Screening for Drugs or Alcohol

This page was last substantively updated or reviewed January 2021. (Rev. # 91028)

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General Principles

Testing for presence of alcohol or drug

320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

(c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

[omitted (2)]
2018, c. 21, s. 15.

– CCC (CanLII), (DOJ)

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No Obligation

Screening tools are optional to the officer based on the circumstances of the observations. Where the officer is sufficiently satisfied there are grounds without use of screening devices, they do not need to use them.

Mandatory Alcohol Screening

320.27 (1)
[omitted (1)]

Mandatory alcohol screening

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

2018, c. 21, s. 15.

– CCC (CanLII), (DOJ)

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The officer may make an MAS demand where:

1. they are in "possession of an approved screening device"
2. they are "in the course of the lawful exercise of [police] powers", whether federal, provincial or common law;
3. the suspect "is operating a motor vehicle"

The satisfaction of these requirements means that they must "accompany the peace officer" for the purpose of "immediately provid[ing] the samples of breath" that are "necessary to enable a proper analysis"

Constitutionality

The authorization for detention is arbitrary under s. 9 of the Charter of Rights and Freedoms but saved under s. 1 and so is constitutional.

The mandatory screening under s. 320.27(2) breaches s. 8 of the Charter as it allows for search without reasonable suspicion. It is saved under s. 1 as so is upheld.

Observational evidence

Compelled Admissions

A person compelled by statute to make admissions with respect to the operation of a motor vehicle cannot be used as grounds to administer a roadside test, or arrest.

An investigator who is investigating an accident and possible criminal offence at the same time must "delineate clearly" the end point of the accident investigation in order to negate the belief that a statement must be given.

A statement compelled by statute must be proven on a balance of probabilities that:

1. That he was in fact compelled by statute to provide a report.
2. That the statements he made were a “report” within the meaning of the compelling statute.
3. That he gave his report with the honest and reasonable belief he was compelled by the statute to do so.

Short and straightforward questions by the police about alcohol consumption for the purpose of screening without giving access to a lawyer is a reasonable limitation to a persons s. 10(b) Charter right.

If a police officer arrests a suspect for impaired driving he no longer has any authority to make a screening demand under s. 254(2) for a breath sample.

Also, if the officer has formed reasonable and probable grounds to believe that an offence has occurred under s. 253, he has no authority to make a demand under s. 254(2) for a roadside screening breath sample.

Physical Signs of Impairment

It is not usually sufficient to observe signs of alcohol consumption. However, cases have that the smell of alcohol on a person’s breath alone is enough to create a reasonable suspicion.

The smell of alcohol on a driver's breath alone can be sufficient to create a reasonable suspicion.

Where an officer states there is a sign of slurred speech but fails to provide details on what words were slurred, this can be used against the reliability of the evidence.

Determination of impairment is on an objective standard of “an ordinary citizen” or a “reasonable person”. Observations to consider include:

1. evidence of improper or abnormal driving by the accused;
2. presence of bloodshot or watery eyes;
3. presence of a flushed face;
4. odour of an alcohol beverage;
5. slurred speech;
6. lack of coordination and inability to perform physical tests;
7. lack of comprehension; and
8. inappropriate behaviour.

The odour of alcohol originates from the non-alcoholic content of the drink. There is no relationship between the amount of alcohol consumed and the odour. A stronger odour tends to show more recent consumption.