What’s new with DUIs?

Did you know that being impaired in a canoe is a potential offence?

This comes as one of the many implications of the new laws on driving under the influence. Bill C-46, which came into force in December 2018, has essentially made prosecutions of these types of offences much easier.

The legislation comes with increased penalties. For example, a charge of refusal to comply with a demand for a sample now carries a minimum fine of $2,000, and now there are mandatory minimum imprisonment sentences on certain second and third impaired related offences.

Here are some of the highlights of Bill C-64.

Removal of reasonable suspicion

One of the significant changes that arise from the new laws is the elimination of “reasonable suspicion” as a requirement for police officers. Reasonable suspicion was required to make a roadside Approved Screening Device (ASD) demand for a roadside ASD test.

Now, police officers can now make an ASD demand without having reasonable suspicion as long as they are in the “lawful execution of powers”. However, it is important to note that, if a police officer does not have an ASD device in his or her vehicle, he or she will need “reasonable grounds” to suspect that a person has had alcohol in their body, and has within the past 3 hours operated a vehicle, in order to make an ASD demand. Reasonable grounds is a higher threshold than reasonable suspicion.

Further, police officers may now demand samples of breath, Drug Recognition Expert (DRE) evaluations and blood samples upon forming reasonable grounds to believe a person has operated a vehicle while their ability was impaired by alcohol or drugs.

New per se limit offences

Bill C-46 has introduced four new offences with respect to having excessive concentrations of alcohol and/or drug in your system, within 2 hours of ceasing to operate a vehicle.

The offence is no longer concerned with Blood Alcohol Concentration (BAC) or Blood Drug Concentration (BDC) at the time of operation, and care and control. The critical issue now is BAC and BDC at the time within who hours of cessation of operation. This will typically also be the time of testing.

The new legislation has also replaced the “over 80” offence with “at or over 80”. Over 80 is a short form reference to having more than 80 mg of alcohol in 100 mL of blood. As such, truncated readings that are equal to or greater than 80 mg of alcohol in a 100 mL of blood now constitute an offence.

New presumption of accuracy

The readings taken from the approved instrument are now conclusive proof of BAC at the time of testing if certain factors are established:

  • before each sample is taken, the qualified technician conducts a system blank test, the result of which is not more than 10 mg of alcohol in 100 mL of blood, and a system calibration check, the results of which is within 10% of the target value of an alcohol standard that is certified by an analyst;
  • there was an interval of at least 15 minutes between the times when the samples were taken; and
  • the results of the analyses, rounded down to the greatest multiple 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

There is no longer a presumption of identity

Since the offence now focuses on the drug and alcohol concentration within 2 hours of operation, there are no issues of “identifying” the test results at the time of driving. The time of the offence will now frequently be at the time of testing, and always within the 2 hour period following operation of the vehicle.

As such, there is no longer an obligation for the Crown to prove that each sample was taken as soon as practicable, after the time of driving, or that each sample was received from the accused “directly into”.

Bolus drinking is no longer a defence

The new laws have also eliminated the possibility of a “bolus drinking” defence. Also known as the last drink defence, the bolus drinking defence used to be able to be used in situations where a suspected drunk driver consumed a lot of alcohol just before being stopped by police or getting into an accident. If there was a significant delay between the driver’s last drink and the breathalyzer test, it could cast reasonable doubt on whether or not the alcohol had been absorbed at the time of the stop or accident – as such, reasonable doubt could also be cast on whether or not the driver was impaired at the time he or she was stopped or got into an accident. This is no longer a defence, as the new laws prohibit drug and/or alcohol concentration 2 hours after the cessation of driving, rather than at the time of driving.

Post offence consumption

No person commits an offence where: (a) they consume alcohol after ceasing to operate a 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) where their alcohol consumption is consistent with their blood alcohol concentration, as determined in accordance with s. 320.31(1) or (2) of the Criminal Code, and with their having had a blood alcohol concentration of less than 80 mg in 100 mL of blood at the time when they were operating the vehicle.

Time will tell what the courts determine is the interpretation of “no reasonable expectation that they would be required to provide a sample of breath or blood”.


It is also important to note that with the legalization of cannabis, drug impaired driving offences are expected to rise.

The Department of Justice has approved the use of the Drager DrugTest 5000 as a roadside test. This device is a handheld device used to test saliva for THC (or tetrahydrocannabinol, which is the chemical compound in cannabis primarily responsible for psychoactivity).

If a driver registers a fail on the roadside test, he or she can be brought to a police station where a trained Drug Recognition Expert (DRE) officer would put the driver through a 12 step test intended to identify impairment. For example, these steps can consist of taking clinical tests, (such as, blood pressure) and eye exams (such as, measuring pupil size).

Refusing or failing to comply with a roadside demand or a DRE demand may result in criminal charges, which can have the same penalties as impaired driving.

However, this regime is far from perfect. Even though the Department of Justice has approved the use of the Drager DrugTest 5000, its reliability has been challenged. There are questions with respect to its accuracy, proper performance, and the science associated with the device.

Ottawa, among other cities in Canada, has declined to use the device as a result of the concerns associated with its proper performance, especially in cold weather. Time will tell weather or not the device’s reliability can stand up in court.

It is important to note, that according to the new laws, police officers will not need to form grounds to obtain a blood sample based on the results of a DRE test.

Delayed Sentencing

The court now has the discretion to delay sentencing to allow an offender to attend a treatment program that is approved by the province. However, no such programs exist in Ontario.

If the offender successfully completes such a treatment program, the court also has the discretion not to impose mandatory minimum penalties.

Driving prohibition

Driving prohibition periods are now in addition to the entire term of imprisonment that may be imposed, and commence at the time the order is made. For example, a 1 year driving prohibition following a 1 year jail sentence will result in a 2 year driving prohibition commencing on the day of sentencing.

Ottawa, Ontario Criminal Defence

If you have been charged with a criminal offence, you need aggressive lawyers ready to help you protect your rights and reclaim your life and your reputation.

Engel & Associates has represented individuals and businesses charged with hundreds of different offences throughout Canada for more than three decades. From the start of a criminal investigation to the close of a trial, we will take a balanced and forceful approach to your defence. We have the experience and know-how to effectively navigate the constantly changing justice system in Canada.

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