Frequently Asked Questions - Alcohol-impaired driving

Why did impaired driving laws need to be changed?

Impaired driving is the leading criminal cause of death and injury in Canada. This is unacceptable.  Keeping Canadians safe on our roads by combatting impaired driving is a top priority for the Government of Canada. 

The reforms passed by Parliament and given Royal Assent on June 21, 2018 make the law clearer and more coherent, create new authorities, increase deterrence, make it easier to detect impaired drivers, and simplify investigations and proof of impaired driving offences.  These measures will also reduce delays in the criminal justice system.

What does the new law do? What are the reforms to alcohol-impaired driving?

The new law has created a modernized, simplified and coherent legislative framework addressing all transportation offences, including alcohol and drug-impaired driving, in Canada.

In relation to alcohol-impaired driving, these reforms are an improvement that:

• authorize mandatory alcohol screening at the roadside
• repeal and replace all transportation offences with a modern, simplified and coherent structure
• increase some minimum fines and maximum penalties
• facilitate investigation and proof of blood alcohol concentration
• eliminate and restrict defences that encouraged risk-taking behaviour
• clarify what is required to be disclosed by the Crown to the defence with respect to proving blood alcohol concentration
• permit an earlier enrolment in provincial ignition interlock programs, where they are available

How are the new reforms dealing with alcohol-impaired driving related to the recently enacted reforms to drug-impaired driving?

These reforms are also part of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, (former Bill C-46) which received Royal Assent on June 21, 2018.  These reforms, which are found in Part 2 of the legislation, repeal the transportation regime of the Criminal Code and replace it with a new, modernized and simplified transportation regime. 

The recently enacted reforms to drug-impaired driving, which are in Part 1 of the legislation, came into force on June 21, 2018.  The recent reforms to drug-impaired driving are not substantively impacted by the new reforms; they are integrated into Part 2 of the Criminal Code transportation regime. 

What is the expected impact on the criminal justice system from these legislative reforms?

These reforms are expected to save lives by increasing deterrence of impaired driving and facilitating the investigation of these offences.  The reforms are also expected to ease the burden on the courts by facilitating prosecutions with the aim of reducing delays in the criminal justice system.  

What is mandatory alcohol screening?

Mandatory alcohol screening authorizes law enforcement officers to demand that a driver provide a roadside breath sample on an approved screening device, whether or not they suspect that the driver has recently consumed alcohol.  This would only be done after the person has been lawfully stopped, under common or provincial law.  For instance, under provincial highway traffic acts, law enforcement can stop drivers at random to check licence validity, vehicle fitness and sobriety.

Why is mandatory alcohol screening needed?

Research suggests that up to 50% of drivers with a blood alcohol concentration above the legal limit may not be detected at roadside check stops. Mandatory alcohol screening is a proven traffic safety measure that will deter and better detect alcohol-impaired drivers.

In addition, in several other jurisdictions where mandatory alcohol screening was enacted, rates of impaired driving and subsequently fatal road accidents, were significantly reduced.

For example, authorities in Ireland credit mandatory alcohol screening with reducing the number of people killed on Irish roads by almost a quarter (23%) in the first year following its enactment in 2006 and almost 40% over the first four years.

Will mandatory alcohol screening lead to racial profiling?

Mandatory alcohol screening has been enacted to keep Canadians safe on our roads and highways.  It does not give police any additional powers to stop drivers at random to determine their sobriety.  The Supreme Court of Canada has previously upheld these types of traffic stops as lawful (R v Hufsky, (1988) and R v Ladouceur, (1990)).  

Mandatory alcohol screening will not alter the responsibility that law enforcement to ensure the fair and appropriate application of the law, and to be properly trained. If a traffic stop is motivated by bias then the courts may determine that the stop was unlawful and exclude the evidence. 

Do other countries authorize mandatory alcohol screening?

Mandatory alcohol screening is authorized in over 40 countries worldwide, including Australia, New Zealand, Austria, Belgium, Denmark, Finland, France, Germany, Ireland, The Netherlands, and Sweden.

Why is there mandatory screening for alcohol, but not for drugs?

Requiring that a police officer have reasonable suspicion that the driver has drugs in their body in order to allow them to demand an oral fluid sample for drugs, reflects the difference in the current technology of the two devices. Unlike the approved screening device for alcohol, which gives results in seconds that indicate blood alcohol concentration, drug screeners take longer to indicate the presence of a drug in oral fluid. In addition, unlike with alcohol, the concentration in oral fluid cannot be converted to a concentration of the drug in the blood. As such, the information that provides a police officer with reasonable grounds to suspect a drug in the body will likely be required, in addition to the positive result on a drug screener to move the investigation forward. 

Have the penalties for impaired driving changed?

The mandatory minimum terms of imprisonment for impaired driving have not changed. However, there are some new and higher mandatory minimum fines, and some higher maximum penalties.

The legislation increases the mandatory fines for first offenders with high blood alcohol concentrations (BAC):

• A first offender with a blood alcohol concentration of 80 to 119 mg of alcohol per 100 ml of blood is subject to a mandatory fine of $1,000
• The mandatory minimum fine for a first offender with a BAC of 120 to 159 mg of alcohol per 100 ml of blood is $1,500
• The mandatory minimum fine for a first offender with a BAC of 160 mg or over of alcohol per 100 ml of blood or more is $2,000
• The mandatory minimum fine for a first offender who refuses to comply with a lawful demand is $2,000.

Is this law defensible under the Charter?

