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August 7, 2008

Criminal Code amendments provide for roadside testing for drivers suspected of being under the influence of drugs

A significant change to the Criminal Code came into effect on July 2, 2008. Section 253 of the Code, which makes it an offence to operate a motor vehicle (and other transportation) while impaired by alcohol and/or drugs, has been amended to provide police with expanded enforcement powers to deal with drivers suspected of being under the influence of drugs. There are three stages to the investigation of drivers suspected of drug impairment:

(1) Standardized Field Sobriety Tests (SFST). This is a roadside physical sobriety test which a police officer can conduct where he or she has a reasonable suspicion that the driver has a drug in his/her body and has been driving within the last three hours.

(2) Evaluation by a trained evaluation officer. If the driver fails the roadside test, the officer will then have reasonable grounds to believe that a drug-impaired driving offence has been committed, and can escort the driver to a police station to undergo a second stage of evaluation by a trained evaluation officer. This evaluation would involve a combination of interviews and physical observations. Both the roadside test and the evaluation may be videotaped.

(3) Bodily Fluid Sample. If evaluation officer identifies that a specific family of drugs is causing impairment, he or she can demand a saliva, urine, or blood sample be taken by a medical practitioner or technician. These tests must be confirmed by a toxicology report before charges are laid and the report may be used as evidence in court. Refusal to comply constitutes a criminal offence punishable by the same provisions that now govern refusing to perform an alcohol breath or blood test.

With the new legislation, impaired drivers face tougher mandatory penalties including a minimum fine of $1000 for a first offence, a month in jail for a second offence, and four months in jail for a third offence. Those caught with a blood alcohol concentration over 80 will face a maximum life sentence if they cause death and a maximum 10-year sentence if they cause bodily harm.
The Criminal Code amendments also change how an accused can challenge breathalyzer test results in court. The accused used to be required to show ‘evidence to the contrary’ to disprove a drinking and driving charge, but now the responsibility lies on the accused person to:

- Provide the court with proof showing the machine used by the police was not functioning or being operated properly at the time the reading was made
- Prove the errors or malfunctioning led to the readings obtained, and
- Prove the accused’s blood alcohol level was actually below the legal limit at the time he or she was driving.
The legislative history of the amendments can be viewed on Parliament Canada’s website.
The legislative amendments are available on Parliament Canada’s website: Act to Amend the Criminal Code.