FAQs
What are the new impaired driving laws in Canada?
What are the new impaired driving laws in Canada?
On December 18, 2018, the federal government dramatically changed impaired driving laws across the country by repealing the old law and replacing it with newly expanded impaired driving laws. While most of the changes have little impact to the general public, two new provisions greatly increase police powers and can easily affect every person who operates a motor vehicle:
Mandatory Roadside Screening
Prior to the new amendments, a police officer could only demand that you provide a roadside sample of breath into a screening device if he or she had a reasonable suspicion that you had alcohol in your body while operating a motor vehicle. If you admitted to consumption, had the smell of alcohol emanating from your breath or other such indicia, a police officer could read a demand that forced you to blow into a device to test the level of alcohol in your system. If you passed, you were free to drive away. If you failed, you would be placed under arrest and taken to provide samples of breath at a police station to determine whether you are over the legal limit of 0.08.
The process to determine if you had alcohol in your body was not time consuming or difficult for police officers. A brief conversation with a driver was all it took to determine if grounds were present to read a roadside demand for a sample of breath. Despite the relative ease in which police officers could make such a determination, the federal government added a dramatic new provision to the Criminal Code that allows a police officer to pull over any driver at any time and demand they provide a sample of breath. Section 320.27(2) authorizes a police officer to conduct random roadside screenings for the presence of alcohol in the body without needing to have reasonable grounds to suspect that an offence has been committed.
Proponents of this newly increased police power argue that if you aren’t drinking and driving, you have nothing to worry about. This argument is factually incorrect. If you are unable to provide a sample of breath into the roadside screening device for any reason, you will be charged with refusing to provide a sample of breath, have your vehicle towed, lose your licence for 90 days, be put on Interlock for 12 months after the 90 day suspension and have to hire a lawyer to defend your criminal charge. If you are convicted, you face a minimum fine of $2,000 and a one-year driving prohibition.
Many people are unable to provide a sample of breath for a variety of reasons, most often medical. Even if you have consumed no alcohol and make numerous attempts to provide a sample of breath, you can be arrested and have your life turned upside-down if for any reason you can’t provide the required sample.
If you are pulled over by police and are read the Mandatory Alcohol Screening Demand, you must comply or you will be charged with refusal. Prior to providing a sample, you do not have the right to call a lawyer for legal advice.
Drinking After Driving
Another significant change to impaired driving laws is that you can now be charged with driving over 0.08 if you consumed alcohol after driving. Under section 320.14(1)(b), police can demand samples of breath up to two hours after you drove. If you blow over the legal limit, you can be criminally charged. This means that if you drive completely sober, go into a bar or your house, consume alcohol and the police subsequently demand samples of your breath for an ongoing investigation, you can be charged with driving over 0.08 if you blow over. All of this despite the fact you didn’t consume alcohol prior to or while driving.
This provision will most often be employed if you were involved in an offence involving your vehicle, such as a hit and run, and the police come to your house within two hours of when the incident was reported. If you consumed alcohol once you arrived at home and police have grounds to believe you are impaired once they speak with you at your door, you can be arrested and compelled to provide samples of breath.
With the passing of this new law, the government included a subsection that provides that:
No person commits an offence under paragraph (1)(b) if they consumed alcohol after ceasing to operate if they had no reasonable expectation that they would be required to provide a sample of breath or blood.
This is a vague and arbitrary attempt at providing a defence to people charged for drinking after the alleged offence. Even if it does provide a defence at trial, it doesn’t prevent people from being wrongfully charged with a criminal offence, having their license suspended for 90 days, being forced to install the Interlock device and having to hire a criminal defence lawyer. This “defence” also appears to create a reverse onus in which the accused must prove their innocence to the Court.
This new provision of impaired driving laws was an attempt by the government to remove the little-used “bolus drinking” defence in which a person would claim they had a significant amount to drink right before they drove and the alcohol was not full absorbed into their bloodstream at the time of driving. It was also an attempt to remove another little-used defence in which a person claimed post-offence drinking to defeat the results of the breath test.
Penalties
The new impaired driving laws also include new penalties for all of the included offences which vary depending on the concentration of alcohol or drug in your system, whether you are a first-time offender or repeat and whether you have caused bodily harm to another person.
