked and began a twenty-year decline. In the area of “soft” countermeasures, discretionary and mandatory treatment programs incorporated aspects of the problem drinker theory. But for the most part the discourse on impaired drivers that influenced the federal and provincial governments reflected conservative and individualistic views of deviance as moral failure. As Gusfield noted more than two decades years ago prior to the rise of MADD, the messages in public education campaigns focused on the deviant, anti-social and free-will characteristics of the drinking driver.86 Since the 1970s, media, interest group and public concern over the issue, although intense, has not created a full-fledged moral panic over impaired driving.87 And the punitive approach to alcohol problems met institutional resistance at the working face of the justice system, where negotiation and compromise often prevailed over ideology. Despite the “politics of escalation,” police and judicial discretion protected the bulk of lawbreakers from full penal sanction.

University of New Brunswick - Saint [email protected]

endnotesThe author wishes to thank the two anonymous reviewers who made helpful and insightful com-ments on an earlier version of this paper. Research for this paper was supported by the Social Sciences and Humanities Research Council of Canada.

1. Robert Campbell, Demon Rum or Easy Money? Government Control of Liquor in Brit-ish Columbia from Prohibition to Privatization (Ottawa: Carleton University Press, 1991); Greg Marquis, “Civilized Drinking: Alcohol and Society in New Brunswick, 1945-75,” Journal of the Canadian Historical Association 11 (2000): 173-203; “From Beverage to Drug: Alcohol and Other Drugs in 1960s and 1970s Canada,” Journal of Canadian Studies 39 (Spring 2005): 57-79; Craig Heron, “The Recreational Drug” Chapter 9 in Booze: A Distilled History (Toronto: Between the Lines. 2003): 299-348.

2. Lee Wolff and Bryan Reingold, “Drug Use and Crime” Juristat 14 (June 1994), 4-5; Mar-quis, “Civilized Drinking,” 203; Joseph Gusfield, The Culture of Public Problems: Drinking-Driving and the Symbolic Order (Chicago: The University of Chicago Press, 1981).

3. David T. Courtwright, Forces of Habit: Drugs and the Making of the Modern World (Cam-bridge: Harvard University Press, 2001), 203-5.

4. For a broader examination of automobiles and society from the perspective of sociology, see John Urry, Mike Featherstone and Nigel Thrift eds., Automobilities (London: Sage, 2005); John Urry, Mobilities (Malden: Polity Press, 2007). For Canada, see Christopher Dummitt’s The Manly Modern: Masculinity in Postwar Canada (Vancouver: University of British Columbia Press, 2007).

5. Howard W. Haggard, Alcohol, Science and Society: Twenty-Nine Lectures with Discussions as Given at the Yale School of Alcohol Studies (Journal of Studies on Alcohol, 1946); Donald L. Gerard and Gerhart Saenger, Out-Patient Treatment of Alcoholism (Toronto: Alcoholism and Drug Addiction Research Foundation of Ontario/University of Toronto Press, 1966), 3; M. Keller, “Definition of Alcoholism,“ Quarterly Journal of Studies in Alcohol 21 (1960): 125-34; Herbert Fingarette, Heavy Drinking: The Myth of Alcoholism as a Disease (Los Angeles: University of California Press, 1988), 1-2, 16.

6. Greg Marquis, “‘A Machine of Oppression Under the Guise of the Law’: The Saint John Police Establishment, 1860-1890,” Acadiensis 16 (Autumn 1986): 58-77; Judith Fingard, The


Underside of Life in Victorian Halifax (Porter’s Lake: Pottersfield Press, 1988); John Weaver, Crimes, Constables and Courts: Order and Transgression in a Canadian City, 1816-1970 (Mon-treal: McGill-Queen’s University Press, 1995), Table 3.1; 175, 200.

7. Greg Marquis, “Regeneration Rejected: Policing Canada’s War on Liquor, 1890-1930,” in Crime and Deviance in Canadian Historical Perspectives, ed. Chris McCormick and Len Green (Toronto: Canadian Scholars Press, 2006), 366-79.

8. James L. Collins, “Drinking and Violations of the Criminal Law,” in Society, Culture and Drinking Patterns Re-examined, ed. David J. Pittman and Helene R. White (New Brunswick, N.J.: Rutgers Center of Alcohol Studies, 1991), 651.

