# Sweeping changes to Impaired Driving Laws



## trooper142 (14 Apr 2017)

Very interesting changes announced by the federal government in conjunction with the introduction of cannibas legislation!

http://www.cbc.ca/news/politics/trudeau-impaired-driving-changes-1.4069889

Justice Minister Jody Wilson-Raybould introduced major changes to the country's impaired driving laws Thursday, including provisions that will allow for mandatory roadside alcohol screening and new criminal offences for driving while high.

The legislation, introduced concurrently with the government's cannabis legalization bill, will allow police to demand a driver provide an "oral fluid sample" — saliva — if they suspect a driver is drug impaired. A positive reading could lead to further testing, including a blood test, to determine whether a criminal offence has been committed.

Three new drug-related offences will be also be created for drivers who have consumed drugs within two hours of driving. A driver who is found to have two nanograms but less than five nanograms of THC per millilitre of blood could face a maximum fine of up to $1,000 (THC is the primary psychoactive found in cannabis).

'Important day:' Liberals table bills to legalize pot, clamp down on impaired driving
Pot stocks sell off in wake of release of federal legislation
A driver who has a blood level of more than five nanograms of THC, or has been drinking alcohol and smoking pot at the same time, will face 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 did not specify which drug testing device it would recommend police use for enforcement, but other jurisdictions use the DrugWipe system, which can detect traces of cannabis, opiates, cocaine, amphetamine, methamphetamines (MDMA, ecstasy), benzodiazepines and ketamine.

'New and stronger laws'

"Impaired driving is the leading cause of criminal death and injury in Canada," Liberal MP Bill Blair, the government's pot legalization czar, said Thursday in announcing the legislation. "In order to further 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."

"This bill, if its passes, will be one of strongest impaired-driving pieces of legislation in the world and I'm very proud of that," Wilson-Raybould added.

WatchPoster of video clipJody Wilson-Raybould says new impaired driving provisions are constitutional
 JUMP TO BEGINNING OF THE TRACK  WATCH  ADJUST VOLUME 00:00 01:48  SHARE  FULLSCREEN
Jody Wilson-Raybould says new impaired driving provisions are constitutional1:47

However, by comparison, the European Union has a limit of just one nanogram of THC, and the United Kingdom has a limit of two nanograms. Australia and many U.S. states have zero tolerance, which effectively criminalizes driving with any detectable level of prohibited drugs in one's body.

Some researchers, including those at the U.S.-based National Institute on Drug Abuse, have suggested there is simply no adequate way to measure THC levels, or to determine just how drugged a person is in a roadside test.

Those concerns were shared by Conservative leadership contender Erin O'Toole. 

"Public safety officials at all levels of government have outstanding concerns about how to implement marijuana legislation and how to manage the costs associated with it. Of great concern, [Prime Minister Justin] Trudeau has not addressed the fact that there are no proven, reliable tests yet available for determining impairment from marijuana use," he said in a statement.

Mandatory alcohol breathalyzer testing

Police officers will also now be able to demand a breathalyzer sample from any driver they lawfully stop. Previously, a test could only be administered if an officer had "reasonable suspicion" that a driver was impaired by alcohol.

The government is making this change because its research shows many impaired drivers are able to escape detection at check stops. It is also aimed at reducing legal action over whether an officer actually had "reasonable suspicion" to ask a driver to blow on a device for a blood alcohol content reading.

'I am confident of constitutionality of mandatory roadside testing.'
- Justice Minister Jody Wilson-Raybould
The changes are part of the government's efforts to "repeal and replace" all transportation-related offences in the Criminal Code, with "a modern, simplified and coherent structure," according to literature provided by Health Canada.

"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," she said.

Loopholes to be closed

New laws will also eliminate, or restrict, common defences used by drivers facing impaired-driving charges in court.

Currently, drivers can avoid fines or a criminal conviction by claiming they consumed alcohol just before or during driving, and thus were not over the legal limit at the time they were driving because the alcohol was not yet fully absorbed. They can claim it was only later, at the time of testing, that they reached an illegal blood alcohol concentration.

The government said, in a background document distributed to reporters, that it would close that loophole by changing the timeframe for blowing "over 80" from "at the time of driving" to within two hours of driving.

Over 80 refers to a blood alcohol limit of 80 milligrams of alcohol per 100 millilitre of blood, or as it is commonly known, .08 blood alcohol concentration.

The justice minister also announced changes to the provincial interlock programs, a system of in-car alcohol breath screening devices that prevent a vehicle from starting if alcohol is detected.

Currently, a first-time offender has to wait a year before being admitted to an ignition interlock program in order to be able to drive again.

The proposed legislation would reduce the time offenders must wait before they can return to driving; there would be no wait for a first offence, three months for a second offence and six months for a subsequent offence.


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## Journeyman (16 Apr 2017)

Let me start by saying, there are good and bad people in every field.  I appreciate the police and their efforts to eliminate chaos; I do not envy them.  I hate most lawyers because of the 'slimy' ones and the costs they add to almost every transaction.  I dislike many politicians, for (amongst other sins) creating lame and unnecessary legislation that further restricts society, while allowing for aforementioned lawyers to jump on the letter of poorly-crafted law rather than the intent.  Now...




			
				trooper142 said:
			
		

> Police officers will also now be able to demand a breathalyzer sample from any driver they lawfully stop. Previously, a test could only be administered if an officer had "reasonable suspicion" that a driver was impaired by alcohol.


I am predisposed to avoid our rights being eroded;  while this may appear to be a small change, it sets another legal precedent to be cited when the next restrictive change is proposed.  I don't think requiring 'probable cause' is a bad thing.



> "This is not a device or a tool that doesn't exist in other places in the world."


I'm sorry, but "the other kids are doing it" was a stupid justification when my kids used it.  

In this case, anyone who would generalize other legal-system's actions probably hasn't spent much time outside of Canada. We've got a pretty awesome country;  shame so many politicians don't value our rights and freedoms (and our responsibilities) and want to legislate the hell out of it.



