Proposed new impaired driving legislation could change policing policy and some legal experts say it goes too far and could implicate innocent people.

Currently in Canada, it is a criminal offence to drive with a blood alcohol level of over 80 milligrams per 100 milliliters of blood.

The new law would see that language changed to ‘at or over 80 milligrams within two hours of driving’ and that has some in the legal community concerned.

Impaired driving is the leading criminal cause of death and injury in Canada and the federal government is proposing changes to the current legislation.

“So you pull up at a check stop or an officer stops you for a traffic violation and the officer smells alcohol on your breath or you admit to some recent consumption, either one of those two things, under the present law, gives the officer what we call reasonable suspicion that you have alcohol in your body. That is the low threshold standard of evidence required for an officer to have a person blow into the hand-held breathalyzer or road-side device, we call that the approved screening device. And that device, of course, does not give a numbered reading, it gives a pass, warn or fail and if you blow a fail on that, that’s an indication to the officer that you are potentially over the legal limit. It’s not proof of guilt or anything at that point in time. The fail sign on the road-side device simply gives the officer the grounds to take you in to a police station or to the check stop bus for the formal breathalyzer test, two tests, 20 minutes apart, which give numbered readings and which could then give rise to formal changes of driving over the legal limit,” said Ian Savage, President of the Criminal Defence Lawyers Association.

Lawyers say the gap in time after someone parks their vehicle doesn't give a true depiction of their blood alcohol level while they were driving and it also doesn't account for what people might drink in those two hours after they've left their vehicle.

“It’s going to capture all sorts of innocent people. It’s going to capture people, you’re quite correct, with blood alcohol levels under the legal limit who go home from a party where they’ve drank safely and maybe had one or two glasses of wine and then they get home and because they feel like it, because they’re still up and they’re socializing with their family or whatever, they have another glass of wine, or two, and then the police arrive half an hour later and they make you blow and you blow over, then you are at risk of being convicted even though you are legally and, I would say, morally innocent in that circumstance,” said Savage.

Under the new law, police would no longer require "reasonable suspicion" to demand a breathalyzer and anyone pulled over could be subjected to a breath test.

Legal experts say that shifts the burden of proof onto the accused and gives police powers that could infringe on human rights, which is a slippery slope.

“The proposed legislation, proposes to reduce the requirement on the police to have any evidence of alcohol in your body before having you blow into the road-side device. So it’s proposing that upon any, sort of, regular interaction by the police with you as a driver, as I gave that example, at a check stop or at a traffic violation stop, speeding ticket, officer coming to the scene of an accident. The officer is already there legally, investigating something, and therefore the officer will not, under the new version, be required to suspect there’s any alcohol in your body, smell alcohol, get an admission of consumption, the officer can simply require you, right away, as in forthwith, to provide a breath sample into the road-side device. And so that raises issues under the charter of rights,” said Savage.

Anti-drinking and driving advocates applaud the idea as a move toward making the roads safer but some lawyers expect a challenge on constitutional grounds.

 “So we’re aware of those lobbying efforts, and essentially they have almost and in my opinion, indirectly succeeded in that but I would say to them that this is not going to be helpful because it’s going to create more litigation in the courts over the meaning of words and whether or not it was reasonable for me to believe that I might be breathalyzed when I drove home from that party after two glasses of wine under the legal limit and then had two more at home and the police knock at my door, you know, that’s a mess. That’s a mess in court and it’s not going to bring, I don’t think, any satisfaction to any reasonable member of society that we’re creating that legal difficulty for potentially innocent citizens,” said Savage. “It makes a huge difference for defence lawyers and it makes a huge difference for the general population because, no offence, but this is just yet another potential incremental step by which the state authority is investigating people without evidence.”

Karen Harrison is the president of Mothers Against Drunk Driving Calgary and says she anticipated challenges like these but feels the new legislation could save lives.

“On average in our country there's four people killed and 175 people injured every day in our country due to impaired driving alone and we have to stop that,” she said.

Harrison says Canadian laws are more lax than some other countries and it's time we caught up.

For more information on the proposed changes, click HERE.

Source: CTV News Calgary


Last updated on: 2017-06-12 | Link to this post