Will New Impaired Driving Legislation Meet Charter Challenge?

June 16, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

With the Federal Government preparing to legalise recreational marihuana use in Canada there are also changes coming to the rules of the road. The government is signalling significant proposed changes to the legislation around impaired driving including the use of breath samples/saliva samples at the roadside.

Currently, police officers are only allowed to take a sample when they have reasonable suspicion that a driver has been drinking/consuming alcohol. Generally, these tests are performed at roadside stops (RIDES) where all cars are stopped and drivers are screened by police. 

The proposed changes will allow police to take roadside breath samples without evidence that the driver has been drinking. Parliament has been reviewing the changes closely as questions of constitutionality have been raised. Senior justice department officials, and Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, is confident that the mandatory alcohol screening will survive a court challenge as the test is minimally intrusive “but the benefits in lives saved will be immeasurable”.

Police will still be required to have a reason to pull someone over (speeding, broken light etc.) but the government argues from that point forward, regardless of the context of the stop, police will be able to demand a sample, and drivers will have a legal obligation to comply. The government had earlier made a statement on the law’s Charter effects. The request for sample is likened to that of the requirement to show a driver’s licence. They argue that this is simply an exercise to determined ‘whether a driver is complying with one of the conditions imposed in the highly regulated context of driving”.

Critics, including opposition parties and criminal defence lawyers, argue that the law will be on shaky constitutional ground as the taking of the sample represents significant infringement on individual liberty if there is no reasonable hint that the law is being broken. All of these changes are being introduced through Bill C-46. The committee studying the Bill will be hearing from experts into the fall.

C-46 will also allow for the police to take saliva samples to test for drug use, although the details around what tests will be permitted and the levels at which impairment will be declared, have not yet been determined.

The Department of Justice has released a statement on the proposed legislation, along with a detailed Question and Answer section. Here is some of the Q&A that you may find interesting:

Why is this legislation being introduced now?

Introducing this legislation now will help to ensure that a robust drug-impaired driving regime is in place before cannabis is legalized. Although drug-impaired driving has been a criminal offence since 1925, and the police currently have some tools to detect and investigate drug-impaired driving, a stronger approach is necessary. The Government of Canada is committed to keeping Canadians, our roads, and our communities safe.

How would the proposed legislation address drug-impaired driving?

This legislation has three main elements to address drug-impaired driving:

• authorizing the police to use oral fluid drug screeners to detect the presence of a drug in a driver
• creating new criminal offences of being at or over a legal limit for impairing drugs within two hours of driving (the levels would be set by regulation)
• strengthening the existing legal framework to enhance the investigation and prosecution of the existing offence of driving while impaired by a drug

How would the proposed legislation address alcohol-impaired driving?

Part 2 of the proposed legislation would significantly reform the area of impaired driving. Some key elements would include:

• simplifying and modernizing the transportation provisions, including the impaired driving provisions, in the Criminal Code to create a more coherent and efficient legislative framework
• authorizing mandatory alcohol screening to make it easier to detect whether a driver is impaired
• eliminating some defences that encourage risk-taking behaviour
• making it easier to prove blood alcohol concentration for some impaired driving offences
• clarifying what information the Crown is required to disclose to prove blood alcohol concentration

Why is the Government proposing to repeal and replace the transportation provisions?

The existing transportation provisions in the Criminal Code have evolved in a piecemeal fashion over the years. As a result, they are complex and difficult to understand, even for legal practitioners. The proposed reforms would make the legal framework clearer and more coherent. They would also increase deterrence, make it easier to detect impaired drivers, and simplify investigations and proof of impaired driving offences. These measures are expected to result in shorter trials and reduced delays.

Part 1: Drug-impaired driving

Oral fluid drug screeners

What are oral fluid drug screeners and how do they work?

Oral fluid drug screeners are devices that are able to detect the presence of some drugs in oral fluid, including THC, the main impairing component in cannabis.The device is inserted into the mouth of a driver, and once enough oral fluid is collected, the device indicates the presence or absence of drugs. These devices are fast, non-invasive, and highly accurate.

What drugs can oral fluid drug screeners detect?

They can detect THC from cannabis, as well as cocaine, and methamphetamine. These are the three most common impairing drugs found in Canadian drivers.

