Nearly a year after the federal government introduced sweeping changes to impaired driving laws, experts and advocates say they remain worried about the power the new legislation gives police.
Under the new law, police can give mandatory alcohol screenings to anyone they stop and can charge people up to two hours after they’ve finished driving.
While these provisions have been added to prevent common defences to impaired driving charges, Ian Savage, a criminal defence lawyer and president of the Calgary-based Criminal Defence Lawyers Association says the laws are too broad.
“No law should be wide open such that it captures a potential wide range of innocent people in the net that it attempts to capture the guilty people,” says Savage.
Bill C-46, which received royal assent on June 21, 2018, consists of two parts — the second of which deals with impaired driving.
Under this new legislation, which went into effect on Dec. 18, 2018, language has been changed to prohibit being at or over the legal limit of 80 milligrams of alcohol in 100 millilitres of blood, or at or over 0.08, within two hours of driving rather than at the time of driving.
These changes, along with the addition of authorizing police officers with an approved screening device to carry out mandatory alcohol screenings, have led to concerns regarding possible scenarios in which police could act unconstitutionally.
One such scenario offered by Savage is the possibility of screening a driver at a bar or at home within the two-hour limit, despite having consumed the alcohol after driving.
“That’s an extreme scenario but in theory, it is open to that happening now,” explains Savage.
“That’s simply ridiculous and unconstitutional.”
This expanded time frame aims to prevent defences of “bolus” drinking — drivers attempt to reach their destination after consuming alcohol but before absorbing the alcohol into their system, as well as the “intervening drink defence,” in which drivers argue they consumed alcohol in the intervening time between an incident and the testing.
Sharon Polsky, vice-president of the Rocky Mountain Civil Liberties Association says she has similar concerns to Savage regarding the bill’s effect on Canadians’ individual rights.
“This has been a progression over time,” says Polsky. “[Bill C-46], like so many others, is chipping away at our individual freedoms.”
Polsky, who cites Statistics Canada’s reports of decreasing fatal collisions over the past decade, says the legislation acts upon unfounded fears based around the safety of roads in Canada.
“The messaging is, from a very strong lobby, that the police have to have these powers to protect the children,” says Polsky. “I have searched for a better way of describing it, but it has been a propaganda campaign.”
The law in action
Cst. Andrew Fairman with the Calgary Police Service traffic section, however, says Bill C-46 hasn’t much changed the way Calgary police operate.
According to Fairman, the bill’s exception for anyone who had no reason to expect an alcohol test within the two hour period acts as a safeguard for unconstitutional use of the legislation by police.
“There has to have been something that would make you reasonably believe that the police would want to talk to you,” says Fairman. “So it’s only going to be done if you ran from a collision or you ran over a pedestrian or something like that.”
“We don’t have the authority to just randomly decide that we’re going to walk over to this bar and [watch] five vehicles drive into there and then go into the bar and start testing people.”
However, if such a scenario were to occur, Fairman says the onus would be on the individual to prove they were not intoxicated when operating the vehicle.
Fairman says the largest change so far has been through mandatory alcohol screenings carried out by traffic section officers at every stop, regardless of what prompted it. This measure was introduced to maintain unbiased testing through the legislation.
Traffic section officers, as explained by Fairman, are often identified through motorcycle in warmer months as well as unmarked vehicles. On any given day, Fairman says roughly eight-to-10 traffic section officers are on duty.
In addition, Fairman says police have always had the authority under the Alberta Traffic Safety Act to pull over any vehicle to check for documents. Bill C-46 only adds the roadside screening device to the process.
“The only thing that’s changed is the federal government has given us the ability to utilize a roadside screening instrument, what we call an approved screening device as part of that checking sobriety,” explains Fairman.
While a positive result on a roadside device cannot warrant a charge on its own, it would lead to further investigation, including testing on an approved device at a police station.
The CEO of MADD Canada Andrew Murie says the organization supports the legislation, adding that MADD has campaigned for mandatory screenings in Canada for close to 10 years.
“Since it was introduced in Australia in the 1980s, … it has had a significant impact on decreasing the number of people killed and impaired driving crashes,” says Murie.
“We expect, minimum in 2019, to save about 200 lives.”
Canada is the latest of several countries which have introduced mandatory alcohol screenings, including Australia, New Zealand, Ireland, France, Belgium and the Netherlands.
According to Murie, misinterpretation of the language involved in the bill has led to confusion surrounding what can and can’t be done through Bill C-46.
“Unfortunately, when it was launched in December, a lot of people misunderstood the bill and when police could use these new powers,” says Murie.
“You had a lot of comments from lawyers, which were, in my opinion, fear-mongering and making the situation a lot worse than what could actually be done under the current law.”
It’s likely there will be challenges to the law. Already, Savage says a number of clients have come to him to seek representation in pleading not guilty to charges related to Bill C-46. The first court dates, according to Savage, will likely take place within the coming months.
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