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Commentary: Know your rights: Changes to Canada’s criminal driving laws are coming

Bill C-46 is bringing with it some new laws starting Dec. 18

Luke Faught

Major changes to Canada’s driving laws are coming starting on Dec. 18. Thanks to Bill C-46 there will be new Criminal Code impaired driving offences.

The police are getting new powers and your rights as a citizen are changing.

The consequences are extremely serious and so it is important to know your rights.

There will be five impaired-driving related charges when the changes come into effect. Some will be familiar and others are new.

It will continue to be illegal to be impaired behind the wheel by drugs, alcohol, or a combination of the two.

It is illegal to have 80 milligrams or more of alcohol per 100 ml of your blood.

Parliament has not yet officially settled on the amount of THC (the active ingredient in cannabis) you will be allowed to have in your blood while driving.

It is anticipated that there will be two separate charges: one for drivers with between two and five nanograms of THC per millilitre of blood and one for having a THC blood drug concentration of five nanograms or more per millilitre of blood

Another charge has been created for having 50 mg or more of alcohol per 100 mi of your blood AND 2.5 nanograms of THC per millilitre

For the first time in Canada, police will now have the power to demand roadside breath samples from drivers at complete random. The current law permits them to demand roadside samples only if they have reason to suspect you have alcohol in your body.

Expect this law to be challenged all they way up to the Supreme Court. Opponents will likely argue this law violates the citizen’s right not to be arbitrarily detained. It will take years to work its way up to Canada’s highest court. In the meantime, be aware there is now a massive new police power to stop and investigate you.

Laws permitting random stops can lend themselves to discrimination against minority and marginalized communities. It remains to be seen if this law will have a discriminatory effect on any Yukon citizens.

In 2021 The federal minister of justice will have to report to Parliament about the law and if it is being unfairly applied.

Police will also have new portable drug-testing equipment and can demand you give samples of saliva at the side of the road to test for THC. No such devices are currently approved by law.

Police officers qualified as drug recognition experts can demand you provide samples of your saliva, urine or blood if they have reason to believe you are impaired by a specific type of drug (inhalants, cannabis, stimulants, hallucinogens, narcotic analgesics, etc.)

My clients are regularly shocked when they find out how serious the penalties are for these offences. The biggest consequences could include a criminal record, an automatic driving suspension of one year or more, automatic jail terms for repeat offenders, minimum fines of $1,000 or more and huge increases in insurance rates.

The new law creates additional “aggravating factors”. If any of these factors are present, they will increase the offender’s sentence. These new factors include whether there a passenger younger than 16, whether the offender was being paid to operate the vehicle, whether the offender was suspended from driving, racing or driving a large motor vehicle.

The new law also bans discharges (a type of criminal record that disappears three years after you finish your sentence.)

All records will now be permanent unless you obtain a record suspension.

If you are stopped by police it is important to co-operate to the extent required by law, but in order to avoid incriminating yourself you should speak with a lawyer at the earliest chance.

You typically don’t get the chance to make the call until you get to the police station before further testing.

The lawyer can advise you of the extent to which you should co-operate with the investigation, give you advice to avoid accidentally incriminating yourself, and help you secure your release from police custody. Remember that you are entitled to contact your lawyer of choice regardless of the time of day.

Never physically resist the police in any circumstances. In addition to being extremely harmful to your and their safety, you could get additional serious criminal charges.

The place to address breaches of your rights is in the courtroom, not at the side of the road on in a police station. Always be respectful of the police.

Luke Faught is the senior criminal counsel at the Yukon Legal Services Society. His practice focuses heavily on constitutional rights.