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Breath test can’t be refused under new drunk-driving law

By Christmas, sweeping changes to Canada’s impaired-driving laws will allow police to demand a breath sample from any driver they lawfully stop. It’s one of the things about Bill C-46 that most concerns Victoria lawyer Michael Mulligan.
Under Bill C-46, police will have the right to demand a breath sample from any driver.

By Christmas, sweeping changes to Canada’s impaired-driving laws will allow police to demand a breath sample from any driver they lawfully stop.

It’s one of the things about Bill C-46 that most concerns Victoria lawyer Michael Mulligan.

Under current law, police must have reasonable suspicion a driver has alcohol in their body before demanding a roadside breath test.

When new legislation comes into force on Dec. 18, a driver who refuses to take a roadside breath test will face a criminal charge with penalties similar to an impaired-driving conviction.

“The public should know, if there’s a breath demand made of you, you won’t have a chance to speak to a lawyer,” said Mulligan.

“The worry is a person without legal advice might not want to provide a sample. Even if they haven’t been drinking, they might find it intrusive. But they could find themselves charged with failing to provide a sample and end up with a criminal record and a long driving prohibition.”

The federal government is making this change because research suggests up to 50 per cent of impaired drivers escape detection at roadside check stops. Mandatory roadside testing is authorized in 40 countries. Authorities in Ireland credit mandatory roadside screening with reducing the number of road deaths by 40 per cent in the first four years.

Federal Justice Minister Jody Wilson-Raybould has said she expects the new legislation will withstand a constitutional challenge. But Mulligan’s not so sure.

“Requiring people to provide bodily samples without reasonable suspicion, which is the barest of thresholds, may not be found to be constitutional at the end of the day,” he said. “It’s a very live question whether that kind of random testing is permissible or an unreasonable search and seizure.”

Mulligan predicts the new legislation will create a great deal of uncertainty and chaos in thousands of impaired driving cases across Canada. “This law will be subject to a constitutional challenge. It will work its way through multi-layered court systems in different provinces until the Supreme Court of Canada tells us if this is constitutionally permissible. During that time, there will be uncertainty that these convictions are sound.”

Of particular concern, said Mulligan, is that mandatory roadside testing could target visible minorities.

“Police do not need any cause to stop you at all. They can just pull cars over. The concern is you get the kind of stops where an officer thinks: ‘I don’t like the look of that guy. Does he really belong in the neighbourhood?’ ”

The new legislation will eliminate or restrict common defences used by drivers facing impaired driving charges. Under current law, drivers can argue they consumed alcohol just before or during driving and were not over the limit while driving because the alcohol was not fully absorbed. Drivers can also claim they left the scene of an accident and drank at home. The new legislation removes this defence by making it illegal to be over the offence level within two hours of driving.

Bill C-46, introduced at the same time as the Cannabis Act that legalized recreational marijuana, sets out three new criminal offences for having a prohibited concentration of drugs in the blood within two hours of driving. The new offences for drug-impaired driving came into force last week.

Drivers with a level of THC — the psychoactive constituent of cannabis — between two and five nanograms will face a summary conviction offence with a fine of up to $1,000. Drivers with a THC level above five nanograms will face mandatory minimum penalties of a $1,000 fine on a first offence, 30 days’ imprisonment on a second offence and 120 days’ imprisonment on a third offence.

Drivers with a THC level of more than 2.5 nanograms and having a blood alcohol concentration above 50 mg per 100 ml will face the same mandatory minimum penalties.

Drug-impaired driving causing bodily harm carries a maximum penalty of 10 years’ imprisonment.

These offences apply for any detectable level of cocaine, methamphetamine, LSD, ketamine and psilocybin. Scientists have advised the government there’s no safe level of these drugs for drivers.

But unlike the pending mandatory alcohol screening, police must have a reasonable suspicion that a driver has taken drugs to demand a saliva sample to test for drugs. A positive reading could lead to a blood test or a drug-recognition evaluation by a trained officer to determine whether a criminal offence has been committed.

The drug-impaired-driving law also applies to medical marijuana patients. But there’s no universally accepted roadside test for marijuana impairment.

“In setting limits, they will end up capturing people who haven’t done anything dangerous at all. It will capture the cancer patients who smoked marijuana two days ago,” Mulligan said.

It could be fall before police are using roadside devices and testing saliva for drug impairment. The National Research Council is still testing devices. Once approved, there will be a 30-day public consultation. Then the devices can be purchased and officers trained.