With the end of 2018 came a whole new era in impaired driving prosecutions. Many amendments have been made to the Criminal Code since the first version of the charge of driving while intoxicated was created by Parliament in 1921. However, the changes the Liberal government brought into being on December 18, 2018 are arguably the most radical changes since 1969, when breath-testing for alcohol on a large scale became possible and the offence of “over 80” made its debut in the Criminal Code of Canada.


For the first time, police can require a motorist, under pain of prosecution, to provide a sample of breath into a screening device without having any reason to believe the person is under the influence of alcohol or even suspect the person has consumed alcohol. The request can be purely random.

Police already had the ability to stop any motor vehicle at will – all the police have to say is that the stop is to check for documents or the driver’s sobriety. Coupled with this new ability to require motorists to provide a sample of breath into a screening device in the absence of a reasonable suspicion that the motorist has alcohol in his or her body, the powers of the police have reached an unprecedented summit, as has the challenge to the constitutional rights of all motorists.

It is not difficult to imagine situations where this new era of unfettered police power could result in abuse. Who will be asked to provide a sample just because the officer feels like requesting it? Will certain groups be targeted? As the police do not need to justify their request, it also leaves them vulnerable to allegations of targeting, even if that is not what the police are doing.

And what of those feisty motorists who insist that, before providing a bodily sample into the device for alcohol analysis, they want to speak to their lawyer first? As the law currently stands, those people will almost certainly be charged with refusal if they insist on their constitutional right to obtain legal advice. That is particularly concerning as the fine for refusal is twice that of the lowest fine one can get for driving with a blood alcohol level at or over the legal limit.

The New Legal Limit

Since 1969, a blood alcohol level over 80 milligrams of alcohol in 100 milliliters of blood (80 mg%) has been the legal limit for a blood alcohol content while driving. Above that limit, a motorist would be charged with a DUI and driving with a blood alcohol level over the legal limit (colloquially referred to as “over 80”).

On December 18, 2018, the government lowered the legal limit to 80 mg%. While “at or over 80” as opposed to ”over 80” may, at first blush, appear to be a negligible difference, it is much more significant than many would appreciate. In most jurisdictions, breath alcohol test results are reported by truncating the last digit down to the nearest 10 mg%. The software for some breathtesting instruments is set up to automatically truncate such that one never sees what the last digit was.

This means that a breath test result of 127, for example, would be rounded down to 120. While this may appear to give the accused an advantage, it is actually done because the last digit is not statistically significant. Any digit between 0 and 9 is equally probable. As the offence used to be operating a motor vehicle with a blood alcohol level “over 80 mg%”, people who blew between 80 and 89 (when the last digit was visible) were never charged.

In fact, because the inherent tolerance of the instruments is roughly 10 mg% (although some argue it is 10%), people who blew between 90 and 99, for many years, were not charged with driving over 80 since a reading of 90 could mean that the person’s blood alcohol level was anywhere between 80 and 100. The offence was, after all, driving with a blood alcohol level over the legal limit.

Applying this information to the new amendments, it is clear that a whole new group of people, never previously charged in the past, are now vulnerable to prosecution. One also needs to recall that these breath testing instruments convert the breath alcohol reading into a blood alcohol reading based on how many molecules of alcohol in “the average person’s” blood escapes into their lungs. This is referred to as the 2100:1 blood to breath partition ratio.

In other words, the instrument operates on the assumption that the motorist blowing into it fits the healthy, average profile upon which the instrument was predicated. When people do not fit the standard profile, the instrument could be overestimating or underestimating blood alcohol content.

This is very significant when considering that now people “at 80” will be susceptible to DUI charges in Edmonton. It is also curious why Parliament maintained the level of 80 mg% at all. Scientific studies show that the point at which all drivers, regardless of tolerance levels, are impaired is at 100 mg%. Those below that limit may or may not be impaired in their ability to drive; that means that some individuals will be charged when they do not pose a danger to the public.


Finally, the changes to the penalties for impaired driving have changed. The minimum fines have undergone some changes and the prohibition has been modified slightly. However, the biggest change that likely escaped the public’s notice was the abolition of curative discharges.

Prior to December 18, 2018, a person found guilty of impaired driving or driving with a blood alcohol level over the legal limit could make an application for a curative discharge. In order to obtain the discharge, one would have to admit they have a problem with alcohol and establish, on a balance of probabilities, that they are likely to be successful in the bona fide efforts they were making to rehabilitate themselves.

If the person is successful, then the Court grants a curative discharge meaning that, although the person has been found guilty, he or she is not “convicted”. To be convicted, a person needs to be found guilty and sentenced. A person receiving a curative discharge, is found guilty but is not, strictly speaking “sentenced”. Rather, the person is treated for a problem with alcohol that he or she admits that they have.

This had been a very important sentencing tool in the past. A curative discharge recognized that there may be a health issue which is at play in these types of charges. Some people are charged with criminal offences mainly as a result of a strong addiction to alcohol. If the person addressed the issue through rehabilitation, the danger to the public was lessened, at the same time that clemency was shown to one who entered the justice system principally because of a physical and/or mental health issue.

Curative discharges were also important in immigration cases. Under certain circumstances, conviction for an impaired driving-related offence could result in deportation for those who were not citizens of Canada. A curative discharge would allow the person to remain in the country. In addition, those who risked losing their place in their chosen profession as a result of a conviction could, sometimes, avoid that additional consequence if there was no “conviction” but rather a curative discharge. As of December 18, 2018, upon a finding of guilt, there appears to be no way to avoid the imposition of a full conviction, regardless of the consequences to the individuals caught up in this legislation.


This new year of 2019 will be an important one as the courts navigate the intricacies of this new legislation and the myriads of consequences it will have on citizens who find themselves charged with impaired driving-related offences. The constitutionality of the various parts of the legislation will inevitably be tested. We will likely need to wait until 2020 or later to learn the final verdicts on these new amendments.

If you have been charged with a DUI in Edmonton, then don’t hesitate to contact Gunn Law Group to find out what your next step should be.

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