Police in Canada can now demand breath samples in bars, at home - Global News

[dimsum]

It may sound unbelievable, but Canada’s revised laws on impaired driving could see police demand breath samples from people in bars, restaurants, or even at home. And if you say no, you could be arrested, face a criminal record, ordered to pay a fine, and subjected to a driving suspension.

You could be in violation of the impaired driving laws even two hours after you’ve been driving. Now, the onus is on drivers to prove they weren’t impaired when they were on the road.

https://globalnews.ca/news/4832762/impaired-driving-canada-breath-samples/?fbclid=IwAR0QkuDBq44eaCOQUig4J0dFDt5hjVFCEF07c6m7hlWPW8sddvccuvEeb2I

 

[ModlrMike]

So much for the presumption of innocence.

 

[FJAG]

That's a really poor article and misses the point on so many levels.

For anyone who wants to see what the new law really said, look here:

https://laws-lois.justice.gc.ca/eng/acts/C-46/page-57.html#docCont

:cheers:

 

[brihard]

Yeah, no... There are a number of inaccuracies in this. Go figure they didn't actually seem to interview any police officers working in traffic units on this.

First off, it's not an amendment to S.253 C.C. That section, and all of the criminal code driving offences were repealed and replaced wholesale when Bill C-46 took effect.

What is being referred to here is S.320.14 C.C., the offence for impaired driving, and in this case through the mechanism of 'over 80'. It's illegal to be over 80 within two hours after driving, BUT not if you consumed the alcohol after driving, you had no reasonable expectation that you would be required to provide a breath sample, and your BAC is consistent with alcohol consumed post driving. Sorry, I know that's a bit to unwrap, and so I'll break it down in context.

Under the old laws prior to December 18th, someone who, say, got in a collision or hit someone while driving impaired could effectively foul an impaired driving investigation by firing back some alcohol after driving / after the collision. Because police needed to prove the degree of impairment at the time of driving, any intervening drinks would completely foul this. There have been plenty of cases where someone drives drunk, crashes their car, and quickly fires back more drinks before police get there. They are consuming alcohol specifically to obstruct a polcie impaired driving investigation.

Another not uncommon case (I've lost an impaired in court in part to exactly this) is where someone would get stopped by police, be arrested for impaired with or without a roadside sample, and get brought in for breath samples on the approved instrument that can support 'over 80' charges. When it goes to court, they get a friend to testify that they slammed two or three quick drinks immediately before leaving the bar, and they argue that at the time they were pulled over they weren't actually over the BAC limit, but that the alcohol in their stomach entered their blood stream and pushed them over the legal BAC limit in the time it took to get them to the police station for samples. It's a friggin' absurdity, but it happens and impaired drivers have gotten away with it.

The new law closes these loopholes. If you're in an accident, you have a 'reasonable expectation' that you may need to provide breath samples, so you won't fall under the exceptions this law defines. If you drank immediately before driving, likewise you don't fall into the 'consumed after driving and the BAC is consistent with same' exception.

The law grants police no new powers to enter a residence or dwelling. They cannot force their way in and demand breath samples (other than in the case of fresh pursuit in which case you're likely arrested for flight form police anyway). While polcec may go to a residence to speak to the driver of a vehicle involved in a motor vehicle collision, they will still be bound by the old standard of 'reasonable suspicion' to demand a breath sample in the field. The mandatory alcohol screening (no suspicion needed) only applies to people presently operating a vehicle. Police are not suddenly empowered to forcibly enter a house because they suspect an impaired driver is in there, and there is recent case law to that effect even in the instance of someone who DID come to the door (hammered), and who police merely prevented from closing the door. He was acquitted based on police not respecting the very high standard needed to enter a residence.

Likewise, yes, police could go into a bar and speak to someone suspected of driving impaired. They may in the course of that form reasonable suspicion and get a sample from a screening device, or they may find someone sufficiently blatantly drunk to arrest them outright and bring them to the station for full samples. But they could do that anyway; a bar or restaurant is a place to which the public generally has access and polcie are generally free to walk in in the course of an investigation and to approach and speak to someone if need be. I have gone into a Boston Pizza minutes after a drunk driver got there, found her, spoke with her, determined she was impaired and arrested her for impaired driving (and had no problem with that one sticking in court). This has always been something that can happen.

