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4th Session, 41st Legislature

This HTML version is provided for ease of use and is based on the bilingual version that was distributed in the Legislature after First Reading.

Bill 7

THE HIGHWAY TRAFFIC AMENDMENT ACT (IMMEDIATE ROADSIDE PROHIBITIONS)


  Bilingual version (PDF) Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. H60 amended

1           The Highway Traffic Act is amended by this Act.

2           Subsection 1(1) is amended by adding the following definitions:

"approved instrument" means an approved instrument as defined in section 320.11 of the Criminal Code; (« éthylomètre approuvé »)

"approved screening device", except in sections 26.0.1 to 26.3, means an approved screening device as defined in section 320.11 of the Criminal Code; (« appareil de détection approuvé »)

"calibrated screening device" means an approved screening device that is calibrated in accordance with the applicable requirements in subsection 263.1(13); (« appareil de détection étalonné »)

"FAIL" means an indication on a calibrated screening device that the concentration of alcohol in the blood of the person whose breath is being analyzed is not less than 80 mg in 100 mL of blood; (« « Échec » »)

"WARN" means an indication on a calibrated screening device that the concentration of alcohol in the blood of the person whose breath is being analyzed is not less than 50 mg in 100 mL of blood; (« « Avertissement » »)

3(1)        Subsection 242.1(1.1) is replaced with the following:

Seizure and impoundment of certain vehicles

242.1(1.1)   Subject to subsection (1.2), a peace officer must seize a motor vehicle and impound it if

(a) the peace officer reasonably believes that a person who was driving the vehicle contravened any of the following provisions:

(i) subsection 225(1) or (1.1) of this Act (suspended and other prohibited driving),

(ii) subsection 279.1(5) or (5.1) of this Act (restricted licence contraventions),

(iii) subsection 320.18(1) of the Criminal Code (operation while prohibited);

(b) based on an analysis of the blood of a person who was driving the vehicle or had care or control of it, or an analysis of the breath of the person by means of an approved instrument, the peace officer reasonably believes that the concentration of alcohol in the person's blood equals or exceeds 80 mg of alcohol in 100 mL of blood;

(c) based on an analysis of the blood of a person who was driving the vehicle or had care or control of it, the peace officer reasonably believes that the concentration of drugs in the person's blood equals or exceeds the amount prescribed by regulation under the Criminal Code for the purpose of paragraph 320.14(1)(c) of the Code;

(d) based on an analysis of the blood of a person who was driving the vehicle or had care or control of it, the peace officer reasonably believes that the concentration of alcohol and drugs in the person's blood equals or exceeds the amount prescribed by regulation under the Criminal Code for the purpose of paragraph 320.14(1)(d) of the Code;

(e) a person who was driving the vehicle or had care or control of it failed or refused to comply, without a reasonable excuse, with a demand made under section 320.27 or 320.28 of the Criminal Code, or with the peace officer's instructions in respect of the demand;

(f) after a demand from the peace officer under subsection 320.27(1) or (2) of the Criminal Code, a person who was driving the vehicle or had care or control of it provides a sample of breath which, on analysis by means of a calibrated screening device, registers a WARN;

(g) after a demand from the peace officer under subsection 320.27(1) or (2) of the Criminal Code,

(i) a person who was driving the vehicle or had care or control of it provides a sample of breath which, on analysis by a calibrated screening device, registers a FAIL, and

(ii) the peace officer does not make a demand of the person under section 320.28 of the Criminal Code following the FAIL;

(h) based on an analysis of the blood of a person who was driving the vehicle or had care or control of it, or an analysis of the breath of the person by means of an approved instrument, the peace officer

(i) reasonably believes that the concentration of alcohol in the person's blood equals or exceeds 50 mg of alcohol in 100 mL of blood but is less than 80 mg of alcohol in 100 mL of blood, and

(ii) does not reasonably believe that the concentration of alcohol and drugs in the person's blood equals or exceeds the amount prescribed by regulation under the Criminal Code for the purpose of paragraph 320.14(1)(d) of the Code.

3(2)        The following is added after subsection 242.1(1.1):

Action to be based on lower screening device result

242.1(1.1.1) If a second analysis with a calibrated screening device is required by subsection 263.1(12), any action taken under clause (1.1)(f) or (g) must be based on the lower result of the two analyses.

