It’s been two years since Bill C-46 became law, overhauling impaired driving rules nation-wide.
Although Bill C-46 embodied a number of significant changes to Criminal Code impaired driving offences, it did a couple of key things. First, it created specific offences for cannabis-impaired driving the first time. Second, it did away with the reasonable grounds to conduct roadside alcohol screening tests, making them both mandatory and arbitrary.
When Bill C-46 was first introduced, it was controversial for a number of reasons. Unsurprisingly, it remains the same today.
One of the main critiques of these amendments is that they were – and continue to be – totally unnecessary. When recreational cannabis was legalized, many were afraid that cannabis-impaired drivers would begin flooding our roadways and endangering the public. However, that hasn’t been the reality to date.
Evidence shows that cannabis-impaired driving offences have not gone up since legalization.
While some provinces have seen drivers charged in relation to cannabis-impaired driving under new federal laws, the numbers are nowhere near what fear-mongering panic-buttons had expected.
In fact, polls conducted by the federal government show that the prevalence of driving after cannabis use did not change at all after legalization. Both prior to and after legalization, about 13% of cannabis users who hold a valid driver’s license admitted to driving within two hours of using cannabis. (https://www150.statcan.gc.ca/n1/pub/82-003-x/2020002/article/00002-eng.htm). This relatively low number remained unchanged, in spite of legalization.
Without a doubt, impaired driving poses a public threat. It is antisocial and dangerous behavior which should be discouraged and denounced. No one is in favor of impaired driving.
However, the criminal laws which existed prior to bill C-42 were more than sufficient to address this problematic social issue.
What’s more, cannabis impaired driving has always been illegal. Prior to the passage of bill C-46, it was illegal to drive while high on cannabis. Bill C-46 just further codified the offence, delineating particular limitations and establishing further prescribed penalties.
But all in all, it’s much a-ado about nothing.
The vast majority of impaired driving charges in Canada still involve alcohol impairment; and other drugs, like cocaine, methamphetamines, over-the-counter and prescription drugs, are far more prevalent than cannabis when it comes to criminal impaired driving charges.
The redundancy of these new laws is further demonstrated by the redundancy of the new technology that they sought to introduce.
Roadside drug testing devices, which are used to detect THC – the active ingredient in cannabis –have been largely rejected by police agencies throughout the country. The Draeger DrugTest 5000, one of two approved drug screening devices in Canada, is expensive, impractical and clumsy to use. Plus – it only detects the presence of THC. It cannot determine driver impairment.
These are perhaps some of the reasons why police officers continue to prefer well-established Standardized Field Sobriety Tests to new-fangled technology. Again, making the ostentatious efforts of bill C-46 largely unnecessary.
One area of the new laws, however, that has been consistently applied and subject to challenge since being introduced has to do – not with cannabis – but with alcohol.
Officers, who were previously required to form a reasonable suspicion that a driver had alcohol in their body prior to issuing a roadside breath test, no longer need to do so. This means that standard questions, like “have you had anything to drink tonight?” have been replaced by an immediate demand to provide a sample of breath for analysis.
Many have argued that this constitutes an overreach by the state and a breach of individual rights and liberties, as guaranteed under the Charter
While a number of cases work their way through the court system, a provincial court judge in Saskatchewan recently became the first to weigh in on this issue.
In considering what appears to be the first Charter challenge on the constitutionality of mandatory roadside breath tests, Judge Morris Baniak found that the new measures do violate the right to be free from unreasonable search and seizure. However, he declared the scheme constitutionally valid still, saying that it is an acceptable limitation on individual Charter rights and one that can be properly justified in a free and democratic society.
This means that – at least for now – mandatory, random breath tests are here to stay.
And while it is expected that this decision will be appealed and that it will ultimately work its way up to the Supreme Court of Canada, the process will be long and drawn out. It could take another two years – or more – to complete.
Change rarely comes fast, and certainly the law is no exception to this rule.
But two years later, the utility of such vast and wide-sweeping changes to our impaired driving laws still remains relatively unknown.