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Drivers Cannot Refuse To Give A Breath Test Under Canada's New Impaired Driving Laws

Law enforcement will no longer need reasonable suspicion to demand a test.

Update November 2018: As of December 18th, the laws around impaired driving in Canada will see significant changes. The government is warning newcomers to Canada - including temporary residents, permanent residents and refugee claimants - that an impaired driving charge could get them removed from the country. All the details here.

Canada will soon introduce a set of changes to its impaired driving laws that will give police the power to demand a breath sample from any driver they pull over without reasonable suspicion, reports the Times Colonist.

The new legislation (Bill C-46), which comes into effect on Dec. 18, will mean that drivers cannot refuse to give a breath test when they are demanded for one at roadside. They must comply or face criminal charges and penalties similar to an impaired driving conviction.

They also cannot use common arguments to defend themselves against impaired driving charges. For example, under the current law, drivers who drank just before driving could make the case that they were not over the blood alcohol limit while behind the wheel because the alcohol was not absorbed yet. The new legislation will render such arguments invalid by making it illegal to be over the limit within two hours of driving.

"The worry is a person without legal advice might not want to provide a sample," says BC laywer Michael Mulligan. "Even if they haven’t been drinking, they might find it intrusive. But they could find themselves charged with failing to provide a sample and end up with a criminal record and a long driving prohibition."

The federal government put forth this change in hopes that it will increase the number of impaired drivers detected at roadside check stops. According to research, as many as 50 per cent of impaired drivers make it through those inspections undetected.

However, the legislation may face a constitutional challenge. Allowing police to demand a breath test from anyone without suspicion could infringe on people's basic rights to privacy and bring forth a slew of controversial impaired driving cases across Canada. It could also allow police to unfairly target visible minorities.

"Do we really expect the police to select the locations of the new-style checkstops at random? If you want to limit the ability of police to target and harass particular communities, giving them broader latitude to erect checkpoints and delay commuters and travellers seems like a … counterintuitive way of doing that. To put it as politely as possible," says Colby Cash for the National Post.

Source: The Times Colonist (Louise Dickson, July 3, 2018), The National Post (Colby Gosh, July 9, 2018)