3(3)        Clause 242.1(2)(a) is amended

(a) in subclause (v), by striking out "clause (1.1)(b) (blood alcohol over .08)" and substituting "clause (1.1)(b), (c) , (d) or (h)"; and

(b) by striking out "and" at the end of subclause (iv), adding "and" at the end of subclause (v) and adding the following after subclause (v):

(vi) if the vehicle is seized under clause (1.1)(f) or (g), whether the seizure is based on the lower result of two analyses as required by subsection (1.1.1);

3(4)        Subsection 242.1(3.1) is amended, in the part before clause (a), by striking out "clauses (1.1)(b) to (e)" and substituting "clauses (1.1)(b) to (h)".

3(5)        Subsection 242.1(4) is amended, in the part before clause (a),

(a) by adding "for a period of 30 days or more" after "under this section"; and

(b) by striking out "clauses (1.1)(b) to (e)" and substituting "clauses (1.1)(b) to (h)".

3(6)        Clause 242.1(5)(c) is amended by striking out "clauses (1.1)(b) to (e)" and substituting "clauses (1.1)(b) to (h)".

3(7)        Subsection 242.1(7.1) is amended

(a) in the part before clause (a), by striking out "subsection (7.1.1) (previous seizure)" and substituting "subsections (7.1.1) and (7.1.1.1)"; and

(b) by replacing everything after clause (c) with the following:

(d) when the seizure is under clause (1.1)(c) (blood drug concentration equal to or over legal limit), 30 days;

(e) when the seizure is under clause (1.1)(d) (blood alcohol and blood drug concentration equal to or over legal limit), 30 days;

(f) when the seizure is under clause (1.1)(e) (refusal to comply with demand), 60 days;

(g) when the seizure is under clause (1.1)(f) (calibrated screening device registering a WARN), 3 days;

(h) when the seizure is under clause (1.1)(g) (calibrated screening device registering a FAIL), 30 days;

(i) when the seizure is under clause (1.1)(h) (blood alcohol equal to or over .05 but under .08), 3 days.

3(8)        Subsection 242.1(7.1.1) is amended

(a) in the part before clause (a), by adding "other than clause (1.1)(f), (g) or (h)" after "any provision of this section"; and

(b) by replacing everything after clause (c) with the following:

(d) when the seizure is under clause (1.1)(c) (blood drug concentration equal to or over legal limit),

(i) for a second seizure, 90 days, and

(ii) for a subsequent seizure, 90 days and an additional 60 days for each seizure after the second;

(e) when the seizure is under clause (1.1)(d) (blood alcohol and blood drug concentration equal to or over legal limit),

(i) for a second seizure, 90 days, and

(ii) for a subsequent seizure, 90 days and an additional 60 days for each seizure after the second;

(f) when the seizure is under clause (1.1)(e) (refusal),

(i) for a second seizure, 180 days, and

(ii) for a subsequent seizure, 180 days and an additional 60 days for each seizure after the second seizure.

3(9)        The following is added after subsection 242.1(7.1.1):

When second or subsequent seizure relates to WARN reading or BAC equal to or over .05

242.1(7.1.1.1) The period of impoundment under clause (7.1)(g) or (i) for a motor vehicle belonging to a person is increased

(a) to seven days if, once during the five-year period before the day of the seizure under clause (1.1)(f) or (h), any vehicle belonging, at the time of its seizure, to that person was seized under any provision of this section; or

(b) to 30 days if, more than once during that five-year period, any vehicle belonging, at the time of its seizure, to that person was seized under any provision of this section.

For this purpose, a vehicle belongs to a person if the person is the owner of the vehicle or the vehicle is registered in the person's name.

3(10)       Subsection 242.1(7.1.2) is amended

(a) by adding "or" at the end of clause (a) and replacing clause (b) with the following:

(b) clause (1.1)(e) (refusal);

(b) by repealing clauses (b.1) and (b.2).

3(11)       Subsections 242(7.1.3) and (7.1.4) are amended by striking out "subsections (7.1.1) and (7.1.2)" and substituting "subsections (7.1.1) to (7.1.2)".

3(12)       Subsection 242.1(7.2) is amended by striking out "subsection (7.1.1) (second or subsequent seizure) or (7.1.2) (previous seizure for blood alcohol of more than 0.16)" and substituting "any of subsections (7.1.1) to (7.1.2)".

