New penalties for Investigating Impaired drivers

With Part 2 of Bill C-46 has come into effect (December 18, 2018), the Ontario Provincial Police (OPP) will begin to exercise new authority for investigating impaired drivers on Ontario roads.

Police officers will now be able to demand a roadside breath sample from any lawfully stopped driver to determine whether a person has alcohol in their body without first having to suspect the motorist has been drinking. Until now, officers had to have a reasonable suspicion that a driver had alcohol in their body before demanding a sample.

Drivers need to be aware that it is mandatory for them to comply with this demand and that those who do not can be charged with failing or refusing to provide a breath sample.

Under the new legislation, drivers impaired by alcohol will also face higher mandatory minimum fines and some higher maximum penalties. (See penalties below).

“The new mandatory alcohol screening serves as an important deterrent to drivers who are impaired by alcohol, including those who believe they can avoid detection by police. So far this year, alcohol and/or drugs have been a factor in the deaths of 41 people on OPP-patrolled roads. Every person who uses our roads has the right to be safe. The OPP fully supports this and any other legislation that enhances our ability to reduce the number of preventable deaths attributed to this deadly driving behaviour.” – Interim Commissioner Gary Couture, Ontario Provincial Police.

The OPP has laid more than 7,300 impaired driving charges across the province between January 1 and mid-November, 2018.

If you suspect that a person is driving or about to drive impaired by alcohol or drugs, you should call 9-1-1 to report them to police.

Penalties for impaired driving as of December 18, 2018

Alcohol-impaired driving that does not cause bodily harm or death – mandatory minimum penalties:

• First offence + blood alcohol content (BAC) of 80-119 mg: mandatory minimum $1,000 fine
• First offence + BAC of 120-159 mg: mandatory minimum $1,500 fine
• First offence + BAC of 160 mg or more: mandatory minimum $2,000 fine
• First offence of refusal to be tested: mandatory minimum $2,000 fine
• Second offence: mandatory minimum 30 days imprisonment
• Third and subsequent offences: mandatory minimum 120 days imprisonment

 

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Bill C-46

The Government has committed to creating new and stronger laws to combat this crime. On April 13, 2017, the Government therefore introduced Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts. Bill C-46 would strengthen existing drug-impaired driving laws and create an impaired driving regime that would be amongst the strongest in the world.

The Preamble to the Bill sets out nine considerations that motivate the proposed legislation including that dangerous and impaired driving are unacceptable at all times and in all circumstances; that it is important to give law enforcement better tools to detect impaired drivers; that it is important to simplify the law relating to proving blood alcohol concentration; that it is important to protect the public from those who consume large amounts of alcohol before driving and that it is important that federal and provincial laws work together to promote safety. The Preamble is intended to be read as part of the Bill and assist in explaining its purpose and objectives.^{Footnote 9}

Bill C-46 has two Parts. The first Part of the proposed legislation would come into force on Royal Assent to ensure that a robust drug-impaired driving regime is in place before Bill C-45, the Cannabis Act, which would create a strict legal framework for controlling the production, distribution, sale and possession of cannabis in Canada, comes into force.

The second Part of the proposed legislation would reform the entire Criminal Code transportation regime to create a new, modern, simplified, and more coherent system to better deter drug and alcohol-impaired driving. It would include all the drug-impaired driving provisions under Part 1 of the Bill. It would repeal all the current provisions dealing with transportation offences (sections 249 to 261) and replace them with a new Part VIII.1, Offences Relating to Conveyances. The new Part VIII.1 would come into force 180 days after Royal Assent to allow the provinces time to prepare for its implementation.

Part 1 of Bill C-46 – Drug-impaired driving

Bill C-46 proposes to supplement the existing drug-impaired driving offence by creating three new offences for having specified levels of a drug in the blood within two hours of driving. The penalties would depend on the drug type and the levels of drug or the combination of alcohol and drugs. The levels would be set by regulation.

For THC (the main psychoactive compound in cannabis), the proposed levels would be:

• 2 nanograms (ng) but less than 5 ng of THC: Having at least 2 ng but less than 5 ng of THC per millilitre (ml) of blood within two hours of driving would be a summary conviction criminal offence, punishable by a fine of up to $1,000;
• 5 ng or more of THC: Having 5 ng or more of THC per ml of blood within two hours of driving would be a hybrid offence. Hybrid offences are offences that can be prosecuted either by indictment, in more serious cases, or by summary conviction, in less serious cases; and
• Combined THC and Alcohol: Having a blood alcohol concentration (BAC) of 50 milligrams (mg) of alcohol per 100 ml of blood, combined with a THC level greater than 2.5 ng per ml of blood within two hours of driving would also be a hybrid offence.

