Police in Canada can now demand breath samples in bars, at home

It may sound unbelievable, but Canada’s revised laws on impaired driving could see police demand breath samples from people in bars, restaurants, or even at home. And if you say no, you could be arrested, face a criminal record, ordered to pay a fine, and subjected to a driving suspension.

You could be in violation of the impaired driving laws even two hours after you’ve been driving. Now, the onus is on drivers to prove they weren’t impaired when they were on the road.

“It’s ridiculous, it’s basically criminalizing you having a drink at your kitchen table,” Paul Doroshenko, a Vancouver criminal defence lawyer who specializes in impaired driving cases, told Global News.

“If you start to drink after you get home, the police show up at your door, they can arrest you, detain you, take you back to the (police station) and you can be convicted because your blood alcohol concentration was over 80 milligrams (per 100 millilitres of blood) in the two hours after you drove.”

Changes to Section 253 of the Criminal Code of Canada took effect in December giving police greater powers to seek breath samples from drivers who might be driving while impaired.

Under the new law, police officers no longer need to have a “reasonable suspicion” the driver had consumed alcohol. Now, an officer can demand a sample from drivers for any reason at any time.

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While many Canadians have heard about that part of the new legislation, lawyers said the two-hour provision has gone unreported.

“The public has completely missed this one,” said Joseph Neuberger, a Toronto criminal defence lawyer.

He described a scenario in which someone has gone home and watches a hockey game, enjoys a few beers, and gets a knock on the door from police, who received a tip about someone in the house who was driving a vehicle suspiciously.

“The person answers the door and they say, ‘Sir, we’ve had a complaint about your driving, we need you to provide a sample,” said Neuberger, noting if the person failed to provide the sample it would likely lead to arrest.

“It’s a serious erosion of civil liberties,” said Toronto criminal defence lawyer Michael Engel, whose practice focuses almost exclusively on impaired driving cases.

Engel said someone could be unjustly prosecuted. If a disgruntled business associate or spouse called police with a complaint and an officer went to investigate at the persons’ home or place of business, police could demand a breath sample.

“Husbands or wives in the course of separations would drop the dime on their partner,” Engel said, describing the potential for the law’s abuse by those calling police out of spite, for example.

“It casts the net too wide. It’s going to potentially criminalize innocent behavior.”

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In an instance where someone was drinking in a public place, Doroshenko said it would be hard for someone to prove they weren’t impaired when they were driving earlier.

“It is profoundly stupid, so most people assume it can’t be. But that’s what the law is now, you will see it happen — I guarantee it.”

The federal government brought in the revised law in an effort to reduce fatalities on roads.

“Impaired driving is the leading criminal cause of death and injury in Canada,” said Minister of Justice and Attorney General Jody Wilson-Raybould in December.

“I believe these reforms will result in fewer road deaths and fewer Canadian families devastated by the effects of an impaired driver. This is one of the most significant changes to the laws related to impaired driving in more than 40 years and is another way that we are modernizing the criminal justice system.”

In response to Global News reports about the implications of the revised legislation, a government spokesperson said there was no cause for alarm, despite warnings from defence lawyers around the country.

“Mandatory alcohol screening only applies at the roadside, nowhere else. The law is clear on that,” said David Taylor, director of communications for the minister of justice and attorney general of Canada.

“The ‘two-hour’ rule in the new impaired driving laws was put in place to limit the use of certain defences in drunk driving cases,” Taylor said in a written statement.

“It is also used in at least 16 US States and has been upheld by their courts. In order to seek a breath sample after a driver is no longer behind the wheel, a police officer would require reasonable grounds to believe that person was impaired while they were driving.”

While criminal lawyers predict the new law will be challenged, likely through appeal courts and even to the Supreme Court of Canada, they expect that process will take several years. In the meantime, they say drivers are vulnerable to unfair arrests and prosecution.

“We’re in a brave new world now,” said Engel.