drinking and driving
drinking and driving
Jan 10, 2022
On December 18, 2018, Parliament made significant changes to drinking and driving laws. Filkow Law’s Anthony Robinson wrote and presented a paper explaining these changes to the Trial Lawyers Association of British Columbia on September 24, 2021.
This is the third instalment of this paper, explaining how the Crown Counsel is no longer required to consult an expert witness for samples taken more than two hours after driving.
Crown Expert No Longer Required for Blood Alcohol Samples Outside Two Hours – s. 320.31(4)
The following is an excerpt explaining that Crown experts are no longer required to calculate blood alcohol for samples taken more than two hours after driving:
Under both the old and new provisions, samples of a driver’s breath or blood are supposed to be taken within two hours of the time of driving. Under the old provisions, samples taken within two hours of the time of driving were deemed to be the driver’s BAC at the time of driving. If the samples were not taken within two hours of driving, the Crown was required to call an expert, usually in the form of a toxicologist, to calculate (read back) what the BAC was at the time of driving.
Under the new provisions, an expert is no longer required if the samples were taken after the 2-hour window. Subsection 320.31(4) of the Code provides a formula that allows a court to do its own BAC calculation back to within two hours of the time of driving. The read-back need only go as far back as to within two hours of the time of driving (as opposed to at the time of driving) because of the new definition set out in 320.14(1)(b) discussed above. Section 320.31(4) states:
For the purpose of paragraphs 320.14(1)(b) and (d), if the first of the samples of breath was taken, or the sample of blood was taken, more than two hours after the person ceased to operate the conveyance and the person’s blood alcohol concentration was equal to or exceeded 20 mg of alcohol in 100 mL of blood, the person’s blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in accordance with subsection (1) or (2), as the case may be, plus an additional 5 mg of alcohol in 100 mL of blood for every interval of 30 minutes in excess of those two hours.
According to the government, the elimination rate of 5 mg/100mL for every 30 minutes reflects a very conservative estimate of the rate at which alcohol leaves the bloodstream. There is scientific consensus that alcohol leaves the bloodstream at a rate greater than 5 mg/100mL per 30 minutes even in individuals who process alcohol slowly (other than in cases of near-complete liver failure that would ordinarily render a person incapable of driving). Accordingly, a BAC calculated at this rate will be lower than the absolute minimum scientifically possible BAC that an individual will have had within the two-hour window.
Practitioners should keep in mind that although samples taken after two hours of the time of driving can be calculated back to within two hours, there is still a requirement in section 320.28 that samples of breath or blood be taken “as soon as practicable” (similar to the old provisions). In deciding whether the tests were taken “as soon as practicable”, the whole chain of events must be considered bearing in mind the Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “as soon as practicable” requirement is to be applied with reason.
“As soon as practicable” is determined on a case-by-case basis and it is not an element of the offence the Crown must prove. Where the accused wishes to argue the samples were not taken as soon as practicable, the accused must challenge the Crown’s case by cross-examining the officer(s) on the various periods. (The accused cannot “lie in the weeds” as they say). Where the peace officer is unable to explain the delay, the defence can argue that the test was not administered as soon as practicable.
 Department of Justice, Charter Statement: Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts (11 May 2017), online: <http://www.justice.gc.ca> [Department of Justice].
 R v Vanderbruggen, 2006 CanLII 9039 (ONCA).
If you exceeded the blood alcohol limit while driving and need legal assistance, the lawyers at Filkow Law have over 50 years of experience dealing with all types of criminal law and driving law cases. Please feel free to give us a call.
Dec 23, 2021
On December 18, 2018, Parliament made significant changes to drinking and driving laws. Filkow Law’s Anthony Robinson wrote and presented a paper explaining these changes to the Trial Lawyers Association of British Columbia on September 24, 2021. This is the first instalment of this paper, explaining the changes to drinking and driving legislation in BC.
Changes to Drinking and Driving Legislation
The following is an excerpt regarding two major changes to the language in the Criminal Code–“motor vehicle, vessel, an aircraft or railway equipment” is now “conveyance” and “forthwith” is now “immediately”:
The amendments were designed to simplify, clarify, and modernize the cumbersome language from the predecessor sections. The most obvious of these changes is the use of the term “conveyance” instead of the awkward phrase “motor vehicle, vessel, an aircraft or railway equipment” which was frequently repeated throughout the predecessor sections. This change makes the provisions much easier to read.
