Police in Canada have broad powers to arrest individuals whom they encounter. An arrest is a powerful tool that has serious legal implications for the arrested person. Importantly, an arrested person is not free to leave police custody and can no longer freely go about their business. Attempting to escape a lawful arrest can result in criminal charges, not to mention an unpleasant encounter with police.
On June 21, 2018, via Bill c-46, a few new amendments to the Criminal Code received Royal Assent, meaning that they formally became law (although some of the changes will not come into force until December 21, 2018). These amendments deal with the offences and procedures for impaired and drug-impaired driving and are likely to have a significant impact on anyone driving on Alberta’s roads.
Changes to the law – why now?
These changes are generally thought to coincide with the legalization of recreational cannabis in Canada. Indeed, a number of the amendments concern drug-impaired driving. However, the federal government also appears to have taken this opportunity to make significant changes to alcohol-impaired driving offences and procedures.
Bill c-46 introduces a number of amendments to the Criminal Code, as well as other, related legislation.
Bill c-46 creates new drug-impaired driving offences. In so doing, the amendments set out new legal limits for drug-blood concentration, and create the necessary framework to allow police to conduct tests to determine if a driver is impaired by drugs using approved screening equipment. The Bill includes a host of other small changes associated with adding these new offences.
Among the most controversial changes are the new police powers added by Bill c-46 and changes to the penalties for drug-impaired or alcohol-impaired driving. Bill c-46 gives police the power to perform random roadside breath testing for alcohol without the need for reasonable grounds to suspect that a driver may be impaired. Bill c-46 also raises the maximum penalty for a first-time impaired offence from 5 years to 10 years, where the Crown proceeds by indictment.
During the review process for Bill c-46, some Senators raised concerns that the amendments might not comply with the requirements of the Charter. The Senators expressed concerns that the new laws might be vulnerable to challenges in court and might be declared
Sahaluk v Alberta (Transportation Safety Board), 2017 ABCA 153
The Legal Context
In Canada, the 1867 Constitution loosely sets out which level of government is responsible for what. For example, it says that the Federal Government has the power to make laws about bankruptcy and insolvency. It seems clear cut at first – the Federal Government has the power to make laws about some things and the Provincial Governments have the power to make laws about other things. However, the reality is much more complicated. Often, there are areas of overlap where both the Federal and Provincial Government can pass laws on a given subject.
Impaired driving is one of those overlapping areas.
The Federal Government can pass laws do to with impaired driving because it has power over the Criminal Law. In the Criminal Code, the Federal Government makes it a crime to: drive while impaired (s. 253(1)(a)), drive “over 80” (s. 253(1)(b)), and refuse to provide a sample of your breath (s. 254(5)). If someone is convicted or pleads guilty to one of these offences they face penalties that include, at minimum a fine, and potentially imprisonment. In addition to any fines or jail time, s. 259 of the Criminal Code imposes a mandatory driver’s licence suspension. For a first offence, the minimum licence suspension is one year.
The Provincial Government can pass laws that have an effect on impaired driving too, because they have power to license drivers. In the
Traffic Safety Act