> ..... claiming they consumed alcohol just before or during driving, and thus were not over the legal limit at the time they were driving because the alcohol was not yet fully absorbed.


OK, now this is _clearly_  the result of scumbag, ambulance-chasing lawyers. [Note: using the "a-word" is not a request for the EMT-bot to jump in with another irrelevant ambulance band-camp story].  

If you want to change legislation to address this 'critical legal shortcoming,' maybe bring in something like a "50% sentencing" law.  For example, the dumbass driver claims as a defence that "sure I was drinking in the car, and tried to race home before my blood-alcohol level was over, but those evil oppressive police stopped me, allowing the booze to be more fully absorbed when tested" -- something that any rational person would say "that's right out of 'er" -- the impaired driver gets sentenced to one year in jail.... the lawyer automatically serves six months.  I suspect spurious claims would drop pretty quickly. 

A knock-on effect could be a decreased requirement for lawyers as the ambulance-chasing diminished;  some of that portion of society, which is smart and ambitious enough to graduate law school, article, etc would otherwise be freed up to contribute to society in a meaningful way.  Win-win.



> The justice minister also announced changes to the provincial interlock programs....


No strong opinions on this one, merely curious.  If it's a provincial program, why are the federal chair-warmers mucking with it?  Seems like potential justification for eliminating at least one layer of government spending our money and creating more and more laws in an effort to appear useful.


Rounds rant complete


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## mariomike (16 Apr 2017)

Journeyman said:
			
		

> [Note: using the "a-word" is not a request for the EMT-bot to jump in with another irrelevant ambulance band-camp story].



I was enjoying your post until the trolling started.


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## brihard (16 Apr 2017)

I guess I'm up.

I'll limit my comments to impaired by alcohol. To qualify my opinion, I'm a serving cop with a pretty good track record against impaired driving. I'm qualified to use the approved screening device (roadside test) as well as a qualified breath technician designated by the attorney general of Canada for the purpose of breath tests with an approved instrument- the wordy way of saying I can take breath samples at the police station once someone is in custody.

There are three broad strokes to this law:

*1. Evidentiary matters / disclosure* - I won't wade into this, it's the less interesting part of the conversation and not my forte. In sum, there will be less burden on the crown to disclose technical records such as breathalyzer maintenance logs, etc.

*2. Closing 'loophole' defences* - There are two big ones here. One is the 'last drink' or 'bolus drink' defense. The way this works is this. I'm our on patrol, and I see a car leave a bar, so I follow it for a few blocks. In the next 45 seconds I see it blow a stop sign and cross the centre line twice. I pull it over to begin an impaired driving investigation. Over the next ouple minutes I run the license and registration, confirm the car is not stolen, confirm the driver is licensed and authorized to drive and not subject to any warrants or conditions or officer safety alerts, I shine my flashlight into the car a bit, and I interact briefly with the driver. In doing so, I note that she has a moderate smell of beverage alcohol from her breath. I have her step out of the car to isolate the smell from anything within the car, and yup, she still smells of beverage alcohol. I form a suspicion that she's operating a motor vehicle with alcohol in her body. I read her a roadside breath demand, retrieve my ASD from my car, take a couple notes, update dispatch, turn on my audio recorder. So we're 4 or 5 minutes in potentially at this point. I always ask someone before an ASD when their last alcoholic beverage was- I need to wait 15 minutes from last drink to test to eliminate mouth alcohol. She says she had one beer two hours ago, so I go ahead. The ASD test itself is quick and easy. A minute later (six minutes in total for this example- a totally run of the mill one) the ASD reads 'fail'. I show her the screen, tell her it reads fail, and inform her she's under arrest for impaired operation and that she needs to come back to the police station and give samples into an approved instrument. Over the course of the next couple of hours all of that happens, plus she talks to counsel, etc. Ultimately the test comes back with two readings at 130mg of alcohl per 100 ml of blood (mg%) and 120 mg%. A solid case of impaired over 80, I lay the charge, give her a promise to appear in court in a couple months, and send off the file to crown.

She pleads not guilty. In trial she gets two of her friends to come and testify. They say that just before she left the bar she fired back two shots of Jack and pounded a beer. Her lawyer then adduces that *at the time I pulled her over, she was not actually impaired*. He raises that argument that while she had that liquor in her stomach, it had not yet absorbed into her blood stream and consequently was not impairing her ability to drive. She admits looking at her phone a couple of times while driving to explain the driving behaviour. He claims that the ASD reading of 'fail' was from the mouth alcohol residual from the last shots she pounded, and caused a 'fail'. He further argues that in the hour and twenty minutes it tok to get her to the station, search her, get her phone call with a lawyer, the 20 minute observation period before the first test, and then the test process, that in THAT time the alcohol in her stomach continued to absorb into her body, and that she WAS over 80 at time of testing, but NOT an hour and twenty minutes earlier when she was driving. Due to reasonable doubt, she is acquitted. Yes, this is a real defense- it is acceptable to stymie an impaired driving investigation under exactly the circumstances I just described. I lost one to this a while ago. It was total BS, she was tanked, but she paid about 20 grand to get a lawyer to coach her through this one. The crux of the defense is Just before I hit the road I had several more drinks and the cop got me right away before I was actually drunk." You tell me if you want that person sharing the road with your friends and family.

The other is the 'intervening drink defense'. I get a call for a motor vehicle collision. I arrive on scene to find two cars pretty banged up. One guy sober, the other pretty wobbly. The sober guy says the other one blew through a red light, he couldn't dodge him on time, and they collided. He says that as soon as the other driver got out of the car, he grabbed a mickey of fireball from the back and chugged it, then tossed the bottle into the woods somewhere. I search but can't find the bottle. In this instance, a driver who knows he was probably driving drunk knows enough about drunk driving law that he knows we cannot get him for impaired if after the time of driving he consumed alcohol, since we can no longer reliably test how much alcohol was in his blood. If I had the bottle and can prove it went from full to empty, *maybe* I could get a toxicologist to extrapolate how much alcohol he consumed, and work back using his body mass to determine his BAC at time of driving, but in this case (and nearly every case) I don't have enough for that. This has happened many times. In one really notorious case a police officer here in Canada pulled exactly this stunt. It's also totally common in impaired hit and runs- someone gets in an accident, scurries home, and runs inside and has a couple beers.

