By on January 11, 2019

Michael/Flickr

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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67 Comments on “‘A Serious Erosion of Civil Liberties’: Backlash Grows Over Canada’s New Impaired Driving Laws...”


  • avatar
    thejohnnycanuck

    Welcome to The People’s Republic of Canuckistan, aka Trudeau’s Canada.

    However fear not, the end is near. Pretty boy Justine is one and done later this year.

    • 0 avatar
      conundrum

      And what, Chuckles Scheer is going to turn back this law? He can’t even remember what day it is, and the completely humourless dopes surrounding him want to tell Canadians how to dress and pray. They’re the real authoritarians. You must be one of those Albertans or prairie types we hear tell of back in the Maritimes, wandering around thinking the rest of the country owes you a living. Had enough of that BS.

      As for the new law, it won’t survive the first Charter challenge in my opinion. It’s BS – I guess we get to thank Goodale for that, he hasn’t even recinded the Bill C51 harper the Con festooned on us, but then he’s from Winnipeg. Trudeau disappoints the West by not hating legal immigrants, and then we get blowout stupidity like your post, seething away at all the perceived injustices and supporting toads like Ezra. Man up and grow up.

    • 0 avatar
      rev0lver

      With a weak NDP and boring Andy leading the Conservatives the best we’ll get is a Liberal minority government.

      • 0 avatar
        Maymar

        Scheer doesn’t seem to have much to offer, but I could see him winning (even if just a minority) because so many people vote Trudeau out of office (which, frankly, voting Harper out of office is probably the only reason Justin won in the first place). Trudeau’s very being seems to piss off everyone on the right, and he keeps screwing up little left-leaning issues, I don’t think he has the good will to pull it off (which is why it’s disappointing the PC and NDP can’t come up with someone stronger).

    • 0 avatar
      Add Lightness

      Justin will certainly not have a majority.
      Pipelines will be his Waterloo in BC where he needs to do very well.

  • avatar
    thejohnnycanuck

    Welcome to The People’s Republic of Canuckistan, aka Trudeau’s Canada.

    However fear not, the end is near. Pretty boy Justine is one and done later this year.

  • avatar
    forward_look

    People’s Republic of Canuckistan.

  • avatar
    mrcool1122

    Once again, TTAC uses a photo of Minnesota in a story about Canada. https://goo.gl/maps/jvxZhW58EQ92

  • avatar
    Matt51

    Much as I love Canada, it won’t stop alcoholics from driving. Now if Canada was truly communist, if the cops made examples of drunks by pulling them out of their cars and shooting them on the spot, now that might make a difference.

  • avatar
    JimC2

    It would be a darn shame if people were to call in erratic driver sightings of the ironically-named “justice minister,” putting her in the position of having to prove her innocence against this “significant, modernized” law that she is championing.

    Just sayin’…

  • avatar
    mleitman

    FYI. “The Beer Store” is not a name mandated by the government. It’s a name that was thought up by a very overpriced marketing consultant for a company controlled by the major brewers, called Brewer’s Retail Ltd. http://www.ic.gc.ca/app/opic-cipo/trdmrks/srch/viewTrademark?id=1184895&lang=eng&tab=reg Beer is sold in Ontario at The Beer Store, government liquor stores, many supermarkets, and soon, corner stores.

  • avatar
    Lie2me

    Did this happen to our Art from Canada?

  • avatar
    Null Set

    I was born in Scandinavia, and there the cops can pull you over without probable cause and demand you take a breathalyzer test. This is not a new thing. They also have incredibly low blood alcohol limits (if memory serves, in Sweden it’s 0.03%. Which may be why drunk driving is so rare there.

    • 0 avatar
      jatz

      Sounds like enlightened policy to me.

    • 0 avatar
      redapple

      You know how I know the strict limits are BS?

      Pilots can fly legal at 0.04 or lower.

      0.08 is just about right.