Comparison of Previous vs. New Penalties under Bill C-46
The new impaired driving laws under Bill C-46 contained significant changes to penalties for many driving related offences. The following tables provide comparisons of the old and new penalties.
| Dangerous Operation | ||||
| Offence | Punishment | |||
| Previous Legislation (ss. 249 and 787) | Bill C-46 (Part 2) (New ss. 320.13, 320.2 and 320.21) |
|||
| Dangerous Operation | Indictment | Summary Conviction | Indictment | Summary Conviction |
| Max: 5 years | Max: $5,000 and 6 months | Max: 10 years | Max: 2 years less a day |
|
| Operation Causing Bodily Harm | Indictment | Indictment | Summary Conviction | |
| Max: 10 years | Max: 14 years Min: $1,000; 30 days; 120 days | Max: 2 years less a day Min: $1,000; 30 days; 120 days |
||
| Operation Causing Death | Indictment | Indictment | ||
| Max: 14 years | Max: Life Min: $1,000; 30 days; 120 days | |||
| Dangerous Operation | ||||
| Offence | Punishment | |||
| Previous Legislation (ss. 253, 255(1), 255(2), 255(2.1), 255(3), 255(3.1) and 255(3.3)) | Bill C-46 (Part 2) (New ss. 320.14, 320.19, 320.2 and 320.21(1)) |
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| Operation while impaired | Indictment | Summary Conviction | Indictment | Summary Conviction |
| Max: 5 years Min: $1,000; 30 days; 120 days | Max: 18 months Min: $1,000; 30 days; 120 days | Max: 10 years Min: $1,000; Min: $1,000; 30 days; 120 days | Max: 2 years less a day Min: a, b $1,000; 30 days; 120 days |
|
| Operation while impaired (low blood drug concentration) | Summary Conviction |
|||
| Max: $1,000 |
||||
| Operation while impaired causing bodily harm | Indictment | Indictment | Summary Conviction |
|
| Max: 10 years Min: $1,000; 30 days; 120 days | Max: 14 years Min: $1,000; 30 days; 120 days | Max: 2 years less a day Min: $1,000; 30 days; 120 day |
||
| Operation while impaired causing death | Indictment | Indictment | ||
| Max: Life Min: $1,000; 30 days; 120 days | Max: Life Min: $1,000; 30 days; 120 days |
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| Failure or Refusal to Comply with a Demand | ||||
| Offence | Punishment | |||
| Previous Legislation (ss. 254(5), 255(2.2), 255(3.2) and 255(3.3)) | Bill C-46 (New ss. 320.15, 320.19(1), 320.19(4), 320.2 and 320.21) |
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| Failure or refusal to comply with a demand | Indictment | Summary Conviction | Indictment | Summary Conviction |
| Max: 5 years | Max: 18 months Min: $1,000; 30 days; 120 days | Max: 10 years Min: $2,000; 30 days; 120 days | Max: 2 years less a day Min: $2,000; 30 days; 120 days |
|
| Failure or refusal to comply with a demand when the person knows, or ought to know, that he or she caused an accident resulting in bodily harm | Indictment | Indictment | Summary Conviction |
|
| Max: 10 years Min: $1,000; 30 days; 120 days | Max: 14 years Min: $1,000; 30 days; 120 days | Max: 2 years less a day Min: $1,000; 30 days; 120 days |
||
| Failure or refusal to comply with a demand when the person knows, or ought to know, that he or she caused an accident resulting in death | Indictment | Indictment | ||
| Max: Life Min: $1,000; 30 days; 120 days | Max: Life Min: $1,000; 30 days; 120 days |
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| Failure to Stop After an Accident |
||||
| Offence | Punishment | |||
| Previous Legislation (ss. 252 and 787) | Bill C-46 (New ss. 320.16, 320.19(5), 320.2 and 320.21) |
|||
| Failure to stop after an accident | Indictment | Summary Conviction | Indictment | Summary Conviction |
| Max: 5 years | Max: $5,000 and 6 months | Max: 10 years | Max: 2 years less a day |
|
| Failure to stop after an accident resulting in bodily harm | Indictment | Indictment | Summary Conviction |
|
| Max: 10 years | Max: 14 years Min: $1,000; 30 days; 120 days | Max: 2 years less a day Min: $1,000; 30 days; 120 days |
||
| Failure to stop after an accident resulting in death | Indictment | Indictment | ||
| Max: Life | Max: Life Min: $1,000; 30 days; 120 days |
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| Flight from a Peace Officer |
||||
| Offence | Punishment | |||
| Previous Legislation (ss. 249.1 and 787) | Bill C-46 (New ss. 320.17 and 320.19(5)) |
|||
| Flight from a peace officer | Indictment | Summary Conviction | Indictment | Summary Conviction |
| Max: 5 years | Max: $5,000 and 6 months | Max: 10 years | Max: 2 years less a day |
|
| Flight causing bodily harm or death | Indictment | (Not Applicable) | ||
| Operation While Prohibited |
||||
| Offence | Punishment | |||
| Previous Legislation (ss. 259(4) and 787) | Bill C-46 (New ss. 320.18(1) and 320.19(5)) |
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| Operation while prohibited | Indictment | Summary Conviction | Indictment | Summary Conviction |
| Max: 5 years | Max: $5,000 and 6 months | Max: 10 years | Max: 2 years less a day |
|
| Minimum Periods of Absolute Prohibition on the Operation of a Conveyance |
||
First or Subsequent Offence | Current Legislation (s. 259(1.2)) | Bill C-46 (new s. 320.24(10)) |
| First offence | Three months after the punishment is imposed or any greater period that may be set by order of the court | Any period that may be set by order of the court |
| Second offence | Six months after the punishment is imposed or any greater period that may be set by order of the court | Three months after the punishment is imposed or a longer period that may be set by order of the court |
| Subsequent offences | Twelve months after the punishment is imposed or any greater period that may be set by order of the court | Six months after the punishment is imposed or a longer period that may be set by order of the court |
Myths vs Facts
In attempt to dispel myths about the new impaired driving laws, the Government of Canada provided the following infographic.