Police are still bound by all the same standards that apply to grounds for arrest, grounds to demand breath samples, grounds to enter a private residence, etc etc. This article is misreporting what is going on with the new provisions to the law. The reporter has not done his homework adequately.

 

[OldTanker]

Brihard, thanks for this clarification.

 

[BDTyre]

Under the old laws prior to December 18th, someone who, say, got in a collision or hit someone while driving impaired could effectively foul an impaired driving investigation by firing back some alcohol after driving / after the collision. Because police needed to prove the degree of impairment at the time of driving, any intervening drinks would completely foul this. There have been plenty of cases where someone drives drunk, crashes their car, and quickly fires back more drinks before police get there. They are consuming alcohol specifically to obstruct a polcie impaired driving investigation.

Likely this came about due in part to the Monty Robinson case; Robinson, an off-duty RCMP officer, hit and killed a motorcyclist while driving. He left the scene (ostensibly to protect his children from viewing the accident) but gave his license to a witness (to defeat a charge of leaving the scene) and went immediately home and drank a few shots of vodka (to foul any Breathalyzer). He then returned to the scene.

 

[brihard]

Yes, probably one of the many cases that informed this, and a great example of how such investigations can be fouled. Robinson ate a criminal conviction for obstruction, but he dodged the impaired driving charge. There have been many, many others, and this reform the the law is important in defeating some very BS defenses.

 

[Remius]

Yes, probably one of the many cases that informed this, and a great example of how such investigations can be fouled. Robinson ate a criminal conviction for obstruction, but he dodged the impaired driving charge. There have been many, many others, and this reform the the law is important in defeating some very BS defenses.

I have a former colleague that was counselled by an on scene police officer to go to the nearby bar and take a shot to calm his nerves before giving the test...long story but he beat the charge.  Cost him close to 30, 000 grand when it was all said and done though.

 

[brihard]

I have a former colleague that was counselled by an on scene police officer to go to the nearby bar and take a shot to calm his nerves before giving the test...long story but he beat the charge.  Cost him close to 30, 000 grand when it was all said and done though.

Your former colleague lied to you and I’m astounded you’d fall for that. Not a chance a police officer would tell someone to do that, for many, many reasons.

 

[Remius]

Your former colleague lied to you and I’m astounded you’d fall for that. Not a chance a police officer would tell someone to do that, for many, many reasons.

Like I said long story.  Was to cut him a break, one certain culture and uniformed member to another or so he said.  Also told him to ask for an interpreter etc etc.  I won't get into it here but can pm you the details.  Maybe he lied to me.  Just seems weird that he told me how he was able to beat the charge.  Why lie about that and not just lie about the whole thing to start.  Then again he was very drunk when it happened.

 

[brihard]

Far more likely he got caught driving drunk, beat it on a technicality, and came up with a BS story to explain why he would have blown over, namely that the cop told him to drink right before the sample. If the cop was going to cut him a break he would have given him a short roadside suspension, knowing that wouldn’t be questioned. I have done that exactly once, where the driver I caught was genuinely fleeing a very dangerous situation. What you described would be a ludicrous and overly complex way to cut someone a break and would definitely result in the officer’s conduct being investigated and them likely facing professional misconduct consequences.

 

[Remius]

Far more likely he got caught driving drunk, beat it on a technicality, and came up with a BS story to explain why he would have blown over, namely that the cop told him to drink right before the sample. If the cop was going to cut him a break he would have given him a short roadside suspension, knowing that wouldn’t be questioned. I have done that exactly once, where the driver I caught was genuinely fleeing a very dangerous situation. What you described would be a ludicrous and overly complex way to cut someone a break and would definitely result in the officer’s conduct being investigated and them likely facing professional misconduct consequences.

Again, long story.  He didn't use the excuse that a cop told him to do that.  He used the BS story about taking a few shots after he drove off a ramp and flipped his vehicle (not his but like I said long story).  He later told us that the on scene police officer told him to use that excuse to help him out.

PM incomimg when I get time to write it out.   

 

[brihard]

Ah, ok, I misunderstood. As you present it now, a great example of exactly the kind of obstruction to an investigation that the new law renders ineffective.

 

[Petard]

This seems to be the one firing up the water cooler talk/social media rants etc.