3(13)       Subsection 242.1(7.3) is amended, in the part before clause (a), by striking out "subsection (7.1.1) (second or subsequent seizure) or (7.1.2) (previous seizure for blood alcohol of more than 0.16) to the vehicle" and substituting "any of subsections (7.1.1) to (7.1.2) to the vehicle in respect of a seizure and impoundment of 30 days or more".

4(1)        Clauses 263.1(1.1)(b) and (c) are repealed.

4(2)        Subsection 263.1(2) is amended

(a) in clause (a), by striking out "the breath or blood of a person who was operating a conveyance" and substituting "the blood of a person who was operating a conveyance, or an analysis of the breath of the person by means of an approved instrument"; and

(b) by replacing clause (f) with the following:

(f) after a demand from the peace officer under subsection 320.27(1) or (2) of the Criminal Code, a person provides a sample of breath which, on analysis by means of a calibrated screening device, registers a WARN;

(f.1) after a demand from the peace officer under subsection 320.27(1) or (2) of the Criminal Code,

(i) a person provides a sample of breath which, on analysis by a calibrated screening device, registers a FAIL, and

(ii) the peace officer does not make a demand of the person under section 320.28 of the Criminal Code following the FAIL;

(f.2) based on an analysis of the blood of a person who was operating a conveyance, or an analysis of the breath of the person by means of an approved instrument, the peace officer

(i) reasonably believes that the concentration of alcohol in the person's blood equals or exceeds 50 mg of alcohol in 100 mL of blood but is less than 80 mg of alcohol in 100 mL of blood, and

(ii) does not reasonably believe that the concentration of alcohol and drugs in the person's blood equals or exceeds the prescribed amount for the purpose of paragraph 320.14(1)(d) of the Criminal Code;

4(3)        Subsection 263.1(7) is amended

(a) in item 1, by adding "or clause (2)(f.1)" after "any of clauses (2)(a) to (d)"; and

(b) in item 2,

(i) in the part before clause (a), by striking out "any of clauses (2)(e) to (h)" and substituting "clause (2)(e), (f), (f.2), (g) or (h)", and

(ii) in clauses (a), (b), (c) and (d), by striking out "the previous 10 years" and substituting "the 10-year period ending when the order is served".

4(4)        Subsection 263.1(8) is amended

(a) in the part before clause (a), by striking out "any of clauses (2)(e) to (h)" and substituting "clause (2)(e), (f), (f.2), (g) or (h)"; and

(b) in paragraph (b)(i)(B), by striking out "in the previous 10 years" and substituting "within the 10-year period ending when the order is served".

4(5)        Subsection 263.1(11) is replaced with the following:

Request for second analysis with calibrated screening device

263.1(11)    Despite subsection (2), before serving a person with a suspension and disqualification order based on an analysis with a calibrated screening device, the peace officer must advise the person that they may request the peace officer to conduct an analysis of a sample of the person's breath with another calibrated screening device. Such a request must be made promptly.

4(6)        Subsection 263.1(11.1) is amended by adding "Such a request must be made promptly." at the end.

4(7)        Subsections 263.1(12) and (13) are replaced with the following:

Lower result of two calibrated screening device analyses governs

263.1(12)    If a person makes a request under subsection (11) for a second analysis with another calibrated screening device,

(a) the peace officer must arrange for the analysis to be performed; and

(b) any action taken by the peace officer under subsection (3) must be based on the lower result of the two analyses.

Second approved drug screening equipment analysis governs

263.1(12.1)  If a person makes a request under subsection (11.1) for a second analysis with the same approved drug screening equipment,

(a) the peace officer must arrange for the analysis to be performed; and

(b) the suspension and disqualification order is continued or overturned based on the results of the analysis.

Calibration of approved screening device

263.1(13)    The calibration requirements for an approved screening device are as follows:

(a) for the purposes of clauses (2)(f) and 242.1(1.1)(f), the device must be calibrated so as not to register a WARN unless the concentration of alcohol in the blood of a person whose breath is being analyzed by means of the device is at least 50 mg in 100 mL of blood;

(b) for the purposes of clauses (2)(f.1) and 242.1(1.1)(g), the device must be calibrated so as not to register a FAIL unless the concentration of alcohol in the blood of a person whose breath is being analyzed by means of the device is at least 80 mg in 100 mL of blood.