9. In Canada, under the jurisdiction of the federal Indian Act and registered by the Department of Indian Affairs starting in the late 1860s, Native Canadians were classified by government as “Status” Indians. In addition, the aboriginal population included “non-Status” Indians, mixed-race or Métis people and Indian women who had married non-aboriginal men, groups over which the federal government claimed to have not special authority. J.R. Miller, Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada (Toronto: University of Toronto Press, 1991), 114-15. On the Drybones decision, see Robert A. Campbell, “Making Sober Citizens: The Legacy of Indigenous Alcohol Regulation in Canada, 1777-1985,” Journal of Canadian Studies 42 (2008): 115-16.

10. Nova Scotia Archives and Record Management (NSARM), RG10, Attorney General, vol. 647/1, “The Public Inebriate Population within the Correctional Institutions,” Province of Nova Scotia, January 1, 1973-January 30, 1975.

11. Drain the Drunk Tank: An Official Statement of Policy of the Canadian Criminology and Corrections Association, an Organization Affiliated with the Canadian Council of Social Devel-opment (November 1970), 5-7.

12. Paul Lerman, Deinstitutionalization and the Welfare State (New Brunswick, NJ: Rutgers University Press, 1984).

13. D.J. Pittman and C.W. Gordon, Revolving Door: A Study of the Chronic Police Inebriate (Glencoe, IL.: Free Press, 1958), 139.

14. Ibid., 141-46. 15. “The Public Inebriate Population.” 16. Ibid; NSARM, RG10, Attorney General, vol. 647/1, James L. Crane to Gordon F. Coles,

October 1, 1975; Halifax Chronicle Herald, April 27, 1970.17. Drain the Drunk Tank, 7-8 and Chapter 5; Earl Rubington, “The Chronic Drunkenness Of-

fender: Before and After Decriminalization,” in Pittman and White, Society, Culture and Drinking Patterns, 738-39.

18. “Summary and Convictions Act,” Revised Statutes of British Columbia, Chap. 373, 1960.19. Drain the Drunk Tank, 11-13.20. “The Public Inebriate Population”; Drain the Drunk Tank, 13-15.21. “The Liquor Control Act,” Revised Statutes of Ontario, Chap. 249, 1970; Toronto Globe

and Mail, March 28, 1969; Drain the Drunk Tank, 17-19; Gusfield, The Culture of Public Prob-lems, 119. For New Brunswick, see Report of the New Brunswick Study Committee on Alcohol-ism to the Minister of Health (Fredericton: typescript, 1972); Evening Times Globe, June 22 and 30, 1973.

22. Valverde, “Judicial diagnostics: Intoxicated Automatism and the Resurrection of the Will” Chap. 8 in Diseases of the Will.

23. Ibid, 199-201.24. For forensic sciences, see Greg Marquis, “The Technology of Professionalism: The Identi-

fication of Criminals in Early Twentieth-Century Canada,” Criminal Justice History XV (1994), 165-88; Geoffrey Baum, “‘The Hazards of the Will to Truth’: A History of the Lie Detector,” (PhD Diss., York University, 1996); Simon Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge: Harvard University Press, 2001); Elise Chenier, Strang-ers in Our Midst: Sexual Deviancy in Postwar Ontario (Toronto: University of Toronto Press, 2008).

25. Dummitt, The Manly Modern, 126. See also, Joel Eastman, Styling vs. Safety: The Ameri-can Automobile Industry and the Development of Automotive Safety, 1900-1966 (Lanham: Uni-


versity Press of America, 1984).26. Halifax Chronicle Herald, September 13, 1961. For the views of the Canadian Association

of Chiefs of Police see Greg Marquis, Policing Canada’s Century: A History of the Canadian As-sociation of Chiefs of Police (Toronto: University of Toronto Press, 1995), 248, 290, 330.

27. Forward, December 9, 1950. A review of the law affecting impaired driving is found in Canada, House of Commons, First Session – 27th Parliament 1966, Standing Committee on Jus-tice and Legal Affairs: Minutes and Proceedings and Evidence No. 1-18 (Ottawa: Queen’s Printer, 1966), 166ff.

28. Gusfield, The Culture of Public Problems, 39-46; Robert Borkenstein, “Historical Per-spective: North American Traditional and Experimental Response,” Studies on Alcohol, 10 (July 1985): 3-12. A level of 0.15% constitutes 150 milligrams in 100 millilitres of blood.

29. Gusfield, The Culture of Public Problems, 62.30. Campbell, Demon Rum, 154. See also Gusfield, The Culture of Public Problems, 29-50.31. The Gallup Poll, 1965-75 (Toronto: Canadian Institute of Public Opinion, 1965-75); Le-

Dain Commission, The Non-Medical Use of Drugs: Interim Report of the Canadian Government Commission of Inquiry (London: Penguin Book, 1971), 67; Canada Year Book 1976-77 (Ottawa: Statistics Canada 1977), 74.

