New drinking and driving rules bring mandatory alcohol screening to Canada

In May, the federal government tabled Bill C-46, which would amend the Criminal Code for impaired driving offences. The proposed changes come on the eve of the government’s legalization of recreational cannabis use, and they include new “legal limit” drug offences, as well as mandatory alcohol screening.

Proponents say that mandatory alcohol screening, for one, will bring Canada into line with other Western nations that have lowered impaired driving charges using this form of screening; but the criminal defence bar cautions that aspects of the new bill may present Charter challenges and further burdens on the courts.

​​“I think, absolutely, we are going to see more impaired drivers before the courts, and a greater strain on the justice system,” says Toronto defence lawyer Daniel Brown.

“Almost exclusively, these [impaired driving] cases are prosecuted in the provincial court system,” where, he says, there is “already a strain on prosecutorial and police resources; these changes will only increase the strain on all of the justice participants.”

Bill C-46 has two parts. Part 1 would add new sections for driving while under the influence of drugs other than alcohol and would come into force on Royal assent, before Bill C-45, the Cannabis Act, comes into force.

Part 2 of the proposed legislation would reform the entire Criminal Code transportation regime and would include all the drug-impaired driving provisions under Part 1 of the bill. It would repeal all the current provisions dealing with transportation offences (ss. 249 to 261) and would come into effect 180 days after Part 1 received Royal assent, in order to allow the provinces time to prepare for its implementation.

Mandatory alcohol screening is the proposed change that seems to be getting the most attention. The “reasonable suspicion” test for the roadside breath test will be eliminated with the introduction of mandatory alcohol screening, under proposed s. 320.27(2). Under current law, a police officer with an alcohol screening device must have grounds to make a demand for a breath test; this would disappear if passed under the new legislation.

Otherwise known as random testing, “the revised title does not change its essence and it remains a random test that can be administered without any grounds,” the criminal justice section of the Canadian Bar Association wrote in its review of Bill C-46, published in September. “What would actually make streets and highways safer are additional resources for police forces,” the report’s authors noted. “Random breath testing (RBT) is likely to lead to more Charter litigation, absorbing significant system resources without substantial results.”

Kyla Lee, who practises with Acumen Law Corporation in Vancouver, is a dedicated impaired-driving defence counsel who was an expert witness before the House of Commons in September on Bill C-46. She expresses concern with the mandatory alcohol screening provision of the proposed legislation for its potential targeting of minorities.

The legislation doesn’t say that mandatory alcohol screening can be conducted only at roadblocks but for “any reason at any lawful traffic stop,” says Lee. “It’s going to have a significant impact on visible minorities,” she adds. “In B.C., we see over-policing of First Nations and Asian communities.” Police still have “subjectivity” in determining where the road checks are set up, and “we see the over-policing in areas for people of colour,” she says, also citing instances of “carding” of aboriginal men in the West and black men in Toronto in particular.

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