A few weeks ago, I wrote about how the Alco-Sensor FST manual was changed to support a certain unscientific and inaccurate belief about mouth temperature. My concern with any of this is, of course, the fairness of the Immediate Roadside Prohibition review process and whether drivers are given a reasonable opportunity to challenge the apparent results of their breath tests.
Sadly, today I learned of yet another change the Superintendent of Motor Vehicles has made to make the review process less effective and fair to drivers. I have to say, sometimes participating in this review process is like attempting to play a chess match with Death, except Death can change the rules of the game at any point.
Back in 1975, the Supreme Court of Canada made a groundbreaking decision on drunk driving. The decision was about the admissibility of breathalyzer test results presented in court. In this decision, the Court held that breathalyzer results, even absent evidence the breath sample was lawfully obtained, could still be used in court to convict a driver for being over the blood alcohol limit, with this caveat: as long as the driver did in fact provide a breath sample, and a certificate of analysis was admitted into evidence.
In plain English, what the court was saying is that if you provided a breath sample, even if the demand for the breath sample was unlawful, the results of that breath test could be used against you in court.
Since then, courts across the country have gone back and forth about whether that decision remains good law or whether it's absolutely bonkers that unlawfully obtained evidence is somehow still admissible in court.
Charter Statement on Drunk Driving Laws: A perspective from someone who routinely litigates the Charter
It's troubling when the Government has to issue a public statement defending a law before the bill is event tabled for debate. When the proposed legislation is so flagrantly and blatantly unconstitutional, the Government is clearly scrambling to justify its existence before it is even passed. And so that brings us to the big drunk driving law news of the week: Jodi Wilson's Charter Statement on Bill C-46. My summary opinion is this: it's a stinking pile of nonsense.
Or, as one lawyer interviewed put it, "if a first year student wrote this, they would fail."
In my last blog post, I wrote about how the Government’s proposed changes to the drunk driving laws will reduce your defences by limiting the disclosure that is available to you. This week, I am going to write about another significant limit on your defences, and that is the fact that the Government is eliminating the defences related to when you drank, and when you drove.
By eliminating this, what we can see is that the Government wants you to have a criminal record for drinking and driving, even if you have done nothing wrong.
Canada’s so-called legalization of marijuana comes with several consequences, including the new framework for mandatory random breath testing roadside. But there are other significant consequences that still need to be unpacked in this legislation.
Today’s blog post is going to outline a few of the other problematic changes to the alcohol-impaired driving legislation, and particularly those that have received less attention. In this post, I am going to deal with one of the other significant changes: reducing the number of defences available to drivers. This will be part one of a two-part blog post on reducing the defences, as there is a lot to discuss here.
On Thursday, the Liberal Government revealed its plan for marijuana legalization. Surprising to many was the fact that the Liberals introduced this as part of an omnibus bill that makes amendments to other parts of the Criminal Code, including the impaired driving legislation. Omnibus bills were commonly criticized by them as tactics used by their predecessor to pass bad legislation. These proposed changes also hide some of the more disturbing aspects the Government has introduced in furtherance of its stated goal to legalize marijuana.
I am deeply disturbed by changes that the Government has proposed, in particular the proposal to conduct random breath tests of drivers.
Over the next few blog posts, I am going to share some of my views on this proposed legislation and why I believe it to be constitutionally deficient.
As mentioned in two previous posts, there have been significant issues with delay in deciding Immediate Roadside Prohibition review cases.
This has resulted in substantial problems for drivers who are affected by the delay, as the prohibition remains on the driving record during this time. The drivers have been made to pay the towing and storage costs, and there are consequences that are specific to many individuals like increased life insurance premiums or termination from employment.
So what is the Government doing to address the problem?
Today, the BC Court of Appeal released its ruling in Jaswal v. British Columbia (Superintendent of Motor Vehicles). This case was the appeal of whether drivers who were issued an Immediate Roadside Prohibition that was unconstitutional are entitled to have the IRP removed from their driving record, and to have their fines and penalties reimbursed.
The Court has upheld Justice Sigurdson's initial ruling that despite the fact that the IRP law was unconstitutional from September 2010 to November 2011, there will be no remedy for those affected by it. Many drivers are out thousands of dollars, have lost their employment, and have their driving records permanently marred by an unconstitutional law that continues to affect them to this day. The judge found -- and the Court of Appeal confirmed -- that the ruling represented a substantial change in the law and did not entitle drivers to a remedy.
One of the biggest concerns that the public has when it comes to impaired driving is the problem with repeat or chronic offenders. You probably remember the story of the Victoria woman with 19 drunk driving prohibitions, who was recently found guilty of another offence related to impaired driving. The public was, rightly, outraged that this person can still drive and is still driving drunk.
The Government, for its part, has touted the success of the Immediate Roadside Prohibition legislation as the mechanism to reduce the carnage caused by impaired drivers on the road. It frequently points to the reduction in drunk driving deaths as evidence of the success of their anti-drunk driving legislation. But what they've been keeping mum about since the introduction of the scheme is whether there is any reduction in repeat offenders for impaired driving.
In short, do the swift and severe sanctions prevent people from making the same mistake twice? The answer might surprise you.
A few months ago, I wrote a post about the biggest failing of BC's drunk driving law. I wrote about how despite the requirement that the adjudicators render decisions 21 days from the date the prohibition was issued, that this did not occur. The Superintendent has said that decisions are routinely rendered in the required time period, but in reality they are not.
In the last few weeks, I have uncovered more evidence about the significance and expansiveness of this problem.
Vancouver Criminal Lawyer focusing primarily on DUI, impaired driving, and Immediate Roadside Prohibition cases.