      • 0 avatar
        Bazza

        Workers at U.S. nuclear plants can work during emergencies, unescorted, at up to 0.04 as well. In fact, they can perform emergency work above that but require escort at >0.04.

        So yeah, it’s BS.

    • 0 avatar
      Art Vandelay

      When I was in Italy drunk driving was also rare, but likely that had more to do with the fact kids could buy wine from the time they could see over the counter so there was no real mystique to booze.

      Plus US Sailors kept the Naples cops busy in that respect.

    • 0 avatar
      SirRaoulDuke

      Good for you Europeans…speaking of Europeans, you may recall that here in the States we shot and killed a bunch of you folks and then wrote our own Constitution that bars such tyranny.

      • 0 avatar
        rev0lver

        Wow. Maybe get some anger management…

      • 0 avatar
        Arthur Dailey

        @RaoulDuke, actually a significant number of American revolutionaries were European by birth. The remainder mostly European by descent.

        And the military aspect of the American Revolution was in many aspects a French victory. French soldiers and in particular the French Navy which delivered or made possible the most significant military victories. The French used America as a proxy for their ongoing war(s) with England.

        • 0 avatar

          While the French naval blockade at Yorktown probably made Cornwallis’ surrender inevitable would you leave the Battle of Trenton off your list of the most significant military victories? As far as I can tell, there were no Frenchmen who crossed the Delaware with Gen. Washington.

  • avatar
    Arthur Dailey

    There are restrictions embedded in this law. And it will most likely have to pass a Constitutional challenge.

    Its intention is to prevent a growing trend in Canada which is to flee the scene of an accident if you are or believe that you are impaired.

    Leaving the scene/hit and run penalties currently being lighter than those for impaired driving, particularly if it is a repeat offense.

    Unfortunately some Canadian drivers have taken a page from the (hopefully apocryphal) stories of drivers in China running over pedestrians that they have injured, multiple times, as it is less expensive to kill them, than pay for their injuries.

  • avatar
    GS 455

    Canadians should stop buying all alcohol for a while, cutting off a massive stream of tax revenue from the government. Perhaps then Ottawa might reconsider their Orwellian law.

  • avatar

    I hate that people still drink and drive but using a guilty till proven innocent law is not going to address this, it’s to placate the anti ganja crowd.
    So let the cops in the Great White North enjoy their little power trip for now, eventually someone is going to challenge this as a violation under the Charter of Rights and Freedoms and it will be struck down.

  • avatar
    JD-Shifty

    awww, boohoo, I passed a breathalyzer test

  • avatar
    Guitar man

    A car full of beer bottles (an offence in itself, if they are not adequately stored) is more than enough “reasonable suspicion”.

    There is no requirement for “reasonable suspicion” for conducting breath tests. I don’t know where you got that idea. DUI is not a criminal offence, it’s a civil offence so habeus corpus does not apply.

    • 0 avatar
      rev0lver

      It is a criminal offense in Canada.

      • 0 avatar
        Lou_BC

        Open alcohol bottles in a vehicle is illegal. A police officer could argue that his breathalyzer demand was valid.

        • 0 avatar
          JimC2

          Giving someone a breathalyzer on the basis of open containers when the circumstances are an obvious “bringin’ back the empties” beer store run is a lot like pulling someone over for speeding because they were doing 2 over the limit- or like a traffic stop for a burned out license plate light. They felt like doing it to the guy for whatever reason, legitimate or otherwise, but don’t believe for one second that the ostensible basis for the breathalyzer was something any thinking cop or thinking civilian actually believes was the actual reason for the breathalyzer.

        • 0 avatar

          In Michigan the law states, “Transportation or possession of alcoholic liquor in open or uncapped container open or upon which seal broken.” How does an empty bottle qualify under “transportation or possession of alcoholic liquor” if there is no alcohol? Just because there might be a small amount of liquid residue in the bottle doesn’t mean it has any alcohol left in it. Alcohol evaporates a lot faster than water.

