Backgrounder: Changes to Impaired Driving Laws

April 2017

Impaired driving is the leading criminal cause of death and injury in Canada. The Government has committed to creating new and stronger laws to punish more severely those who drive while under the influence of drugs, including cannabis. Today, the Government has gone one step further by introducing proposed legislation that would reform the entire impaired driving regime in the Criminal Code. It would strengthen existing drug-impaired driving laws and create a regime that would be amongst the strongest in the world, particularly where cannabis is legal. Proposed changes include, new “legal limit” drug offences and new tools to better detect drug-impaired drivers. Other changes would apply to alcohol-impaired driving and would make the law easier to enforce, as well as simpler, more coherent and efficient.

To support these measures, the Government will undertake a robust public awareness campaign so that Canadians are well informed about the dangers of driving under the influence of cannabis and other drugs. It will also work with provinces, territories, municipalities and local communities to train and equip law enforcement so that Canada’s roads and highways are safe for all Canadians.

The first part of the proposed legislation would ensure that a robust drug-impaired driving regime is in place before cannabis legalization occurs.

The second part of the proposed legislation would reform the entire Criminal Code transportation regime to create a new, modern, simplified, and more coherent system to better deter drug and alcohol-impaired driving.

Part 1 – Drug-impaired driving

Roadside oral fluid drug screeners

Following a legal roadside stop, law enforcement would be authorized to demand that a driver provide an oral fluid sample if they reasonably suspect that a driver has drugs in their body. A positive reading would assist in developing reasonable grounds to believe that an offence has been committed. Once the officer has reasonable grounds to believe an offence has been committed, they could demand a drug evaluation by an “evaluating officer”, or a blood sample.

Drug-impaired driving offences

The legislation would also create three new offences for having specified levels of a drug in the blood within two hours of driving. The penalties would depend on the drug type and the levels of drug or the combination of alcohol and drugs.

These elements were included in the proposed legislation after careful consideration of the available scientific evidence on cannabis and driving.

The levels would be set by regulation. For THC (the main psychoactive compound in cannabis), the proposed levels would be:

• 2 nanograms (ng) but less than 5 ng of THC: Having at least 2 ng but less than 5 ng of THC per millilitre (ml) of blood within two hours of driving would be a separate summary conviction criminal offence, punishable only by a fine. This lower level offence is a precautionary approach that takes into account the best available scientific evidence related to cannabis. This offence would be punishable by a maximum fine of up to $1,000.
• 5 ng or more of THC: Having 5 ng or more of THC per ml of blood within two hours of driving would be a hybrid offence. Hybrid offences are offences that can be prosecuted either by indictment, in more serious cases, or by summary conviction, in less serious cases.
• Combined THC and Alcohol: Having a blood alcohol concentration of 50 milligrams (mg) of alcohol per 100 ml of blood, combined with a THC level greater than 2.5 ng per ml of blood within two hours of driving would also be a hybrid offence.

Both hybrid offences would be punishable by mandatory penalties of $1,000 for a first offence and escalating penalties for repeat offenders (e.g., 30 days imprisonment on a second offence and 120 days on a third or subsequent offence).

The maximum penalties would mirror the existing maximum penalties for impaired driving. These would be increased in Part 2 to two years less a day on summary conviction (up from 18 months), and to 10 years on indictment (up from 5 years). The latter would make a dangerous offender application possible in appropriate circumstances.

Strengthening Existing Framework

The proposed legislation would strengthen the existing drug-impaired driving provisions in the Criminal Code. These amendments would codify the Supreme Court of Canada’s recent decision in R v Bingley that certified drug evaluating officers do not need to be qualified through an expert witness hearing before being allowed to give opinion testimony on whether a driver was impaired. The proposed legislation would also provide police with the option to pursue a drug recognition evaluation or a blood sample in situations where they have reasonable grounds to believe an offence has occurred. This could save valuable time when testing for drugs, such as THC, that leave the blood very quickly.

Part 2 – Transportation Offence Reform (drug and alcohol impaired)

The proposed legislation would reform the entire Criminal Code regime dealing with transportation offences, including impaired driving. It would:

• Repeal and replace all transportation offences with a modern, simplified and coherent structure
• Authorize mandatory alcohol screening at the roadside where police have already made a lawful stop under provincial law or at common law
• Increase certain minimum fines and certain maximum penalties
• Facilitate investigation and proof of blood alcohol concentration
• Eliminate and restrict defences that encourage risk-taking behaviour and make it harder to enforce laws against drinking and driving
• Clarify Crown disclosure requirements
• Permit an earlier enrolment in a provincial ignition interlock program

Modernized structure of the transportation provisions

The current transportation regime was developed over decades, through piecemeal approaches and is very challenging to read and understand even for legal practitioners. The proposed legislation would create efficiencies by enacting a modern and coherent framework addressing transportation offences including impaired driving.

