With new legislation legalizing the recreational use of marijuana, the federal government has also taken the opportunity to make some fundamental changes to Canada’s impaired driving laws. The tighter laws are scheduled to go into effect across the country near the end of the year.
One of the chief changes, and one that is deeply troubling to many in the defence bar, is that the Criminal Code will no longer require police officers to have "reasonable suspicion" of alcohol consumption by a driver before demanding a breath sample. Essentially, law enforcement will be able to stop and breath-test any driver for alcohol consumption at any time. In October of last year, during debate over the new legislation, federal Justice Minster Jody Wilson-Raybould told the Commons the changes will “ensure we have the toughest impaired rules [in] the world.”
That pledge is applauded by many groups, among the most vocal of which is Mothers Against Drunk Driving. Calgary’s Wayne Kauffeldt, a regional director on the national board of MADD, welcomes the federal government’s get-tough stance. “It echoes our . . . view that improved screening will reduce impaired driving.”
Impaired driving is a particularly bad problem in Western Canada.The
most recent available Statistics Canada figures show Saskatchewan is the
province with the highest impaired driving rate in the country followed
But a lot of criminal lawyers, not to mention the Canadian Bar Association, see trouble ahead with the new laws. The CBA, in a submission to the federal government last year, foresaw the introduction of “uncertainty into the law [that will] result in significantly increased litigation and delays.”
A good part of that “increased litigation” will likely come in direct courtroom challenges to the legislations, some of which will almost certainly get to the Supreme Court. “It’s opened the door to a decade of litigation,” says Scott Newman, a Winnipeg criminal lawyer and spokesman for the Criminal Defence Lawyers Association of Manitoba. “We’ve all got constitutional rights under the Charter. We could just as surely allow the police to search everyone’s house to make sure they don’t have drugs.”
The Criminal Code changes permitting law enforcement to stop vehicles arbitrarily also raises some difficult ancillary questions, especially in Manitoba, Saskatchewan and Alberta. The Prairie provinces have among the highest populations of Indigenous inmates in federal and provincial jails within their jurisdictions. Murray Sinclair, senator, lawyer, former judge and former joint head of the Aboriginal Justice Inquiry in Manitoba, is among many in the legal community who are concerned that disproportionate number could go up. They fear the new laws will open the door to racial profiling of Indigenous people. In other words, officers could be on a fishing expedition stopping a motorist simply because that motorist is Indigenous. Earlier this year, during Senate hearings into changes in the impaired legislation, Sinclair said that when he was a judge in Manitoba he was stopped while driving an average of twice a year. “But it was interesting,” he told the committee, “that none of my colleagues on the bench were ever stopped by police.”
In Saskatchewan, Tyler McMurchy speaks for the province’s insurance arm Saskatchewan Government Insurance. Under provincial law, SGI administers the Traffic Safety Act. McMurchy says the provincial government has “taken a very tough stance” in upgrading provincial legislation to complement the new federal impaired laws. The Saskatchewan “government has adopted a zero-tolerance policy for drug-impaired driving.” The legislation under the province’s Traffic Safety Act will impose immediate administrative penalties including three-day roadside licence suspensions and, in some cases, vehicle seizures. Drivers blowing alcohol ratings as low as .05 will face a similar temporary suspension.
Ian Savage is one of Alberta’s top impaired-driving defence lawyers. He finds the new federal legislation very troubling. He is particularly concerned about the dependability of testing for marijuana concentrations in a motorist’s system. He points out that the drug can have a significantly different impact on different users. In an interview with CBC Radio, he argued that “there is no scientific way of demonstrating drug impairment at the time of driving.”
That’s not just a Western problem, and it is a problem the federal government must resolve before the new law is implemented.
Editor's Note: This story has been corrected to clarify that reasonable suspicion will not be required for a breath sample to test for alcohol consumption. It is still required where police demand an oral fluids sample for drug-impaired driving.