With all the excitement of marijuana legalization, the media and the public have largely overlooked accompanying legal changes that will have a significant impact on the rights of drivers. Starting in December, amendments to the Criminal Code related to drinking and driving will come into effect. The new rules are a part of Bill C-46, which received Royal Assent back in June. When you examine some of the provisions, you truly wonder just how they got approved.
One explanation is that Bill C-46 is an omnibus bill. With the eagerness to push through cannabis legalization, the government was willing to acquiesce to some pretty ridiculous things. Also, with the focus on marijuana-impaired driving, no one seemed to really notice or rather care about the changes to alcohol-impaired driving that were getting stuffed into the bill as well.
Well, it’s time the media and the public woke up to exactly what is going to happen. In a matter of weeks, drivers are going to be at the mercy of some significant changes to the Criminal Code that arguably represent a serious infringement of Charter rights.
So what exactly is going to change?
“It’s not going to end well for Bill C-46”
1. Elimination of the reasonable suspicion standard for a breath test
Under the current – soon to be former – framework, when a police officer pulls someone over, they must have a reasonable suspicion that the driver has alcohol in their body before they can demand a test using an Approved Screening Device (ASD). They might ask if you’ve been drinking, they might smell liquor on your breath or notice an open beer can in the cupholder, for example. The officer then has to be able to articulate what the reasonable suspicion was that led to the ASD demand in court.
The new system removes the reasonable suspicion standard for roadside screening tests. Police will be able to make roadside breath demands without having to make any inquiries or later justify their decision-making as to whether an individual has consumed alcohol. You could argue, as we’re certain defence lawyers will be in the coming months, that this amounts to an unreasonable search and is therefore unconstitutional.
It’s only a matter of time until a Section 8 challenge to this new law is made as random breath tests amount to an unreasonable search. Until that happens, we could find ourselves in a situation where every impaired driving case involving an ASD after this new law comes into effect in December could potentially be found unconstitutional. But not before numerous miscarriages of justice are committed.
Sure, this new law makes it easier for officers to catch impaired drivers but how much of our privacy are we willing to sacrifice to make this happen?
2. Retrograde extrapolation
Section 320.31(4) of the bill also introduces something called retrograde extrapolation, also called backwards extrapolation. If a driver provides a breath or blood sample equal to or higher than 20 mg of alcohol in 100 ml of blood, more than two hours after they stopped driving, then the police will be able to go back and add 10 mg for every hour that passed between the test and the time of driving.
This will be enough to be “conclusively presumed” over the limit. This new law moves the standard of proof from beyond a reasonable doubt and into the realm of speculation. There is also a lot of research out there that shows retrograde extrapolation is hokum. You can read our previous blog about retrograde extrapolation here but suffice it to say it has some serious flaws.
We believe this will come in for constitutional scrutiny and it’s not going to end well for Bill C-46.
3. Bolus drinking/last drink defence
Under the current system, the “last drink” or “bolus drinking” defence has been used very infrequently when an accused consumes alcohol shortly before driving. During the time between consumption and driving, one cannot say the driver would be over the legal limit. Bill C-46 criminalizes the consumption of alcohol prior to driving that would result in a BAC over the legal limit of 0.08, regardless of what a person’s BAC at the time of driving might have been, effectively eliminating this defence.
4. “At or above 80”
Bill C-46 will also change the Criminal Code offence from being “over 80” to “at or above 80”. This change has surprisingly significant implications. The margin of error of the breath testing instruments, in addition to the vagaries of human biology, means that nobody is “at 80”. Draw blood from an individual who blows 80 and it may come back between 60 and 100 mg, depending on many variables.
5. A wider time frame for testing
Under the current version of the Criminal Code, if an officer has a reasonable suspicion that you operated a vehicle while impaired or over 80 within the preceding two hours, they are permitted to make a breath demand. This provision exists because there are sometimes delays before a driver can submit a breath test, such as if there was an accident and they need to go to the hospital, or there’s a long drive to get back to the detachment. Under Bill C-46, instead of two hours, it’s three, effectively giving officers a wider time frame to get samples.
This will encourage delays. Samples most accurately reflect blood-alcohol concentration at the time of driving if they are taken as close as possible to the time of driving. Opening up another hour simply means the quality and reliability of the breath test results will be diminished. The government appears to intend to found convictions on poor quality evidence.
What to do if you are charged under one of the new drunk driving amendments
We predict these amendments are going to lead to an explosion of wrongful convictions. That’s why, if you are charged with drinking and driving after December, it’s more important than ever that you challenge it.
We highly recommend you hire a lawyer to help with your case. Acumen Law has a wealth of experience at winning impaired driving cases. We believe in defending people’s Charter rights and are eager to help when legislation oversteps the mark.
Call us for a free consultation on 604-685-8889.