Another goal of the amendments was to change the language of the provisions to reflect the interpretations of the courts where possible. As one example, in section 320.27 which, allows the police to make an Approved Screening Device demand at the roadside, the term “forthwith” has been replaced with the term “immediately”. This change reflects how the term “forthwith” has been interpreted by the courts. It is also an example where the language has been modernized with more plain language text.
Alcohol Screening Provisions s. 320.27(2)
The following is an excerpt regarding the new police power to make roadside breath demands without reasonable suspicion of alcohol in the driver’s body. Mr. Robinson also explains issues with regards to the possession of the screening device and the timing of the test:
Although the changes made by the 2018 amendments are significant, the general structure of the legislation remains the same. Parliament has maintained the two-step process for the detection and enforcement of driving in excess of the legal blood alcohol limit. Like the predecessor legislation, the first step provides for the administration of a screening test at or near the roadside immediately after the interception of an operator. The second step provides for a breathalyser test into an Approved Instrument at a police station.
The threshold test for making an Approved Screening Device (ASD) demand at the roadside has changed significantly. Under the predecessor section, the police were required to have “reasonable suspicion of alcohol in the body” before making an Approved Screening Device demand. That remains the case under s. 320.27(1).
However, under s. 320.27(2), the police also now have the authority to demand a driver provide a sample of breath into an ASD without any suspicion that a driver has been drinking. Under the heading “Mandatory Alcohol Screening” s. 320.27(2) states:
320.27(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.
At least three Provincial Court decisions have held that section 320.27(2) passes constitutional muster. In R v Blysniuk, 2020 ONCJ 603 the Ontario Court of Justice found s. 320.27(2) violates sections 8 and 9 of the Charter but those violations are saved by section 1. In R v Morrison, 2020 SKPC 28 and R v Kortmeyer, 2021 SKPC 10 the Saskatchewan Provincial Court found s. 320.27(2) does not violate s. 9, but it does violate s. 8, and that violation is saved by s. 1.
There are three requirements for a valid demand under s. 320.27(2).
- The demand must be made in the course of the lawful exercise of police powers;
- The demand must be made by a peace officer who has an ASD in their possession.
- The demand must be made, and the test must be administered – immediately.
With respect to the first of these criteria, the police have always had the power to randomly stop drivers for safety and compliance reasons like checking for driver’s licenses, insurance, mechanical fitness, and driver sobriety. These stops have long been held constitutional. Under s. 320.27(2) the police now also have the authority during a traffic stop to ask the driver to blow into an ASD in the absence of any belief the driver has consumed alcohol.
With respect to the requirement that the officer has the ASD in their possession,
in R v Bath, 2021 CanLII 35120 the Newfoundland Provincial Court concluded that it was not necessary for an officer to have the ASD on their person for a lawful demand under s. 320.27(2). The accused argued that the demand made by an officer was invalid because another officer got the ASD out of the trunk of the police vehicle, unboxed it, readied the device and administered it to the accused. The court concluded that it was not necessary for an officer to have the ASD on them to legally avail themselves of s. 320.27(2). At para. 34 the court said:
As a matter of law, possession includes joint possession. The ASD was in the trunk of the police car, and both police officers had both knowledge and control of the ASD. Cst. Crann was, as a result, in possession of the ASD. As a result, I conclude that Cst. Crann’s demand for ASD breath test(s) was valid, despite the fact that the ASD was in the trunk of the police car when he made the demand.
The Alberta Transportation Safety Board considered the immediacy and possession requirement in R v MacDougall (Re), 2020 ABTSB 2264. In that case, a police officer witnessed the driver throw a cigarette out of the driver’s side window while swerving his truck from side to side. The officer stopped the vehicle and asked the driver to wait while he called another officer to bring an ASD. The ASD arrived 5 minutes after the accused was pulled over and the officer read the accused the ASD demand under s. 320.27(2). The accused was then arrested for refusing to provide a sample and issued a license suspension under the Alberta Traffic Safety Act.
