Stricter drunk driving laws to take effect across Canada on Tuesday By: Nicole Thompson, The Canadian Press Posted: 10:53 AM CST Monday, Dec. 17, 2018 Last Modified: 8:54 AM CST Tuesday, Dec. 18, 2018

New rules that increase penalties for drunk driving and expand police powers to demand breath samples take effect across Canada on Tuesday, with some predicting the law will face a series of legal challenges.

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Hey there, time traveller!
This article was published 16/12/2018 (1957 days ago), so information in it may no longer be current.

The legislation, which passed in June at the same time as new rules for drug-impaired driving, is intended to curb injuries and death by helping police catch drivers with more than the legal limit of alcohol in their bloodstreams.

It gives police officers the right to ask for a breath sample from any driver they lawfully stop, lowering the bar from the previous legislation, which required that an officer have reasonable suspicion that a person had been drinking. Such a system is already in place in more than 40 countries.

Justice Minister Jody Wilson-Raybould has said she has "every expectation" the law will be challenged in the courts, but noted that she's sure it'll pass the test. (Adrian Wyld / The Canadian Press files)

Toronto-based lawyer Michael Engel, who often defends those charged with impaired driving, said the new rules are a big change that raise concerns about baseless searches.

“This is a radical departure from previous law, which insulated people against warrantless searches without probable cause,” he said.

The new rules could lead to a backlog in the legal system as lower courts wait for higher courts to make a decision on likely challenges to the law’s constitutionality, he said.

“It’s a brave new world,” Engel said. “This is a wholesale change to the criminal code.”

Civil rights organizations have also sounded alarms about the new rules, with the Canadian Civil Liberties Association expressing concern that mandatory alcohol screening will unfairly affect racial minorities who are disproportionately singled out by cops for traffic stops.

“This is a radical departure from previous law, which insulated people against warrantless searches without probable cause.”–Lawyer Michael Engel

Justice Minister Jody Wilson-Raybould has said she has “every expectation” the law will be challenged in the courts, but noted that she’s sure it’ll pass the test. She said it’s in line with the Charter of Rights and Freedoms.

Toronto police spokesman Sgt. Brett Moore said the lower standard for administering breath tests gives officers another tool in their belt to stop drunk drivers.

“Police miss a lot of impaired drivers,” he said, noting that people can be quite good at masking their impairment.

“It’s just a really good, strong message that there’s a real high likelihood that if you get stopped by police, you’re going to get asked to submit to a breath test.”

The new law has also been welcomed by Mothers Against Drunk Driving Canada, which said mandatory alcohol screening has a proven track record of making roads safer.

“It’s just a really good, strong message that there’s a real high likelihood that if you get stopped by police, you’re going to get asked to submit to a breath test.”–Toronto police spokesman Sgt. Brett Moore

Under the new rules, maximum penalties for many alcohol-impaired driving offences are being bumped up to 10 years from five, which the federal government and police forces alike hope will act as a deterrent for would-be drunk drivers.

But Engel said that whether it has an effect remains to be seen.

“To date, it’s not apparent that any of the measures, which are already quite punitive, are having any deterrent effect,” he said.

Provincial police in Ontario noted that between the beginning of 2018 and the middle of November, its officers had laid more than 7,300 impaired driving charges.

According to federal statistics, an average of almost four people die in Canada daily due to impaired driving.

An RCMP Constable holds a breathalyzer test in Surrey, B.C., in this September 24, 2010 photo. Stricter drunk driving legislation takes effect across Canada tomorrow, giving police officers the right to demand a breath sample from any driver they lawfully stop. THE CANADIAN PRESS/Darryl Dyck

Details of the new legislation

The new impaired driving legislation significantly reforms the entire Criminal Code regime dealing with transportation offences, including alcohol-impaired driving. Read the details about what’s changing.

The new impaired driving legislation significantly reforms the entire Criminal Code regime dealing with transportation offences, including alcohol-impaired driving.

Eliminating reasonable suspicion before testing

Under now, police officers needed reasonable suspicion that a driver has alcohol in their body before doing any roadside testing.

Now, police officers who have an approved screening device on hand will be able to test a breath sample of any driver they lawfully stop, pursuant to existing authority (common law or provincial highway traffic act).

A driver who refuses to provide a breath sample could be subject to a criminal offence.

Eliminating and restricting defences

Under now, drivers could argue that alcohol that they drank just before driving was not fully absorbed and so they were not over the limit when driving. The new law removes this defence by making it illegal to be at or over the alcohol limit within two hours of driving.

Until now, drivers could claim they consumed alcohol after driving but before testing and that put them over the limit at the time of testing, but not while driving. The new law only allows this defence in a situation where a driver drank after driving and had no reason to expect a demand by the police for breath testing.

Prosecution disclosure

The new law clarifies what evidence the prosecution has to provide the defence about breath testing conducted at the police station. The prosecution will only be required to disclose information that is scientifically relevant, such as the result of calibration checks and any error messages produced by the approved instrument. Defence can apply for further disclosure relating to breath testing, but the court would first need to be satisfied that the requested material is relevant.

Penalties for impaired driving as of December 18, 2018

Alcohol-impaired driving that does not cause bodily harm or death (mandatory minimum penalties):

First offence + blood alcohol content (BAC) of 80-119 mg: $1,000 fine
First offence + BAC of 120-159 mg: $1,500 fine
First offence + BAC of 160 mg or more: $2,000 fine
First offence of refusal to be tested: $2,000 fine
Second offence: 30 days imprisonment
Third and subsequent offences: 120 days imprisonment

2 nanograms (ng) but less than 5 ng of THC per millilitre (ml) of blood: maximum $1,000 fine

5 ng or more of THC per ml of blood, or 5 mg/L of GHB, or 50 milligrams (mg) of alcohol per 100 ml blood + 2.5 ng or more of THC per ml of blood, or any detectable level of LSD, psilocybin, psilocin, ketamine, PCP, cocaine, methamphetamine, 6-mam (mandatory minimum penalties):

First offence: $1,000 fine
Second offence: 30 days imprisonment
Third and subsequent offences: 120 days imprisonment

Impaired driving causing no bodily harm or death (maximum penalties):