Canada's new drunk driving laws might violate Charter of Rights and Freedoms

Dec 19 2018, 1:20 am

With holiday party season is in full swing, those who get behind the wheel after a few cocktails may want to think again. Stricter drunk driving laws are now in effect and law enforcement can demand a breathalyzer test from drivers they lawfully stop, even without reasonable suspicion that they have consumed alcohol.

The new changes also focus on drug-impaired driving, giving police the authority to demand either a Standardized Field Sobriety Test or the use of oral fluid drug screeners.

And these changes have at least one lawyer in Metro Vancouver raising concerns.

“Officers can basically pull anybody over and ask them to submit to that roadside breath test, so long as they have the device,” said Criminal Defence Lawyer Sarah Leamon, noting she has “all kinds of concerns” with how these new laws will interact with the Charter of Rights and Freedoms.

“One of those rights and freedoms has to do with the right to be free from any kind of arbitrary detention – just asking a person to pull over and get a sample from them,” Leamon told Daily Hive. “The other is the right to be free from unreasonable search and seizure.”

Asking a person to provide a breath sample, she explained, “is a warrantless search. It’s also a bodily sample, so it is an invasive search, relatively speaking.”

And until now, the standard for those types of searches was higher. “We had the reasonable suspicion standard, so that we could justify the reasonableness of it in the absence of a warrant and now that’s gone.”

As a result, Leamon said that in her view, “we won’t be able to satisfy that reasonable standard to be compliant with the Charter.”

These are all factors “that our courts are going to have to consider, when they’re considering whether or not this legislation as it stands today is going to be in line with our Charter of Rights and Freedoms and in my view, it ultimately will be held not to be, but that’s something that court is going to have to decide.”

In the meantime, she believes, there will be a lot of uncertainty with respect to how these laws should be properly forced, applied, and interpreted by the court.

Leamon predicts the constitutionality of this new legislation will be challenged “immediately” by those who feel unfairly, or unjustifiably targeted.

“The first person who’s charged under these new laws and is required to provide that breath sample without the reasonable suspicion standard is going to be challenging it,” she said.

“As a criminal lawyer, I can tell you that if any clients come to me with these types of issues – and I expect they will – I will be mounting those challenges as well.”

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