Call Out News: Police would be Given Sweeping New Authority to Combat Impaired Driving

Justice Minister Jody Wilson-Raybould introduced major changes to the country’s impaired driving laws Thursday.

“Impaired driving is the leading cause of criminal death and injury in Canada. In order to further protect Canadians, our government has committed to creating new and stronger laws to punish more severely those who drive while impaired by cannabis, alcohol and other drugs.” Liberal MP Bill Blair, a former Toronto Police Chief, said during a news conference in Ottawa on Thursday.

The legislation drops the requirement that police need a reasonable suspicion that a driver has been drinking before demanding a breath sample. Reasonable suspicion generally has meant an odour of alcohol on the driver’s breath, an admission of alcohol consumption or other indicators. Police would be given sweeping new authority to combat drunk driving by demanding a breath sample from any driver at roadside.

For marijuana, it will allow police to demand a driver provide an “oral fluid sample” — saliva — if they suspect a driver is drug impaired. A positive reading could lead to further testing, including a blood test, to determine whether a criminal offence has been committed. The sample would not be proof of drug use, but would help create reasonable grounds to believe a crime was committed, so police could conduct further testing.

Three new drug-related offences will be also be created for drivers who have consumed drugs within two hours of driving. A driver who is found to have two nanograms but less than five nanograms of THC per millilitre of blood could face a maximum fine of up to $1,000 (THC is the primary psychoactive found in cannabis).

A drug-impaired driver could face up to 10 years in prison.

In pairing the liberalization of marijuana laws with tough-on-crime legislation featuring enhanced police powers and stronger mandatory punishments, the federal government said its aim is to create among the world’s strongest impaired-driving regimes, especially compared with jurisdictions around the world where cannabis is legal. It also says that the current set of laws on drunk driving are difficult to prosecute, and the new law would restrict or eliminate some defences.

Criminal defence lawyer Joseph Neuberger of Toronto is among legal observers who say the dropping of the reasonable-suspicion standard for a roadside breath test may be unconstitutional because it requires the giving of a bodily sample, which he describes as invasive, despite no sign of danger. He said he does not understand why police would need a reasonable suspicion to test for marijuana, but not need one to test for alcohol. “One is not worse than the other. Significant impairment by a drug can be as dangerous as alcohol impairment. So, I don’t see why we should have two different standards.”

A spokesman for Ms. Wilson-Raybould said the different standards for policing in detecting marijuana and alcohol consumption reflect differences in the technology of screening devices.

“Unlike the approved screening device for alcohol, which gives results in seconds that reliably indicate blood-alcohol concentration, drug screeners take eight to 10 minutes to indicate presence of a drug in oral fluid. In addition, unlike with alcohol, the concentration in oral fluid cannot be converted to concentration of the drug in the blood.”