Both of these defences completely defeat the will of Parliament and the expectations of the public. The new provisions of the proposed law would extend the 'over 80' offense to make it illegal to be over 80 within two hours of driving, UNLESS you consume alcohol after driving, AND you have no reasonable expectation that the police will be investigating you for anything driving related, AND if after breath testing your BAC as extrapolated by a toxicologist is consistent with the amount yo said you drank and with having been under 80 at tie of driving. It's wordy, but basically it closes those loopholes. The reality is that a drunk driver who has been in an accident KNOWS they've been in an accident, and knows they need to stick around. Failing to do so will no longer reliably defeat police investigating your impaired driving. If we find you four blocks away walking away from the scene drinking a beer, you're still hooped. 

*3. The compulsory roadside ASD testing*

This is the contentious part of the bill. Right now for me to administer an ASD test, I need to reasonably suspect that within the past three hours you have operated a motor vehicle, and that you have alcohol in your body. Judges want the smell of beverage alcohol where possible, but witnesses to consumption, open liquor in the motor vehicle, or of course admission to consumption (Our favourite lie- "I had two beers") will all fly. If I have this suspicion, we're doing a roadside breath test. IF you've actually just had two beers, you're good to go. If you blow a 'fail' (calibrated at over 100mg% rather than 80, to allow for time to get back to the station for tests and still be over 80), in most cases you're immediately arrested for impaired, though BC offers a different option for first offenders. In pretty much every jurisdiction, between 50mg% and 99mg%, you blow a 'warn', and will face short term license suspensions, potentially escalating- eg in Ontario your first is three days, your second is seven days, your third is 30 day).

The ASD is used to bring us from 'reasonable suspicion' to 'reasonable grounds to believe a person is committing an offense'. E.g., it takes me from 'I think you might be drunk driving' to 'I think you're probably drunk driving'. That gives me what I need to arrest for impaired driving and bring one back to the station for breath samples. The roadside breath test does NOT count as evidence of BAC since it does not self-calibrate against a known alcohol standard as part of every test sequence. It is considered reliable enough to justify the ongoing detention of s suspect for enough time to get that breath sample from the approved instrument.

The ASD is a phenomenal tool. Seasoned drinkers can be really good at not showing the effect the alcohol is having on them, yet come in at absurdly high levels of BAC. The inside of a car may smell like cigarette smoke or perfume that masks the smell. An officer might have a stuffy nose from a cold or from working outside in the winter for a good length of time. Lots of things can make it difficult to reach the reasonable suspicion of alcohol in the body. This portion of the newly proposed law intends to eliminate that obstacle. For comparison's sake, Australia has this already, and it's very effective. Some American states require a breath test on demand as a condition of having a driver's license. Canada presently has some of the most lax criminal impaired driving laws in the developed world, which is part of why the provinces have had to fill in the gap with administrative sanctions.

As for whether this could survive Charter challenge under S. 8 against unreasonable search and seizure- that's up in the air, and no doubt will immediately be the subject of case law. Some of the most illuminating case law on this is Goodwin v. B.C. which challenged the British Columbia Immediate Roadside Prohibition scheme all the way up tot he Supreme Court. (it was upheld). The decision text includes some interesting analysis of the intrusiveness of roadside ASD testing, the consideration of judicial oversight, and the compelling public interest in fighting drunk driving.  It's an interesting read but does not allow one to make a clear and confident prediction about how this would go in the criminal sphere versus administrative. A lot of time is spent in trial litigating whether an officer had sufficient grounds for an ASD demand. If they can argue that it wasn't clear enough that he or she did, the entire case can potentially be thrown out, even if the person subsequently blew well over- factually, they were drunk as a skunk, we we see technical legal defenses used to exclude perfectly sound evidence. This new law is intended in large part to avoid that. You exercise the privilege of driving, you accept the risk that you may need to blow.

Within police circles opinion on this is split. Generally I'd say most of us are favourable to it as a way of helping minimize loophole defences, and of helping to detect and interdict drunk drivers who aren't plainly showing the effects of alcohol. Some cops of course are completely against the compulsory ASD provision on the liberty grounds, and that's totally OK. In practice, if this passes, you won't see much of a change on the road- we simply don't have the time or resources to make everyone blow. In my case, I would likely be using it as a screening tool where I see observed driving infractions during 'drinking hours'. I would not be using the 'pull someone over to verify their license' provisions in provincial law to go fishing, but if I'm at the car window anyway because someone did something stupid, I might go with a quick breath test instead of writing them a ticket, releasing them with a warning for the driving infraction as long as they blow under. I can do a breath test and have them on their way faster than I can write up a ticket. I suspect you would see something similar from most police. I would probably do a few more breath tests per shift, but only in cases where I would be pulling someone over for poor driving anyway, or if they've been in an accident.

I am certain of one thing: Our existing impaired driving laws do not effectively deter drunk drivers. The odds of getting caught are very low, and we see a constant stream of lives destroyed by the poor decisions of others. If this law means I'm less likely to wake up a family at 4 a.m. to tell them their daughter is dying in hospital from an impaired driver, I'm all for it. I will of course respect whatever the courts end up doing with this.


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## GAP (16 Apr 2017)

excellent post....thank you


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## Loachman (16 Apr 2017)

Brihard said:
			
		

> I am certain of one thing: Our existing impaired driving laws do not effectively deter drunk drivers. The odds of getting caught are very low



Laws themselves tend to have very little deterrent value, in my opinion. Chance of detection ranks much higher. I'd be happier if penalties were halved and roadside stops doubled.


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## brihard (16 Apr 2017)

Loachman said:
			
		

> Laws themselves tend to have very little deterrent value, in my opinion. Chance of detection ranks much higher. I'd be happier if penalties were halved and roadside stops doubled.