  • avatar
    redapple

    I grew up in Buffalo.

    Our motto was, ‘ dont mess with the OPP.’

  • avatar
    Delta9A1

    The “within two hours” rule is a direct response to a death in my little suburb of BC. The Minister is from BC. An off-duty RCMP officer (who also happened to be involved in the YVR Taser wrongful death incident) had left a party early one evening. He collided on a side street with a motorcycle driven by a 20 year-old who was likely speeding and possibly impaired. The motorcyclist died at the scene. The police officer left his ID and name with a witness and ran home to “check on his kids”. While in his house, he downed “two or three stiff drinks”, to “calm his nerves”. The local police came knocking, he was breathalyzed, failed and was charged. At trial for vehicular homicide, he claimed he was sober at the time of the accident, but was over the limit when tested. He beat the charge, although he was found guilty of interfering with the course of justice (no jail time) and resigned his badge. Last I heard, he was with a Native Band police force in the Okanagan (his heritage was First Nations).

    Hard cases make bad law.

    • 0 avatar
      Lou_BC

      @Delta9A1 – it is an extremely common tactic when involved in a motor-vehicle crash under the influence of alcohol i.e. drunk. You run home, drink a ton of booze the moment you get home and claim it was all done to calm one’s nerves. Police show up and they could not do a thing. I’ve encountered this tactic multiple times in my profession.

      • 0 avatar
        Arthur Dailey

        @Delta9A1: Thanks for explaining this to our American friends. It is perhaps comparable to the amendments to the Occupational Health & Safety Act in Ontario regarding workplace violence and with requirements for employers to protect workers from possible domestic violence, while at the workplace. Passed in reaction to a Doctor in Windsor murdering a nurse that he had worked with and subsequently ‘stalked’. Despite her complaints to the Hospital’s management.

        The government generally takes a using a shotgun to kill a fly approach. And then it is up to the Courts to modify the situation.

  • avatar
    millmech

    There are stories of cars in the ditches on weekends, heading back from Russia, where the laws are different.

  • avatar
    Unkel Ruckus

    “I’m from the government and I’m here to help.”

  • avatar
    Tele Vision

    I know five cops. I bought my current house from one of them and the other four I’ve known for decades. I’ve asked them about this sort of thing over the years and the answer is always a version of ‘We don’t need a reason to pull anyone over. There’s something wrong with every vehicle on the road’. i.e. Dirty taillights/headlights; cracked windshield; didn’t stop for three seconds at a stop sign; 52 in a 50; didn’t signal early enough for a turn; dirty license plate, etc. You might not get a ticket but you can be pulled over. In addition to the ole’ school reasons the automated plate readers can scan 3500 plates an hour and ping on unpaid parking/speeding tickets; DUIs; suspended licenses… The list goes on.

    • 0 avatar
      golden2husky

      Yep, if a cop wants to be dirty in this regard it is not tough to do. Still, the courts can – and do – overturn charges based on excessive reach. My PD friend in FL pulled over a Jeep solely on the fact that it had a temp tag in the window. From his 20 plus years in the force, vehicles such as this with temp tags often come with “issues”. No difference here; an illegal handgun was found inside after a search. The courts fortunately saw this as a poor reason for a stop and ended things right there. But how many times do the cops make “bad” stops? A lot more than you would think. But most such stops end up with nothing and the motorist is glad to be gone without a ticket.

      Canada’s law is a disgrace. If there really is a problem with fleeing the scene and guzzling some booze at home for a cover-up, stripping citizens of their rights is not the answer. Why not make the charges for leaving the scene of a fatal draconian? That will accomplish the same thing- getting the guilty behind bars without running ramshackle over citizen’s rights.

      • 0 avatar
        EBFlex

        It’s not being dirty when you are breaking a vehicle equipment law.

        • 0 avatar

          Fine, then let me go over the police cruiser with a fine tooth comb and issue them an equipment violation. What’s fair for the goose is fair for the gander.

