by Craig Zeeh

In 2017, the government introduced Bill C-46, which is the most consequential piece of impaired driving legislation that Canada has introduced in years. Bill C-46 will add new provisions and amend old provisions of the Criminal Code for alcohol- and drug-impaired offences.

One of the significant changes of the Bill is the change to the use of approved screening devices, known as an “ASD”.

Current Law

A police officer who reasonably suspects that a person is operating a motor vehicle with alcohol in his or her body may, by demand made forthwith, require that person to provide a suitable sample into an ASD. For the ASD demand to be valid, the officer must subjectively believe that the person has alcohol in their body and that belief must be objectively reasonable. Therefore, there must be evidence to support the officer’s subjective belief.

If a police officer makes a lawful demand to provide a suitable sample into an ASD, you must comply because a refusal or failure to provide a breath sample is a criminal offence, contrary to s. 254(5) of the Criminal Code. The penalty is equivalent to driving impaired or driving in excess of the legal limit – a minimum $1,000.00 fine and a 12-month driving prohibition.

When Bill C-46 receives royal assent, the law for screening devices will see significant changes.

Proposed Changes under Bill C-46

Bill C-46 will add provisions for a drug screening device. If an officer reasonably suspects that an individual has a drug in his or her body, an officer could demand that an individual submit to an ASD.

For an alcohol screening device, the police will no longer need to form a reasonable suspicion when they have a device readily available to conduct the test. Consequently, a demand may be given without a subjective belief that the person has alcohol in their body and/or there is no evidence to suspect that the individual has alcohol in their body. The reasonable suspicion standard will only be required when the police officer does not have an ASD readily available to conduct the test.

The proposed legislation will increase the minimum sentence for refusal to provide a breath sample from $1,000.00 to $2,000.00. This will be equivalent to driving with a blood alcohol concentration twice the legal limit.

Further, the proposed legislation would create two new offences if a person refuses to provide a breath sample where the driver knows or is reckless whether the operation of the motor vehicle caused an accident that resulted in bodily harm or death. An individual sentenced under these proposed offences could face a jail sentence.

Bill C-46 will introduce sweeping changes to driving offences involving alcohol and drugs. These changes will affect all drivers, so it is important to understand your legal rights and obligations. An experienced defence lawyer can help you understand this ever-changing area of law.


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