Canada’s New Impaired Driving Laws Give Cops A Terrifying Amount of Power

All eyes were on the passing of the Cannabis Act last week, which will make it legal to buy recreational weed in Canada on October 17. But the government also passed its impaired driving bill—one that gives police sweeping new powers and could criminalize drivers who are completely sober.

Bill C-46 creates new offences for people who drive with a certain amount of THC in their system and toughens up the rules around drinking and driving. While that may sound like a good thing—no one wants dangerous drivers on the road—experts argue several parts of the bill are unconstitutional and will trample on the rights of citizens.

Here are the key takeaways from the bill:

Previously, cops needed “reasonable suspicion” is order to make a driver take a breathalyzer test to check for alcohol impairment. Reasonable suspicion might include swerving and erratic driving, slurred speech, bloodshot eyes, the smell of liquor, or visible alcohol in a car. Bill C-46, however, allows them to randomly demand a breathalyzer from any driver without a specific reason.

“The bar for police to have you blow into a roadside device is very low,” Grant Gotgettreu, a retired West Vancouver police officer, told VICE. “That seems arbitrary to get randomly pulled over and I think there’s a potential for it to be abused because police are human.”

Gotgettreu said cops could target someone because of the colour of their skin, or having a flashy car, or because they’re pissed off, and that he anticipates backlash from the members of the public who are asked to blow for no apparent reason.

Cannabis lawyer Jack Lloyd also said people of colour will be disproportionately be subjected to random stops. He told VICE this aspect of the bill will likely be challenged on the grounds that it is unconstitutional. It could be considered unreasonable search and seizure, he said, and the law itself has no rational connection to effectively curbing the behaviour it is purportedly trying to stop.

This is already a crime, but now police will have the authority to demand a breathalyzer from anyone without needing suspicion, and if you try to challenge that by not blowing, you will be criminalized.

Let’s say an officer demands a breathalyzer and you know you haven’t had anything to drink, so you refuse to comply. That would result in a failure to provide a sample charge, said Lloyd, which is “just as bad as being convicted of being impaired.” That means totally sober people could end up with criminal records.

The bill will create three new impaired driving offences, with varying punishments.

• Having between two to five nanograms of THC per millilitre of blood within two hours of driving would be punishable by $1,000 fine.
• Having five or more nanograms per millilitre of blood within two hours of driving could be considered a summary or indictable offence, punishable by a fine of $1,000 on the lower end to a maximum of 10 years in jail for repeat offenders.
• Having booze and THC in your system would also be a hybrid offence (indictable or summary) and would again be punishable by a fine of $1,000 on the lower end to a maximum of 10 years in jail for repeat offenders.

Vancouver-based lawyer Kyla Lee, who specializes in defending clients charged with impaired driving, said provinces could also impose additional punishments; in BC, for example, testing over the per se limit in an oral fluid test can result in an immediate drivers’ license revocation.

In order to administer a drug test, such as a roadside saliva test, a cop must have reasonable suspicion that the driver is impaired by a drug.

But these types of tests can’t detect impairment and critics argue the government’s per se limit is arbitrary. Plus, THC is stored in fat cells and then released into the bloodstream, meaning it can stay in your system for a long time. That means medical cannabis users or people who consume recreationally often have a good chance of having more than the legal limit of THC in their bodies, even if they aren’t impaired.

Lee said if the drug an officer presumes is in a driver’s system matches what the test results show, that driver is presumed to be impaired by that drug.

“They’re basically saying you don’t have to prove a person was impaired,” she said. “It’s creating this huge shortcut for the prosecution in any drug impaired driving case.”

Lloyd told VICE the per se limits will likely be challenged on the grounds that they aren’t actually linked to impairment. He said demanding saliva is a “massive invasion of privacy” that should require a warrant and that the amount of time the oral fluid tests will take—about seven minutes—is too long, and could also be considered a violation of officers’ requirement to administer tests “forthwith” (without delay).

The government hasn’t yet revealed which testing devices they will be approving, but Lee said the three being considered are susceptible to give false readings in high or low temperatures. One of them performs optimally in 10 to 25 C, while the other is meant for 15 to 25 C, she said.

“You have all of these people who are going to providing oral fluid who are going to be given false readings because we live in a country that is referred to as the Great White North.”

Gotgettreu said the same thing happened when he was trained on new breathalyzers in the 1990s. "You could get false fails through radio signal interference," he said. "It's growing pains."

Right now only medical professionals or qualified technicians can administer blood tests, but Lee said the definition of a qualified technician is going to expand to include police officers.

“It’s hugely problematic and unsafe,” she said, noting it will be possible to draw blood roadside or at a police station where “you don’t have a sterile room.”

She said there’s also a risk to police officers themselves, if there’s a confrontation and someone with a communicable disease ends up sticking a needle into an officer.

Gotgettreu, who was an officer for 30 years, many of which were spent on the roads, told VICE cops should be using old fashioned police work to detect impairment.

If you notice a car is swerving all over the road, pull the driver over and talk to them, he said.

“It is medical? Is it alcohol? Is it drugs? Do they just not know how to fucking drive?” You should be able to tell if someone is acting odd, or if their fine motor skills are messed up. If they are, proceed with more testing, he said. Police have drug recognition experts who follow 12 steps to determine if someone is impaired.

Gotgettreu said in his experience, there are some similarities between stoned and drunk drivers, but drunk drivers tend to be far more aggressive. He also noted that people have been driving high for decades.

“I think some of the government and some of the media are fanning the hysterical flames,” he said. “I understand the good intentions behind this stuff but the road to hell is paved with good intentions.”

Follow Manisha Krishnan on Twitter.

Sign up for the VICE Canada Newsletter to get the best of VICE Canada delivered to your inbox.