February 19, 2019
These are my opinions only, and not necessarily those of the Prosecution Service of British Columbia.
When it legalized marijuana, Parliament amended the Criminal Code hoping to simplify the prosecution of impaired drivers.
If the new provisions survive Charter scrutiny, they will simplify breath testing. Investigation and proof of drug impairment isn't simple.
Parliament left some gaping holes in the transitional provisions, and made some odd policy choices around sentencing.
"Bill C-46" = An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts
This Bill came into force on two dates: June 21, 2018 & December 18, 2018.
The current legislation is now available on the Federal Department of Justice website, here.
Part I created limits for "per se" blood-drug concentrations. Like over 80mg%, but for drugs.
By regulation, Parliament prohibited different concentrations for different drugs, and contains some surprising concentrations. The regulation was published on July 11, 2018:
Blood Drug Concentration Regulations, SOR/2018-148
The amendments empowered officers to screen driver's "oral fluid" for drugs. A pair of devices were approved for this purpose.
The Approved Drug Screening Equipment Order, SOR/2018-179 identifies the pair. Click on the pictures below to go to the manufacturer's website:
The per se drug offences prohibit being over the limit in the two hours after driving. They do not actually prohibit driving with too much intoxicant in the body.
The crime starts when the driving/care or control stops.
Part II of Bill C-46 creates Part VIII.1 of the Criminal Code, devoted specifically to driving / boating / flying / train offences. It redefines many offences, and renumbers them. Time to forget 249, 253 and 258. Start thinking 320.13, 320.14, 320.31.
Here is my comparison of the new sections against the old.
The Act itself contains a preamble, and enacts a statement of principles designed to fend off Charter review.
The new Part also contains a set of aggravating factors for the purposes of sentencing.
s.320.11 creates some definitions which apply to the new part:
All offences in Part VIII.1 are defined in terms of operating a conveyance.
|Dangerous driving||249||320.13(1)||Simpler language, but no substantive change.|
|Impaired driving||253(1)(a)||320.14(1)(a)||Simpler language, but no substantive change.|
|.08 or over||253(1)(b)||320.14(1)(b)||The offence changes from having too much alcohol in your blood while
driving to having too much alcohol in your blood in the 2 hours after
"Over .08" becomes ".08 or over".
|Over drug limit||253(3)(a)||320.14(1)(c)||The offence is committed after driving in the 2 hours after driving. For THC (marijuana) there are two limits: 2ng/mL and 5ng/mL.|
|Lower marijuana limit||253(3)(b)||320.14(4)||Lower penalties for 2ng/mL of THC (marijuana)|
|Over limit for alcohol & drug combined||253(3)(c)||320.14(1)(d)||50mg% alcohol + 2.5ng/mL of THC|
|Refusal||254||320.15(1)||No change to refusal, but change to mens rea respecting
injury or death
|Hit & Run||252||320.16(1)||Old offence was a specific intent offence - for the purpose of
evading civil or criminal liability.
New offence is a general intent offence - the Crown need not prove any purpose for the flight.
|Flight from police||249.1||320.17||Simpler language. Repealed bodily harm and death offences.|
|Drive while prohibited||259(4)||320.18(1)||Change of language from "suspended" to "prohibited". No substantive change.|
* In the preamble to the amending legislation, Parliament identified its purpose in defining the .08 offence as it did: "it is important to protect the public from the dangers posed by consuming large quantities of alcohol immediately before driving". The change is intended to defeat defences based upon bolus drinking before driving.
The elements of the offence of impaired causing bodily harm or death remain unchanged.
But the liability for "per se" alcohol/drug and refusal offences change subtly from causing an accident which causes the harm to causing the harm directly. 320.14(2); 320.15(2).
Also, in bodily harm cases, the mens rea for refusal shifts from "knows or ought to know that they caused an accident" to "knows or is reckless as to whether they were involved in an accident". 320.15(2).
The legislation repeals the flight from police causing bodily harm or death. If someone flees from police and causes such harm, Crown must charge dangerous driving or criminal negligence causing bodily harm or death.
The minimum penalties for refusing can be greater than for blowing.
The first time drunk driver who calls for legal advice needs to know the differences in penalties for refusing, or blowing or giving bodily samples:
When negotiating a plea deal with Crown, a drunk driver who refused or who blew 120mg% or higher will have a financial incentive to admit "impairment" instead of ".08 or over".
Summary conviction: 2 years less a day (up from 18 months) - s. 320.19(1)
Indictment: 10 years (up from 5 years) - s. 320.19(1)
For the intoxicated driving, dangerous driving and hit and run offences that cause bodily harm, the Crown can now proceed summarily (2 years less a day) or by indictment (14 years, up from 10) - s.320.2
There is no bodily harm or death offence involving the low THC concentration (2ng/mL).
The Crown can proceed only by indictment, and the maximum sentence remains the same: life. - s.320.21
First offenders get a minimum $1,000. Repeat offenders get 30 or 120 days. For impaired / per se / refusal offences simplicitur, any one of them under the new legislation or the old forms a prior offence. s.320.26.
The sentencing structure contains a couple of curious policy decisions.
What the section does not clarify is whether they constitute prior offences for the purposes of sentencing bodily harm or death cases.Parliament did introduce a big sledge-hammer for repeat offenders. The operation offences are become "designated offences" for the purposes of dangerous offender applications and long term supervision orders. Those drunk drivers who keep re-offending can be sentenced as long-term or dangerous offenders.
