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

[Infanteer]

any competent police officer

Much like the military, its not the competent officers I'm worried about. :Tin-Foil-Hat:

 

[Furniture]

Wrong again. My concern is more with deterring impaired drivers. I want people to be scared to drive drunk, because so far far too many haven't been. I want that person to take an Uber, or drink a couple less drinks, and to never cross my path that day. I'd like drunk driving to not be a thing. ...

To acheive your first goal the best way to get more drunk drivers off the road is more police on more patrols. People don't drink and drive because they figure they have a loop hole to get out of the DUI, they do it because the likelihood of seeing the police on the drive home is so low. Everyone that is going to get the message about drinking and driving has got it by now, so you're left with the "it will never happen to me/the police never come by here/take the back roads" crowd.

 

[Fishbone Jones]

If a cop showed up at my place two hours after I got home and had had a few drinks, I just wouldn't answer the door.

I can see who's at my door on camera and have no requirement to respond to a knock.

If I'm in bed, I'm definitely not getting up to answer the door.

I'll call the station the next day, say I noticed a visit on my cameras and was wondering what they wanted.

 

[meni0n]

Doubful. The circumstances you describe wouldn't allow a breath sample demand anyway. More to the point, any competent police officer is not going to try to build an impaired out of something that thin.

Once again police cannot simply show up at your house later on after you've been driving, and, without evidence that you were driving with alcohol in your body (and it must have been within three hours), demand a sample from you. Random samples without reasonable suspicion must be while you're driving. The new law creates no new power whatsoever for police to demand breath samples in any context other than someone presently operating a motor vehicle. Now, if you're operating your car in your living room, a breath sample might be permissible and perhaps even a good idea...

Really? Seems to me cops did exactly what you describe...

https://globalnews.ca/news/5326941/nanaimo-woman-wins-court-challenge-breathalyzer/

There's been a few other cases in BC and NB about people with disability unable to blow hard enough and getting suspensions even though they had medical proof...

 

[brihard]

Really? Seems to me cops did exactly what you describe...

https://globalnews.ca/news/5326941/nanaimo-woman-wins-court-challenge-breathalyzer/

There's been a few other cases in BC and NB about people with disability unable to blow hard enough and getting suspensions even though they had medical proof...

I picked that Global story apart a bit farther upthread, last night. That’s not what they did (mandatory breath sample without any evidence), and I explain in a fair bit of detail where police can get a breath sample and where they can’t. Your starting point for getting up to speed will be reading sections 320.14, 320.15, 330.27, and 320.28 of the Criminal Code. You’re then going to probably dig into some case law if you want to learn yourself up on some of the technical aspects of suspicion vs reasonable grounds, etc etc., but I’ve broken it down and summarized it several times in this thread so far.

 

[meni0n]

Clearly the judge believed her version of events so I would say the officer had no reasonable grounds or suspicion.

 

[brihard]

Clearly the judge believed her version of events so I would say the officer had no reasonable grounds or suspicion.

It didn’t go before a judge. It was an administrative suspension that went before an adjudicator appointed by the Superintendent of Motor Vehicles. IRP adjudicators are neither lawyers nor judges. BC is unique in this system, and it has been upheld by the Supreme Court.

As of yet there is no case law on the 2018 revisions to criminal impaired driving laws. I’d estimate we’ll start seeing provincial court decisions in late 2019 or early 2020, and on up the appeals chain from there. Maybe at the SCC by 2023? It takes a long time to generate binding case law on new things like this.

 

[RCDtpr]

edit as I just realized I was replying to a post from months ago.

 

[tomahawk6]

Sounds like something California or New York would do despite legal protections enjoyed at home. Of course it would end up with the Supreme Court. I guess Canadians don't have similar protections ?

 

[brihard]

Sounds like something California or New York would do despite legal protections enjoyed at home. Of course it would end up with the Supreme Court. I guess Canadians don't have similar protections ?

Oh, we do. Circumstances where police can enter a residence without invitation are deliberately quite limited, and the courts uphold that strongly.

 

[tomahawk6]

Oh, we do. Circumstances where police can enter a residence without invitation are deliberately quite limited, and the courts uphold that strongly.