The demand was invalid. The Board found the immediacy requirement under section 370.27(2) requires that the process be “minimally intrusive and as prompt as possible under the circumstances”. In this case, the driver was already detained by the time the second officer arrived with the ASD and read the demand. Therefore, the breath demand was not “immediate”. At para. 21 the Board said:
In the matter at hand, the Board finds that the MAS [Mandatory Alcohol Screening] demand was not made immediately and was, therefore, invalid. Although Cst. McIsaac may have been the one to read the demand to the Appellant upon his arrival, the Appellant had already been detained by Cst. McDougall for the purpose of conducting a MAS. The immediacy requirement of an MAS demand pertains to the detainee and to the length and purpose of their detention. It does not relate to the police officer who verbalizes the demand, and the promptness with which they do so.
The fact that the police officer who eventually read the demand had the ASD in his possession was immaterial.
The Alberta Transportation Safety Board came to a similar conclusion in Kalyn-Bekevich (Re), 2020 ABTSB 1940 and excluded the evidence of the breath sample under s. 24(2) of the Charter.
In summary, an officer does not need to physically possess the ASD at the time of the demand. Having the device in a nearby vehicle is sufficient. Possession includes joint possession by another officer at the scene. The promptness with which an officer can administer the test will inform the analysis about whether the officer possessed the device at the time of the demand. If a first ASD malfunctions, use of another ASD may be lawful as long as the switching of the devices does not result in delay.
 See R v Dedman,  2 SCR 2, R v Hufsky,  1 SCR 621 and R v Ladouceur,  1 SCR 1257.
 Bender (Re), 2019 ABTSB 1752.
The New Impaired Driving Laws: What Is Not Being Said
The Ministry of Public Safety and Solicitor General issued a News Release on April 27, 2010. The Release trumpeted that “The province is introducing Canada’s most immediate and severe impaired driving penalties to save lives, curb repeat offenders and give police more enforcement tools.”
Subsequent to this Release and as an extension of same, the Office of the Superintendent of Motor Vehicles issued bulletins spelling out the penalties which will be part of the new regime. A comparison of the current and new penalties can be found at the foot of this article.
Fundamental to the new regime will be an unequivocal acceptance of a police officer’s report of what took place at a roadside stop upon a breathalyzer test being administered or upon one being refused. If the reported reading is a fail or if the officer reports a refusal, the new penalties take effect immediately with very limited administrative appeal rights with no true prospect of success. The ostensible intention, as amplified below, is not to engage drinking drivers in the judicial process except in a limited number of situations.
The Backgrounder to the Province’s Release stresses: “Major amendments to impaired driving sections of the Motor Vehicle Act (MVA) will ensure impaired drivers caught in BC face instant loss of their driving privileges (90 days) and impoundment of their vehicles (30 days).” There are other corollary mandatory requirements, i.e. completing the Responsible Driver Program and installing an ignition interlock device which must be utilized for a minimum of one year. Both these programs are costly. They are without exceptions for hardship or otherwise. In addition, the financial penalties are substantial. For example, a driver with no relevant history failing a breath sample at roadside or refusing to provide a sample will face minimum fines and fees of approximately $4060.
The Release does add that failing or refusing drivers may also face criminal charges.
What the Release does not say is that there is every indication that criminal charges will only be laid in particularly aggravated circumstances (such as an accident or where there is a prior related conviction) which going forward will be increasingly rare. The effect of this is that the overwhelming majority of drivers, tested under the new regime, will have no meaningful recourse to challenge what the police say took place at the roadside. The peace officer will record the reading of the Approved Screening Device (ASD) or alternatively will document the alleged refusal and then “the curtain drops.”
While right-minded citizens of British Columbia are acutely concerned about drinking and driving, there is every reason to be discomforted by this ‘machine type of justice.’ The ASD was intended to be a screening mechanism under the Criminal Code to assist a peace officer in evaluating the driver’s condition as to sobriety. The ASD does not have a record keeping or memory capacity. The instrument can be operated improperly. The new legislation, however, effectively allows the reading to be definitive. There is no opportunity to challenge the instrument, no opportunity to cross examine the officer as to the integrity of what occurred and no opportunity to challenge the manner in which the ASD was operated. An instrument intended only as a screening device is now elevated to a determinative role.