Mandatory alcohol screening

The proposed mandatory alcohol screening provisions would authorize law enforcement officers who have an “approved screening device” at hand to demand breath samples of any drivers they lawfully stop, without first requiring that they have a suspicion that the driver has alcohol in their body. As research shows that many impaired drivers are able to escape detection at check stops, this authority would help police detect more drivers who are “over 80” and reduce litigation regarding whether or not the officer had a reasonable suspicion. The result of a test on an approved screening device would not, by itself, lead to a charge. It would lead only to further investigation, including a test on an approved instrument at the police station.

Penalties

The proposed legislation would enact some new and higher mandatory minimum fines, and some higher maximum penalties. Currently, the mandatory minimum penalties for impaired driving are:

• First Offence: $1,000 mandatory minimum fine
• Second Offence: mandatory 30 days imprisonment
• Third Offence: mandatory 120 days imprisonment

The proposed legislation would increase the mandatory fines for first offenders with high blood alcohol concentration readings:

• A first offender with a reading of 80 to 119 mg of alcohol per 100 ml of blood would be subject to the current mandatory minimum fine of $1,000
• The mandatory minimum fine for a first offender with a reading of 120 to 159 mg of alcohol per 100 ml of blood would be raised to $1,500
• The mandatory minimum fine for first offender with a reading of 160 mg or more of alcohol per 100 ml of blood or more would be raised to $2,000

A first offender who refuses testing would be subject to a $2,000 mandatory minimum fine.

Repeat Offenders:

• Mandatory prison sentences for repeat offenders would stay the same as they are under the current law – 30 days for a second offence and 120 days for a subsequent offence
• Maximum Penalties – no injury or death:
  • The maximum penalties for impaired driving would be increased in cases where there is no injury or death, to two years less a day on summary conviction (up from 18 months), and to 10 years on indictment (up from 5 years). The latter would make a dangerous offender application possible in appropriate circumstances.

Offences causing bodily harm:

• Offences causing bodily harm would become hybrid offences allowing the Crown to decide whether to proceed summarily where the injuries are less severe (for example, a broken arm). This will also help to address the issue of reducing court delays because summary conviction proceedings are simpler and take less time.

Maximum Penalties – dangerous driving:

• The maximum penalty for dangerous driving causing death would be increased to life imprisonment (up from 14 years). This is consistent with the maximum penalty for other transportation offences involving death.

Eliminating and Restricting Defences

Currently, a driver may escape liability by claiming that they consumed alcohol just before or during driving, and were not over the legal limit at the time they were driving because the alcohol was not yet fully absorbed. It was only later, at the time of testing, that they reached an illegal blood alcohol concentration. This is often referred to as bolus drinking or “drinking and dashing”. The proposed legislation would remove this defence by changing the timeframe in which the offence of “over 80” can be committed. Instead of being “over 80” at the time of driving, the offence will be “at or over 80” within two hours of driving. This would discourage the risky behaviour of drinking immediately before driving, in the hopes of arriving home before being too impaired to drive.

The proposed timeframe would also limit the “intervening drink defence”. This defence can be relied upon when a driver can demonstrate that they consumed alcohol after driving, but before providing a breath sample. Some individuals do this in an attempt to obstruct the course of justice making it challenging for the Crown to prove the blood alcohol concentration and often requiring the testimony of an expert witness. Recognizing that there may be situations where the post-driving consumption of alcohol was innocently done, the legislation provides for a more limited defence, (i.e., the driver drank after driving but had no reason to expect that they would be required to provide a sample of breath.)

Investigation and proof of blood alcohol concentration

The proposal would facilitate proving blood alcohol concentration by providing that the concentration at the time of testing is proven if certain conditions are met (e.g., two samples of breath at least 15 minutes apart, the approved instrument was calibrated against an approved alcohol standard before each test). These conditions are set out in accordance with the advice of the Alcohol Test Committee of the Canadian Society of Forensic Science (the scientific body that advises the Government). This will avoid the need to call forensic toxicologists to testify at trial and will contribute to efficiencies.

Crown disclosure

The proposal will also include an element that would clarify what the Crown must disclose to the defence with respect to proving blood alcohol concentration. Specifically, the legislation proposes that only scientifically relevant material is required to be disclosed, including the results of the calibration checks and any messages produced by the approved instrument (often called a breathalyzer), but does not require that records relating to the maintenance of the approved instrument be disclosed. This is consistent with the scientific advice of the Alcohol Test Committee and is expected to contribute to trial efficiencies.

Permit an earlier enrolment in a provincial ignition interlock program

Under the current law, a driver is permitted to drive during the period of prohibition if they are admitted into a provincial ignition interlock program. An ignition interlock device prevents the car from starting if the driver has been drinking. Currently, the driver must wait for a specified period before the province may consider an application. The proposed legislation would reduce the time an offender must wait before they can return to driving; there would be no wait for a first offence, three months for a second offence and six months for a subsequent offence. Evidence shows that ignition interlock devices reduce recidivism.