Both hybrid offences would be punishable by mandatory penalties of $1,000 for a first offence and escalating penalties for repeat offenders (e.g., 30 days imprisonment on a second offence and 120 days on a third or subsequent offence). The maximum penalties would mirror the existing maximum penalties for impaired driving. These would be increased when Part VIII.1 comes into force 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 penalty would make a dangerous offender application possible in appropriate circumstances.

The legislation would also authorize the Attorney General of Canada to approve the use of oral fluid drug screeners by police. These are hand held devices that determine whether a drug is present in oral fluid (saliva). Following a legal roadside stop, law enforcement would be authorized to demand that a driver provide an oral fluid sample if they reasonably suspect that a driver has drugs in their body. A positive reading would assist in developing reasonable grounds to believe that an offence has been committed. Once the officer has reasonable grounds to believe an offence has been committed, they could demand a drug evaluation by an “evaluating officer”, or the taking of a blood sample at the station.

The proposed amendments in Part 1 of the Bill would also facilitate the proof of drug impaired driving. Where an evaluating officer has identified a drug type as impairing a driver at the time of testing and that drug type is found by analysis to be in the driver’s body, it would be presumed that the drug was causing impairment at the time of driving. The proposed legislation would also provide police with the option to pursue a drug recognition evaluation or the taking of a blood sample in situations where they have reasonable grounds to believe an offence has occurred. This could save valuable time when testing for drugs, such as THC, that leave the blood very quickly.

Part 2 of Bill C-46 – Transportation Offence Reform (drug and alcohol impaired)

The proposed legislation would reform the entire Criminal Code regime dealing with transportation offences by repealing all of the current transportation offence provisions and replacing them with a modern, simplified, and coherent new Part VIII.1, Offences Relating to Conveyances, including all the drug-impaired driving provisions in Part 1. It would:

• Authorize mandatory alcohol screening at the roadside where police have already made a lawful stop under provincial law or at common law;
• Increase certain minimum fines and certain maximum penalties; and
• Permit an earlier enrolment in a provincial ignition interlock program

The proposed mandatory alcohol screening provisions would authorize law enforcement officers who have an “approved screening device” at hand to demand breath samples of any drivers they lawfully stop, without first requiring that they have a suspicion that the driver has alcohol in their body. As research shows that many impaired drivers are able to escape detection at check stops, this authority would help police detect more drivers who are “over 80” and reduce litigation regarding whether or not the officer had a reasonable suspicion. The result of a test on an approved screening device would not, by itself, lead to a charge. It would lead only to further investigation, including a test on an “approved instrument” at the police station.

The proposed legislation would enact some new and higher mandatory minimum fines, and some higher maximum penalties. Currently, the mandatory minimum penalties for impaired driving are:

• First Offence: $1,000 fine;
• Second Offence: 30 days imprisonment;
• Third Offence: 120 days imprisonment.

The proposed legislation would increase the mandatory fines for first offenders with high BAC readings or who refuse to provide a sample:

• A first offender with a BAC of 80 to 119 would be subject to the current mandatory minimum fine of $1,000;
• A first offender with a BAC of 120 to 159 would be subject to a mandatory minimum fine of $1,500;
• A first offender with a BAC of 160 or more would be subject to a mandatory minimum fine of $2,000; and
• A first offender who refuses testing would be subject to a mandatory minimum fine of $2,000.

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

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 penalty would make a dangerous offender application possible in appropriate circumstances.

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.

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.

Under the current law, a driver is permitted to drive during the period of prohibition if they are admitted into a provincial ignition interlock program. An ignition interlock device prevents the car from starting if the driver has been drinking. Currently, the driver must wait for a specified period of time before the province may consider an application. The proposed legislation would reduce the time an offender must wait before they can be enrolled in an ignition interlock program and drive. There would be no wait period for a first offence, three months for a second offence and six months for a subsequent offence. Evidence shows that ignition interlock devices reduce recidivism.

These are the provisions that will most directly affect the public. Part 2 of the legislation also proposes to:

• Facilitate the proof of BAC
• Eliminate and restrict defences that encourage risk-taking behaviour and make it harder to enforce laws against drinking and driving
• Clarify Crown disclosure requirements

Detailed information about these provisions is set out in the Overview of the proposed Part VIII.1, Offences Relating to Conveyances.