Going rate for a criminal conviction for impaired is $1300 fine and a year's driving prohibition for a first offence, 30 days jail / 2 year prohib for second offence, and 120 days jail / 3 year prohib for third and subsequent offences. Now, that's just simply the criminal court side of things. The provinces may stack additional suspensions or vehicle impounds on top, or alternatively may have ignition interlock programs to get your license back sooner and to encourage guilty pleas. 

There are a lot of repeat offenders, and even that's bearing in mind that most drunk drivers don't get caught. In one case I ended up stopping a truck on an uphill segment of road. Instead of puttig it in park, he managed to reverse his pickup right into my cruiser. Good evidence, that. When I got to the window, I determined that a) he was hammered, and that b) I had charged him about a week and a half ago for impaired and he was still awaiting court. Good times. I think he ended up doing 150 days total. But generally speaking the punishment for impaired driving, aprticularly first offences is quite low. If you want my opinion, a first offense should land you a week in jail, with the option to be served intermittently on weekends if you work or go to school. There's a bit more of a psychological punch there.


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## Loachman (16 Apr 2017)

Granted, I'd not made allowance for repeat offenders in my last, but my main point is that the chance of being caught is, for most people, a much more important factor than fines or jail as most think that the odds are in their favour. Increase roadside checks during prime drinking times and the number of impaired drivers out and about should drop. That's rather more labour-intensive, though.


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## brihard (16 Apr 2017)

Loachman said:
			
		

> Granted, I'd not made allowance for repeat offenders in my last, but my main point is that the chance of being caught is, for most people, a much more important factor than fines or jail as most think that the odds are in their favour. Increase roadside checks during prime drinking times and the number of impaired drivers out and about should drop. That's rather more labour-intensive, though.



Absolutely. I just can't side with dropping the penalties either. I don't believe current sanctions match the severity of the offense. The recklessness many normal people take towards it suggests it's barely even viewed as properly criminal, even though it unquestionably is.

Most drunk drivers are normal people who on occasion are stupid and reckless, and put others at tremendous risk- but whose behaviour is also very easily susceptible to being corrected and deterred. Make it significantly easier to detect drunk drivers, make it harder to find loophole defences to guilty fact, and impose a sentence that will make people realize the severity of their actions while still allowing normal people to work and go to school, and we might see more of a dent made.


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## ModlrMike (16 Apr 2017)

It may be splitting hairs, but how does full time mandatory breath sampling differ from holiday seasonal check stops?


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## brihard (16 Apr 2017)

ModlrMike said:
			
		

> It may be splitting hairs, but how does full time mandatory breath sampling differ from holiday seasonal check stops?



At a check stop, as at anywhere else, police can only demand a roadside breath test if they have reasonable suspicion that you are operating a motor vehicle with alcohol in your body. The game hanger with this bill is police will be able to demand a roadside breath test without any underlying suspicion. Essentially the government is saying 'what we have isn't working, we need to give police more power to detect this in as non-intrusive a manner as we can'. While I agree, I also understand the inidividual liberty argument on the other side of the coin... I just disagree.


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## PuckChaser (17 Apr 2017)

Found this interesting piece at the bottom of a summary article on the new legislation:

http://news.nationalpost.com/news/canada/canadian-politics/pot-brownies-federal-taxes-and-more-what-isnt-in-the-liberal-marijuana-legalization-bill



> A new law tabled at the same time as the Cannabis Act says police who suspect a driver has consumed drugs can compel a saliva sample, and further to that, a blood sample and other tests.
> 
> Specific limits are being proposed for regulation, ostensibly based on “careful consideration of the available scientific evidence”: the presence of two to five nanograms of THC (a chemical present in weed) in a millilitre of blood would be a fineable offence, and more THC could result in more serious prosecution.
> 
> But the government’s own cannabis task force reported in November that “more research is needed to help define an acceptable per se limit for THC” and “while scientists agree that THC impairs driving performance, the level of THC in bodily fluids cannot be used to reliably indicate the degree of impairment or crash risk.” The task force added THC affects different users in different ways, and the chemical can stay in someone’s system for days or weeks after intoxication has worn off.



Seems like we're trading one set of loopholes in the law for alcohol, for another set for THC. How many drug drivers are going to get off because they can provide reasonable doubt because "THC effects me differently".


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## ModlrMike (17 Apr 2017)

Brihard said:
			
		

> ... I also understand the individual liberty argument on the other side of the coin...



Yes, I'm challenged to understand how removing the presumption of innocence is a good thing.


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## Stoker (17 Apr 2017)

PuckChaser said:
			
		

> Found this interesting piece at the bottom of a summary article on the new legislation:
> 
> http://news.nationalpost.com/news/canada/canadian-politics/pot-brownies-federal-taxes-and-more-what-isnt-in-the-liberal-marijuana-legalization-bill
> 
> Seems like we're trading one set of loopholes in the law for alcohol, for another set for THC. How many drug drivers are going to get off because they can provide reasonable doubt because "THC effects me differently".



So how accurate are these testers for TCH? is the science proven? I believe I read that Nova Scotia they have been trialing such a test, interestingly enough more people in NS cause deadly crashes due to drugs than alcohol.  I think it still be harder to detect a person impaired from using than someone from drinking. If they start "affects me differently" then a zero tolerance approach should be implemented. It will be interesting how this all plays out, with the test detecting TCH from 4 to 6 or greater hours after use depending on the test it will be hard to nail down exactly when they used and how much in the blood unless they are blood tested.


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## ModlrMike (17 Apr 2017)

Some of the science you seek is here: Human Cannabinoid Pharmacokinetics

The link is not meant to turn this discussion into another pro-con disaster, rather to point the questioner to one possible answer. For that reason, I have not rendered an opinion.

Mods: I'm happy to have this taken down if you think we are veering off course.


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## Stoker (17 Apr 2017)

ModlrMike said:
			
		

> Some of the science you seek is here: Human Cannabinoid Pharmacokinetics
> 
> The link is not meant to turn this discussion into another pro-con disaster, rather to point the questioner to one possible answer. For that reason, I have not rendered an opinion.
> 
> Mods: I'm happy to have this taken down if you think we are veering off course.