The debate seems to be the thin probable cause in this case, and if any is needed at all

https://torontosun.com/news/local-news/mandel-cop-pulls-over-senior-for-returning-too-many-empty-beer-bottles

 

[FJAG]

I might be presumptuous in this (because there are stupid crown attorneys too) but if any cop came with a charge that is based on his belief that too many empties being returned, without any other facts, constitutes probable cause for demanding a breath test then a reasonably intelligent crown would tell him to pound salt.

:brickwall:

 

[Haggis]

I might be presumptuous in this (because there are stupid crown attorneys too) but if any cop came with a charge that is based on his belief that too many empties being returned, without any other facts, constitutes probable cause for demanding a breath test then a reasonably intelligent crown would tell him to pound salt.

My understanding, based on Brihard's post, above, ant talking to a couple of breath techs at work is that reasonable grounds are no longer required to administer an ASD test at the roadside.  The officer would still have to articulate his reasons for the stop (i.e. general enforcement/situational factors) but not the demand for the test.

 

[ballz]

My understanding, based on Brihard's post, above, ant talking to a couple of breath techs at work is that reasonable grounds are no longer required to administer an ASD test at the roadside.  The officer would still have to articulate his reasons for the stop (i.e. general enforcement/situational factors) but not the demand for the test.

Which is easy to abuse. Story time [helmets on]:

While in Borden on a task this fall, a bunch of us went to a dessert bar in Barrie where many of us had a few drinks. I drove my rental car with a few us in and one of the girls who *did not drink a sip of alcohol* drove it back (this was pre-arranged although I was unsure if I would drink or not). I think I only had 2 maybe 3 drinks over the course of a 2-hour deal and wasn't feeling any effects (I am 200+ lbs and can hold my alcohol), but why bother risking it, and she drove back as planned.

On our way into the base, there was a check stop. No issues, we don't care, we've got a sober driver anyway, this ought to be quick, right? As we pull up the MP asks the driver if she had been drinking "No, they did, I haven't." Has she consumed cannibus (the law had just been passed) "No." Then why were you swerving back there on the road?

Okay, this was pure BS. I was in the passenger seat, also sober, she did not swerve anywhere. This was a question that essentially falsely accused the person of having done something wrong to see what their response would be. That is entirely unprofessional and an entirely made-up premise such as that can easily be used to intrude.

Let's not pretend that all LEOs are competent and/or professional and/or can't be a little too gungho on any given day, and that an increasingly low bar for intrusion into a private citizen's life who has done nothing can't and isn't going to lead to an unjustified intrusion into a law-abiding citizen's life. Will a person who has done nothing wrong get convincted of anything in our system? Unlikely. But that doesn't mean the Crown can't ruin their life and finances for a while.

There are other problems pointed out about this 2-hour rule by some lawyers that will undoubtedly cause issues. Let's say you come home, sober, and begin drinking. A vindictive person in your life (ex, neighbour, whatever) calls the cops and says you just arrived and were intoxicated when you got out of the vehicle at 5pm. The police show up and breathalyze you at 6:45pm and you blow over... you're now guilty until you prove otherwise? How can one possibly prove that they weren't drunk 2 hours ago? Same goes for arriving at a bar and beginning to drink, etc.

 

[JesseWZ]

My understanding, based on Brihard's post, above, ant talking to a couple of breath techs at work is that reasonable grounds are no longer required to administer an ASD test at the roadside.  The officer would still have to articulate his reasons for the stop (i.e. general enforcement/situational factors) but not the demand for the test.

More on that - the roadside test was never reasonable grounds to believe a crime was committed (impaired driving). It was reasonable grounds to suspect (a much lower standard) alcohol was present in someone who had been driving or in care and control of a motor vehicle. A fail on the ASD test would then give the officer reasonable grounds to believe the crime had been committed.

Where I’m working now I’m not too up to speed on the new scheme. Brihards summary was pretty thorough and I agree there used to be a lot of “outs” for impaired driving accused. Statistically speaking, police in Canada probably saw more acquittals for impaired driving then any other crime, much of them to do with the technical scheme of the legislation.