The new regime reposes extraordinary power and authority in a peace officer. Failure to allow for a criminal defence process disregards the unfortunate reality that there are zealous or wrongly disposed peace officers or officers who may mismanage the instrument or simply make a mistake. No cross-examination or scrutiny of the officer takes place under this regime.
What is not being said is that highly culpable behaviour such as driving while drunk will now largely be outside the criminal process. The Office of the Superintendent of Motor Vehicles on its website stresses that the “province is introducing changes to give BC the toughest provincial impaired driving legislation in the country. If you drink and drive after the new law comes into effect on September 20, 2010, you can count on penalties adding up to between $600 and $4060 – even if it’s the first time you’re caught – and more time off the road.”
The corollary of this new approach, though, is that in not facing criminal charges, the driver will not be exposed to the instructiveness of the criminal justice system. There is significant value in the experience of retaining counsel, facing a public record for criminal behaviour, facing denunciation, and, on some occasions, receiving thoughtful remarks from a presiding judge. There is an irony, a disconnect that behaviour which is such a serious threat to public safety, will now largely avoid the criminal process.
Also unspoken and related to the previous paragraph is that the province clearly intends to save serious treasury by allocating significantly less resources to what has been the criminal process, i.e. police investigations, Crown prosecutions and trials. Ostensibly, the motivation is to free up these resources to allocate to ‘more serious’ criminal behaviour. If that is so, the priorities are misguided. There is probably no form of criminal behaviour more pervasive than drunk driving. There is probably no criminal behaviour more capable of effective deterrence through public denunciation and the related process. It is also a reality that police officers should be investigating criminal behaviour; this behaviour should not be given diminished significance.
The volume and the cost of the impaired driving problem should not be a rationale for compromising individual rights and protections. There are no practical or genuine checks and balances under this new regime. Criminal law has always required a very high standard of proof and a compelling burden on the Crown to meet its case. What the Federal Government sees as criminal will now be something else – effectively an administrative regulatory matter. It would seem reasonable to expect that the new legislation will face a challenge in seeking to displace the federal criminal law power under s. 91 of the Constitutional Act.
What is not mentioned is that there will be a disparity between incidents where there is an ASD handy and those incidents where there is not. Any driver pulled over in the latter circumstances will likely be subject to the old regime and will in these limited cases have access to the criminal justice system.
Indicative of how far reaching is this philosophical change by the BC government is the Warning protocol. This Warning protocol will apply to drivers whose apparent readings are below the legal limit of .08% blood alcohol content and may not be demonstrating any signs of impairment.
As outlined above, a driver who fails (above .08%) or ‘refuses’ to provide an ASD sample will be given a 90-day suspension at roadside, will be subject to a one year Interlock Ignition program and financial penalties which amount to $4060. His or her vehicle will be impounded for 30 days. The Warn range is a reading of .05 to .08% (some ASDs are calibrated to .099%). This results in an immediate 3-day suspension, a 30-day impoundment and minimum fines and fees of about $600. This is for the first warn in 5 years. A second warn in the same period draws a 7-day suspension, a longer period of impoundment and minimum fines and fees of $760. A third time warning within 5 years carries with it a 30-day suspension, a 30-day impoundment, a one year Ignition Interlock program and a minimum financial penalty of $3650. Three beers within a two hour period would put virtually anyone in the Warn range. There is again no practical opportunity to challenge these consequential penalties and, in these cases, for not behaving in an illegal manner.
The province’s express rationale is that enforcement of drinking and driving offences will be far more expedient under the new regime. It characterizes the new regime as the toughest driving laws in the country. While the penalties under the new laws are certainly swift and severe, the intended approach avoids the criminal justice system and allows a matter of serious legal consequence to be technologically and summarily resolved at the instance of a peace officer whose fairness and ability are taken as a “given.” In this author’s view this departure from the honoured protections is a matter of concern. A better alternative would be to ensure greater resources as necessary to expedite the process which preserves the rights and protections of individuals.
 Ministry of Public Safety and Solicitor General, News Release, 2010PSSG0026-000472, “B.C. INTRODUCES CANADA’S TOUGHEST IMPAIRED DRIVING LAWS” (27 April 2010).
