Lawyers ques­tion im­paired law changes

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While there’s no ques­tion this prov­ince — and the coun­try as a whole — has a prob­lem with im­paired driv­ing, new leg­is­la­tion in­tended to curb it is likely to cre­ate prob­lems all its own, say sev­eral Regina lawyers.“If you com­pare it to, for ex­am­ple, po­lice of­fi­cers de­tain­ing some­body for an in­ves­ti­ga­tion, they need a rea­son­able sus­pi­cion. And if they don’t have a rea­son­able sus­pi­cion, the de­ten­tion is un­law­ful ...,” said Aaron Fox. “This leg­is­la­tion re­ally flies com­pletely in the face of that.”Changes to Canada’s im­paired driv­ing laws came into ef­fect re­cently, mak­ing it far eas­ier for po­lice to de­mand a road­side breath sam­ple. While un­der the old law, po­lice needed a rea­son­able sus­pi­cion of al­co­hol con­sump­tion — such as an odour of al­co­hol or an ad­mis­sion by the driver to hav­ing drank — to make a de­mand, the new law does away with that re­quire­ment.Fox pointed out rea­son­able sus­pi­cion wasn’t a dif­fi­cult hur­dle for po­lice to over­come, mak­ing him ques­tion why the fed­eral gov­ern­ment both­ered with the changes.“I don’t know why they would want to cre­ate dif­fi­cul­ties for the Crown pros­e­cu­tion, which is what this is go­ing to be,” he said.But the changes are wel­come news to po­lice, who say they will help com­bat im­paired driv­ing.“It’s a weight of civil lib­er­ties — ‘I shouldn’t have to give a breath sam­ple’ — as op­posed to the safety,” said Regina po­lice Const. Jonathan Turner, a drug recog­ni­tion ex­pert. “It has shown in ju­ris­dic­tions that when you switch to no sus­pi­cion needed and the de­mand is given to any­body that you do re­duce ac­ci­dents and fa­tal­i­ties due to al­co­hol.”Regina lawyer Barry Ny­chuk said the new laws are likely to give the im­pres­sion of an in­crease in im­paired driv­ing. He noted one change ef­fec­tively drops the le­gal limit from “ex­ceed­ing .08” to “equal to” .08. An­other does away with what he termed the “re­cent con­sump­tion de­fence,” which al­lowed an ac­cused an op­por­tu­nity to prove the blood-al­co­hol level was ac­tu­ally below the le­gal limit at the time of driv­ing, even if it was above at the time of the breath test.“Au­to­mat­i­cally you’re go­ing to catch more peo­ple,” he said. “It’s not that more peo­ple are drink­ing and driv­ing. It’s that we’ve made the pros­e­cu­tions of peo­ple way, way eas­ier and peo­ple that weren’t oth­er­wise con­victed years ago are now con­victed.”“In ef­fect, you’re go­ing to have some­body who’s go­ing to be able to prove that they weren’t over the le­gal limit at the time they were driv­ing, and yet they’re still go­ing to be found guilty,” Fox said. “I think they’re go­ing to have a real con­sti­tu­tional chal­lenge prob­lem with that is­sue as well ... So I do think it’s go­ing to keep lawyers busy...”Ny­chuk and Fox said, rather than sim­plify mat­ters, the new leg­is­la­tion is likely to cause a wider range of prob­lems once these cases land in court.“Un­for­tu­nately, what you’re go­ing to see are a lot of Char­ter chal­lenges to charges that might arise where there are no grounds to make a road­side de­mand, which means it’s go­ing to work its way up through the courts and ul­ti­mately to the Supreme Court of Canada, and de­lay get­ting cases con­cluded,” Fox said. “And if the court de­ter­mined that de­ten­tion in those cir­cum­stances is un­law­ful — and they may very well — now you’ve thrown all of these pros­e­cu­tions into dis­ar­ray.”Ny­chuk agreed the new pro­vi­sions will be sub­ject to court chal­lenges. The big­gest is­sue is go­ing to be time and cost, given cases will have to wind their way to the Supreme Court — not a fi­nan­cial pos­si­bil­ity for many ac­cused.“This will get chal­lenged,” Ny­chuk said. “It’s just a mat­ter of who’s go­ing to chal­lenge it. The en­tire statu­tory reg­i­men has now gone too far where it’s no longer demon­stra­bly jus­ti­fied in a free and demo­cratic so­ci­ety.”Both lawyers said there is no ques­tion im­paired driv­ing is a prob­lem, and that it has a ter­ri­ble im­pact on fam­i­lies and friends of those killed as a re­sult. But they sug­gested there are likely bet­ter means to deal­ing with it, such as through con­tin­ued ed­u­ca­tion and pro­vid­ing al­ter­na­tives to driv­ing. Ny­chuk added some coun­tries have a zero tol­er­ance for drink­ing and driv­ing — some­thing he said would cer­tainly do away with con­sti­tu­tional chal­lenges and uncer­tainty on the part of driv­ers.“I guess the mes­sage is just don’t take any risks,” Ny­chuk said of the new laws. “Just don’t drink and drive at all. That might be the eas­i­est way to go.”

Regina lawyer Barry Ny­chuk says changes to Canada’s im­paired driv­ing law could end up be­ing chal­lenged in court. The changes make it eas­ier for po­lice to de­mand a road­side breath sam­ple with­out rea­son­able sus­pi­cion of al­co­hol con­sump­tion.

Aaron Fox

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