As Trudeau's Liberal government moves towards the direction of legalizing marijuana, Justice Minister Jody Wilson-Raybould introduced major changes to the country's impaired driving laws. Aside from introducing new drug-related offences which involves THC, the primary psychoactive found in cannabis, what really has people divided on this bill is the provision which will allows for mandatory roadside alcohol screening and closing out loopholes which will make it legal for the demand of a driver's "oral fluid sample" up to two hours after arriving home. "Impaired driving is the leading cause of criminal death and injury in Canada," said Liberal MP Bill Blair, during the announcement of the legislation. "In order to protect Canadians, our government has committed to creating new and stronger laws to punish more severely those who drive while impaired by cannabis, alcohol and other drugs."
Drivers who have consumed any form of cannabis within two hours of driving could face one of the three new drug offences. The lowest level of cannabis offence while driving is reached at two nanograms but less than five nanograms of THC per milliliter of blood, which could result in a maximum fine of up to $1000. The next level of offense starts at five nanograms of THC, or has been drinking alcohol simultaneously, which will also see a fine and the possibility of jail time. In more serious cases, a drug-impaired driver could face up to 10 years if convicted. The government has not specified which drug testing device they will be recommending law enforcement officers to use, but other jurisdictions currently use the DrugWipe system, which has the ability to detect a large range of drugs which include traces of cannabis, opiates, cocaine, amphetamine, methamphetamine, benzodiazepines and ketamine. "This bill, if it passes, will be one of the strongest impaired-driving pieces of legislation in the world and I'm very proud of that," Wilson-Raybould said during the announcement.
Analysts are quick to point out the European Union has a limit of just one nanogram of THC, while exiting EU member, the United Kingdom has a limit of also two nanograms. Australia and many US states have zero tolerance, which effectively makes driving impaired on THC, no matter the level detected in blood, a criminal offense. Experts on the field has also pointed out that researchers have suggested there is no adequate way to measure THC levels, or to determine how a driver is affected by drugs in a roadside test. "I will, as I do with all justice pieces of legislation, be tabling a charter statement. I am confident of constitutionality of mandatory roadside testing," Wilson-Raybould said. "This is not a device or a tool that doesn't exist in other places in the world. In fact, mandatory roadside testing in many countries has significantly reduced the number of deaths on highways. I think that is of paramount concern." Currently in place, a police officer may only administer a test if they have "reasonable suspicion" that a driver was impaired by alcohol. Reasonable suspicion can be as simple as the smell of alcohol on the person's breath or the person admitting that they've been drinking.
Under Wilson-Raybould's proposed legislation, officers who have an approved screening device for breath tests on hand when they lawfully stop drivers, which include check stops, will be able to demand a test without first determining if they have a reasonable suspicion. A failed test would not result a person being automatically charged with an offence, but would result in the driver going to the police station for further tests. Government research has found many impaired drivers has been able to escape detection at check stops. It also has concurrent goal of reducing legal action whether an officer actually had reasonable suspicion to ask a driver to administer a field test for blood alcohol levels. Revision of alcohol impaired driving laws will also eliminate, or restrict, common defenses used by drivers facing impaired-driving charges in court by changing the time frame for failing a blood alcohol test from "at the time of driving" to "within two hours of driving." 80 milligrams of alcohol per 100 milliliter of blood is the current limit for alcohol consumption or commonly referred to as ".08."
At the moment, drivers can avoid fines or a criminal conviction by claiming the consumption of alcohol just before or during driving, and thus was not over the legal limit at the time they started driving and the alcohol has not been fully absorbed into the body. They can then claim it was only later, at the time of testing, that they reached an illegal blood alcohol concentration. Additionally, a driver can attempt to dash away from the scene of an accident and claim they consumed alcohol once home.
Experts say the proposed changes could shift the burden of proof onto an accused. The accused will now have to prove they consumed alcohol or drugs at home after they exited their vehicle and was not driving impaired. Opposition to the bill voice their concerns that this new piece of legislation may infringe on section eight of the Canadian Charter of Rights and Freedoms, which states "everyone has the right to be secure against unreasonable search or seizure." Other concerns include the fear of police officers kicking down the front door and demanding a blood alcohol test. While the bill does not intend for that kind of action, and the whole purpose of the phrasing of "within two hours of driving," is to prevent impaired drivers from escaping conviction of criminal offenses due to loopholes, the fear is abuse of power from law enforcement. Crashes involving alcohol and/or drugs is the leading criminal cause of death in Canada.
According to Statistics Canada, 72,039 reported cases of impaired driving incidents in 2015, a rate of 201 incidents per 100,000 population. 122 were cases of impaired driving causing death and 596 were cases of impaired driving causing bodily harm. In comparison, Canada is ranked #1 among 19 wealthy countries for percentage of deaths related to alcohol impaired driving accidents. And the stretch between first and the two countries tied at second is a long shot with Canada at 34 percent and the United States and New Zealand at 31 percent. Clearly, what laws we have in place surrounding impaired driving is not working and this new bill may be the solution. What many critiques of this new bill forget is that driving is a privilege, it is not a right. The bill also includes changes to the provincial interlock programs, a system installed into a vehicle which prevents it from starting if any traces of alcohol is detected. The current laws requires a first-time offender to wait a full year before being admitted to an ignition interlock program in order to drive again. The proposed changes would reduce the time offenders have to wait; no wait for the first offense, three months for a second offense and six months for a subsequent offense.