Thanks and yes I do not what a repeat.


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## brihard (17 Apr 2017)

ModlrMike said:
			
		

> Yes, I'm challenged to understand how removing the presumption of innocence is a good thing.



It's not removing the presumption innocence. Presumption of innocence refers to the presumption when facing charges. A roadside breath test doesn't lead to charges, it just builds evidence that may lead to providing a breath test at a police station that is more precise and *could* lead to charges. Basically it's a more reliable version of me giving a good sniff at the driver's open window that won't be confounded by cigarettes, perfume, etc. driving on public roads is a licensed and regulated privilege with significant public safety impact. It's not necessarily outside the reasonable expert of state power to require drivers be subject to breath tests in order to attempt to make a meaningful dent in impaired driving. Too many people just aren't getting it.


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## Kat Stevens (17 Apr 2017)

Seems like a vehicular version of stop and frisk to me.


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## PuckChaser (17 Apr 2017)

Just to play Devil's advocate, how's random breath screening without reasonable grounds any different than the "carding" that's been so vilified in the media?


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## RCDtpr (17 Apr 2017)

This won't really change much (at least here in Ontario) when it comes to stopping vehicles.

Under the Highway Traffic Act, police in Ontario can stop you to verify 4 things regardless of whether or not a violation of the act has occurred:

-The driver has a valid drivers licence
-The vehicle is mechanically fit
-The vehicle is insured
-Sobriety

The only thing this would change is that evidence isn't summarily tossed out of court on technicalities etc. When it comes to breath samples.

I (like 99%) of cops in this province have more pressing matters than arbitrarily making someone blow into a machine that I know will come back with a legal result.  Regardless if the law changes, if I'm making you blow into an ASD it's because I have reasonable suspicion to believe you're impaired.

Why would I waste time making a sober person blow into the ASD when I could be looking for an impaired driver?

Just my .02


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## brihard (17 Apr 2017)

Kat Stevens said:
			
		

> Seems like a vehicular version of stop and frisk to me.



No, because it doesn't grant any new authority to stop anyone. It still has to be a legal vehicle stop. 



			
				PuckChaser said:
			
		

> Just to play Devil's advocate, how's random breath screening without reasonable grounds any different than the "carding" that's been so vilified in the media?



'Vilified' is right. Carding is basically talking with people, and subsequently writing down who they were, where and when, and things like vehicle description. Hugely useful tool for establishing pattern of life and association networks for gangs and organized crime. However in the case of 'carding', street checks, or what have you, they're free to just flip you the bird and walk away. Walking in a public place is not a regulated activity. Operating a motor vehicle on a public road is. Same logic applies to the 'stop and frisk' comparison above.

Anyway- we'll see if the law passes in current form, and what survives legal challenge. Even if compulsory ASD doesn't survive, the closure of loophole defenses will be a big deal. Other options could include giving police statute authority to administer a roadside test to any driver involved in an accident, or observed in a 'rules of the road' moving traffic violation, to eliminate random license/insurance checks (a power under provincial law) as an opening move in a fishing expedition.

As ExRCDCpl says, we don't have time to go making everyone blow and won't waste our time with same. We definitely need the ability to have people more readily blow after accidents or in the face of poor driving but where we lack a distinct smell of alcohol.


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## Humphrey Bogart (17 Apr 2017)

I for one am happy they've closed the loopholes.  I had a soldier get off on one of these technicalities for what was his third violation.  He hired a good lawyer who got the charges thrown out, even though he was guilty as sin.  

Luckily he was pulled over four months later for the exact same reason.  A gigantic administrative burden and a mouth piece to boot.  I enjoyed seeing him punted.


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## PuckChaser (17 Apr 2017)

I don't think anyone is upset the loopholes are being closed. More upset at the apparent erosion of due process. Keep in mind, this is the same Liberal government that was up in arms over C-51 and its apparent erosion of rights.


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## Bruce Monkhouse (17 Apr 2017)

Isn't the old phrase "driving is a privilege,  not a right" apply here?


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## trooper142 (17 Apr 2017)

PuckChaser said:
			
		

> I don't think anyone is upset the loopholes are being closed. More upset at the apparent erosion of due process. Keep in mind, this is the same Liberal government that was up in arms over C-51 and its apparent erosion of rights.



It's not an erosion of due process, as the accused would still be compelled to court to answer to the charge.  No one is suggesting straight to prison without an opportunity to defend themselves, simply allowing police officers a greater chance of catching impaired drivers, which I think everyone can agree, are a menace to everyone who shares the road.

Quote from Global News report:



> The government says today’s laws allow many impaired drivers to escape detection at check stops. The changes make it plausible that police could demand a breath sample from every driver going through a road block.
> 
> The changes, they say, would also cut back on litigation surrounding the question of whether or not the officer has “reasonable suspicion” to demand a breath sample.




The courts have been pretty clear on whether the ASD is arbitrary, and have ruled time and again the detention at the side of the road on reasonable suspicion alone is justified due to the overreaching threat impaired drivers pose to the general public.

With all that being said, I anticipate the law as it's written will not survive legal challenges, and we won't see what the courts deem acceptable for some years to come.


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## the 48th regulator (17 Apr 2017)

As you all know I have my medical cannabis prescription.

One thing I will say, I will not operate a vehicle when I medicate,  Whether recreational or medical, if it impairs your judgement, even in the slightest, you are a danger to others on the roadway.  Period Ful stop.

Do the laws and technology need to change, yes eventually as we explore more how this affects humans just like we have with alcohol, find a threshold line that we can equally decide impairment, regardless what the person taking Cannabis says.

Public safety is the priority, period.

dileas

tess


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## the 48th regulator (18 Apr 2017)

Before anyone says anything to me personal, see above about my views.  I am posting this for information only, and yes it is American, not Canadian article.