 

[brihard]

My understanding, based on Brihard's post, above, ant talking to a couple of breath techs at work is that reasonable grounds are no longer required to administer an ASD test at the roadside.  The officer would still have to articulate his reasons for the stop (i.e. general enforcement/situational factors) but not the demand for the test.

Precisely. An officer who is in contact with a driver who is operating (to include care and control of) a vehicle, in the course of their duties (traffic stop, RIDE check, investigating an accident etc) can demand an Approved Screening Device (ASD- roadside breathalyzer) sample. That sample is NOT what leads to charges, but if you blow a 'fail', then you can be arrested or detained for more samples on an approved instrument that can lead to charges if you blow over on that.

Example: It's 1:30 A.M. on a Saturday morning, I see a car speeding and change lanes without signalling. I pull it over. There are several occupants leaving an entertainment area downtown, the driver says he's the DD, and does not admit drinking. I cannot smell alcohol off his breath. I have no objective suspicion of alcohl in his body. I can demand a roadside breath sample to verify sobriety. My traffic stop was legal exercise of my duties under the Highway Traffic Act, and now the Crim Code lets me do an ASD test.

Outside of the roadside context, an officer who wants to administer an ASD still needs reasonable suspicion that a person has operated a motor vehicle with alcohol in their body within the past three hours.

Example: I come upon the scene of a single vehicle accident. A car has left the road, struck a pole and is not driveable. The driver is outside of the vehicle. The driver is not 'operating' the vehicle at this time, I can't do mandatory alcohol screening without suspicion. A witness confirms for me that this is the person they saw exit the driver's seat at the time of the crash and that they've stayed on scene throughout. I ask the driver if they've had any alcohol. They say no, but I smell alcohol on their breath. I have reasonable suspicion that they've operated a motor vehicle with alcohol in their body in the last three hours. I can do a roadside ASD test. They provide a sample and blow a 'fail'. I now have reasonable grounds to believe that their ability to operate a conveyance is impaired by alcohol, and I can arrest and bring them back to the station for breath samples that could lead to charges.

Example: I get a tip about a vehicle leaving a bar mid day, the driver has been drinking, but no ID on the driver and the description is thin. I find the vehicle parked at a different location a few minutes later, and as I'm checking out the vehicle the driver comes out of a store. I talk to him, ask if he was at the bar and if he had any alcohol. He denies same. I don't have him operating the motor vehicle, and I don't have reasonable suspicion that he has alcohol in his body due to the vagueness of the tip. I cannot administer a roadside test.

Example: I get a call for a hit and run. A witness describes a certain vehicle and gives the license plate, and they describe the male they saw get out of the car, look at the damage, then get back in and leave. They describe him as unsteady on his feet. I run the license plate and get a home address. I get to the address and find a vehicle in the driveway. The tailpipe is warm. I knock on the door, and a male comes to the door. I tell him his car was involved in an accident and ask him to step outside to talk to me. He steps outside, I show him the damage and ask what happened. He said he doesn't know. I note that he has a smell of beverage alcohol on his breath and is a bit unsteady on his feet. He matches the description given. I have reasonable suspicion that he was operating a motor vehicle in the past three hours with alcohol in his body, and I can demand an ASD sample. Now, had he not come to the door, I can't force my way in. Had he opened the door but not stepped out I cannot force him to come outside. I have no new powers here.

Finally, if someone is clearly impaired, we don't need to do an ASD test roadside. If we already have reasonable grounds to believe they're impaired, we can go right to demanding breath samples at the police station, and that's what will determine charges. An ASD test is a mechanism that lets us turn 'reasonable suspicion' into 'reasonable grounds'. It gives us more evidence to work with, and helps to rule out other things that could cause symptoms resembling impairment.

The removal of 'reasonable suspicion' as a requirement for ASD tests roadside is the result of a lot of cases where someone is pulled over, blows an ASD fail, blows over 80 at the station, and is charged, but the case is ultiamtely thrown out because the judge determines that the police officer did not have sufficient grounds to demand the ASD test. 'Suspicion' isn't merely 'suspicion'. I had a tip of a vehicle leaving a bar, driver had been drinking. I found it 18 minutes later, the driver told me he "couldn't recall" if he had been at the bar and "couldn't recall" if he had consumed any alcohol. I couldn't smell anything on his breath it was windy outside. The complainant hadn't IDed the driver. If he'd just said 'Yeah I was there but I only had coffee", I would have let him go on his way. It was the BS answer of not remembering if he was just at a bar that caused me suspicion. I administered an ASD, he failed, and then he blew .120 or so at the station. I charged him with over 80. It got tossed in court because my suspicion was not deemed to be 'objectively reasonable. As much as it chafed, the judge was pretty kind to me in his written decision, and it was a correct decision under law at the time. But a drunk driver got off as a result.

