As a result of the recent changes in the law surrounding the sale and use of cannabis, the Government has proposed changes to the law for those who drive while under the influence of drugs, including cannabis. In light of the sweeping reformulation of the law on impaired driving generally, the Government has taken a handlined approach to deal with those who drive under the influence of drugs.
Under the new regime, a peace officer would be permitted to demand that a driver provide an oral fluid sample if they suspect that a driver is driving under the influence of a drug. If the oral fluid sample tests positive for the presence of a drug, the officer would have the requisite “reasonable grounds to believe that an offence has been committed” and arrest the driver. Thereafter, the detained person would be given a demand for a drug evaluation by an “evaluating officer”, or a blood sample.
The new regime would also establish a criterion which classifies the level of cannabis within a driver’s body within the preceding two hours of driving. There are three different classifications of levels which ultimately create three new offences; an offence for each level.
The levels are set by regulation and are based on the amount of THC that is detected in a persons body.
The following is taken from the Government of Canada Website: (https://www.canada.ca/en/health-canada/news/2017/04/backgrounder_changestoimpaireddrivinglaws.html)
- 2 nanograms (ng) but less than 5 ng of THC: Having at least 2 ng but less than 5 ng of THC per millilitre (ml) of blood within two hours of driving would be a separate summary conviction criminal offence, punishable only by a fine. This lower level offence is a precautionary approach that takes into account the best available scientific evidence related to cannabis. This offence would be punishable by a maximum fine of up to $1,000.
- 5 ng or more of THC: Having 5 ng or more of THC per ml of blood within two hours of driving would be a hybrid offence. Hybrid offences are offences that can be prosecuted either by indictment, in more serious cases, or by summary conviction, in less serious cases.
- Combined THC and Alcohol: Having a blood alcohol concentration of 50 milligrams (mg) of alcohol per 100 ml of blood, combined with a THC level greater than 2.5 ng per ml of blood within two hours of driving would also be a hybrid offence.
Having 5 ng or more of THC and having combined THC and alcohol are punishable by a mandatory penalty of $1000.00 for a first offence. Penalties escalate for repeat offenders like our current impaired driving law. The maximum penalties for driving while impaired by drug are identical to the maximum penalties for driving while impaired by alcohol.
There are drastic changes coming to the current impaired driving laws. The proposed legislation will effectively repeal and replace the current law. Here is a list of some of the proposed changes:
1. MANDATORY ALCOHOL SCREENING
- An officer who has an “approved screening device” can demand that a driver provide a sample of their breath into an alcohol screening device to determine their blood alcohol concentration
- The officer need not have any suspicion that the person has alcohol in their system
- In other words, if you’re stopped for a traffic violation, an officer can also ask that you provide a sample of your breath into the “approved screening device” and they do not have to give you a reason why
2. INCREASED PENALTIES
The following is taken from the Government of Canada website (https://www.canada.ca/en/health-canada/news/2017/04/backgrounder_changestoimpaireddrivinglaws.html)
First Time Offenders
- A first offender with a reading of 80 to 119 mg of alcohol per 100 ml of blood would be subject to the current mandatory minimum fine of $1,000
- The mandatory minimum fine for a first offender with a reading of 120 to 159 mg of alcohol per 100 ml of blood would be raised to $1,500
- The mandatory minimum fine for first offender with a reading of 160 mg or more of alcohol per 100 ml of blood or more would be raised to $2,000
- A first offender who refuses testing would be subject to a $2,000 mandatory minimum fine.
- Mandatory prison sentences for repeat offenders would stay the same as they are under the current law – 30 days for a second offence and 120 days for a subsequent offence
Maximum Penalties – no injury or death:
- The maximum penalties for impaired driving would be increased in cases where there is no injury or death, to two years less a day on summary conviction (up from 18 months), and to 10 years on indictment (up from 5 years). The latter would make a dangerous offender application possible in appropriate circumstances.
Offences causing bodily harm:
- Offences causing bodily harm would become hybrid offences allowing the Crown to decide whether to proceed summarily where the injuries are less severe (for example, a broken arm). This will also help to address the issue of reducing court delays because summary conviction proceedings are simpler and take less time.
Maximum Penalties – dangerous driving:
- The maximum penalty for dangerous driving causing death would be increased to life imprisonment (up from 14 years). This is consistent with the maximum penalty for other transportation offences involving death.
3. A NUMBER OF LEGAL DEFENCES ARE NO LONGER AVAILABLE
The proposed legislation prevents defence lawyers from using the following defences:
The bolus drinking or last drink defence
- This is a defence that allows a driver to escape conviction by claiming that they had a large drink immediately prior to driving.
- As a result of thelast drink, the alcohol was not absorbed into their blood when they operated their motor vehicle
- Defence lawyers would call upon the evidence of a toxicologist to provide their scientific opinion that if the driver had a large drink immediately before driving, their blood alcohol concentration would be under the legal limit at the time of driving
- The relevant section in the Criminal Code will no longer read “over 80 at the time of driving”, the offence will be “at or over 80 within two hours of driving”.
The defence “I drank after I drove” …
- As a result of the change in the wording of the offence from “over 80 at the time of driving”, to “at or over 80 within two hours of driving”, the defence that alcohol was consumed subsequent to driving can no longer be used
- Effectively, the proposed timeframe limits the “intervening drink defence”.
- This defence was commonly used when it could be shown that alcohol was consumed after the driving but before the breath tests
- The legislation provides for a more limited defence, (i.e., the driver drank after driving but had no reason to expect that they would be required to provide a sample of breath.)
Proof of Blood Alcohol Concentration
- Presently, the Crown Attorney is required to prove a number of prerequisites were fulfilled before evidence of breath tests can be admitted at trial
- The new legislation would allow proof of blood alcohol concentration by providing that the concentration at the time of testing is proven if certain conditions are met.
- The proposed legislation is not particularly clear here, however, the two primary prerequisites are that there are two samples of breath taken at least 15 minutes apart and that the approved instrument was calibrated before each test
- The proposed legislation limits disclosure that defence lawyers are entitled to
- Specifically, the legislation proposes that only scientifically relevant material is required to be disclosed, including the results of the calibration checks and any messages produced by the approved instrument (often called a breathalyzer), but does not require that records relating to the maintenance of the approved instrument be disclosed.
From time to time, these types of disclosure have revealed issues with the maintenance, calibration, and operation of the breath testing equipment, ultimately, these issues were raised as defences at trial