Stoned drivers are a lot safer than drunk ones, new federal data show

dileas

tess


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## Halifax Tar (18 Apr 2017)

the 48th regulator said:
			
		

> As you all know I have my medical cannabis prescription.
> 
> One thing I will say, I will not operate a vehicle when I medicate,  Whether recreational or medical, if it impairs your judgement, even in the slightest, you are a danger to others on the roadway.  Period Ful stop.
> 
> ...



Well said 48th.


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## the 48th regulator (19 Apr 2017)

Halifax Tar said:
			
		

> Well said 48th.



Thank you,

Over the years I have had to gauge myself when on my medication (Not Cannabis) so I know that any kind of prescribed meds, you really need to understand what the official side effects are, and especially what they do to you personally.  This gave me the heads up, when I started to medicate with Cannabis.  I decided, treat it like any other, and if it affects me, even the slights; STOP.

Unfortunately, sometimes I need that STOP when I am posting online ...... :/    ;D

dileas

tess


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## Fishbone Jones (19 Apr 2017)

I have no problem with the legislation either.

However, if we're going to piecemeal every law, to deal with each specific drug we're still going to have a bunch of confusing, possibly illegal laws.

The way I see it, you have to cover them all. 

You can't vilify alcohol and cannabis, while letting people drive around on tranquilizers, opioids and other drugs that cause impairment..

Here's the conjecture, some what ifs and where I (playing Devil's Advocate) think they may have a problem. In order to make the law non discriminatory, we'll have to establish tests, limits and screening criteria and force everyone, taking any kind of impairing substance to have a roadside to determine their ability to drive. We'll need to decide the impairment based on amounts of a specific drug compared to body weight and blood toxicity. People that operate vehicles or equipment, while taking medication that states. "Not to be taken if operating machinery, may cause drowsiness" should also be charged. That's only logical and fair, right? No Charter challenges allowed. After all when the greater good is involved, individual rights are forfeit.

These are the types of arguments that the Crown and challenging lawyers and legislators from all levels will have to engage with.

I said previously, it will become legal on 010001JUL18. There will likely be a number of Charter challenges on 020001JUL18.

Like John, my day starts with "What do I have to do? Do I need to drive anywhere or is this a day I can medicate fully? Have I taken a CBD dominant strain or a THC one? Lot's of variables on the way to making a decision to drive or not.

I don't know what it's going to look like in 2018, but I don't think it's going to resemble anything like we've been discussing. It's something I'll be watching, but not being capable of influencing any kind of law in Canada, I'm not going to worry about all the bluster from the House until we start getting down to the short strokes.

We knew from the beginning, with the appointment of Blair to the file, that nothing was going to be easy and that there would be no rhyme or reason to what they dreamed up. Put in the hands of a biased, virulent, anti cannabis cop, instead of someone with a more rounded and open scientific, approach.

But, like I say, this is only a jumping off spot and no plan survives first contact.

My  :2c:


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## brihard (19 Apr 2017)

Impairment by other drugs has been illegal for a long time too. With cannabis, what's new here is an offense covering specific concentrations in the blood, similar to alcohol. The logic there is the same as with alcohol- at a certain concentration, research indicates that certain cognitive processes are impaired whether obviously noticeable or not. They are beginning to have those numbers for marijuana. The law provides for the same with other drugs once the science catches up, as it leaves those numbers to be outlined in regulation versus legislation.


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## PuckChaser (19 Apr 2017)

In your experience, how do conviction rates compare between alcohol and drug impairments? Are drug impairments harder to prove?


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## Hound Dog (19 Apr 2017)

PuckChaser said:
			
		

> In your experience, how do conviction rates compare between alcohol and drug impairments? Are drug impairments harder to prove?



Drug impairments are generally much harder to prove. Impaired cases always come down to the testimony of the arresting officer, and/or anyone else who witnessed the accused driving. There are a plethora of arguments that can be made against the allegation that a person was impaired, and depending on how well the officer/witnesses testify they may be quite persuasive - or not. With alcohol, though, there are telltale signs, for example, a smell of liquor on a person's breath generally indicates that they consumed alcohol. That combined with other signs, like slurring speech and poor driving, may cause the court to infer that they are impaired. Usually, it provides reasonable grounds to demand a breath sample, and at that point the person's blood alcohol content can be ascertained. With alcohol, an impaired investigation often leads to a drive over 80 investigation.

Now, take away those signs. You have someone who swerves across road lines, accelerates/decelerates for no reason and doesn't signal to turn. They are pulled over but their car doesn't smell of anything and the observation is that they are lethargic. The officer also notes their pupils are dilated. They are possibly impaired by a drug, but the officer isn't in a position to demand a blood test. Best case scenario, there is a Drug Recognition Expert (DRE) nearby who can do an evaluation, but even then all you have is an opinion. Without that, all you have is the officer's observations. His defence lawyer gets up and argued the following: my client was driving in an unfamiliar area and was using his cell phone as a GPS. Because he was paying attention to his phone, he crossed over the lane markings and didn't maintain a steady speed. His pupils were dilated because he just came off a 12-hour shift and is extremely tired, plus it's night and the officer shines his flashlight in my client's eyes suddenly. Now, maybe you don't believe him, but that's reasonable doubt.

I've been on both sides of this coin. I'm a prosecutor now and used to be with legal aid. Impaired cases are challenging and often frustrating. They are also prolific. They take up massive amounts of court time because there is always something to argue. And these new laws won't change that; it will only change what arguments are made.


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## the 48th regulator (19 Apr 2017)

A 'significant erosion of rights': Sask. defence lawyer on proposed impaired driving laws



*Bob Hrycan says Prime Minister Justin Trudeau is stripping rights enshrined by his father*

_By Stefani Langenegger, CBC News Posted: Apr 17, 2017 3:03 PM CT Last Updated: Apr 17, 2017 3:03 PM CT _

A 'significant erosion of rights': Sask. defence lawyer on proposed impaired driving laws
Bob Hrycan says Prime Minister Justin Trudeau is stripping rights enshrined by his father

By Stefani Langenegger, CBC News Posted: Apr 17, 2017 3:03 PM CT Last Updated: Apr 17, 2017 3:03 PM CT
The proposed federal legislation would allow police to command a breathalyzer from drivers regardless of whether they suspect the person has been drinking.

