Canada Gazette, Part I, Volume 158, Number 7: Approved Screening Devices Order

February 17, 2024

Statutory authority
Criminal Code

Sponsoring department
Department of Justice

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

The proposed amendments would 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 proposed ministerial Order would come into effect on the date that it is 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Further, the current Approved Screening Devices Order was enacted in 1985 and is outdated, in that it contains references to incorrect sections of the Criminal Code. It is also currently classified as a statutory instrument (SI). Modern drafting practices are such that it should more appropriately be considered a statutory order and regulation (SOR). The current classification does not affect the power but changing it would ensure the most up-to-date enabling authority is reflected in the law.

Objective

The objective is to update and modernize the Approved Screening Devices Order to reflect modern drafting practices, to refer to the updated enabling provision in the Criminal Code that was 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, and to approve a new screening device.

Once approved, the Alcotest 6000 could be used in impaired driving cases by law enforcement across Canada.

Description

The updated Approved Screening Devices Order would continue to include all 12 existing approved screening devices that are listed in the current Order (SI/85-200) along with the proposed Alcotest 6000.

No substantive changes would result from the revocation and replacement of the Approved Screening Devices Order amendment.

The addition of the Alcotest 6000 to the Approved Screening Devices Order would result 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, it determined that the Alcotest 6000 complies with its Recommended Equipment Standards for approved screening devices, meaning it is reliable and will produce scientifically accurate results.

Modern treaty obligations and Indigenous engagement and consultation

This proposal has 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 replacement are required.

Regulatory analysis

Benefits and costs

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

Small business lens

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

One-for-one rule

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

Regulatory cooperation and alignment

The proposal is 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 proposed screening device.

Rationale

Revoking and replacing the existing Order would be 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 could not 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 about whether or not to purchase and deploy an approved screening device, including the Alcotest 6000, would be a decision for 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

PROPOSED REGULATORY TEXT

Notice is given that the Attorney General of Canada proposes to make the annexed Approved Screening Devices Order under paragraph 320.39(a)footnote a of the Criminal Code footnote b.

Interested persons may make representations concerning the proposed Order within 30 days after the date of publication of this notice. They are strongly encouraged to use the online commenting feature that is available on the Canada Gazette website but if they use email, mail or any other means, the representations should cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to the Criminal Law Policy Section, Department of Justice, 284 Wellington Street, Ottawa, Ontario K1A 0H8 (email: gazette_consultation_sd_ad@justice.gc.ca).

Ottawa, February 7, 2024

Robert Brookfield
Director General and Senior General Counsel

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.

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