Drug-Impaired Driving: Consultation Document

Legislation

Section 253 of the Criminal Code creates two separate and distinct offences. Under paragraph 253(a) of the Criminal Code, it is an offence for anyone to operate a motor vehicle, vessel, aircraft or railway equipment while his or her ability to operate it is impaired by alcohol or a drug. The combination of a drug and alcohol is also included, even if each alone would not create impairment.

Under Paragraph 253(b) of the Criminal Code, it is an offence to operate a motor vehicle, vessel, aircraft or railway equipment with a blood alcohol concentration that exceeds 80 milligrams of alcohol in 100 milliliters of blood. There is no "legal limit" in 253(b) for any drug, other than alcohol. Forensic scientists have advised that drugs, unlike alcohol, are often extremely difficult to link to a particular concentration level that will cause impairment in the general population of drivers. Moreover, analysis for some drugs in certain bodily fluids may simply indicate drug use many days, or even months, in the past.

Sections 254, 256 and 258 of the Criminal Code set out extensive procedures that permit a peace officer to gather evidence of alcohol-impaired driving and produce this evidence before the court, typically to prove the paragraph 253(b) offence. An officer may demand a sample of breath into an "approved screening device" when the officer has reasonable suspicion that there is any alcohol in the driver's body. With reasonable grounds to believe that a driver has committed a section 253 offence in the previous three hours, the officer may demand a sample of breath into an "approved instrument". If the driver is unable to provide a sample of breath into an approved instrument, the officer may demand a blood sample. If a blood sample is taken for alcohol analysis, it may also be analyzed for the presence of a drug. As recommended by the Standing Committee, Parliament amended section 256 of the Criminal Code in 2000, so that an officer may apply for a warrant to obtain a blood sample from an unconscious driver who is reasonably believed to have committed, in the previous four hours, a section 253 drug-impaired driving offence involving a collision resulting in injury or death. Prior to the amendment, the warrant application could only have been made in relation to alcohol.

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