1.1 Introduction

This report is tabled pursuant to section 31.1 of former Bill C-46: An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, which provided that the Minister of Justice and Attorney General of Canada must, within three years of coming into force on December 18, 2018, undertake a comprehensive review of the implementation and operation of the provisions enacted by the Act.

The review must also include an evaluation of whether the implementation and operation of the Act have resulted in differential treatment of any particular group based on a prohibited ground of discrimination. This review also provides an opportunity to take stock of the current data on impaired driving and identify early trends, and issues to monitor as part of the on-going work to combat both drug and alcohol-impaired driving.

1.2 Background

The ultimate objective of the Act was to reduce the deaths and injuries caused by impaired drivers on Canadian roads. In addition to needing new tools and offences to address drug-impaired driving, in advance of cannabis legalization, the impaired driving regime in the Criminal Code was complex and difficult to apply. It contained overlapping offences, permitted common law defences that encouraged risky conduct, and was an area of law that was among the most heavily litigated, which took up a disproportionate amount of court time.

As such, the Act strengthened the approach to drug-impaired driving and repealed the existing transportation offence regime and replaced it with a new, modernized, simplified, and coherent framework that is intended to make the law easier to understand and enforce, better deter and improve detection of impaired drivers, lead to efficiencies in the criminal justice system, and ultimately save lives.

In support of these legislative changes, in 2017 the Government of Canada also announced $161 million in federal funding to support the new drug-impaired driving regime (the funding initiative). The drug-impaired driving funding initiative was targeted towards training for frontline officers to detect drug-impaired drivers, building law enforcement capacity, providing access to the newly approved drug screening equipment (ADSE), as well as policy, research, and public awareness activities around drug-impaired driving.

The following section provides a high-level overview of some the legislative changes for which some data is available to assess its impact. An in-depth explanation of the changes enacted can be found in the Justice Canada document entitled “Backgrounder for former Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, as enacted” (Department of Justice Canada 2019).

1.2.1 Detection and Deterrence of Impaired Driving

Mandatory Alcohol Screening

One of the changes that received a significant amount of Parliamentary discussion was MAS (now subsection 320.27(2) of the Criminal Code). MAS authorizes a peace officer, who has lawfully stopped a driver under other powers, to demand a preliminary breath sample on an approved screening device to test for alcohol. The Act removed the previous requirement that an officer first had to have reasonable suspicion that the driver had alcohol in their body before they could make the demand. The reasonable suspicion standard was removed because evidence indicates it can be difficult to develop suspicion in a brief interaction at the roadside, resulting in police officers missing a significant number of impaired drivers. MAS is not a stopping power; a driver can only be stopped by a police officer if they are acting within the scope of their other powers, including under the common law and provincial highway traffic powers. It is only once the driver is subject to a lawful stop that the MAS power can be used.

1.2.2 Strengthening Drug-Impaired Driving

Blood Drug Concentration (BDC) Offences and Authorization of Oral Fluid Drug Screeners

In response to concerns that the legalization of cannabis could lead to an increase in people driving under its influence, the Act strengthened the approach to drug-impaired driving by authorizing the use of a new screening tool at the road side and creating three offences of having a BDC at or above a prescribed limit for certain impairing drugs (including THC) within two hours of driving.

The screening tools (approved drug screening equipment) are oral fluid drug screeners which, detect certain impairing drugs at a specified threshold in the oral fluid of suspected impaired drivers. Mandatory drug screening is not currently permitted by law; peace officers can only demand an oral fluid sample if they have a reasonable suspicion that the driver has drugs in the body.

The new offences are based on the concentration of certain prohibited drugs (including THC) in the blood of a driver (the offences are set out in subsection 320.14(1), and the prohibited drug levels are set by regulation (SOR/2018-148)).

The offences are:

The first offence is punishable by a maximum fine of up to $1,000. The second and third offences are punishable in the same manner as the other impaired driving offences, (i.e. a minimum fine of $1,000 and a maximum of 2 years less a day imprisonment for a first offence on summary conviction, and a maximum of 10 years on indictment).

Demands for a Drug Recognition Evaluation

The Act modified the law to clarify and strengthen the drug recognition evaluation (DRE) process. For example, any police officer with reasonable grounds to believe that a drug-impaired driving or a BDC offence has been committed can, instead of making a demand for a DRE, make a demand for a sample of blood. The Act also confirmed that the evidence of the drug recognition expert is admissible at trial, without need to establish that they are an expert in each case, and made collecting blood easier by removing the requirement that it must be overseen by a doctor.

1.2.3 Facilitating the Investigation and Prosecution of Impaired Driving and Creating Trial Efficiencies

Facilitating Proof of BAC

The Act made several changes to the provisions relating to how the Crown proves the driver’s BAC in a trial on the offence of having a BAC at or over 80 mg per 100 ml of blood (80 or over) within two hours of driving. This change reflected Parliament’s confidence in the accuracy and reliability of AIs that are approved by the Attorney General of Canada. Specifically, the procedures that must be followed, and the necessary results of those procedures are now listed in the Criminal Code (subsection 320.31(1)). If the Crown proves that the requirements have been met, then the results of the breath test by an AI is conclusively proven.

