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This Never Used to Be A Crime In Lindsay

Try picturing this scenario. Whether you live it to the letter or identify in any way, it shouldn’t be that difficult. You and your partner work and live in the City of Kawartha Lakes, be it Lindsay or Little Britain or Minden or any of the idyllic towns in between. You’ve got a child at Weldon and another younger two at Alexandra. You absolutely love living in one of Ontario’s most picturesque locales, with all its lakes and getaway spots and gorgeous landscapes. The kids go to good schools without security guards at the door, and can ride their bikes to a friend’s house without you feeling the need to sew a tracking chip in their clothing. It is not without its challenges, however. One or both of you work in or near the city. If not all the way downtown Toronto, at least close to Durham, or even Peterborough. The kids have evening and weekend activities, as they all do, so you coordinate schedules meticulously to ensure either you or your spouse, a grandparent or aunt, or even another parent is able to take them to rugby, riding lessons, judo, hockey, ballet, etc., etc., etc.

On one of the busy evenings of mid-September, you grab your teen from their student representative government meeting while your spouse picks up the younger kids from his sister’s, where they go after school until dinner. You all meet in the driveway and pile into the house, jawing about your day, laughing (perhaps yelling because nerves are shot, hey, no judgement). Family dinners are important to you all, and fellow soccer parents are picking up the kids in less than an hour, so Dad immediately throws the prepped dinner into the oven while you sort through backpacks to make sure there isn’t important consent documents that needed signing two days ago, or a costume for a school play that you need to make for tomorrow. The kids need some coaxing into getting ready for their activity, but eventually get all their gear downstairs, and you all can finally sit down to eat. Your teen complained a bit when you made her put the phone away, and the preteens were asking for things as usual, but all-in-all it was a pleasant family dinner. Doorbell rings, friends are here, time for kids to go. You and hubby exchange a grin and a sigh and collapse on the couch to decompress just a tiny bit.

After a short chill-out period, you pour yourself a glass of wine or scotch, or whatever you like to enjoy while you relax. Maybe you open the Ikea catalogue or website to tinker with ideas for a bathroom renovation. You have some laughs and that glass of your favourite sip went down quickly and easily, so you pour another. That one goes just as well.

Let’s stop there for a second. I’m sure you’ll agree this sounds like a common evening for many families in the City of Kawartha Lakes, or in any number of Canadian cities and towns. Certainly it does not sound like our subject couple have committed any crimes. But this assertion could only be made before the passing of Bill C-46, a piece of legislation created out of good intentions but dangerously expanding police powers. Since C-46, by that dreaded word “technically,” you have committed the requisite actus reus (the law loves Latin, and this means “guilty act”) to be charged with Having a Blood Alcohol Concentration (BAC) at or over 80mg per 100ml of Blood Within 2 hours of Driving. This is a charge that is treated as seriously as a “normal” At or Over 80 charge, and comes with a maximum penalty of 10 years in prison. If the police knock on our fictitious couple’s door, they have the right to demand a breath sample, and our couple does not have the right to refuse. That 2 hour threshold doesn’t mean much either. They could demand a sample and make this charge 4 hours after you drove. They would have to have a toxicologist testify that the reading 4 hours later would put you at such and such a blood alcohol content at such and such a time as evidence, but that is well into the process, having already thrown your life into considerable upheaval. Your vehicle would have already been impounded and your licence would have been administratively suspended for 90 days. This costs you considerably, and there is no way to get any of this time or money back, even if the charges are withdrawn, or you are found not guilty.

What could lead the police to our couple’s door? That is the hazy part of the wording of this legislation. In the past, police had to have a reasonable suspicion that the operator of a conveyance (car, motorcycle, boat, tractor, canoe, whatever) was impaired before they could demand a breath sample. This was a very low bar, the claim that smell of alcohol was present would do, but even that now is gone. The Criminal Code now says that an officer can demand a sample of your breath without a reasonable suspicion of impairment. Even at your door when you’ve been home for hours. It stipulates, however, that no one commits an offence who consumes alcohol after operating a conveyance, as long as they had no reasonable expectation of having to provide a sample. Huh? What could cause you to expect to have to provide a sample? Well, an accident for one. If you have an accident and drive home, most likely the police are going to knock on your door later. This is the scenario that most likely inspired the change in the law. Too many people were leaving the scene for fear of having to blow, and then claiming to have consumed alcohol after driving. Makes sense. But suppose for a second that a vindictive party knows you relax with a drink after work, and makes a call to police saying they saw you swerving on the road. That might prompt a visit and a breath demand. Did you have a reasonable expectation? Could police say that they believe you were swerving, and so should have had that expectation? It all seems like a stretch, but with this expansion of police powers, it could conceivably happen easier than you would think.

At Aitken Robertson, we respect the need to try to curtail impaired driving, but we are also very wary of fundamental changes to the law. C-46 affects and restricts the freedoms we as Canadians have come to enjoy, such as a simple drink after work as in our hypothetical example. We take pride in defending the constitutional rights of our clients. We hold the police and state accountable to due process, standard of proof, and conduct beyond reproach. The need to do so has never been greater.

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