New Impaired Driving Legislation

The Criminal Code of Canada prohibits driving while impaired by drugs and alcohol.  Yet impaired driving remains the leading criminal cause of death and injury in Canada.  The latest available Department of Justice statistics indicate that, in 2016, there were more than 70,000 impaired driving incidents “including almost 3,000 drug-impaired driving incidents.”

Having provided for the coming into force of the Cannabis Act on October 17th, 2018, the Government of Canada has also taken steps to better deter and detect drug and alcohol-impaired driving by enacting reforms to the Criminal Code in Bill C-46, which received Royal Assent on June 21, 2018.  This legislation enacts new driving offences for having a prohibited concentration of a defined drug in the blood while driving, and authorizes the police to use additional tools, such as roadside oral fluid (saliva) drug screeners to detect and define the prohibited concentration.  It also prescribes penalties for these new offences.

Currently, the police check for drug-impaired driving at the roadside by using a standardized field sobriety test, which involves standing on one foot or walking in a straight line.  Pilot project testing has been underway by Public Safety Canada and the RCMP for a year on saliva screening devices and concluded they were “a useful additional tool for Canadian law enforcement.”

Saliva drug screeners detect the presence of some drugs in saliva, including the three most common impairing drugs found in Canadian drivers, namely THC, the main impairing component in cannabis, cocaine, and methamphetamine.  These devices are fast, non-invasive, and accurate.  Now, with less than three months before recreational marijuana use becomes legal, the Justice Department is preparing to approve Canada’s first roadside saliva test.

Reports say the testing device likely to be approved will be the Draeger DrugTest 5000.  While not used in the pilot project, it has already been approved in the United Kingdom and Germany—a German company is the device’s developer—but a Justice Department spokesperson noted, it “may be configured differently to meet Canadian standards.”

Under the new regime, police will still need grounds to suspect a driver has consumed drugs before demanding a roadside saliva test.  Objectively visible facts, such as red eyes, muscle tremors, agitation, and speech patterns may support the police forming this reasonable suspicion.  Then, if a driver tests positive on the roadside saliva test, the presence of the drug is confirmed and, combined with the other observed signs of impairment, will provide grounds for the investigation to proceed with a drug recognition evaluation (DRE) or with taking a blood sample.

This new regime will likely face significant challenges in court.  The reliability of the devices —our bitterly cold Canadian winters may affect the results! — will likely come under fire.  The legislation, however, has expressly addressed issues such as not having to qualify a DRE trained officer as an expert witness in each trial.  Also, finding a prohibited concentration of a drug while driving can be presumed to have caused impairment at the time of driving—a technical but important component of proving the commission of the offence.