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Impaired driving update: Implications of Bill C-46

The holiday season is upon us, and with it comes a spike in road checks for  impaired drivers. This year, the landscape around drinking and driving has changed with the coming into force of new impaired driving laws on December 18, 2018. The new legislation, which received Royal Assent in June, makes significant changes for the law of evidence, possible defences and minimum sentences for impaired driving cases.

Bill C-46 charges the wording of the offence to prohibiting a blood alcohol concentration of over .80 within 2 hours of the time of driving. The additional of the 2 hours of the time of driving eliminates the defence of 'bolus drinking' where an accused person would argue that they drank a large amount of alcohol just before driving and therefore were not impaired at the time of driving. It is therefore possible that, based on the rate of absorption of alcohol into a blood, that a person could be criminalized for driving while having alcohol in their system, even if their ability to drive was not actually impaired by the alcohol. 

Perhaps the biggest change is that police officers will now be able to ask for a breath demand of any lawfully stopped driver, whether or not they have a reasonable suspicion that they have been drinking. Prior to this change, police needed at least a reasonable suspicion that someone had been drinking. This threshold was a relatively low one to meet: the admission of consumption of alcohol, often coupled with any indicia of impairment, such as glossy eyes or an odour of alcohol would be enough to give the police grounds for a breathalyzer demand. The ability to ask for a demand absent any suspicion of impairment has attracted much criticism from lawyers for violating the right to be free from search and seizure, and will very likely be the subject of a constitutional challenge in the courts.

The legislation also introduces a number of new mandatory minimum penalties that correlate to the amount of alcohol in an individual's system. The current minimum fine of $1000 remains for offences where the person's BAC is between 80 mg and 119 mg, but then increases to $1500 if it is between 120 mg and 159 mg, and $2000 if it is more than 160 mg. A refusal to provide a sample will attract an minimum $2000 fine. This part of the legislation, while slightly ironic given the Minister of Justice's initial promise to review and eliminate mandatory minimum sentences, will not change too much in practice. Often, as the blood alcohol concentration readings get higher, sentences increase as well, however the new framework will prohibit judge's from using their discretion where there are mitigating factors. Whether or not these new fines will provide any deterrence to drunk driving remains to be seen.

According to the government's overview of these new laws, the aim is to provide a modern, simplified system that will better deter and detect drug and alcohol-impaired driving. While the changes will likely make police and Crown attorney's jobs easier, they will limit the tools available to defence lawyers to defend these types of charges. Preventing drug and alcohol-related deaths must be addressed, but in a manner that is consistent with the Charter. Given the developments in the law, and the cost of being charged with such an offence, we are all better off taking a cab.

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