New Laws on Impaired, Other Driving Crimes

Canada’s criminal laws on impaired driving and other driving offences have been dramatically revamped. The changes took effect on December 18, 2018.

Here are some highlights:

• Police can demand you to provide bodily samples at the roadside to test for drugs
• Police can demand you to provide a breath sample at the roadside apparently even without a reasonable suspicion you have alcohol in your body
• Legal limit for alcohol drops from over 80 mg in 100 ml of blood to 80 mg
• New offences created involving driving with drugs in your body
• Penalties for impaired driving increased
• You can avoid minimum fines or jail penalties for impaired driving, exceed or refuse if you do treatment before sentencing

New Roadside Demand Powers

If police have reasonable grounds to suspect that you have a drug in your body, they can now demand that you provide forthwith a sample of a bodily substance for analysis by approved drug screening equipment.

Before the amendments, police who suspected you had a drug in your body could demand only that you do physical coordination tests to determine whether there were grounds for further investigation that might entail the taking of bodily samples (if police later formed reasonable grounds to believe that your ability to operate a vehicle was impaired by drugs).

Roadside Alcohol Screening Test Without Evidence of Alcohol Use

A police officer who has an approved screening device in his or her possession can require the driver of a motor vehicle to provide a breath sample into the device (see section 320.27(2)). There is no mention of the need for evidence of alcohol consumption to justify the officer’s demand. However, the officer must be acting in the course of the “lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law.” This section will likely be challenged in court on the basis that unless police reasonably suspect you have alcohol in your body, it runs afoul of the Charter right against unreasonable search and seizure.

Legal Limit Drops

The legal limit for excess alcohol drops to 80 mg in 100 ml of blood (80 mg%). Previously it was an offence to have in excess of 80 mg of alcohol in 100 ml of blood: hence the erstwhile offence of “Over 80 mg.” Since breathalyzer readings are generally truncated or rounded down to the nearest multiple of 10, any reading below 90 mg% will now expose you to conviction. Previously, if your breath test results were between 81 and 89 mg of alcohol in 100 ml of blood, the results would not lead to a criminal charge if they were rounded down to 80 mg%.

New Definition of “Operate” (Motor Vehicle, Vessel, Aircraft, Train)

“Operation” of a motor vehicle, vessel (boat), aircraft or train has been redefined to include care or control. As a result, you will no longer be charged with “care or control.” Operation of a boat or aircraft includes assisting in navigation. A motor vehicle, vessel, aircraft, or train is now referred to as a “conveyance.”

Crime to be Over Legal Limit Within Two Hours of Operation

It is now an offence to have 80 mg or more of alcohol in 100 ml of your blood within two hours of operating a vehicle. But you are not criminally liable if all of the following criteria are met:

• you drank alcohol after operation
• you had no reasonable expectation that you would have to provide a sample of breath or blood
• your alcohol consumption is such that your BAC was under 80 mg% at the time of operation and consistent with the BAC test results

Elimination of Defences

The new law virtually eliminates the so-called “bolus drinking” and “last drink” defences. These defences enabled you to raise a reasonable doubt that your BAC was over the legal limit at the time of driving with evidence that your alcohol consumption was such that not all of the alcohol you had consumed was absorbed by your blood when police stopped you. In other words, you were under 80 mg% at the time of operation but over afterwards. These defences are more or less eliminated because you can escape criminal liability for breath readings over the legal limit within two hours of operation only if, among other things, you drank alcohol after ceasing to operate a vehicle.

Putting these defences out of reach will surely invite a constitutional challenge because it could criminalize persons who were under the legal limit at the time of operation and did not drink afterwards.

Previously, the law criminalized having an illegal BAC at the time of operation. As a result, the Crown no longer has to establish that your blood alcohol concentration as shown by the tests was the same at the time you were operating your vehicle. This eliminates the “as soon as practicable” defence that often barred the Crown from relying on breath test results taken within two hours of the offence where unreasonable police activity (e.g., stopping for donuts) held up the testing.

Breath or blood tests taken over two hours after the offence

If your BAC is tested outside two hours from the time of operation, then your BAC within those two hours is conclusively presumed to be the total of the test result (the lower of the two in the case of varying breath tests) plus five mg of alcohol in 100 ml of blood for every 30 minutes in excess of those two hours. (See section 320.31(4).) This amendment will save the prosecution from having to bring an expert (toxicologist) to court to calculate your BAC if your breath or blood samples were taken outside two hours.

New Impaired Driving Offences

New impaired driving offences have been created based on blood drug concentration. The illicit concentration is set by regulations that prescribe a low and high threshold as well as a concentration that’s prohibited in combination with alcohol. It will now be a crime if within two hours of operating a vehicle you have:

• a blood drug concentration that is equal to or exceeds the higher blood drug concentration
• a blood drug concentration that is equal to or exceeds the lower blood drug concentration and that is less than the higher threshold
• or a blood alcohol concentration (BAC) and a blood drug concentration that is equal to or exceeds the BAC and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined

You can escape criminal liability if there’s evidence you consumed the drug after operation and you had no reasonable expectation that you would have to provide a sample of a bodily substance. If you’re charged with the offence that combines illegal levels of both a drug and alcohol, there needs to be evidence that the alcohol was consumed after operation; that you had no reasonable expectation that you would have to provide a sample of breath or blood; and that your alcohol consumption was such that your BAC was under the illegal level at the time of operation and consistent with the BAC test results.

