Canadian Police Can Now Pull You Over And Breathalyze You Without Cause

Canada's new impaired driving laws are among the toughest in the world, according to the federal government.

by Manisha Krishnan
Dec 18 2018, 7:44pm

Canada's new drunk driving laws kick in December 18. THE CANADIAN PRESS/Darryl Dyck

Canada’s new impaired driving laws, which allow cops to pull over Canadians and demand breath samples for no reason, kick in today.

Under Bill C-46, the federal government granted police officers a swath of new powers purportedly to cut down on drug and alcohol impaired driving. However, the new laws have been criticized by lawyers who believe some of them are unconstitutional and overly broad.

Here are some of the key points:

Random breath testing

Police officers are now allowed to pull over any driver and demand they blow into a breathalyzer. Officers no longer need to be suspicious that the driver is impaired in order to make that demand. Drivers who refuse to blow will be charged, and if convicted, will receive a criminal record and a mandatory minimum fine of $2,000 for a first offence—or 120 days in jail for a third offence.

“How many people are going to refuse to blow because they don’t think they should be asked to blow for no reason? A lot of those people are going to get criminal record and be completely sober at the time that they were dealing with police,” lawyer Kyla Lee, who specializes in impaired driving cases, told VICE. “It’s a law that I think is designed to punish the innocent.” She said she is planning to launch a constitutional challenge of this law as soon as she gets an opportunity.

Tougher penalties

With the new laws come a number of tougher punishments, such as mandatory minimum penalties for impaired driving. The penalties now include:

  • Mandatory minimum fines of $1,000, $1,500, and $2,500 for first offences of having blood alcohol content of 80 mg or more g, 120 mg or more, and 160 mg or more, respectively
  • impaired driving causing no bodily harm can mean up to two years in jail for a summary conviction (up from 18 months) or up to 10 years in jail for an indictable offence (up from five years)
  • impaired driving causing bodily harm can mean up to two years in jail for a summary conviction or up to 14 years in jail for an indictable offence (up from 10 years)
  • dangerous driving causing death can lead to a maximum of life in jail (up from 14 years)

“This is a government that campaigned on eliminating mandatory minimums and they have nothing towards doing that and instead with this legislation have increased the mandatory minimum penalties for many impaired driving offences,” said Lee.

The new laws also take aim at typical defences used in impaired driving cases.

Increased time limit for taking a sample

Cops can take a sample within three hours of when a person was last driving and their blood-alcohol reading will be considered the same as when they were driving; previously the sample needed to be taken within two hours.

New provision for extrapolating blood-alcohol content

The government has also created a provision through which a driver’s blood sample can be taken any time after they were driving and cops can use a formula to determine how much alcohol was in their blood when they were driving.

“If they take your blood or breath sample 10 hours after you were driving, as long as there’s a minimum of 20 milligrams of alcohol in your blood, they can add 10 mg of alcohol for every hour to determine what your blood-alcohol level was when you were driving,” said Lee. They don’t have to account for things that affect a person’s elimination or absorption of booze, including drugs, disease, emotional state, food intake, smoking, when the person stopped drinking, etc.

Previously, if the samples were outside the two-hour window, the Crown had to call an expert witness to attempt to justify the readings.

“It was often unsuccessful and the Crown would lose the case as a result,” said Lee.

Drug impaired driving laws under C-46 already came into effect to tackle THC impairment in light of recreational cannabis legalization. Those laws are also controversial, in part because there is no science to definitively link THC levels in the blood with impairment, and because the oral testing devices approved by the federal government have received dubious reviews.

Under those laws:

  • Having between two to five nanograms of THC per millilitre of blood within two hours of driving would be punishable by a $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.

Lee told VICE the timing of implementation of the alcohol-focused laws the week before Christmas is “no joke.”

“This is the busiest time of year for impaired driving, road blocks, counter attack programs,” she said. “They’re taking the police at their busiest time of year, giving them a whole whack of new powers they they know are going to be challenged and it’s going to lead to huge court backlogs and delays.”

Canada’s Justice Minister Jody Wilson-Raybould has said the new laws won’t amount to a Charter violation and that they are now among the toughest impaired driving laws in the world.

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