Potential for injustice with new impaired driving laws

Mar 7, 2019

Canadian criminal defense lawyers are voicing concerns regarding the new Bill C-46, which came into effect last month, and provides the police with a wider range of powers to administer sobriety tests on drivers, boaters and even canoeists.

Under new tough driving impaired laws past by the Canadian Parliament in December 2018, Canadians could now be facing criminal charges for driving with a blood alcohol concentration over the legal limit, even if they were sober while driving. In fact, according to Bill C-46, having an illegal blood alcohol concentration within two hours of driving is a criminal offence.

“I think anyone should have a problem with this legislation, because it’s unconstitutional.” He added, “You can imagine a situation where a husband and wife are out together. The husband drives to the bar knowing the wife will be the designated driver on the way home, and she’s not going to be consuming alcohol that night. The husband drinks alcohol and is now over the limit and has driven a vehicle within the previous two hours.” According to Brown, at this point, the police could enter the bar, demand a breath sample from the husband, and if his blood alcohol is over the legal limit, arrest him.

Toronto defence lawyer Daniel Brown in an interview with CBC News

According to the new legislation, police no longer require to have reasonable grounds to suspect impaired driving, or driving with an illegal concentration of alcohol in the system, in order to demand a test from the driver. Sarah Leamon, a defence lawyer specializing in impaired driving cases, said in an interview with Surrey News, “Basically, the change now just says you can’t be over 80 milligrams per cent within two hours of driving… 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.”

When introducing the bill, federal Justice Minister Jody Wilson-Raybould said, “Its primary purpose is to eliminate risky behaviour associated with bolus drinking, sometimes referred to as drinking and dashing.” The term bolus drinking is referring to consuming large quantities of alcohol in a short period, then operating a vehicle or a boat with the intention to arrive home before the alcohol is fully absorbed in the bloodstream.

Although it is unclear whether any arrests have been made under the new legislature, Ontario’s Criminal Lawyers’ Association has expressed their concern to the government the law could result in nemerous wrongful convictions.