Approved Screening Devices Order: SOR/2024-66

Canada Gazette, Part II, Volume 158, Number 10

Registration
SOR/2024-66 April 17, 2024

CRIMINAL CODE

The Attorney General of Canada makes the annexed Approved Screening Devices Order under paragraph 320.39(a)footnote a of the Criminal Code footnote b.

Ottawa, April 15, 2024

Arif Virani
Attorney General of Canada

Approved Screening Devices Order

Approved Screening Devices

Devices

1 For the purposes of the definition approved screening device in section 320.11 of the Criminal Code, the following devices, each being a device that is designed to ascertain the presence of alcohol in a person’s blood, are approved:

Repeal

2 The Approved Screening Devices Order footnote 1 is repealed.

Coming into Force

Registration

3 This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

The amendments revoke and replace the current Approved Screening Devices Order (SI/85-200) with an updated and modernized Order, as well as approve the instrument known as the Alcotest 6000 as an “approved screening device” for the purposes of the Criminal Code. The ministerial Order came into effect on the date that it was registered by the Privy Council Office.

Background

Before police can use a screening device in an impaired driving investigation, the device must be approved by the Attorney General of Canada. Decisions to approve breath-testing equipment are based on the advice of the Alcohol Test Committee (ATC) of the Canadian Society of Forensic Science. The ATC is composed of traffic safety experts and experienced forensic alcohol scientists. The ATC advises the Minister of Justice and Attorney General of Canada on scientific matters relating to alcohol breath testing and alcohol-impaired driving.

Approval of the Alcotest 6000 as an approved screening device would permit its use by law enforcement. Approved screening devices are deployed most commonly at the roadside to determine the presence of alcohol in a person’s body.

Further, the previous Approved Screening Devices Order was enacted in 1985 and was outdated, in that it contained references to incorrect sections of the Criminal Code. It was also classified as a statutory instrument (SI). Modern drafting practices are such that it is more appropriately considered a statutory order and regulation (SOR). The prior classification did not affect the power of the Attorney General to approve devices, but the changes ensure that the most up-to-date enabling authority is reflected in the law.

Objective

These amendments result in an updated and modernized Approved Screening Devices Order that reflects modern drafting practices and refers to the updated enabling provisions in the Criminal Code enacted through former Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts.

In addition, the Alcotest 6000 can be used in impaired driving cases by law enforcement across Canada.

Description

No substantive changes result from the revocation and replacement of the Approved Screening Devices Order. The updated Approved Screening Devices Order continues to include all 12 previously approved screening devices that were listed in the previous Order (SI/85-200) along with the recently approved Alcotest 6000.

The addition of the Alcotest 6000 to the Approved Screening Devices Order results in it being an “approved screening device” for the purposes of the Criminal Code.

Regulatory development

Consultation

The Alcotest 6000 was evaluated and recommended to the Attorney General of Canada by the ATC. The ATC is composed of forensic specialists in the alcohol breath testing field. Following a thorough review and evaluation, the ATC determined that the Alcotest 6000 complies with its Recommended Equipment Standards for approved screening devices, meaning that it is reliable and will produce scientifically accurate results.

A notice of the Attorney General of Canada’s intention to approve the Alcotest 6000 as an “approved screening device” was published in the Canada Gazette, Part I, on February 17, 2024. This was followed by a 30-day public comment period until March 18, 2024.

Comments were received from three individuals; one appears to be spam and the other two discuss the need to ensure animals are not involved in the testing and evaluation process. The ATC does not use animals in the testing or evaluation process.

Modern treaty obligations and Indigenous engagement and consultation

The amendments have no impacts on modern treaty obligations.

Instrument choice

Screening devices must be approved by order of the Attorney General of Canada under the authority of paragraph 320.39(a) of the Criminal Code before they can be used by law enforcement for the purposes of the Criminal Code. No other instrument is appropriate to add approved screening devices to the Approved Screening Devices Order. In order to modernize and update the Approved Screening Devices Order (SI/85-200), a revocation and a replacement were required.

Regulatory analysis

Benefits and costs

The addition of the Alcotest 6000 in the Approved Screening Devices Order will have cost implications for the federal and provincial law enforcement agencies that choose to purchase the device and train their officers on its use.

Small business lens

The small business lens does not apply to this initiative, as there are no costs to small businesses.

One-for-one rule

The one-for-one rule does not apply to this initiative, as there is no change in administrative costs to business.

Regulatory cooperation and alignment

The amendments are not related to a work plan or commitment under a formal regulatory cooperation forum.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

There is no evidence to suggest that the Alcotest 6000, or any approved screening device, performs differently on different populations. Men are more likely to commit alcohol-impaired driving offences than women and therefore may come to the attention of the police at higher rates, but this would not be a direct result of the approval of the screening device.

Rationale

Revoking and replacing the existing Order is consistent with recent legislative efforts to simplify and modernize the impaired driving regime of the Criminal Code, including through former Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts.

The Alcotest 6000 was evaluated and recommended to the Attorney General of Canada by the ATC. The ATC determined the Alcotest 6000 meets its Recommended Equipment Standards for approved screening devices. Without the Attorney General of Canada’s approval, the screening device cannot be used by police forces in Canada for the purposes of the enforcement of the impaired driving regime in the Criminal Code.

Implementation, compliance and enforcement, and service standards

There are no compliance mechanisms required. The decision to purchase and deploy an approved screening device, including the Alcotest 6000, is at the discretion of each police agency.

Contact

Department of Justice
Criminal Law Policy Section
284 Wellington Street
Ottawa, Ontario
K1A 0H8
Email: gazette_consultation_sd_ad@justice.gc.ca