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Drunk on power: proposed changes to impaired driving law in Canada

A few weeks ago, the Ottawa Citizen wrote about a study from the U.S. Centers for Disease Control that found that Canada is number 1 among wealthy countries for roadway deaths involving impaired driving. According to the study, 34 % of motor vehicle deaths in Canada involve alcohol, much higher than many other countries.

The article outlines how the study has been received by some advocates as a call to action to combat impaired driving, and points to a private member's bill currently before parliament that seeks to do just that. The bill has already gone through second reading and will be undergoing review by parliamentary committee in the fall.

Bill C-226 proposes some far-reaching measures that will completely reconfigure the landscape of impaired driving law in Canada. While some of the proposals focus on mandatory minimum sentences for certain offences, particularly impaired driving causing death, others go to the procedural side of investigations.

In Canada, if a police officer suspects that someone has alcohol in their body while driving, they can demand a sample of their breath into a roadside screening device. The court needs to find that the officer subjectively suspected, but also that their suspicion was reasonable given their observations. If a court finds that an officer does not have a reasonable suspicion to ask for a roadside, then the subsequent breath samples can be thrown out of court. A similar line of reasoning follows for situations where an officer has reasonable grounds to believe that a person is impaired while driving. Then, they can skip the roadside test and go straight to a breath sample that happens at the police station. Criminal trials on impaired driving charges often turn on whether or not the officer had a reasonable suspicion or reasonable grounds, with defence lawyers bringing a Charter application to have the evidence excluded. The idea is that if an officer is collecting evidence without a proper reason for doing so, that they are infringing on the individual's right to be free from reasonable search and seizure (s. 8 of the Charter) and arbitrary detention (s. 9).

Bill C-226, however, proposes a list of factors that, alone, would constitute reasonable grounds to suspect a person has alcohol in their body. They include erratic movements of a car, a person's admission of consuming alcohol, the odour of alcohol on someone's breath or their car and involvement in an accident that resulted in bodily harm or death. Under the current regime, an officer typically needs to establish at least an admission of consumption and an odour of alcohol from the person's breath, although the variables of observations often change. This proposed change widens the scope of police arrest power almost infinitely. Imagine you were a designated driver, and are pulled over, only to have an officer smell alcohol coming from you car (i.e. passengers who you are designated to drive home). "Erratic movements" of a car, which could be attributable to many things, could also form the basis for a stop. Allowing stops and roadside demands on the basis of just one indicia of bad driving or impairment is a huge change from the current procedure.

The bill goes even further to say that if a police officer has an approved screening device (roadside) in their possession, then they can randomly stop individuals to test their breath. This change marks a huge leap from the current requirements, essentially giving police officers carte blanche to stop whoever they choose. I cannot see how this broad search power would survive a Charter challenge, given how much power it would give to police to randomly stop motorists.

Clearly, drinking and driving remains a pervasive problem in Canada. But the law is a blunt tool to spur social change, and the amendments proposed by Bill C-226 may do little to curb this issue. Often, people who are driving while drunk are not aware of their own intoxication. Mandatory minimum sentences often provide little deterrence until someone is actually charged, as people are usually not aware of the sentences. More importantly, the sweeping changes to expand police search powers will need to be balanced against an individual's right to be free from unreasonable searches and stops. A cure for this social problem will require a more complex approach than what is now being offered.

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