Changes to Canada’s Impaired Driving Laws

On December 18, 2018, Parliament made sweeping new changes to Canada’s impaired driving laws. Some of the more significant legislative changes are outlined below:

• Police can now demand that you provide a breath sample at the roadside withoutany grounds for the demand. Previously, police had to have a reasonable suspicion that you had alcohol in your body before a lawful breath demand could be made.
• If police have reasonable grounds to suspect that you have a drug in your body, they can now demand that you provide a bodily substance for analysis.
• The legal limit for excess alcohol drops to 80 mg in 100 ml of blood. Previously, it was an offence to have in excess of 80 mg of alcohol in 100 ml of blood. Previously, if your breath results were between 81 and 89 mg of alcohol in 100 ml of blood, police would not lay criminal charges.
• 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 motor vehicle. You will not be held criminally liable if all of the following criteria are met:
  1. you drank alcohol after operation;
  2. you had no reasonable expectation that you would have to provide a sample of breath or blood; and
  3. your alcohol consumption is such that your blood alcohol content was less than 80 mg% at the time of operation and consistent with the blood alcohol content test results obtained by the police.

  This amendment allows police to arrest you drinking in a bar after you had ceased to drive.

• The “bolus” drinking defence has effectively been eliminated. This defence previously allowed you to adduce evidence that you drank shortly before being stopped by the police and as such, not all of the alcohol you had consumed was absorbed into your blood when police stopped you, thus leaving the possibility that you were under the legal limit at the time of operation but over afterwards.
• The prosecution will no longer be required to call an expert toxicologist at trial to calculate your blood alcohol content if your breath or blood samples were taken beyond two hours from the time of driving.
• Penalties have increased. If your blood alcohol content is equal to or exceeds 120 mg of alcohol in 100 ml of blood but is less than 160 mg%, you will face a $1,500.00 minimum fine. If your blood alcohol content is equal to or greater than 160 mg%, you will face a fine of at least $2,000.00. The minimum fine for refusing to provide a breath sample has doubled to $2,000.00. Importantly, the maximum jail sentence for impaired driving and refusal to provide a breath sample if prosecuted by indictment, has increased from 5 years to 10 years. This will result in the automatic deportation of foreign nationals or permanent residents upon conviction.
• The new law requires the court to consider the following factors and treat them as aggravating in sentencing:
  1. the commission of the offence resulted in bodily harm to, or the death of, more than one person;
  2. a person under the age of 16 years was a passenger in your vehicle;
  3. you were operating a motor vehicle in a race;
  4. you were being paid for operating the vehicle;
  5. you were operating a “large” motor vehicle;
  6. you were not permitted by law to operate the vehicle; and
  7. your blood alcohol at the time of committing the offence was equal to, or exceeded, 120 mg of alcohol in 100 ml of blood
• You can undergo substance abuse treatment and potentially avoid a driving prohibition and minimum penalties only if the crown prosecutor consents. A curative discharge to facilitate treatment for drug or alcohol abuse is no longer available as a sentencing option.
• A statement made by an accused individual to a police officer, even if compelled by law, can now be used to justify a demand for breath or for other bodily samples. If, without being required to do so, you provide police a sample of breath, blood, urine, sweat or other bodily substances, the results of the analysis of the 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 against you.

The above represents just some of the legislative changes as of December 18, 2018. Some of the amendments will surely invite a constitutional challenge. Our office is prepared to continue to vigorously represent individuals charged with impaired driving offences and we anticipate launching constitutional challenges to some of these amendments.

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