Ontario's new 2019 law provides "penalties" that escalate with each "offence"

for failing a SFST or DRE

It appears that Ontario is implementing penalties for various SFST or DRE failures that are the result of a determination by the police, not as the result of a finding by a Provincial Offences Court after a trial. Each incident is treated as an "offence" with escalating penalties. The short term ADLS administrative driver's licence suspension can be found in HTA s. 48.0.1. That would appear to be constitutional since its purpose is to regulate licences and safety. However, the creation of "offences" with escalating "penalties" may be unconstitutional if the penalty for the offence is not imposed in a Court after trial. There are also zero tolerance "penalties" for drivers under 21 and novice drivers who have any "any presence of cannabis in their system as well as other drugs that can be detected by an oral fluid screening device."

The Motherisk Inquiry Report made it clear that screening devices should not be used for a forensic purpose.

It will be most unwise for anyone to operate a motor vehicle in Ontario, if they have ever used cannabis or may inadvertently have any THC or metabolite in their system. It will be most unwise for anyone to operate a motor vehicle in Ontario, if they have any prescribed or over-the-counter drug in their system. This is particularly the case for young and novice drivers. The issue in Ontario is not impairment, but rather a police officer's perception of impairment. Alternatively a police officer's perception of  the presence of a drug or a false positive on drug screening equipment may result in the imposition of one of these "penalties".

The following are excerpts from the Ontario Ministry of Transportation website.

Penalties for impaired driving

If police determine that you are driving while impaired you will face penalties immediately. You will also face additional consequences later if you are convicted in court. The penalties you face can vary depending on your age, licence type, the amount of alcohol or drugs in your system, and how many times you have been convicted.

 

Immediate Penalties

 

Penalties for a BAC in the Warn Range, Failing a Standardized Field Sobriety Test or Violating Zero Tolerance

If your blood alcohol concentration is 0.05 or higher, you fail a roadside sobriety test or you violate the zero tolerance requirements for young, novice and commercial drivers that begin on July 1, you will face:

 

First offence

  • 3-day licence suspension. This cannot be appealed.

  • $250 penalty (begins January 2019)

 

Second offence within 5 years

  • 7-day licence suspension (3-day suspension for commercial drivers). This cannot be appealed.

  • $350 penalty (begins January 2019)

  • You must attend a mandatory education program (for a second occurrence within 10 years)

 

Third and subsequent offences within 5 years

  • 30-day licence suspension (3-day suspension for commercial drivers). This cannot be appealed.

  • $450 penalty (begins January 2019)

  • You must attend a mandatory treatment program (for third and subsequent offence within 10 years)

  • You will be required to use an ignition interlock device for at least six months (for third and subsequent offence within 10 years)

  • You will need to undergo a mandatory medical evaluation to determine whether you meet the requirements for driving in Ontario (for fourth and subsequent offence within 10 years).

The following is an excerpt from Ontario's Highway Traffic Act. Note that it is the police officer who makes the determination about medical use by a novice or young driver in the exception at (3):

Condition on licence prohibiting presence of a drug

Novice drivers

44.2 (1) It is a condition of the driver’s licence of every novice driver that there be no drug in his or her body, as indicated by approved drug screening equipment, while he or she is driving a motor vehicle on a highway. 2017, c. 26, Sched. 4, s. 5.

Young drivers

(2) It is a condition of the driver’s licence of every young driver that there be no drug in his or her body, as indicated by approved drug screening equipment, while he or she is driving a motor vehicle on a highway. 2017, c. 26, Sched. 4, s. 5.

Exception

(3) Subsection (1) or (2), as the case may be, does not apply where a police officer is satisfied that the driver is legally authorized to use a drug or drugs for medical purposes, and has that drug or drugs in his or her body, as indicated by approved drug screening equipment. 2017, c. 26, Sched. 4, s. 5.

Penalty, novice drivers

(4) Every novice driver who contravenes the condition of his or her driver’s licence imposed under subsection (1) is guilty of an offence and on conviction is liable to a fine of not less than $60 and not more than $500. 2017, c. 26, Sched. 4, s. 5.

Same

(5) If a novice driver is convicted of an offence under subsection (4), the Registrar may suspend, cancel or change his or her driver’s licence in accordance with the regulations. 2017, c. 26, Sched. 4, s. 5.

Same, young drivers

(6) Every young driver who contravenes the condition of his or her driver’s licence imposed under subsection (2) is guilty of an offence and on conviction is liable to a fine of not less than $60 and not more than $500 and his or her driver’s licence is thereupon suspended for 30 days. 2017, c. 26, Sched. 4, s. 5.

Intent of suspension

(7) The suspension of a driver’s licence under this section is intended to ensure that novice drivers and young drivers acquire experience and develop or improve safe driving skills in controlled conditions and to safeguard the licensee and the public and does not constitute an alternative to any proceeding or penalty arising from the same circumstances or around the same time. 2017, c. 26, Sched. 4, s. 5.

Regulations

(8) The Lieutenant Governor in Council may make regulations,

(a) governing the suspension or cancellation of drivers’ licences of novice drivers or the change in respect of their class for the purpose of subsection (5);

(b) defining “approved drug screening equipment” for the purposes of this section and sections 48.0.2, 48.0.3 and 48.0.4. 2017, c. 26, Sched. 4, s. 5.

Age of drivers

(9) Any distinction described in this section based upon the age of a person applies despite the Human Rights Code. 2017, c. 26, Sched. 4, s. 5.

Definitions

(10) In this section,

“approved drug screening equipment” has the meaning prescribed by the regulations; (“matériel de détection des drogues approuvé”)

“driver” includes a person who has care or control of a motor vehicle; (“conducteur”)

“driver’s licence” includes a motorized snow vehicle operator’s licence and a driver’s licence issued by any other jurisdiction; (“permis de conduire”)

“motor vehicle” includes a motorized snow vehicle; (“véhicule automobile”)

“novice driver” has the meaning prescribed by the regulations made under section 57.1; (“conducteur débutant”)

“young driver” means a driver who is under 22 years old. (“jeune conducteur”) 2017, c. 26, Sched. 4, s. 5.

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