Impaired driving is always a pressing public safety issue in Canada prompting significant legislative measures intended to curb related incidents. The country’s approach to impaired driving laws is marked by notable controversies, however particularly around the balance between enhancing road safety and protecting individual rights. Canada’s most controversial impaired driving laws are poorly understood and difficult to discern. In this post I discuss five of Canada’s most controversial impaired driving laws, including random roadside breath testing, mandatory minimum sentencing, administrative penalties, drug-impaired driving regulations, and penalties for breathalyzer refusal.

One of the most contentious laws is random roadside breath testing, which fellow defence lawyers and I argue infringes on civil liberties and disproportionately affects marginalized communities. The Supreme Court of Canada has previously ruled that such testing requires reasonable suspicion, but Bill C-46 eliminated these protections, igniting a fierce debate about the erosion of legal safeguards and the potential for racial profiling in enforcement practices. Advocates for the law argue that it is a necessary step for public safety, while opponents highlight the risks of undermining the presumption of innocence and exacerbating existing inequalities in the justice system.

I presented to the Senate when Bill C-46 was under consideration and this provision was removed from the Bill, only to be reintroduced before third reading. I have seen first-hand how random roadside breath testing has been used to infringe rights in manners we had not considered when the law was before Parliament.

Mandatory minimum sentencing for impaired driving has also drawn criticism for its one-size-fits-all approach, often imposing severe penalties without consideration for individual circumstances. While proponents assert that these laws create a deterrent effect and reinforce the seriousness of impaired driving, in my experience they can lead to unjust outcomes, such as over-representation of marginalized individuals in the penal system and reduced judicial discretion.

The rise of administrative penalties, particularly in British Columbia, further complicates this landscape. The question of the fairness and effectiveness of measures such as Immediate Roadside Prohibitions, especially regarding the frailty of the evidence and lack of fall-back punishment, strikes many as unfair and ultimately damaging to the individual rather than rehabilitative.

As Canada navigates the complexities of impaired driving legislation, public perception and advocacy play crucial roles in shaping responses to these laws. While there is a growing awareness of the dangers associated with impaired driving, efforts to balance community safety with individual rights continue to fuel debates. Ongoing discussions around drug-impaired driving regulations, particularly post-legalization of cannabis, further underscore the need for comprehensive strategies that address the evolving challenges of impaired driving while respecting fundamental legal protections.

Law 1: Random Roadside Breath Testing

Random roadside breath testing in Canada has been a contentious issue, particularly regarding its implications for civil liberties and racial equity. Historically, the Supreme Court of Canada has ruled that random breath testing violates the Charter of Rights and Freedoms, establishing three key requirements for its lawful implementation: there must be a reasonable suspicion to demand a sample, an immediate need for testing, and the results cannot be used as evidence of impairment or blood alcohol level at trial.

However, Bill C-46 amended the Criminal Code to eliminate the reasonable suspicion requirement. The prohibition on using the roadside test results as evidence in court remains, yet the results are used in British Columbia for administrative sanctions such as Immediate Roadside Prohibitions (IRPs).

Proponents of the bill argued that this shift was necessary for enhancing road safety and addressing impaired driving more effectively, while we took the position that it undermines fundamental legal protections. We raised concerns that the proposed changes would disproportionately affect marginalized communities, including Black and Indigenous Canadians, who are already subject to higher rates of random traffic stops and police scrutiny.

In the legislative discussions surrounding Bill C-46, various stakeholders expressed divergent views. I explained in my testimony before the Senate that the changes represent a dangerous erosion of the presumption of innocence. The debate centers on the balance between ensuring effective law enforcement and protecting individual rights, with significant implications for the future of impaired driving laws in Canada. Considering the concerns we have discovered regarding the reliability of testing devices and the broader powers granted to law enforcement, there are significant questions about potential overreach and the implications for due process.

In my practice, we have noted since the introduction of random roadside testing that the police will use the opportunity to conduct unlawful vehicle searches, something we had not considered when the law was still under consideration.