4(8)        Subsection 263.1(14) is amended by striking out "clause (2)(f)" and substituting "this section or section 242.1".

5           The following is added after section 263.1:

Administrative penalty for suspended drivers

263.1.1(1)   A person is liable to pay an administrative penalty in the amount prescribed in the regulations if a peace officer serves the person with a suspension and disqualification order based on

(a) the ground set out in clause 263.1(2)(d) (refusal to comply with demand) if

(i) the refusal relates to a demand under subsection 320.27(1) or (2) of the Criminal Code to provide a sample of breath for analysis by means of an approved screening device, and

(ii) the person is not charged under section 320.15 of the Criminal Code in respect of the refusal; or

(b) a ground set out in any of the following provisions:

(i) clause 263.1(2)(f) (calibrated screening device registering a WARN),

(ii) clause 263.1(2)(f.1) (calibrated screening device registering a FAIL),

(iii) clause 263.1(2)(f.2) (BAC equal to or over .05 but under .08).

Penalty in addition to other sanctions

263.1.1(2)   The administrative penalty is in addition to any other applicable sanctions or consequences under sections 242.1, 263.1 and 279.1 and any other fine or penalty that may be imposed under this or any other Act.

Penalty debt to government

263.1.1(3)   The administrative penalty is a debt due to the government and must be paid no later than

(a) 30 days after the date the suspension and disqualification order is served on the person; or

(b) if the person liable to pay the penalty applies for a review of the suspension and disqualification order under section 263.2 before the time the penalty must be paid under clause (a), 30 days after the decision is made on the review.

For certainty, a person remains liable to pay the penalty if the person applies for a review within one year after the order was served, as allowed under section 263.2, but not within the 30-day period set out in clause (a).

No penalty if suspension and disqualification order revoked

263.1.1(4)   If the suspension and disqualification order that gave rise to the administrative penalty is revoked by the registrar under section 263.2,

(a) despite subsection (1), the person is not liable to pay the penalty; and

(b) if the person paid the penalty, it must be refunded to the person.

Collection and enforcement

263.1.1(5)   An unpaid administrative penalty owing under this section may be collected and enforced in the same manner as an unpaid fine under Part 9 of The Provincial Offences Act.

Designation of administrator

263.1.1(6)   The Lieutenant Governor in Council may, by regulation, designate a person as an administrator responsible for collecting, on behalf of the government, administrative penalties owing under this section and remitting the collected amounts to the government. For that purpose, the administrator has the powers of an authority under Part 9 of The Provincial Offences Act.

Regulations

263.1.1(7)   The Lieutenant Governor in Council may make regulations prescribing the amount or amounts payable as an administrative penalty under this section, which must not exceed $1,000 and which may be different for the different grounds on which the suspension and disqualification order giving rise to the penalty may be based.

6(1)        Clause 263.2(7)(f) is replaced with the following:

(f) if the suspension and disqualification order was served based on the ground set out in clause 263.1(2)(f),

(i) whether the person operated a conveyance having consumed alcohol in such a quantity that the concentration of alcohol in the person's blood equalled or exceeded 50 mg of alcohol in 100 mL of blood, and

(ii) whether the person was advised of their right to request a second analysis under subsection 263.1(11), whether the person made the request, and, if so, whether the order was based on the lower result of the two analyses;

(f.1) if the suspension and disqualification order was served based on the ground set out in clause 263.1(2)(f.1),

(i) whether the person operated a conveyance having consumed alcohol in such a quantity that the concentration of alcohol in the person's blood equalled or exceeded 80 mg of alcohol in 100 mL of blood,

(ii) whether the person was advised of their right to request a second analysis under subsection 263.1(11), whether the person made the request, and, if so, whether the order was based on the lower result of the two analyses, and

(iii) whether the peace officer made a demand of the person under section 320.28 of the Criminal Code following the FAIL;

(f.2) if the suspension and disqualification order was served based on the ground set out in clause 263.1(2)(f.2), whether the person operated a conveyance having consumed alcohol in such a quantity that the concentration of alcohol in the person's blood equalled or exceeded 50 mg of alcohol in 100 mL of blood;

6(2)        The following is added after subsection 263.2(7.1):

No jurisdiction over constitutional questions

263.2(7.2)   The registrar does not have jurisdiction over constitutional questions when conducting a review under this section.