What would be the legal limit for cocaine?

The scientific advice on impairing drug-levels for cocaine is expected shortly.  Before the legal limit is enacted, the offence of impaired driving would continue to apply to an individuals who is driving while impaired by cocaine (and other drugs). The proposed legislation would permit drugs, such as cocaine and others, and their impairing levels to be added by regulation as research develops. This will enable the government to move quickly to protect Canadians.  

Could an oral fluid screener detect cannabis that was smoked a few days before?

Oral fluid drug screeners do not detect non-impairing components of cannabis, so they would provide a positive result only in situations where cannabis was recently consumed.

How accurate are the oral fluid drug screeners?

Scientific advice has indicated that oral fluid drug screeners are reliable in screening drivers for the presence of THC and some other impairing drugs. Before a drug screener is approved for use by law enforcement, it would be evaluated against a set of rigorous evaluation standards to ensure it is suitable for use by police officers.

Could second-hand cannabis smoke result in a driver testing positive for THC on an oral fluid drug screener?

This is very unlikely. Current scientific advice indicates that there is a very little risk that passive exposure will lead to a positive result on an oral fluid screener.

When would police be allowed to test drivers for cannabis on an oral fluid screener?

Police would be authorized to demand that a driver provide an oral fluid sample if the officer has a reasonable suspicion that the driver has drugs in their body. A reasonable suspicion would be based on objectively discernable facts, such as red eyes, muscle tremors, agitation, or speech patterns.

Why is mandatory screening proposed for alcohol but not for drugs?

Mandatory screening is not proposed for drugs to reflect the difference in the technology between the approved screening device for alcohol and the oral fluid drug screener. The drug screener takes longer than the alcohol screener and cannot convert a sample of oral fluid to a blood drug concentration. Additionally, it is expected that the results on the oral fluid screener will need to be combined with the facts that were used to develop reasonable suspicion to move the investigation forward.

What happens if a driver refuses to provide a sample?

Similar to when a person refuses to comply with a breath sample, they could be charged with the offence of failure to comply.

What would happen if a driver screens positive for a drug on a drug screener?

A positive result on an oral fluid drug screener would provide information to the police officer that would help in developing reasonable grounds to believe that a drug-impaired driving offence has been committed. It is expected that the observed signs of impairment at the roadside, combined with a positive sample on the oral fluid screening device, would be sufficient for an investigation to move forward.

Have the Oral Fluid Drug Screening Devices been tested?

Public Safety Canada, along with its law enforcement partners across the country, led a pilot project to test how well officers were able to use certain roadside drug testing devices on drivers, under different weather conditions, (for example, cold, rain, snow) and at night. The project involved training police in the use of devices that test oral fluid for the presence of certain drugs and how to use them in operational settings. The pilot project will help inform the development of national standards and ensure a comprehensive approach for the use of drug screening devices in the enforcement of drug-impaired driving. The findings from the pilot project will also help inform standard operating procedures and training for law enforcement. The pilot ended in March 2017 and results will be made public in the coming weeks.

What will the Oral Fluid Drug Screening Devices Pilot Project help to inform?

The pilot project documented the experiences and feedback from officers who participated in the project and will help inform the development of national standards and ensure a comprehensive approach for the use of drug screening devices in the enforcement of drug-impaired driving in Canada for specific classes of drugs. The pilot ended in March 2017 and results will be made public in the coming weeks.

New offences for legal drug limits

What new offences are being proposed?

Three new offences of being over a prohibited level of drugs within two hours of driving are proposed:

• a summary conviction offence, for a lower level of drugs (precautionary)
• a hybrid offence for impairing levels of some drugs
• a hybrid offence for impairing levels of some drugs in combination with alcohol

For what drugs would the Government be proposing legal limits and at what level?

Legal limits would be set by regulation. For THC, the proposed levels are:

• at or over 2 ng (nanograms) but under 5 ng of THC per ml (millilitre) of blood for the low level drug offence, a summary conviction offence
• at or over 5 ng of THC per ml of blood for the drug alone hybrid offence
• at or over 2.5 ng of THC per ml of blood combined with 50 mg of alcohol per 100 ml of blood for the drugs-with-alcohol hybrid offence

Levels for some other impairing drugs would be set at any detectable level. This includes LSD, 6-MAM (a metabolite of heroin), Ketamine, Phencyclidine (PCP), and Psilocybin/Psilocin (magic mushrooms). Scientific advice indicates that these drugs are incompatible with safe driving at any level.

