What are the New Impaired Driving Laws in Canada?

Impaired driving offences are among the most common offences that the Canadian courts currently address. These offences occur when an individual consumes alcohol, drugs or a combination of the two to the point that their ability to drive is compromised or over the legal limit.

Impaired driving laws have gone through significant changes in the last decade, so it is important for drivers to be aware of the latest laws. This article will provide you with an in-depth look at the new impaired driving laws in Canada.

Understanding Impaired Driving

In Canada, impaired driving laws have been rapidly evolving as the provincial and federal governments look to address high rates of impaired driving arrests that happen each year in the country.

Key Changes in the New Impaired Driving Laws

Below are a few of the key recent changes to impaired driving laws in Canada:

• Previously, it was only illegal to be impaired while driving or when in care and control of a vehicle. Recent changes to section 320.14(1) of the Criminal Code made it illegal to have a blood-alcohol-content over the legal limit 2 hours after driving, unless you only drank alcohol after driving (and at no time during). Effective Date: December 18, 2018
• Zero-Tolerance alcohol and drug policies for young, novice, and commercial drivers with accompanying administrative penalties. Effective Date: December 18, 2018
• Penalties for impaired driving without harm from 5 years in prison to 10 years. Effective Date: December 18, 2018.
• Mandatory Alcohol Screening (MAS) allowing police officers to demand a breath sample from drivers even without any suspicion that they have drunk alcohol. This has been in effect since December 18, 2018, but the Ontario Provincial Police only began implementing it in early May 2024.
• If you refuse to provide a breath sample to police, you can be charged with failure or refusal to comply with a demand pursuant to s. 320.15 of the Criminal Code. Effective Date: December 18, 2018.

Legal Limits and Testing Procedures

In Canada, there are limitations on how much alcohol you can have in your system when driving your vehicle. The Criminal Code provides that everyone has committed an offence when they operate their motor vehicle while their blood alcohol concentration (BAC) is 80 milligrams of alcohol in 100 milliliters of blood within 2 hours of driving.

Additionally, the Criminal Code provides limitations for the amount of drugs that can be in a person’s body while they are driving. For THC, the primary psychoactive component of cannabis, it is an offence to have over 5 nanograms (ng) of THC per ml of blood within two hours of driving. For drivers who have consumed both alcohol and cannabis, the limit is 50 milligrams or more of alcohol per 100ml blood and 2.5 ng or more of THC per ml of blood.

Meanwhile, having any trace amount of most other drugs within two hours of driving is prohibited. GHB is an exception, with the prohibited level being 5 mg or more per litre of blood, since the body can naturally produce low levels of this drug.

In impaired driving cases, often the police will take a sample of your breath, using an approved screening device, to determine your blood alcohol level. Due to the recent changes in the law, police officers are allowed to demand a breath sample from drivers even without any suspicion that they have drunk alcohol. If you fail to comply with a police officer’s lawful demand for a breath sample, you can be charged for failing or refusing to comply with a demand pursuant to s. 320.15 of the Criminal Code.

When police suspect that you are under the influence of drugs, they can demand that you perform physical coordination tests to enable them to determine whether further testing for the presence of drugs is warranted. If the physical coordination tests are done in a manner that provides the police with reasonable grounds to believe that you might be impaired by drugs, or a combination of drugs and alcohol, they are entitled to demand a sample of your saliva, urine, or blood so that they can test for the presence of drugs in your body.

The police are required to follow specific procedures when they are testing drivers for drugs and alcohol. An experienced criminal lawyer will review the breath testing documents to see if the instrument taking the samples was properly calibrated and maintained. Consulting a criminal defence lawyer with experience in impaired driving defence will greatly improve your ability to fight the charges you face.

Penalties and Consequences

Impaired Driving charges are hybrid offences, that is, they can be classified as either a summary or an indictable offence. If the charge is classified as an indictable offence, impaired driving can result in up to 10 years of imprisonment (up from 5 years as of December 18, 2018). If the impaired driving caused bodily harm to another, there can be up to 14 years of imprisonment. If death is caused by impaired driving, the consequence can be up to life imprisonment. If the charge is classified as a summary offence, there can be up to 2 years of imprisonment for impaired driving, regardless of whether bodily harm was caused.

DUI offences all carry mandatory minimum sentences set by Parliament. The minimum sentences are set out in sections 255 and 259 of the Criminal Code. Although there are a few nuances, generally speaking, the sentence structure is as follows:

• For a first time offence, the mandatory minimum sentence is a $1,000 fine and a one year driving prohibition.
• For a second DUI offence the mandatory minimum sentence is 30 days of incarceration and a 2 year driving prohibition.
• For a third or subsequent DUI offence, the mandatory minimum sentence is 120 days of incarceration and a 3 year driving prohibition.