The new laws remove that requirement, and turn the focus more back to the simple question of whether a driver was impaired or not. The mandatory roadside screenings also provide us a deterrent tool. We don't have to administer it at every traffics top, and we don't. I've used it maybe 5 or 6 times since the 18th. It's a great tool for testing novice drivers on probationary licenses who aren't allowed to have any BAC as well.

Unquestionably there are going to be errors and overreaches by individual police officers who maybe don't thoroughly understand what the new laws do and don't do. There will also be irresponsibly sloppy news stories that misrepresent what's going on, and there are a ton of people with vested interests who are happy to add their two cents. All in all though this is a tool that should significantly simplify and strengthen the detection and prosecution of impaired driving.

The true measure of the efficacy of a police service is not the crimes that are detected, but the crimes that never happen because they are deterred from happening in the first place. We will see both as a result of this. There have already been a number of people caught driving impaired who would have been undetected under the old system. Every one of these was a potential hazard to other people on the road.I look forward to a couple years from now when we have some solid data to back this up, as other countries do.

 

[brihard]

There are other problems pointed out about this 2-hour rule by some lawyers that will undoubtedly cause issues. Let's say you come home, sober, and begin drinking. A vindictive person in your life (ex, neighbour, whatever) calls the cops and says you just arrived and were intoxicated when you got out of the vehicle at 5pm. The police show up and breathalyze you at 6:45pm and you blow over... you're now guilty until you prove otherwise? How can one possibly prove that they weren't drunk 2 hours ago? Same goes for arriving at a bar and beginning to drink, etc.

I'll address this since it's the most annoying fiction in that whole garbage news story. Bear in mind that it was a hypothetical postulated by a lawyer whose business is greatly dependent on a number of the technicality defences that have now been closed.

Let's say police get that call. The caller describes the alleged drunk driver by name, describes vehicle, describes address. Cops get there some time later.

Police do not have the driver operating. Mandatory Alcohol Screening per S.320.27(2) C.C. is not in effect. The power police have is that in S.320.27(1). It is exactly the same as it always have been. The lowest threshold to get a sample would be by Approved Screening Device. The threshold for that, as I described, is polcie must have reasonable suspicion that the person has operated a conveyance with alcohol in their body within the past three hours.

'Reasonable suspicion' isn't a hunch or a tip. There's tons of case law on this. Generally the three accepted grounds for this are an admission to drinking before/during operating; a smell of beverage alcohol on the breath of someone currently operating a vehicle, or a clear and credible witness to a person consuming alcohol prior to operating. The police officer in this case wouldn't have anything close to what a judge would deem 'reasonable suspicion'. It would fail the objective suspicion test.

A person has not committed an 'over 80' offense if the consumed alcohol after operating, AND they had no reasonable expectation that they would be expected to provide samples, AND their BAC if tested is consistent (factoring in subsequent drinks consumed) with them having been under the legal limit at the time of driving.

That's wordy, but why it matters is to cover situations like the hit and run I alluded to above. Police get a hit and run, show up at the house and find the car still warm, driver comes to the door and steps outside and has definitely been drinking. This isn't a guy who simply drove home from the bar and nothing bad happened- he got in an accident. It's reasonable to expect he might be investigated and might have to provide samples. This criminalizes the practices of drinking after an accident to obstruct an impaired driving investigation.

There will definitely be some case law around what is meant by "they had no reasonable expectation that they would be required to provide a sample of breath or blood". There will be case law around what the standard of proof is for a driver to prove their post-driving consumption to rule out having been impaired ahead of time. Every single bit of this new system for impaired driving enforcement is going to get tested in court across a variety of cases that will be soon (if not already) starting to get prosecuted. It is not, however, nearly so flawed or prone to abuses as some recent news stories would have you believe. Again, pay attention to who that reporter *did* speak to, and who they didn't.