Legislation

Big Changes Coming to Canada’s Impaired Driving Laws

Written on Behalf of Affleck & Barrison LLP

We are all aware that a significant piece of legislation, the Cannabis Act, has become law. This bill will come into force on October 17, 2018 and it will encompass all the rules regarding the control and regulation of how cannabis is grown, distributed and sold.

There is another piece of legislation, Bill C-46, related to the legalization of marijuana that also received royal assent last week. Bill C-46, also known as the Impaired Driving Act, is an overhaul of Canada’s impaired driving laws.

WHAT IS BILL C-46?

Bill C-46 will reform alcohol-impaired driving and drug-impaired driving and police have been given new tools to detect and prosecute drivers.

The bill is comprised of two parts. Part 1 creates three new offences for driving under the influence of various amounts of drugs and stipulates legal limits of such drugs.  This part also requires drivers not to drive within two hours of being over the legal limits and allows police to conduct tests to screen for drugs using “approved drug screening equipment”.

Part 2 of the bill raises the maximum penalty for impaired driving, reclassifies impaired-driving as a “serious criminality” offence and gives police the power to perform mandatory alcohol screening without reasonable grounds to suspect impairment.

The following are the four major changes to Canada’s impaired driving laws as set out in Bill C-46.

Random Roadside Breath Testing

The new legislation will allow police to request a roadside breath test from any driver. They will not need reasonable suspicion that the person has been drinking (i.e. smell of alcohol on a driver’s breath or slurred speech). Those who refuse the roadside breath test will face a criminal conviction with similar penalties to an impaired driving conviction.

Lawyers and civil liberties groups argue that this change in the law violates the Charter protection against unreasonable search. Furthermore, there is concern that this type of practice will disproportionately affect minorities due to racial profiling.

However, Justice Minister Jody Wilson-Raybould is certain that this directive will survive a court challenge. She referred to mandatory alcohol screening as “minimally intrusive, but the benefits in lives saved will be immeasurable”.

The government equated a mandatory breath sample to the requirement to show a driver’s licence.

Roadside Saliva Testing

The new law would allow police to use roadside screening devices that test saliva for the presence of drugs, including THC (the main psychoactive ingredient in cannabis). However, unlike alcohol breath tests, police will need to have a reasonable suspicion before requiring this test.

It is unclear when this type of testing will be used by the police as there are a number of steps that still need to take place. The government has yet to approve the devices to be used by the police. Justice Minister Wilson-Raybould will then have to make a ministerial order to approve the devices after a 30-day public consultation. Finally, the devices will need to be purchased and officers will need to be trained on how to use them.

THC Blood Levels

The new legislation will allow police to lay an impaired driving charge based solely on blood test results for THC in blood without needing to further prove impairment.

The government has proposed “per se levels” based on nanograms per millimeter of blood as follows:

  • A THC level between 2 and 5 ng would be a lower-level offence with a fine of up to $1,000;
  • A THC level above 5 ng would result in the same penalties as an alcohol-impaired driving conviction, including mandatory minimum penalties of a $1,000 fine on a first offence, 30 days imprisonment on a second offence and 120 days imprisonment on a third offence;
  • A mixture of a THC level above 2.5 ng and a blood alcohol concentration above 50 mg per 100 mL would have the same penalties as above.

10 Years Maximum Sentence for Impaired Driving

Under Bill C-46, impaired driving convictions will be considered “serious criminality” offences and the maximum sentence will be raised from 5 years to 10 years. This change in the law will greater affect those that could potentially lose permanent residence status and face deportation (i.e. foreign students, workers, visitors and permanent residents).

WHAT IS THE CURRENT STATUS OF BILL-46?

Part 1 of the Impaired Driving Act will roll out this summer; however, Part 2 of the bill will not come into force for another 180 days. In the meantime, as the bill comes into force we will report on any developments through this blog.

If you have been charged with a driving offence of any kind or have any questions regarding your legal rights, please contact the experienced and knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Ontario Proclaims Police Record Checks Reform Act

Written on Behalf of Affleck & Barrison LLP

On December 1, 2015, the province of Ontario passed the Police Record Checks Reform Act, 2015 (“PRCRA”), which is intended to uphold public safety in conjunction with respecting privacy and removing barriers that individuals may face when inappropriate information is disclosed in police record checks. The Act will come into effect on November 1, 2018.