What penalties are proposed for the new offences?

The proposed penalties for the summary conviction offence would be a maximum of $1,000. The proposed penalties for the two hybrid offences would be the same as for alcohol impaired driving.

These include mandatory minimum penalties of $1000 for a first offence, 30 days imprisonment for a second offence and 120 days imprisonment for a third offence.

How much cannabis can I consume before it’s unsafe to drive?

Unlike alcohol, the existing scientific evidence does not provide general guidance to drivers about how much cannabis can be consumed before it is unsafe to drive or how long a driver should wait to drive after consuming cannabis. Mixing driving with cannabis, or any other impairing drug, is not safe and poses a danger to our streets and highways.

How would the new offences affect individuals who have a medical authorization for cannabis?

The proposed new offences would apply to all drivers, including those with a medical authorization for cannabis. The goal of the legislation is to help keep Canadians safe from impaired drivers. Safe levels of THC are unknown so a precautionary approach is necessary.

How do these proposals compare with other jurisdictions?

Other jurisdictions have set legal limits for impairing drugs, including cannabis. Colorado and Washington have set a 5ng limit for THC and the United Kingdom has set a 2ng limit. These reforms would put Canada amongst the leaders in the world with respect to road safety.

Strengthening the legal framework

Does this legislation propose any other measures, in addition to new offences and oral fluid screening to strengthen the ability of the justice system to address drug-impaired drivers?

The Bill would also clarify that certified drug recognition evaluating officers do not need to be qualified as an expert to give opinion testimony at trial; provide a police officer the option to demand blood instead of a drug recognition evaluation where they have reasonable grounds to believe an impaired driving offence has occurred; and, create a rebuttable presumption (i.e., a tool which helps Crown prove a specific fact through the proof of another fact) to better link the drug found in the drivers’ body with observed signs of impairment at time of driving.

Part 2: Alcohol-impaired driving

What is mandatory alcohol screening?

Mandatory alcohol screening would authorize officers to demand that a driver provide a roadside breath sample on an approved screening device, whether or not they suspect that the driver has recently consumed alcohol. This would be done after the person has been lawfully stopped pursuant to existing authority (common law or provincial highway traffic act). A driver who refused to provide a breath sample would be subject to a criminal offence.

Why is the Government proposing mandatory alcohol screening?

Research suggests that up to 50% of drivers with a blood alcohol concentration above the legal limit are not detected at roadside check stops. Mandatory alcohol screening will assist in better detecting impaired drivers.

Would the penalties for impaired driving change?

The mandatory minimum terms of imprisonment for impaired driving would not change. However, the legislation proposes some new and higher mandatory minimum fines, and some higher maximum penalties. The legislation proposes to increase the mandatory fines for first offenders with high blood alcohol concentrations:

• A first offender with a reading of 80 to 119 mg of alcohol per 100 ml of blood would be subject to the current mandatory fine of $1,000
• The mandatory minimum fine for a first offender with a reading of 120 to 159 mg of alcohol per 100 ml of blood would be raised to $1,500
• The mandatory minimum fine for a first offender with a reading of 160 mg or over of alcohol per 100 ml of blood or more would be raised to $2,000
• A first offender who refuses testing would be subject to a $2,000 minimum fine

Would mandatory alcohol screening result in an increase in police targeting visible minorities?

Mandatory alcohol screening is being proposed to keep Canadians safe. It would not give police any more powers than they already have under common or provincial law to stop drivers at random to determine their sobriety. The Supreme Court of Canada has previously upheld these traffic stops (R v Hufsky, (1988) and R v Ladouceur, (1990)). However, mandatory screening would not alter the responsibility that law enforcement has towards training and oversight to ensure fair and appropriate application of the law.

Do other countries authorize mandatory alcohol screening?

Mandatory alcohol screening is authorized in many countries worldwide, including Australia, New Zealand, Austria, Belgium, Denmark, Finland, France, Germany, Ireland, The Netherlands and Sweden. Authorities in Ireland credit mandatory screening with reducing the number of people killed on Irish roads by almost a quarter (23%) in the first year following its enactment in 2006.