Detailed Summary of the New Impaired Driving Laws
The enactment of Bill C-46 repealed all Criminal Code driving offences and replaced them with a new scheme starting at section 320.11. This relates not only to impaired driving laws (impaired driving, driving over 0.08 and refusing to provide a sample of breath, all commonly known as DUI), but also includes offences relating to dangerous driving, leaving the scene of an accident, police pursuits, driving while prohibited and any driving offence that causes bodily harm. While the new provisions are expansive, we have attempted to provide a brief but detailed overview:
Reliability of Approved Instruments and Police Methods
Parliament has statutorily recognized the approved instruments produce reliable and accurate readings of blood alcohol concentrations. It has further been recognized that an evaluating officer is a reliable method of determining whether a person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug.
Offences and Punishment
Parliament has created more offences and greater punishments. Fines have significantly increased, driving prohibitions have expanded and new offences and definitions of intent are now present.
- “Impaired Driving” is defined as operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug.
- The legal limit is now defined as 0.08 or over 80mg of alcohol in 100mL. (It used to be only over 80)
- The offence expanded from operating a conveyance while impaired or over the legal limit to impaired or over 0.08 within two hours after ceasing to operate a conveyance.
- The defence of “bolus drinking” is eliminated
- There is a reverse-onus on the accused to negate the offence within two hours of operating a motor vehicle, i.e. the alcohol was consumed after driving and they didn’t have any reasonable expectation police would demand breath samples
- A new offence has been created if a person refuses to provide a sample of breath after being in an accident.
- If death or bodily harm occurs while committing an offence under section 320.14(1), a further and aggravated offence is made out.
- Newly expanded definitions of operating while prohibited are added under section 320.18(1).
- Increased sentences.
- Removal of curative discharges.
- Statutorily prescribed aggravating factors in sentencing.
- Expanded prohibition order powers.
Investigative Matters
- The term “forthwith” is replaced with “immediately”.
- If a police officer has reasonable grounds to suspect that a person has alcohol or drug in their body and has operated a conveyance within the preceding three hours, a demand can b made to:
- Provide a sample of breath into a screening device:
- Physical coordination tests; or
- Provide a sample of a bodily substance required for an approved screening device for detection of drugs
- If an officer has an approved screening device with them, they are no longer required to have a reasonable suspicion to test for alcohol, now known as the mandatory screening provision.
- If an officer has reasonable grounds to believe that a person has operated a conveyance and their ability was impaired to any degree by drug or alcohol in the preceding three hours, then they may demand as soon as practicable:
- Submit to an evaluation by an “evaluating officer” to determine whether that person is impaired by drugs, alcohol or a combination of both.
- To provide a sample of blood in the opinion of a qualified medical practitioner or qualified technician are necessary to enable a proper analysis of the person’s blood drug concentration or BAC
Evidentiary Matters
- A person’s failure to comply with a lawful demand is admissible evidence against that person for which an adverse inference may be drawn.
- Statements made, even if statutorily compelled under a Provincial Act (generally the Traffic Safety Act), are admissible for the purpose of justifying a demand under sections 320.27 or 320.28.
- Samples of a person’s breath are conclusive proof of the person’s BAC at the time when the analysis was made.
- There is a statutory prohibition in raising evidence to the contrary to undermine the results of the testing machine.
- If the sample is taken outside of two hours of the time the person is said to have operated the conveyance, and that sample is equal to or exceeding 20mg/100mL of blood, then there is a statutory elimination/absorption rate for courts to retroactively calculate BAC levels. This eliminates the need for the Crown to call an expert.
- There is no need to qualify a Drug Recognition Evaluating officer as an “expert”.
- Reasonable notice is required for the admissibility of certificates.
- A presumption of operation is present whenever a person occupies the seat of position ordinarily occupied by operating the conveyance. The accused must establish they did not occupy the seat for the purpose of setting the conveyance in motion.
Conclusion
If you have been charged with impaired driving, driving over 0.08 or refusing to provide a sample of breath, you need a highly experienced DUI lawyer to defend you. The penalties upon conviction are severe and can have lifelong impacts to your employment, immigration status and ability to travel.
About Cory Wilson
Cory has represented individuals from all walks of life including lawyers, police officers, athletes, corporate executives, teachers, and everything in between. Cory believes in access to justice for every person charged with a criminal offence regardless of their economic background.