Amendment of Bill C-45 Brings Mandatory Alcohol Screening

Dec 19, 2017

In May of this year, the federal government announced a forthcoming amendment to the Criminal Code for impaired driving offences, which, in the advent of 2018’s legalization of marijuana (Bill C-45), includes a new legal limit for drug offences and mandatory drug screening. The first part of Bill C-46 adds new sections for driving under the influence of drugs, while the second part proposes reform for the entire Criminal Code transportation regime.

Supporters of the amendment believe it will reduce the number of impaired driving charges across Canada, while critics argue that it will put more impaired drivers in court, resulting in a greater burden on the justice system.

“Almost exclusively, these [impaired driving] cases are prosecuted in the provincial court system [where there is] already a strain on prosecutorial and police resources; these changes will only increase the strain on all of the justice participants.” – Toronto defence lawyer, Daniel Brown

As part of the new roadside testing plan for impaired drivers, the “reasonable suspicion” test will be replaced by mandatory alcohol screening without the police officer first establishing grounds. This is called “random testing,” and those in opposition, like Vancouver lawyer Kyla Lee, fear that this mandatory screening will target minorities and that there will be “over-policing in areas for people of colour.” Alternatively, Robert Solomon, professor of law at the University of Western Ontario, believes that with mandatory alcohol screening, all drivers passing the checkpoint are tested, which “reduces the likelihood of subjective enforcement of the law.” He also quotes international results that show a lowered rate of alcohol-related vehicle deaths after the implementation of mandatory roadside impairment testing.

Whether or not the amendment will be considered Constitutionally sound is another matter, as it may actually breach the Canadian Charter of Rights and Freedoms. As well, the new rules, which propose that breath samples taken more than two hours from the incident are to be calculated with a formula to determine the alcohol level at the time of the event, eliminate the need to call in an expert and make the measuring instrument’s results irrefutable in court. Alternatively, this kind of measurement will be problematic for cannabis testing, given that THC lasts much longer in a user’s system than alcohol and test results for habitual and casual users of marijuana may subsequently indicate the same system levels of the drug. However, there is no question as to the importance of developing an effective and precise roadside test for marijuana, as Solomon quotes statistics showing that marijuana impairment doubles the risk of vehicular accidents.

As the 2018 legalization of recreational marijuana advances, provinces are beginning to create their own legislation for drug-impaired driving. In Ontario, there will be zero tolerance for any presence of the drug, just as there is for alcohol, in novice or young drivers’ saliva, which will be tested by an approved oral fluid screening device. Commercial drivers will be subject to license suspension and fines if found driving under the influence of marijuana, and all drivers will see increased monetary penalties as a result of the new legislation.

Saskatchewan and B.C. have introduced tougher laws, with the B.C. Ministry of Public Safety and the Solicitor General stating that, “since the Immediate Roadside Prohibition program began in 2010, we have seen a 50-percent reduction in alcohol-related motor vehicle fatalities. There has also been a decrease of approximately 85 per cent in impaired driving-related reports to Crown counsel since 2010.” Quebec currently has no roadside testing system in place, and interest group MADD is encouraging the provinces to establish a nationwide testing policy to streamline the process nationally and thus protect more drivers on the road.