Police in Canada can now demand breath samples in bars, at home

by Looper Thu 10 Jan 2019, 8:58 am

January 9, 2019

By Sean O’Shea
Consumer Reporter Global News

It may sound unbelievable, but Canada’s revised laws on impaired driving could see police demand breath samples from people in bars, restaurants, or even at home. And if you say no, you could be arrested, face a criminal record, ordered to pay a fine, and subjected to a driving suspension.

You could be in violation of the impaired driving laws even two hours after you’ve been driving. Now, the onus is on drivers to prove they weren’t impaired when they were on the road.

“It’s ridiculous, it’s basically criminalizing you having a drink at your kitchen table,” Paul Doroshenko, a Vancouver criminal defence lawyer who specializes in impaired driving cases, told Global News.

“If you start to drink after you get home, the police show up at your door, they can arrest you, detain you, take you back to the (police station) and you can be convicted because your blood alcohol concentration was over 80 milligrams (per 100 millilitres of blood) in the two hours after you drove.”

Changes to Section 253 of the Criminal Code of Canada took effect in December giving police greater powers to seek breath samples from drivers who might be driving while impaired.

Under the new law, police officers no longer need to have a “reasonable suspicion” the driver had consumed alcohol. Now, an officer can demand a sample from drivers for any reason at any time.

While many Canadians have heard about that part of the new legislation, lawyers said the two-hour provision has gone unreported.

“The public has completely missed this one,” said Joseph Neuberger, a Toronto criminal defence lawyer.

He described a scenario in which someone has gone home and watches a hockey game, enjoys a few beers, and gets a knock on the door from police, who received a tip about someone in the house who was driving a vehicle suspiciously.

“The person answers the door and they say, ‘Sir, we’ve had a complaint about your driving, we need you to provide a sample,” said Neuberger, noting if the person failed to provide the sample it would likely lead to arrest.

“It’s a serious erosion of civil liberties,” said Toronto criminal defence lawyer Michael Engel, whose practice focuses almost exclusively on impaired driving cases.

Engel said someone could be unjustly prosecuted. If a disgruntled business associate or spouse called police with a complaint and an officer went to investigate at the persons’ home or place of business, police could demand a breath sample.

“Husbands or wives in the course of separations would drop the dime on their partner,” Engel said, describing the potential for the law’s abuse by those calling police out of spite, for example.

“It casts the net too wide. It’s going to potentially criminalize innocent behavior.”

In an instance where someone was drinking in a public place, Doroshenko said it would be hard for someone to prove they weren’t impaired when they were driving earlier.

“If [the police] come and find you at the restaurant they can take you out of the restaurant despite the fact you’ve been drinking at the restaurant, maybe you weren’t going to drive away,” he said, arguing the rules are excessive.

“It is profoundly stupid, so most people assume it can’t be. But that’s what the law is now, you will see it happen — I guarantee it.”

The federal government brought in the revised law in an effort to reduce fatalities on roads.

“Impaired driving is the leading criminal cause of death and injury in Canada,” said Minister of Justice and Attorney General Jody Wilson-Raybould in December.

“I believe these reforms will result in fewer road deaths and fewer Canadian families devastated by the effects of an impaired driver. This is one of the most significant changes to the laws related to impaired driving in more than 40 years and is another way that we are modernizing the criminal justice system.”

While criminal lawyers predict the new law will be challenged, likely through appeal courts and even to the Supreme Court of Canada, they expect that process will take several years. In the meantime, they say drivers are vulnerable to unfair arrests and prosecution.

“We’re in a brave new world now,” said Engel.

https://globalnews.ca/news/4832762/impaired-driving-canada-breath-samples/?utm_medium=Facebook&utm_source=GlobalNews&fbclid=IwAR3vKNqGvKw8J2qPVarN_tzJyiY4YcvSniIO-9tqs7fq1c6aojpKrnFnY0g

by kodiak Thu 10 Jan 2019, 7:37 pm

How the rules for breath tests in Canada have changed

Published Thursday, January 10, 2019
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Changes to Canada’s impaired-driving laws could leave people having to defend themselves in court even if they only started drinking alcohol after they stopped driving, lawyers say.

The changes, which took effect last month, make it a criminal offence to have too high of a blood-alcohol level within two hours of driving. There are exceptions for people who consumed the alcohol that put them over the limit after they stopped driving – but it falls on the motorist to prove that.

