Police powers face challenges
Most Canadians know about the new law making cannabis legal, but fewer are aware of sister legislation giving police new powers to target impaired driving, including those driving under the influence of drugs.
The new law has expanded what police can test for, doubled maximum penalties for impaired driving to 10 years and — in a move critics say infringes on people’s constitutional rights — allowed police to conduct breath tests without probable cause.
Bill C-46, the new Impaired Driving Act under the Criminal Code, received royal assent on June 21. Some parts of the new law, including the police power to compel breath tests without probable cause, won’t come into effect until December.
The goal is laudable. Impaired driving is the leading criminal cause of death and injury in Canada and the law strengthens and streamlines ways to protect public safety on the roads. As we count down toward cannabis legalization in October, it is even more important to give police tools to pre-empt and punish those driving under the influence of drugs or alcohol. There is a widely-held, false perception cannabis does not impair driving.
The new regulations create new offences, fines and penalties for drivers impaired by THC, the main psychoactive compound in cannabis. There is a sliding scale of penalties, depending on THC levels and whether cannabis is mixed with alcohol. Fines range from $1,000 to imprisonment for 30 days, or 120 days for repeat offenders. One of the most controversial changes is giving police the power to demand a breath test from drivers without first having reasonable suspicion a person may be under the influence of alcohol. Previously, police had to first have just cause: noticing erratic driving, the smell of alcohol in the car, slurred speech or seeing open alcohol in the vehicle.
There is no question such measures deter and punish impaired driving. Mandatory screening, adopted in other countries such as New Zealand, Australia and in Europe, has been shown to reduce crashes and road deaths. But criminal defence lawyers and civil liberty advocates warn the law will prompt Canadian Charter of Rights and Freedoms challenges which will further clog courts already bogged down with impaired driving litigation. Citing section eight of the charter, that “everyone has the right to be secure against unreasonable search or seizure,” critics argue that demanding a breathalyzer test without reasonable suspicion would violate that right. They also worry a new twohour time frame to conduct a breath test could see people being tested in their homes after leaving their vehicle. If a person has another drink at home and their blood alcohol rate exceeds the legal limit, they could be charged. Criminal lawyers also say random checks could be used disproportionately against minority communities which already face racial profiling.
While we agree police need all the powers that meet Charter standards they can get, we don’t want already busy courts inundated with Charter challenges sure to come. Ottawa should temporarily set aside the provision about police demanding breath tests without need for probable cause, to first ask the Supreme Court to rule on its constitutionality.
An editorial from the Chronicle Herald.