32. B.B. Coldwell, ed. Report on Impaired Driving Tests (Ottawa: Queen’s Printer, 1957).33. Alcoholism Research Foundation, 8th Annual Report of the Alcoholism Research Founda-

tion for the Year Ending December 31, 1958 (Toronto: ARF, 1958), 10. 34. Standing Committee on Justice and Legal Affairs: Minutes and Proceedings and Evidence

No. 1-18, 25-27, 142-46, 174-75.35. Ibid., 29-32, 130-31, 177-79, 196-97.36. Ibid., 474-84.37. Ibid., 132-33.38. Toronto Globe and Mail, January 18, 1969; June 7, 1969.39. Ibid., May 8, 1969.40. Ibid., April 19 1969; House of Commons, Debates, January 27, 1968, p. 4868.41. Standing Committee on Justice and Legal Affairs: Minutes and Proceedings and Evidence

No. 1-18, pp. 534-39.42. D.M. Lucas, “The Breathalyzer – How It Works,” in Breathalyzer Law in Canada: The

Prosecution and Defence of Drinking and Driving, Third Edition, ed. Roderick M. McLeod, John D. Takash and Murray D. Segal (Toronto: Carswell, 1991), 24-1 to 24-11.

43. Greg Marquis, “‘A Reluctant Concession to Modernity: Alcohol and Modernization in the Maritimes, 1945-80,” Acadiensis 32 (Spring 2003), 57; Standing Committee on Justice and Legal Affairs: Minutes and Proceedings and Evidence No. 1-18, p. 608.

44. House of Commons, Debates, January 23 1969, pp. 4718-20.45. Robert Bothwell, Ian Drummond and John English, Canada Since 1945 (Toronto: Univer-

sity of Toronto Press, 1987), 142.46. House of Commons, Debates, February 11, 1969, p. 5379.47. Ibid., January 23, 1969, p. 4720.48. Toronto Globe and Mail, Jan. 28, 1969; March 19, 1969; April 17 1969, May 10, 1969;

June 11-13, 1969. See also, Gary Kinsman, The Regulation of Desire: Sexuality in Canada (Mon-treal: Black Rose Press, 1987), chapter 9.

49. Law Reform Commission of Canada, Investigative Tests (Ottawa: Working paper 34, 1984).

50. Ibid., 67; Toronto Globe and Mail, March 26, 1969. Legislation in Commonwealth coun-tries such as Canada may contain provisions that allow the Executive to choose the date when all or part of the legislation comes into force.

51. Toronto Globe and Mail, Dec. 1-30, 1969.52. Robert J. Carter, “Foreward,” in Macleod et al., Breathalyzer Law, iv.53. Saint John Evening Times Globe, May 31 1973.54. Julian Roberts and Andy Birkenmayer, “Sentencing Trends in Canada: Recent Statistical

Trends,” Canadian Journal of Criminology 39 (October 1997): 459-81.55. The Gallup Poll, Aug. 12, 1970.


56. Halifax Chronicle Herald, April 4, 1970; Saint John Evening Times Globe, April 7, 1972.57. Canada Year Book, 1976-77, p. 77; 1978-79, p. 57; William Kelly and Nora Kelly, Polic-

ing in Canada (Toronto: MacMillan of Canada, 1976), 411-16; Saint John Evening Times Globe, May 21, 1976.

58. Reg Warren and Herb Simpson, Impaired Driving, Technical Report Series No. 8 (Ottawa: Department of National Health and Welfare, 1978), 20.

59. Ontario, Interministry Task Force on Drinking and Driving, Drinking and Driving: A Dis-cussion of Countermeasures and Consequences (Toronto: The Task Force, 1983), iv-v.

60. D. M. Lucas, “Approved Screening Devices – How they work,” in McLeod et al., Breatha-lyzer Law, 25-1 to 26-6; Saint John Evening Times Globe, January 29, 1973.

61. Kelly and Kelly, Policing in Canada, 414-15; McLeod, Takach and Segal, “Screening Demand” in McLeod et al., Breathalyzer Law, 3-1 to 3-87.

62. Alan Donleson, D. J Beirness and D. R. Mayhew, Characteristics of Drinking Drivers. Impaired Driving Report No. 1 (Ottawa: Dept. of Justice, 1985), 16.

