Nfld. & Labrador

No reason needed for police to stop cars, ask for breath samples, and that's a problem: lawyer

Lawyer Ellen O'Gorman says the new rules could run against Charter rights and make it illegal to be drunk within two hours of driving.

Ellen O'Gorman says new rules make it illegal to be drunk within 2 hours of driving

St. John's lawyer Ellen O'Gorman says the new legislation poses questions about rights. (Darryl Dyck/Canadian Press)

New changes to federal legislation allow police officers to stop vehicles and demand a breathalyzer test without having a specific reason to do so. The move is aimed at curbing drunk driving and has been celebrated by Mothers Against Drunk Driving Canada (MADD) as one of the most significant steps in the last 50 years toward preventing deaths from drunk driving accidents.

But a St. John's lawyer says the new rules fly in the face of Canadian Charter rights.

"It could be argued to be the definition of an arbitrary search and that's what we're supposed to be secure against," said Ellen O'Gorman, a lawyer with Sullivan Breen King.

A judge will have to determine where the line should be drawn.- Ellen O'Gorman

Under new changes to Criminal Code, police will be able to carry out what is called mandatory alcohol screening, which means officers can demand a breath sample at the roadside from any driver who has been lawfully stopped, whether or not they suspect the driver is impaired. 

Previously, police officers had to have "reasonable suspicion" in order to pull a car over and ask the driver to blow into a breathalyzer, she said. That reasonable suspicion included signs of intoxication like bloodshot eyes or weaving back and forth on the road.

"That's a big change," she said.

Her problem with that? It's a search of someone's person without justification, she said. The Canadian Charter of Rights and Freedoms says everyone has the right to be secure against unreasonable search.

Robert Solomon, MADD Canada's National Director of Legal Policy, said it's no different than being searched at airports or borders, or when you're stopped and asked for your license and registration.

In those cases, Solomon said, you are being arbitrarily detained and searched under the Charter, but the Supreme Court of Canada has determined those instances to be justifiable. Likewise, demanding a breath sample without reasonable suspicion is justifiable, he said.

Illegal to be drunk within two hours of driving

O'Gorman's worried about other consequences of the new rules, too.

In particular, she said the new rules make it illegal for anyone to be over the legal limit within two hours of driving. In other words, if you arrive at home after a long day at work and have a few drinks, "that could be a big problem for you when you get to court."

There is an exception, she said: if you're charged, you have to convince the court that you had no reason to expect you'd be accused of drunk driving or asked to blow in a breathalyzer.

"That concerns us as lawyers because the onus is now on you. Ordinarily in criminal law, the onus is on the Crown."

Ellen O'Gorman says the new legislation makes it illegal to be drunk within two hours of driving. (Shutterstock)

That new rule eliminates a number of arguments a defence attorney can make, she said. In particular, she said sometimes a person could be over the limit when they're tested, but may not have been over the limit when they were driving.

For example, "you have a few swigs, maybe a lot of swigs, and you get in the car right away," she said. On a short drive, that alcohol could be in your stomach rather than your bloodstream, she said, which means, "you weren't that drunk while you were driving."

Solomon says this type of argument is often "abused" and used as a loophole for drunk drivers to get off and that the new provision is intended to close those holes. 

He argues that the exception allowing a person to prove they hadn't started drinking until after they got out of their car makes the change perfectly reasonable.

"This is going to arise extremely rarely," he said. 

"This is not going to arise out of the blue. There's going to have to be a crash, erratic driving, some reason for the police to investigate."

As for how a person would prove they hadn't been drinking until after the car had been parked in those rare occasions, he said they would have to convince the judge or the officers. 

"It's based on credibility, it would depend on all of the circumstances of the case and the situation."

MADD says fewer people will die

Mothers Against Drunk Driving (MADD) has applauded the new legislation, saying the organization estimates it will reduce deaths from drunk driving collisions by 20 to 25 per cent.

"To put it in context, that's 200 more families who will have their loved ones around this holiday season next year," Andrew Murie, CEO of MADD Canada, told told CBC Radio's Metro Morning on Monday.

"It's probably the most significant change in legislation around impaired driving since probably the breathalyzer was brought in 1969."

Solomon agreed, noting that many other countries have introduced mandatory screening and seen a drop in deaths from drunk driving. The federal justice department told CBC News that mandatory screening has been introduced in other countries, including Australia, New Zealand, Austria, Belgium, Denmark, Finland, France, Germany, Ireland, the Netherlands and Sweden.

"If you look around the world, we're way behind," he said, emphasizing that the changes to the Criminal Code are ultimately aimed at changing behaviour by creating enough of a perception that if people drive drunk and get caught, they won't have an easy way out of it.

O'Gorman says it will be up to the courts to determine whether the benefits outweigh the negative consequences of the new rules.

"A judge will have to determine where the line should be drawn."

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