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Canada’s strict new impaired driving laws

Canada’s strict new impaired driving laws

Businessman in jail following Canada's strict impaired driving laws

On December 18, new impaired-driving laws that are stricter than ever before will come into effect. They include harsher penalties, amendments to existing offences and some entirely new offences altogether. You may not have heard about them until now, but you shouldn’t feel bad. There has been virtually no publicity from the government of Canada to make people aware of the new legislation.

That’s why we have decided to tell you what to expect if you get pulled over by a police officer from Tuesday onwards. Regular readers of this blog will know we have previously warned people about the changing impaired-driving landscape as well as other Criminal Code drunk-driving changes. Forgive us for sounding like a broken record, but if we don’t do something to raise awareness then who will?

It is likely that these new rules are going to come in for some constitutional scrutiny but until that happens it is vital you abide by the new legislation. Ignorance is not an excuse. The law is the law and you don’t want to wrongfully incriminate yourself or find yourself in unnecessary trouble. Do the smart thing and make yourself familiar with the new rules and then share this information with your friends and family.

We urge you to tell your friends and family about the changes.

Random breath testing

Perhaps the biggest change to Canada’s impaired driving laws is that the police can now require a driver to provide a sample of breath at the roadside even without a reasonable suspicion that the driver has alcohol in their body. Previously, police officers had to have a reasonable suspicion – such as the driver smelling of alcohol or admitting drinking– in order to require a person to blow into an Approved Screening Device (ASD). This effectively means officers now have carte blanche to conduct random roadside breath tests on drivers.

Anyone ignorant of this new law who gets pulled over, despite not having touched a drop of alcohol, may believe that unless the police have grounds to suspect they have been drinking, they can refuse the ASD demand. Under no circumstances should you refuse to give a roadside breath sample. Which brings us to the next big change.

Increased fine for refusal to be tested

The mandatory minimum fine for refusing to provide a sample of breath at the roadside will double after December 18, from $1,000 to $2,000. On top of that, anyone who refuses can still expect to receive a one-year driving prohibition and a criminal conviction, even for a first offence.

Escalating penalties for higher blood alcohol content

Previously, if you were convicted of alcohol-impaired driving or driving over 0.08 that did not cause bodily harm or death you could expect at least a $1,000 fine, one-year driving suspension and criminal record. After December 18, there will be higher fines if your BAC has reached certain thresholds. The drunker you are, the harsher the punishment.

The escalating scale for penalties for impaired driving can be found here:

Table of escalating scale for penalties for impaired driving in Canada

Although there will be higher fines for people who are more over the limit, mandatory minimum penalties for second and third offences stay the same at 30 and 120 days in prison, respectively.

New offences for drug-impaired driving

While the existing laws for alcohol-impaired driving are changing, new offences for drug-impaired driving will come into effect for the first time after December 18. This is a direct response to the legalization of cannabis in October but it also includes other drugs such as cocaine and LSD.

The legislation creates new offences for having THC in your blood within two hours of driving. Having between 2 and 5 nanograms (ng) of THC per 1 ml blood is punishable by a $1,000 fine while having 5 ng or more of THC can result in up to 120 days in prison for a third offence or more.

Police across the country will use a device called theDräger DrugTest 5000 to conduct roadside screening for drugs and blood samples can be taken at police detachments.

How much cannabis can you consume and still be under the legal limit? One puff? Two puffs? A whole joint? The answer depends on such things as the THC content of the strain you have consumed.  THC can vary a lot so there is no standardized way of knowing how much cannabis will take you over the 2 ng threshold. 

Having any trace of drugs like LSD, PCP, ketamine or cocaine while driving will also result in the same mandatory minimum penalties.

Another big change is a new hybrid offence. It will be illegal to have a BAC 50 mg of alcohol in 100 ml of blood alcohol plus 2.5 ng of THC in 1ml of blood while driving. So even if you are below the limit for alcohol and within the lower bracket for THC, having the two combined will push you into the more serious category.

A summary of the penalties for the new drug-impaired driving offences can be found here:

Table of mandatory minimum penalties for drug-impaired driving in Canada

Maximum penalties increasing

The maximum penalties for impaired driving will also be higher after December 18. For impaired driving causing no bodily harm or death, the highest possible punishment for a summary conviction will increase from 18 months imprisonment to two years less a day. For drivers prosecuted by indictment for the same offence, the maximum prison term will double from five years to 10.

For impaired driving causing bodily harm, the maximum penalty for a conviction by indictment is increasing from 10 to 14 years in prison.

A summary of the maximum penalties after December 18 can be found here:

Table of maximum penalties for impaired driving causing bodily harm or death

Why we’re sharing Canada’s new impaired driving laws

In light of these changes we are concerned, there will be a lot of drivers who simply don’t know about Canada’s new impaired driving laws come December 18. There will be plenty out there find themselves facing an IRP for refusal to blow or the possibility of a criminal conviction for ASD refusal

We urge you to tell your friends and family about the changes so they are prepared in the event they are selected by police officers for a breathalyzer demand.