In addition to reflecting the scientific reality of the AIs and the confidence of Parliament in their results, this change was intended to create more efficient trials by streamlining and facilitating the proof of the key element of the 80 or over offence (i.e., the BAC of the driver).

Eliminating the bolus drinking defence and limiting the intervening drink defence

Under the former law, the “bolus drinking” defence could be raised when the driver admitted that their BAC was over the limit at the time of testing, but claimed it was not the case at the time of driving. This was because they had consumed a significant amount of alcohol just before or while driving such that the alcohol was still being absorbed while they were behind the wheel. Similarly, the intervening drink defence arose when a driver claimed to have consumed alcohol after operating the vehicle but before testing. This often occurred after an accident, where the driver claimed to have taken the drink or drank to calm their nerves prior to the arrival of police.

The “bolus drinking” defence was removed because it encouraged risky behaviour and the intervening drink defence was limited to exlude intentional conduct aimed at undermining the integrity of the justice system and frustrating a police investigation. However, the Act created an exception for those who innocently consume alcohol after driving, in situations where the same public policy concerns do not arise. It was expected that addressing public policy concerns with these two defences would also lead to efficiencies in terms of the duration of trials.

Clarifying Crown Disclosure Requirements

The Act clarified what the prosecution is required to disclose to the defence in relation to whether the breath tests of an accused provided accurate results. The defence could apply for further disclosure, stating how the material is relevant.

1.2.4. Litigation

Impaired driving is one of the most litigated areas of the criminal law and, as such, extensive litigation on the new law was expected as lawyers, and courts contended with the changes. This includes litigation relating to the interpretation and implementation of the new law, as well as the constitutionality of the provisions. Much of the litigation is currently on-going and neither the Supreme Court of Canada nor the Courts of Appeal have adjudicated on the constitutionality of any of the new provisions.

1.3 Racial profiling and former Bill C-46

Racial profiling - which occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatmentFootnote 1 - is an unacceptable abuse of police power.

The Ontario Court of Appeal has stated that racial profiling is “offensive to fundamental concepts of equality and… human dignity”. Racial profiling undermines effective policing, fuels harmful racial stereotyping, offends equality and human dignity, and “operates whenever race or racial stereotypes contaminate decision-making by persons in authority”. (R v Dudhi, 2019 ONCA 665 at para 65 paraphrasing Peart v Peel Regional Police Services, 2006 CanLII 37566 (ON CA)). Racial profiling, among other factors, contributes to issues of systemic racism and overrepresentation of Indigenous and racialized groups in the criminal justice system.

The issue of racial profiling was raised by some witnesses testifying on the Bill during the Parliamentary process, in particular with respect to the MAS power. There was concern that the power to demand a preliminary breath sample from a driver without suspicion that they have alcohol in their body could lead to an increase in drivers being stopped for improper purposes. However, MAS is not a stopping power (the power to randomly stop drivers to determine that a driver is licenced, the car is fit, and the driver is sober has previously been upheld by the Supreme Court of Canada (R v Ladouceur, [1990] 1 SCR 1257)), and the legislation specifically requires that MAS can only be used during a lawful stop (that is, a stop that is not motivated by racial stereotypes or racial bias).

As the Minister of Justice and Attorney General of Canada indicated before the House of Commons Committee on Justice and Human Rights:

Mandatory alcohol screening would not alter the responsibility that law enforcement has towards training and oversight to ensure fair, equal, and appropriate application of the law.Footnote 2

In Canada, all police officers must exercise their powers in a manner consistent with the Canadian Charter of Rights and Freedoms. As the courts have recognized, a stop motivated by racial profiling would constitute an improper purpose and would invalidate the stop, and everything that flowed from the stop. See for example R v Khan, [2004] OJ No 3819. Judicial sanction, including the exclusion evidence is available to address such cases. In addition, the preamble of the Act clearly articulates that all investigative powers must be exercised in accordance with the Charter. This sends a clear signal from Parliament that racial profiling in impaired driving investigations is impermissible.

There is currently no national level data available on the Indigenous or ethno-cultural identity of people who are stopped by police, making any assessment of the impact of MAS and other police powers on different groups challenging. Efforts are currently underway to enable the broad, systemic collection of this data, which will allow for a better understanding of the impact of legislative changes on these groups. Specifically, in July 2020, the Canadian Association of Chiefs of Police and Statistics Canada announced a commitment to require the police to report statistics on Indigenous and ethno-cultural groups in police-reported crime statistics to improve the collection of disaggregated data in the criminal justice system. In 2021, Federal, Provincial and Territorial Deputy Ministers Responsible for Justice and Public Safety endorsed the collection and analysis of Indigenous and race-based data as a priority for the National Justice Statistics Initiative. Justice Canada and Statistics Canada also received $ 6.7 million in Budget 2021 to improve the collection and use of disaggregated data to help improve policy responses aimed at reducing the over-representation of Indigenous and racialized people in the criminal justice system. In order to address this data gap for the legislative review, the NJS 2021 was identified as a tool that would allow for the collection of limited data within the legislative review timeframe (i.e. three years after the coming into force of the Act). The project included a survey and interviews to assess whether or not different groups were being disproportionately impacted by police enforcement.