FOCUS: Canada’s revamped impaired driving law brews ‘potential for injustice’

There must be ‘trigger’ for cops to come knocking, Surrey MP says

Had a rough day at work? Maybe want to take the edge off?

You get home, pour yourself a proper drink – or two – then hit the comfy chair and flip on the tube. There’s a knock at the door, and you open it to a cop who’s demanding a breath sample. She was alerted to you driving “kinda funny,” and tracked you to your castle. Of course, you haven’t driven for about an hour now, and only started drinking after settling in at home. But that doesn’t matter, and now you’re facing, as absurd as it sounds, an impaired driving charge.

Could it happen?

“It is a very strange thing that they have made,” Sarah Leamon, a defence lawyer specializing in impaired driving cases, said of the federal government’s new impaired driving legislation – namely Section 253 of the Criminal Code.

“There’s lots of lawyers who are making lots of noise about this being an issue, in that we might be able to see police kind-of follow people into their homes or into a bar and pull them out.”

“Basically, the change now just says you can’t be over 80 milligrams per cent within two hours of driving,” Leamon said. “Now, I think that that’s improperly worded in the Criminal Code. I think it’s going to be a very, very big misstep in terms of how the legislation is worded. I don’t think it was the legislative intention for people to have to abstain from consuming alcohol two hours after they’ve ceased driving.”

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Sarah Leamon, criminal defence lawyer. (Submitted photo)

Indeed, if it were, this new impaired driving law would also embrace Mounties who have a few drinks at the 500-seat “mess hall” for thirsty cops at RCMP “E” Division headquarters in Green Timbers, after they’ve finished a shift patrolling the streets. All things being fair and equal, that is.

“You know, you’re exactly right,” Corporal Mike Halskov, media relations officer for BC RCMP Traffic Services, conceded. “We have to apply the reasonableness test to a few things, in a measured and reasonable fashion. It’s not like we’re going to be running out there responding to every erratic driving complaint. That kind of response was not the intent of the legislation.

“It’s definitely very confusing I guess for some,” he said, and “can be open to misinterpretation by those who are not educated on this kind of thing, understandable.” The “revamped” Section 253, he said, is “overall designed to try to reduce fatalities on our roads” and “to take away a couple of defences that have been used in the past.”

Specifically, Halskov explained, in cases where you have a driver that’s been involved in a crash, leaves the scene, goes to his house, or wherever, and has “a drink.”

“Before, it’d be very difficult to pursue an investigation like that because we don’t have what is called continuity of the person. Driving investigations are very technical.”

A case that keeps coming up in this discussion, ironically, involves a former RCMP corporal. Monty Robinson was convicted of obstruction of justice in connection with a 2008 traffic crash that killed Orion Hutchinson, 21, in South Delta. The young man died after his motorcycle crashed with Robinson’s jeep. A judge found Robinson drank a couple shots of vodka at home, after leaving the scene of the crash, in a deliberate effort to thwart and impaired driving investigation.

Micheal Vonn, policy director for the B.C. Civil Liberties Association, said as she understands it this is a part of legislation attempting to address the “perceived problem of the ruse, if you will, of someone having a lot of alcohol subsequent to their driving to mask the fact they had been impaired at the time.”

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Micheal Vonn, B.C. Civil Liberties Association. (Submitted photo)

“The notion of trying to address this problem has, as many lawyers are pointing out, created another problem,” Vonn said. “This is the old adage in law that hard cases make bad law. Again, how frequently were we seeing the problem of the ‘ruse,’ I’ll call it, of the chucking back a half a bottle of whatever is unclear to me. How big a problem this was, is, and the potential for injustice in relation to the solution, these are very tricky arenas but certainly when you are essentially creating potential for this kind of injustice, you must have a very compelling case to even contemplate it and then, again, even if you have a very compelling case, it doesn’t excuse individual injustice, right, you have to have a proper mechanism whereby people can defend themselves.”

Meantime, Halskov said it’s a “little misguided” to think police will be using this legislation to chase people willy-nilly to their homes.

“They brought up a scenario where you have a disgruntled spouse or something phone in on you because you were ‘allegedly seen’ driving erratically home from work and an hour later we show up at your door and demand a breath sample. It’s like, nah.”

Markita Kaulius, who has been lobbying government for stiffer impaired driving laws since her 22-year-old daughter Kassandra was killed by a drunk driver in Surrey in 2011, doesn’t think it will play out that way, either.