Stay tuned to Acumen Law’s Twitter, Facebook and Instagram for more content about the new stricter regulations.

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14 Comments

  • Kerry Lynne Hammell
    Reply December 16, 2018 at 9:37 am

    I am very happy with these changes and believe that Canadians will be more receptive to zero intoxicants while driving once they are accustomed to these laws. My hope is for no more deaths or injuries due to substance abuse.

    • Paul Doroshenko
      Reply December 26, 2018 at 10:43 pm

      Each legislative change is announced by government with claims that this time they’ve finally got it right and that this time they will have a big impact on impaired driving.
      What we see is the attitude change in our society and enforcement having an impact. But legislative changes have insignificant changes to behaviour. People who drink and drive don’t consider the repercussions as far as the risk of an accident or the consequences of apprehension. Some who are not plastered will consider the threat of apprehension and that will deter them.
      Creating laws that will lead to wrongful convictions just causes people to lose confidence in the justice system and that is what we have here. When people conclude that you’re damned if you do and you’re damned if you don’t, both become viable options. If our goal of discouraging impaired driving we need to encourage the notion that if you drive in such condition, the police will pull you over before you get home. That is a deterrent that works.
      We should be careful about giving up rights, particularly when there is nothing to gain and much to lose.

    • Lazarus EM
      Reply January 4, 2019 at 5:03 pm

      You can have 5ng of thc in your blood sample even if you haven’t smoked for several days. Truth be told, many people fail drug tests days after they’ve last smoked.

      • Paul Doroshenko
        Reply February 2, 2019 at 11:59 am

        That’s a particular concern. Noteworthy also is you can have a non-prohibited level of THC from an edible and have significant impairment. THC tells you there has been use, but it tells you basically nothing about impairment.

  • Jake Stott
    Reply December 26, 2018 at 3:35 pm

    How does this affect Licensed Medical Cannabis users? Both my wife and I are licensed.

    • Paul Doroshenko
      Reply December 26, 2018 at 10:25 pm

      There are no exceptions for medical users. This aspect of the changes to the Criminal Code roadside breath testing procedure won’t pose any particular risk to you as a cannabis user. The problem is that the ASD demand and sample procedure will be employed as an opportunity to allow the officer to detain you and try and gain grounds to then make you participate in a Field Sobriety Test to assess possible impairment. At that point it becomes dicey.

  • Reginald Larouche
    Reply December 27, 2018 at 4:46 am

    I don’t see too much of an argument here, if you’re going to drive a two thousand pounds weapon, you have to do it with due care and attention. It is imperative that the operator of a vehicle be completely sober as it is a big responsibility and is paramount to public safety for all road users. Its about time we take full responsibility for our actions. You want to toke or have a few drinks? Just do so responsibility and take a taxi or have a sober designated driver do it for you. It was highly time to tackle driving under the influence. And while we’re at it we should include all forms of distracted driving. Drive responsibly folks.

    • Paul Doroshenko
      Reply December 28, 2018 at 11:47 am

      Do you think factually innocent people should be punished? Do you feel factually innocent people should be convicted on the basis of a police officer’s opinion?
      The changes to the Criminal Code facilitate this in a number of ways. In BC our IRP scheme starts with a presumption of guilt and lacks the tools for people to establish their innocence. In our view this is not something the people of BC or the people of Canada would support if they were fully informed.

  • Bluenomad
    Reply December 29, 2018 at 11:51 am

    Canada’s turning seriously fascist.
    But everybody seems to like it here.

    • Paul Doroshenko
      Reply December 31, 2018 at 12:06 am

      I don’t know that fascist is the right term, but we see a disturbing trend. Police lament the loss of power in the sense that regular people now question whether they should be ordering people around. Some also don’t think they should be criticized or that the criticism is too harsh. There seems to be a clear split. Some people want what seems to us to be illogical deference to the police. Others assume the police are just bad and operating like thugs.
      This split in viewpoints is unhealthy.
      We’re angry about what we see and because of our particular position we have unusual insights. We don’t think police are thugs. We prefer more checks on power. Police want more power. Our duty is to speak clearly about why this is a problem and not to back down in the face of people who want illogical deference to the police.

  • Scott Hutch
    Reply January 12, 2019 at 5:03 pm

    Are rights are slowly being stripped away soon we will be like the Amercians where the cops can do whatever they want when they want.And sad thing is most dont see what is really happening.

    • Paul Doroshenko
      Reply February 2, 2019 at 11:57 am

      It’s a disturbing trend. Our hope is that our courts protect us through a fair application of the Charter. As lawyers we do our best to remain confident and make the best case we can. We also have a duty in our view to keep the population alert to these issues.

  • Tom
    Reply January 13, 2019 at 10:06 pm

    So the Police come to my door with a report of an erratic possibly impaired driving accusation,, am I legally obligated to open my homes door and have a conversation with them?

    • Paul Doroshenko
      Reply February 2, 2019 at 11:56 am

      Determining whether you were required to open the door or entitled to keep it shut ends up being something resolved following the forensic analysis in court. So in the end, it’s the judge who decides.

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