OTTAWA — A sweeping overhaul of Canada’s impaired driving laws was given Royal Assent on Thursday, meaning the new rules are starting to come into effect and drivers should be prepared.
Bill C-46 made reforms to both alcohol-impaired driving and drug-impaired driving, and police now have powerful new tools to detect and charge drivers. The bill also made many technical changes to help the courts deal with impaired driving cases more quickly.
There are three big — and controversial — changes Canadians will need to know about.
Random roadside breath testing
Starting in December (180 days after Royal Assent), police can require a roadside breath test for any driver. The crucial change is they will no longer need reasonable suspicion the person has been drinking. Drivers who refuse this test face a criminal charge with similar penalties to an impaired driving conviction.
This provoked heated debate during the Senate’s study of Bill C-46, as lawyers and civil liberties groups argued it violated the Charter’s protection against unreasonable searches. There is also concern it will disproportionately affect minorities due to racial profiling.
The Senate voted to remove the entire provision from the bill, but the Liberal government insisted on restoring it and eventually got its way.
Justice Minister Jody Wilson-Raybould says she’s confident the measure will survive a court challenge, and some constitutional experts have backed her up on this.
The government points to other countries that have random testing, such as Australia and Ireland, and argues those countries have seen a dramatic reduction in impaired driving rates. Critics argue those stats are misleading because they aren’t being compared to a selective testing regime like Canada’s, and point out Canada has also seen sharp declines in impaired driving under the current rules.
Roadside saliva testing
Canadian police officers can now use roadside screening devices that test saliva for the presence of cocaine, methamphetamine and THC, the main psychoactive ingredient in cannabis. Police will not be able to use random testing for these; they will still need reasonable suspicion before demanding the test.
However, it will likely be months until these are seen on Canada’s roads. Even though this section of the bill comes into force immediately, a number of steps must still happen.
First, Wilson-Raybould will need to sign off on which devices are approved for use. Devices are being independently tested by the National Research Council, but it is taking longer than expected. Department officials testified at a Senate committee in May that they have no idea when the testing will be done.
Once the testing is finished, Wilson-Raybould will make a ministerial order to approve them for use, but that needs to go through a 30-day public consultation. Then the devices need to be purchased and frontline officers will need to be trained on them. All this means it could be well into the fall before police are using them.
THC blood levels
Canada will now be setting a “per se” level for THC in the blood within two hours of driving, meaning police can lay an impaired driving charge based solely on the blood test results without needing to further prove impairment.
We have long been doing this for blood alcohol levels, laying criminal charges if a driver’s level is above 80 milligrams of alcohol per 100 millilitres of blood.
But the science linking THC blood levels to impairment is much weaker than the science on blood alcohol levels, and defence lawyers will almost certainly challenge this once it’s in effect. Medical marijuana patients are also likely to be at the forefront of challenges.
The per se levels are set through regulations, not the legislation itself. The government has already proposed its levels, based on nanograms per millilitre of blood:
- A THC level between 2 and 5 ng would be a lower-level offence with a fine of up to $1000;
- A THC level above 5 ng would come with the same penalties as an alcohol-impaired driving conviction, including mandatory minimum penalties of a $1000 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.
Provinces may add additional penalties on top of this.
Consuming even small amounts of cannabis shortly before driving could put someone over these limits. The government has said that until the science improves, it is taking a “zero-tolerance” approach.