A Citizen’s Guide to the New Drinking and Driving Laws

December 18, 2018

Effective December 18, 2018, there are some major changes to Canada’s drinking and driving laws. There is an array of new intricacies that criminal defence lawyers will need to deal with, and many potential avenues for challenging the constitutionality of the new legislation, but there are also a few fundamental changes that the average citizen should be made aware of. These are some highlights of what you need to know about the new laws, along with a little commentary (which might go beyond practical information for the average citizen, but I couldn’t help myself).

Roadside alcohol breath tests for everyone, whether you’ve been drinking or not

Previously, for a police officer to make you perform a roadside breath test (into what is called an Approved Screening Device) the officer needed to have a reasonable suspicion that you had alcohol in your body. This could be established by the odour of an alcoholic beverage on your breath, or your admission that you had consumed alcohol, or other signs that you’d recently consumed alcohol. From now on, any police officer with an Approved Screening Device in their immediate possession can make any driver provide a roadside sample, whether or not the officer has any reason to believe that the driver has alcohol in their system. This means that when you pull up to a RIDE check, you might not have been drinking at all, or might not smell like booze or might not admit to drinking, and the officer can still make you give a sample.

The government says that this change was made in order to deter impaired drivers from getting behind the wheel, as everyone will know that they can be breath-tested no matter how well they think they can conceal the fact they’ve been drinking. Given that this change in the law allows officers to conduct roadside breath tests on anyone without giving a reason, criminal defence lawyers and civil liberties groups will have to monitor the situation closely to see whether this new police power is exercised on a truly random – or discriminatory – basis.

It’s now a crime to be over the limit within two hours of driving

The wording of the offence of driving with a blood alcohol concentration (BAC) above the legal limit, or “Over 80” in the vernacular, has been changed dramatically. As it is now worded, it is an offence to have a BAC above the legal limit within two hours of driving. This means that a police officer who has grounds to believe that you’re over the limit, and knows that you were last driving an hour and half ago, can lawfully arrest and bring you to the police station to be breath tested to get an exact reading on your blood alcohol con centration. If the test shows that you’re over the legal limit, you’ll be charged – even if all of the drinking you did was after you had finished driving.

Then (after getting disclosure, appearing in court several times, and hopefully hiring a lawyer) it will be up to you the accused person to establish that your BAC at the time of testing was due to alcohol consumption after driving. This includes showing that the amount consumed was consistent with the breath readings, and consistent with you being below the legal limit at the time of driving – something that might be difficult to do based on your own memory if you had decided to get blind drunk after driving home. If you can establish these things to the requisite legal standard, along with the fact that you had no reasonable expectation that you’d be required to provide a breath test at the time that you were drinking, you’ll be found not guilty.

Practically speaking, many cases will be unaffected by this change, since so many impaired driving investigations involve police intervention when a driver is still behind the wheel, where there is no opportunity to consume alcohol after driving. A major reason that the government gave for making this change was to get people convicted who were not over the legal limit at the time of driving but who had engaged in what’s referred to as bolus drinking before driving. Bolus drinking before driving is a situation where a person consumes a significant quantity of alcohol right before getting behind the wheel. The alcohol goes to their stomach, and it then take up to 15 minutes to be fully absorbed into their bloodstream. So, during that period of time the alcohol they’ve consumed is in their body but it has not yet been completely added to the concentration of alcohol in their blood. In this situation, a police officer might pull over the driver seven minutes after they’ve consumed alcohol and remove them from the car. When the person’s breath is tested some time later, after all the alcohol has been absorbed into their blood, it could show that their BAC was well over the legal limit, even though it was still under the limit at the time that they were driving. Prior to the new legislation, this issue was raised frequently by accused persons who had engaged in bolus drinking, and expert scientific evidence had to be called at trial to establish this defence. Many were acquitted, having committed no crime. The new legislation rewrites the law so that in the future such people will be found guilty instead, to face punishment and a lifelong criminal record.

