There have been some major changes to impaired driving laws in the past year, on both Provincial and Federal Levels.
The most recent changes, brought in by Bill C-46, are likely to be challenged on a constitutional level, but until that happens you need to be aware of what has changed.
The new laws took effect on December 18, 2018 and the major differences are as follows:
- Eliminating the requirement that a police officer have a “reasonable suspicion” a driver has alcohol in their body before requesting a roadside test into an Approved Screening Device. It used to be that an officer had to have some grounds to believe that a driver had alcohol in their system before requesting a driver blow into a device. This was a low standard and could be established by such things as the smell of alcohol on the driver’s breath or an admission by the driver that they had consumed alcohol. This eliminates a major defence to Motor Vehicle Act and Criminal Code “refusal” charges, where a driver could argue they refused providing a sample because the officer had no grounds to request a sample.
- Making it an offence to have over 0.08 BAC within 2 hours of driving. This accomplishes the goal of eliminating the defence of ‘Bolus’ drinking where a person argues that they drank a large amount of alcohol immediately prior to driving and that their BAC could not be shown to be over the limit while driving (as it would still be increasing after driving). This section is likely to be the subject of a significant constitutional challenge. Lawyers speculate that this new change will allow police to come to a person’s residence and require they provide a sample within 2 hours of driving – something that many Canadians find offends their sense of liberty. This change is likely to be the subject of enormous controversy as citizens may be charged and will have to raise the defence that they consumed alcohol after driving (thereby going through the expensive and stressful process of being charged with a criminal offence).
- Changes the minimum penalties for impaired driving: $1000 fine if your BAC is between 80 mg and 119 mg, $1500 if it is between 120 mg and 159 mg and $2000 if it is more than 160 mg. A refusal charge will result in a $2000 fine.
- Creates a specific regime and offences targeting cannabis impaired driving. This will require an officer to have a reasonable suspicion and will allow an officer to request a saliva test. There is no evidence or scheme to relate a level of THC in one’s blood to their level of impairment but the Government has set the standard as a minimum of 2 ng/ ml of blood (with more serious charges arising at the level of 5 ng/ ml blood). There are also different offences if the person has a mix of a BAC of 50 mg and a THC level of at least 2.5 ng. Medicinal user of cannabis are likely to be in a situation where they are unable to drive as THC can remain in the body for weeks following use and they may be at an illegal limit despite no level of impairment at all.
- Creates offences for driving with any level of LSD, psilocybin, ketamine, PCP, cocaine, or methamphetamine in your blood within 2 hours of driving.
- Allowing an officer to subject a person to a Standard Field Sobriety Test or a Drug Recognition Expert Evaluation. Both of these tests have significant issues with accuracy and false positives.
Many Canadians support some action being taken against impaired driving, however, many of the changes may result in a broadening of police powers and investigative techniques. The shift of an officer not requiring any grounds for a breath demand is likely to result in a significant constitutional challenge. Many Canadians are likely going to be offended that police will be able to request a breath sample within 2 hours of driving and if the person fails or refuses, they may be charged. While you may have a defence that they drank after driving, it is now up to you to prove that fact in court. This is likely to capture many innocent drivers who attempt to do the right thing and only consumed alcohol after driving.
What is clear is that this is going to raise new issues that need to be considered in an impaired driving charge. It is going to require a person charged with it to seek legal counsel in order to explore the various legal issues of their case. It will be imperative to seek knowledgeable and experienced counsel on your case.