Sweeping changes to Impaired Driving Laws

[brihard]

Seems like a vehicular version of stop and frisk to me.

No, because it doesn't grant any new authority to stop anyone. It still has to be a legal vehicle stop.

Just to play Devil's advocate, how's random breath screening without reasonable grounds any different than the "carding" that's been so vilified in the media?

'Vilified' is right. Carding is basically talking with people, and subsequently writing down who they were, where and when, and things like vehicle description. Hugely useful tool for establishing pattern of life and association networks for gangs and organized crime. However in the case of 'carding', street checks, or what have you, they're free to just flip you the bird and walk away. Walking in a public place is not a regulated activity. Operating a motor vehicle on a public road is. Same logic applies to the 'stop and frisk' comparison above.

Anyway- we'll see if the law passes in current form, and what survives legal challenge. Even if compulsory ASD doesn't survive, the closure of loophole defenses will be a big deal. Other options could include giving police statute authority to administer a roadside test to any driver involved in an accident, or observed in a 'rules of the road' moving traffic violation, to eliminate random license/insurance checks (a power under provincial law) as an opening move in a fishing expedition.

As ExRCDCpl says, we don't have time to go making everyone blow and won't waste our time with same. We definitely need the ability to have people more readily blow after accidents or in the face of poor driving but where we lack a distinct smell of alcohol.

 

[Humphrey Bogart]

I for one am happy they've closed the loopholes.  I had a soldier get off on one of these technicalities for what was his third violation.  He hired a good lawyer who got the charges thrown out, even though he was guilty as sin. 

Luckily he was pulled over four months later for the exact same reason.  A gigantic administrative burden and a mouth piece to boot.  I enjoyed seeing him punted. 

 

[PuckChaser]

I don't think anyone is upset the loopholes are being closed. More upset at the apparent erosion of due process. Keep in mind, this is the same Liberal government that was up in arms over C-51 and its apparent erosion of rights.

 

[Bruce Monkhouse]

Isn't the old phrase "driving is a privilege,  not a right" apply here?

 

[trooper142]

I don't think anyone is upset the loopholes are being closed. More upset at the apparent erosion of due process. Keep in mind, this is the same Liberal government that was up in arms over C-51 and its apparent erosion of rights.

It's not an erosion of due process, as the accused would still be compelled to court to answer to the charge.  No one is suggesting straight to prison without an opportunity to defend themselves, simply allowing police officers a greater chance of catching impaired drivers, which I think everyone can agree, are a menace to everyone who shares the road.

Quote from Global News report:

The government says today’s laws allow many impaired drivers to escape detection at check stops. The changes make it plausible that police could demand a breath sample from every driver going through a road block.

The changes, they say, would also cut back on litigation surrounding the question of whether or not the officer has “reasonable suspicion” to demand a breath sample.

The courts have been pretty clear on whether the ASD is arbitrary, and have ruled time and again the detention at the side of the road on reasonable suspicion alone is justified due to the overreaching threat impaired drivers pose to the general public.

With all that being said, I anticipate the law as it's written will not survive legal challenges, and we won't see what the courts deem acceptable for some years to come.

 

[the 48th regulator]

As you all know I have my medical cannabis prescription.

One thing I will say, I will not operate a vehicle when I medicate,  Whether recreational or medical, if it impairs your judgement, even in the slightest, you are a danger to others on the roadway.  Period Ful stop.

Do the laws and technology need to change, yes eventually as we explore more how this affects humans just like we have with alcohol, find a threshold line that we can equally decide impairment, regardless what the person taking Cannabis says.

Public safety is the priority, period.

dileas

tess

 

[the 48th regulator]

Before anyone says anything to me personal, see above about my views.  I am posting this for information only, and yes it is American, not Canadian article.

Stoned drivers are a lot safer than drunk ones, new federal data show

dileas

tess

 

[Halifax Tar]

As you all know I have my medical cannabis prescription.

One thing I will say, I will not operate a vehicle when I medicate,  Whether recreational or medical, if it impairs your judgement, even in the slightest, you are a danger to others on the roadway.  Period Ful stop.

