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Thread: Canadians could now be charged with drunk driving — even if not drunk, lawyers warn

  1. #1

    Canadians could now be charged with drunk driving — even if not drunk, lawyers warn

    Canadians could now be charged with drunk driving — even if not drunk, lawyers warn

    Even drinking within 2 hours after you've stopped driving can get you charged

    John Lancaster·CBC News·Posted: Jan 11, 2019 3:41 PM ET |

    Canadians could now face criminal charges for driving with illegal amounts of alcohol in their system, even if they were stone cold sober while behind the wheel, under tough new impaired driving laws passed by Parliament, according to criminal defence lawyers.

    Bill C-46, which came into effect last month, gives police wide-ranging new powers to demand sobriety tests from drivers, boaters and even canoeists.

    Police no longer need to have any reasonable grounds to suspect you're impaired, or driving with a blood alcohol concentration (BAC) of more than .08, which is 80 milligrams of alcohol in 100 millilitres of blood, before demanding you submit to testing.

    Refusing the test can result in a criminal charge.

    But even drinking within two hours after you've stopped driving or boating could now get you arrested, if your BAC rises over .08

    Law is unconstitutional, lawyer says

    "I think anyone should have a problem with this legislation, because it's unconstitutional," Toronto lawyer Daniel Brown said.

    When introducing the bill, federal Justice Minister Jody Wilson-Raybould said the law would help crack down on people who consume large quantities of alcohol in a short period, then drive or boat, hoping to get home before the alcohol is fully absorbed into their systems.

    Previously, if drivers could prove they weren't yet over the legal limit when they were stopped by police, a court could find them innocent.

    The new law removes that defence.

    "Its primary purpose is to eliminate risky behaviour associated with bolus drinking, sometimes referred to as drinking and dashing" Wilson-Raybould told Parliament.

    But Brown calls the law a solution for a problem that rarely existed and claims it will "criminalize Canadians who have done nothing wrong."

    He points to number of scenarios where people park their cars with no intention of driving anytime soon, then start drinking.

    "You can imagine a situation where a husband and wife are out together. The husband drives to the bar knowing the wife will be the designated driver on the way home, and she's not going to be consuming alcohol that night. The husband drinks alcohol and is now over the limit and has driven a vehicle within the previous two hours," said Brown.

    Brown says police can legally enter the bar, or wait for the couple to leave the establishment and demand a breath sample from the husband.

    "Even if he's walking to the passenger side of the car, if he is now over 80," added Brown, he could be arrested.

    Arrest has serious consequences

    An arrest for driving over the limit comes with an automatic 90-day driver's licence suspension and potentially increased insurance premiums. Those who fight the criminal charge in court would likely have to spend thousands of dollars on legal fees as well.

    According to several lawyers canvassed by CBC News, police can come to your home up to two hours after you stopped driving or boating to test your sobriety.

    Potentially complicating matters is the fact the charge is considered a "reverse onus" in legal terms. Essentially, that means police don't have to prove your BAC was over the limit when you were driving, or boating two hours earlier.

    It's now up to you to prove you were sober.

    It's unclear if anyone in Canada has been arrested under the new two hour law yet, but lawyers CBC News has spoken to insist any such case will be fought all the way to the Supreme Court of Canada to test the law's constitutionality.

    And Ontario's Criminal Lawyers' Association has warned the government the law could result in thousands of wrongful convictions.

    'Fear mongering,' MADD says

    But Andy Murie of Mothers Against Drunk Driving (MADD) says lawyers have got it wrong and accuses them of "fear mongering."

    Murie, who is not a lawyer, insists police still need probable cause to demand a sobriety test.

    "Only if [police] suspect that you've committed an offence of drunk driving and they are following the investigation, and that investigation took them to your house or your bar" can they demand a sobriety test, he said.

    Murie says a spot check would be an exception, and police can legally test everyone stopped.

    Toronto criminal defence lawyer Calvin Barry, who has defended hundreds of drunk driving cases, says MADD has it wrong.

    "Police do not require reasonable suspicion any longer," Barry told CBC News..

