Legislative Background: reforms to the Transportation Provisions of the Criminal Code (Bill C-46)
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Impaired drivers kill and injure thousands of Canadians every year and impose enormous social and economic costs on society. Since the early days of the automobile age, Parliament has repeatedly taken action to try to protect Canadians from this carnage. In 1921, Parliament made it an offence to drive while intoxicated. In 1925, it criminalized driving while intoxicated by narcotics. Dangerous driving has also been an offence since 1938. In 1951, Parliament responded to the concern that some courts were only convicting if the driver was “falling down drunk” by adding the offence of driving while impaired by alcohol.
Major changes were made to the impaired driving laws in 1969. Parliament repealed the offence of driving while intoxicated, while keeping the offence of driving while impaired. At the same time, it made it an offence to drive with a Blood Alcohol Concentration (BAC) over 80 mg of alcohol per 100 ml of blood (over 80) and created an offence of refusing to provide a breath sample. Parliament provided for the BAC to be determined by an “approved instrument” (AI). In 1979, Parliament also authorized the use of an “approved screening device” (ASD) at the roadside to facilitate the detection of impaired drivers. It is a criminal offence to refuse to provide an ASD or AI sample.
Parliament has also amended the Criminal Code over the years to respond to certain court decisions. It has also passed legislation to deter the dangers caused by street racing, fleeing the police and leaving the scene of an accident. It is also a criminal offence to drive while prohibited from doing so as a result of a Criminal Code conviction.
In 2008, Parliament made more major changes to address drug-impaired driving, creating the legal framework for the Drug Recognition and Evaluation (DRE) Program. It also eliminated the “two beer defence”, i.e., the use of low alcohol consumption evidence alone, to rebut the presumption that the BAC produced by the AI at the time of testing equals the BAC at the time of driving. The key requirement that there must be evidence of operator error or instrument malfunction before the BAC produced by the AI could be challenged was upheld by the Supreme Court in R. v. St-Onge Lamoureux, (St-Onge)Footnote 1.
It should be noted that in developing the impaired driving legislation, the Government and Parliament have always been assisted by the scientific advice of committees of the Canadian Society of Forensic Science, namely the Alcohol Test Committee (ATC) and the Drugs and Driving Committee (DDC).
Although there has been progress in reducing the toll caused by impaired driving, it remains the leading criminal cause of death and injury in Canada. In 2015, police recorded 72,039 impaired driving incidents (drugs and alcohol); a decrease of 4% from 2014 and 65% lower than 1986.Footnote 2 Nearly 3,000 of these incidents related to drugs (4%). The number of drug-impaired driving incidents has increased steadily since 2009 (when data was first collected).
In 2013, 31% of all fatally injured drivers in Canada (excluding BC) had been drinking and 76.6% of these fatally injured drinking drivers had BACs exceeding the criminal legal limit of 80.Footnote 3 In 2012, there were 2,546 crash deaths. Of those, 1,497 deaths, or 58.8%, involved drivers who had some alcohol and/or drug present in their systems.Footnote 4
Canada lags behind other countries in combatting this crime. On July 8, 2016, the American Centers for Disease Control and Prevention released a report indicating that Canada has the highest percentage of alcohol-related crash deaths (33.6%) among 20 high-income countries (median 19.1%).Footnote 5
Impaired driving cases clog the courts. The median length of time for an alcohol-impaired driving trial was 92 days in 2000/01. It rose sharply, primarily due to the two beer defence, and was 146 days in 2010/11. With the enactment of restrictions on the two beer defence in 2008, and particularly the Supreme Court decision that the two beer defence was insufficient by itself to raise a reasonable doubt about BAC, the median time required has declined to 127 days in 2014/15 – similar to the median for other criminal trials (121 days). However, drug-impaired driving trials take almost twice as long - the median length of time for a drug-impaired driving trial was 227 days.Footnote 6
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