Do the laws and technology need to change, yes eventually as we explore more how this affects humans just like we have with alcohol, find a threshold line that we can equally decide impairment, regardless what the person taking Cannabis says.

Public safety is the priority, period.

dileas

tess

Well said 48th.

 

[the 48th regulator]

Well said 48th.

Thank you,

Over the years I have had to gauge myself when on my medication (Not Cannabis) so I know that any kind of prescribed meds, you really need to understand what the official side effects are, and especially what they do to you personally.  This gave me the heads up, when I started to medicate with Cannabis.  I decided, treat it like any other, and if it affects me, even the slights; STOP.

Unfortunately, sometimes I need that STOP when I am posting online ...... :/    ;D

dileas

tess

 

[Fishbone Jones]

I have no problem with the legislation either.

However, if we're going to piecemeal every law, to deal with each specific drug we're still going to have a bunch of confusing, possibly illegal laws.

The way I see it, you have to cover them all.

You can't vilify alcohol and cannabis, while letting people drive around on tranquilizers, opioids and other drugs that cause impairment..

Here's the conjecture, some what ifs and where I (playing Devil's Advocate) think they may have a problem. In order to make the law non discriminatory, we'll have to establish tests, limits and screening criteria and force everyone, taking any kind of impairing substance to have a roadside to determine their ability to drive. We'll need to decide the impairment based on amounts of a specific drug compared to body weight and blood toxicity. People that operate vehicles or equipment, while taking medication that states. "Not to be taken if operating machinery, may cause drowsiness" should also be charged. That's only logical and fair, right? No Charter challenges allowed. After all when the greater good is involved, individual rights are forfeit.

These are the types of arguments that the Crown and challenging lawyers and legislators from all levels will have to engage with.

I said previously, it will become legal on 010001JUL18. There will likely be a number of Charter challenges on 020001JUL18.

Like John, my day starts with "What do I have to do? Do I need to drive anywhere or is this a day I can medicate fully? Have I taken a CBD dominant strain or a THC one? Lot's of variables on the way to making a decision to drive or not.

I don't know what it's going to look like in 2018, but I don't think it's going to resemble anything like we've been discussing. It's something I'll be watching, but not being capable of influencing any kind of law in Canada, I'm not going to worry about all the bluster from the House until we start getting down to the short strokes.

We knew from the beginning, with the appointment of Blair to the file, that nothing was going to be easy and that there would be no rhyme or reason to what they dreamed up. Put in the hands of a biased, virulent, anti cannabis cop, instead of someone with a more rounded and open scientific, approach.

But, like I say, this is only a jumping off spot and no plan survives first contact.

My  :2c:

 

[brihard]

Impairment by other drugs has been illegal for a long time too. With cannabis, what's new here is an offense covering specific concentrations in the blood, similar to alcohol. The logic there is the same as with alcohol- at a certain concentration, research indicates that certain cognitive processes are impaired whether obviously noticeable or not. They are beginning to have those numbers for marijuana. The law provides for the same with other drugs once the science catches up, as it leaves those numbers to be outlined in regulation versus legislation.

 

[PuckChaser]

In your experience, how do conviction rates compare between alcohol and drug impairments? Are drug impairments harder to prove?

 

[Hound Dog]

In your experience, how do conviction rates compare between alcohol and drug impairments? Are drug impairments harder to prove?

Drug impairments are generally much harder to prove. Impaired cases always come down to the testimony of the arresting officer, and/or anyone else who witnessed the accused driving. There are a plethora of arguments that can be made against the allegation that a person was impaired, and depending on how well the officer/witnesses testify they may be quite persuasive - or not. With alcohol, though, there are telltale signs, for example, a smell of liquor on a person's breath generally indicates that they consumed alcohol. That combined with other signs, like slurring speech and poor driving, may cause the court to infer that they are impaired. Usually, it provides reasonable grounds to demand a breath sample, and at that point the person's blood alcohol content can be ascertained. With alcohol, an impaired investigation often leads to a drive over 80 investigation.

