New Drinking and Driving Laws in Canada

This article is the first in a series of articles expected out in the next few months from David Anber’s Law Office.

For years we called them “section 253 offences.” Prior to 2008 it was s.253(a) (impaired driving) and 253(b) (driving over 80mg). Then in 2008, the government brought in changes. There were modest changes to the substance and there were a few technical changes (impaired driving was now 253(1)(a) and over 80 was 253(1)(b).

Not earth-shattering stuff.

Welcome to 2019. Recent amendments have been made within the past few weeks which dramatically change the substance of driving offences in Canada, and also completely overhaul the numbering system.

The new driving sections are found at section 320.11 to 320.4 of the Criminal Code.

The first basic change is that rather than encumber many sections with lengthy references to motor vehicles (automobiles), aircraft, railway equipment or boats (vessels), all of these things are now called “conveyances”.

Conveyance means a motor vehicle, a vessel, an aircraft or railway, equipment. (moyen de transport)

That sounds easy enough, right? Well that’s just the very tip of the iceberg.

As mentioned above, this is the first in a series of articles which will attempt to discuss some of the larger changes.

Starting with the new offences, here are the relevant sections:

• 320.13 Dangerous Driving
• 320.14 (1)(a) Impaired Driving
• 320.14 (1)(b) Driving over 80 mg
• 320.14 (1)(c) Driving over the drug limit (5 ng for THC)
• 320.14 (1)(d) over 50 + over 2.5 ng THC
• 320.14 (2) = causing bodily harm
• 320.14 (3) = causing death
• 320.14 (4) low drug, i.e. THC >2ng
• 320.14 (5) exception to being over within 2 hours if (i) consumption after driving (ii) no reasonable expectation that would have to provide sample (iii) drinking pattern consistent with readings
• 320.14 (6) same as (5) for drugs except only (i) and (ii)
• 320.15 failing or refusing to provide a sample (refuse sample)
• 320.16 fail to stop (at the scene of an accident – the Criminal Code version of failing to remain)
• 320.17 flight from police
• 320.18 drive disqualified
• 320.19 minimum penalties $1000 on 1st, 30 days on 2nd, 120 days on 3rd BUT minimum fines if 120 or above = $1500 and 160 or above or refuse = $2000 note that BAC increases do not apply to impaired count
• 320.19(2) for low drug, i.e. 320.14(4) max fine $1000
• 320.23 allows for departure from minimums IF treatment program approved by province is completed WITH consent of accused AND prosecutor
• 320.24 driving prohibitions 1st=1-3 years 2nd =2-10 years 3rd=3yrs plus jail to life (note that Causing Bodily Harm and Cause Death cases have no minimum oddly enough)
• 320.24(10) minimum time until interlock eligible 1st=potentially 0 2nd=3 months 3rd=6 months

SECTION 320.14(5) – POST DRIVING DRINKING

This week’s article will look at this section in particular.

Did you know that in some situations IT IS NOW ILLEGAL TO DRINK UP TO TWO HOURS AFTER DRIVING?

Section 320.14(2) reads:

320.14(2)(b) subject to subsection (5), it is an offence when within two hours after ceasing to operate a conveyance, you have a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood.

The exception is found here:

(5) No person commits an offence under paragraph (1)(b) if

      ·     (a) they consumed alcohol after ceasing to operate the conveyance;

     ·     (b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and

      ·     (c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.

This requires threading the needle to prove that you weren’t over the legal limit while driving and to prove you didn’t intend to interfere with the proper measurement of your blood-alcohol concentration.

CONSTITUTIONAL CHALLENGES

Expect in the months to come that there will be challenges to the constitutionality of large changes like this one. For more information, please contact us for a free consultation.

…stay tuned for our next instalment regarding approved screening devices.

If you have any questions, please do not hesitate to call David or Matthew at David Anber’s law office for more information.