Law 2: Mandatory Minimum Sentencing

While random roadside breath testing raises concerns about civil liberties, mandatory minimum sentencing introduces its own controversies regarding judicial discretion and fairness. Mandatory minimum sentencing laws for impaired driving in Canada have been a subject of significant debate and controversy. These laws impose specific penalties that judges must apply for certain offences related to impaired driving.

Overview of Mandatory Minimums

Under the revised provisions of the Criminal Code, the penalties for impaired driving are tiered based on blood alcohol concentration (BAC) levels. For first-time offenders with a BAC between 80 mg and 119 mg, the mandatory minimum fine remains at $1,000. Offenders with a BAC between 120 mg and 159 mg face a $1,500 minimum fine, while those with a BAC of 160 mg or more, or who refuse to provide a sample, are subject to a minimum fine of $2,000. Repeat offenders face mandatory imprisonment terms: 30 days for a second offence and 120 days for subsequent offences.

Impact on Sentencing Practices

The implementation of mandatory minimum sentences has led to a rise in the frequency of fines, seizure orders, and prohibition orders in both alcohol and drug-impaired driving cases, constituting approximately 90% of guilty cases from 2010/2011 to 2018/2019[6]. Despite the heavy penalties, actual custodial sentences are rare, with fewer than 10% of impaired driving cases resulting in imprisonment[2].

Moreover, the maximum penalties for impaired driving offences without injury or death have been increased. Offenders can now face up to two years less a day on summary conviction and up to ten years on indictment, making dangerous offender applications feasible in appropriate cases[2].

Aggravating Circumstances

The provisions also introduced specific aggravating circumstances that courts must consider during sentencing, including having a BAC exceeding 160 mg[4]. This approach aims to differentiate between varying levels of impairment and their associated risks, ensuring that the punishment reflects the severity of the offence.

Legal and Social Considerations

Defence lawyers and the courts have taken the position that mandatory minimum sentencing can lead to disproportionate consequences, especially when they do not consider the unique circumstances of individual cases[5]. While the legislation attempts to classify impaired driving offences based on severity, concerns remain about the potential for arbitrary and overbroad applications that may violate principles of fundamental justice[5].

Alternative measures, such as ignition interlocks and remedial programs, are suggested as effective long-term strategies to mitigate repeat offences and ease burdens on the justice system. These alternatives could provide more tailored responses to impaired driving while maintaining public safety and reducing court delays[6].

Law 3: Administrative Penalties

In Canada, particularly in British Columbia (BC), the now well-established administrative sanctions regime governs impaired driving offences. This system is characterized by Immediate Roadside Prohibitions (IRPs) and Administrative Driving Prohibitions (ADPs). For instance, in cases where a driver’s blood alcohol concentration (BAC) exceeds 0.05, or if they fail or refuse to provide a breath sample, an IRP is issued at the roadside. Additionally, an IRP or ADP can be imposed for 90 days if a driver’s BAC is at of exceeds 0.08, which may coincide with criminal charges.[7] In 2019, a total of 17,474 IRPs and ADPs were served in BC.[7]

Driving prohibition orders are also a significant aspect of the administrative penalties for impaired driving. The Criminal Code stipulates that offenders convicted of impaired driving can face a driving prohibition lasting from one to three years for first offences, two to five years for second offences, and at least three years for subsequent offences.[4] This structured approach aims to impose penalties that are proportionate to the severity of the offence while maintaining public safety on the roads.

In my view the current system does not adequately differentiate between various levels of impairment and their consequences. Despite the intention to classify impaired driving offences based on the blood alcohol level or the impact on others, permanent residents face severe immigration consequences, irrespective of the nature of the offence committed, raising concerns about fairness and proportionality in the law.[7] Additionally, the implementation of mandatory alcohol screenings during traffic stops has sparked a debate about the presumption of guilt versus innocence, which in my view undermines fundamental legal protections.

