'A Serious Erosion of Civil Liberties': Backlash Grows Over Canada's New Impaired Driving Laws

Steph Willems
by Steph Willems
a serious erosion of civil liberties backlash grows over canada s new impaired

Can you be pulled over and ordered to blow into a breathalyzer, under threat of arrest, for the simple act of returning empty liquor bottles in the middle of the day? Sure can, at least if you’re living north of the border. It happened to a 70-year-old man in Mississauga, Ontario last weekend.

As part of a massive package of laws enacted in mid-December, Canadian drivers are waking up to the knowledge that the legal standard of “reasonable suspicion” no longer exists when it comes to interactions with the police — at least when pertaining to the combination of alcohol and motor vehicles.

This week, they’re learning it’s possible to face a drunk driving charge, even if you only started drinking after you got home.

Oddly, the new booze laws stem from Canada’s recent legalization of marijuana. Seeking to soothe nervous citizens worried about stoned carnage on the roads, the governing Liberal Party passed Bill C-46, a raft of new laws designed to clamp down on impaired driving, despite the fact that roadside testing for cannabis is still in its infancy (and can be quite inaccurate).

Buried in the legislation was the removal of “reasonable suspicion.” This standard, found in most Western countries, maintains that a police officer must have a reason to demand a roadside breath sample from a motorist. Erratic driving, for example, or slurred speech and the smell of booze or drugs during a checkpoint stop or when pulled over for an unrelated reason. The new laws give Canadian officers the ability to demand a breath sample from any sober-looking individual pulled over for having a broken taillight.

Failing to provide the sample when asked constitutes a crime, and a motorist will not be driving away in their own car after refusing a breathalyzer request (or, where applicable, a saliva test).

But let’s get back to the 70-year-old who enjoys bottle deposits. According to Global News, Art (last name withheld) had just finished returning his holiday bottle cache to one of the province’s Beer Stores (yes, that’s the name of the store that sells beer in Ontario — the government makes it so) when he found himself pulled over. The officer asked if he had been drinking.

“He said, ‘I saw you at the Beer Store and to me you were taking back, what looked like in my opinion, an excessive amount of bottles,’” Art said.

From Global:

During the discussion, Art said the officer demanded a roadside breath sample. He asked what would happen if he did not provide it. The officer told him he would face arrest, a criminal charge, and a licence suspension.

Art agreed to provide the breath sample, passed the test, and was on his way.

“I felt like I was violated in a way. They shouldn’t have that right to pull a person over unless there is a good sign the person is doing something wrong,” said Art, who was not using a cellphone, hadn’t been speeding or violating any traffic rules.

While the federal government stands by its legislation (“This is one of the most significant changes to the laws related to impaired driving in more than 40 years and is another way that we are modernizing the criminal justice system,” Justice Minister Jody Wilson-Raybould said last month), civil liberties groups and criminal defence lawyers single it out as being ripe for abuse. The “slippery slope” argument applies here, whether or not you feel it’s valid. Opponents feel that, with this tool in hand, fishing expeditions could become commonplace, with minorities shouldering the bulk of the roadside stops.

It’s a possible hammer-and-nail scenario, with every motorist looking like a nail … and some looking more like a nail than others. Of course, keep in mind that police still need a reason to pull you over in the first place.

But while some proponents of the law (or at least the government behind it) fall back on the time-honored “Well, if you’ve got nothing to hide…” argument, another section of the impaired driving legislation has given even backers food for thought. Contained in a law is a subsection that allows police to breathalyze operators of vehicles, vessels, or aircraft up to two hours after they’ve parked their vehicle. A finding of impairment would lead to an impaired driving charge, unless the individual can prove they weren’t also sloshed while operating the vehicle.

