In 2018, Bill C- 46 was passed and with it came significant changes to impaired driving laws in Canada. Bill C-46 repealed sections 249 to 261 of the Criminal Code and replaced it with Part VIII.1 – sections 320.11 to 320.4
The changes include three new offences referring to a blood drug concentration (BDC) over the legal limit. In addition changes were made to the offences of operating while impaired, operating while "over 80" and refusal to comply with a breath demand. Elements of all other transportation offences appear to be similar to their previous versions although there have been some language changes.
The new provisions have also introduced some new and higher mandatory minimum fines and some higher maximum penalties for impaired driving offences.
The new Part VIII.1 of the Criminal Code contains 10 basic transportation offences (those relating to impaired driving are highlighted):
- Dangerous operation of a conveyance (section 320.13);
- Operating a conveyance while impaired (paragraph 320.14(1)(a));
- Having a blood alcohol concentration (BAC) of 80 mg of alcohol in 100 ml of blood or more within two hours of operating a conveyance (paragraph 320.14(1)(b));
- Having a blood drug concentration (BDC) over the prescribed legal limit within two hours of operating a conveyance (paragraph 320.14(1)(c));
- Having a combined BAC and BDC over the prescribed legal limit within two hours of operating a conveyance (paragraph 320.14 (1)(d));
- Having a BDC over a prescribed limit that is lower than the BDC set under paragraph 320.14(1)(c) within two hours of operating a conveyance (subsection 320.14(4));
- Refusing to comply with a demand (section 320.15);
- Failure to stop after an accident (section 320.16);
- Flight from peace officer (section 320.17); and
- Driving a conveyance while prohibited (section 320.18).
Impaired Operation – s. 320.14(1)(a)
While the wording of the offence has changed a bit, this sections remains the same as the previous law. It is an offence to operate a conveyance (vehicle) if a person's ability is impaired by alcohol or a drug or a combination of alcohol and a drug "to any degree".
Operating with a BAC equal to or exceeding 80 mg of alcohol in 100 ml of blood within two hours of driving – s. 320.14 (1) (b)
The terms "equal to or exceeding" is a new term that the government has included in response to concerns regarding the practice of truncating blood alcohol concentration (BAC) results (i.e., rounding the test results down to the nearest multiple of 10). The new formulation of the offence "operating at or over 80 within two hours of driving" changes the timeframe within which the offence can be committed and is an attempt by the government to eliminate the bolus drinking defence and the intervening drink defence.
The bolus drinking defence arose when a driver claimed to have consumed alcohol just before driving and/or while driving. Although they admitted that their BAC was "over 80" at the time of testing, they would claim that the alcohol was still being absorbed and, at the time of driving, they were not "over 80".
The intervening drink defence would arise when a driver consumed alcohol after driving but before they provided a breath sample. This defence often came up when there had been a motor vehicle collision and the driver claimed that they were settling their nerves post accident.
The only situation in which a driver can now rely on intervening consumption to avoid a conviction is captured in subsection 320.14(5) (or subsections (6) & (7) for drug consumption). The offence is not made out if all of the following conditions are met:
- The person consumed alcohol after ceasing to operate the conveyance;
- The person had no reasonable expectation that they would be required to provide a sample of breath or blood; and,
- Their alcohol consumption is consistent with their BAC at the time the samples were taken and with their having had a BAC of less than 80 at the time of operation.
The proposed penalties and prohibitions for impaired driving and over 80 offences have also been changed.
The mandatory minimum fines have gone up. A first conviction for impaired driving or having a blood alcohol concentration (BAC) of 80 to 119 is $1,000, which was the previous mandatory minimum for a first offence. However, there are now higher mandatory fines for first offenders with high BAC levels: $1,500 for a BAC of 120 to 159, and $2,000 for a BAC of 160 or more. The mandatory minimum fine for a first refusal to comply with a breath demand conviction has also been increased to $2,000.
The current mandatory minimum penalties for repeat offenders remain the same as before: 30 days imprisonment for a second offence and 120 days imprisonment for a third or subsequent offence. The maximum penalty for all the transportation offences has been increased from 18 months to two years less a day on summary conviction, and from 5 years to 10 years on indictment.
Operating a Conveyance with a BDC equal to or exceeding the legal limit within two hours of operating a conveyance – sections 320.14(1)(c), (d) and 320.14(4)
There are three new criminal offences related to drug-impaired driving or when a motorist is impaired by drugs or a combination of drugs and alcohol.
