Legislative Changes and Sequence of a Drinking and Driving Case

• Author: Karen Jokinen/Peter Keen
• Pages: 1-16

1

Legislative Changes

andSequence of

aDrinking and

DrivingCase

1

I. Introduction: Bill C-46 ..................................... 2

II. Contents of This Book ..................................... 2

A. Oences .......................................... 3

B. Procedure ......................................... 3

C. Charter Issues ...................................... 3

D. Sentencing and Provincial Regulations .................. 4

III. Public Safety and Drinking and Operating Cases ................ 4

IV. History of Criminal Code Impaired Driving Oences:

Regular Change .......................................... 6

V. Reviewing the Basics ...................................... 12

A. A Simple Fact Pattern ................................ 12

VI. Client Checklist ........................................... 14

VII. Conclusion .............................................. 16

© 2023 Emond Montgomery Publications. All Rights Reserved.

2 Impaired Driving and Other Criminal Code Driving Oences

I. Introduction: Bill C-46

On December 18, 2018, all Criminal Code1 driving provisions were repealed and

replaced with a new comprehensive regime set out in part VIII.1 of the Criminal Code.

Bill C-46,2 which introduced these changes, was the first comprehensive revision to

Canada’s driving laws since 1985 and represented the most significant changes since

the oence of driving while intoxicated was introduced in 1921. The finishing touches

to this book were added as courts were creaking open following the COVID-19 pan-

demic. While we predicted changes in the first three years after Parliament’s reshap-

ing of the driving regime under Canada’s Criminal Code, we did not anticipate the

wholesale procedural changes that COVID-19 inflicted. Despite COVID-19, there has

been substantial litigation interpreting, applying, and scrutinizing the new regime.

Bill C-46 did two things when it received royal assent on June 21, 2018. Part 1 of

Bill C-46 came into force immediately, amending a number of Criminal Code driving

sections. Existing provisions were largely left intact. The changes in part 1 provided

an immediate mechanism to address the impact of Bill C-453—Canada’s new mari-

juana laws—on driving. This wasn’t enough. For years, proposed changes to a num-

ber of driving provisions had been percolating in Parliament but never made their way

into law. On December 18, 2018, part 2 of Bill C-46 repealed sections 249 to 261—all

of Canada’s criminal driving provisions—and replaced them with part VIII.1 of the

Criminal Code, sections 320.11 to 320.4.

Some of the new laws, such as mandatory alcohol screening, were controversial

and generated constitutional litigation. Although the mandatory alcohol screening

regime has survived constitutional challenges to date, other provisions, such as the

Soules amendment in section 320.31(9) of the Criminal Code, have been less fortunate.

Many of the new provisions contain old friends, laws that have stood the test of time,

such as the oence of impaired driving.

This book is a comprehensive guide to driving oences in the Criminal Code.

II. Contents of This Book

This book deals with all of Canada’s criminal operation oences and analyzes the

new regime introduced by Bill C-46. While much of the book focuses on impaired-

operation-related offences, counsel practising in this area need a broad under-

standing of Criminal Code operation law. This book discusses substantive charges,

procedural rules, evidentiary issues, case law interpretation, and Charter-related

1 RSC 1985, c C-46.

2 An Act to amend the Criminal Code(oences relating to conveyances)and to make consequential

amendments to other Acts, 1st Sess, 42nd Parl, 2018 (assented to 21 June 2018), SC 2018, c 21.

3 An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal

Code and other Acts, 1st Sess, 42nd Parl, 2018 (assented to 21 June 2018), SC 2018, c 16.

© 2023 Emond Montgomery Publications. All Rights Reserved.