The proposed federal legislation would allow police to command a breathalyzer from drivers regardless of whether they suspect the person has been drinking. (CBC)
1052 shares

A Regina lawyer says proposed impaired driving laws introduced by the federal government last week are a terrible "step backwards" for the rights of all Canadians.

Bob Hrycan says it is not lost on him that it was the current Prime Minister's father, Pierre Trudeau, who made sure the country had a Charter of Rights.

"He implemented the Charter as a means to protect citizens from the overreach of government," Hrycan said. "What Justin Trudeau is doing is essentially advancing government overreach. I think that's unfair."
Bob Hrycan

Regina lawyer Bob Hrycan says the proposed federal legislation governing impaired driving would significantly erode the rights of Canadians. (Mike Zartler/CBC)

Right now, Hrycan says drivers are protected from unfair searches — including complying with a breathalyzer — unless a police officer has a reasonable suspicion that the driver has been drinking.

The new law would remove that requirement for officers.

"Not only can they pull you over for any reason, they can demand breath samples from you for no reason," Hrycan said.

"So that's a significant erosion of rights."

Saliva testing for drugs

When it comes to testing for drug use, police must still have a "reasonable suspicion" that a driver has been using drugs before requiring a saliva test.

However, Hrycan said the threshold of two nanograms of THC (the main psychoactive compound in cannabis) could be in a person's body for weeks after they were actually impaired.

"That means that if you occasionally smoke a joint you can be pulled over, detained and subject to screening within 10 days after smoking that joint," Hrycan said. "That's fundamentally unfair."

Hrycan says there is no doubt the new laws will face a constitutional challenge, but until those cases work their way to the Supreme Court he says the federal government has created more confusion about impaired driving in Canada.

"We're not going to have more certainty," Hrycan said. "We're actually going to have more uncertainty. And that's regretable."

dileas

tess


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## Journeyman (20 Apr 2017)

Hound Dog said:
			
		

> You have someone who swerves across road lines, accelerates/decelerates for no reason, and doesn't signal to turn.


Ah, you're in Kingston.   :nod:


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## Lumber (20 Apr 2017)

PuckChaser said:
			
		

> Found this interesting piece at the bottom of a summary article on the new legislation:
> 
> http://news.nationalpost.com/news/canada/canadian-politics/pot-brownies-federal-taxes-and-more-what-isnt-in-the-liberal-marijuana-legalization-bill
> 
> Seems like we're trading one set of loopholes in the law for alcohol, for another set for THC. How many drug drivers are going to get off because they can provide reasonable doubt because "THC effects me differently".





			
				Brihard said:
			
		

> The other is the 'intervening drink defense'. I get a call for a motor vehicle collision. I arrive on scene to find two cars pretty banged up. One guy sober, the other pretty wobbly. The sober guy says the other one blew through a red light, he couldn't dodge him on time, and they collided. He says that as soon as the other driver got out of the car, he grabbed a mickey of fireball from the back and chugged it, then tossed the bottle into the woods somewhere. I search but can't find the bottle. In this instance, a driver who knows he was probably driving drunk knows enough about drunk driving law that he knows we cannot get him for impaired if after the time of driving he consumed alcohol, since we can no longer reliably test how much alcohol was in his blood. If I had the bottle and can prove it went from full to empty, *maybe* I could get a toxicologist to extrapolate how much alcohol he consumed, and work back using his body mass to determine his BAC at time of driving, but in this case (and nearly every case) I don't have enough for that. This has happened many times. In one really notorious case a police officer here in Canada pulled exactly this stunt. It's also totally common in impaired hit and runs- someone gets in an accident, scurries home, and runs inside and has a couple beers.



I smell (lol) an intervening "joint" defence.

Buddy's high as the rafters and gets in a jolly roll-over, crawls out the smashed windscreen and lights up a fatty. Continues smoking joints until the police arrive. How can they prove he was impaired while driving if he's lightin' up right then and there?

#acquitted


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## mariomike (20 Apr 2017)

Brihard said:
			
		

> In one really notorious case a police officer here in Canada pulled exactly this stunt.



http://www.theglobeandmail.com/news/british-columbia/court-hears-claim-rcmp-officer-drank-vodka-to-beat-drunk-driving-charge/article535569/
"...that people who have an accident while driving after drinking can defeat an impaired charge if they have something to drink after the accident, and before they are tested by police."

It was not unheard of for some motorists to permanently stash a mickey in the trunk "to open and drink only in case of an accident".  
They could remain on scene, and drink while sitting on the curb.


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## shawn5o (19 Jul 2017)

mariomike said:
			
		

> http://www.theglobeandmail.com/news/british-columbia/court-hears-claim-rcmp-officer-drank-vodka-to-beat-drunk-driving-charge/article535569/
> "...that people who have an accident while driving after drinking can defeat an impaired charge if they have something to drink after the accident, and before they are tested by police."
> 
> It was not unheard of for some motorists to permanently stash a mickey in the trunk "to open and drink only in case of an accident".
> They could remain on scene, and drink while sitting on the curb.



I don't think that works anymore. Blood testing (I think) can establish how many drinks and when drinking started.


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## shawn5o (19 Jul 2017)

ModlrMike said:
			
		

> Yes, I'm challenged to understand how removing the presumption of innocence is a good thing.



It gets worse

"OTTAWA -- The Supreme Court of Canada is upholding procedures that permit shortcuts for allowing a motorist's breathalyzer test results into evidence -- even in cases where demanding the breath sample may have been unlawful."
http://www.ctvnews.ca/canada/supreme-court-of-canada-upholds-procedure-for-allowing-breathalyzer-evidence-1.3491387

and

"Legislation allowing alcohol testing of drivers without prior suspicion tabled on Parliament Hill
If Bill C-46 is passed into law, “police officers who have an approved screening device on hand would be able to test any driver they lawfully stop, even if the officer does not suspect the driver has alcohol in his or her body,” the federal justice department states on its website."
http://www.canadianunderwriter.ca/insurance/legislation-allowing-alcohol-testing-drivers-without-prior-suspicion-tabled-parliament-hill-1004112201/

I understand that police can stop anyone operating a motor vehicle and I am OK with that.

