Questions and Answers - Amendments to the Criminal Code relating to drug-impaired driving and alcohol-impaired driving

Background

Legislation to amend the Criminal Code (offences relating to conveyances) was introduced on April 13, 2017, passed by Parliament on June 20, 2018, and received Royal Assent on June 21, 2018. The law contained two main Parts: the first strengthened the criminal response to drug-impaired driving in anticipation of cannabis legalization; and, the second Part repeals the transportation provisions of the Criminal Code, including the impaired driving provisions, and replaces them with a new Part of the Criminal Code. Part 1 of the law came into force on June 21, 2018.  Part 2 of the law comes into force on December 18, 2018.

Questions and Answers

Why was legislation introduced in April 2017?

The legislation helped to ensure that a robust drug-impaired driving regime was in place to account for the legalization of cannabis. Although drug-impaired driving has been a criminal offence since 1925, and the police previously had some tools to detect and investigate drug-impaired driving, a stronger approach was needed. The Government of Canada is committed to keeping our roads and our communities safe.

How does the change in law address drug-impaired driving?

This legislation has three main elements to address drug-impaired driving:

• authorizing the police to use approved drug screening equipment (e.g., oral fluid drug screeners) to detect the presence of a drug in a driver
• creating new criminal offences of being at or over a prohibited blood drug concentration for certain impairing drugs within two hours of driving (the levels would be set by regulation)
• strengthening the existing legal framework to enhance the investigation and prosecution of the current offence of driving while impaired by a drug

How will the change in law address alcohol-impaired driving?

Part 2 of the new legislation significantly reforms Canada's impaired driving laws. Some key elements include:

• simplifying and modernizing the transportation provisions of the Criminal Code to create a more coherent and efficient legislative framework
• authorizing mandatory alcohol screening to make it easier to detect whether a driver is impaired by alcohol
• eliminating and limiting some defences that reward risk-taking behaviour
• making it easier to prove blood alcohol concentration where the person is charged with being at or over the legal limit for alcohol
• clarifying what information the Crown is required to disclose to prove blood alcohol concentration

Why were the transportation provisions repealed and replaced?

The previous transportation provisions in the Criminal Code  evolved piece by piece over the years. As a result, they are complex and difficult to understand, even for legal practitioners. The reforms make the legal framework clearer and more coherent. They also increase deterrence, make it easier to detect impaired drivers, and simplify investigations and proof of impaired driving offences. These measures are expected to result in shorter trials and reduced delays.

Part 1: Drug-impaired driving

Oral fluid drug screeners

What are oral fluid drug screeners and how do they work?

An oral fluid drug screener is a piece of equipment used by police that can detect the presence of some drugs in oral fluid, including THC, the main impairing component in cannabis. Oral fluid (saliva) is collected from the mouth of a driver, and once enough oral fluid is collected, the equipment indicates the presence or absence of drugs. These devices are fast, non-invasive, and accurate.

What drugs do drug screeners detect?

The drug screeners detect THC (main impairing component in cannabis) and cocaine. These are the most common impairing drugs found in Canadian drivers.

How does drug screening equipment get approved for use in Canada?

Similar to the long-established process for approving alcohol breath testing equipment, the process for approving drug screening equipment requires drug screeners to be evaluated by the Drugs and Driving Committee (DDC) of the Canadian Society of Forensic Science (CSFS).

Drug screeners are evaluated by the DDC against their standards and evaluation procedures. If the DDC determines that a drug screener meets its evaluation standards, it will be recommended to the Attorney General of Canada for consideration and approval. Details of the evaluations undertaken by the DDC are confidential to protect the commercial and proprietary interests of the manufacturers. On August 22, 2018, the Attorney General of Canada approved the Dräger DrugTest® 5000 STK-CA (collection kit) to be used with the Dräger DrugTest® 5000 (reader), as the first oral fluid drug screener.

Could an oral fluid drug screener detect cannabis that was consumed a few days before?

It is highly unlikely that a drug screener would detect traces of a drug that was consumed several days ago. Drug screeners provide a positive result only in situations where cannabis was recently consumed.

Could second-hand cannabis smoke result in a driver testing positive for THC on a drug screener?

This is very unlikely. Current scientific advice indicates that there is a very little risk that passive exposure will lead to a positive result on an oral fluid screener.

What happens if a driver tests positive on an oral fluid drug screener?

A positive result on a fluid drug screener would provide information to the police officer that would help in developing reasonable grounds to believe that a drug-impaired driving offence has been committed. It is expected that the observed signs of impairment at the roadside, combined with a positive sample on the drug screener, would be sufficient for an investigation to move forward.

