On December 18, impaired-driving laws in this country underwent a massive overhaul. Police officers are now able to conduct roadside, warrantless searches to compel drivers to provide a breath sample…and they don’t need to form any grounds in order to do so. 

Understandably, this has left a lot of people confused and looking for answers. 

In this column, I will attempt to answer the five most commonly asked questions about changes to Canada’s impaired driving laws. 

1. How has the law changed?

While there have been a number of adjustments to Canada’s impaired-driving laws, the most notable change in the alcohol-impaired driving law has to do with the procedure at the roadside.

Prior to December 18, police officers who stopped a motor vehicle were required to perform a preliminary investigation prior to making a breathalyzer demand. This was in order to determine whether or not they had reasonable grounds to suspect that the motorist had alcohol in their body. 

In the course of this investigation, officers could ask a simple question like “have you had anything to drink tonight?” They could also make note of physical symptoms of alcohol consumption, like bloodshot or glassy eyes, slurred speech, or coordination issues. 

If, after considering these factors, the officer felt that they had reasonable grounds to suspect that the person had alcohol in their body, they could ask them to submit to a roadside breathalyzer test. Without such grounds, the officer could not make such a demand and the motorist would be allowed to continue on.

Under the new law, the reasonable-suspicion standard for alcohol-impaired driving has been done away with. A police officer no longer needs to form any grounds whatsoever to compel a driver to undergo a roadside breath test. The test is now arbitrary and mandatory in nature. 

The sole precondition in making a breathalyzer demand is that the officer must have a device on hand. If they do not, then they must form a reasonable suspicion in order to detain the driver until one becomes available to them. 

2. Why has this happened?

These changes were brought about by Bill C-46.  This bill was introduced as the companion bill to Bill C-45, which legalized recreational cannabis on October 17. 

The rationale behind these changes boiled down to safety. Proponents said that the changes were necessary to increase road safety and better protect the community, given the legalization of cannabis. 

While community safety is always a concern, the reality of cannabis legalization did not really stack up to what many had envisioned. There is nothing to indicate that the number of impaired drivers on our roadways increased following legalization. Police departments throughout the country reported nothing but business as usual. 

In fact, rates of impaired driving have been more or less declining since the 1980s. 

So, while many will argue that these changes were required in order to curb drunk drivers, there is little to justify such drastic changes. 

3. Does this mean that it is zero tolerance for alcohol and driving?

Although the law around impaired driving is strict, it is not zero tolerance.

When it comes to alcohol, the Criminal Code of Canada dictates that it is an offence to drive with an excess of 80 milligrams of alcohol in one hundred millilitres of blood. It is also an offence to drive if a person is impaired by alcohol, despite what their blood-alcohol concentration may be. 

This means that a person could theoretically be convicted of an impaired driving offence, even with a blood-alcohol content below the legal limit or with no proof of a blood-alcohol content at all. 

In addition to our criminal laws, there are also administrative sanctions that can be applied to drivers provincially. 

In B.C., we have the Motor Vehicle Act, which boosts one of the country’s toughest impaired-driving schemes. Police can issue driving prohibitions, monetary fines, and even impound vehicles for drivers whom they deem to be under the influence or who provide breath samples that register a "warn" or a "fail" on roadside breath-testing equipment. Penalties start at levels much lower than our criminal standard. 

4. Can I refuse to provide a breath sample? 

This question really comes down to the age-old adage: just because you can do something doesn’t mean that you should. 

Refusing to provide a breath sample constitutes a separate but equally serious offence under provincial and federal laws. 

A criminal conviction for refusing to provide a breath sample comes with a mandatory one-year driving prohibition, a large monetary fine, and a criminal record. 

5. What can I do to protect myself against an unreasonable demand for a breath sample?

Police have almost unlimited powers to stop motor vehicles in this province and across the country. They often stop vehicles to check for valid insurance and driver’s licences and to conduct routine sobriety checks. This is why—in part—we see so many roadblocks, particularly over the holidays and throughout the summer. 

If you abide by traffic laws and do not commit any moving violations, then the chances of a police officer stopping your vehicle lessen. However, it is impossible to ensure that you will never be stopped by police for any reason whatsoever. 

Visible minorities may be particularly concerned about these new laws, as they will enable police to exercise discretionary power to stop vehicles and detain individuals at the roadside for the purposes of administering a breath test. 

Some lawyers and community advocates have expressed concern that racial minorities may be more frequently targeted for so-called “random” sobriety stops than other groups. This is a real concern, particularly given that statistics support the assertion that such individuals are more likely to be targeted for police street-checks and “carding”.

At the end of the day, there is no sure-shot way to ensure that you do not end up the subject of a random, mandatory roadside breath test—and although we can expect that these laws will be challenged in due time, it is always better to be safe than sorry.