More penalties, less proof


author: mimi moustapha | contributor


The passage of Bill C-46 amends Canadian laws related to driving under the influence of alcohol and/or drugs. It has most notably garnered attention for an amendment which allows officers to request bodily samples such as a breathalyzer or saliva samples without reasonable suspicion. Prior to this bill, police could only request such tests if there was reason to suspect the driver was under the influence. Possible reasons include signs such as the smell of alcohol or unusual speech. If the officer’s reason was not deemed acceptable by court, this could be grounds to exclude the evidence from a trial, often times leading to the case being dropped. Bill C-46 now removes this by permitting officers to request samples without reason to suspect alcohol- or drug-impaired driving.  

There is no doubt that driving under the influence is a huge problem in Canada, as it is the number one criminal offense that results in injury or fatality. However, the increased power that Bill C-46 gives the police raises many concerns. Even without reasonable suspicion, refusing to provide a bodily sample remains a criminal offense. In an article for the CBC, Brian Pfefferle, a Saskatoon-based criminal defense lawyer, has expressed concerns about a potential rise in refusal charges. He states that sober drivers often believe they have right to counsel before taking a sobriety test, and this can lead to criminal charges due to misunderstanding their rights. Pfefferle expresses concern that these cases may increase in the face of seemingly unwarranted requests for samples. 

Furthermore, many have voiced concerns about unequal use and potential abuse of this new power, such as in racial profiling. These concerns do not come unwarranted, as research within the police services of Ottawa and Kingston demonstrate that Black, Indigenous and Middle Eastern people are pulled over at disproportionate rates compared to their Caucasian counterparts. 

In addition to potential racial profiling, Bill C-46 distributes unequal consequences to offenders based on citizenship. One change brought by C-46 that has received much less attention is the raising of the maximum penalty for driving under the influence charges or DUI’s. The minimum penalty remains a $1000 fine, but the maximum penalty has increased from 5 years to 10 years imprisonment. This shifts the categorization of a DUI from general criminality to serious criminality – a change that has serious implications for non-citizens in Canada. Serious criminality renders non-citizens including permanent residents, international students and other foreign nationals inadmissible to Canada. This means that the punishment for a first time offender is vastly different for non-citizens. While a Canadian citizen could potentially receive only a fine for a first time offence, a non-citizen would also face deportation and be prohibited from entering Canada. While drug and alcohol impaired driving are serious crimes, the consequences faced by permanent residents is far more severe than that of Canadian citizens. 

Driving under the influence remains a widespread issue in Canada, and is a serious offense that must be met with serious consequences. However, these laws should not come at the expense of personal rights and freedoms, nor should they be applied unequally. Unfortunately, in its current state, Bill C-46 does not provide increased accountability to officers and judges to accompany their increased power. Only time will tell if Bill C-46 will provide a significant reduction in drug- and alcohol-impaired driving – and at whose expense. 

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