But i don't want to see our rights eroded by stealth


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## Rifleman62 (19 Jul 2017)

How often are the approved screening devices calibrated and recorded in a log book?

When marijuana is legalized, there will be problems with testing. In the US (all US States???) if police smell it during a vehicle stop, the occupants and vehicle can be searched.


http://www.canadianunderwriter.ca/legislation-regulation/new-impaired-driving-laws-let-majority-stoned-drivers-escape-prosecution-advocacy-groups-1004117528/

*New impaired driving laws could let ‘majority of stoned drivers’ escape prosecution: advocacy group*s


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## RCDtpr (19 Jul 2017)

shawn5o said:
			
		

> It gets worse
> 
> "OTTAWA -- The Supreme Court of Canada is upholding procedures that permit shortcuts for allowing a motorist's breathalyzer test results into evidence -- even in cases where demanding the breath sample may have been unlawful."
> http://www.ctvnews.ca/canada/supreme-court-of-canada-upholds-procedure-for-allowing-breathalyzer-evidence-1.3491387
> ...



Just to be clear.......you are aware we can demand an ASD already without reasonable grounds to believe you're impaired right?  Reasonable suspicion and reasonable grounds are two very different things and suspicion is all that is required for an ASD demand whereas reasonable grounds are what's required to make an arrest.

Either way......no police officer anywhere is going to waste their time administering an ASD if there's no reason to think a person will fail.  There is absolutely no benefit to me by making you blow into an ASD that I know you'll pass.


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## RedcapCrusader (19 Jul 2017)

Rifleman62 said:
			
		

> How often are the approved screening devices calibrated and recorded in a log book?
> 
> When marijuana is legalized, there will be problems with testing. In the US (all US States???) if police smell it during a vehicle stop, the occupants and vehicle can be searched.
> 
> ...



States that have recently legalized have had their state courts rule that the smell of marijuana is no longer sufficient probable cause/reasonable suspicion for a search. 

The same will likely occur here.


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## brihard (19 Jul 2017)

Rifleman62 said:
			
		

> How often are the approved screening devices calibrated and recorded in a log book?



They are calibrated against an alcohol standard monthly.


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## ModlrMike (19 Jul 2017)

LunchMeat said:
			
		

> States that have recently legalized have had their state courts rule that the smell of marijuana is no longer sufficient probable cause/reasonable suspicion for a search.
> 
> The same will likely occur here.



So kind of how the smell of alcohol thing works then?


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## RedcapCrusader (20 Jul 2017)

ModlrMike said:
			
		

> So kind of how the smell of alcohol thing works then?



Can't get a search warrant for smell of alcohol, but I can demand a breath or blood sample.


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## shawn5o (20 Jul 2017)

ExRCDcpl said:
			
		

> Just to be clear.......you are aware we can demand an ASD already without reasonable grounds to believe you're impaired right?  Reasonable suspicion and reasonable grounds are two very different things and suspicion is all that is required for an ASD demand whereas reasonable grounds are what's required to make an arrest.
> 
> Either way......no police officer anywhere is going to waste their time administering an ASD if there's no reason to think a person will fail.  There is absolutely no benefit to me by making you blow into an ASD that I know you'll pass.



Good points - Thanks exRCD


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## Rifleman62 (20 Jul 2017)

How often are the approved screening devices calibrated and recorded in a log book?



			
				Brihard said:
			
		

> They are calibrated against an alcohol standard monthly.



The reason I asked was that in BC several years ago the RCMP could not prove the ASD were calibrated and when.


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## brihard (15 Aug 2020)

Reviving a necrothread with the latest.

Mandatory Alcohol Screening has survived its first direct challenge on Charter S.8 grounds for unreasonable search and seizure.

BLUF: The constitutionality of MAS was challenged under S. 8 and 9 of the Charter in a voir dire in Saskatchewan provincial court. The judge found no breach of S.9. The judge found a breach of S.8, but it was saved by S.1. The evidence flowing from the MAS test was admitted. This decision is not binding on other cases or other jurisdictions, but there is now a well articulated Charter analysis of MAS

More detail: The traffic stop (Corman Park Police, Saskatchewan) was completely random, purely for the purpose of checking driver and vehicle fitness. The court's analysis followed the familiar case law in Dedman and Ladouceur. The court found no issues with the stop. A MAS demand was made, the driver blew a fail, and was arrested. He provided a breath sample at the station, which apparently resulted in him being charged with over 80.

Defence filed a number of challenges. One, a challenge under S.9 of the Charter, resulted in the judge finding that there was not an arbitrary detention or arrest. The vehicle stop was well within established statute and common law.

The challenge under S.8 - unreasonable search and seizure - is basically 'the big one' that has been anticipated since MAS was first proposed. The court looked at it and, as would be expected, found that there was a breach of S.8, as the search was, on its face, unreasonable. The court then did a S.1 analysis, applying the Oakes test to see if the law could be saved.

Ultimately the court found that:
- The law pursues a pressing and substantial objective. The court explicitly took note of Parliament's comments in the preamble of the law that amended the impaired driving laws, and basically highlights 'what we were doing wasn't cutting it, and this was the next logical step to try".
- The law is rationally connected to the objective (no difficulty with this one).
- The law is minimally impairing of rights and freedoms; there's discussion of the highly regulated nature of driving, and that prior efforts to eliminate drunk driving have not been successful.
- The infringements on freedom are proportionate to what the law is trying to achieve.

Finally, the court looked at how broadly its scope applies. It found that it can only rule on the constitutionality of MAS in the narrow context of the admissibility of the evidence. A provincial inferior court's ruling isn't binding on other jurisdictions or cases. So, all said, the judge's ruling in this case helps to lay the groundwork for future analysis (and does it quite thoroughly, I think), but doesn't settle the issue for Saskatchewan or elsewhere.

I won't be surprised if we see this one appealed.

http://canlii.ca/t/j9462


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