According to Ottawa-based criminal defence lawyer Michael Spratt, the federal law necessitating mandatory roadside breathalyzer tests unfairly targets individuals with health conditions that can prevent them from providing a breath sample. In December 2018, changes to both drug and alcohol impaired driving were implemented as part of the former Bill C-46, providing law enforcement new powers in interacting with drivers.

In accordance with the new impaired driving laws, police officers have the authority to ask any driver they pull over for breathalyzer tests. Moreover, any driver who refuses to take the test could be charged. Previously, officers could only ask a driver for a breathalyzer test if they had a reasonable suspicion the driver was impaired.

Several groups have already raised concerns that the new laws unfairly target individuals with impaired lung function who are not able to provide a breathalyzer test.

“You need to have a sufficient seal—it’s like drinking through a straw—so that you can blow into the machine. You need to produce enough volume of breath to actually trigger the machine, I’ve had clients who have breathing difficulties, who’ve only had one lung; clients who have had different cancers and haven’t been able to form the seal. What that means is that even though they’re not impaired, even though they want to co-operate with the police, they end up being charged criminally for refusing to comply with this breath demand,” he added.

Michael Spratt in an interview with CTV news.

Jimmy Forster, a B.C. resident, who suffers from severe asthma and chronic obstructive pulmonary disease was recently charged with failing to provide a breath sample after he was unable to blow hard enough into a breathalyzer device to register a reading. As a result, Forster had his car impounded and driver’s licence suspended twice. “I’m just totally stressed right now,” Forster told CBC news. “I can’t afford it, I’m on disability… I can’t sleep at night,” he said.

In response to this incident, RCMP released a statement saying that if a driver feels that he or she had a lawful excuse for failing to provide a breathalyzer test, “they are encouraged to speak with legal counsel and consider bringing their concerns before the courts.”

According to the Canadian Lung Association, there are currently almost 200,000 Canadians living with severe asthma and over two million people living with chronic obstructive pulmonary disease. Thousands of other people have illnesses such as Bell’s palsy or disabilities such as facial paralysis caused by stroke that can prevent them from complying with a breathalyzer test.

In B.C., a legal team comprised of lawyers Jennifer Teryn and Jerry Steele have already consulted on three such cases regarding clients with similar health conditions who were charged under the law for failing to provide a breath sample.

Recently, the team has filed a judicial review with the B.C. Supreme Court regarding one of the cases. Norma McLeod, a Victoria resident, was unable to comply with the breathalyzer test due to her chronic lung condition and the use of a medical prosthesis.

According to Teryn, Canadians who have a medical condition preventing them from providing a breath sample should carry medical documentation with them and record any interactions with police.