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With the impending cannabis legalization bill, the Liberal government has introduced new federal legislation that changes Canada’s impaired driving laws. This includes provisions that will allow for mandatory roadside alcohol screening and the addition of new criminal offences for driving while high into the Criminal Code.
The proposed laws will allow the police to demand a driver provide an oral fluid sample if they suspect a driver is impaired by drugs. A positive reading could lead to further testing to determine whether a criminal offence has been committed. Three new criminal offences will be included in the Criminal Code of Canada and will apply to 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. Additionally, a driver who has a blood level of more than five nanograms of THC, or has been drinking alcohol and smoking pot at the same time, will face a fine and the possibility of jail time. In more serious cases of impairment, a drug-impaired driver could face up to 10 years if convicted.
Given the potential severity of these consequences, it's crucial for individuals facing drug-impaired driving charges to seek immediate legal counsel from an impaired driving lawyer who can provide expert guidance and representation throughout the legal process.
At present, it remains unknown what specific drug-testing device the police will use to enforce these laws. However, there are devices currently available on the market that can detect traces of various substances, such as cannabis, opiates, cocaine, amphetamine, methamphetamines, MDMA, ecstasy, benzodiazepines, and ketamine.
Concerns are being raised around the far-reaching extended to the police under the new legislation to demand a saliva sample, particularly the implications this has on our rights. Researchers have suggested that accurately measuring THC levels, or determining the extent of impairment from THC via a roadside test, is currently not feasible.
Should this legislation pass, it will amount to some of the harshest impaired-driving laws globally. There is a growing concern about the constitutionality of the new legislation and whether it adequately balances individual rights with the common interests of the government and police service. This, notwithstanding the affirmation from Canadian Justice Minister, Jody Wilson-Raybould, that the new impaired driving provisions are constitutional; is a confirmation that many remain unconvinced about.
Under the new legislation, the police now have the authority to demand a breathalyzer sample from any driver they lawfully stop. This marks a change from previous regulations, in which a test could only be administered if an officer had "reasonable suspicion" that a driver was impaired by alcohol.
The accused was charged with "over 80" and their defence counsel had the opportunity to challenge this charge by proving that “reasonable suspicion" existed in a court of law. Here "over 80" refers to a blood alcohol limit of 80 milligrams of alcohol per 100 millilitre of blood, which when exceeded, is considered illegal driving.
This proposed legislation also plans to diminish or limit the commonly used defences by defence counsel and drivers facing "over 80" impaired driving charges. Traditionally, drivers charged with "over 80" sometimes succeeded in avoiding criminal conviction by arguing that they were not over the legal limit at the time of driving, but had consumed alcohol before or during driving. It has often been argued, and accepted, that the driver blew "over 80" at the time the breathalyzer was administered, but they were not illegally impaired at the time of driving, due to incomplete absorption of alcohol.
The proposed legislation aims to be stricter, changing "over 80 at the time of driving" to within two hours of driving, thereby limiting this defence. Conversely, the new legislation also includes shorter waiting periods for drivers convicted of "over 80" or other proposed impaired driving offences.
These changes are proposed: a first-time offender could drive again with no waiting period, reduced from a year in current legislation; a three-month wait for a second offence; and a six-month wait for any subsequent offence. If faced with "over 80" or any other criminal offence charges, Kostman and Pyzer, Barristers, can be contacted for a free consultation.
