Troubling” legislation that allows police to demand a breath sample two hours after a driver has parked their car will eventually be contested at the Supreme Court, predicts Toronto criminal lawyer Joseph Neuberger, whose firm is often retained to run constitutional challenges.
Neuberger, partner with Neuberger & Partners LLP, tells AdvocateDaily.com that under recent changes to the Criminal Code, anyone with a blood alcohol level over the legal limit within 120 minutes of driving can be charged with operating a vehicle while impaired.
“Police could receive a tip that you were driving erratically. Let’s assume you were sober, but you were distracted or glanced at your phone, and someone writes down your licence plate and calls police,” says Neuberger, who has defended more than 100 clients on impaired charges.
“You get home, get into your sweatpants, turn on a Raptors’ game, and have some drinks. It’s extremely busy that night, so police get there 90 minutes later, say they’ve received a complaint, and you blow over. You are now charged with impaired driving even though you were perfectly sober when you got out of your car. It’s absurd.”
There are other scenarios just as concerning, he says.
A police officer can strike up a conversation with a bar or restaurant patron, ask if they’ve driven within the last two hours and demand a breath sample.
Or, you could be the victim of malicious intent, he says.
“People can do all sorts of vindictive things to each other,” Neuberger says. “You have a disagreement with a co-worker. You leave, and they decide to phone the police on you on the thought that you’re going to go home and drink.
“Or, there is an acrimonious divorce, and somebody wants to get back at the other. They make an erroneous call that the other person is driving drunk knowing full well that the ex likes to go home and have a few after work,” he says.
Under the Criminal Code changes, the responsibility falls on the accused to prove sobriety at the time they stopped driving.
Neuberger says there are four things a driver must establish to demonstrate innocence:
- they consumed alcohol after they ceased driving
- they had no reasonable expectation they would be required to provide a sample of their breath or blood
- their alcohol consumption was consistent with the results of the breathalyzer
- their blood alcohol was below the legal limit at the time of driving
“Someone might be enjoying 18-year-old Macallan scotch at home over a two-hour period, and they’re legally impaired. But that doesn’t mean they were drunk at the time they were driving. Reversing the onus onto the individual is unconstitutional and unfathomable, and will lead to wrongful convictions,” he says.
Neuberger adds that the “heavy burden of proof” will most likely force the accused to testify at trial, which is an infringement of their Charter right to silence.
He says the accused will probably require the testimony of a toxicologist to prove the alcohol consumption that led to impairment occurred after driving ceased.
Neuberger says that creates significant access-to-justice issues given the extra cost and the fact Legal Aid Ontario does not provide assistance for initial impaired-driving charges.
Another change to the Criminal Code — one that gives police the power to demand a mandatory breath sample for any driver they lawfully stop — will also find itself challenged at the Supreme Court, he predicts.
Previously, police needed reasonable suspicion to make such a demand.
“We’re not necessarily assuming that police will use this power in an abusive way, but one can see that it could lead to arbitrary stops — where samples can be obtained from anybody — whether there is any indication of having consumed alcohol or not,” he says.
“It could also be used as a bridge for other purposes. Once a car is detained, police make visual observations of the individual. They’re also looking at the car itself, and what’s inside.One can imagine, as there have been concerns about carding, that it could provide powers to police that may be used for purposes other than trying to determine the sobriety of the driver.”
Neuberger says the lack of a minimum evidentiary standard, and the two-hour sobriety test provision, are unconstitutional. He says both will result in numerous challenge applications.
“These draconian and ridiculous changes will unnecessarily clog up the courts for years with challenge applications,” Neuberger says.
“There also has to be real concern about the erosion of our civil liberties, and how this police power will be used.”