Last year, we told you about our concerns with the Criminal Code’s new impaired driving laws. The changes included harsher penalties, some brand new offences and new police powers. There was scant publicity from the government so we were worried a lot of drivers would be simply unaware of the changes. We predicted constitutional challenges to the new laws and already incidents of drivers getting burned by the toxic mix of the BC and federal government’s legal schemes.
New impaired driving laws in practice
This week a Nanaimo woman was in the news after successfully challenging a 90-day Immediate Roadside Prohibition. This appears to be one of the first publicized cases of the police exercising their new investigative powers in a manner they claimed they never would.
The woman had one cocktail with a meal before visiting her sister in Maple Ridge. She then drove home and when she arrived she had a few beers.
“It’s our job to step in when a toxic mix of BC and federal government laws undermine our legal rights.”
The police arrived at the home about two hours after she got there. They lied to her about wanting to speak to her about a personal matter in order to get her out of the home. Instead, they demanded she provide a breath sample into an approved screening device (ASD).
Of course, she failed the ASD test because she had been drinking after driving. She explained this to the police. But of course, that in itself is no longer sufficient to prove you’re innocent in this new toxic mix. It turns out that she had been drinking for a couple of hours after she got home. The police issued her a 90-day IRP and impounded her vehicle for 30 days. She was, as is always the case, compelled to pay a fine, towing and storage of her vehicle for 30 days in addition to a bunch of other miscellaneous expenses and fees as well as she was required to take a driving course (RDP).
Changes to the Criminal Code mean that police are now entitled to request a breathalyzer without any signs of impairment. The test can be demanded when the police officer concludes you have alcohol in your body, even if it’s hours after they locate you and hours after having stopped driving. There is a defence available to if you start drinking after you stop driving and but only if you have no reasonable expectation that you are going to be given a breathalyzer test and you can give precise evidence to show what your blood-alcohol would have been hours before.
What are the new powers?
The new impaired driving laws compel the woman in this story to provide a breath sample were part of the Criminal Code changes that came into effect last December. The failure of the ASD test is triggered the IRP. The prohibition wouldn’t have been issued, however, without those new powers. We don’t know the reasons why the IRP appeal was overturned because the tribunal doesn’t tell you why they revoke any IRP. What we do know is that in IRP appeals, the burden of proof is on the defendant to prove they were innocent. So the woman, in this case, would have had to prove she was not actually at or over .08 at the time of driving.
What is really disturbing is the actions the police took before issuing the IRP. They lied to her in order to get her out of the home, which they are allowed to do by the way. They then compelled her to take an ASD breath test despite her explaining she had been drinking at home and showing them the empty drink containers.
We warned last year that this kind of thing could happen. We said it was only a matter of time before a constitutional challenge was made against the new Criminal Code provisions. In this instance, the woman avoided having a driving prohibition on her record but it serves as a warning to other drivers of what they could face under the new system. What about all of the drivers who don’t appeal? We may never know how many people out there have been wrongfully issued IRPs. That’s why, if you are charged with impaired driving or you are issued an IRP, it’s more important than ever that you challenge it.
We recommend you hire a lawyer to help with your case. Acumen Law has decades of experience successfully challenging IRPs. We have already filed Charter challenges to get these new laws before a judge. It’s our job to step in when a toxic mix of BC and federal government laws undermine our legal rights.
Call us for a free consultation on 604-685-8889.
I realize the burden of proof in noncriminal matters such as this case is frighteningly low, but this kind of sweeping police power accompanied by dodgy evidence is scary. What were our parliamentarians thinking when they passed this garbage law?