Will oral fluid drug screeners be a useful tool for police? Are they easy to use?

Public Safety Canada, along with its law enforcement partners across the country, led a pilot project to test how well officers were able to use certain roadside drug testing devices on drivers, under different weather conditions, (for example, cold, rain, snow) and at night. The report on the project is available online.

New offences for blood drug concentration levels

What new offences have been enacted?

As of now, in the Criminal Code, there are three offences of being over a prohibited level of drugs within two hours of driving:

• a summary conviction offence, for a lower level of drugs (precautionary)
• a hybrid offence for higher and impairing levels of some drugs
• a hybrid offence for drugs in combination with alcohol

For what drugs has the Government setting prohibited blood drug concentrations and at what level?

Prohibited blood drug concentration levels are set by regulation. For THC, the levels are:

• at or over 2 ng (nanograms) but under 5 ng of THC per milliliter (ml) of blood for the straight summary conviction offence
• at or over 5 ng of THC per ml of blood for the drug-alone hybrid offence
• at or over 2.5 ng of THC per ml of blood combined with 50 mg of alcohol per 100 ml of blood for the drugs-with-alcohol hybrid offence

Levels for some other impairing drugs are set at "any detectable level". This includes Cocaine, LSD, 6-MAM (a metabolite of heroin), Ketamine, Phencyclidine (PCP), and Psilocybin/Psilocin (magic mushrooms). Scientific advice indicates that these drugs are incompatible with safe driving at any level. As well, the level for GHB is 5 mg/L as the body can naturally produce low levels of this drug.

What are the penalties for the new offences?

The penalty for the summary conviction offence is a maximum of $1,000. The penalties for the two hybrid offences are the same as for alcohol impaired driving. These include mandatory minimum penalties of $1,000 for a first offence, 30 days imprisonment for a second offence and 120 days imprisonment for a third offence.

How much cannabis can I consume before it's unsafe to drive?

Unlike alcohol, the existing scientific evidence does not provide general guidance to drivers about how much cannabis can be consumed before it is unsafe to drive or how long a driver should wait to drive after consuming cannabis. Mixing driving with cannabis, or any other impairing drug, is not safe and poses a danger to our streets and highways.

How do the new offences affect individuals who have a medical authorization for cannabis?

The new offences apply to all drivers, including those with a medical authorization for cannabis. The goal of the legislation is to help keep Canadians safe from impaired drivers and so a precautionary approach is necessary.

How do these proposals compare with other jurisdictions?

Other jurisdictions have set offence levels for impairing drugs, including cannabis. Colorado and Washington have set a 5 ng level for THC and the United Kingdom has set a 2 ng level. These reforms put Canada amongst world leaders with respect to road safety.

Strengthening the legal framework

Does the recently-passed legislation provide any other measures, in addition to new offences and drug screeners, to strengthen the ability of the justice system to address drug-impaired drivers?

The legislation:

• clarifies that certified drug recognition evaluating officers do not need to be qualified as an expert to give opinion testimony at trial;
• provides a police officer the option to demand blood instead of a drug recognition evaluation where they have reasonable grounds to believe a drug-impaired driving offence has occurred;
• removes the requirement that a blood sample be taken by or under the direct supervision of a medical doctor;
• creates a rebuttable presumption to better link the drug found in the drivers' body with observed signs of impairment at time of driving.

Part 2: Alcohol-impaired driving

What is mandatory alcohol screening?

Mandatory alcohol screening authorizes officers to demand that a driver provide a roadside breath sample on an approved screening device, whether or not they suspect that the driver has recently consumed alcohol. This would be done after the person has been lawfully stopped pursuant to existing authority (common law or provincial highway traffic act).

Why did Parliament authorize mandatory alcohol screening?

Mandatory alcohol screening assists in deterring and better detecting alcohol-impaired drivers. Research suggests that up to 50% of drivers with a blood alcohol concentration above the legal limit are not detected at roadside check stops. In addition, in several other jurisdictions where mandatory alcohol screening was enacted, rates of impaired driving and subsequently fatal road accidents were significantly reduced. For example, authorities in Ireland credit mandatory screening with reducing the number of people killed on Irish roads by almost a quarter (23%) in the first year following its enactment in 2006.

Have the penalties for impaired driving changed?

