Skip to content

Licence, registration – breath sample: New impairment laws now in effect

Yellowknife drivers can expect to be called to provide more than just the proper paperwork the next time they’re pulled over by police.

Along with handing over their licence, registration and insurance, motorists could be required to provide a breath sample – without reasonable suspicion they’re impaired.

The change, which came into effect nationally Tuesday is part of new federal legislation – Bill C-46 – which makes sweeping reforms to transportation offences, including alcohol-impaired driving, under the Criminal Code.

Previously, police officers had to have reasonable suspicion a driver was impaired by alcohol – usually based on indicators such as slurred speech, odor or open containers – before they could demand a breath sample. Now, police officers with approved screening devices can demand a breath sample during any lawful stop -- after an infraction or at a checkstop -- without the prior prerequisites.

A member of Police Dog Services stops to talk with a driver during Sunday's ride check. Brendan Burke/NNSL photo.
NNSL file photo. As of today, police officers with approved screening devices can demand breath samples without reasonable suspicion a driver is impaired. The change is part of new federal legislation that aims to make it easier to detect and prosecute impaired drivers.

If an officer suspects a driver to be impaired by drugs, they'll still need reasonable grounds before they can demand physical co-ordination tests and a bodily fluid sample – most likely a tongue swab.

The stricter legislation, according to Canada’s Justice Minister Jody Wilson-Raybould, aims to “modernize” and “simplify” the legal framework around impaired-driving laws, while making it easier to detect and prosecute impaired drivers. The bill recognizes driving as a privilege and a regulated activity.

Up to 50 per cent of drivers with a blood alcohol concentration over the legal limit go undetected at roadside check stops, according to the federal government.

The introduction of mandatory alcohol screenings, however, has prompted criticism and concern from some, including defence lawyers, who say the legislation infringes on Charter rights and welcomes court-clogging legal challenges.

But Peter Harte, a Yellowknife-based defence lawyer, sees parts of the legislation as more confusing than problematic.

While he personally doesn’t take issue with a tougher approach to curtailing drunk driving, Harte said drivers will find it hard to wrap their heads around some of the new rules related to legal blood-alcohol concentration levels.

As of Tuesday, drivers who have been found to have a blood alcohol level "equal to or exceeding 80 mg of alcohol in 100 ml of blood” within two hours after "ceasing to operate" a vehicle will be breaking the law. But if it can be determined they drank the alcohol after driving then they may avoid a charge.

The new measures are meant to eliminate common in-court defences to impaired driving charges, including claims the alcohol a driver drank just prior to driving was not completely absorbed in their system and therefore they were not over the legal limit while on the road. The two-hour time frame is also meant to halt defences from drivers who argue they drank after driving but before being tested.

“There are some cases where people get in an accident and say 'oh, yeah, I had a few shots to calm my nerves and I was under the legal limit at the time, but when I had these shots, that's what put me over,” said Harte.

But Harte, who hasn't encountered someone drinking after an accident in decades of defence work, doesn't think it was a problem that arose that often.

“That part of the legislation, I just see it as overkill,” said Harte.

Harte also questions how the new two-hour window after ceasing to operate a vehicle will be applied.

“Some of this legislation is going to be, I think, extremely difficult for people to understand. I don't understand myself why the government thought it was necessary to do that,” added Harte.

But Harte sees the bulk of the legislation as useful in simplifying long-uncertain legal language.

Parliament now describes the legal limit as “0.08 or over,” instead of “over 0.08.”

Mandatory minimum penalties for impaired offences are also set out in the new legislation. As of today, drivers caught with blood alcohol concentration of 80 to 119 mg will face a mandatory minimum fine of $1,000.

In a news release informing residents of the new impaired-driving laws, NWT Mounties warned the public the rules apply to all forms of vehicles.

“With this new legislation, citizens of the NWT who are operating a motor vehicle, including an ATV or snowmachine, can expect to be requested to provide a breath sample by our members at any lawful stop or checkstop,” stated RCMP spokesperson Marie York-Condon.

Failing or refusing to provide a sample, wrote York-Condon, “carries the same, or greater, penalties as driving while impaired.”

York-Condon added Mounties in the territory are also able to test for drug-impaired driving through standard field sobriety tests (SFST) or a drug recognition expert.

Mandatory alcohol screening has already been adopted by more than 40 countries across the world, according to the Government of Canada.