Erika Chamberlain

The case for a 0.05% criminal law blood alcohol concentration limit for driving.

anada established its current 0.08% Criminal Code blood alcohol concentration (BAC) limit for drivers in 1969*. 12 At the time, this was a substantial improvement, as it established a per se BAC limit under the criminal law and required impaired driving suspects to provide breath samples. However, in the more than three decades that have followed, breath testing instruments have become more accurate, public attitudes toward impaired driving have hardened, and scientific research has established that impairment begins at levels below 0.08%. In response, the international trend was and continues to be to reduce per se BAC limits to 0.05% or lower. The legal BAC limits of various countries are not always uniformly reported. The legal limit is reported to be 0.05% in numerous countries, including Argentina, Australia, Austria, Belgium, Bulgaria, Croatia, Denmark, Finland, France, Germany, Greece, Iceland, Israel, Italy, Macedonia, the Netherlands, Norway, Portugal, Slovenia, and Spain. Russia and Sweden have a legal limit of 0.02%, and Poland has a limit of 0.03%. Finally, the official limit is reported to be 0.00% in the Czech Republic, Hungary, Malaysia, Romania, Saudi Arabia, and Turkey, while Japan’s limit is 0.00% in practice. 3‐5

Zero blood alcohol concentration limits for drivers under 21: lessons from Canada

Graduated licensing programs (GLPs) that include zero or low blood alcohol concentration (BAC) restrictions have proven to be a popular and effective measure for improving traffic safety among young people. However, a major drawback of such programs, at least in Canada, is that the BAC restriction is lifted on completion of the GLP, which typically occurs around the age of 18 or 19. This corresponds to the legal drinking age in Canada, a time when alcohol consumption and rates of binge drinking increase. It is not surprising, then, that 18–20 year-old drivers are dramatically overrepresented in alcohol-related deaths and injuries. One way to address this problem is to raise the legal drinking age, as has occurred in the United States. In jurisdictions, like Canada, that are unlikely to raise the legal drinking age, other measures are necessary to separate drinking from driving among 18–20 year-olds. This article recommends that the zero BAC restrictions be extended beyond the completion of the GLP, until drivers reach the age of 21. The scientific evidence for such a measure is reviewed, and the growing government support for enacting such BAC limits in Canada is described.

Random Breath Testing: A Canadian Perspective

Objective: The purpose of this article is to examine the case for and challenges to implementing random breath testing (RBT) in Canada, with a particular focus on the persistence of impaired driving under the current method of law enforcement. It seeks to place RBT within Canadas existing legal and social framework. Methods: This article reviews Canadas impaired driving record, charge and conviction rates, and law enforcement challenges. It then summarizes the impact that RBT programs have had in comparable countries. Finally, it examines whether the enactment of RBT would be upheld under Canadas Charter of Rights and Freedoms. Results: Canada has made little progress in reducing impaired driving since the late 1990s. Current enforcement methods fail to detect the majority of impaired drivers, even when stopped at sobriety checkpoints. This has reduced the perceived risk of apprehension and helps to explain the persistence of impaired driving in Canada. Faced with similar challenges, Australia, New Zealand, Ireland, and most EU countries have introduced comprehensive RBT programs. Comprehensive RBT has been shown to significantly reduce impaired driving deaths and injuries. Proposals to enact RBT in Canada will inevitably generate claims that it violates drivers’ Charter rights. Similar arguments have been raised in opposition to RBT in other countries. This article demonstrates that RBT is compatible with the existing Charter case law involving traffic legislation and border, airline, and courtroom security. Conclusion: Experience in other countries indicates that RBT is a minimally intrusive, cost-effective, and publicly accepted impaired driving countermeasure and that it would significantly improve the detection and deterrence of impaired drivers. Moreover, RBT is compatible with the Charter.

Canada's New Drug-Impaired Driving Law: The Need to Consider Other Approaches

Objective: 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. Method: 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 Codes 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 Canadas social, political, and constitutional framework. Results: 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 Canadas legal and constitutional system. Conclusions: 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.

