Saskatchewan Federation of Police Officers 111 Per Se Blood Drug Concentration offences Clauses 1 and 2 create offences (new paragraphs 253(3)(a) and (c) respectively) for having a BDC above a prescribed limit, or a prescribed combination of BDC and BAC, within two hours of driving. These are subject to the same sentences as existing impaired driving offences. These clauses also create a “low Blood Drug Concentration” offence (new paragraph 253(3)(b)) that is punishable only by a fine of no more than $1000 and which would not count as a previous conviction for the purposes of minimum sentencing in impaired driving proceedings. These offences are, like the “over 80” offence, subject to an exception for “innocent intervening consumption.” The following considerations support the consistency of these provisions with the Charter. As with the new “over 80” offence, the definition of the offence in terms of BDC/BAC levels within two hours of driving criminalizes “bolus consumption” and post-driving consumption that may obstruct the investigation of an offence. These are both categories of reckless, morally culpable conduct, the prohibition of which serves the Government’s objective of combatting impaired driving. As with the “over 80” offence, these offences have a carve-out for innocent intervening consumption, and so are tailored to exclude conduct that is unrelated to the objective. Admissibility of roadside statements Clause 15 (new section 320.31(9)) provides that a statement made by a person to a police officer that is compelled under a provincial Act is admissible for the purpose of justifying a roadside screening demand authorized by the Criminal Code. This has the potential to engage the protection under section 7 of the Charter against self-incrimination. The following considerations support the consistency of this section with the Charter. While compelled statements under provincial highway legislation may not be used to prove an element of an impaired driving offence at trial, the same concerns do not apply where the compelled statement is to be used for the purpose of justifying an Approved Screening Device (ASD) demand. Officers should be entitled to use facts at their disposal, including compelled statements, for the purpose of establishing the reasonable suspicion required to make an ASD demand. Searches or Seizures (section 8) A number of provisions in the Bill have the potential to engage section 8 of the Charter, which protects against “unreasonable” searches and seizures. A search or seizure will be reasonable if it is authorized by a law, the law itself is reasonable in striking an appropriate balance between privacy interests and the state interest being pursued, and the search is carried out in a reasonable manner. Rules surrounding roadside screening for alcohol and drugs, and rules surrounding breath and blood testing, govern searches and seizures and therefore implicate section 8 of the Charter. Mandatory Alcohol Screening Clause 15 (new section 320.27(2)) allows an officer to require a driver to provide a breath sample on an ASD if the officer has an ASD close at hand. Unlike the current framework, this provision does not require that the officer form a reasonable suspicion that the driver has alcohol in his or her body. Reasonable suspicion will still be required where the ASD is not at hand. The following considerations support the consistency of this section with the Charter. The provision applies only if a person is otherwise lawfully stopped and provides lawful authority to interfere with privacy in a breath sample to further the important objective of enhanced road safety. The privacy interest in a breath sample in this context is low. The Supreme Court of Canada has recognized as reasonable the authority, under provincial law and common law, of police officers to stop vehicles at random to ensure that drivers are licensed and insured, that the vehicle is mechanically fit, and to check for sobriety. The information revealed from a breath sample is, like the production of a drivers licence, simply information about whether a driver is complying with one of the conditions imposed in the highly regulated context of driving. It does not reveal any personal or sensitive information and taking the sample is quick, and not physically invasive. A “fail” does not constitute an BILL C-46 CONTINUED
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