Changes To The Law – Impaired Driving And Driving With Excess Blood Alcohol

There are drastic changes coming to the current impaired driving laws. The proposed legislation will effectively repeal and replace the current law. Here is a list of some of the proposed changes:

1. MANDATORY ALCOHOL SCREENING

  • An officer who has an “approved screening device” can demand that a driver provide a sample of their breath into an alcohol screening device to determine their blood alcohol concentration
  • The officer need not have any suspicion that the person has alcohol in their system
  • In other words, if you’re stopped for a traffic violation, an officer can also ask that you provide a sample of your breath into the “approved screening device” and they do not have to give you a reason why

2. INCREASED PENALTIES

 The following is taken from the Government of Canada website (https://www.canada.ca/en/health-canada/news/2017/04/backgrounder_changestoimpaireddrivinglaws.html)

 

First Time Offenders

  • 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.

 

3. A NUMBER OF LEGAL DEFENCES ARE NO LONGER AVAILABLE

The proposed legislation prevents defence lawyers from using the following defences:

 

The bolus drinking or last drink defence

  • This is a defence that allows a driver to escape conviction by claiming that they had a large drink immediately prior to driving.
  • As a result of thelast drink, the alcohol was not absorbed into their blood when they operated their motor vehicle
  • Defence lawyers would call upon the evidence of a toxicologist to provide their scientific opinion that if the driver had a large drink immediately before driving, their blood alcohol concentration would be under the legal limit at the time of driving
  • The relevant section in the Criminal Code will no longer read “over 80 at the time of driving”, the offence will be “at or over 80 within two hours of driving”.

 

The defence “I drank after I drove” …

  • As a result of the change in the wording of the offence from “over 80 at the time of driving”, to “at or over 80 within two hours of driving”, the defence that alcohol was consumed subsequent to driving can no longer be used
  • Effectively, the proposed timeframe limits the “intervening drink defence”.
  • This defence was commonly used when it could be shown that alcohol was consumed after the driving but before the breath tests
  • 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.)

 

Proof of Blood Alcohol Concentration

  • Presently, the Crown Attorney is required to prove a number of prerequisites were fulfilled before evidence of breath tests can be admitted at trial 
  • The new legislation would allow proof of blood alcohol concentration by providing that the concentration at the time of testing is proven if certain conditions are met.
  • The proposed legislation is not particularly clear here, however, the two primary prerequisites are that there are two samples of breath taken at least 15 minutes apart and that the approved instrument was calibrated before each test

 

Crown disclosure

  • The proposed legislation limits disclosure that defence lawyers are entitled to
  • 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.

From time to time, these types of disclosure have revealed issues with the maintenance, calibration, and operation of the breath testing equipment, ultimately, these issues were raised as defences at trial