63. Julie Sauvé, “Impaired Driving in Canada – 1998,” Juristat 19 (November 1999), 11-12.64. NSARM, RG74, vol. 600, RAID Programme.65. John Reid, A Social and Legal Profile of Saskatchewan Impaired Drivers (Regina: Sas-

katchewan Alcoholism Commission, 1978).66. Donleson et al., Characteristics of Drinking Drivers, 39, 45; Reid, A Social and Legal

Profile, summary.67. Alan Donleson, Alcohol and Road Accidents in Canada: Issues Related to Future Strate-

gies and Priorities; Synopsis. Impaired Driving Report No. 5 (Ottawa: Dept. of Justice, 1985), 9-11; Interministry Task Force, Drinking and Driving, 6.

68. Felix Klager et al., “Prevention of Drunk Driving,” in Prevention of Alcohol Abuse ed. Peter Miller and Ted Niremberg (New York: Plenum Press, 1984), 444.

69. R. v. McGregor (1983), 3, C.C.C. (3d) 200 (Ont. H.C.); R. v. Glass (1982), 9 W.C.B. 164 (B.C. Prov. Ct.); Law Reform Commission, Investigative Tests, 54; Canadian News Facts, 1983, 3264; Canadian News Facts, 1990, 4154; 4234-35.

70. Courtwright, Forces of Habit, 203. See also, Barr, Drink, 260-71. 71. Heron, Booze, 343; Donleson et al., Characteristics of Drinking Drivers, 7; Jack B.

Haskins and Tommie Haskins, “Major Social Action Groups Against Drunk Drivers,” in “Alcohol and Highway Safety: Proceedings of the North American Conference on Alcohol and Highway Safety held at The Johns Hopkins Medical Institutions 12-14 June 1984,” Supplement 10, Studies on Alcohol (1985): 192-95.

72. Norman Giesbrecht, Andrée Demers, Alan Ogborne, Robin Room, Gina Stoduto and Evert Lindquist, “Alcohol Policies: Is There a Future for Public Health Considerations in a Commerce-Oriented Environment?” in Sober Reflections: Commerce, Public Health and the Evolution of Alcohol Control Policy in Canada, 1980-2000 ed. Norman Giesbrecht, Andrée Demers, Alan Ogborne, Robin Room, Gina Stoduto and Evert Lindquist (Montreal: McGill-Queen’s University Press, 2006), 292, 310.

73. Drinking and Driving: A Discussion, 14, 86; Michael Weinwrath, “The Ignition Interlock Program for Drunk Drivers: A Multivariate Test,” Crime and Delinquency, 43, no. 1 (1997): 42-59.

74. Interministry Task Force, Drinking and Driving, 55. 75. Marc Eliany ed., Alcohol and Other Drug Use by Canadians (Ottawa: Health and Welfare

Canada, 1989), figure 11, 225, 227; National Survey on Impaired Driving,” MADD Canada web site: http://madd.ca/library/natsurvey2000.htm (last accessed April 23, 2001); “Booze, Pills and Dope: Reducing Substance Abuse in Canada”; Minutes of Proceedings of the Standing Commit-tee on National Health and Welfare, Issue 28 (Ottawa, 1987), 21.

76. Klagner, “Prevention of Drunk Driving,” 449-55; Interministry Task Force, Drinking and Driving, 8; E. Vingilis, E. Adlaf, and L. Lhung, “The Oshawa Impaired Driver Program: An Evaluation of a Rehabilitation Program,” Canadian Journal of Criminology, 23 (1981): 93-102.

77. Weinwrath, “The Ignition Interlock,” 43.78. Ontario Advisory Committee on Liquor Regulation, Report of the Advisory Committee on

Liquor Regulation (Toronto: Ministry of Consumer and Commercial Relations, 1987), 22-23;


Donleson et al., Characteristics of Drinking Drivers, xi-xii.79. Wolff and Reingold, “Drug Use and Crime,” figure 1, note 1, page 4. 80. Canadian News Facts, 1985, 3243; Serge Brochu et al., “La conduite avec facultes af-

faibles: analyse des statistiques de la ville de Sherbrooke,” Canadian Journal of Criminology, 32 (2) (1990): 279-90.

81. Julie Sauvé, “Impaired Driving in Canada,” 1-6; Saint John Evening Times Globe, Aug. 20-21, 2001.

82. Smart and Ogborne, Northern Spirits, 72-73.83. Sauvé, “Impaired Driving in Canada.”84. Valverde, Diseases of the Will, 5, 11.85. Urry, Mobilities, 130.86. Barr, Drink, 292; Gusfield, The Culture, 151-53.87. The criteria of moral panics are explained in Erich Goode and Nachman Ben-Yehuda,

Moral Panics: The Social Construction of Deviance (Cambridge: Blackwell Publishers, 1994).

“incriminating conditions of the body:” the breathalyzer and the

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