Where the blood drug concentration is at or above the lower threshold but below the higher one, the offence is punishable only by summary conviction and carries a fine of up to $1,000. A finding of guilt for this offence, section 320.14(4), is not considered a previous offence that triggers the imposition of mandatory higher penalties for impaired driving offences. While a driving prohibition can be imposed if you’re found guilty under this section, it’s not mandatory as in the case of all other impaired driving crimes.

Penalties Increased

If your BAC is equal to or exceeds 120 mg of alcohol in 100 ml of blood, but is less than 160 mg%, you’ll face a $1,500 minimum fine. If your BAC is equal to or greater than 160 mg%, you’ll face a fine of at least $2,000. The minimum fine for refuse sample has doubled to $2,000. Curiously, however, where bodily harm to another person or death ensues from an accident, the minimum fine for refuse sample remains $1,000. This appears to be a legislative oversight.

The maximum jail sentence for impaired driving, exceed and refuse if prosecuted by summary conviction jumps from 18 months to two years less a day. For prosecution by indictment, the maximum jail sentence for these offences has increased from five years to 10. These increases also apply to drive disqualified, dangerous driving, fail to remain at the scene of an accident and flee police.

For a full list of the new penalties see Penalties for New Impaired Driving, Exceed and Other Driving Crimes.

Aggravating Circumstances for Sentencing

If you’ve been found guilty of dangerous driving, fail to remain, flee police, impaired driving or exceed, the law now requires the court to consider the following factors and treat them as aggravating in sentencing:

• the commission of the offence resulted in bodily harm to, or the death of, more than one person
• you were operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place
• a person under the age of 16 years was a passenger in your vehicle
• you were being paid for operating the vehicle
• your BAC at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 ml of blood
• your were operating a large motor vehicle (“large” is not defined)
• you were not permitted by law to operate the vehicle

You Can Now Avoid Driving Prohibition and Minimum Penalties

With the consent of the prosecutor, the court may allow you to do a substance abuse treatment program after being found guilty and before sentencing. You’ll be prohibited from driving till you’re sentenced. Upon successful completion of the treatment program, the court will not be required to impose the minimum punishments or a driving prohibition. In determining whether to delay sentencing for this purpose, the court must consider “the interests of justice.”

Notwithstanding that a minimum penalty no longer applies, the provision specifies that the court still cannot grant you a discharge. (This proviso prevents the application of Section 730(1) of the Criminal Code which says a discharge is available if the offence is one for which no minimum punishment is prescribed by law.) A curative discharge to facilitate treatment for drug or alcohol abuse is no longer available under the amendments.

Driving Prohibition No Longer Mandatory for Drive Disqualified

Under the amendments if you’re found guilty of drive while disqualified you may be prohibited from driving. Previously a prohibition order was mandatory.

A driving prohibition of up to one year is discretionary if you’ve been found guilty of having an illegal blood drug concentration below the higher threshold set by regulation contrary to section 320.14(4).

A conviction for impaired driving, exceed or refuse results in a mandatory driving prohibition of 1-3 years for a first offence; 2-10 years for a second offence (the maximum is up from 5 years); and not less than three years for a subsequent offence.

A driving prohibition remains discretionary following a finding of guilt for dangerous driving, fail to remain at the scene, and flee police. Similarly, it remains discretionary if you’ve been convicted of an impaired driving, exceed or refuse offence with an accident that led to another person’s bodily harm or death.

Blood, Sweat and Tears: Voluntary Samples

If without being required to do so, you provide police a sample of breath, blood, urine, sweat or other bodily substance, the results of the analysis of that sample may be used against you even if you were not warned that you did not have to give the sample or that the sample might be used in evidence. This section is designed to counter the argument that the seizure and/or use of such samples to incriminate you is unconstitutional.

Use of Compelled Statements to Form Grounds

A statement made by a person to a police officer, even if compelled by law, can now be used to justify a demand for breath or other bodily samples or a demand that you perform tests or do an evaluation to determine if your ability to operate a vehicle is impaired by a drug or alcohol. This section, 320.31(9), is designed to eliminate the argument based on the 1999 Supreme Court of Canada decision in R. v. White whereby the Crown at your trial may not be able to use your admission after an accident to being the driver to provide the grounds for a demand. (If the Crown is denied use of your admission, the demand could be ruled unlawful. This could deprive the Crown of evidence needed to prove your guilt.) This amendment could be challenged on the basis that it violates the Charter right against self-incrimination.

Fail to Remain at the Scene of an Accident

It remains an offence to leave the scene of an accident, not give your name and address, and offer assistance to any person that’s been injured or appears to need help. The Crown must establish that at the time of operating your vehicle you knew or were reckless as to whether you were involved in an accident with another person or vehicle. You can escape liability by establishing a reasonable excuse. This defence appears narrower than under the old law where you could avoid a finding of guilt by showing that in leaving the scene you did not intend to escape civil or criminal liability.

Flee Police

It’s an offence not to stop your vehicle as soon as reasonable if you’re pursued by police. But to prove this offence the Crown need no longer establish that you intended to evade police. You can still defend the charge by showing you had a “reasonable excuse.”