Canada's new drug-impaired driving law: the need to consider other approaches

The objects of this study were: To review the state of drug-impaired driving in Canada, particularly in light of the 2008 amendments to the Criminal Code, which authorized police to demand standardized field sobriety testing and drug recognition evaluations, and to consider whether alternative enforcement models would be more effective in terms of detecting and prosecuting drug-impaired drivers and thereby achieve greater deterrence.

This article provides a review of survey data, roadside screening studies, and postmortem reports that indicate the prevalence of driving after drug use in Canada. It evaluates the Criminal Code's 2008 amendments and their impact on charges and convictions for drug-impaired driving. It then reviews some alternative enforcement models for drug-impaired driving that have been adopted in other jurisdictions, particularly toxicological testing, and evaluates them against Canada's social, political, and constitutional framework.

Survey data, roadside screening studies, and postmortem reports indicate that driving after drug use is commonplace and is now more prevalent among young people than driving after drinking. Unfortunately, the 2008 Criminal Code amendments have not had their desired effects. The measures have proven to be costly, time-consuming, and cumbersome, and are readily susceptible to challenge in the courts. Accordingly, the charge rates for drug-impaired driving remain extremely low, and the law has had minimal deterrent effects. The review of alternative enforcement models suggests that a system of random roadside saliva screening, somewhat similar to the model used in Victoria, Australia, will be the most effective in terms of detecting and prosecuting drug-impaired drivers and most consistent with Canada's legal and constitutional system.

Canada should establish per se limits for the most commonly used drugs, enforceable through a system of screening and evidentiary tests. This will be more efficient and cost-effective and will result in more reliable evidence for criminal trials. Although this system will inevitably be subject to constitutional challenge, existing case law suggests that it should be upheld as a reasonable limit on constitutional rights.