If your breath sample consists of an extraordinarily high blood alcohol concentration, additional fines are applicable as outlined below:

• A blood alcohol concentration between 120 mg to 160 mg of alcohol in 100 mL of blood: $1,500 minimum fine
• A blood alcohol concentration greater than 160 mg of alcohol in 100 mL of blood: $2,000 minimum fine

Other factors, such as bodily harm, death, street race participation, and operation of a large motor vehicle, are also considered by the Courts when determining fines and jail sentences and can lead to an increase in the penalties for Impaired Driving.

If you are a Permanent Resident it is important for you to know that, by increasing the maximum punishment for impaired driving to 10 years, the crime now qualifies as ‘Serious Criminality’ under section 36 of the Immigration and Refugee Protection Act. If you are convicted of an offence that qualifies as ‘Serious Criminality,’ you will be made inadmissible to Canada.

Zero Tolerance Policies

Certain classes of drivers cannot operate a motor vehicle with any alcohol or drugs in their system. For example, Ontario has rules prohibiting young (age 21 and under), novice (G1, G2, M1, M2) and commercial drivers from having the presence of any drug or alcohol in their system, as detected by an approved screening device.

If you are not a fully licensed driver, or you operate a vehicle as part of your employment, you should ensure that there is no alcohol or drugs in your system when you get behind the wheel. If you fail to do so, police will be able to charge you with impaired driving, even if you test below the limits in the Criminal Code.

Legal and Administrative Steps to Comply

The best way to avoid impaired driving charges is to avoid getting behind the wheel when you are under the influence of drugs or alcohol in the first place. You can make this easier to do by going out with a non-drinking designated driver, taking public transportation or an Uber, or refraining from drinking alcohol if you are going out alone.

If you are pulled over while driving impaired, the most important thing you can do is co-operate with the police and comply with their demands, especially when they are testing your sobriety. If you are resistant and fail to follow their instructions, you may be charged with obstruction or “refusal,” which may make your case harder to defend.

There are hundreds of potential defences to impaired driving charges. Although there are simply too many defences to count, most DUI defences can be grouped into several categories:

• Police fail to follow proper procedures, or to collect evidence properly, and as a result, you are not guilty:
• Police violate your Constitutional (Charter) rights during the investigation, and as a result, you are not guilty;
• Prosecutor fails to do things correctly at trial or leading up to trial, and as a result, you are not guilty; or
• You provide information either before or at trial to establish a defence, and as a result, you are not guilty

Every case is unique. The strength and validity of any defence rely upon the specific facts of each case. It depends on the evidence provided and specific allegations against you. For more information, please see How to Beat a DUI Charge, where we highlight common defences to DUI charges.

If you are charged with impaired driving, there are also steps you can take to prevent yourself from re-offending. Do not be afraid or ashamed to talk to your defence lawyer if you struggle with alcohol dependency or substance abuse. If the charges were the result of an ongoing struggle with alcohol or drug addiction, you may be suitable for a curative discharge if you are willing to take significant, positive steps to address your problem through rehabilitation. A curative discharge will not only help you avoid a criminal record; it will also help you with the steps you will have to take in order to apply for the discharge and address and overcome the addiction that led to your charges in the first place.

Conclusion

Impaired driving laws have changed significantly in the last decade, and it is important for drivers to be aware of this fact. In late December 2018, the Canadian government implemented several new laws in an attempt to crack down on impaired driving offences in the country. These changes included:

• Making it illegal to have a blood-alcohol-content over the legal limit 2 hours after driving, unless you only drank the alcohol after driving.
• Zero-Tolerance alcohol and drug policies for young, novice, and commercial drivers.
• Maximum sentences for impaired driving without harm were raised from 5 years in prison to 10 years.
• Mandatory Alcohol Screening (MAS) allowing police officers to demand a breath sample from drivers even without any suspicion that they have drunk alcohol.
• Making it a criminal offence under s. 320.15 of the Criminal Code to refuse to provide a breath sample to police.

If you are planning on drinking or taking drugs, you should make a plan to ensure that you will not be operating your motor vehicle until you are sober. However, if you are charged with impaired driving, it is crucial that you contact a criminal defence lawyer. There are potentially hundreds of defences available to you, and the experienced impaired driving lawyers at Defend Your DUI will be able to help you fight your charge.