The landscape around drinking and driving has changed with the coming into force of new impaired driving laws on December 18, 2018. The Bill charges the wording of the offence to prohibiting a blood alcohol concentration of over .80 within 2 hours of the time of driving. The additional of the 2 hours of the time of driving eliminates the defence of ‘bolus drinking’ where an accused person would argue that they drank a large amount of alcohol just before driving and therefore were not impaired at the time of driving. What is possible here is that, based on the rate of absorption of alcohol into a blood, a person’s behaviour could be criminalized for driving while having alcohol in their system, even if their ability to drive was not actually impaired by the alcohol.
Perhaps the biggest change for us as police officers is that we will now be able to ask for an ASD demand of any lawfully stopped driver, regardless whether we have a reasonable suspicion that they have been drinking. Prior to this change, we needed at least a reasonable suspicion that someone had been drinking. This threshold was a relatively low one to meet: the admission of consumption of alcohol, often coupled with any indicia of impairment, such as glossy eyes or an odour of alcohol, etc. would be enough to give us grounds for an ASD demand. The ability to ask for a demand absent any suspicion of impairment has attracted much criticism from lawyers for violating the right to be free from search and seizure, and will very likely be the subject of a constitutional challenge in the courts.
In addition, Parliament created an offence of having too much drug in your blood. The judge doesn’t have to find that it impaired you, only that the concentration of the drug exceeded the legal limit. Here is the link: https://www.canlii.org/en/ca/laws/regu/sor-2018-148/latest/sor-2018-148.html
Marihuana is looked at differently: if the driver has between 2 and 5 ng/ml of Tetrahydrocannabinol (THC) in his or her blood, then it’s a criminal offence, but it has a lower penalty than regular impaired driving. If the driver has 5ng/ml or more of THC in his or her blood, then it’s punishable by the same penalty as impaired driving or over 80mg% of alcohol. As well, driving with a combination of 50mg% of alcohol and 2.5ng of THC in the blood also carries the same penalty as impaired driving. Although this table is not exhaustive, I’ve attempted to summarize the important changes for officers (I apologize for the table format – WordPress is not user-friendly for creating tables!):
|Offence (CC)||Old (CC)||New (CC)||Changes|
|249||320.13(1)||No substantive change but simplified as
conveyance (new) rather than separate
paragraph offences for motor vehicle, vessel, aircraft, etc. (old).
|253(1)(a)||320.14(1)(a)||No substantive change but now specifies
impairment to any degree.
|.08 or Over||253(1)(b)||320.14(1)(b)||The offence
in your blood
while driving to having too
in your blood
in the 2 hours
Also, old was
“exceeds 80mg%” – new is
“equal to or
80mg%”. Note – the exceptions are given in
|253(3)(a)||320.14(1)(c)||The offence is
the 2 hours
there are two
limits: 2ng/mL and 5ng/mL.
Note – the
exceptions are given in
2ng/mL of THC (marihuana).
|Over Limit for Alcohol & Drug Combined||253(3)(c)||320.14(1)(d)||50mg% alcohol + 2.5ng/mL of
|Refusal||254(5)||320.15(1)||Wording added “knowing that a demand has
injury or death at time demand made.
|Failure to Stop/Remain||252||320.16(1)||Old offence was a specific intent offence – “with intent to escape civil or
offence is a
offence – the
Crown need not prove any
purpose for the flight.
presumption – “without
repealed bodily harm and
death offences. As well, only
“motor vehicle or vessel”, not
the other new
to “prohibited” – no substantive change.
I expect a lot of constitutional arguments in the months and years to come, especially since the new legislation now allows, where legislation compels drivers to report accidents (e.g. provincial Motor Vehicle / Highway Traffic Acts), police to use that information to form grounds for demands. I’ve made several posts over the years on courts ruling that “statutory compelled statements/reports” are inadmissible when pursuing a simultaneous criminal investigation, so this one will be interesting. Also, because the drug screening equipment isn’t perfect, and gives false positives, defence will argue it’s unconstitutional to use it for sure. One final note for this post: because of the changes in the presumption sections, breath technicians will need new certificates which detail the results of blank and standard alcohol tests. If you’re a breath technician, you’ll have to start using these new ones now.