Law 4: Drug-Impaired Driving Regulations

The significant 2018 amendments concerning impaired driving were introduced to the Criminal Code through the Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts (S.C. 2018, c. 21, formerly Bill C-46). These amendments aimed to enhance the detection and prosecution of drug-impaired driving, allowing police to use “approved drug screening equipment,” such as saliva drug screeners, at the roadside.[3] The law also established three new offences related to having a blood drug concentration over predetermined limits within two hours of driving, including an offence for a combination of alcohol and drugs.[3]

Enforcement Challenges

Despite the advancements in detection capacity, some studies indicate that drug-impaired driving remains significantly under-detected. Research suggests that drugs may be involved in impaired driving incidents as frequently as alcohol, highlighting the need for better enforcement measures. My review of the research indicates to me that the intention was to find a problem to justify the legislation rather that honestly considering the actual risk which tells me there is a need for better research when we continue to have a legislative focus on this issue.

Proof of Drug Impairment

The amendments in Bill C-46 facilitate the proof of drug impairment by creating a presumption of impairment when a specific drug type, identified by an evaluating officer, is found in a driver’s body. This provision allows law enforcement to conduct drug recognition evaluations and take blood samples when there is reasonable suspicion of drug use. Such measures aim to expedite the testing process for substances that quickly leave the bloodstream, like THC.

Social and Behavioral Context

Drug-impaired drivers may exhibit risky behaviors, including the concurrent use of tobacco and other drugs, as well as being passengers with impaired drivers. This pattern of behavior underscores the complexity of addressing drug impairment on the roads and the necessity for a comprehensive approach to traffic safety.

Legal and Constitutional Debates

The changes introduced by Bill C-46 sparked considerable debate within the legal community. I have argued that the legislation undermines the presumption of innocence, shifting the burden of proof onto the accused, which raises concerns about constitutional rights under the Canadian Charter. I question the purpose and constitutional viability of drug recognition evaluation and relying on the conclusions of the evaluator to found convictions. Advocates for the law contend that these measures are necessary to enhance road safety yet they rely on frail evidence of rising incidences of drug-impaired driving. The discussions surrounding Bill C-46 illustrate the tension between public safety and individual rights in the context of impaired driving legislation.

Law 5: Breathalyzer Refusal Penalties

Under Canadian law, refusing to provide a breath sample carries significant penalties that can be more severe than those for impaired driving itself. The Criminal Code stipulates that individuals who refuse to submit to a breath test may face a minimum fine of $2,000, a seven-day impoundment of their vehicle, and a 90-day suspension of their driver’s license. Furthermore, a criminal conviction for refusal results in a mandatory one-year driving prohibition, in addition to a substantial mandatory minimum monetary fine and the imposition of a criminal record.

The rationale for such stringent penalties lies in the legislative framework established by Bill C-46, which was enacted to address issues related to impaired driving in the context of recent legal changes concerning cannabis. Prosecutors and the police argue that these measures are essential for enhancing road safety and preventing individuals from exploiting legal loopholes that could allow them to evade consequences for impaired driving. The law now permits police officers to demand breath samples up to two hours after driving, effectively closing gaps that previously allowed drivers to argue that they were not over the legal limit at the time of driving due to the absorption of alcohol.

In my practice I have observed that “refusal” allegations are fraught with legal and moral problems. Recent scholarship into the capacity of individuals to provide breath samples indicates that the arrogant assumptions held by the police, prosecutors and the courts that all people can meet the parameters of the device are simply unfounded. The mandatory nature of breathalyzer tests and the penalties for refusal could undermine the presumption of innocence and often lead to arbitrary enforcement practices.

In practice, the enforcement of breathalyzer refusal penalties raises complex questions about accountability and the potential for misuse of police powers. The application of the law frequently violates the equality provisions in Section 15 of the Charter of Rights as the law and application do not distinguish in application people with disabilities that affect their ability to provide a breath sample. As well, it is incongruous with traditional legal principles that the gravamen of the offence arises from an interaction with police where there is a statutory compulsion to participate in a process despite the suspension of the Right to Counsel under section 10(b) of the Charter of Rights.

