Canadian lawyers are already gearing up and getting ready for July 1, 2018, the date the proposed Cannabis Act legislation is set to become law. But what has some of them concerned has nothing to do with marijuana.
Tucked inside the Cannabis Act framework were changes to impaired driving laws that would allow police officers to demand breath samples from any driver without first requiring a reasonable suspicion that they’re under the influence.
Drivers going through a road-side stop today are usually greeted by a police officer at their window, asking if they’ve been drinking. During that conversation, officers catch a whiff of your breath, glance around your vehicle and assess your behaviour. If they suspect you may be impaired, they’ll ask you to take a breathalyzer test.
Next year, all that procedure could disappear — and some lawyers say it’s an obstruction of constitutional rights.
“They want to be able to have police officers make any kind of arbitrary mandatory breath demand on any motorist, regardless of the circumstances,” criminal lawyer Sarah Leamon told Global News.
“The law as it is proposed is going to be in direction violation of citizen’s constitutional rights that are guaranteed under the charter. More specifically, in my view, it is going to contravene people’s rights to be free from arbitrary detention as well as unlawful search and seizure.”
The government says today’s laws allow many impaired drivers to escape detection at check stops. The changes make it plausible that police could demand a breath sample from every driver going through a road block.
The changes, they say, would also cut back on litigation surrounding the question of whether or not the officer has “reasonable suspicion” to demand a breath sample.
But Leamon says it would do just the opposite. When the law goes into effect on July 1, 2018, Leamon says, “I would expect a constitutional challenge the following day.”
Legal challenges around impaired driving laws are no stranger to B.C., where the province recently won a Supreme Court battle defending its own provincial rules where a driver can be handed an immediate roadside suspension for blowing a breath sample of 0.005mg/100mL or above.
“I don’t want to see the federal government going down the same road, especially when citizen’s civil liberties hang in the balance,” Leamon said.
The government says its impaired driving law changes will “reform the entire impaired driving regime in the Criminal Code” and “be amongst the strongest in the world.”
WATCH: The feds’ new pot legalization bill will re-write the law on impaired driving, imposing stiff new penalties. Vassy Kapelos takes a closer look at the measures, which some critics say might not stand up in court.
Some of the other proposed changes for both drug and alcohol impaired drivers include:
- Repeal and replace all transportation offences with a modern, simplified and coherent structure
- Authorize mandatory alcohol screening at the roadside where police have already made a lawful stop under provincial law or at common law
- Increase certain minimum fines and certain maximum penalties — including a maximum penalty for dangerous driving of life imprisonment, up from 14 years
- Facilitate investigation and proof of blood alcohol concentration
- Eliminate and restrict defences that encourage risk-taking behaviour and make it harder to enforce laws against drinking and driving
- Clarify Crown disclosure requirements
- Permit an earlier enrolment in a provincial ignition interlock program
The legislation also includes a specific section from drug-impaired driving to coincide with the legalization of marijuana. It would give police officers the right to demand an oral fluid sample from drivers suspected of being under the influence of drugs. It would also create three new offences for having specified levels of a drug in the blood within two hours of driving.
Jody Wilson-Raybould, Canada’s justice minister, says she is confident the laws will stand up in court.
–With files from Aaron McArthur