The legislation will limit police disclosure of “non-conviction records”, allegations found in police computers that were never proven and 911 mental health calls that police attended.

This legislation was drafted in response to the Toronto Star’s “Presumed Guilty Investigation” in 2014 that exposed that tens of thousands of Canadians have records in police databases despite never having been convicted of a crime. The investigation found that the disclosure of these records has damaged careers, squashed ambitions and limited international travel.

According to research from the Canadian Civil Liberties Association, one in three Canadians have some form of non-conviction information found on police computers. Police record checks disproportionately affect people who have more contact with the police, such as those individuals living in poverty or those with mental health or developmental disabilities.

Marie-France Lalonde, the Minister of Community Safety and Correctional Services, commented on the new legislation:

People in Ontario must not lose out on opportunities because of an inappropriate disclosure of non-criminal information. It is also vitally important that we have an up-to-date, rigorous record checks process that ensures that employers have access to appropriate information. …Once in force, this legislation will bring down barriers to opportunity and will help people across Ontario become more involved in their community.

WHAT IS A POLICE RECORD?

Police records originate from interactions with local police service related to both criminal and non-criminal matters. These interactions may include:

  • An individual providing their name through informal contact with a police officer;
  • An individual calling 911 or was present when the police officers responded to the call;
  • An individual calling 911 for themselves or someone they know was experiencing a mental health crisis;
  • An individual was involved in a police investigation as a witness, victim or suspect;
  • An individual was arrested;
  • An individual was charged with a criminal offence, but was not convicted;
  • An individual was found guilty of a criminal offence; or
  • An individual was convicted of a criminal offence.

WHAT IS A POLICE RECORD CHECK?

A police record check occurs when a search is performed in police databases regarding a particular individual. This “check” can be prompted to evaluate the suitability of an individual for a particular purpose, such as employment at a specific job, volunteer work, application for educational programs, adoption, immigration, or foreign travel.

As it stands today, information searched as part of a police record check can range from convictions to findings of guilty of non-convictions (i.e. an offender is found guilty of a particular offence, but made without conviction) and non-criminal information (i.e. when a person has an interaction with police, but is not charged).

WHAT ARE THE TYPES OF POLICE RECORD CHECKS?

There are three types of police record checks that are clearly defined in the PRCRA.

They are as follows:

  1. Criminal Record Checks;
  2. Criminal Record and Judicial Matter Checks; and
  3. Vulnerable Sector Checks.

A Criminal Records Check is a search of the RCMP databases and is usually required for bylaw licences, employment or immigration purposes.  This type of screening will include information regarding criminal convictions and findings of guilt under the Youth Criminal Justice Act within the applicable disclosure period.

A Criminal Record and Judicial Matter Check is the most comprehensive type of police screening. This check includes information regarding convictions, outstanding warrants, charges and judicial orders available from a local police agency’s records. This screening is intended for applicants seeking volunteer or employment from organizations that require a criminal record check, but it is not intended for those seeking to work or volunteer with vulnerable persons.

A Vulnerable Sector Check screens individuals who are pursuing employment or volunteer opportunities with vulnerable people. A vulnerable person is defined as a person who, because of their age, disability, or other circumstances, are in a position of dependence on others or are at a greater risk than the general population of being harmed by a person in a position of authority or trust. Some of the positions that will require a Vulnerable Sector Check include teachers, social workers, taxi drivers, daycare workers, adoptive parents and sport coaches.

THE JOHN HOWARD SOCIETY OF ONTARIO REPORT

The John Howard Society of Ontario (“JHS”) is a criminal justice organization working to deliver services to those in conflict with the law and at risk throughout Ontario.

The JHS conducted in-depth surveys and interviews with employers and individuals with police records to empirically capture the negative effects of police records on employment.

The JHS report entitled “The Invisible Burden” concludes that a large number of Canadians have some form of police record, particularly Torontonians. These records are frequently requested by employers, and likely effect employer hiring practices and employment outcomes. Most importantly, police records disproportionately affect racialized, marginalized and other vulnerable populations.