Section 320.14(1)(c) makes it an offence to have a BDC equal to or over the prescribed limit within two hours of operating a conveyance.
Section 320.14(1)(d) makes it an offence to have a combined BAC and BDC equal to or over the prescribed limit within two hours of operating a conveyance.
Section 320.14(4) makes it a less serious offence to operate a conveyance with a lower level of drug impairment than prescribed by s. 320.14(1)(c), but that is equal to or over an amount prescribed by regulation.
The penalties for driving with a BDC over the legal limits depend on the drug type and the levels of drug or the combination of alcohol and drugs. The levels are set by regulation.
With some drugs – including LSD, ketamine, PCP and cocaine – it is an offence to have any detectable amount of the substance in your system within two hours of driving.
For cannabis and THC (the main psychoactive compound in cannabis), the legal limits and the respective penalties are the following:
- Under s. 320.14(1)(c), having 5 nanograms (ng) or more of THC per ml of blood within two hours of driving would be a hybrid offence. Hybrid offences are offences that can be prosecuted either by indictment, in more serious cases, or by summary conviction, in less serious cases.
- Under s. 320.14(1)(d), having a blood alcohol concentration (BAC) of 50 milligrams of alcohol per 100 ml of blood (or more), combined with a THC level of 2.5 ng per ml of blood or higher within two hours of driving is a hybrid offence.
The hybrid offences under s. 320.14(1)(c) and (d) would be punishable by mandatory penalties of $1,000 for a first offence and escalating penalties for repeat offenders (as with alcohol impairment and over 80 offences – 30 days imprisonment on a second offence and 120 days on a third or subsequent offence). The maximum penalties are imprisonment for two years less a day on summary conviction (up from 18 months), and to 10 years on indictment (up from 5 years).
- Under s. 320.14(4), having at least 2 nanograms (ng) of THC but less than 5 ng of THC per millilitre (ml) of blood within two hours of driving would be a less serious summary conviction criminal offence, punishable by a fine of up to $1,000.
In addition to the mandatory minimum fines and imprisonment penalties, impaired and over the legal limit offences (for both alcohol and drugs) also continue to carry with them mandatory driving prohibition orders. These penalties are now contained in section 320.24 of the Criminal Code.
Charter and other Concerns
Numerous aspects of the new impaired driving regime will face scrutiny under the Canadian Charter of Rights and Freedoms. It is anticipated that cases involving these offences will be challenged in the courts and the constitutionality of the new provisions will eventually be decided by the Supreme Court of Canada.
Here are several aspects of the new laws that will likely be debated in the courts:
Mandatory Alcohol Screening – s.320.27(2)
Under the previous law, the police had to have a reasonable suspicion of alcohol in the body to be able to demand a roadside alcohol screening. A significant change with the new law is the introduction of mandatory alcohol screening under s.320.27(2). With this new section, a police officer who has lawfully stopped a driver is able to demand that the driver provide a breath sample into an Approved Screening Device (ASD) without needing to have a reasonable suspicion that the driver has alcohol in the body.
This provision has drawn significant criticism from the criminal defence bar and civil liberty advocates. Critics of the provision argue that it amounts to an arbitrary use of police power. Taking away the "reasonable suspicion" previously required by the police will be challenged as a violation of one's Charter rights, notably their right to be free from unreasonable search and seizure.
The New Language "Within Two Hours of Operating a Conveyance"
This new provision making it an offence to have a certain BAC and or BDC within two hours of driving has also drawn heavy criticism. It goes without saying that criminalizing drinking after one has been driving will be vigorously challenged in the courts. In attempting to take away previously used defences (such as bolus drinking and the intervening drink defence), the federal government is now potentially criminalizing individuals who have not been drinking and driving. At the very least, the new section appears to put an onus on the public under sections 320.14 (5), (6) and (7) to show several things, including that they started drinking and/or consuming drugs after they drove and that they had no reasonable expectation they would be required to provide a breath sample.
Do the new offences of "BDC over a prescribed limit" actually catch those who are impaired as it relates to cannabis?
The new prescribed limits for cannabis/THC are controversial. Critics have argued that there is not a clear link between the level of THC in the blood and the degree of impairment, as there is with alcohol. Competing scientific evidence and argument over whether the present prescribed levels of THC blood concentration actually establish "impairment" are likely.
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