    Barry also warns Canadians they can be arrested and charged within the new two-hour time frame if their BAC has risen over the limit — even if they had been sober when they parked their car and planned to take a cab or transit home later.

    "That is just a flagrant contravention of one's civil liberties and a breach of the charter," Barry said.

    https://www.cbc.ca/news/canada/toron...warn-1.4975008

  2. #2
    still too many people drinking and driving - I see it all the time

    Aria Alexander

  3. #3
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    If we’re really serious, all cars would have a type of interlock device on them... or be self-driving.

    Until then, no-one really cares. The government gets to rule-make more and MADD gets to remain lobbying.
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  4. #4
    Quote Originally Posted by Goodoer View Post
    If we’re really serious, all cars would have a type of interlock device on them... or be self-driving.

    Until then, no-one really cares. The government gets to rule-make more and MADD gets to remain lobbying.
    Kinda unfair — and punitively expensive — for the great majority of drivers who are responsible. And how would you suggest we cope with all the older cars out there? Or with the determined drunkards who would seek them out?

    But in the same impractical but well-intended spirit as your original, what's wrong with making it SOP for cops to breath test people leaving bars that have parking lots? That we could do today, without even the stroke of a pen.

    What progress?

  5. #5
    Quote Originally Posted by oldjones View Post
    Kinda unfair — and punitively expensive — for the great majority of drivers who are responsible. And how would you suggest we cope with all the older cars out there? Or with the determined drunkards who would seek them out?

    But in the same impractical but well-intended spirit as your original, what's wrong with making it SOP for cops to breath test people leaving bars that have parking lots? That we could do today, without even the stroke of a pen.
    I am all for having the police enforce the rules, but having the power to take it as far as the OP identified is ridiculous.

    There has been many occasions when I have been at an event and have either decided not to drink or have been the DD and once the group arrives home (or at a place where they will remain for the rest of the evening) I have had a few drinks.

    I would assume that no police officer would take it to that extreme, however nothing would surprise me in today's wacky world.
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    I'm not really interested in what a bunch of criminal lawyers think about this, since they're the same ones that are quick to say that their client is innocent and looking forward to having the truth come out, only to have them plead guilty later and admit that they did it. I think this power goes too far, but they have cried wolf too many times for me to listen to them any more.

  7. #7
    Police are ALREADY abusing this law:

    https://globalnews.ca/news/4828694/i..._campaign=2015

    It just shows that the number of morons hired by the police is too high and cannot be trusted to apply a broad law in a measured and reasonable way.

  8. #8
    Quote Originally Posted by oldjones View Post
    Kinda unfair — and punitively expensive — for the great majority of drivers who are responsible. And how would you suggest we cope with all the older cars out there? Or with the determined drunkards who would seek them out?

    But in the same impractical but well-intended spirit as your original, what's wrong with making it SOP for cops to breath test people leaving bars that have parking lots? That we could do today, without even the stroke of a pen.
    Interlock device in all cars would be inexpensive compared to the cost of enforcement and casualties. But self driving cars are coming so in 10 years this will be irrlevant and MADD will be consigned to history

  9. #9
    Last new year's eve, a police officer stop me and asked me to take a drink driving test (breath)

    so the entire process took less than 5 min, I don't understand why is this disruptive, unless you are drinking and driving, which I was not.

    If you had been drinking 2 hours ago, and you suspect you still have alcohol in your blood, DO NOT DRIVE, as simple as that.. just take a f-ing uber or taxi

  10. #10
    Quote Originally Posted by kstanb View Post
    Last new year's eve, a police officer stop me and asked me to take a drink driving test (breath)

    so the entire process took less than 5 min, I don't understand why is this disruptive, unless you are drinking and driving, which I was not.

    If you had been drinking 2 hours ago, and you suspect you still have alcohol in your blood, DO NOT DRIVE, as simple as that.. just take a f-ing uber or taxi
    I think this is being taken out of context and blown out of proportion by lawyers and people looking to create news and generate unnecessary hype and advertisement.

