The federal government introduced Bill C-46 in July, 2017. This bill is an Act to amend the Criminal Code and make consequential amendments to other Acts. Bill C-46 is currently before parliament but has not yet received royal assent.
Contained in Bill C-46 are substantial changes to the way drinking and driving cases are prosecuted.
Consequent to Bill C 46 the police will be empowered to make determinations as to the guilt and innocence of individuals with respect to drinking and driving cases, without due process for the accused.
Furthermore, there is a proposal contained in Bill C - 46 that would shift the burden of proof from law enforcement to the accused, where the accused would have to prove to the officers that they had not been drinking and driving. Their guilt would be assumed upon suspicion.
Should Bill C-46 become legislated, mandatory roadside breath samples and much harsher penalties for impaired driving offences that could result in up to 10 years in prison would be in effect.
The changes outlined in Bill C-46, currently before Parliament, are problematic and potentially represent breaches of our constitutional rights.
The following are problematic implications of Bill C-46:
An individual could potentially be charged if the police have reason to question them and smell alcohol on their breath even if they are not driving and have no intention of driving but have their car keys
If an individual were to be approached by police in their home would have to demonstrate that alcohol or drugs were consumed after they exited their vehicle instead of before they drove.
If legislated, this would run contrary to the presumption of innocence. for the accused.
The Criminal Code currently states that if police have reasonable grounds to suspect that a person has alcohol or drugs in their body, and that person has operated a vehicle within the last three hours, they can demand a breath sample.
The new bill removes that three-hour requirement. The police, if they have reasonable grounds, can demand a breath sample hours or even days after driving.
The proposed legislation will also remove the burden of suspicion required by police to demand breath samples at the roadside
Currently, the smell of alcohol, admission of consumption, or acting nervously are enough to justify a demand for a breath sample from a suspected impaired driver.
Under Bill C-46 the police don’t need to have any grounds. They can pull over anyone for any reason and demand a breath sample,
The prosed legislation is particularly disconcerting for people who have been historically subjected to heightened police scrutiny and harassment as a result of belonging to marginalized groups.
A 2016 analysis of over 80,000 traffic stops by Ottawa police found that black drivers and those of Middle Eastern descent were pulled over far more often than other groups relative to their population in the city.
Many fear that Bill-C 46 will disproportionately negatively affect visible minorities, Indigenous people, and marginalized groups.
Know your rights! If you have been charged with a criminal offence, contact Kostman and Pyzer, Barristers today for your free consultation!