One of the government’s claimed justifications for having bolus drinkers convicted along with drunk drivers is that bolus drinking is risky behaviour that must be deterred in the interest of public safety. The stated concern is that it’s inherently risky to chug back a bunch of booze and then try to race home before it gets absorbed into your blood. On this logic, one wonders why the government did not simply create a separate offence which prohibited bolus drinking before driving, rather than changing the offence of Over 80 so that people who were innocent under the old law would now get convicted along with those people who were actually driving while over the limit.

Getting drunk right after driving is a crime if you have reason to expect that you’re going to be breath tested

The statutory defence to the crime of being over the limit within two hours of driving – that you only consumed alcohol after driving – is not available if at the time you consumed the alcohol you reasonably expected that a breath or blood test of your alcohol level would be required by the police. Under the previous law, a person who only consumed alcohol after driving, to the point that it put them over the legal limit, but who also had reason to believe that the police would require them to do a breath test, was innocent of driving with a BAC above the legal limit. Under the new law, the same innocent person will be found guilty and face the same penalties as a convicted drunk driver.

Whatever justification might have been put forward for this particular aspect of the law, it’s effect will be to convict some people who were not above the legal limit while driving -- people who complied with all police demands for samples of their breath, and who did not drink and drive.

The offence of “Over 80” is now “Over 79”

The previous offence of driving while over the limit made it an offence to drive with a BAC exceeding 80 mg of alcohol in 100 ml of blood. Under the new offence, you’re over the limit if your BAC is equal to or exceeds 80 mg of alcohol in 100 ml of blood. What could be the logic behind this seemingly minute change? It’s actually likely to impact a lot of cases. As a matter of good practice, breath test results are rounded down to the nearest ten as a precaution against the potential inaccuracy of the last digit in the readings that the breath testing instrument sets out. This is called truncating the readings. Thus, after truncation, a reading of .087 is rounded down to .080 – a BAC which was within the legal limit under the old law. By changing the effective legal BAC limit from 80 to 79, the government has indicated that it wants people who would be innocent after truncation under the previous law to be convicted instead. It will certainly lead to more people being charged.


A compelled statement can be used against you

As a driver, you should already be aware that if you are involved in a serious accident (causing injury to someone or causing over $2000 in damage) you’re obliged under Ontario law to report the accident at a reporting centre or to any nearby police officer. In reporting an accident, you’re obliged to say who was driving and what happened. It’s called a compelled statement, because the law compels you to tell the police these things whether you want to or not, and there are penalties if you don’t.

The law generally treats compelled statements to the police differently from voluntary statements. It’s a longstanding principle of our law that if the government makes you say something, they shouldn’t be allowed to use what you say against you. Prior to December 18, 2018, this principle applied to a situation where you might find yourself standing beside a vehicle at the scene of an accident and admitting to a police officer that you were the driver, in accord with your legal obligation to report the accident. Such statements couldn’t be used against you – not even to give the officer the grounds to arrest you or to conduct a breath test. That has been explicitly changed by the new legislation. Any statement that you make to a police officer in accord with your obligations under provincial law (such as reporting an accident) may be relied upon the officer to give him or her the grounds to justify a breath demand to test for alcohol, a blood test for alcohol, or a drug test. Your statement cannot be used against you at trial to prove the contents of what you said to the police, only to give them grounds to test you for alcohol or drugs. So, the statement will still not being used “against you” in the sense of being used as a confession to prove your guilt. It will, however, be against you in another sense: it will be used to give the police the authorization to force you to incriminate yourself through breath or bodily fluid samples. The government believes that this distinction makes the new law constitutional.