To date we lack the careful consideration of how these laws intersect with the rights guaranteed under the Charter of Rights, particularly regarding trial fairness and the presumption of innocence.

Training and Resources for Law Enforcement

Law enforcement agencies across Canada are actively engaged in enhancing the training and resources available to officers involved in impaired driving enforcement, particularly in the context of drug-impaired driving (DID) following the legalization of cannabis. The Canadian government has set specific targets to improve officer training, aiming for 33% of front-line law enforcement officers to be trained in Standardized Field Sobriety Testing (SFST) and to increase the number of Drug Recognition Experts (DREs) to 250 by 2023[7]. As of now, over 14,400 officers have completed SFST training, with nearly 1,200 DREs certified[7].

Training Initiatives

To address gaps in training and adapt to evolving drug impairment trends, the Royal Canadian Mounted Police (RCMP) has collaborated with various governmental bodies and law enforcement agencies to develop new training courses. These include an updated segment on drug-impaired driving within the SFST curriculum, which emphasizes practical identification of drug impairment signs, particularly related to cannabis. The courses are designed to be interactive and incorporate real-world scenarios, focusing on practical skills that officers can apply during roadside assessments.

New training components are being introduced, including a basic knowledge course on drug-impaired driving and a certification program for the use of oral fluid devices, which are essential tools for roadside drug screening. We noted that since the start of the pandemic, training and retraining of police officers has lacked both in frequency and quality which compromises the systems from the point of the police engagement, however.

Impact on Road Safety

Overview of the Impact on Road Safety

Impaired driving remains a significant public health concern in Canada, contributing to a high number of fatalities and injuries each year. Motor vehicle crashes (MVCs) are among the leading causes of premature death globally, with an estimated 1.2 million deaths annually and millions more injured or disabled due to these incidents[6]. The relationship between alcohol consumption and road safety has been extensively documented, leading to various initiatives aimed at reducing impaired driving incidents[16].

Legislative Impacts

The introduction of stricter impaired driving laws, such as the Act aimed at reducing deaths and injuries caused by impaired drivers, has led to some observed changes in public health outcomes, yet other factors such as the effect of the pandemic, the overall reduction in alcohol use and safer vehicles are regularly ignored by researchers. Following the enactment of the Act in 2018, data indicated a small decrease in fatalities among car, truck, van, and motorhome users involved in collisions with impaired drivers[17]. However, the overall patterns regarding injury rates remain inconsistent, highlighting the need for better research.

Public Attitudes and Further Considerations

Public attitudes towards impaired driving have shifted over the past few decades, with a notable increase in awareness and a decrease in reported incidents. This change can be attributed to a combination of public education, and heightened law enforcement initiatives[6][16]. However, decision-making surrounding impaired driving legislation often involves balancing community safety with individual rights, creating an ongoing debate about the best approaches to reduce impairment-related risks on the roads[16].

Canada’s approach to impaired driving reflects a balancing act between safety and justice. Yet, the erosion of legal protections highlights the urgent need for laws that are both effective and fair, ensuring road safety without compromising constitutional rights.

[1]: An Act to amend the Criminal Code (offences relating to conveyances)

[2]: Bill C-46 – Legislative Background: reforms to the Transportation …

[3]: Impaired driving in Canada, 2019 – Statistics Canada

[4]: Legislative Summary of Bill C-46 – Parliament of Canada

[5]: Bill C-46: An Act to amend the Criminal Code (offences relating to …

[6]: (PDF) A Comparative Analysis of Impaired Driving Laws in the US and …

[7]: Annual National Data Report to Inform Trends and Patterns in Drug …

[8]: 3.0 Data to assess the impact of the legislative amendments

[9]: Supreme Court ruling clears air on random breathalyzers on private …

[10]: Impaired and imperilled: Critics say new drunk driving laws through …

[11]: Canada should think hard before bringing in new anti-drunk driving …

[12]: Don’t drive high | Royal Canadian Mounted Police