Ontario man challenges impaired driving charge, argues new law is unconstitutional

A driver was stopped for a peeling license plate four days after the new impaired driving law came into effect.

His legal counsel argues the new law violates the Canadian Charter of Rights and Freedoms

Before Dec. 18, 2018, police had to have reasonable grounds to suspect a driver is impaired to demand a breathalyzer test. (Darryl Dyck/Canadian Press)

Four days after Canada's new impaired driving law came into effect, a Lambton County man was charged with impaired driving — but now he's challenging that charge in court.

His legal representative, Nick Cake with Millars Law, said the ability for police to stop drivers without any suspicion of wrongdoing and demand a breath sample is "illegitimate."

"The individual was stopped, not because of any bad driving or because of any reports of possible impaired driving," said Cake. "The individual was stopped because of a peeling license plate."

His client was eventually charged with operating a vehicle with over 80 milligrams of alcohol in 100 millilitres of blood after giving a breath sample.

Cake said it may be one of the first charges laid under the new law.

The new law came into effect on Dec. 18, 2018. Police are able to demand a breathalyzer test from any driver pulled over for violating traffic laws or at a check stop.

'Akin to carding'

While in this particular case, the new impaired law was able to take an impaired driver off the road, Cake doesn't think the law is constitutional and said it's a slippery slope.

Since Dec. 18, 2018, police have been able to demand a breathalyzer test from any driver who is pulled over for violating traffic laws or at a check stop. (Gian-Paolo Mendoza/CBC)

He said the new law is "akin to carding," or giving officers the right to search a gun owner's home to ensure the weapons are stored appropriately.

Cake said there should be more work done to remove impaired drivers off the road, but with the necessary "checks and balances."

According to Cake, the previous law was just and working fine. But now, drivers are "being compelled under threat of criminal prosecution" to give breath samples even if police have no reason to believe there is wrongdoing.

"We had a system in place that at least required that the officers have a suspicion that something might be happening," he said.

"It was the lowest threshold provided at law."

Cake will be arguing that the new impaired driving law violated his client's right to be secure against unreasonable search or seizure, which is Section 8 in the Canadian Charter of Rights and Freedoms.

He said the notice has been given with regards to the challenge, but no official filings have been made yet.

Cake expects the case may ultimately end up in the Supreme Court of Canada.

With files from Jonathan Pinto


To encourage thoughtful and respectful conversations, first and last names will appear with each submission to CBC/Radio-Canada's online communities (except in children and youth-oriented communities). Pseudonyms will no longer be permitted.

By submitting a comment, you accept that CBC has the right to reproduce and publish that comment in whole or in part, in any manner CBC chooses. Please note that CBC does not endorse the opinions expressed in comments. Comments on this story are moderated according to our Submission Guidelines. Comments are welcome while open. We reserve the right to close comments at any time.

Become a CBC Account Holder

Join the conversation  Create account

Already have an account?