Why would this make it into law? Well, the chances of it being used against a random person is indeed slim, as it’s meant as a way of dealing with the drunk driving suspect who bolts into his house and chugs a bottle of whiskey, knowing the police are on their heels and they’ll soon have to undergo a breath test. “Sorry, officer — just havin’ a drink here. Just started.” That kind of thing. It’s a way of erasing a loophole. However, the mere fact the law exists marks “a serious erosion of civil liberties,” according to Toronto criminal defence lawyer Michael Engel.

“Husbands or wives in the course of separations would drop the dime on their partner,” he told Global, describing how a malicious tip-off to the police would lead them to an individual’s door at an hour when the person is known to be relaxing with a drink. While the law itself offers an out (you’re not actually breaking the law by drinking in a restaurant or home if you weren’t above the legal limit while driving there and there’s no reason to believe you’ll have to undergo a breath test in the immediate future) the onus is on the suspect to prove they started drinking after driving.

If the person is suspected of the crime of impaired driving, either through direct observation by an officer or via a malicious and fake tip, failing to provide a breath sample will lead to charges. Blowing over the limit, in your own home, will also lead to an arrest for impaired driving, until you hire a lawyer and a toxicologist to prove otherwise. Assuming you can afford a toxicologist, that is, and assuming they can prove it. It’s debatable whether going out to your car and asking the attending officers to feel your engine block will work. And what if you only got home an hour ago and it’s still warm?

“It’s a very draconian rule, a very significant invasion of privacy,” said Joseph Neuberger, another Toronto-based criminal defence lawyer.

Opponents say this tool, which could potentially put innocent people at risk of losing their license and job — and maybe even their freedom — will certainly end up being contested in the courts. It turns out legalized weed has unexpected consequences.

[Image: Michael/ Flickr ( CC BY 2.0)]

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3 of 67 comments
  • TheBrandler TheBrandler on Jan 14, 2019

    It never ceases to amaze me how more and more western countries deal with crime by extending laws to harm innocent people - but do so in a way that does nothing or close to nothing to stop the targeted crime. That certainly fit's my description of criminal government and/or tyranny.

    • JD-Shifty JD-Shifty on Jan 14, 2019

      He felt the need to drink "after the accident". yeah nothing to see here.

  • Arthur Dailey Arthur Dailey on Jan 14, 2019

    Here is a summary and explanation of the legislation from my favourite North American automotive commentator, the wondrous Lorraine Sommerfeld, published in January 14ths National Post: "I detest the invasive searches carried out whenever I board a flight, but I resignedly admit that like that, I’ll just breathe and go if I’m pulled over by a cop and asked to. Our roads are far more dangerous than our skies. The on-demand testing is currently in use in 40 other countries around the world, and it’s been a success in all. In some, like Ireland, it’s reportedly resulted in a 40 per cent decline in traffic fatalities in just four years. From Sergeant Alex Crews with Toronto Police Traffic Services: “Mandatory alcohol screening (MAS) can only be used by officers who lawfully stop a motorist. That means, if police stop you for speeding, stop sign, red light violation, that sort of thing, then and only then, can they make a demand for a roadside test without having reasonable suspicion that you have alcohol in your body. So the example of the individual getting in and out of the car with the empties, would not be a lawful stop, and the officer would not be able to make a demand for MAS.” Sergeant Crews points out a crucial part of the new law: It’s finally a way to start taking apart the “bolus” drinking defence, or intervening drink defence. What is the bolus defence? Consider that your blood alcohol concentration (BAC) continues to rise for 30 to 90 minutes after your last drink. Some drivers will drink right before they drive (or as they drive), anticipating they can get to their destination before their BAC hits an illegal level. The new law can measure you two hours later, capturing your true impairment level. The intervening drink defence is another gambit drivers try when involved in a crash. They admit to drinking, but claim it was only after the crash but before the breath test. “I drank to calm my nerves,” they claim. The new law changes “the timeframe of the offence (i.e., to being at or over the offence level within two hours), the argument that post-consumption alcohol was the cause of the high blood alcohol concentration is no longer relevant.”