7           Subsections 265.2(6) and (7) are amended by striking out "the previous 10 years" wherever it occurs and substituting "the 10-year period ending when the order is served".

8(1)        Subsection 273.2.1(1) is amended

(a) in the section heading, by adding ", administrative penalties" after "unpaid fines"; and

(b) in the part before clause (a), by striking out "(Canada)" and substituting ", an administrative penalty owing under section 263.1.1".

8(2)        Subsections 273.2.1(2) and (4) are amended by adding ", administrative penalty" after "fine".

9(1)        The following is added after subsection 279.1(1.2):

Restricted licence after suspension relating to alcohol screening or BAC of .05 or more

279.1(1.2.1) After a person's licence suspension or driving disqualification expires, the registrar may issue only a restricted licence to the person during the applicable period prescribed in the regulations if the suspension and disqualification order was issued based on

(a) the ground set out in clause 263.1(2)(d) (refusal to comply with demand) if

(i) the refusal related to a demand under subsection 320.27(1) or (2) of the Criminal Code to provide a sample of breath for analysis by means of an approved screening device, and

(ii) the person was not charged under section 320.15 of the Criminal Code in respect of the refusal;

(b) the ground set out in clause 263.1(2)(f) (calibrated screening device registering a WARN) if

(i) within the 10-year period ending when the order was served, two or more other suspension and disqualification orders were served on the person under section 263.1, and

(ii) the previous orders were not revoked under section 263.2;

(c) the ground set out in clause 263.1(2)(f.1) (calibrated screening device registering a FAIL); or

(d) the ground set out in clause 263.1(2)(f.2) (BAC of .05 or more but less than .08) if

(i) within the 10-year period ending when the order was served, two or more other suspension and disqualification orders were served on the person under section 263.1, and

(ii) the previous orders were not revoked under section 263.2.

Temporary driver's licence before registrar's review completed

279.1(1.2.2) Despite subsection (1.2.1), the registrar may issue a temporary driver's licence for a period of not more than 45 days to a person referred to in subsection (1.2.1) if

(a) before the expiry of the person's licence suspension or driving disqualification, the person has applied for a review of the suspension or disqualification under section 263.2; and

(b) the registrar has not yet made a decision in respect of the review under subsection 263.2(9).

The temporary driver's licence may be made subject to any conditions or restrictions the registrar considers appropriate.

9(2)        Subsection 279.1(1.4) is amended

(a) in the part before clause (a), by striking out "and" and substituting "to"; and

(b) in clause (a), by adding "or (1.2.1)" after "subsection (1.2)".

9(3)        Subsection 279.1(5.1) is amended by striking out "subsection (1.2) or (1.3)" and substituting "subsection (1.2), (1.2.1) or (1.3)".

9(4)        Clause 279.1(7)(b.1) is amended, in the part before subclause (i), by adding "or (1.2.1)" after "subsection (1.2)".

THE DRIVERS AND VEHICLES ACT

C.C.S.M. c. D104 amended

10(1)       The Drivers and Vehicles Act is amended by this section.

10(2)       Clause 21(2)(a) is amended by adding "or (f.1)" after "any of clauses 263.1(2)(a) to (d)".

10(3)       Clause 22(2)(a) is amended by striking out "any of clauses 263.1(2)(e) to (h)" and substituting "clause 263.1(2)(e), (f), (f.2), (g) or (h)".

Coming into force

11          This Act comes into force on a day to be fixed by proclamation.

Explanatory Note

This Bill amends The Highway Traffic Act to allow peace officers to impose immediate roadside prohibitions on drivers based on blood alcohol content.

Depending on a driver's blood alcohol content and previous suspension history, consequences may be

  • a licence suspension for a period ranging from 72 hours to three months; and
  • impoundment of the vehicle for a period ranging from three days to 30 days.

Drivers must also pay an administrative penalty and may be required to use an ignition-interlock system. The Registrar of Motor Vehicles may refuse to renew the driver's licence or insurance of a person with an unpaid administrative penalty.

Amendments are also made to The Drivers and Vehicles Act. A person who received an immediate roadside prohibition may be required to undergo an impaired driver's assessment and complete an education or treatment program before having their driver's licence reinstated.