The challenges of implementing interlock best practices in a federal state: the Canadian experience

Alcohol interlocks have been recognised as an effective and important component of the strategy to deal with impaired drivers.1 ,2 An interlock is a small breath-testing device connected to the engine to prevent a vehicle from being driven if the drivers blood-alcohol concentration (BAC) is above a low preset level (usually 0.02%). Interlocks contain sophisticated anticircumvention features and computerised data logs that record the results of all breath tests and attempts to tamper with the device. Over the past few decades, various jurisdictions have introduced interlock programmes as an impaired driving countermeasure. Accordingly, interlocks have been the subject of extensive consultation and collaboration among researchers and policy-makers worldwide.3 This has resulted in a catalogue of ‘best practices’ that is generally supported by researchers and readily accessible to governments and licensing authorities.4 Nevertheless, there remains a relatively disparate set of interlock programmes in force around the world. The variety of programmes is particularly obvious in federal nations, like Canada, where each province and territoryi has authority over driver and motor vehicle licensing. ### Canadas division of legislative authority Canada is somewhat unique among federal nations in that criminal law is governed by a federal Criminal Code .5 Thus, it is the federal government that has established the criminal impaired driving offences and their respective penalties. For example, the offences of impaired driving, driving with a BAC above 0.08% and refusing to participate in a required impairment test each carry a minimum sentence of a

The Need for a ‘Standing’ Rule in Misfeasance in a Public Office

1000 fine and a 1-year driving prohibition for a first offence. In addition to and alongside these federal criminal sanctions, each province can impose administrative licensing and other countermeasures, including suspensions and mandatory remedial programmes.6 , …

Alcohol Provider Liability in Canada and the United Kingdom: Legal and Cultural Influences

Misfeasance in a public office has typically been described as a ‘special’ or ‘exceptional’ tort.1 This is partly attributable to the limited number of defendants against whom it can be claimed. However, it is also because of the limited range of conduct that can form the subject matter of the tort: historically, it was limited to abuses of power that were directly targeted at particular plaintiffs, such as refusing to enter the plaintiff on the electoral rolls,2 or revoking a liquor licence for reasons extraneous to the licensing process.3 The essence of the tort was the misuse of power by a public officer with the deliberate intent to harm the plaintiff. Because such flagrant abuse of power is rare, misfeasance in a public office, though a tort of lengthy pedigree, was litigated infrequently. Nevertheless, the tort has undergone rapid expansion in recent decades, and threatens to shed its ‘exceptional’ character if current trends persist. There has been a relaxation of the elements necessary to prove a claim: a watering-down of the requisite malicious state of mind; an erosion of the necessary proximity between the public officer and the plaintiff; and a greater emphasis on the plaintiff’s loss. The result is that a public officer can now be sued in misfeasance for a non-vindictive breach of duty that was not directed at anyone in particular, by a plaintiff with no legally enforceable right to see the duty performed. This offends the special nature of the tort. The reach of the misfeasance tort will continue to expand unless there is a return to the historical limitations on the types of plaintiffs who had ‘standing’ to sue. In particular, a plaintiff had to establish that the defendant had violated his legally protected rights. It was not sufficient that the defendant had acted unlawfully and that the plaintiff had suffered loss. Rather, the defendant’s actions had to be a wrong with respect to the plaintiff. This requirement could be satisfied if the defendant had maliciously targeted the abuse of power at the plaintiff, or had

The tooth fairy, Santa Claus, and the hard core drinking driver

This article describes the extent of alcohol provider liability in Canada and the United Kingdom. While the Canadian courts focus their analysis on the foreseeability of harm, the UK courts determine the duty of care based on an alcohol providers assumption of responsibility. This has led to a much broader, more paternalistic duty of care for alcohol providers in Canada. Commercial providers have been subject to a broad duty of care since the 1970s, and the lower courts have more recently considered imposing liability on so-called ‘social hosts’ in certain circumstances. In contrast, the UK courts have been hesitant to impose any kind of alcohol-related liability, commenting that adults are responsible for the consequences of their own alcohol consumption. This article explores some of the potential legal and social reasons for this divergence in alcohol provider liability. The wide duty of care imposed on Canadian alcohol providers may be part of a larger trend to expand the duty of care, based on Canadas continuing allegiance to the Anns test. In addition, the divergent approaches may reflect public attitudes and government policies toward alcohol consumption in the two jurisdictions.