New impaired driving laws could unintentionally criminalize sober drivers

It is often said that ignorance of the law is no excuse, but when the Canadian government introduced Bill C-46, outlining the most comprehensive reform to the Criminal Code impaired driving offence, Canadian motorists became susceptible to being criminalized without even knowing it.

Bill C-46 received Royal Assent on June 21, 2018. The proposed amendments to the Criminal Code have been followed by proposed amendments to provincial driving legislation. Citizens and lawyers like myself will be preparing to deal with the challenges to the constitutionality of the new impaired driving regime – a regime which in my view could have the unintended consequence of criminalizing sober drivers.

Here are just a couple of issues to watch for:

Certain THC levels will be deemed criminal

Bill C-46 creates new offences for people who drive with a certain amount of THC (the principal psychoactive element in cannabis) in their system. The THC levels are measured in nanograms of THC per millilitre of blood (ng). Having two ng or more will be a crime.

Some toxicologists and pharmacologists I have consulted on cases involving drug impairment allegations suggest that THC levels can sometimes have nothing to do with a motorist's ability to drive. This is because unlike alcohol, THC is a complex molecule that can remain in the body's fat cells for a long time without causing impairment.

So how much time should a marijuana user wait before driving? Don't ask me. Experts wouldn't even be able to tell you precisely when you should drive, especially if you are a daily user.

Needless to say the new legislation has created a driving offence that may criminalize sober marijuana users who choose to drive with elevated THC levels.

Increased but unnecessary police power

On Dec. 18, 2018, the Bill C-46 amendments will give police increased power to stop any driver to ensure they are sober.

Prior to Bill C-46, police could make a roadside breath demand of any person they suspected may have alcohol in their system. This is known as the "reasonable suspicion" standard. This is a low standard and can often be met by any one of the following: the odour of alcohol on a person's breath, open alcohol containers, an admission of drinking, red/bloodshot/glassy eyes or poor driving. Trained police officers who regularly engage with citizens can usually identify these symptoms easily enough.

So why do the police need the power to demand samples from anybody? Without delving into the numerous Charter of Rights and Freedoms challenges that will stem from these amendments, the practical realities of these amendments should be of primary concern to the public.

Concerns from many groups have appropriately been voiced that this increased and unfettered power will cause racial profiling.

Frustrated or rushed sober drivers may simply refuse to comply, ignorantly believing that they will have a right to do so. Instead, they could face serious criminal consequences.

Screening: When can legal counsel be called?

All too often in my practice, I am confronted with cases where otherwise sober drivers are asserting a right to contact a lawyer at the roadside after being detained when a "screening demand" is made of them. 

It is a common misconception that screening demands will be automatically delayed if the accused asserts their right to counsel. Some motorists will refuse to provide a breath sample until a counsel call is facilitated.

Ignorance on this issue can cause an accused person to be charged and potentially convicted with refusal, notwithstanding the sobriety of the driver. This can result in completely sober drivers ending up with life-changing criminal records, lengthy driving suspensions and possible deportation in the case of non-residents. Furthermore, those drivers convicted of refusal will often face harsher administrative penalties, such as higher fines and longer interlock requirements, than those who were actually driving impaired.

A noble goal but one that misses the mark

Notwithstanding the recent statistics confirming the number of Saskatchewan impaired driving deaths are down, we can all agree that impaired driving continues to be a major societal issue that needs to be eradicated.

However, the cost should not be at the significant expense of individual liberty or by criminalizing innocent people.

With these new laws, citizens should educate themselves to avoid being innocently caught in the web meant for actual criminals. Unfortunately, I suspect that confusion and ignorance will lead to exactly that.

This article is part of CBC's Opinion section. For more information about this section, please read this editor's blog and our FAQ.