Imagine this scenario: you’ve come home after a long, stressful day and head straight for your refrigerator or liquor cabinet and knock back a few beers or whiskeys over the next hour or two to calm your nerves. Suddenly, there’s a knock at the door. It’s the police, saying they’d received a complaint about an erratic driver and they want you to blow into a breathalyzer.
What would your reaction be? Outrage? Bewilderment? A combination of the two? All of that may quickly evolve into dread once you realize that a positive reading on the breathalyzer could mean arrest and a charge of impaired driving laid, even though your impairment came after your driving and not the other way around.
Does all of this sound farfetched? Sadly it’s not — in fact, it’s the new legal reality in Canada.
This is all a part of the overhaul of Canada’s impaired driving laws that the federal government ushered in alongside the legalization of cannabis. Obviously, the latter represented a historic change and that has overshadowed the concerning erosion of civil liberties contained in the former.
The changes took effect last month, and the most obvious among them has been the removal of the requirement to establish a “reasonable suspicion” of alcohol consumption before police can demand a breath sample. Now, police can compel a motorist to blow into a breathalyzer at any time.
For example, Global News reported this week on the story of a Mississauga man who was returning some empty beer and wine bottles on a Saturday morning, only to be stopped by a police officer who was demanding a breath sample. Apparently, the three dozen empty beer bottles and 10 empty wine bottles was suspicious, even though they had accumulated over the holiday season.
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On any given Saturday, you’d find thousands upon thousands of Canadians hauling in their empty bottles for a refund and surely the goal of safer roads is not achieved by harassing them. In this case, the driver easily passed the test, but the bar should be set much higher than that for demanding a citizen submit himself to a search, which is what a breathalyzer is.
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In a landmark ruling in 1995, the Supreme Court of Canada found that the requirement of establishing reasonable and probable grounds “is not only a statutory precondition to a breathalyzer demand but also a touchstone of the Charter … under (Section 8).” We are talking about fundamental legal rights guaranteed to Canadians under the Charter. We should not be so cavalier about chipping away at these rights.
These changes go deeper than many Canadians realize. It’s not just a driver behind the wheel who could be subjected to a breathalyzer. As described in the above scenario, someone sitting at home could be, too. Or, for that matter, someone at a bar or restaurant or on a golf course.
Under the new law, someone can still be in violation up to two hours after driving. So if police were to receive a complaint about an erratic and possibly impaired driver, they could show up long after the fact and demand you blow into a breathalyzer. Clearly, the potential exists of such complaints being phoned in for revenge or out of spite.
But what if you’ve been consuming alcohol after you’ve arrived at that destination? As if all of this wasn’t egregious enough already, there’s a reverse onus here that should outrage Canadians. It’s not up to the police to prove that you were drinking before you drove, it’s up to you to prove you were drinking afterward.
This all goes way too far. It’s certainly reasonable to be concerned about impaired driving or to look at ways of strengthening our laws or the penalties for violating them. However, that concern does not justify and cannot permit such a flagrant violation of the constitution.
Moreover, given the pressures our legal system is coping with at the moment, it seems rather counterproductive to further burden it with cases that ought not to have arisen in the first place — not to mention the inevitable constitutional challenges this law will spawn.
Trying to fix all of this well after the fact is obviously not ideal. That, however, does not mean we should just roll over and accept it.