What is the Proposed Impaired Driving Legislation and What Does it Mean?

October 6, 2019
  • 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 police to demand a driver provide an oral fluid sample if they suspect a driver 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
  • 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.

How will the police test drug impairment while driving?

  • It is unknown which drug-testing device the police will use to enforce these laws.
  • There are currently devices on the market that can detect traces of cannabis, opiates, cocaine, amphetamine, methamphetamines, MDMA, ecstasy, benzodiazepines and ketamine.

How does the proposed driving legislation affect our rights?

  • The far reach the police will have to demand a saliva sample and the implications on our individual rights is not the only concern with the new legislation. Many researchers suggest that there is no accurate way to measure THC levels, or to determine the extent of impairment from THC via a roadside test.
  • If this legislation passes it comprise some of harshest impaired-driving laws in the world.
  • Some are concerned about the constitutionality of the new legislation.
  • Specifically, that the legislation does not do enough to balance the rights of the individual with the common interests of the government and police service.
  • However, Canadian Justice Minister, Jody Wilson-Raybould, maintains that the new impaired driving provisions are constitutional
  •  Many are not convinced.
  • Under the new legislation the police will now be able to demand a breathalyzer sample from any driver they lawfully stop.
  • Previously, a test could only be administered if an officer had "reasonable suspicion" that a driver was impaired by alcohol.
  • They would have to prove that  “reasonable suspicion" existed in a court of law, if the accused charged with over 80 and their defence counsel were to challenge the charge.
  • Over 80 refers to a blood alcohol limit of 80 milligrams of alcohol per 100 millilitre of blood. Driving with that blood alcohol concentration or more is illegal.
  • The proposed legislation will also eliminate, or restrict, common defences used by defence counsel and drivers facing Over 80 impaired-driving charges.
  • Historically drivers charged with Over 80  can sometimes avoid criminal conviction by arguing  that they were not over the legal limit at the time they were driving, but had been drinking before or while driving.
  • It has been successfully argued by defence counsel  that the driver blew Over 80 at the time their bealthalizer was administered, but that at the time they were driving they  were not impaired  to an illegal extent because the alcohol was not yet fully absorbed.
  • The proposed legislation is harsher, changing  Over 80 at the time of driving" to within two hours of driving.
  • It's not all harsher conditions for drivers.  Shorter wait periods drivers have to wait after being convicted of Over 80 or other proposed impaired driving offences are suggested.
  • Current legislation mandates that a first-time offender has to wait a year before being able to drive again.
  • The proposed legislation would reduce the time offenders must wait before they can drive again:
  • there would be no wait for a first offence
  • three months for a second offence
  • six months for a subsequent offence.
  • If you have been charged with Over 80 or any other criminal offence contact Kostman and Pyzer, Barristers today for your free consultation!
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