Strengthening Impaired Driving Laws in Canada by Sam Varing

Impaired Driver seeing a blurred speedometer while speeding.

Drug and alcohol-impaired driving is illegal in Canada. With the legalization of cannabis, the legislature has taken measures to strengthen the impaired driving laws in Canada.

On June 21, 2018, Part 1 of the new impaired driving legislation came into force. The legislation creates three new offences to target prohibited concentrations of drugs in the blood within two hours of driving. It is important to note that the new offences apply to all drivers, including those with medical authorization to use cannabis.

The new legislation will make it easier to detect drug-impaired driving by authorizing police officers to use oral fluid drug screeners. It is claimed that an oral fluid drug screener can detect the presence of some drugs in saliva, including THC, the main intoxicating component in cannabis. These devices are fast, non-invasive, and considered by the government to be accurate. The police can demand an oral fluid sample if the officer has a reasonable suspicion that the driver has consumed drugs based on objectively apparent facts, such as red eyes, muscle tremors, and speech patterns. If a driver’s saliva tests positive, the officer would then have grounds to investigate further by demanding a blood sample.

On December 18, 2018, Part 2 of the legislation, relating to alcohol-impaired driving, will repeal and replace the existing transportation regime. It will introduce a mandatory alcohol screening regime, eliminate certain defences and clarify Crown disclosure obligations.

Highlighted Change: Mandatory Alcohol Screening

Under existing legislation, police officers must have a reasonable suspicion that a driver has alcohol in his or her body prior to performing any roadside testing. However, Part 2 of the new legislation will allow police officers, who have an approved screening device on hand, to take a breath sample of any driver they have lawfully stopped. In these circumstances, the officer will not be required to meet the reasonable suspicion standard. A driver who refuses to provide a breath sample may be subject to a criminal offence. This is a significant change from the former requirement that police justify their demand for a test under the Criminal Code based on reasonable and probable grounds that the driver was impaired by alcohol.

Bill C-46 is the most comprehensive reform to the Criminal Code’s transportation regime in over 40 years. The government says the amendments have been designed to create a modern, simplified, and more coherent system to improve how drug and alcohol-impaired driving is deterred and detected. None of these new procedures have been considered by the Courts. Undoubtedly, lawyers will attack the constitutionality of the legislation and the validity of the new drug screening devices. Stay tuned!