Requiring a police records check is often part of an organization’s policy. According to their research, the JHS found that 60% of employers required police background checks for all new employees.

The JHS report offered various recommendations to balance employer interests and the need for an inclusive approach for people who need to gain employment. The JHS is a strong advocate of the new PRCRA as a means to standardize police records checks across the province.

If you have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Proposed Gun Control Laws Aimed at Gun Store Owners

Written on Behalf of Affleck & Barrison LLP

On March 21, 2018, the Liberals introduced Bill C-71 to improve Canada’s existing gun control legislation. This legislation includes measures to broaden background checks for gun owners, toughen rules around the transportation of handguns, and tighten record keeping requirements for the sale of firearms. Bill C-71 proposes to make changes to the Firearms Act, the Criminal Code and repeals changes made by the previous Conservative Government.

In Canada, crimes involving firearms have increased by 30% between 2013 and 2016, with 2,465 offences occurring in 2016. Homicides involving guns have increased by two thirds between 2013 and 2016, with 223 homicides occurring in 2016.

The Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness, stated:

While Canada is one of the safest countries in the world, increased gun crime has caused too much violence and taken too many lives in communities of all kinds. … With this legislation and our other measures, we are taking concrete steps to make our country less vulnerable to the scourge of gun violence, while being fair to responsible, law-abiding firearms owners and businesses.

GUN CONTROL LAWS IN CANADA

Gun control in Canada is governed by the Canadian Firearms Act and the Canadian Criminal Code. This legislation defines different types of weapons and set out rules regarding which weapons are legal in Canada and under what circumstances.

Canadian law classifies firearms as follows:

  • Prohibited:   .32 or .25 caliber handguns or those with a barrel length of 105 mm or less, automatic firearms, short-barrelled long guns;
  • Restricted:   handguns that are not classified as prohibited, semi-automatic long guns with a barrel less than 470 mm;
  • Non-Restricted: those not regulated as either restricted or prohibited.

A Possession and Acquisition Licence (PAL) is required to possess firearms. The eligibility for a PAL includes a background check to determine whether the applicant has been convicted of any of the designated offences, treated for any mental illness associated with actual or threatened violence, or has a history of behaviour that includes violence, or threatened or attempted violence within the previous five years.

Following a background check, an individual must undergo the “Canadian Firearms Safety Course” and pass the corresponding exam. The individual must also fill our forms and provide character references.

PROPOSALS FOR GUN CONTROL

Enhanced Background Checks

Bill C-71 proposes to expand background checks for those who want to buy a firearm. As described above, the current background check looks back on the last five years. It has been proposed that the RCMP examine any relevant information throughout the individual’s lifetime for prospective gun owners and those who have to renew their gun licences. The RCMP will complete an extensive background check looking into criminal, mental health, addiction and domestic violence records before authorizing an individual a licence to possess a firearm.

Once a licence has been issued, background checks will be ongoing to see if a licence holder has become a public safety risk.

Gun Shop Owner Obligations

Bill C-71 proposes changes to the responsibilities placed on gun vendors in Canada.

Under the new legislation, commercial gun shop retailers will be required to keep information about sales and inventory for at least 20 years, including the firearm’s serial number, the licence number of the transferee, the reference number and the day the reference number was issued. This requirement will not apply to private sellers.

Also, anyone selling or gifting a non-restricted firearm will be required to verify that the person they are providing the firearm to holds a valid firearm licence through the Canadian Firearms Program.

Police investigating a firearms crime can trace the owner of a gun through the licence number, but they are required to get a warrant in order to access the records held by gun shop retailers.

Transportation Regulations

Bill C-71 proposes that owners of restricted or prohibited firearms will need to obtain Authorization to Transport (ATT) documents every time they wish to take their guns anywhere other than a shooting club or gun range. Therefore, taking a firearm for servicing by a gunsmith or to a gun show would require separate authorizations to transport the firearm. However, authorizations to transport will not be required for non-restricted firearms.

If you have been charged with a firearm/gun offence or have questions regarding your legal rights, please contact the experienced Oshawa defence lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.