Pubdate: Fri, 14 Apr 2017
Source: Globe and Mail (Canada)
Copyright: 2017 The Globe and Mail Company
Author: Sean Fine
Page: A1
Referenced: Cannabis Act:


Police would be given sweeping new authority to combat drunk driving
by demanding a breath sample from any driver at roadside, as the
Liberal government prepares for the legalization of marijuana with a
major overhaul of impaired-driving laws.

A proposed law introduced in Parliament on Thursday drops the
requirement that police need a reasonable suspicion that a driver has
been drinking before demanding a breath sample. It will almost
certainly be challenged as a violation of the constitutional right to
be free from unreasonable searches, legal observers say.

For marijuana, police would have the right to take "oral fluid
samples" from drivers at roadside - but only those they have reason to
suspect are using the drug (or other drugs). The sample would not be
proof of drug use, but would help create reasonable grounds to believe
a crime was committed, so police could conduct further testing.

In pairing the liberalization of marijuana laws with tough-on-crime
legislation featuring enhanced police powers and stronger mandatory
punishments, the federal government said its aim is to create among
the world's strongest impaired-driving regimes, especially compared
with jurisdictions around the world where cannabis is legal. It also
says that the current set of laws on drunk driving are difficult to
prosecute, and the new law would restrict or eliminate some defences.

"If it passes Parliament [it] will be one of the strongest
impaired-driving pieces of legislation in the world," Justice Minister
Jody Wilson-Raybould told reporters, adding that she is confident the
new authority given to police to conduct roadside breath tests does
not violate any rights in the Constitution.

"Ensuring that we have safety on our roads and our highways is of
paramount concern)

Western Ontario law professor Robert Solomon says the new era brings
with it major dangers, adding that marijuana legalization will mean
more use by young people, and inevitably more driving while high, and
more fatal collisions. He says much remains to be done by the
provinces, which would have the authority to raise the minimum age of
use from 18. But he sees the government's overall approach to impaired
driving as a strong message to drivers.

"Our courts have tended to interpret the impaired-driving law in a
very pro-accused way. A lot of people never viewed it as a crime -
'boys will be boys,' " Prof. Solomon, the legal adviser to MADD
Canada, an anti-impaired driving group, said in an interview. That
interpretation, he said, manifested itself in the recognition of
defences that strain credulity, such as contending that the last drink
came just before or even during driving, which made it too soon to be
absorbed into the bloodstream. (The government says the new law would
remove this defence by making it a crime to be over the legal limit
for alcohol in the blood within two hours of driving, rather than
simply while driving.)

But "mandatory breath screening of drivers  is going to probably make
the most significant difference in reducing deaths and injuries." He
said 121 countries already have such mandatory screening, and every
jurisdiction has achieved sharp and sustained reductions in crashes.

Criminal defence lawyer Joseph Neuberger of Toronto is among legal
observers who say the dropping of the reasonable-suspicion standard
for a roadside breath test may be unconstitutional because it requires
the giving of a bodily sample, which he describes as invasive, despite
no sign of danger. Reasonable suspicion generally has meant an odour
of alcohol on the driver's breath, an admission of alcohol consumption
or other indicators - a low threshold police have met without 
difficulty, he said.

"The premise of the legislation is that many drivers have escaped
detection, who in fact were impaired, because of this requirement. Or
it was difficult to prosecute cases because of this suspicion
requirement. I don't think that's true. There is generally a high rate
of conviction."

He said he does not understand why police would need a reasonable
suspicion to test for marijuana, but not need one to test for alcohol.
"One is not worse than the other. Significant impairment by a drug can
be as dangerous as alcohol impairment. So I don't see why we should
have two different standards."

A spokesman for Ms. Wilson-Raybould said the different standards for
policing in detecting marijuana and alcohol consumption reflect
differences in the technology of screening devices.

"Unlike the approved screening device for alcohol, which gives results
in seconds that reliably indicate blood-alcohol concentration, drug
screeners take eight to 10 minutes to indicate presence of a drug in
oral fluid. In addition, unlike with alcohol, the concentration in
oral fluid cannot be converted to concentration of the drug in the
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