“I can tell you the police don’t have time, they’re not going to be chasing people over to their homes,” she said. “They’re way too busy to be doing that.”

Still, earlier this month in Mississauga, Ontario, police demanded a breath test from a 70-year-old man after following him from a beer store where he’d returned about 10 wine bottles and three dozen beer bottles. The man told the media police thought the haul, which his family amassed over the holidays, was excessive. He was tested, passed, and then was free to go.

OUR VIEW: Impaired driving law begs clarity

READ ALSO: MADD Canada’s anti-impaired driving campaign coming to Surrey school

As for the revamped Section 253, Kaulius said, “That one came out through the government, this was not something that we had asked for. I think it was to do away as well with people being able to be involved in a collision, and then take off, go home and have a drink.

“Unfortunately,” she added of the contentious language, “it’s like the marijuana thing, they put things in place before really they should have taken more time to do it, you know, and have better laws that are understandable to the public.”

Ken Hardie, Liberal MP for Fleetwood-Port Kells, tried to make it more understandable.

“Maybe on the way home, somebody notices something awry and tips off the police, maybe a fender-bender, I don’t know. The police have to have some reason to come knocking on your door — they just can’t randomly say, ‘Gee, we think this guy was out curling and he may have been drinking,’” Hardie told the Now-Leader.

“There has to be a trigger that gets the police to come and knock on your door. And then the exception is that if you went home and you had no reason to expect the police to come calling, you can have your beer and sure you might blow a certain rating, but your defence is pretty iron clad. It’s up to the police, or in this case the prosecutor, to come up with the evidence that you should have known the police were going to come knocking on your door.”

For her part, Leamon suspects the new legislation, as worded, won’t last long.

“I think it has to be pretty short-lived in order for our law to make any sense whatsoever,” she said. “The only thing that I can use to explain it is that the legislators didn’t understand what they were writing into it.”

She called the legislation “profoundly short-sighted” and “really stupid.”

“That’s pretty blunt language but I don’t think that’s overstating it,” she said.

“I don’t see how it could ever possibly withstand a challenge in court.”

Here’s what Section 253 says:

Operation while impaired

253 (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

Marginal note:For greater certainty

(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.

Marginal note:Operation while impaired — blood drug concentration

(3) Subject to subsection (4), everyone commits an offence who has within two hours after ceasing to operate a motor vehicle or vessel or after ceasing to operate or to assist in the operation of an aircraft or of railway equipment or after ceasing to have the care or control of a motor vehicle, vessel, aircraft or railway equipment

(a) a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation;

(b) a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph (a); or

(c) a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.

Marginal note:Exception

(4) No person commits an offence under subsection (3) if

(a) they consumed the drug or the alcohol or both after ceasing to operate a motor vehicle or vessel, or after ceasing to operate or assist in the operation of an aircraft or railway equipment or after ceasing to have the care or control of a motor vehicle, a vessel, an aircraft or railway equipment; and

(b) after ceasing the activities described in paragraph (a), they had no reasonable expectation that they would be required to provide a sample of a bodily substance.

Vonn described it as an “innovation” that “certainly has raised considerable concern and there’s simply no question, nobody doubts, that we are going to see a constitutional challenge to that aspect of the law.

“If there’s one thing that you can say about impaired driving laws,” she said, “it is that they are often rigorously challenged in the courts, there’s never a lack of opportunity to do that so we will be seeing this law shaped through the courts but we share the concern that there is potential for injustice.”

“We don’t want to be casual or relaxed about the assurances that we receive sometimes in relation to legislation where the perhaps well-meaning legislators will say, ‘Well, of course there’s the potential for abuse but the police will be very careful — we won’t be invoking any of these scenarios, that would never happen.’ We don’t want our rights dependent on a promise. We need to have the legislation structured so that our rights are protected. Whether this meets the balance is something that, again, many lawyers are saying they have serious concerns about.”

The BCCLA, she said, suspects a court challenge will be “in very short order.”

Leamon went one further.

“I do think that random and mandatory breath testing in this country will be relatively short-lived,” the lawyer said.

“I do think that it will be challenged under the Charter.”

READ ALSO Driving Miss Hazy: What will happen on our roads once recreational pot is legal?

READ ALSO: Mother of Surrey woman killed by drunk driver weighs in on proposed impaired driving laws

READ ALSO ZYTARUK: Gee, academics discover smoking pot leads to bad school grades



tom.zytaruk@surreynowleader.com

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