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.
Drinking While Driving, Before Driving, and After Driving
It comes up very rarely in criminal cases involving impaired driving. However, when you are charged with impaired driving, the prosecution has to prove that you were over the limit while you were driving. The Criminal Code has a presumption that allows the judge to assume the readings at the police station were your blood alcohol level, if certain conditions are met.
However, the Criminal Code also allows you to challenge the readings by calling evidence to show that you drank alcohol shortly before driving, while driving, or after you finished driving, and that what you drank raised your blood alcohol level to over 80 mg%.
Like I said, this comes up rarely.
This has always been a sore spot for the prosecution and the MADD Canada supporters, because they suggest (inaccurately) that people frequently deliberately drink after driving to skew the readings. Since most impaired driving cases either stem from roadblocks or traffic stops, common sense dictates that this is not possible.
I can think of only one instance where this happened and it was found to be a deliberate decision by the driver. He was convicted of obstruction. That same individual, a police officer, was also later convicted of perjury. So this person is the exception, and not the rule.
In order to prove this, a person also has to show that what they consumed would have contributed enough to their blood alcohol level that it skewed the readings to put them over the limit. Practically, this presents a problem for the driver roadside who is not going to know how many ounces of any specific type of liquor leads to this result. This makes it harder for people to just make up evidence about doing this.
But there are rare occasions where this type of alcohol consumption does indeed skew the readings, and cause unreliable results.
The Government wants to put a stop to this type of argument. They could care less that a person may actually be innocent. Facts, apparently, do not matter.
The Proposed Change
The Government, in its proposed legislation, wants to make it an offence to have a blood alcohol level at or above 80 mg% up to two hours after driving. While the change is subtle, what this means is that now even if you consume alcohol after you stop driving, you can still be convicted of a criminal offence.
Obviously, this is problematic. It creates criminals out of innocent people.
Take this hypothetical as an example. A 130 pound woman goes to the pub to watch a sporting event. She arrives at the pub completely alcohol-free and sober. She orders two sixteen ounce pints of regular draught beer. She drinks both pints within an hour of when she arrives. She doesn’t have a specific plan to get home, but her car is parked in the parking lot and she plans to stay at the pub for long enough that her blood alcohol level is below 80 mg% when she drives home. In fact, she does this and gets home safely.
Is she a criminal? No. She seems responsible. She limited her consumption. She waited an appropriate period of time before driving. But according to the proposed law, she will have committed a crime.
This is because the two beers she consumed put her over the legal limit within an hour of when she finished driving. Despite the fact that she acted responsibly and complied with the spirit of the law, this person could still end up facing a criminal record. And the Government wants to punish her for sitting in a pub, while her car was parked in the parking lot, because she did what people do at pubs and ordered two beers.
There is a proposed defence to this “after driving” change. The defence requires that a person testify – contrary to the longstanding principle of the right to silence – and give evidence to show that they only consumed alcohol after they had no reason to expect that they were going to be driving again.
But that’s pretty vague. Does that mean you have to prove you definitively would not be driving again? Or does it mean only at the time you started drinking you did not think you would be driving again? Does it mean you thought you would be driving only after your blood alcohol level went back down to below 80 m%? And how long after you stop driving are you required to have no plans to drive again?
If I get home from work at the end of the day, and have no plans to go out that night, am I still prohibited from exceeding 80 mg% within two hours of arriving home if I intend to drive to work the next morning?
These proposed changes create an absurdity. There is nothing unlawful about being over the limit after you cease driving. What the Government has proposed amounts to what is, in essence, a thought crime. It is creating, for the first time ever in our legal system, a one-man conspiracy. If you have driven in the past two hours, then drink and you intend to drive again, you may be committing an offence.
That’s right: the thought that you will drive again is sufficient to amount to a criminal offence.
When the Liberal Government was elected, they promised to repeal many mandatory minimums. They promised to do away with bad laws that leave Canadians with criminal records. And they promised overhaul of the pardon system, to make pardons more accessible. This particular aspect of the changes to the drinking and driving law break all of those promises.
What the Government really wants is for you to have a criminal record for drinking and driving, even where you did not drink and drive.