    They had a similar rule in UFC with pot/CBD incident with Nate Diaz. The way they explained it the 2 hours after the fight was if a fighter got hurt and needed to go to the hospital the blood can be taken within the 2 hours due to unforeseen circumstances like being knocked unconscious. This way the UFC could still get the blood test.

    I think this is the same intention such as if there is an accident and you need to go to hospital, the police still have the right to get your blood work or breath sample such as from a hospital within 2 hours if you got injured without recourse. I am fine with this new law because I have dash cams and can always prove when I used the vehicle plus can correlate this to the onboard data already collected from the vehicle to prove I didn’t drive.

    So yeah another drama queen news article intended to fear monger, plant seeds and generate clicks for the media and who knows what other hidden agenda.

  11. #11
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    Quote Originally Posted by kstanb View Post
    Last new year's eve, a police officer stop me and asked me to take a drink driving test (breath)

    so the entire process took less than 5 min, I don't understand why is this disruptive, unless you are drinking and driving, which I was not.

    If you had been drinking 2 hours ago, and you suspect you still have alcohol in your blood, DO NOT DRIVE, as simple as that.. just take a f-ing uber or taxi
    You don't get it. You can be tested 2 hours after DRIVING and still be charged.

    So you go home, planning to stay in for the night, have 2 beers and police knock on your door, demand a breath test and if you fail, you're fucked.

    That is the stupidity of this law. At least that is my understanding of the stupidity of It.
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  12. #12
    It's too bad they don't do enough of this, still too many drunks on the road.

    Quote Originally Posted by kstanb View Post
    Last new year's eve, a police officer stop me and asked me to take a drink driving test (breath)

    so the entire process took less than 5 min, I don't understand why is this disruptive, unless you are drinking and driving, which I was not.

    If you had been drinking 2 hours ago, and you suspect you still have alcohol in your blood, DO NOT DRIVE, as simple as that.. just take a f-ing uber or taxi

    Aria Alexander

  13. #13
    Quote Originally Posted by Jessica Rain View Post
    You don't get it. You can be tested 2 hours after DRIVING and still be charged.

    So you go home, planning to stay in for the night, have 2 beers and police knock on your door, demand a breath test and if you fail, you're fucked.

    That is the stupidity of this law. At least that is my understanding of the stupidity of It.
    I have been driving for many years (twelve?) here in Canada, I had been stopped twice in my life, only in one of those I was asked to do the test
    so what really are the chances they will follow to your home and ask you to test ? it is much easier to simply look for a drunk driver that is driving at the moment.
    Moreover, any lawyer would challenge that easily, you can say you were drinking at home after driving

    Same with that link about taking empty beers to the beer store for refund; your car will smell like beer, but the 5min test will not show you drunk

  14. #14
    The most likely scenario:
    you crashed your car after drinking, you managed to leave before the police found you; but they caught you 2 hours after, and they now have the right to request an alcohol test

    I think it is fair, in court you might prove that you drank after the crash, that you were not drunk at the time, if there is reasonable evidence

  15. #15
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    Quote Originally Posted by kstanb View Post
    I have been driving for many years (twelve?) here in Canada, I had been stopped twice in my life, only in one of those I was asked to do the test
    so what really are the chances they will follow to your home and ask you to test ? it is much easier to simply look for a drunk driver that is driving at the moment.
    Moreover, any lawyer would challenge that easily, you can say you were drinking at home after driving

    Same with that link about taking empty beers to the beer store for refund; your car will smell like beer, but the 5min test will not show you drunk
    If you want to allow an infringement of your rights that is cool but others prefer to retain theIrs. I prefer to be innocent before guilty, probable cause, etc.

    All those things that laws like this, chip away at. Not to mention, I don't want the cost of proving in court I was sober when I got home and had a couple between driving home and the police showing up at my door. Why should I be paying to prove my innocence that way???? Sorry but that part just doesn't fly.
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  16. #16
    If you were driving sober why would they show up at your home?

    Quote Originally Posted by Jessica Rain View Post
    If you want to allow an infringement of your rights that is cool but others prefer to retain theIrs. I prefer to be innocent before guilty, probable cause, etc.

