Changes to DUI legislation in Canada – Criminal defense lawyer speaks out

The Bill C-46 amendments now in affect give police increased power to stop any driver to ensure they are sober. (pixabay/stevepb)

Dec 19 2018 – WiseUpWinnipeg

Here is a summary of changes to impaired driving legislation in Canada from a criminal defense lawyer including mandatory screening and penalties. It also has suggestions if you get stopped and if you alleged to be impaired.

Thanks to criminal defense lawyer Karl Gowenlock for this summary and suggestions if stopped or accused of driving while impaired.

We have also included links to the legislation details, some information from CBC on some of the issues with it that will likely result in court challenges and the @TrapSpy App.

For all the people posting about the new Impaired Driving laws coming into force on Dec 18, please allow me to summarize the changes, as well as the current state of the law, and hopefully clear up a lot of confusion. I am an experienced criminal defence lawyer who does a lot of Impaired Driving cases, so I have some idea what I’m talking about. [UPDATED, see below]


– The police already have the authority to stop you without any suspicion, simply to check if you are licenced and sober. (This has been upheld as constitutional – although it infringes our section 9 right against arbitrary detention, the court found it a justified infringement under section 1)

– The police can now make a demand you blow into a road-side screening device without any suspicion whatsoever . (Before this week they needed “reasonable suspicion of alcohol in the blood” – ie. smell on breath, admitting to having a drink etc..)

– As it was already, if you refuse to blow you have committed a criminal offence on par (or worse) with Impiared Driving in its consequences and you will be arrested for Refusing a Screening Demand. You DO NOT have a right to talk to a lawyer before you answer the screening demand.

– As it was already, if the police have “reasonable grounds to believe” your ability to drive is impaired by alcohol (or drug, or combination of both) OR you fail a roadside screening test, you can be arrested for impaired driving and the police will make a demand that you take a breathalyzer (or a blood test in the case of drugs) at the station or in a checkstop van.

– You DO have a right to talk to a lawyer before you answer a breathalyzer or blood demand. If you refuse a justified breathalyzer or blood demand, you have committed a criminal offence just as bad or worse than blowing over.

– They are LOWERING the legal limit by 10 mg per 100ml of blood. Previously it was illegal to drive over 80 mg. Because breathalyzer machines give a reading to the nearest 10 mg, and always round down, this meant that the effective legal limit was 89 mg/100ml. Under the new law it is illegal to drive at 80mg or over. So now the effective limit is now 79 mg/100ml.

– Previously it was simply illegal to operate a motor vehicle over the legal limit or while your ability to do so was impaired. Now it is also illegal to have a blood alcohol level (or drug level or drug/alcohol level) over the limit within two hours after driving, unless you drank the alcohol after the driving AND you had no reasonable expectation that you would have to give a sample.

– The minimum sentence for a first offence of Impaired Driving, Driving over the legal alcohol (or drug) limit, or Refusal, is a $1000 fine and a 1 year driving prohibition. There are other consequences from MPI on top of this. There are also higher minimum fines for higher blood alcohol levels.


– They have instituted a blood THC limit. It is very low. 5 ng/ml or over is on par with Impaired Driving in its consequences.

– Over 2 ng/ml but less than 5 is a new criminal offence with a max fine of $1000 and a discretionary (rather than a mandatory) driving prohibition of max 1 year.

– A regular user may take 24-48 hours to get below these limits. So it is basically illegal for any medical marijuana user to ever drive.

– They have LOWERED the legal limit for ALCOHOL to 50 ml/100ml if you have 2.5 ng/ml or more of THC in your blood.

– In order to demand you take the road-side screeing device for cannabis (or demand you perform a field drug recognition evaluation) police must still have reasonable suspicion of cannabis in the bloodstream. You DO NOT have the right to talk to a lawyer before answering the demand. It is a criminal offence to refuse a justified demand.

– They have also introduced specific blood limits for common illegal drugs.

I personally believe many of these changes should be declared unconstitutional, and hope cases come my way that allow me to challenge them. I think there is a good chance the suspicion-less demand power will be struck down by the courts, and possibly the very low blood THC level too. But this is far from certain. And remember, until the courts say a law is unconstitutional, that law still applies. And launching a constitutional challenge has a significant cost in legal fees… so be careful out there and follow the law! (and follow your Trap Spy!)

Most importantly: if you are charged with a criminal offence TALK TO A CRIMINAL DEFENCE LAWYER before deciding what to do. There are very often defences you don’t realize, and almost all lawyers will give you a free consultation.

UPDATE: One VERY IMPORTANT change I forgot to mention is that the maximum penalty for drive impaired is increased from 5 to 10 years. While it is exceedingly rare for someone to get the maximum, the bigger effect is that people who are not citizens can now face deportation. Under immigration law, a “serious crime” is defined as anything with a sentence of 10 years or more. A permanent resident who is convicted of “a serious crime” can be sent to a deportation hearing.

Original post and discussion

Always drive sober and attentive. To avoid delays from Checkstops that often hand out costly tickets for non moving violations instead of warnings and be alerted of police speed traps in locations with known, created and often dangerous engineering deficiencies get the TrapSpy App in the Google Play or Apple App Store.


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