Using cannabis and driving? Learn more about Bill C-46 (Part II)

Where there’s smoke there’s uncertainty: Details of Bill C-46

In our last article, we started exploring certain issues with the recently passed Bill C-46, which makes amendments to laws in the Canadian Criminal Code pertaining to impaired driving offenses, in response to the upcoming legalization of Cannabis in a few weeks.

The federal laws Bill C-46 outlines will come into effect this December, but many lawyers are now raising concerns that its amendments may be unconstitutional. Furthermore, many are worried that Bill C-46 opens up the real possibility of criminal charges being laid on sober drivers.

In this series of articles, we explore issues Bill C-46 creates that you ought to be aware of.

Increased powers for police.

Beyond just addressing specific concerns regarding cannabis use and impaired driving, amendments within Bill C-46 provide a blanket increase to police powers. As the law currently stands, police may stop any driver to ensure they are sober. If police have ‘reasonable suspicion’ that a driver is impaired, they may demand a driver submit to a roadside breathalyzer test to determine approximate blood alcohol content. The standard for ‘reasonable suspicion’ is fairly low and may be met with any of the following:

• Erratic or unsafe driving
• Open alcohol containers within the vehicle
• Detection of the odour of alcohol on a driver’s breath
• Bloodshot eyes
• Slurring of speech and other altered behaviors
• A driver’s admission to drinking alcohol

These indications are fairly easy to spot – even by a lay-person, let alone a trained and experienced police officer. Bill C-46 expands these police powers in that ‘reasonable suspicion’ is no longer required. As of December 18th, 2018, police officers across Canada will be able to stop any driver and demand they submit to roadside testing for impairment.

Lawyers are now questioning the implications of this increase in unrestricted police power. Many argue that the current ‘reasonable suspicion’ standard is flexible and effective. Allowing police to demand samples from anyone without any cause for suspicion opens doors for discrimination (such as racial profiling).

Furthermore, protection from ‘unreasonable search and seizure’ is outlined in the Canadian Charter of Rights and Freedoms. As such, some are now arguing that the amendments in Bill C-46 that remove this ‘reasonable suspicion’ standard (effectively granting police powers to compel a sample from anyone for no reason whatsoever) are outright unconstitutional. In essence, Bill C-46 removes the right to refuse to comply to a police demand that a person produce a sample of either their breath or saliva. Frustrated or rushed sober drivers ignorant of this could, as a result, face criminal charges.

*If you’re looking for a criminal lawyer in Edmonton, click here.

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