What is the difference in thresholds for alcohol- and drug-impaired driving in regard to roadside testing?

Police would be authorized to demand that a driver provide an oral fluid sample if the officer has a reasonable suspicion that the driver has drugs in their body. A reasonable suspicion would be based on objectively discernable facts, such as red eyes, muscle tremors, agitation, or speech patterns. Bill C-46 proposes to add mandatory alcohol screening that would authorize officers to demand that a driver provide a roadside breath sample on an approved screening device, whether or not they suspect that the driver has recently consumed alcohol. This would be done after the person has been lawfully stopped pursuant to existing authority (common law or provincial highway traffic act). A driver who refused to provide a breath sample would be subject to a criminal offence.

Why does Bill C-46 propose mandatory alcohol testing for alcohol, but not for drugs?

Mandatory roadside screening is not proposed for drugs to reflect the difference in the technology between the approved screening device for alcohol and the oral fluid drug screener. The drug screener takes longer than the alcohol screener and cannot convert a sample of oral fluid to a blood drug concentration. Additionally, it is expected that the results on the oral fluid screener will need to be combined with the facts necessary to development reasonable suspicion to move the investigation forward.

What is the bolus drinking defence and why does the Government want to eliminate it?

“Bolus drinking” is often referred to as the “drinking and dashing” defence. It refers to situations where a driver claims that, although they consumed alcohol just before or during driving, they were not over the legal limit while driving because the alcohol was not fully absorbed until the time of testing. This defence encourages the risky behaviour of drinking immediately before or during driving in the hopes of arriving at a destination before being too drunk to drive. By changing the timeframe of the offence (i.e., to being over the legal limit within two hours of driving), the argument that alcohol was still being absorbed would become irrelevant.

What is the intervening drink defence and why does the Government want to restrict it?

“Intervening drink” refers to situations where a driver claims to have consumed alcohol after driving but before providing a breath sample at the police station. Typically, a driver takes this action to interfere with the breath testing process. It often arises after an accident when a driver claims that they needed to “calm” their nerves. By changing the timeframe of the offence (i.e., to being over the legal limit within two hours), the argument that post-consumption alcohol was the cause of the high blood alcohol concentration is not relevant. Recognizing that there may be situations where the post-driving consumption of alcohol was innocently done, the legislation provides for a more limited defence, (i.e., the driver drank after driving but had no reason to expect that they would be required to provide a sample of breath.)

How would the proposed legislation change the information that must be disclosed to the defence?

The proposed legislation would clarify that the only material the Crown must disclose with respect to proving blood alcohol concentration is material that is scientifically relevant. This would include the results of the calibration checks and any messages produced by the approved instrument, but would not include maintenance records. This would help to improve efficiency by reducing demands for scientifically irrelevant materials.

What else is Government doing to address impaired driving?

The Government of Canada will continue to consult with the Provinces and Territories on issues, relating to traffic safety.

When will oral fluid drug screeners be in the hands of the police?

It is expected that some oral fluid screeners will be approved for use shortly after Part 1 of the proposed legislation comes into force.

Why is the offence of driving over the legal limit (the “over 80” offence) being broadened so as to capture drivers who were “over 80” within two hours of driving? What does this have to do with the defense of bolus drinking?

The new offence of “operating at or over 80 within two hours of driving” would eliminate the bolus drinking defense, by changing the time frame within which the offence can be committed. Also, it significantly limits the intervening drink defense. This formulation is used in at least 16 American states and has been upheld by the courts. It reflects the concern associated with mixing driving and alcohol consumption close in time to each other.

Can a police officer come to my house and arrest me for impaired driving hours after I operated a vehicle?

Yes, but this is a function of the current law, not the proposals in Bill C-46. Bill C-46 does not propose to change the powers of the police to investigate impaired driving in situations where a driver has already arrived home. Currently, the police can go to someone’s home to investigate any criminal offence, including impaired driving. This could happen, for example, if the police traced a driver who fled the scene of an accident to their home, or if a neighbor called 911 after observing some erratic driving. If, following an investigation, a police officer forms reasonable grounds to believe that the driver has committed an impaired driving offence, the driver can be required to provide a breath sample.

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