A Collingwood lawyer said one of the new charges in Canada's impaired driving law is "far-reaching," and he expects it to be challenged in court.
Changes to the Criminal Code sections on impaired driving have already seen some lawyers challenging the constitutionality of the new law with public statements, but Ontario Provincial Police say the change is for catching lawbreakers, not trapping innocents.
The controversial change is a new charge: “operating with a blood alcohol content (BAC) equal to or exceeding 80 mg per 100 ml of blood within two hours of driving.”
Paul Shaw, of Shaw, McLellan Barristers and Solicitors in Collingwood, said he has not had any clients with the charge yet.
"I think there's probably going to be some challenges in court as to whether or not it's constitutional," said Shaw. "The purpose behind it is probably meritorious to try to address the issue of impaired driving, but the way they're approaching it may be a bit of an over-reach."
Defence lawyers, including Joseph Neuberger and Christopher Assié, wrote an article in The Lawyer's Daily calling the impaired driving changes "absurd."
“The absurdity of the provision is that an officer could enter any pub, chat up a patron whom he has reasonable grounds to believe is impaired and ask them if they drove within the last two hours,” states the article. “If the patron admits to driving, then the officer can force them to provide a breath sample into an approved screening device, and, if they fail the test, charge them with over 80.”
Sgt. Jason Folz, the Community Services/Media Relations Coordinator for the OPP's Central Region headquarters, said the change in the law doesn’t mean random breath tests for bar patrons, or people in their homes having a couple drinks.
“I would like to be clear that the OPP will not be randomly attending people’s homes or demanding a breath sample from someone in a restaurant,” said Folz. “We do occasionally deal with individuals who flee from a car or a collision. In the course of those investigations, we will absolutely follow up and attempt to identify the driver which may mean a visit to their home to determine sobriety, but it is never random.”
According to the Government of Canada website (specifically a legislative background document on the changes the impaired driving law) a person accused with exceeding 80 within two hours of driving will not be convicted if all three of these convictions are met:
- That person consumed alcohol after ceasing to operate a vehicle;
- He or she had no reasonable expectation they would be required to provide a sample or breath or blood; and
- Their alcohol consumption matches the BAC shown on the tests, and it indicates the person’s BAC would not have been over 80 while they were operating a vehicle.
The document further states the exact situation to lead a person to have a “reasonable expectation” they would have to provide a breath sample will have to be determined on a case-by-case basis by the courts.
“However, a person involved in a serious collision causing death, bodily harm, or major damage should reasonably expect to be required to provide a sample,” states the Government of Canada website.
The document further indicates there have been cases in the past where people charged with over 80 BAC while driving claimed to have consumed a large amount of alcohol just before or while driving and the “alcohol was still being absorbed.”
The Supreme Court of Canada ruled such a defence showed “significant irresponsibility with regard to public safety.”
Another defence, called the intervening drink defence, arises when a driver drinks after driving, but before providing a breath sample. This is mostly used in a case where the driver has been in a serious collision and claims to be drinking to “settle their nerves,” states the Government of Canada website.
“This undermines the integrity of the justice system as it rewards conduct specifically aimed at frustrating the breath-testing process,” states the legislative background document.
Neuberger and Assié are not the only ones who have spoken out against the changes.
Others have been quoted in various media articles suggesting the changes trample on the rights of individuals and run the risk of charges laid on an innocent who then goes through a court process that has the potential to damage his or her reputation, even if the charges are dismissed.
“Assuming that all of the drinking occurred post-driving, the prospect of wrongful convictions grows exponentially when the evidentiary hurdles are taken into account,” reads the article on Lawyer’s Daily. “To be acquitted, the accused has to [come up with] evidence of his or her drinking pattern (how much they had and when they consumed it).”
While a third-party witness is theoretically possible, states the article, it’s not guaranteed there will be a witness with the accused for several hours before the charges were laid, and it’s unlikely they will be able to report accurately the amounts of alcohol consumed by the accused and when they were consumed.
“In reality, the accused will be forced to testify – thus essentially undermining his or her Charter right to silence,” states the article by Neuberger and Assié.
Folz said it's case law that guides police officers on how a law is interpreted, enforced, and what limitations are placed on that law based on previous cases.
“After there are some convictions and trials, case law will start coming in to guide specific circumstances as they arise,” said Folz.
He also referred to cases where someone is fleeing from the scene of a crash, whether on foot or by car, and they run home where they start drinking.
“We have dealt with this for years and it is accomplished by using an expert, at trial, from the Centre of Forensic Sciences who is a toxicologist,” said Folz. “The expert is able to describe the blood/alcohol concentration that happens over time and that a high reading cannot happen during a short window. They are able to develop a timeline, of sorts, of alcohol consumption. This is done in serious cases and not at all random.”
The new impaired driving laws came into effect in December 2018. In addition to this new charge of over 80 within two hours of driving, police can now demand a roadside breath sample from anyone they have lawfully stopped and without first having to suspect the motorist has been drinking (as was the case under Canada’s previous law).