Bill C-46: How could the Government’s proposed crackdown on impaired driving affect your rights if you get pulled over?

On April 13, 2017, in a highly anticipated move, the federal Government introduced Bill C-45 in the House of Commons. Bill C-45 is better recognized as the “Cannabis Act”. The introduction of the Cannabis Act received immense attention across the country. Concurrently, but receiving significantly less attention, the Government introduced Bill C-46, creating new rules and changing some existing ones dealing with impaired driving.

Bill C-46 proposes various changes, including enabling police officers to demand a breath sample from any driver they lawfully stop, without the need for a reasonable suspicion of intoxication as the law currently requires. 1 This would mean drivers stopped at regular spot checks could be required to provide a breath sample at random.

Lawyers across the country are already questioning the constitutionality of this provision, with many speculating it will be promptly challenged in court. In any event, Canadians should be aware of the proposed change, as there is no guarantee a constitutional challenge would be successful. For their part, the federal Department of Justice has released a Charter Statement outlining the rationale behind the Government’s belief that the proposed legislation is constitutionally valid. In the statement, the Justice Minister, Jody Wilson- Raybould, suggests that information obtained from a breath sample is no different than information obtained from a driver’s licence, describing it as “information about whether a driver is complying with one of the conditions imposed in the highly regulated context of driving”.

Another proposed change included in Bill C-46 makes it an offence to have a blood alcohol and/or blood drug concentration over the legal limits within two hours of driving. 2 This would put an end to the ability of those charged with impaired driving offences to avoid conviction by claiming they consumed alcohol and/or drugs immediately before or while driving and therefore would not have been over the legal limits at the time they were driving since there was not time for the alcohol to be fully absorbed into their blood stream. This provision does provide a necessary exception to avoid capturing people who consume alcohol or drugs after they stop driving, but not where they should have reasonably expected to be required to provide a sample of a bodily substance.

Speaking about Bill C-46, the Justice Minister said, “This bill, if its passes, will be one of the strongest impaired-driving pieces of legislation in the world and I’m very proud of that”. 3 MADD Canada has released a statement expressing their support of the proposed changes, estimating that they will save 200 lives and prevent 12,000 injuries each year. However, in a recent survey of Canadians, conducted by Nanos Research, the majority of respondents (55 per cent) were opposed or at least somewhat opposed to the proposed changes. Ultimately, the most important opinion on the proposed changes will be that of the courts, and it will be many months, or more likely years, before the issue is settled.

Sampson McPhee has prepared this publication to provide legal information of a general nature. It is not intended to provide legal advice. If you have any questions or require legal advice one of our lawyers will be happy to assist you. You can reach us by calling 902 539 2425.

1 Criminal Code, RSC 1985, c C-46, s 320.‍27(2)

2 Ibid s 253(3).

3 driving-changes- 1.4069889