 See Appendix: Office of the Superintendent of Motor Vehicles, online: CURRENT and NEW Penalties Comparison Chart <http://www.pssg.gov.bc.ca/osmv/publications/docs/impaireddriving-currentandnewpenalties.pdf>.
 Ministry of Public Safety and Solicitor General, Backgrounder, 2010PSSG0026-000472, ” B.C.’S IMPAIRED DRIVING LAW TO CHANGE” (27 April 2010).
 The Supreme Court of Canada held in R. v. Orbanski,  S.C.J. No. 37, that there is no entitlement at the roadside to be advised of or to receive counsel as the evidence obtained would only go to the police officer’s reasonable grounds to make a breathalyzer demand. The new legislation extends that principle to a situation of a very different character.
 Office of the Superintendent of Motor Vehicles, online: Impaired Driving <http://www.pssg.gov.bc.ca/osmv/impaired-driving/index.htm>.
© By Kevin A Filkow
Dec 16, 2015
December is a busy time of year for all of us. Friends and families come together, enjoy good company, food and wine… and maybe beer… and vodka… and a long drive home. It is no surprise that impaired driving rates are highest in December. In fact, there were an estimated 24,000 cars stopped at BC police check one December Friday night alone. Inevitably, your chance of receiving an Immediate Roadside Prohibition or being charged with a driving offence is exponentially higher during the holiday season.
An Immediate Roadside Prohibition (commonly referred to as an “IRP”) is a driving prohibition issued under the British Columbia Motor Vehicle Act to drivers found to have a blood alcohol concentration of 50 milligrams per 100 millilitres of blood (50 mg% or 0.05 BAC) and above. These prohibitions begin immediately, and can vary in length from 3 days (if you blow a WARN) to 90 days (if you blow a FAIL or refuse to provide a breath sample).
If you receive a 90 day prohibition, your vehicle will also be impounded for 30 days, and you will be responsible for the costs associated with towing and storage. This is accompanied by a $500 fine, a $250.00 license reinstatement fee, and a referral to the Responsible Driver Program, which costs over $800. Another possible consequence of an IRP is a referral to the Ignition Interlock Program, which will cost you over $1000, plus maintenance fees.
What many people don’t know about Immediate Roadside Prohibitions is that you have 7 days to dispute them. If you do not respond within 7 days, your IRP will be confirmed, it will remain on your driving record, and you can look forward to paying all those fees listed above! Not exactly the type of gifts you had in mind this holiday season! It is very easy to get caught up in all the holiday madness and forget this crucial deadline.
If you or someone you know have received an Immediate Roadside Prohibition or have been charged with a driving offence, contact Filkow Law at 604-558-8778 for proper legal assistance. Filkow Law is a leading BC law firm experienced dealing with drinking and driving offences.
Sep 15, 2015
This is the second part of my paper on British Columbia’s Drinking and Driving laws. Part one appeared in the last issue of The Verdict (Fall 2013), Trial Lawyers Association of BC.
The Government appears to find it politically advantageous to proclaim that the IRP legislation represents the “strictest impaired driving laws around.” This claim simply isn’t true, at least as a general proposition. Those who have financial resources and don’t depend on driving for their employment are far less penalized by the IRP regime than they would be under the Criminal Code.
They pay for the fines and the programs imposed, and resume driving after three months. It is lower income, rural and/or younger drivers who are more likely to be harshly affected – often for years because they cannot afford to pay for the mandatory post-prohibition programs. Those whose employment requires being able to drive may also suffer inordinately, as they lose their jobs and they and their families suffer serious corollary effects from the loss of income.
The very real and substantial penalties that often flow from the IRP regime would be acceptable if the review process were fair. But it is not. There is virtually no means of challenging the word of the officer regarding what took place at the roadside, and the lack of checks and balances in turn will almost inevitably lead to an arrogant undesirable police culture.
The cynical culture of the IRP regime should not be allowed to perpetuate. There is some hope that the constitutional challenge in Sivia will receive a more comprehensive resolution from the Court of Appeal. In the meantime, we must fight for just outcomes and a fairer regime as best we can with the resources at our disposal.
Also, see the original paper The Unsettling Unfairness of the IRP Regime.