Good to know.Thx

 

[Good2Golf]

Good to know.Thx

An example in the Ontario Supreme Court: Regina v. Zargar, ONSC 2014, upholding Federal Constitutional rights of "Sanctity of Home."  Of particular note is Para 21 to the Supreme Court's ruling regarding the conditions under which police may be considered to have exceptional reason to deny a homeowner from Sanctity of Home, i.e. police's Lawful Entry:

[21]          Given the clarity and strength of the above common law principle, most of the case law has focused on those narrow situations where the police are given the authority to force entry into a dwelling, against the wishes of the owner, because of some statutory or common law power expressly authorizing such entry.  These so-called “exceptions” to the general rule include the following:

•                    Where the police are in “hot pursuit” or “continuous pursuit” of an offender who has “gone to his home while fleeing solely to escape arrest”.  See:  R. v. Macooh (1993), 1993 CanLII 107 (SCC), 82 C.C.C. (3d) 481 at paras. 19-25 (S.C.C.); R. v. Van Puyenbroek (2007), 2007 ONCA 824 (CanLII), 226 C.C.C. (3d) 289 (Ont. C.A.);

•                    Where the police, on reasonable grounds, believe that it is necessary to enter the premises in order to prevent the commission of an offence that would cause immediate and serious injury, or to protect life and safety by assisting a resident who is in potential danger.  See:  R. v. Godoy (1999), 1999 CanLII 709 (SCC), 131 C.C.C. (3d) 129 (S.C.C.); R. v. Sanderson (2003), 2003 CanLII 20263 (ON CA), 174 C.C.C. (3d) 289 (Ont. C.A.); R. v. Custer (1984), 1984 CanLII 2586 (SK CA), 12 C.C.C. (3d) 372 (Sask. C.A.);

•                    Where the police enter the premises in order to effect the arrest of a resident.  In order to come within this exception, an arrest warrant was not required prior to the advent of the Charter.  However, the post-Charter case law has narrowed the exception such that it now only applies where the police have obtained an arrest warrant prior to entry.  See:  Eccles v. Bourque, supra; R. v. Landry (1986), 1986 CanLII 48 (SCC), 25 C.C.C. (3d) 1 (S.C.C.); R. v. Feeney (1997), 1997 CanLII 342 (SCC), 115 C.C.C. (3d) 129 (S.C.C.);

•                    Aside from the above three exceptions, the common law did not recognize any broad residual “exigent circumstances” basis for forced entry.  See:  R. v. Silveira (1995), 1995 CanLII 89 (SCC), 97 C.C.C. (3d) 450 (S.C.C.); R. v. Feeney, supra, at para. 47.  However, Parliament subsequently enacted a number of statutory provisions allowing for warrantless entry of a dwelling house in “exigent circumstances”, provided that certain statutory criteria are met.  See, e.g. s. 11(7) of the Controlled Drugs and Substances Act, and ss. 487.11 and 529.3 of the Criminal Code.  In the latter provision, “exigent circumstances” are defined as “imminent bodily harm or death” and “imminent loss or imminent destruction of evidence”;

•                    Finally, various statutory provisions expressly authorize forced entry by the police, most importantly, s. 487 enacts the power to search a dwelling house with a search warrant.

Source: R. v. Zargar, 2014 ONSC 1415 (CanLII), par. 21, http://canlii.ca/t/g62dn#par21, retrieved on 2019-06-02.

Regards
G2G

 

[mariomike]

Was to cut him a break, one certain culture and uniformed member to another or so he said. 

In the 1970's, it was common to hear stories from co-workers about receiving "professional courtesy" and "discretion" from Metro police when driving drunk.

After MADD, not so much.

 

[ballz]

Doubful. The circumstances you describe wouldn't allow a breath sample demand anyway. More to the point, any competent police officer is not going to try to build an impaired out of something that thin.

This conflicts with what you said on page 1. You keep talking about the "new law" and the mandatory screening, but you keep neglecting that the "new law" also makes blowing @ 0.08 within 2 hours after driving a DUI charge. You keep acting like there is only one aspect of this law.

NOTE: While you were arguing the same thing on Pg 1, I don't know how you can argue that this stuff doesn't give "reasonable suspicion" given what you've indicated constitutes reasonable suspicion.

Your comments on page 1:

"

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.

So you're arguing that "seeing someone swerving and hitting a curb" wouldn't constitute reasonable suspicion... but suppose the police show up on that complaint and talk to the guy who they are now smelling booze off of? And if that isn't enough for "reasonable suspicion," you also know the complaint could be worded in a way which would constitute reasonable suspicion. We can easily replace the scenario from "neighbour says he saw him swerve and hit the curb" to "neighbour says he saw him drinking while outside working in the yard and then get in a vehicle and drive away. Shortly after, he came back and hit the curb trying to get into his own driveway." You know damn well this complaint can be manufactured well enough to provide "reasonable suspicion." If people can manufacture complaints well enough to have a SWAT team called, they can manufacture complaints well enough to provide reasonable suspicion for a breathalyzer.

