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Bill C-46 – What Does it Entail?

Updated: Jun 15, 2020

Breathalizer Bill C-46

Bill C-46 – What Does it Entail?

Federal statistics show that approximately four Canadians die each day as a result of impaired driving. Bill C-46 was implemented on December 18, 2018 with an aim to reduce this statistic. Since then, the amendments to Canada’s impaired driving laws have been a hot topic.

What is Impaired Driving?

According to the Ministry of Transportation, impaired driving is “operating a vehicle while your ability to do so has been compromised to any degree by consuming alcohol, drugs or a combination of the two.”

How Do Police Detect Impaired Drivers?

In Ontario, there are a number of tests than can be used to detect impaired drivers, including:

1. Standardized Field Sobriety Test;

a. This test uses the roadside screening device.

2. Breath Testing;

a. Also called a breathalyzer.

3. Drug Recognition Evaluation;

a. This occurs at a Police Station with a qualified technician. This test can also determine drug impairment.

4. Oral Fluid Screening Devices.

a. This test detects drugs alone.

Prior to December 18, 2018, Police officers needed reasonable suspicion that an individual was under the influence, prior to requesting a breathalyzer. Now, this new legislation allows the police to use their roadside screening device on ANY individual they stop. However, it should be noted that the Police officer must have the roadside screening device in their possession (they can’t call a friend) and they must be acting within their lawful duties. If their roadside screening device indicates that an individual is under the influence, they may then request for a formal breathalyzer test IF, and only if, there are probable grounds that the individual was operating a motor vehicle.

The significant media coverage of Bill C-46 has been incredibly misinforming. The Police are now permitted to enter bars, restaurants and homes within three hours of an individual drinking to determine if they are under the influence. Although Bill C-46 did expand the Police’s authority, they must still have reasonable suspicion that an individual is or was driving under the influence of alcohol, prior to demanding a sobriety test.

For example, if you are out for dinner with friends and decide to have a drink, the Police may only enter the restaurant and request that you use their roadside screening device ONLY if they have reasonable suspicion that:

1. You were driving a motor vehicle within the past three hours; and

2. That you had alcohol in your system while operating the motor vehicle.

The new Over 80 legislation states that you cannot be over the legal limit within two hours of driving. However, there are exceptions to this law:

1. You consumed the alcohol after you stopped driving;

2. You did not have a reasonable expectation that you would be asked to complete a sobriety test; and

3. Your blood alcohol concentration is consistent in showing that you were not intoxicated when you were driving.

For example, you’re out for dinner with your friends. You were completely sober and drove your friends to the restaurant. Upon arrival, a friend offers to be the designated driver to allow you to have a few drinks. You agree. As such, the Police have established reasonable suspicion because you drove there and now have alcohol in your system. They may then use their roadside screening device to determine if you are impaired. Now, the burden of proof is on the accused. How does one prove that they consumed the alcohol after they stopped driving? That’s where things get complicated.

Constitutional Breach

If the police are allowed to randomly stop people and demand that they use a roadside screening device, how is that not a breach of constitutional rights? Section 9 of the Charter of Rights and Freedoms provides everyone the right not to be unreasonably detained or imprisoned. Detainment can extend to the police stopping you on the street – such as for a random breathalyzer test. The issue is whether or not this new legislation triggers Section 1 of the Charter whereby each and every right in the Charter is subject to reasonable limits that can be justified in a free and democratic society. In essence, the issue is in determining whether or not this new legislation provides enough benefits to override Section 9 of the Charter. I’m sure this topic will be heavily discussed in the Court of Appeal in the very near future.

If you have questions regarding Bill C-46 or have been charged with driving while impaired, give us a call.


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