One for the road: What you need to know about Bill C-46 and Drinking & Driving Laws

Bill C-46 has painted the town red with a comprehensive overhaul to Canada’s drinking & driving laws. The Bill received Royal Assent on June 21, 2018.

Part 2 of the Bill, among other things, makes the following amendments:

(a) re-enacts and modernizes offences and procedures relating to motor vehicles;

(b) authorizes mandatory roadside screening for alcohol;

(c) establishes the requirements to prove a person’s blood alcohol concentration; and

(d) increases certain maximum penalties and certain minimum fines.

You can find a full version of Bill C-46 at, because who doesn’t love reading Statutes of Canada on their free time.

Just as a friendly reminder, the content of this blog is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind.

Now, grab some amber nectar, get your beak wet and let’s learn how a few of these changes affect you.


The basics

There are 2 separate, but related, offences that criminalize drinking and driving:

(1) Impaired Driving: criminalizes operating a vehicle while impaired by any degree of alcohol

(2) Over 80: criminalized operating a vehicle while one’s blood alcohol concentration (“BAC”) is over 80 mg of alcohol per 100 ml of blood.


Changes to the framework

(1) Change to the “Over 80” offence

Section 253(1)(b) of the Criminal Code formerly made it an offence to have a BAC of Over 80 mg of alcohol per 100 ml of blood while driving.

Bill C-46 rewords this Over 80 offence to prohibit having a BAC of Over 80 within 2 hours of driving.

Before the amendment, Crown Counsel had to prove that an accused’s BAC was Over 80 at the material time of driving in order to make its case.  As accurate breath samples cannot be seized at the time of driving, Crown Counsel needed some evidentiary link between your BAC at the time of the tests (which are taken at the Police Station) and your BAC at the time of driving.  This required the Crown to prove certain preconditions in order to establish the reliability of the breath samples.  The new legislation, which makes it an offence to have a BAC of Over 80 within 2 hours of driving, means that in most cases the time of the offence and the time of testing are the same.  This simplifies Crown Counsel’s job at trial, as it eliminates the need for presumptions and proof of the underlying preconditions.

The amendment to this section also criminalizes consumption of alcohol prior to driving that would result in an Over 80 BAC, despite the fact that one’s BAC at the time of driving would be under the legal limit.  The new wording effectively eliminates the “bolus drinking” or “last drink defence”.

I guess we just have to wait until we get home to have a few more brewskis…but wait, another effect of the amendment is that it criminalizes the consumption of alcohol after driving. Fortunately, the new section is subject to an exception for “innocent intervening consumption”…this means that you do not commit an offence of Over 80 when:

(i) you consume alcohol after driving;

(i) you had no “reasonable expectation” that you would be required to provide a breath sample; and

(iii) your BAC was under 80 at the time of driving.

While it may, for example, be reasonable to expect that you would be required to provide a breath sample after returning home following involvement in a motor-vehicle accident, it will be interesting to see how far the Courts cast the “reasonable expectation” net in regard to post-driving consumption of alcohol.  Though it is clear the legislation is aimed at catching citizens who are drinking and driving, there is no doubt some innocent drinkers, who are drinking after driving, will be caught by the legislation.

(2) Road-side screening tests without reasonable suspicion

I mean…would you ever expect that a Police Officer could demand you provide a roadside breath sample without having any suspicion that you were consuming alcohol??? If your answer was no, you’re wrong…and should grab another drink while we stumble through this amendment.

The former framework required an Officer to form a “reasonable suspicion” that the driver had alcohol in their body, before being able to legally demand a roadside breath test.

The new provision does not require that the officer form this “reasonable suspicion” when they have the Approved Screening Device “close at hand”.  Officers are almost always equipped with an Approved Screening Device as drinking and driving is the most common offence in the country.

Now, the provision only applies if you are lawfully stopped, which can include stopping drivers to ensure that drivers are licensed, insured, or for a sobriety check.

Essentially, the new section authorizes a police officer to make a roadside breath demand without having to make any inquiries into whether an individual has consumed alcohol.   This expedites the roadside screening process and enhances an Officer’s ability to detect impaired drivers.  The question is how much inconvenience or invasion into privacy are we willing to endure to potentially increase the safety of our roads.


Further information

Stay tweaked for a blog next week on Part 1 of Bill-C46, which deals with amendment to the Criminal Code relating to drug-impaired driving, and information about Approved Drug Screening Equipment.

If you are someone you know needs assistance with an impaired driving charge, contact Louis Luciani.