    All those things that laws like this, chip away at. Not to mention, I don't want the cost of proving in court I was sober when I got home and had a couple between driving home and the police showing up at my door. Why should I be paying to prove my innocence that way???? Sorry but that part just doesn't fly.

    Aria Alexander

  17. #17
    Quote Originally Posted by The "Bone" Ranger View Post
    If you were driving sober why would they show up at your home?
    If they think you were impaired, they can show up 2 hours later to run a test. If you were sober when you got home and then had a few drinks over a couple of hours you may blow over and then be charged.
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  18. #18
    Why would they think you are impaired? Seems a bit arbitrary and unnecessary worry. Hell they don't have enough ride checks presently.

    Also, how do they know two hours later who was behind the wheel??

    Quote Originally Posted by Ref View Post
    If they think you were impaired, they can show up 2 hours later to run a test. If you were sober when you got home and then had a few drinks over a couple of hours you may blow over and then be charged.

    Aria Alexander

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    Quote Originally Posted by The "Bone" Ranger View Post
    Why would they think you are impaired? Seems a bit arbitrary and unnecessary worry. Hell they don't have enough ride checks presently.

    Also, how do they know two hours later who was behind the wheel??
    Your neighbour doesn't like you and calls in and reports you. Your wife and you have a fight, she leaves, calls the police saying you came home drunk. I could go on.


    You come home sober, don't have a drink for 2 hours because the cops could show up at your door, text you and charge you if you refuse or blow over. even if you are not going out again. Bustedd for a DWI while on your porch and your car engine is cold. It's stupid.
    The guy in the paper got pulled over for recycling.
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  20. #20
    That could happen anyways - I think you are being paranoid. Anybody not drinking and driving should not be worried.

    Quote Originally Posted by Jessica Rain View Post
    Your neighbour doesn't like you and calls in and reports you. Your wife and you have a fight, she leaves, calls the police saying you came home drunk. I could go on.

    The guy in the paper got pulled over for recycling.

    Aria Alexander

  21. #21
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    Quote Originally Posted by The "Bone" Ranger View Post
    That could happen anyways - I think you are being paranoid. Anybody not drinking and driving should not be worried.
    Do you also agree with carding?

    Don't confuse worry for ensuring someone's rights. They are two different things here.

    The law, in this case, the way it has now been set up is wrong and should be rightfully be challenged.
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  22. #22
    Unfortunately this will lead into a much deeper and detailed discussion - my view would probably oppose a lot of folks here...at the end of the day guily people need to be held accountable for their doings. Just look at all the meaningless shootings going on in the city.

    Quote Originally Posted by Jessica Rain View Post
    Do you also agree with carding?

    Don't confuse worry for ensuring someone's rights. They are two different things here.

    The law, in this case, the way it has now been set up is wrong and should be rightfully be challenged.

    Aria Alexander

  23. #23
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    Quote Originally Posted by The "Bone" Ranger View Post
    Unfortunately this will lead into a much deeper and detailed discussion - my view would probably oppose a lot of folks here...at the end of the day guily people need to be held accountable for their doings. Just look at all the meaningless shootings going on in the city.
    So because of shootings, should all be subjected to random checks for firearms with no search warrants?

    I don't own a gun, so a cop could search my shit all they like but shouldn't I have the right to the privacy of my own home and do not have it randomly searched With no cause needed?

    Sometimes there is too much power given to police. Who are only human and we have seen repeatedly mid-use that power. The rights we have are there to protect us as well. We just lost a right. That is not something to celebrate. Not in my opinion.
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  24. #24
    That is not what I was getting at - I believe the guilty should remain behind bars rather than roam the streets. To answer your question I do agree with carding and ride checks.

    Quote Originally Posted by Jessica Rain View Post
    So because of shootings, should all be subjected to random checks for firearms with no search warrants?

    I don't own a gun, so a cop could search my shit all they like but shouldn't I have the right to the privacy of my own home and do not have it randomly searched With no cause needed.

    Aria Alexander

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