January 20, 2019
Four years ago, a waitress and manager of the Finn McCool Bar in Woodbridge rushed out to the parking lot to alert police that a patron had just left in his jeep and was very intoxicated.
When York Regional Police caught up with him a few minutes later, the driver had trouble retrieving his ownership, his eyes were glassy, his speech was slurred and his breath smelled strongly of alcohol. “I just had two beers,” he kept insisting.
Placed under arrest, he was taken back to the station where he later blew 136 mg of alcohol in 100 ml of blood — a BAC (blood alcohol concentration) of more than 1 1/2 times the legal limit.
But the driver was acquitted at trial.
The judge found the Crown hadn’t proved that the man’s high readings weren’t due to his guzzling beer right before getting behind the wheel and then being tested hours later. He bought the defence argument that at the time of driving, the alcohol wasn’t fully absorbed yet and so he wasn’t over the legal limit.
It’s called the bolus drinking or “drinking and dashing” defence — and as of last month, it no longer exists. It’s now illegal to be over the limit within two hours of driving.
It’s one of many controversial changes in the massive overhaul of impaired driving laws by the Liberal government that came into effect Dec. 18. It’s now a criminal offence to have a BAC “at or over” the legal limit — 80 mg of alcohol in 100 ml of blood — within two hours of driving or boating. And the onus is now on drivers to prove they weren’t over the legal limit when they were behind the wheel. Or oar.
Impaired driving is the leading criminal cause of death in Canada. To fight the scourge, everyone wants to punish the truly guilty who otherwise exploit legal loopholes to walk free. The concern is that with these sweeping and overzealous changes, the innocent will be caught up as well.
Placing the onus on the accused is not only unfair, it’s unnecessary since the bolus drinking defence was used rarely and often unsuccessfully, argues criminal lawyer Joseph Neuberger. “It’s ridiculous.”
Now we have a scenario, he suggests, where someone with an axe to grind could report your driving to police as impaired. In the meantime, you’ve come home and been enjoying several free-poured scotches while relaxing in front of the TV.
The police could theoretically knock on your door to investigate the complaint and ask you to take a breath test. You fail. It’s up to you to then hire a toxicologist and prove in court how much you’d been drinking at home, hopefully with the back-up of witnesses, to explain the reading and prove it wasn’t possible that you were over the limit when you were on the road two hours earlier.
“Let’s say you don’t know what you drank. You’d have to know how many ounces you poured. If you don’t, it might be extremely difficult or impossible to explain away the reading.
“This is crazy,” he says.
Defence lawyer Ari Goldkind has no patience for all the doomsday scenarios about the new law. “The sky isn’t falling,” he insists.
“The message against drinking and driving hasn’t gotten across to people. The Trudeau government has acted appropriately to close a whole series of loopholes to allow the best and brightest to find ways to secure acquittals for drivers who were two or three times the legal limit while they were on the road.
“The people that are left six feet under have been spinning in their graves, in my view, due to all the ways drunk drivers have been able to avoid the very short arm of the law.”
In a series of tweets defending the changes, Kingston Police Sgt. Steve Koopman explained the frustration seeing these loopholes used multiple times a year.
“We receive a report from a witness of a possible impaired driver. If we cannot intercept in time, we attend the registered owner’s address and often find the suspect car in the driveway.
“This is where we had great difficulty in registering convictions because the person either has or will later say through their lawyer that they were stone-cold sober while driving but as soon as they walked in the door they started smashing back the drinks.
“The other scenario we often encounter,” he continued, “is a person is involved in a collision while impaired, flees the scene and when police arrive at the house they said they were stressed about the incident and drank after the fact.”
Have the laws swung too far?
The public has only recently twigged to the changes after the case of retired letter carrier Art Lightowler went viral across the country.
The 70-year-old Streetsville man made headlines in the Toronto Sunand on Global News with his story that he’d been stopped by Peel Police and required to give a roadside breath test after returning a trunkful of Christmas empties to the Beer Store.
He felt as if he’d been treated like a criminal and was shocked to learn police no longer need a “reasonable suspicion” that a motorist has been drinking before asking for a breath sample.
Under the new amendments, officers across Canada can now randomly administer roadside alcohol breath tests on any driver legally pulled over — even with no sign of impairment. That also includes people operating a powerboat, a canoe or even a paddle board. Refusing a breath demand carries an automatic $2,000 fine.
At the ensuing outrage over the erosion of individual rights, lawyer Edward Prutschi says it’s difficult for the criminal defence bar not to say, “I told you so.”
“Well over a year ago, many people, myself included, said there are problems with this legislation but it just got shoved out there as it was.”
Echoing many civil liberties organizations, Prutschi worries about how these new police powers will be used. “Is it going to be applied equally and fairly across the board? A lot of people will say probably not.”
The random, groundless breathalyzer tests are a violation of our fundamental protection against unreasonable searches, he argues, and predicts the courts in this country will be further clogged with Charter challenges to these amendments.
“This may not be great for our clients,” he says ruefully, “but for us, this is the most terrific Christmas gift anyone could provide.”
MADD under fire for supporting controversial drunk driving provisions
Canadians outraged over enhanced police power to combat drunk driving are mad at MADD Canada.
“We’re getting angry e-mails that we’re supporting a police state,” complains CEO Andrew Murie.
He blames the backlash on “fear mongering” by defence lawyers. “We have to undo some of the misinformation out there or we lose public support and we lose public donations. We’ve been miscast and most of it’s not true.”
Mandatory screening is successfully used in many countries, including Australia, New Zealand and Ireland and he predicts between a 20% to 25% decrease in alcohol-related fatalities in Canada in the first year alone.
“It would be about 200 lives saved. In my 22 years with MADD, this is the most significant law passed since the breathalyzer in 1969.”
Before, Murie says, police were missing about 50% of impaired drivers over the legal limit and about 90% of those who would have registered a warning. And he says prosecutors were losing about half of the cases that did get to trial — some because officers were found not to have satisfied the need for “reasonable suspicion” before demanding the roadside test.
Random door knocking is not going to happen, he maintains. “I’d be against that as well,” he says. “The only time the police can come — and they always could — is if they were doing an investigation into whether you were involved in an impaired driving crash.”
Before supporting the legislation, MADD Canada canvassed legal opinion and constitutional expert Peter Hogg assured them they were on firm ground. “I am confident that a constitutional challenge would be unsuccessful and that random breath testing would be upheld by the Supreme Court of Canada,” Hogg wrote.
Still, Murie knows that’s where we’re all heading. “I’m sure it will go all the way to the Supreme Court and we’re preparing for that.”