Lawyer doubts impaired driving bill will pass
Proposal gives officers power to test drivers for alcohol without reasonable suspicion
Legalizing marijuana was of course the main focus in Ottawa on Thursday, yet at the same time that it announced proposed legislation on the issue, the federal government also indicated it will toughen the laws around driving when impaired by alcohol.
Under the proposed legislation, a police officer will be able to conduct a saliva test on a driver following a legal roadside stop “if they reasonably suspect that a driver has drugs in their body.”
A positive reading would help the officer determine if an offence has been committed and the person would then be subjected to a further test at the police division, likely a blood test.
Officers currently need a “reasonable suspicion” before administering a roadside breath test to a driver suspected of being 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.
However, under the proposed legislation, when it comes to alcohol, offi- cers who have an approved screening device for breath tests on hand when they lawfully stop drivers, such as at check stops, will be able to demand a test without first determining if they have a reasonable suspicion.
The result of a failed test would not automatically lead to a person being charged with an offence, but would mean they would have to go to the police station for further tests.
Criminal defence lawyer Daniel Brown questioned why the government is proposing a different standard — reasonable suspicion to test someone suspected of being impaired by drugs, but no need for reasonable suspicion for someone suspected of being impaired by alcohol.
“Reasonable suspicion is not a high hurdle to overcome in order to demand that somebody provide a sample, and yet it’s a proper screening mechanism so that not all drivers are held up to perform screening tests at the will of the officer,” he told the Star.
He said it would be difficult to see the proposed changes to alcohol-related driving offences survive constitutional scrutiny.
“We’ve certainly heard previous governments who claim that their legislation is constitutional, only to see it overturned in the courts . . . because they don’t meet constitutional standards,” he said. “Having at least some suspicion that a person is involved in drinking and driving, before demanding that they provide breath samples, isn’t an unreasonable standard.”
Dr. Doug Beirness, a senior researcher and policy analyst for the Canadian Centre on Substance Abuse who has studied cannabis use and driving, told the Star roadside saliva tests will also mean an increase in the cost of investigating drug-impaired driving offences.
“Whereas you can do a breath test for a few cents really . . . for oral fluid you’re talking at least $30 per test. That can add up really, really quickly. If we’re going to go the mandatory route, we’re going to still want to be a little bit selective of whom we test.”