How Is The New Impaired Driving Law In Canada Different From Before?

By Last Updated: July 26, 2022

There are many changes that have been made to impaired driving law. The most important differences that you should be aware of are:

1. The new law makes it illegal to have a blood-alcohol-content over the legal limit 2 hours after driving.

How is the new impaired driving law in Canada different from beforePreviously, it was only illegal to be impaired while driving or when in care and control of a vehicle. The new law makes it illegal to have a blood-alcohol-content over the legal limit 2 hours after driving (new section 320.14(1) of the Criminal Code).

The exception to this would be if you drank alcohol after driving, if you did not have a reasonable expectation that you would be required to provide a breath sample, and that your blood-alcohol-content after driving was consistent with having a blood-alcohol-content under the legal limit while driving. The new law will make it difficult for someone charged with impaired driving to argue that they only drank after driving.

What is important for you to know is that the new law effectively puts the onus on you to prove you did not drink to avoid being charged, and that you were not driving while impaired. You should be aware of this change when deciding to drink alcohol after driving!

2. The new law will set limits about how much THC can be in your blood while driving.

It is common knowledge that it is illegal to drive while impaired. This means it is illegal to drive when your blood-alcohol-content is over the legal limit of 80 milligrams of alcohol per 100 millilitres of blood. The new law has similar rules for THC (an ingredient in marihuana) (new section 253.1 of the Criminal Code).

Currently, the government has proposed the following limits:

(a) Equal to or over 5 nanograms of THC per milliliter of blood will be a hybrid level offence (impaired driving is currently a hybrid offence);
(b) Equal to or over 2 nanograms but less than 5 nanograms of THC per milliliter of blood will be a summary level (less serious) offence; and
(c) Equal to or over 2.5 nanograms of THC per milliliter of blood in combination with equal to or over 50 milligrams of alcohol per 100 milliliters of blood will be a hybrid offence.

It is unclear how THC in a person’s blood affects their function. THC may be in a person’s blood for days after smoking, even without feeling the effects. While smoking marihuana may soon be legal, with the new impaired driving law, having THC in your blood and driving (even days after having marihuana) will be illegal.

3. The new law will allow police to demand that you provide a roadside sample of your breath without any suspicion that you have been drinking.

Previously, police needed a ‘reasonable suspicion that you have alcohol in your body’ to demand that you provide a roadside sample of your breath. The new law will allow police to demand that you provide a sample of your breath if the police officer ‘has in his or her possession an approved screening device’ (new section 320.27(2) of the Criminal Code). Practically, this means that at a RIDE checkstop, police could ask any single driver to provide a sample of his or her breath.

The police are already permitted to conduct random traffic stops to check the sobriety of drivers. This means that police do need a reason to pull you over, but that reason could be as simple as: “we want to check your sobriety.” Police do not need an indication that you are impaired to conduct a random stop to check your sobriety.

What is important for you to know is that you could be required to submit to a breath test, without the police having any indication that you have been drinking! If you do not provide a sample of your breath, you could be charged under the new section 320.15 of the Criminal Code.

4. The new law will result in Permanent Residents convicted of impaired driving being made inadmissible to Canada.

Previously, the maximum sentence you could receive for impaired driving (not causing death or bodily harm) was 5 years imprisonment. The new law will make the maximum sentence for impaired driving 10 years imprisonment (new section 320.‍19(1)(b) of the Criminal Code).

If you are a Permanent Resident, what is important for you to know is that the new law, by increasing the maximum punishment for impaired driving to 10 years, makes impaired driving qualify as ‘Serious Criminality’ under section 36 of the Immigration and Refugee Protection Act. If you are convicted of an offence that qualifies as ‘Serious Criminality,’ you will be made inadmissible to Canada!

For specific information regarding your case, please select the location that’s closest to you.

About The Author

Michael Oykhman

Managing Partner

Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centred. We look for opportunities to add value to our clients through strategic thinking and creative solutions.

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