Now, take away those signs. You have someone who swerves across road lines, accelerates/decelerates for no reason and doesn't signal to turn. They are pulled over but their car doesn't smell of anything and the observation is that they are lethargic. The officer also notes their pupils are dilated. They are possibly impaired by a drug, but the officer isn't in a position to demand a blood test. Best case scenario, there is a Drug Recognition Expert (DRE) nearby who can do an evaluation, but even then all you have is an opinion. Without that, all you have is the officer's observations. His defence lawyer gets up and argued the following: my client was driving in an unfamiliar area and was using his cell phone as a GPS. Because he was paying attention to his phone, he crossed over the lane markings and didn't maintain a steady speed. His pupils were dilated because he just came off a 12-hour shift and is extremely tired, plus it's night and the officer shines his flashlight in my client's eyes suddenly. Now, maybe you don't believe him, but that's reasonable doubt.

I've been on both sides of this coin. I'm a prosecutor now and used to be with legal aid. Impaired cases are challenging and often frustrating. They are also prolific. They take up massive amounts of court time because there is always something to argue. And these new laws won't change that; it will only change what arguments are made.

 

[the 48th regulator]

A 'significant erosion of rights': Sask. defence lawyer on proposed impaired driving laws



Bob Hrycan says Prime Minister Justin Trudeau is stripping rights enshrined by his father

By Stefani Langenegger, CBC News Posted: Apr 17, 2017 3:03 PM CT Last Updated: Apr 17, 2017 3:03 PM CT

A 'significant erosion of rights': Sask. defence lawyer on proposed impaired driving laws
Bob Hrycan says Prime Minister Justin Trudeau is stripping rights enshrined by his father

By Stefani Langenegger, CBC News Posted: Apr 17, 2017 3:03 PM CT Last Updated: Apr 17, 2017 3:03 PM CT
The proposed federal legislation would allow police to command a breathalyzer from drivers regardless of whether they suspect the person has been drinking.

The proposed federal legislation would allow police to command a breathalyzer from drivers regardless of whether they suspect the person has been drinking. (CBC)
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A Regina lawyer says proposed impaired driving laws introduced by the federal government last week are a terrible "step backwards" for the rights of all Canadians.

Bob Hrycan says it is not lost on him that it was the current Prime Minister's father, Pierre Trudeau, who made sure the country had a Charter of Rights.

"He implemented the Charter as a means to protect citizens from the overreach of government," Hrycan said. "What Justin Trudeau is doing is essentially advancing government overreach. I think that's unfair."
Bob Hrycan

Regina lawyer Bob Hrycan says the proposed federal legislation governing impaired driving would significantly erode the rights of Canadians. (Mike Zartler/CBC)

Right now, Hrycan says drivers are protected from unfair searches — including complying with a breathalyzer — unless a police officer has a reasonable suspicion that the driver has been drinking.

The new law would remove that requirement for officers.

"Not only can they pull you over for any reason, they can demand breath samples from you for no reason," Hrycan said.

"So that's a significant erosion of rights."

Saliva testing for drugs

When it comes to testing for drug use, police must still have a "reasonable suspicion" that a driver has been using drugs before requiring a saliva test.

However, Hrycan said the threshold of two nanograms of THC (the main psychoactive compound in cannabis) could be in a person's body for weeks after they were actually impaired.

"That means that if you occasionally smoke a joint you can be pulled over, detained and subject to screening within 10 days after smoking that joint," Hrycan said. "That's fundamentally unfair."

Hrycan says there is no doubt the new laws will face a constitutional challenge, but until those cases work their way to the Supreme Court he says the federal government has created more confusion about impaired driving in Canada.

"We're not going to have more certainty," Hrycan said. "We're actually going to have more uncertainty. And that's regretable."

dileas

tess

 

[Journeyman]

You have someone who swerves across road lines, accelerates/decelerates for no reason, and doesn't signal to turn.

Ah, you're in Kingston.  :nod:

 

[Lumber]

Found this interesting piece at the bottom of a summary article on the new legislation:

http://news.nationalpost.com/news/canada/canadian-politics/pot-brownies-federal-taxes-and-more-what-isnt-in-the-liberal-marijuana-legalization-bill

Seems like we're trading one set of loopholes in the law for alcohol, for another set for THC. How many drug drivers are going to get off because they can provide reasonable doubt because "THC effects me differently".