That “two-hour limit” can’t help you anymore

You may have heard something about the police only having a two-hour time limit to breath test a suspected impaired driver at the police station, so that after the two hours the breath test result can’t be used in court. This was not true. The way it actually worked was that if the police tested the driver within two hours of the driver having last operated a motor vehicle, and otherwise conducted the tests as soon as practicable, then the law presumed that the driver’s BAC at the time of driving was the same as whatever the breath test results showed. If the testing happened outside of the two hours, or not as soon as practicable, then the Crown could not rely on this presumption. The Crown could still potentially prove that the driver was above the legal limit at the time of driving, but expert evidence from a toxicologist would have to be called at trial to conduct a read-back based on the test results. So, the two-hour limit was something that the police were highly motivated to comply with, and their failure to comply with could sometimes make Crown prosecutor carefully consider the prospects of convictions, but it was rarely the determining factor in a case. Nevertheless, it was a live issue which had the potential to open up various avenues of defence at trial.

Now, a failure to conduct the tests within the two-hour window doesn’t hurt the police or the Crown’s case. It hurts you, the driver. For every half hour beyond the two-hour window that the police conduct the breath tests, the law presumes an additional 5 mg of alcohol in your BAC. Five milligrams will be added to the breath test results for every half hour beyond the two-hour window that the test was conducted, and this will be presumed to be your BAC at the time of driving. That means that if you’re breath-tested three hours after driving, and the test result show a BAC of .07, you’re still getting charged because the law will presume that your BAC was .08 at the time of driving.

You should know that the police are still required to conduct the breath tests as soon as practicable. If they don’t, then the legal validity of the test results and their admissibility at trial can be challenged. This reality will hopefully guard against police taking a lackadaisical approach to getting the breath tests done in a timely manner, or deliberately delaying the testing in order to pump up the suspect’s presumed BAC.

The stakes have been raised, especially for non-citizens

Higher minimum fines have been added for drivers found to have a BAC at 120 or higher (minimum fine of $1,500) and drivers with a BAC of 160 or higher (minimum fine of $2,000). The minimum fine for failing or refusing to provide a breath sample is now $2,000 (previously $1,000). The more significant change is that the maximum period of imprisonment for impaired driving or excessive BAC (even where no bodily harm or death was caused) has been increased from five to ten years. While the imposition of the maximum ten-year sentence will be rare, the fact that it is a potential penalty for these offences means that convicted non-citizens (including lawful permanent residents who may have lived in Canada for decades) will be rendered inadmissible if convicted, even on the first conviction. Thus, a first offence for non-citizens carries an effective punishment of exile.

Explicit aggravating circumstances

Sentencing judges have always been allowed to take into account any factors or circumstances that they consider aggravating in the determination of an appropriate sentence for drinking and driving offences. The new legislation sets out certain aggravating factors which must be taken into account by the sentencing judge, in addition to any other appropriate circumstances. Under the new law, it must be considered an aggravating factor if someone was killed or injured as a result of the offence, if the offender was racing another car at the time of the offence, if there was a passenger under the age of 16, if the offender was being remunerated for driving vehicle, if the offender’s BAC was 120 or higher, if the offender was operating a large vehicle, or if the offender was not legally permitted to be operating the vehicle.

All of these were factors that any dutiful sentencing judge would have taken into account anyway under the previous legislation.

You still can’t drink and drive a canoe

When the new legislation was first being discussed, some proponents floated the idea that boats propelled exclusively by human muscle power should be excluded from the definition of vessel (which is the word the law uses for boats and marine ships) under the new law. This would mean that if someone felt like going for a canoe day-trip, and brought along some wine to have with lunch, they wouldn’t have to worry about a criminal conviction for being over the limit while canoeing home. It would be the same as how the law views intoxication and bicycling. However, this idea did not make the final cut.

While the current definition of vessel under the new law does not explicitly indicate that it includes canoes, the previous definition of vessel under the former law didn’t explicitly do that either, but courts have found the canoes were included under the definition of vessel under the former law. The courts are likely to make the same finding under the new law if and when the question comes before them. In the meantime, all boats should be treated as vessels for the purpose of complying with our drinking and driving laws.

What about drugs?

There have been a lot of recent changes to the law regarding drug-impaired driving, from how police investigate these situations to what constitutes an offence, to how these offences can be proven in court. I hope to provide a quick guide to all of this in due course.




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