The Minister of Justice has introduced legislation that would modernize all transportation related offences in the Criminal Code, harmonize and increase penalties including for repeat offenders, simplify proof of blood alcohol concentration, and address new issues following the 2012 decision by the Supreme Court of Canada in R. v. St-Onge Lamoureux.
The various transportation related provisions of the Criminal Code have developed over many decades in response to specific incidents, scientific advances, and court decisions particularly relating to impaired driving. This piece-meal approach has resulted in some inconsistencies, such as how offenders are sentenced following conviction for impaired and dangerous driving.
There have been numerous amendments to transportation-related offences within the Criminal Code, most frequently in the area of impaired driving. While these reforms have strengthened measures to combat impaired driving, they have also added to the complexity of the Criminal Code which has affected the efficiency of investigation, prosecution, and sentencing.
The proposed legislation would amend all transportation-related provisions in the Criminal Code to resolve inconsistencies and increase certain penalties to reflect the seriousness of the conduct.
The proposed legislation would introduce a new Part of the Criminal Code that would restructure, simplify, and add new provisions related to transportation offences.
The Bill proposes three impaired driving offences:
- operating while impaired;
- operating with a blood alcohol concentration (BAC) at or over 80 within two hours of driving; and
- refusing to comply with a valid demand.
And four other transportation-related offences:
- dangerous operation of a motor vehicle;
- failure to stop after a collision;
- flight from police; and
- driving while prohibited.
Most of the offences would have corresponding aggravating offences of causing bodily harm or causing death.
The offence of driving with a BAC over 80 would be changed to having a BAC of 80 or more within two hours of driving. This would eliminate the bolus drinking defence and strictly limit the intervening drink defence.
- "Bolus drinking" is the defence used when the accused claims to have quickly consumed several drinks just before driving and therefore claims that their BAC was not over 80 at the time of driving.
- The "intervening drink defence" is when an accused claims to have consumed alcohol after being stopped by the police or after a collision and therefore claims that their BAC would not have been over 80 while driving.
The proposed legislation would include a harmonized approach to penalties across all transportation-related offences in the Criminal Code.
It would include the following:
- Escalating penalties for repeat offenders.
- Making all transportation offences prior offences for one another with the effect of increasing penalties for repeat offenders.
- Doubling maximum penalties for offences without bodily harm or death on indictment from five years to 10 years imprisonment and on summary conviction from 18 months imprisonment to two years less a day.
- Making maximum penalties for all indictable offences causing bodily harm 14 years imprisonment with mandatory minimum penalties of 30 days imprisonment on summary conviction and 120 days on indictment.
- Increasing mandatory minimum penalties for impaired driving and refusal offences causing death from a $1,000 fine to 6 years in prison.
Included in the legislation is a response to the impact of the Supreme Court of Canada's ruling in R. v. St-Onge Lamoureux. In that case, the court ruled that the accused must point to some evidence of approved instrument malfunction or operator error before a court could consider a "two-beer defence". However, the court suggested that evidence of malfunction could be found in the failure to follow recommended procedures for a breath test program including maintenance. The court's ruling has resulted in a wave of defence applications for disclosure of manuals and maintenance records and other documents relating to the maintenance of the approved instruments. These unintended consequences of the court's ruling have effectively increased court time for impaired driving cases. The proposed Bill would simplify establishing BAC and eliminate the need for expert evidence at trial. Most notably, the legislation would provide that blood alcohol evidence would be considered to be conclusively proven if proper breath test procedures are followed and that only scientifically-relevant information needs to be disclosed for a case of driving over the legal limit.
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June 2015
Department of Justice Canada
