Lawyers question impaired law changes
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.
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