In our last blog post in this series, we reviewed the new provincial Administrative Licence Suspension laws and their impact. In this, our third blog post in this series, we turn our attention to important recent changes in the federal realm that will affect Alberta drivers, as well as drivers all across Canada. In this post, we review Bill c-46, some of its key amendments to the Criminal Code, and some of the controversy surrounding this change in legislation.
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 unconstitutional. The House of Commons largely dismissed the Senators’ concerns with respect to random roadside breath testing and rejected their proposed amendments.
Under the old Criminal Code provisions, a police officer had to have reasonable suspicion that a driver was impaired before they could demand that the driver provide a breath sample into an approved screening device (“ASD”). The officer’s “reasonable suspicion” could be based on a number of factors, as set out in case law from our courts. However, under the new provisions, a police officer will be able to demand a breath sample from any driver at any time. The officer will not need to have “reasonable suspicion” to believe the driver is impaired before making the roadside ASD demand.
It is very likely that the constitutionality of random roadside breath testing will be challenged in court, and what will come of those challenges remains to be seen. Undoubtedly, the impact of this new police power will be felt by Albertans (and all Canadians) on the roads and by our justice system once these new provisions are implemented.
Some have raised concerns regarding the effect that these amendments may have on immigrants who are charged with alcohol or drug impaired driving.
Under the new provisions, the offence of impaired driving will now be classified as an offence of “serious criminality”. As a result, a non-Canadian Citizen could be at risk of losing their immigration status and being banned from Canada for a first time offence, even where the sentence imposed is a fine without jail time.
Other amendments raise additional concerns and may have a further effect on immigration issues.
The information provided on this website does not constitute legal advice and should not be construed as such. Moustarah & Company does not guarantee that this information is accurate or up to date. As a result, should you require legal advice, please contact a lawyer.