The two-hour rule means police no longer have to catch an impaired driver before they leave their vehicle. Officers can show up at a suspect’s home or workplace, or wherever else they may be, demanding a breath sample.

“These new changes are radical,” Calgary-based criminal defence lawyer Ian Savage told CTVNews.ca.

“They’re going to make it … more difficult for the police and the prosecutors, and they’re going to make it more difficult for the average citizen. I don’t see any real benefit to these changes.”

Michael Spratt, a criminal defence lawyer based in Ottawa, says these changes were made because the government was attempting to eliminate a defence some motorists could use to avoid an impaired driving conviction.

“Before the police interacted with them they’d pull out a bottle of vodka and chug the whole bottle – so then they could say ‘Well, look, I blew over at the police station, but at the time I was driving I was completely sober,’” Spratt told CTVNews.ca, adding that it was “very rare” for this defence to be used in court and even less common for it to succeed.

By attempting to crack down on that unusual defence, the government is shifting the onus of proof to people who drove and then drank, requiring them to prove that they only became impaired after they stopped driving. This means hiring a toxicologist to provide expert testimony in court.

“You’re going to have to hire a blood-alcohol expert at your own expense, and a lawyer. That’s easily going to run you well over $10,000 to $15,000,” Savage said.

‘A legal form of carding’

Police also no longer need a reasonable suspicion of impaired driving in order to conduct a breath test of anybody with care and control of a vehicle. All they need is to have a breath-testing device with them and a legal reason to pull a vehicle over or interact with its driver.

“If they have a Breathalyzer on them, they can demand a sample at any time under any circumstances,” Spratt said.

That could lead to police officers setting up checkpoints in known high-crime neighbourhoods and breath-testing every driver who passes through – giving them the chance to gather other personal data as well.

“When police pull you over to administer this random, groundless test, they can ask you who’s in the car, where you’re going, they can question you,” Spratt said.

“It’s sort of like carding, but it’s now a legal form of carding.”

Savage raises another scenario: A driver who has been drinking at a bar and grabs an item out of their car an hour later. Even if that driver doesn’t so much as start the car before returning to the bar, a police officer who sees them retrieving the item would be able to give them a breath test by the letter of the law.

“There is going to be a significant increase in the number of random breath tests being done of motorists,” he said.

Refusing to provide a breath sample is a criminal offence itself, with penalties ranging from a $1,000 fine to a maximum of 10 years in prison.

Spratt expects non-Canadians living in Canada and people of visible minorities to be disproportionately affected by the changes to the law.

Because the maximum penalty for impaired driving was increased to 10 years in prison, impaired driving is now classified as a serious criminal offence under the immigration and Refugee Protection Act. This means that anyone working through the immigration process who is convicted of any impaired driving offence will be kicked out of the country.

“If you’re a non-Canadian citizen, even if it’s your first offence … a removal order will be entered. You will be removed from Canada,” Spratt said.

https://www.ctvnews.ca/canada/how-the-rules-for-breath-tests-in-canada-have-changed-1.4248469

by **SniperGod** Sun 13 Jan 2019, 11:58 am

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

Police in Canada can now demand breath samples in bars, at home Drinking

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 while the government says that's not the intent of the law, even drinking within two hours after you've stopped driving or boating could now get you arrested, if your BAC rises over .08

Police in Canada can now demand breath samples in bars, at home Defence-lawyer-daniel-brown

Defence lawyer Daniel Brown says part of the bill may be unconstitutional.

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/toronto/canadians-could-now-be-charged-with-drunk-driving-even-if-not-drunk-lawyers-warn-1.4975008?fbclid=IwAR3d7uONsPPLrtuacesEI06mSDgKD0MPqqjeOSIStYtMH_jhQrS-owv6BJo

by vet1 Sun 13 Jan 2019, 12:07 pm

Welcome to police state.
Just the beginning.

by Jackson Sun 13 Jan 2019, 12:41 pm

Looks like the Liberals legalization of marijuana is now scrambling to create laws to enforce it's use under the wheel. Even if that means arresting those not under the influence. Looks like the monopoly created from legalization will also create work for defence lawyers across the Country.

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Police in Canada can now demand breath samples in bars, at home

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