          I also think that it should be a crime for government officials, including FBI agents and cops, to lie. If it’s a crime to lie to them, it should be a crime for them to lie to us. If you lie to a cop, you’ll be exposed to an obstruction of justice charge. If a cop lies to you, that’s just considered part of the job.

  • avatar
    Garak

    I’ve lived my whole life in a “police may stop and breathalyze/drag you to a blood test for no reason” country, and guess what: that doesn’t actually happen. Stopping people randomly is a colossal waste of time, and even the most enthusiastic cop will quickly tire of it.

    That crazy “drunk after driving” thing is what people should worry about. Laws like that are designed to be abused.

  • avatar
    mikey

    The “two hours after driving window” will be challenged, but not by me.

    I keep $50.00 tucked away in my wallet for cab fare. Then theres that nifty little UBER app on my phone. In our area we probably have three or four” designated driver” services..$20 -$25 and both me, and my car get home.

    Right, and when its not -10 with a 30 mph wind , I walk. If I know that I will be driving I stick to Diet Pepsi.

  • avatar
    Mr.EpMini9

    I must applaud the governing bodies for implementing this law as it is badly needed. RIDE checks should not only be used seasonally, but also wherever a bar is located. Whatever laws they need to combat this problem, they would get no resistance from me.

  • avatar
    markf

    They told me if Donald Trump were elected Civil Liberties would disappear. And they were right!

  • avatar
    Mike-NB2

    I’m really glad to hear that there is this backlash. I’ve spoken out about this and been met with what essentially amounts to Maude Flanders (RIP) yelling ‘won’t someone please think of the children!’ I’m pretty much dead centre when it comes to politics (though I lean a bit left on social issues) and see this as a serious erosion of basic civil liberties.

    One of the grounds that this law is based on is the fact that Australia has a similar law whereby reasonable suspicion isn’t required for a breath sample. I have a close friend who recently moved back to Canada after living in Australia for a decade so I asked him to confirm this. It turns out it’s certainly true that Australia has this law but that isn’t the whole story. Australia has this law because it is perfectly legal to drive down the road with an open alcoholic drink in your cupholder. You can grab a can of Fosters and head for the grocery store in your ute if you like. In that context the law makes sense. If I get pulled over and the cop sees an open beer then there may be a question as to my sobriety so a check may be warranted. But no, here in Canada that isn’t the case. This is a blatant case of over-reach.

    The chances of this law being fixed or repealed by Parliament are pretty much zero. The left-leaning Liberals and the right-leaning Conservatives probably both like the law but for different reasons. It’ll be up to the courts to deal with this one. I think a strong argument can be made that this law is unconstitutional.

    As an aside, I ALWAYS refuse to donate to MADD when asked. My reason? I don’t donate to religious groups.

    (As an aside, our provincial legislature recently amended legislation and will now permit red light cameras. TTAC is a source for a lot of good information on this. My argument against this intrusion will be that if red light running is a problem then try adding a second to the amber light first. Will that seem reasonable to municipalities? Nope… adding a second to the amber won’t generate revenue.)

    • 0 avatar

      MADD has come up with an idea called the “victim impact panel”. Whatever else it does, probably therapy for those who lose someone to a DWI, its real purpose is a head tax. In NY, they got it written into the law that anyone with a DWI conviction must attend AND PAY FOR a trip to the Victim Impact Panel. Short answer, lobbying group gets rooted into the money machine that is DWI law…….I’ve only seen one Judge with the balls to tell a defendant they have to go, but not pay…..

  • avatar
    Lie2me

    I enjoy drinking at home. Football game, a few friends and family around, no worries about being pulled over

  • avatar
    Lightspeed

    Typical Liberal Party nanny-state crap. Drunk driving is bad, giving police unlimited power, without discretion is bad too. But, this is Canada under Justin Trudeau’s Liberals.

  • avatar
    theBrandler

    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.

  • avatar
    Arthur Dailey

    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.”

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