As outlined in the Bill’s accompanying Charter Statement, the Government is confident that the legislation is consistent with the Constitution and the Charter of Rights and Freedoms.

Who advises the Government on scientific issues relating to impaired driving?

The Government receives scientific advice on drugs and alcohol-impaired driving from two separate committees of the Canadian Society of Forensic Science, comprised of dedicated volunteer scientists.  The Alcohol Test Committee (ATC) advises on alcohol impaired driving, and the Drugs and Driving Committee (DDC) advises on drug-impaired driving.

Why was there a delay of 180 days before the alcohol-related amendments came into force?

The 180-day delay from Royal Assent until the law came into force was to provide the provinces and territories sufficient time to prepare for the implementation of these significant reforms.

Why was the offence of driving over the legal limit (the "over 80" offence) broadened so as to capture drivers who were at or over 80 "within two hours of driving"?

The offence of "operating at or over 80 within two hours of driving" eliminates the bolus drinking defense by changing the time frame within which the offence can be committed. It is no longer relevant that the person's blood alcohol concentration may have been below 80 mg at the time of driving.

What is the bolus drinking defence and why was it eliminated?

"Bolus drinking" refers to situations where a driver claims that, although they consumed alcohol just before or during driving, they were not over the legal limit while driving because the alcohol was not fully absorbed until the time of testing. This defence rewards the risky behaviour of drinking immediately before or during driving in the hopes of arriving at a destination before being too drunk to drive or being at the offence level.

The new law changed the timeframe of the offence (i.e., to being at or over the offence level within two hours of driving).  Therefore, the argument that alcohol was still being absorbed has become irrelevant.

What is the intervening drink defence and why was it restricted?

The "intervening drink defence” refers to situations where a driver consumes alcohol after driving but before providing a breath sample at the police station.  This conduct is often intentional and done to interfere with the breath testing process. 

By changing the timeframe of the offence (i.e., to being at or over the offence level within two hours), the argument that post-consumption alcohol was the cause of the high blood alcohol concentration is no longer relevant. Recognizing that there may be situations where the post-driving consumption of alcohol was innocently done, the legislation provided a limited exception, (i.e., the driver drank after driving and had no reason to expect that they would be required to provide a sample of breath).

How does the new law change the information that must be disclosed to the defence?

The legislation clarifies that the only material the Crown must disclose with respect to proving blood alcohol concentration is material that is scientifically relevant.  This includes the results of the calibration checks and any error messages produced by the approved instrument, but would not include maintenance records.  This helps improve the efficiency of the justice system by reducing demands that are frequently made by the defence for scientifically irrelevant materials.  This change is consistent with the Supreme Court of Canada decision in R v Gubbins (2018 SCC 44).

What is an ignition interlock device, and why does the new law shorten the time that an offender, who is prohibited from driving, must wait before they can apply to the province to enroll in an ignition interlock program?

Ignition interlock devices require a driver to provide an alcohol-free (or very low alcohol) breath sample before their car will start.  They have been shown to reduce recidivism for impaired driving. 

The law has reduced the time that an offender must wait before they can apply to the province to enrol in an ignition interlock program. For a first offender, the wait time is reduced from 3 months to none; from 6 months to 3 months for a 2nd offender; and from 1 year to 6 months for a subsequent offence.  Reducing the wait time gives provinces maximum flexibility in accordance with their own policies and priorities to determine when a driver can resume driving. 

A shorter wait-time is particularly useful in rural areas where the driver has limited alternatives to driving and where driving a car can on occasion be required.

Can a police officer use mandatory alcohol screening to demand a breath sample from a person in a bar, restaurant or their home after they have driven?

No. Mandatory Alcohol Screening (MAS) can only be used if the driver is operating a vehicle, the vehicle has been lawfully stopped, and if the police officer has the approved screening device at hand. It does not apply when drivers have returned home or arrived at their destination.

Why is it now an offence to have a BAC of at or over 80 mg within two hours of driving?

The law has been changed so a person's blood alcohol concentration (BAC) cannot be at or over 80 mg within two-hours after driving. This aims to discourage risky and dangerous behavior that poses a risk on our roads. The new law has eliminated the "bolus drinking" defence and has limited the "intervening drinking" defence.

For example, on a "bolus drinking" defence, a driver would admit that their BAC was over 80 mg at the time of testing. However, they could then claim to have consumed a significant amount of alcohol just before or while driving arguing that the alcohol was still being absorbed and, at the time of driving, their BAC was not over 80.

The "intervening drink" defence is used when a driver claims to have consumed alcohol after operating the vehicle but before testing. Where this defence was most frequently used was after an accident where the driver claimed they drank to 'calm their nerves' post-incident. This defence made it difficult for law enforcement to determine actual BAC at the time of driving.

The conduct of bolus drinking and post-driving drinking has also been the subject of negative judicial commentary, including by the Supreme Court of Canada. In addition, this new offence structure has long-been used in more than a dozen US states, including Alaska, Washington, Minnesota, Pennsylvania, and Utah and has, for the most part, withstood constitutional scrutiny.

What if someone drives home sober and then consumes alcohol. Couldn't they be convicted under this new offence?

The new law provides a specific statutory exemption for innocent post-driving drinking which makes it clear that individuals who consume alcohol after they arrive at their destination are not caught by the offence. This exemption makes it clear that the new offence does not apply to drivers who arrive home sober, without incident, and then consume a few drinks. The Crown continues to bear the burden of proving all the elements of the offence.