Now, you're likely going to argue "he had no reason to believe he would be breathalyzed, and he has BAC consistent with how much he had been drinking since getting home, so he will not be found guilty." That's great, after having his license suspended and $10,000 in legal fees, he will be found not guilty. So not exactly a winning argument, not an acceptable outcome in my books.

Like I said in my first post....

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 convicted of anything in our system? Unlikely. But that doesn't mean the Crown can't ruin their life and finances for a while.

I will also contend here, again, that a change to the obstruction laws would make a lot more sense than trying to address what is a obstruction problem by making the harmless act of being drunk 2 hours after getting home a crime. You had stated you disagreed with that because "obstruction is harder to prove," which is a nonsensical argument because you're supporting a change to DUI laws to make DUI "easier to prove," when they could just change the obstruction law to make it "easier to prove" instead, and come up with sentencing guidelines that mean if you are found guilty of obstructing for the purposes of escaping a DUI charge, you will be punished in a similar manner to had you been found guilty of a DUI.

 

[ballz]

You've got my motivations all wrong on this. Not accepting collateral damage to innocent people is exactly what this whole thing is about. It only takes one accident scene with a drunk driver and a wrecked child seat in a car to develop pretty strong opinions on this.

That's a little bit of standing on someone's grave, but keeping it cordial I'll try not to judge given the emotional nature of the issue. Your strong feelings on the issue are what's not allowing you to give any weight to the flaws inherent in this law, which is exactly what I meant by stating "you just want to catch more drunk drivers regardless of the collateral damage" (obviously referring to those who will face devastating legal action for no reason). Like I and others have said throughout this thread, there are far better ways to deal with the issue of obstruction, which seems to be the only argument in support of this law. One better way to deal with the issue of obstruction.... would be to deal with the issue of obstruction.

 

[mariomike]

It only takes one accident scene with a drunk driver and a wrecked child seat in a car to develop pretty strong opinions on this.

You never really get used to it.

 

[brihard]

That's a little bit of standing on someone's grave, but keeping it cordial I'll try not to judge given the emotional nature of the issue. Your strong feelings on the issue are what's not allowing you to give any weight to the flaws inherent in this law, which is exactly what I meant by stating "you just want to catch more drunk drivers regardless of the collateral damage" (obviously referring to those who will face devastating legal action for no reason). Like I and others have said throughout this thread, there are far better ways to deal with the issue of obstruction, which seems to be the only argument in support of this law. One better way to deal with the issue of obstruction.... would be to deal with the issue of obstruction.

I guess we’ll have to agree to disagree. I’m content with knowing that the facts of the new law are accurately recounted in this thread, and people can make up their minds as they see fit. I’m not going to convince you, you’re not going to convince me. My concern here was more to correct inaccurate impressions given by yet another poorly researched article on the matter.

 

[Infanteer]

I still want to know what prompted the police to show up at the house in the first place.  That would settle a lot of the discussion.

 

[meni0n]

I still want to know what prompted the police to show up at the house in the first place.  That would settle a lot of the discussion.

From the article

https://www.timescolonist.com/news/local/nanaimo-woman-wins-legal-fight-over-drinking-and-driving-1.23841698

The officers told Lowrie they had received an anonymous complaint that she had consumed “multiple alcoholic beverages” before getting into a pickup and driving away from the restaurant at 4:53 p.m.

There's a lot of wrong things that went on in that case.

 

[ballz]

I still want to know what prompted the police to show up at the house in the first place.  That would settle a lot of the discussion.

And another slightly different version than what meni0n's article states (which sounds more plausible and thorough), but an anonymous caller none the less...

In the audio clip on the article, it interviews the woman and honestly it sounds even worse than the article. She states she was told by police it was an anonymous caller that complained she was driving erratically:

1. The cops called stating they wanted to speak to her about something personally. She asked what it was and they wouldn't tell her. She gave them her location. I'm not upset about this, if they think they someone has been drinking and driving, and are trying to build evidence, meeting them in person is obviously going to be necessary to help build a case.

2. Five cops showed up in three cars. Okay, this seems a bit excessive to me.

3. She asked the police what brought them there. They would not give any info, but said someone reported that she was driving erratically. Her lawyer also allegedly tried to get the info, and couldn't. It sounds like it was an anonymous caller (or a real bad job taking notes by the police) or else I can't see how it's possible that the lawyer wouldn't be able to get the info.

4. Having admitted to drinking (because she was drinking when they showed up), they told her she had to take a breathalyzer.

Never thought about it until she mentioned it, but she required her car for her duties at work too. Besides the money she's out, the vacation time, the legal battle, losing her vehicle for a month, etc.... having her license suspended, she's lucky she didn't lose her job.