The mandatory minimum terms of imprisonment for impaired driving have not changed. However, the recently-passed legislation enacted some new and higher mandatory minimum fines, and some higher maximum penalties. The legislation increases the mandatory fines for first offenders with high blood alcohol concentrations:

• A first offender with a blood alcohol concentration (BAC) of 80 to 119 mg of alcohol per 100 ml of blood is subject to the current mandatory fine of $1,000
• The mandatory minimum fine for a first offender with a BAC of 120 to 159 mg of alcohol per 100 ml of blood is raised to $1,500
• The mandatory minimum fine for a first offender with a BAC of 160 mg or over of alcohol per 100 ml of blood or more is raised to $2,000
• A first offender who refuses to comply with a lawful demand is subject to a $2,000 minimum fine

Will mandatory alcohol screening result in an increase in police targeting visible minorities?

Mandatory alcohol screening is being enacted to keep Canadians safe. It does not give police any more powers than they already had under common or provincial law to stop drivers at random to determine their sobriety. The Supreme Court of Canada has previously upheld these traffic stops (R v Hufsky, (1988) and R v Ladouceur, (1990)). However, mandatory alcohol screening will not alter the responsibility that law enforcement has towards training and oversight to ensure fair and appropriate application of the law.

Do other countries authorize mandatory alcohol screening?

Mandatory alcohol screening is authorized in over 40 countries worldwide, including Australia, New Zealand, Austria, Belgium, Denmark, Finland, France, Germany, Ireland, The Netherlands and Sweden.

What is the difference in the grounds for alcohol- and drug screening at roadside?

Roadside drug testing will be conducted through an oral fluid sample. To demand an oral fluid sample, police must have a reasonable suspicion that the driver has drugs in their body. A reasonable suspicion would be based on objectively discernable facts, such as red eyes, muscle tremors, agitation, or speech patterns.

Roadside alcohol testing is conducted through a breath sample, and the new law authorizes police to demand a breath sample whether or not they suspect the driver has recently consumed alcohol. This means that police can conduct roadside alcohol testing on any person who has been lawfully stopped pursuant to existing authority (common law or provincial highway traffic act). A driver who refused to provide a breath sample would be subject to a criminal offence.

Why is there mandatory testing for alcohol, but not for drugs?

Mandatory roadside screening is not proposed for drugs to reflect the difference in the technology available between the approved screening device for alcohol and the oral fluid drug screener. The drug screener takes longer than the alcohol screener and cannot convert a sample of oral fluid to a blood drug concentration. Additionally, the results on the oral fluid drug screener will need to be combined with the facts necessary to the development of reasonable suspicion to move the investigation forward.

Why was the offence of driving over the legal limit (the "over 80" offence) broadened so as to capture drivers who were "at or over 80" within two hours of driving? What does this have to do with the defense of bolus drinking?

The offence of "operating at or over 80 within two hours of driving" would eliminate the bolus drinking defense by changing the time frame within which the offence can be committed. It is no longer relevant that the person's blood alcohol concentration may have been below 80 at the time of driving. It is dangerous to drink so much alcohol that blood alcohol concentration will soon exceed 80 and get behind the wheel. Also, it significantly limited the intervening drink defense. This formulation is used in at least 16 American states. It reflects the concern associated with mixing driving and alcohol consumption close in time to each other.

What is the bolus drinking defence and why did Parliament want to eliminate it?

"Bolus drinking" refers to situations where a driver claims that, although they consumed alcohol just before or during driving, they were not over the legal limit while driving because the alcohol was not fully absorbed until the time of testing. This defence rewards the risky behaviour of drinking immediately before or during driving in the hopes of arriving at a destination before being too drunk to drive or being at the offence level. By changing the timeframe of the offence (i.e., to being at or over the offence level within two hours of driving), the argument that alcohol was still being absorbed would become irrelevant.

What is the intervening drink defence and why did Parliament want to restrict it?

The "Intervening drink defence” refers to situations where a driver claims to have consumed alcohol after driving but before providing a breath sample at the police station. Typically, a driver takes this action to interfere with the breath testing process. It often arises after an accident when a driver claims that they needed to ‘calm their nerves’. By changing the timeframe of the offence (i.e., to being at or over the offence level within two hours), the argument that post-consumption alcohol was the cause of the high blood alcohol concentration is no longer relevant. Recognizing that there may be situations where the post-driving consumption of alcohol was innocently done, 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).

How did the legislation change the information that must be disclosed to the defence?

The legislation clarified that the only material the Crown must disclose with respect to proving blood alcohol concentration is material that is scientifically relevant. This includes the results of the calibration checks and any error messages produced by the approved instrument, but would not include maintenance records. This helps improve efficiency of the justice system by reducing demands that have been made for scientifically-irrelevant materials.