At first blush, the driving prohibitions remain the same or increase. But strangely, although offenders who drive drunk without injuring or killing anyone are prohibited from driving for a year, offenders who kill or cause bodily harm face no minimum driving prohibition. And Parliament repealed the escalating driving prohibitions for repeat offenders. 320.24(1)
|Impaired / 08 / Refusal||1st 1-3 years
2nd 2-5 years
3rd+ 3+ years
3rd+ ≥ 3
|Impaired / 08 / Refusal - Bodily harm||0-3 (summary)
|Impaired / 08 / Refusal - Death||0-life|
|Dangerous driving - Bodily harm||0-10||0-3 (summary)
|Dangerous driving - Death||0-10||0-life|
|Hit & Run||0-3 (summary)
|Hit & Run - Bodily harm||0-10 (indictment)||0-3 (summary)
|Hit & Run - Death||0-life||0 - life|
|Flight police||0-3 (summary)
0-life (indictment / death)
However, courts can no longer impose consecutive prohibitions, except when the offender is still serving a prior prohibition. s.320.24(9)
Offenders sentenced to driving prohibitions become eligible for interlock programmes earlier than before. s.320.24(10)
Curative discharges are repealed. BC never joined that party, but now the party is over. However, in participating provinces, offenders who take provincially-approved curative treatment may escape mandatory minimum penalties. CSOs for repeat offenders! The consent of the prosecutor is required. Expect litigation on the exercise of Crown discretion. s.320.23(1)
The former powers to demand breath or blood from suspected impaired drivers continue, with a curiously unnecessary change in wording. Parliament substituted "immediately" for "forthwith", but gave no hint what this change in language should mean.
Before June, 2018, an officer who harboured suspicion that a driver had alcohol in his/her body, the officer could demand breath or standardized field sobriety tests. Now an officer can demand both.
Before this summer, an officer suspected that driver had a drug in his/her body could only demand field sobriety testing. Now that officer can also demand drug screening. 320.27(1). See above for the links to the equipment.
A demand to screen breath at roadside follows a familiar pattern. The officer may demand either or both an Alcohol Screening Device test or a Standardized Field Sobriety Test (SFST).
A demand to screen saliva ("oral fluid") for drugs follows the same pattern. Device or SFST.
Starting on December 18, 2018, police officers engaged in regular traffic enforcement may demand breath screens for alcohol without specific evidence of consumption. But they need to have a screening device with them. s.320.27(2).
Defence counsel will doubtless challenge this provision under s.8 of the Charter.
For alcohol impairment, an officer follows the same procedures for breath or blood analysis as before. Time limits are gone: although the officer must make the demand "immediately", the officer can make the demand more than 3 hours after driving/operation. 320.28(1) Furthermore, a statutory presumption (see "Presumptions" below) performs the calculations that alcohol experts did in the past.
Where an officer believes that drugs or drugs and booze impair a driver, things get more complicated.
The officer can demand a DRE examination, or a blood sample, or both. But the officer must must make the demands "as soon as practicable". For the steps required in a DRE examination, see the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations.
The offence consists of having a prohibited quantity in the body in the 2 hours after driving. Police will therefore want to get bodily samples within 2 hours of the operation in question. The many steps required and the several personnel involved will make this difficult.
Although the DRE procedure may include as many as two more demands (breath screen; urine, saliva or blood), the suspect gets only one opportunity to get legal advice. R. v. Fogarty, 2015 NSCA 6.
In s.320.31(9) Parliament overruled R. v. White,  2 SCR 417.
Police officers may rely on accident reports compelled by legislation to assist in the formation of grounds for demands.
Where the prosecution relies on breath testing, s.320.34(1) requires disclosure of:
Defence can ask for more, but in light of R. v. Gubbins, 2018 SCC 44, they can no longer expect judges to approve of the laundry lists of documentation ordered in R. v. Phagura, 2009 BCPC 296.
Where defence wants greater disclosure or applies to cross-examine the author of a certificate, defence must now schedule applications at least 30 days before trial, and further, must give detailed notice to the prosecution at least 30 days before that. 320.34(2), 320.32(3)
Although this imposes some preparation obligations on Defence, it arguably casts on the prosecution an obligation to give full disclosure and notice of intention to rely on certificates no later than 60 days before trial.
The new presumption of accuracy differs from the old one. s.320.31(1)
Where breath testing was done more than 2 hours after the driving/operation, s.320.31(4) now requires the court to perform the extrapolation of 5mg% per half-hour back to the 2-hour period of driving.
Where chemical testing confirms that a DRE correctly identified a class of drug in an impaired driver's body, the court must accept that the drug (or drug/alcohol combination) impaired the driver at the time of driving. s.320.31(6)
The old "bum in the driver's seat" presumption remains unscathed. s.320.35
The old hit & run definition included a presumption that anyone who fled intended to escape civil or criminal liability.
The new one doesn't need that presumption, so Parliament repealed it. 320.16(1)
But old cases still in the system will now be deprived of that presumption.
Parliament saw fit to amend s.487.04 so that a "secondary designated offence" for the purpose of DNA includes:
(viii.2) subsection 320.16(1) (failure to stop after accident)
This makes sense. People who flee from accidents should be required to give DNA.
Because Parliament specified s.320.16(1) it failed to make the bodily harm offence defined in s.320.16(2) eligible for a DNA order. When prosecuted by indictment, that omission doesn't matter. Any offence punishable by 5 years or more is a secondary designated offence. Hit & run involving bodily harm carries a maximum of 10 years.
But Parliament also empowered the Crown to proceed summarily when someone does a hit & run causing bodily harm. That offence is defined in s.320.16(2). When prosecuted that way, the maximum sentence is 2 years less a day.
Arguably, if the Crown proceeds summarily, a court may order DNA from someone who flees the scene, but not if he caused bodily harm.
There is a way out of this illogical conclusion: 320.16(1) is an included offence of 320.16(2).