The other is the 'intervening drink defense'. I get a call for a motor vehicle collision. I arrive on scene to find two cars pretty banged up. One guy sober, the other pretty wobbly. The sober guy says the other one blew through a red light, he couldn't dodge him on time, and they collided. He says that as soon as the other driver got out of the car, he grabbed a mickey of fireball from the back and chugged it, then tossed the bottle into the woods somewhere. I search but can't find the bottle. In this instance, a driver who knows he was probably driving drunk knows enough about drunk driving law that he knows we cannot get him for impaired if after the time of driving he consumed alcohol, since we can no longer reliably test how much alcohol was in his blood. If I had the bottle and can prove it went from full to empty, *maybe* I could get a toxicologist to extrapolate how much alcohol he consumed, and work back using his body mass to determine his BAC at time of driving, but in this case (and nearly every case) I don't have enough for that. This has happened many times. In one really notorious case a police officer here in Canada pulled exactly this stunt. It's also totally common in impaired hit and runs- someone gets in an accident, scurries home, and runs inside and has a couple beers.

I smell (lol) an intervening "joint" defence.

Buddy's high as the rafters and gets in a jolly roll-over, crawls out the smashed windscreen and lights up a fatty. Continues smoking joints until the police arrive. How can they prove he was impaired while driving if he's lightin' up right then and there?

#acquitted

 

[mariomike]

In one really notorious case a police officer here in Canada pulled exactly this stunt.

http://www.theglobeandmail.com/news/british-columbia/court-hears-claim-rcmp-officer-drank-vodka-to-beat-drunk-driving-charge/article535569/
"...that people who have an accident while driving after drinking can defeat an impaired charge if they have something to drink after the accident, and before they are tested by police."

It was not unheard of for some motorists to permanently stash a mickey in the trunk "to open and drink only in case of an accident". 
They could remain on scene, and drink while sitting on the curb.

 

[shawn5o]

http://www.theglobeandmail.com/news/british-columbia/court-hears-claim-rcmp-officer-drank-vodka-to-beat-drunk-driving-charge/article535569/
"...that people who have an accident while driving after drinking can defeat an impaired charge if they have something to drink after the accident, and before they are tested by police."

It was not unheard of for some motorists to permanently stash a mickey in the trunk "to open and drink only in case of an accident". 
They could remain on scene, and drink while sitting on the curb.

I don't think that works anymore. Blood testing (I think) can establish how many drinks and when drinking started.

 

[shawn5o]

Yes, I'm challenged to understand how removing the presumption of innocence is a good thing.

It gets worse

"OTTAWA -- The Supreme Court of Canada is upholding procedures that permit shortcuts for allowing a motorist's breathalyzer test results into evidence -- even in cases where demanding the breath sample may have been unlawful."
http://www.ctvnews.ca/canada/supreme-court-of-canada-upholds-procedure-for-allowing-breathalyzer-evidence-1.3491387

and

"Legislation allowing alcohol testing of drivers without prior suspicion tabled on Parliament Hill
If Bill C-46 is passed into law, “police officers who have an approved screening device on hand would be able to test any driver they lawfully stop, even if the officer does not suspect the driver has alcohol in his or her body,” the federal justice department states on its website."
http://www.canadianunderwriter.ca/insurance/legislation-allowing-alcohol-testing-drivers-without-prior-suspicion-tabled-parliament-hill-1004112201/

I understand that police can stop anyone operating a motor vehicle and I am OK with that.

But i don't want to see our rights eroded by stealth

 

[Rifleman62]

How often are the approved screening devices calibrated and recorded in a log book?

When marijuana is legalized, there will be problems with testing. In the US (all US States???) if police smell it during a vehicle stop, the occupants and vehicle can be searched.


http://www.canadianunderwriter.ca/legislation-regulation/new-impaired-driving-laws-let-majority-stoned-drivers-escape-prosecution-advocacy-groups-1004117528/

New impaired driving laws could let ‘majority of stoned drivers’ escape prosecution: advocacy groups