New N.B. impaired driving legislation does not address cannabis impairment

Jun 11, 2024

Earlier in May, the New Brunswick provincial government announced its introduction of amendments to the Motor Vehicle Act with the goal of “strengthening the administrative penalties” for impaired driving and implementing a program to suspend a driver’s licence on the spot. While these changes have been lauded by some advocacy groups such as Mothers Against Drunk Driving (MADD Canada), there have also been concerns due to the new legislation not covering drug and cannabis-impaired driving.

“Impaired driving affects all New Brunswickers,” said Public Safety Minister Kris Austin in a released statement. “These amendments aim to deter impaired driving and make our roads safer for everyone by removing impaired drivers from the road immediately. This approach forces drivers who have driven after drinking to separate their activities by mandatory participation in the ignition interlock program. It forces them, for months, to choose between drinking or driving. This is our best opportunity to cut down on impaired driving long-term.”

At present, New Brunswick law enforcement can charge drivers with impaired driving and issue a three-month suspension, which is not effective until the driver appears in court and is charged. However, if the new amendments are passed, the administrative penalty, also referred to as immediate roadside suspension, drivers would not be criminally charged. Instead, they would receive a 15-month driving suspension, a 30-day vehicle impoundment, and mandatory participation in an approved education program for impaired drivers.

According to Gary Forward, president of the New Brunswick Association of Chiefs of Police, detecting drug impairment at a roadside check requires the presence of a specially trained officer, referred to as a drug recognition expert.  “These officers have received training that allows them to conduct a series of tests designed to conclude whether or not a client is impaired by drugs,” said Forward in his interview with CBC News.

New Brunswick officers can use a standard field-sobriety test and observation of signs of impairment, and once an officer has reason to believe a driver is impaired, a drug recognition expert is called in to collect a fluid sample for testing. 

Cannabis impairment can be tested by a saliva swab that can detect recent cannabis or cocaine use; however, law enforcement using this technology is still relatively new compared to breathalyzers.

“The science is much easier with alcohol,” said Steve Sullivan, CEO of MADD Canada. “The tools, the breathalyzer, we’ve had them for decades. “So the technology isn’t there yet with drugs but certainly police capacity to detect drug-impaired drivers is better.”

David Lutz, a criminal defence lawyer with Lutz Parish Gerrish in Hampton, told CBC News that while alcohol impairment cases are common, cannabis impairment cases are very rare in court. “I’m in court every, virtually every day, provincial court particularly, and there is a plethora of drunk driving offences virtually every day,” he said. “I must tell you, over 47 years of practising criminal law, I have had one case in which the police determined that the person was impaired by marijuana, and in that case, they eventually dropped it. I know people are driving around under the influence of alcohol, but as I say, my experience is the police are not arresting many people for [cannabis].”