Ottawa police stepping up use of mandatory roadside alcohol testing

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If police pull you over for rolling through a stop sign or driving 60 km/h in a 50 km/h zone, don’t be surprised if the officer asks for more than just your licence and registration.

You might find yourself having to prove you can walk in a straight line or balance on one foot, or you may be told to provide a breath sample to test for alcohol, or even swab your cheek to test for cannabis or cocaine.

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Mandatory alcohol screening (MAS) has been the law in Canada since 2018, when cannabis was legalized. Four years of the pandemic and a general unfamiliarity with the law has slowed its use by police — until now.

Ottawa police are stepping up its use of MAS to combat impaired driving, which after years of decline, is rising again. Earlier this month, the Ontario Provincial Police (OPP) said it would conduct a mandatory alcohol screening at every traffic stop in the Greater Toronto Area.

“I’m not a sociologist, but I just wonder if people struggled during COVID and developed some bad habits and now, going back into the office, they just haven’t dropped those habits,” said Acting Sgt. Amy Gagnon of the Ottawa Police Service’s Impaired Countermeasures and Impounded Vehicles Section.

The OPP says impaired driving charges are up nearly 30 per cent from the previous five-year average. In Ottawa, 13 people died in collisions last year where alcohol or drugs were believed to have been involved. In 2023, Ottawa police charged 885 people with impaired driving offences, nearly 2.5 charges per day. Police are seeing more people driving impaired, especially younger people, Gagnon said.

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“One of the disturbing trends we’re seeing is with the 20-30 year olds,” Gagnon said. “Pre-COVID, we didn’t have a high percentage of drivers in that age category who were charged with impaired driving. But post-COVID, they now match the 40-50-year-olds.”

The increase in people driving impaired by drugs is a disturbing trend, said Steve Sullivan, executive director of MADD Canada. There is a shortage of data, however, and Sullivan cautions that the number of people charged by police isn’t always a reliable indicator. More charges might just mean more enforcement. Since it’s easier to test for and prove alcohol use than drug use — and the charge is the same no matter what the cause of impairment — police often opt to only lay an alcohol charge.

A better indicator, Sullivan says, is the presence of drugs or alcohol in road fatalities. In a 2014 study of 2,297 road deaths in Canada, 13 per cent of drivers tested positive for alcohol, 15.5 per cent were positive for both alcohol and drugs and 26.9 per cent were positive for drugs alone.

“The alcohol deaths were dropping and the deaths with the presence of drugs has been increasing,” Sullivan said. “The gains we were making with alcohol impairment are being offset by the increase in the presence of drugs.

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“When you see the presence of alcohol and drugs, those are the highest risk drivers of all.”

Ottawa’s Traffic Enforcement Unit has been experimenting with Mandatory Alcohol Screening since the fall. Gagnon says other officers are beginning to use it, too.

“As with any change, it takes a community time to adjust to the new laws, so we’ve been taking our time implementing them. But seeing our impaired driving numbers are going up — collisions and fatalities — we’re following what the OPP in the Toronto area is doing,” she said.

“But it has to be random. We have to assure the courts that we’re not targeting specific people. So officers, when they’re going out on their shift might say, ‘Today, every vehicle that I stop for speeding, they’re going to have a mandatory alcohol screening.’ Or, ‘Today we’re doing stop sign enforcement so every stop sign infraction I’m going to do mandatory alcohol screening.”

All Ottawa officers are trained to do a simple roadside sobriety test, checking the driver’s eyes for nystagmus (the involuntary eye movements that everyone has but are amplified by drug or alcohol use). They may ask the driver to walk a straight line and turn, or to balance on one foot — tests meant to gauge the driver’s ability to multitask. They can also order the driver to blow into a roadside alcohol tester or supply saliva that can detect the presence of cannabis or cocaine.

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Such roadside tests can’t be used in court, but they are sufficient for police to issue an immediate licence suspension. Refusing the test is itself a criminal charge that comes with a mandatory criminal record, fine and licence suspension.

Fail the roadside test, and police have the probable cause they need to arrest you and take you to the police station for more rigorous breath or urine tests.

The MAS law is a new tool for police to use as the traditional Reduce Impaired Driving Everywhere checkpoints become less effective. Within minutes of police setting up a RIDE, the locations will be noted and published on many popular phone apps giving drivers a chance to avoid them. Police still conduct RIDEs — most recently on April 20 (aka 4/20, a day marked by the celebration and consumption of cannabis) — but they have to change locations more frequently, Gagnon said.

Alcohol impairment laws remain the same: a blood alcohol concentration between 0.05 and 0.079 warrants a fine and licence suspension, while a BAC of 0.08 and above results in a criminal charge.

Drivers with between 2 and 5 nanograms of THC per millilitre of blood face a maximum $1,000 fine. Above 5 ng/ml the fine jumps to a minimum of $1,000 for a first offence, with larger fines and jail terms for subsequent offences.

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The law’s tolerance for drivers who combine drugs and alcohol is even lower.

Those who are prescribed cannabis for medical use won’t face the minimum penalties but can still be charged if their driving is impaired. There is zero tolerance for drugs or alcohol for young drivers 21 and under, novice drivers with G1, G2 or M1, M2 licences and commercial drivers.

People and police are still getting used to the new mandatory alcohol screening law, Sullivan said, but similar laws in other countries have proved very effective at reducing deaths and injuries from drunk and drugged driving.

“It begins to change people’s behaviour. Their perception of getting caught goes up and that is really what deters people. If you know you’re going to get pulled over and you’re going to have to blow, that’s what really changes people’s behaviour,” he said.

Ottawa criminal defence lawyer Michael Spratt sees it a different way. Invoking MAS at every traffic stop wasn’t the original intention of the law and leaves it open to abuse by police, he says.

“I don’t think it was ever contemplated that it would be applied to every single driver at every single stop,” Spratt said. “It has been found to be Constitutional — and it probably is Constitutional — but whether a law is Constitutional or not is the bare minimum. That’s not the measure that we should use to see if a law is wise or a policy is right. Is it minimally intrusive? is it being applied as narrowly as possible?”

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Past history shows that Ottawa police traffic stops have been racially biased, he said.

“It’s not going to be the soccer mom from Rockcliffe driving her Audi that’s pulled over and subjected to a mandatory breath test once, twice, three, four times. We know that’s more likely going to be a racialized individual who’s not committing any other crime,” Spratt said.

“People will say, ‘It’s a quick test. If you’ve done nothing wrong, no harm no foul.’ When you haven’t been subject of negative police interactions before, that’s an easy thing to say. But when you’ve been pulled over multiple times and you have a legitimate reason to be fearful of the police… then it can create a profound distrust of the police.”

Gagnon says police have reported mostly positive interactions during the mandatory alcohol screenings.

“There has been some resistance. Every so often there’s a person who doesn’t understand why we’re asking or doesn’t understand that we have the authority to do it. So we just have to slow it down,” she said.

“The majority have been supportive. It’s ‘Thank you for doing your job’ or ‘Thank you for keeping the roads safe.’ A lot of the population has never had to provide a sample, so they’re very curious about how it happens.”

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