Unless you have been living under a rock you have likely heard that as of December 18, 2018 the law changed dramatically as it relates Criminal Code drinking and driving offences.
On that date the “old” drinking and driving offences were repealed and replaced with “new” drinking and driving offences. But what does that actually mean? How are the new provisions different from the old ones? What has actually changed?
First of all, and what has clearly been the subject of much discussion in the media as of late, is that new police powers have been created.
It used be(in the not so far distant past) that a police officer could only made a demand that a driver provide a sample of their breath into an approved screening device if they had a “reasonable suspicion” that the driver had alcohol in their system. Now, a police officer that lawfully pulls over anymotorist may demand a breath sample from the driver.
What does that mean in plain English? It means that random breath testing is now legal. For example, police now have the right to require that all drivers provide a breath sample during roadside checks like the RIDE program. This theoretically applies to drivers who have never consumed a drop of alcohol in their life.
What else is new? On December 18th, 2018 the old “over 80” offence contained in section 253 of the Criminal Codewas repealed. It was replaced with a new offence of “80 or over within two hours of operation”.
What does that mean? The new offence includes breath tests of “80 or over”, which means “80” breath tests will now result in a criminal charge. Prior it was only criminal to operate a motor vehicle if your blood alcohol concentration exceeded 80 milligrams of alcohol per 100 millitres of blood. Now operating your vehicle with“80 or over” isconsidered criminal.
Under the new law (section 320.14(1)(b)) driving with a zero blood alcohol concentration then going home and drinking within two hours appears on its face to be criminal. However, the section addresses this concern by providing a defence. Subsection (5) provides that “no person commits an offence under paragraph (1)(b) if they consumed alcohol after ceasing to operate if they had no reasonable expectation that they would be required to provide a sample of breath or blood.”
This new law was meant to address situations where a defendant would engage in post-offence drinking to defeat the results of a breath or blood test that they knew was coming. It was not meant to capture those who drove home safely under the legal limit and then decided to have a drink (or two, or three).
Have old “defences” to drinking and driving charges been eliminated?
Yes, many of them have.
For example, the new “80 or over” offence criminalizes bolus drinking. Under the old law, a claim of bolus drinking involved a defendant arguing that they consumed alcohol shortly before driving and the alcohol and not been fully absorbed into their bloodstream at the time of the actual driving. The “defence” advanced on their behalf was although they were “over 80” at the time of the testing at the police division, they were under 80 at the time of driving and thus entitled to an acquittal. This legal argument will no longer hold any water. In addition, the “intervening-drink defence” has bee eliminated. That means if after an accident if you have a drink to try and “calm your nerves” or subvert the testing process before the police arrive you won’t be entitled to an acquittal either. The new law also raises maximum penalties for impaired driving offences, which could have real implications for temporary and permanent residents who could theoretically face the prospect of deportation if convicted.
We are in the very early months of the new Criminal Code provisions. In fact, most of the drinking and driving trials happening in the Ontario Court of Justice at the moment are in relation to defendants charged under the old laws that pre-date December 18th, 2018. It will take some time for those charged under the new provisions to set their cases down for trial. There will undoubtedly be constitutional challenges to the new legislation, especially the random breath testing provisions. The final outcome of these anticipated Charterchallenges remain uncertain and likely will be for some time.