Impaired driving continues to be a critical issue in Canadian political and legal discourse. As of 2023, Canada’s road network spans almost 900,000 km, longer than a round trip to the Moon. There are about 8 million registered passenger vehicles in the country. In 2018, light-duty vehicles accounted for 92.3% of registered vehicles, commercial vehicles for 4.8%, and motorcycles for 2.9%. Despite these staggering numbers, the issue of impaired driving remains a significant concern. In 2018, there were 1,922 motor vehicle fatalities in Canada, an increase of 3.6% from 2017 (1,856). The number of motor vehicle fatalities per 100,000 people increased slightly to 5.2 in 2018 (from 5.0 in 2017), yet it is still the second lowest on record.
In an attempt to combat impaired driving, Canadian Courts have been imposing prison sentences on first-time offenders – a phenomenon practically unheard of as recently as 2 years ago. In addition, the Canadian government enacted new impaired driving legislation, which makes defending those charged with drinking and driving significantly more difficult. The changes are part of Bill C-46, a bill that was put into place to ensure Canada’s impaired driving laws are among the stiffest in the world.
Impact of COVID-19
The COVID-19 pandemic led to the remand of first appearances for all matters in the Ontario Court of Justice, including impaired driving cases, for at least ten weeks between March and July 2020. Some Courts have been hearing guilty pleas to impaired driving charges to meet the statutory 90-day window for the accused person to qualify for “Stream A” or “Stream D”. However, many drivers wishing to take advantage of Stream A or Stream D (particularly those without counsel) may not have been able to meet the 90-day requirement.
In response, the Ministry of Transportation in Ontario (the “MTO”) made a temporary regulatory amendment to extend the 90-day window to 282 days from the offence date. This amendment ensures service continuity and maintains the program’s objectives. All eligible first and second offenders whose 90-day window would have expired on or after March 1, 2020, may be eligible for Stream A or Stream D if they enter a guilty plea and are sentenced within 282 days of the offence date. Only offence dates on or after December 1, 2019, are eligible for this extension. For more information, visit the MTO’s website.
Constitutional Challenge
Despite the impact of COVID-19, in July of 2020, the first court decision was released in relation to a constitutional challenge to Bill C-46 in the Saskatchewan case of R v Morrison. The accused argued that the new provision of the Criminal Code (i.e. s.320.27) is unconstitutional as a police officer is not required to formulate any grounds, or even a reasonable suspicion about the driver’s sobriety prior to making the breath demand. The Court found that the new law does infringe upon s. 8 of the Charter of Rights and Freedoms (right to be free from unreasonable search and seizure). However, the Court also found that the violation was saved by s.1 of the Charter on the basis that impaired drivers are a danger to society and that any violation or limit to a person’s freedom is justified on the basis that the law benefits the greater good of society.
What Hasn’t Changed
The prohibited blood-alcohol concentration (BAC) for drivers has not changed. It remains at 80 milligrams (mg) or more of alcohol per 100 millilitres (ml) of blood. Drivers who are under the age of 21 or are new to driving must have a BAC of 0 mg. Provincial laws can create stiff non-criminal penalties even for BAC’s below the criminal legal limit. These can include short immediate suspensions, impounding of vehicles, and much longer-term insurance ramifications.
What Has Changed
When it comes to the consumption of cannabis, more specifically THC, which is the psychoactive compound in cannabis, there are two levels of impairment:
- Between 2 nanograms (ng) and 5 ngper 1 ml of blood
- 5 ng or higher per 1 ml of blood
When both cannabis and alcohol have been consumed together, the prohibited levels are 50 mg or more of alcohol per 100 ml of blood and 2.5 ng of THC per 1 ml of blood.
The changes to the impaired driving laws also affect what law enforcement officers can require of drivers and the penalties for a driver should they be impaired. Under the new law, police can now require any driver who is lawfully stopped to take a breathalyzer test, whether or not there is reasonable suspicion of impairment. If a driver refuses to take the breathalyzer test, they will be charged, even if they have not been drinking and the consequences of refusing a breath demand are just as severe as if the breath test had been taken and failed.
Another significant change in the law is the elimination of the “bolus drinking defence.” Previously, a driver could argue that the alcohol was consumed right before driving and had not yet been absorbed into their system while they were driving. Under the new law, it is illegal for a driver’s BAC to be over the legal limit within two hours before getting behind the wheel even if the alcohol had not yet been absorbed into their system, leaving them effectively sober at the time of the arrest.
The penalties for impaired driving have also become much stiffer. For a first offence, the penalties are as follows:
- BAC of 80-119 mg is a mandatory minimum fine of $1,000
- BAC of 120-159 mg is a mandatory minimum fine of $1,500
- BAC of 160 mg or more is a mandatory minimum fine of $2,500
- Refusal to be tested is a mandatory minimum fine of $2,000
After a first offence, the penalties are:
- The second offence is a mandatory minimum of 30 days imprisonment
- Third or more offence is a mandatory minimum of 120 days imprisonment
There are also maximum penalties impaired drivers can face when caught. They are:
- Impaired driving that does not result in bodily harm or death: On summary conviction, two years less a day imprisonment. On indictable conviction, up to 10 years imprisonment.
- Impaired driving causing bodily harm: On summary conviction for less severe injuries, two years less a day imprisonment. On indictable conviction, up to 14 years imprisonment.
- Impaired driving causing death is life imprisonment
Summary of the Criticisms of the New Laws
The new impaired driving law presents a number of challenges. While Mothers Against Drunk Driving has embraced the changes, there are serious concerns that the new law is in violation of the Charter of Rights and Freedoms.
Firstly, demanding a breath sample without even a suspicion of impairment amounts to an unlawful search and seizure. While it is supposed to apply equally to all drivers, there is a potential that law enforcement officers will use this to engage in baseless searches that disproportionately target racialized individuals subjecting them to unwarranted treatment.
Secondly, those who are factually innocent are in jeopardy of a wrongful conviction. Having consumed alcohol that has not been absorbed yet into the body, a scientifically sober person may still be charged and convicted under the new legislation.
Impaired Driving has serious potential consequences. However, that cannot be a justification to override the rights of Canadian Citizens. Our DUI specialist lawyers are dedicated to ensuring that the new legislation is tested in court, that your rights to be free from unreasonable search and seizure are respected, and that all those facing these serious charges are professionally and vigorously represented in Court.
If you are charged with an impaired driving-related offence, please contact us today.
